author: WELCH, J.

text:
    MSOF CORPORATION and Jay Paul Leblanc v. EXXON CORPORATION, Exxon Chemical Company, U.S.S. Chemical Company, Copolymer Rubber and Chemical Corporation, Uniroyal Corporation, Dow Chemical Company, Ethyl Corporation, Shell Chemical Corporation, American Hoechst Co. (f/k/a Foster Grant Company), Allied Chemical Corporation, Rubicon Chemical Company, Petro Processors of Louisiana, Inc., Rollins Environmental Services (LA), Inc., Robert Bolger, J.W. Street, W.L. Rainey, NPC Services, Inc., and XYZ Insurance Company.
    No. 2004 CA 0988.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Rehearing Denied May 30, 2006.

      Charles S. Lambert, Jr., J. Burton Le-Blanc, III, J. Burton LeBlanc, IV, J. Burton LeBlanc, Jr., Baton Rouge, Patrick W. Pendley, Plaquemine, for Plaintiffs — Appellants MSOF Corp. and Jay Paul Le-Blanc.
    Gerald L. Walter, Jr., Anne J. Crochet, Baton Rouge, for Defendants — Appellees NPC Services, Inc., Robert Bolger, J.W. Street, and W.L. Rainey.
    William R. D’Armond, Sandra Edwards, Baton Rouge, for Defendants — -Appellees Exxon Mobil Corp., Crompton Manufacturing Co., Inc., DSM Copolymer, and U.S. Steel Corp.
    David M. Bienvenu, Jr., Baton Rouge, for Defendants — Appellees Ethyl Corp., The Dow Chemical Co., and Shell Oil Co.
    Stephen Glusman, Baton Rouge, for Defendant — Appellee Celanese Corp. (formerly Hoeschst Celanese Corp.)
    Craig Wyman, New Orleans, for Defendant-Appellee Honeywell International Inc.
    Before: CARTER, C.J., PARRO, KUHN, DOWNING, and WELCH, JJ:
   WELCH, J.

LThis is an appeal by the plaintiffs, MSOF Corporation and Jay Paul LeBlanc, from a judgment granting a motion for summary judgment filed by the defendants, NPC Services, Inc., Ethyl Corporation, Shell Chemical, LP, The Dow Chemical Company, ExxonMobil Corporation, United States Steel Corporation, DSM Co-polymer, Inc., Crompton Manufacturing Company, Inc., Honeywell International, Inc., Celanese Corporation (formerly Hoechst Celanese Corporation), Robert Bolger, J.W. Street, and W.L. Rainey, and dismissing the plaintiffs’ suit for damages. For the following reasons, we reverse the judgment of the trial court and remand this matter for further proceedings.

Factual and Procedural History

The plaintiffs are landowners of approximately 1,850 acres located in the southern portion of watershed area known as “Devil’s Swamp,” which is situated in East Baton Rouge Parish, Louisiana.

Petro Processors, Inc. (“PPI”) was the owner and operator of two hazardous waste disposal facilities in the northern portion of Devil’s Swamp, known as the Brooklawn site and the Scenic Highway site. Immediately adjacent to, and partially inclusive of, the Brooklawn site is an area referred to as Section 45. It is undisputed that toxic waste from PPI’s Brook-lawn site contaminated a portion of Section 45 where Bayou Baton Rouge enters Devil’s Swamp. The plaintiffs’ property is located approximately three miles south/southeast of Section 45 and the Brooklawn site.

With the exception of NPC Services, Inc. (“NPC”), the corporate defendants were industrial generators of hazardous waste that made use of the PPI waste disposal facilities. NPC was formed by these corporate defendants to clean up or | remediate the PPI waste sites in accordance with a federal consent decree. Robert Bolger was president of NPC, and J.W. Street and W.L. Rainey were executive officers of NPC.

On July 9, 1993, the Louisiana Department of Health and Hospitals (“DHH”) and the Louisiana Department of Environmental Quality (“DEQ”) issued a health advisory for the entire Devil’s Swamp area and Bayou Baton Rouge area based on health risks posed by detected contamination. The PPI waste disposal sites were subsequently identified as the source of the contamination. As landowners within the area of concern, the plaintiffs received the health advisory. Thereafter, on July 5,1994, the plaintiffs, on behalf of themselves and all other similarly situated landowners, filed this suit in a state district court, alleging that the defendants were responsible for contaminating their land with toxic chemicals and that the plaintiffs were entitled to compensatory damages commensurate with costs of the restoration and remediation of their property and to exemplary damages under La. C.C. art. 2315.3, as the plaintiffs’ damages were caused by the defendants’ wanton and reckless disregard for public safety in the storage and handling of the hazardous wastes disposed of at the PPI facilities.

The plaintiffs’ case was removed to a federal district court pursuant to a motion filed by the defendants. Subsequently, the defendants moved for summary judgment. The federal court granted the motion for summary judgment, finding that the plaintiffs had not produced sufficient evidence to create a genuine issue of | Bmaterial fact relating to an essential element of their claim, and therefore, dismissed the plaintiffs’ suit. On appeal, the federal appellate court found that the federal district court lacked subject matter jurisdiction over the claim and vacated the judgment with instructions that the matter be remanded to the state court from which it was removed. See MSOF Corp. v. Exxon Corp., 295 F.3d 485 (5th Cir.2002).

On remand to the state district court, the defendants moved to have their motion for summary judgment previously filed in federal court set for hearing. By Judgment signed on January 27, 2004, the trial court granted the defendants’ motion for summary judgment, and the plaintiffs now appeal.

Assignments of Error

The plaintiffs make the following assignments of error: ■'

1. The trial court' erred by granting summary judgment because the plaintiffs produced evidence that hexachlorobenzene (“HCB”) and hexachlorobutadien (“HCBD”), admitted by the defendants to be their “signature contaminants” released from the PPI waste disposal. sites, have been found throughout the Devil’s Swamp watershed, including South IDevil’s Swamp where the plaintiffs’ property is located.

2. The trial • court erred by granting summary judgment when plaintiffs established a cause of action under La. C.C. arts. 667, 2315, and 2317.

3. The trial court erred by failing to admit and consider the testimony of the plaintiffs’ expert, Dr.' Paul H. Templet, that contamination from the PPI waste disposal sites migrated to the plaintiffs’ property.

4. The trial court erred by striking the testimony of the plaintiffs’ expert, Dr. David A. Link, that contamination from the PPI waste disposal sites migrated to the plaintiffs’ property.

| fi5. The trial court erred in granting summary judgment because there was a conflict between the opinions of the parties’ experts.

6. The trial court erred by shifting the burden of proof to plaintiffs when the defendants did not carry their burden under La. C.C.P. art. 966.

7. The trial court erred by admitting and relying on the testimony of defendants’ experts, Dr. Shahrokh Rouhani and Dr. Edwin M. Roberts, which testimony was based on unscientific and unreliable data and testing.

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 2004-0229 (La.App. 1st Cir.9/17/04), 885 So.2d 1241, 1244-45; Western Sizzlin Steakhouse v. McDuffie, 2002-0935 (La.App. 1st Cir.3/28/03), 844 So.2d 355, 357, writ denied, 2003-1147 (La.6/20/03), 847 So.2d 1236. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any , affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his |7evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. Exxon-Mobile, 2002-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038 (La.App. 1st Cir.9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

In this case, the plaintiffs’ petition for damages is based on negligence, strict liability, trespass, and nuisance. In order to prevail in their claims based on negligence, strict liability, and trespass, the plaintiffs will have to prove by a preponderance of the evidence that toxic chemicals originating from a PPI waste disposal site have contaminated and thus caused damage to the plaintiffs’ land in the southern portion of Devil’s Swamp. In order to succeed in their claim based on nuisance, the plaintiffs will have to prove by a preponderance of the evidence that toxic chemicals released by the PPI waste disposal site have caused damage to the plaintiffs by limiting or depriving the plaintiffs of their ability to use or enjoy their land. See La. C.C. arts. 667-669; see also Spiker v. City of Baton Rouge/Parish of East Baton Rouge, 2000-1841 (La.App. 1st Cir.11/9/01), 804 So.2d 659, 663-64, writ denied, 2002-0598 (La.4/26/02), 814 So.2d 564, and writ denied, 2002-0674 (La.4/26/02), 814 So.2d 568; Prentice Oil & Gas Co. v. Caldwell, 355 So.2d 1327, 1330 (La.App. 1st Cir.1977); writ denied, 358 So.2d 640 (La.1978); Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604, 606 (La.App. 1st Cir.1978), writ denied, 366 So.2d 575 (La.1979).

In their motion for summary judgment, the defendants assert that there is no genuine issue of material fact as to the lack of contamination on the plaintiffs’ property, which originated from a PPI waste disposal site. In support of their | amotion for summary judgment, the defendants submitted the following evidence: affidavits of Dr. Shahrokh Rouhani, dated April 26, 1995 and October 28, 1994; an order issued by the federal district court on December 12,1994, regarding the defendants’ initial discovery requests; the plaintiffs’ answers to interrogatories pursuant to such order, including an affidavit of Dr. Link, dated January 30, 1995; the February 23, 1995 deposition of Dr. Link; the March 6, 1995 deposition of Dr.' Rouhani; affidavits of Dr. Roberts, dated April 28, 1995 and October 1, 2003; and an affidavit of Dr. John Green, dated April 21, 1995.

According to the affidavits of Dr. Rouha-ni and the April 28, 1995 affidavit of Dr. Roberts, contamination from a PPI waste disposal site is distinguished by HCB and HCBD — they are the “signature” contaminants for PPI waste and will be found in any soil contaminated by PPI waste. HCB and HCBD identify and distinguish waste from the PPI waste disposal sites from any other contaminants in the Devil’s Swamp area, even though other contaminants, such as trichloroethene (“TCE”) and tetrachloroethene (“PCE”), are frequently found along with HCB and HCBD at PPI waste disposal sites. If TCE and PCE were found south of Section 45 along with HCB and HCBD, the PPI waste disposal sites could not be ruled out as a suspected source of the contamination. However, if TCE and PCE were found alone, without HCB and HCBD,-the source of the contamination could not be attributed to a PPI waste disposal site. According to Drs. Rouhani and Roberts, contaminants in concentrations greater than the “background levels” have not been detected in sediments, surface water, or ground water south of Section 45, nor have they been detected in the north, central, or southern portions of Devil’s Swamp.

| c)Based on this evidence, the defendants argue that since the plaintiffs’ property is located in the southern portion of Devil’s Swamp, three miles sóuth/southeast of Section 45, arid since contamination in concentrations greater than the background levels has not been detected south of Section 45, the plaintiffs have failed to present a genuine issue of material fact on this essential element of their claim — the presence of contamination on their property from PPI waste.

In opposition to the motion for summary judgment, the plaintiffs submitted evidence which included the following: affidavits of Dr. Link, dated January 30, 1995 and June 28, 1995; the June 5, 1995 deposition of Dianne Dugas; an affidavit of Dr. Michael C. Axelrod, dated June 29, 1995; an affidavit of Kermit Williams, dated June 29, 1995; and an affidavit of Dr. Paul H. Templet, dated September 25, 2003, with a portion of a 1999 report by Scientific Applications International Corporation (“1999 SAIC report”) attached thereto.

According to the plaintiffs’ evidence, contamination from the PPI Brooklawn waste disposal site has spread southward of Section 45 and into the five sub-areas of Devil’s Swamp; namely, North Bayou Baton Rouge, Distributary Channels, North Devil’s Swamp, Devil’s Lake, and South Devil’s Swamp. According to the 1999 study, a traces of both HCB and HCBD— the “signature” contaminants of PPI waste — have been found in the soil and sediments of all five sub-areas and have also been found in the tissues of fish and shellfish throughout Devil’s Swamp. Since the “signature” chemicals have been found in all five sub-areas, including South Devil’s Swamp, where the plaintiffs’ property is located, contamination from the PPI Brooklawn waste disposal site has migrated south and contaminated the plaintiffs’ land. Based on this evidence, the plaintiffs contend that they have presented sufficient factual support as to an essential element of 11fltheir claim in question — the presence of contamination on their property from PPI waste — such that they will be able to satisfy their evidentiary burden at trial, and hence there is a genuine issue of material fact which precludes summary judgment.

In this case, the trial court excluded the expert opinion evidence of Drs. Link and Templet, on which the plaintiffs relied to establish the southward spread of PPI contaminants onto their property, by finding the expert opinions were inadmissible under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as adopted by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116 (La.1993) and Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. Since the plaintiffs assign error to the exclusion of this evidence, we must determine the correctness of this ruling.

Law and Analysis Applicable to Daubert

Under the Louisiana Code of Evidence, a witness qualified as an expert by “knowledge, skill, experience, training, or education” should be allowed to testify if his “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” La. C.E. art. 702. See Morgan v. Lafourche Recreation Dist. No. 5, 2001-1191 (La.App. 1st Cir. 6/21/02), 822 So.2d 716, 719, writ denied, 2002-1980 (La.10/25/02), 827 So.2d 1156. An appellate court should not disturb a trial court’s evidentiary ruling on the admissibility of expert opinion evidence at summary judgment absent an abuse of discretion.

In Daubert, the plaintiff offered expert opinion evidence in opposition to a motion for summary judgment, which the lower courts found was not sufficient to overcome the defendants’ motion for summary judgment because the expert opinion was based on a scientific technique which was not “generally accepted” as reliable in the relevant scientific community.. The United States Supreme Court found that when, “[f]aced with a proffer of expert scientific testimony ... the trial judge must determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. The Supreme Court explained that this would entail “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. The Supreme Court then enumerated factors that the trial court may consider in fulfilling this “gatekeeping role”: whether the technique had been subjected to peer review and/or publication; the “known or potential rate of error”; the' existence' of “standards controlling the technique’s operation”; and the technique’s “refutability” or testability. See Daubert, 509 U.S. at 593-95, S.Ct. at 2796-97. The Supreme Court further addressed the gatek-eeping role in the context of a summary judgment motion and held that “in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free ... to grant summary judgment.” Daubert, 509 U.S. at 596, 113 S.Ct. at 2798.

It is important to note, however, that there is a crucial difference between questioning the methodology employed by an expert witness and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play. Tadlock v. Taylor, 2002-0712 (La.App. 4th Cir.9/24/03), 857 So.2d 20, 26, unit denied, 2003-3265 (La.3/12/04), 869 So.2d 819. Additionally, Daubert concerns admissibility of the, expert’s opinion and not his qualification as an expert in the area tendered. Comeaux v. C.F. Bean Corp., 99-0924 (La.App. 4th Cir.12/15/99), 750 So.2d 291, 296 n. 3, writ denied, 2000-0127 (La.3/17/00), 756 So.2d 1145.

With regard to the contention by the defendants’ that Dr. Link did not possess the qualifications, knowledge, and expertise to render the opinions and conclusions that he did, our review of the record reveals that Dr. Link has a B.S. degree in geology from, the University of Wisconsin and a Ph.D. degree in geology from Northwestern University in Evanston, Illinois. He is a project geologist and project manager at Exploration Technologies, Inc., and his primary areas of expertise are in clastic sedimentation and geological evaluations of environmental assessments. Because the “signature” chemicals at issue, HCB and HCBD, attach to soil particles and move with the soil particles, his specialized scientific | ^knowledge of sedimen-tology and geology may aid the fact finder in understanding how PPI contamination may have spread throughout Devil’s Swamp and may have found its way onto the plaintiffs’ property. Thus, his knowledge, skill, experience, training, and education provide him with appropriate qualifications to render an expert opinion on whether PPI contamination found in the northern Devil’s Swamp area migrated into the southern Devil’s Swamp area and onto the plaintiffs’ property.

According to the evidence, from December 10 to 13, 1994, Dr. Link came to Baton Rouge, Louisiana to “reconnoiter” the area of Devil’s Swamp, and he personally obtained soil and water samples from Sections 8,16, and 17 of Devil’s Swamp, which are south of the area studied by PRC Environmental Management Inc. on behalf of the EPA. He then personally transported the samples to a laboratory in Houston, Texas, where they were analyzed. Based on his review of the analytical data, as well as other data from a 1992-93 study done by PRC and Dr. Rouhani’s affidavit, and with full knowledge of how “depositional and erosional systems function,” he concluded that contaminants derived from PPI sites have been transported, and that as a result of “contaminant transportation and deposition,” Sections 45, 32, 47, 5, 55, 8, 9,16, and 17 are contaminated.

In the defendants’ motion for summary judgment, they argued that Dr. Link’s opinion should be excluded under Daubert because he was in error as to the source of the contamination that he observed in his soil samples from areas south of Section 45, and because his opinion is “unscientific” and/or “scientifically unreliable.” In support of the exclusion of Dr. Link’s opinion, the opinions of Drs. Rouhani and Roberts were offered.

In excluding Dr. Link’s expert opinion, the trial court found: (1) Dr. Link’s opinion lacked the scientific reliability and methodology required by Daubert; (2) |uDr. Link did not perform adequate testing to determine the source of the chemicals he found on the plaintiffs’ property; and (3) Dr. Link did not follow “standard procedures” for assessing the true origin of the chemicals. These findings by the trial court were seemingly influenced by the opinions of Dr. Rouhani and Dr. Roberts, the defendants’ experts.

According to Dr. Rouhani, Dr. Link does not possess the expertise to conduct an unsupervised environmental investigation on the fate of contaminants in aquatic environments. He further stated that Dr. Link’s investigation was marked by serious shortcomings and erroneous interpretá-tions (such as improper planning, improper sampling procedure, disorganized data handling procedures, flawed assessments due to lack of hydrologic and hydraulic knowledge, and fundamental deficiencies in his model). Therefore, Dr. Rouhani opined that Dr. Link’s conclusions as to the source of the contamination were speculative and unsubstantiated. Additionally, according to Dr. Roberts, Dr. Link is in error as to the source of the contamination on the plaintiffs’ property, and neither Dr. Link’s work nor the material reviewed by Dr. Link supports his conclusion. Dr. Roberts further stated that Dr. Link’s reasoning is unscientific and reveals a lack of basic chemical knowledge, because he fails to make a connection between contamination. from a PPI waste site and the contamination detected in his soil samples.

Although Dr. Templet’s qualifications as an expert were never specifically challenged by the defendants’ experts, the record reflects that Dr. Templet is the former Secretary of the Louisiana Department of Environmental Quality, has a Ph.D. degree with advanced degrees in physical chemistry and chemical physics, and particular expertise in environmental chemistry and environmental planning and management. He teaches environmental planning and management at Louisiana State University, Department of Environmental Studies. He has worked in the chemical industry for four years and has qualified as an expert in both state 11Band federal courts in the areas of chemistry, environmental chemistry, including “fate and effects,” and environmental planning and management.

The expert opinion evidence of Dr. Tem-plet concludes that the plaintiffs’ property is contaminated with chemicals from the Brooklawn site and that the contamination may further spread from the upstream areas to the plaintiffs’ property in the future. His opinion was based, in part, on the 1999 SAIC report, part of which was attached to his affidavit, and which found HCB and HCBD (the “signature” chemicals of PPI contamination) in the sediment and soil in South Devil’s Swamp and in the tissue of fish and shellfish in the entire Devil’s Swamp watershed.

In the defendants’ motion for summary judgment, they argued that the plaintiffs’ expert opinion evidence of Dr. Templet should be excluded under Daubert because he did not perform the required testing to determine the origin .of the specific chemicals, because the entire 1999 SAIC report was not attached to his affidavit, and because there was insufficient information in the 1999 SAIC report on which to base his conclusions. In excluding Dr. Templet’s expert opinion, the trial court found, that “Dr. Templet, like Dr. Link” failed to perform the required testing to determine the origin of the specific chemicals and did not take into consideration other possible sources of the chemicals.

The trial court’s conclusion that the expert opinions of Drs. Link and Templet did not meet the standards set forth in Daubert was based on the defendants’ contention that the methodology employed by the plaintiffs’ experts lacked the required testing which would determine the origin of the chemicals found on the plaintiffs’ property. However, it was not necessary to perform additional testing to determine the origin of the chemicals, because the evidence Insufficiently established genuine issues of material fact (1) that the origin of the chemicals HCB and HCBD are not in dispute — they are the “signature” chemicals of PPI waste, and (2) that the signature chemicals have been found on the plaintiffs’ property. Thus, it is immaterial whether Drs. Link and Templet performed their own testing to determine the origin of the chemicals.

With regard to the defendants’ contention that Dr. Templet’s opinion should be excluded because he relied on the 1999 SAIC report and because there was insufficient information in the 1999 SAIC report on which to base his conclusions, we conclude that it was not improper for Dr. Templet to rely on the 1999 SAIC report. An expert may provide testimony based on information obtained from others and the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert’s conclusion. State v. Pooler, 96-1794 (La.App. 1st Cir.5/9/97), 696 So.2d 22, 55, writ denied, 97-1470 (La.11/14/97), 703 So.2d 1288. While Dr. Roberts contends that Dr. Templet did not attach two appendices that went with the 1999 SAIC report, as well as two other attachments to the report, and therefore, there was insufficient information in the 1999 SAIC report on which to base conclusions reached by Dr. Templet, we note that the 1999 SAIC report was not being submitted as evidence, but rather, was identified as one of several sources of information on which Dr. Templet relied in reaching his opinion. We further note that Dr. Templet’s affidavit states that he reviewed the-1999 SAIC report. To the extent that he may not have reviewed all of the 1999 SAIC report, this factor affects only the weight to be afforded his conclusion (see Pooler, 696 So.2d at 55) and may serve as a basis for attack by defendants on cross-examination at trial, but it does not make his opinion evidence inadmissible under Daubert. See Fussell v. Roadrunner Towing and Recovery, Inc., 99-0194 (La.App. 1st Cir.3/31/00), 765 So.2d 373, 377, writ denied, 2000-1264 (La.6/23/00), 765 So.2d 1042.

| ^Accordingly, we find that the expert opinion evidence of Drs. Link and Templet was admissible and that the trial court abused its discretion in ruling otherwise.

Propriety of Summary Judgment in this Case

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Independent Fire Ins. Co., 755 So.2d at 230; Allen v. State ex rel. Ernest N. Mortal New Orleans Exhibition Hall Authority, 2002-1072 (La.4/9/03), 842 So.2d 373, 377. At the summary judgment stage, a court should remain cognizant that: (1) the trial court cannot make credibility determinations on a motion for summary judgment; (2) the court must not attempt to evaluate the persuasiveness of competing scientific studies, and in performing its gatekeeping analysis, the court must “focus solely on the principles and methodology, not on the conclusions they generate”; (3) the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion,” and (4) because summary judgments deprive the litigants of the opportunity to present their evidence to a jury, they should be granted only when the evidence presented at the motion for summary judgment, including admissible expert opinion evidence, establishes that there is no genuine issue of material fact in dispute. Independent Fire Ins. Co., 755 So.2d at 236. Thus, if a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Dauberb (and the other applicable evidentiary rules), and is sufficient to allow a reasonable juror to conclude that the expert’s opinion on a material fact more likely than not is true, the trial court should deny the motion and let the issue be decided at trial. Id.

When the expert opinion evidence improperly excluded by the trial court in this case is considered, it is clear that the experts have differing views as to the existence of PPI contamination on the plaintiffs’ property. Accordingly, the evidence submitted by plaintiffs creates genuine issues of material fact precluding summary judgment regarding the defendants’ liability. See Hanover American Ins. Co., 843 So.2d at 576.

Furthermore, the defendants failed to shift the burden of proof to the plaintiffs under La. C.C.P. art. 966, and themselves created a genuine issue of material fact by submitting contradictory evidence regarding whether HCB and HCBD are the “signature” chemicals of PPI contamination. While the October 28, 1994 affidavit of Dr. Rouhani and the April 28, 1995 affidavit of Dr. Roberts state that contamination from a PPI waste disposal site is distinguished by the presence of HCB and HCBD, the “signature” contaminants for PPI waste, in the most recent expert opinion affidavit by Dr. Roberts, executed on October 1, 2003, the defendants now contend that HCB and HCBD are no longer the only “signature” chemicals of PPI contamination and that the presence of HCB and/or HCBD in sediment or biota does not lead to a scientific inference that the HCB and/or HCBD came from a PPI waste disposal site.

Additionally, and concerning the nuisance claim, regardless of the presence of actual PPI contamination on the plaintiffs’ property, we note the fact that the existing health advisory affects the plaintiffs’ ability to use and enjoy their property. .According to the health advisory, no one should swim or participate in water sports, and consumption of fish and shellfish from the area is to be limited. So, due to the defendants’ conduct at the PPI waste disposal sites, the plaintiffs may prove damages caused by the defendants by the mere fact that the health 11fladvisory is in existence, regardless of the presence of actual PPI contamination on the property.

Regarding damages, the plaintiffs submitted the affidavit of Kermit Williams, a state certified real estate appraiser. According to his affidavit, Kermit Williams has had experience in evaluating property and appraising wetlands in several parishes in Louisiana, including East Baton Rouge Parish. Additionally, he stated that he is familiar with the area in East Baton Rouge Parish known as Devil’s Swamp; he is familiar with the July 9, 1993 health advisory issued by the DHH and DEQ for the Devil’s Swamp and Bayou Baton Rouge areas; he is familiar with certain newspaper articles that appeared in The Advocate, Baton Rouge’s local newspaper, on June 11 and 12, 1993, concerning fish and crawfish contamination resulting from hazardous waste in Devil’s Swamp; and he is aware of the existence of toxic waste dumps at the Brooklawn and Scenic Highway sites that have been designated as hazardous sites on the Superfund National Priorities List by EPA. He opined that, as a result of the health advisory, newspaper articles, and proximity upstream of two toxic waste sites, the value of property in the area known as Devil’s Swamp has been adversely affected. Based on this evidence, the plaintiffs’ have shown that there are genuine issues of material fact as to whether the value of their property has been diminished as a result of the health advisory.

Conclusion

We find that the expert opinion evidence submitted by the plaintiffs in opposition to the defendants’ motion for summary judgment should have been considered by the trial court. Our de novo review of that evidence reveals that it raises genuine issues of material fact, and we conclude that the motion for | ^summary judgment should have been denied. Accordingly, the ruling of the trial court excluding the expert opinion evidence of Drs. David A. Link and Paul H. Templet is hereby reversed, the judgment granting the defendants’ motion for summary judgment is hereby reversed, and this case is remanded to the trial court for further proceedings.

All costs of this appeal are assessed to the defendants/appellees.

REVERSED AND REMANDED.

DOWNING, J., concurs.

PARRO, J., dissents and will assign reasons.

KUHN, J., concurs and will assign reasons.

      . See Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604 (La.App. 1st Cir.1978), writ denied, 366 So.2d 575 (La.1979), wherein the owners of the contaminated property immediately north of PPI’s property brought suit against PPI for its negligence in permitting toxic waste materials to leak onto their property.

      . In 1980, the United States Department of Justice, on behalf of the United States Environmental Protection Agency ("EPA”), sued PPI and several of the industrial generators in federal district court under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq. In February 1984, a consent decree was entered in which certain companies, including the corporate defendants in the present action, agreed to investigate and clean up contamination from the former PPI facilities. The consent decree further provided that these sites would be monitored for thirty years after , the completion of remediation under the continuing supervision and jurisdiction of the federal court. The corporate defendants contracted with NPC to perform the remediation work.

      .On January 16, 1996, the DHH and the Agency for Toxic Substance and Disease Registry issued a public health assessment concerning the health threat posed by toxic contamination migrating from the PPI waste disposal sites into the Devil's Swamp watershed. This public health assessment described the scope of the previous health advisory, in that it was "not just for fishing.” Rather, it was recommended that there be "no swimming nor other water or sediment contact' in the contaminated area.” The plaintiffs’ property is in this area of concern.

      . We note that in Dr. Roberts' April 28, 1995 affidavit, he states, "Contamination at the PPI sites is distinguished by HCB and HCBD; i.e., these are signature chemicals for PPI contamination." However, in Dr. Roberts' October 1, 2003 affidavit, he states that "[t]o restrict the so-called 'signature contaminants' [of PPI waste] to HCB and HCBD is a gross simplification,” as they are not the only chemicals found in PPI waste.

      . "Background levels" means the levels of compounds in areas unaffected by PPI waste.

      .This 1999 SAIC report was prepared pursuant to an EPA .contract to study the extent of toxic contamination of the Devil’s Swamp watershed and was entitled "Human Health Risk Assessment Devil’s Swamp, Baton Rouge, Louisiana.” The study divided the Devil's Swamp watershed into five different sub-areas: North Bayou Baton Rouge, Distributary Channels, North Devil's Swamp, Devil’s Lake, and South Devil’s Swamp.

      . In Foret, the Louisiana Supreme Court adopted the Daubert standards as those to be utilized by Louisiana Courts when considering whether expert opinion testimony will be admissible at trial. Foret, 628 So.2d at 1122-23.

      . In Independent Fire Ins. Co., the Louisiana Supreme Court adopted the Daubert standards to be utilized when considering whether expert opinion evidence will be admissible at summary judgment. Independent Fire Ins. Co., 755 So.2d at 235-36.

      . The record before us is silent as to whether the trial court held an evidentiary hearing on the issue of whether the opinions of the plaintiffs’ experts should be excluded from evidence under Daubert (or a "Daubert hearing”). In Foret, the Louisiana Supreme Court noted that "[i]n the absence of such a hearing, only a scientific method’s proven 'inherent reliability’ will allow a court to take judicial notice of the accuracy of scientific testimony and evade the requirement for an evidentiary hearing on the reliability of such testimony.” Foret, 628 So.2d at 1124 n. 8. However, in Independent Fire Ins. Co., the Louisiana Supreme Court stated that at the summary judgment stage, the admissibility of an expert opinion affidavit is "subject to challenge ... by way of a Daubert hearing, a motion to strike, or counter affidavits.” (Footnote omitted). Independent Fire Ins. Co., 755 So.2d at 235. In this case, the defendants chose to challenge the admissibility of the plaintiffs’ experts in their motion for summary judgment and by submitting counter affidavits (as opposed to filing a motion to strike. — see Independent Fire Ins. Co., 755 So.2d at 235 n. 4). Specifically, the defendants challenged the admissibility of Dr. Link’s expert opinion by submitting the counter affidavits of Drs. Rouhani and Roberts, and they challenged the admissibility of Dr. Templet’s expert opinion by submitting the counter affidavit of Dr. Roberts. Accordingly, and since there was no evidentiary hearing on the issue, when determining the admissibility of the opinions of the plaintiffs’ experts under Daubert, the trial court was bound by the rules governing summary judgment, such as the inappropriateness of weighing opinion testimony or of evaluating the credibility of experts. See Independent Fire Ins. Co., 755 So.2d at 235.

      . See General Electric Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997), which held that a federal district court’s decision to admit or exclude scientific expert opinion evidence under Daubert at summary judgment is reviewable under "the abuse-of-discretion standard.” While we acknowledge that General Electric sets forth the controlling standard of review for federal appellate cases (and has not yet been adopted by Louisiana as the controlling standard of review for Louisiana appellate cases), we note that the appropriate standard of review as to the admissibility of expert opinion evidence at the summary judgment stage was not addressed by the Louisiana Supreme Court in Independent Fire Ins. Co., and therefore we find General Electric persuasive authority with regard to that issue. Since it is well-established in Louisiana jurisprudence that a trial court's determination as to the admission of expert testimony at trial will not be disturbed on appeal absent an abuse of discretion, Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 2001-1931 (La.App. 1st Cir.9/28/01), 809 So.2d 1040, 1055, it follows that we would review a trial court’s decision to admit or exclude expert opinion evidence at summary judgment under the same abuse of discretion standard set forth by General Electric.

      . In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999), the United States Supreme Court held that the Daubert standard governing the admissibility of expert evidence applied not only to testimony based on "scientific” knowledge, but also to testimony based on "technical” and "other specialized” knowledge.

      . These sections are all south of the Brook-lawn site and, with the exception of Section 45, are all south of Section 45.

      . According to Dr. Rouhani's April 26, 1995 affidavit, a "thorough knowledge about the fate and transport of contaminants in aquatic environments” (or "fate and effects”) is necessary for one to make an investigation of distribution of contaminants in the Devil’s Swamp area.

      . See also footnote 4.

      . The admissibility of this expert opinion evidence has not been challenged by the defendants.

      . We note that in their final assignment of error, the appellants raised the issue of the admissibility of the defendants’ experts under Daubert. However, as we have already found that genuine issues of material fact exist that preclude summary judgment and warrant a reversal of the trial court’s judgment, we pre-termit discussion of this issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Basil ADAMS v. Richard L. STALDER, State of Louisiana, Through the Department of Public Safety and Corrections, Dixon Correctional Institute, Warden James M. Leblanc, SGT. Wallace Cook, MSGT. Helen Braswell, Unknown DCI Emergency Medical Coordinators, Arron Jones, and Other Unknown Employees of the Dixon Correctional Institute.
    No. 2006 CW 0051.
    Court of Appeal of Louisiana, First Circuit.
    March 17, 2006.

      Charles C. Foti, Jr., Rodney A. Ramsey, Counsel for Relator, Louisiana Department of Public Safety and Corrections.
    J. Christopher Alexander, Sr., Counsel for Respondent, Basil Adams.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PER CURIAM.

li>On August 2, 2002, Basil Adams (“Adams”), an inmate at Dixon Correctional Institute (“DCI”), was struck on the head with a hoe by fellow inmate Aaron Jones during work detail. As a result of injuries sustained in- the attack, Adams filed a claim for administrative relief in accordance with the Corrections Administrative Remedy .Procedure (CARP),. La. R.S. 15:1171 et seq. There is, however, some dispute as to the actual date that the claim for administrative relief was first filed. Adams contends that he filed the claim on August 2, 2002, the date of the incident in question. Upon failure of DCI to respond, Adams submits that he filed duplicate claims on September 19th and December 22nd of that same year. DCI, by contrast, avers that Adams’ claim was not received until December 24, 2002. In all events, it is apparent that DCI rejected Adams’ first step claim in November 2003, finding no gross negligence on the part of DCI. employees., Thereafter, Adams filed a request for further review, alleging that the officers involved were negligent in violating DCI safety policy. The second request was denied in May 2004.

In the interim, on August 4, 2003, Adams filed suit in the 20th Judicial District Court, seeking money damages for injuries he allegedly sustained as a result of the incident. On April 5, 2004, upon the joint motion of Adams and the Isdefendants, an order was entered dismissing the case without prejudice.

Following dismissal of the first suit, Adams filed a second suit on April 6, 2005. In response, the Department of Public Safety and Corrections, Richard Stalder and James LeBlanc (“relators”) filed a peremptory exception of prescription, seeking dismissal of the suit with prejudice. Therein, the relators argued that Adams failed to timely file an administrative claim for relief pursuant to La. R.S. 15:1172, which provides in pertinent part:

B.(l) An offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained.
C. If an offender fails to timely initiate or pursue his administrative remedies within the deadlines established in Subsection B of this Section, his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.
E. Liberative prescription for any del-ictual action for injury or damages arising out of the claims asserted by a prisoner in any complaint or grievance in the administrative remedy procedure shall be suspended upon the filing of such complaint or grievance and shall continue to be suspended until the final agency decision is delivered.

To the extent that they aver that Adams’ claim for administrative relief was not received until December 2002, more than four months after the incident in question, the relators submit that the claim was abandoned and the instant proceedings should be dismissed with prejudice pursuant to La. R.S. 15:1172(C). Further, insofar as delictual actions are subject to a liberative prescription of one year and Adams did not file the instant suit until April 6, 2005, the relators argue Rthat Adams’ claim has prescribed pursuant to La. Civ.Code art. 3492.

The exception came for hearing on September 12, 2005. At that time, the trial court denied the exception in open court, noting inter aha:

[T]he statute does say that the delictual prescriptive period is interrupted until the response by the State is delivered .... The second lawsuit was filed timely assuming that the first lawsuit interrupted prescription and 1 will concede that the records in this case, the administrative record and the record in this litigation are far from clear ....

(Tr. Hr’g. at 13)(emphasis added). A written judgment denying the exception was signed on September 16, 2005. To date, the relators have filed a timely writ application, seeking review of the denial of the exception of prescription.

In determining the applicable prescriptive period, the court is guided by the well-settled principle that the character of a cause of action as disclosed in the pleadings determines the prescriptive period applicable to that action. Jones v. State of Louisiana, 891 So.2d 698, 701 (La.App. 4 Cir. 9/29/04), writ denied, 2004-2706 (La.1/7/05), 891 So.2d 681; SS v. State ex rel. Dep’t of Soc. Servs., 2002-0831 (La.12/4/02), 831 So.2d 926. In this case, the trial court used the term “interruption” in regard to prescription, whereas the relevant statute, La. R.S. 15:1172(E), uses the term “suspension” in regard to liberative prescription. Further, in briefs to this Court, Adams argues that he had one year subsequent to delivery of the final agency decision on May 7, 2004, to file suit. In this sense, Adams seems to argue that prescription was interrupted until May 7, 2004.

The concepts of interruption and suspension are, however, distinguishable. If prescription is interrupted, the time that has run is not counted, and prescription commences to run anew from the last day of interruption. La. Civ.Code art. 3466. IfiBy contrast, if prescription is suspended, the period of suspension is not counted toward the accrual of prescription but the time that has previously run is counted. La. Civ.Code art. 3472. In other words, if the one-year prescriptive period for delic-tual actions is suspended for any reason, the clock merely stops running during the suspension, and thereafter the obligee has only so much of the one year as was remaining when the suspension began.

The trial court erred in finding that the statute provides for the interruption, rather than suspension, of the prescriptive period for delictual actions. Since we believe that this constitutes legal error, we grant the writ and vacate the judgment of the trial court dated September 16, 2005. The matter is remanded to the trial court for proper application of the law to the facts at hand.

WRIT GRANTED AND MATTER REMANDED.

      . Adams was subsequently released from DCI on August 28, 2002.

      . The First Step Response Form prepared by DCI and contained in Exhibit D to the writ application is titled as follows: "Response to request dated 08/02/02, received in this office on 11/19/03."

      . The parties and the trial court, in the transcript of the hearing on the instant exception, aver that the first step claim was rejected on November 18, 2003. The actual notice of rejection, however, is dated November 24, 2003.

      . The parties and the trial court, in the transcript of the hearing on the instant exception, aver that the second step claim was denied on May 7, 2004. The actual notice of rejection, however, is dated May 5, 2004.

      . The relators contend in the writ application that the original suit was filed on November 4, 2003. In the petition filed in the second suit, however, Adams stated the filing date was August 4, 2003. Also, both Adams, in briefs to this Court, and the trial court, in the transcript of the hearing on the instant exception, stated that the suit was filed on August 4, 2003. Accordingly, it appears that the rela-tors erroneously stated the filing date in the instant writ. No copy of the original petition for damages, however, has been provided to this Court. This Court also notes that August 2, 2003, was a Saturday; therefore, filing on Monday, August 4th, would be within one year of the incident.

      . The relators filed a motion to dismiss based on failure to exhaust administrative remedies on February 5, 2004. Since the second step was not denied until May 2004, it appears failure to exhaust was the reason for the dismissal.

      . La. R.S. 15:1172 was amended by Acts 2002, 1st Ex.Sess., No. 89, § 2, in response to the decision of the Louisiana Supreme Court in Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, finding CARP unconstitutional to the extent it vested DOC officials with original jurisdiction in writ actions. Insofar as Acts 2002, 1st Ex.Sess. No. 89, was made effective April 18, 2002, and Adams' claim did not arise until August of that year, the amended statute is applicable herein.

      . The relators filed a Notice of intent to Apply for Writs on October 4, 2005, and the trial court set a return date for November 4, 2005. Thereafter, the relators timely filed a writ application with this Court, captioned as 2005 CW 2312. The original application, however, did not include a notarized affidavit and copies of the pleadings reviewed by the trial court. Accordingly, this Court refused consideration of the writ for violation of Rule 4-5 of the Uniform Rules for Louisiana Courts of Appeal, allowing DPSC until January 11, 2006, to file a new application. See Adams v. Stalder, et al., 2005-2312 (La.App. 1 Cir. 12/28/05) (unpublished writ action). On January 11, 2006, the relators filed the instant writ application, which complies with the Uniform Rules for Louisiana Courts of Appeal.


author: McClendon, J.

text:
    Michael HAYDEL, Individually and on Behalf of Jeremy Haydel v. STATE FARM INSURANCE CO., Evanston Insurance Co., the Sanctuary Homeowners Association, Inc. and ABC Insurance Co.
    No. 2005 CA 0701.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.

      Robert B. Evans, III, William B. Gordon, III, Cesar R. Burgos, Kathleen C. Gasparian, New Orleans, Counsel for PlaintiffAppellant Michael Haydel, Individually and on behalf of Jeremy Haydel.
    Craig R. Nelson, New Orleans, Counsel for Defendant/Appellee Evanston Insurance Company.
    Adrianne L. Baumgartner, Kathleen Simon, Covington, Counsel for Defendant/Appellee State Farm Mutual Automobile Insurance Company.
    David I. Bordelon, Matthew J. Ungari-no, Albert D. Giraud, Metairie, Counsel for Defendant/Appellee The Sanctuary Homeowners Association, Inc.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McClendon, J.

| sThis is an appeal of a summary judgment rendered in favor of an insurer based on a finding that an insured’s son was not living in his household and, therefore, was not an insured under the terms of the policy. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL HISTORY

On January 31, 2003, fifteen-year-old Jeremy Haydel was a passenger in a vehicle driven by his friend, James Gilmore. Gilmore lost control of the vehicle causing it to slide into a concrete culvert. Tragically, Jeremy died as a result of the injuries he sustained in the accident. Jeremy’s parents, who were not married to one another, eventually settled with Gilmore’s insurer. Jeremy’s father, Michael Haydel (Dr. Haydel), then sought recovery under his own uninsured/underinsured motorist policy issued by State Farm Mutual Automobile Insurance Company (State Farm), and under his umbrella policy issued by Evanston Insurance Company (Evanston).

In August 2003, Dr. Haydel filed suit against several defendants, including Ev-anston, alleging that it had refused to hon- or his claim made under the umbrella policy. Evanston subsequently filed a motion for summary judgment asserting that no coverage existed under the policy. Among the arguments posited in support of its contention, Evanston maintained that Jeremy was not living in Dr. Haydel’s household at the time of the accident as required by the policy provisions. In conjunction with its motion for summary judgment, Evanston submitted the deposition testimony of Jeremy’s mother, Jeanne Rovira, the consent judgment entered into by Dr. Haydel and Ms. Rovira in 1987, and copies of Ms. Rovira’s 1988 federal income tax return and 1989 state income tax return to establish that Jeremy was living with his mother and not Dr. Haydel.

|4In opposing the motion for summary judgment, Dr. Haydel submitted his deposition testimony wherein he maintained that Jeremy resided with him. Concluding that Jeremy was not a resident of his father’s household, the trial court granted summary judgment in favor of Evanston dismissing Dr. Haydel’s claims against it. From this judgment, Dr. Haydel appeals.

APPLICABLE LAW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 2002-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 2003-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, 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). An issue is “genuine” if reasonable persons could disagree. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable substantive theory of recovery. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id.

An insurance policy is a contract between the parties and should be construed using the general rules of contractual interpretation. The extent of coverage provided by a policy is determined by the parties’ intent, as reflected by the words of the policy. La. C.C. art.2045; La. C.C. art.2046; Frost v. David, 95-0839, p. 4 (La.App. 1 Cir. 5/10/96), 673 So.2d 340, 343. Words and phrases used in an insurance policy must be given their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art.2047; Edwards v. Daugherty, 2003-2103, 2003-2104, p. 11 (La.10/1/04), 883 So.2d 932, 940-41. Insurance policies should be construed to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). However, an insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Edwards, 2003-2103 at p. 11, 883 So.2d at 941.

The umbrella policy at issue herein defines the term “relative” as “a person related to you by blood, marriage or adoption who fives your [sic] household and anyone else in your or a relatives [sic] care living in your household.” Thus, in order for coverage to exist, there must be a finding that Jeremy was living in Dr. Hay-del’s household. On appeal, Dr. Haydel argues that the trial court erred in concluding that Jeremy was not a resident-relative of his household and submits that, at the very least, a question of fact exists as to the amount of time Jeremy lived at his home. Given the foregoing precepts, we are compelled to agree that genuine issues of material fact do exist regarding whether Jeremy lived in his father’s household at the time the accident occurred.

In Strickland v. State Farm Insurance Companies, 607 So.2d 769, 772 (La.App. 1 Cir.1992), this court addressed an insurance policy’s definition of “relative,” which included the similar phrase “who fives with you.” Therein we recognized that, generally, a relative for purposes of insurance coverage, is defined as a resident of the same household as the | finamed insured. However, we concluded that, as a matter of law, the phrase “who fives with you” was not ambiguous and should be given its generally prevailing meaning. Id. The question of whether a relative fives with an insured is a question of fact to be determined on a case-by-case basis according to the facts and cireum-stances of each particular case. Mobley v. State Farm Mutual Automobile Insurance Co., 28,357, p. 8 (La.App. 2 Cir. 5/8/96), 674 So.2d 1117, 1121, writ denied, 96-1402 (La.9/20/96), 679 So.2d 433. Some of the factors that determine whether a child fives with the named insured include, but are not limited to: (1) where the child spends his time when not employed or at school; (2) where the child keeps his or her clothing or other personal belongings; (3) where the child receives his or her mail, including official notices and mail from friends; and (4) whether the child has a bedroom in the parent’s house. These factors are not exclusive, nor is any one factor more determinative than another. Consideration should also be given to the fact that a child may five with each separated or divorced parent under a joint custody plan. Mobley, 28,357 at p. 9, 674 So.2d at 1121. Moreover, while not controlling, cases interpreting policy provisions using the terms “resides” and “resident” can be instructive for determining whether an individual “fives” with an insured. See Mobley, 28,357 at pp. 8-9, 674 So.2d at 1121; see also Lafleur v. Dugas, 97-958, pp. 5-6 (La.App. 3 Cir. 5/6/98), 714 So.2d 792, 794-95, writ denied, 98-1518, (La.9/18/98), 724 So.2d 767; Chapman v. Poirrer, 96-977, p. 4 (La.App. 3 Cir. 2/5/97), 689 So.2d 623, 625, writ denied; 97-1164 (La.6/20/97), 695 So.2d 1358.

In the present ease, Evanston failed to establish that no genuine issue of material fact existed as to whether Jeremy was living in his father’s household. Although disputed by Ms. Rovira, Dr. Haydel testified in his ^deposition that when Jeremy and his brother were younger, they spent every other weekend with him. He further stated that when they got older and had their own transportation, they were at his house more often. In response to an opposing counsel’s question, Dr. Haydel testified regarding Jeremy’s presence in his household at the time of the accident, as follows:

[Jeremy and his brother] came and went out of my house frequently at any given time, came over and they could spend the night. You know, they had transportation. They came and shared as much time with dad as they did with mom. Okay. Now, we didn’t have it documented with the court.

However, Ms. Rovira testified that Jeremy spent a much smaller percentage of time with Dr. Haydel. Moreover, while Ms. Rovira stated that the boys had to have permission prior to going to them father’s home, Dr. Haydel maintained that the boys knew that they could come over “at any time” even if he was out of town. While there is evidence that Jeremy used his mother’s address as his home address and that she claimed both boys on her income taxes, other evidence indicates that Jeremy and his brother had a room at their father’s home where they spent the night, that they often came over for dinner during the week, and that Dr. Haydel purchased clothes for the boys that were primarily kept at his home. Indeed, Ms. Rovira testified that in the year before his death, Jeremy spent time with his father on a “regular basis.” Moreover, while the consent judgment between the parties granted Ms. Rovira custody of Jeremy “subject to ... the visitation rights in favor of’ Dr. Haydel, we note that both Dr. Haydel and Ms. Rovira testified that they often departed from its provisions. Even so, the consent judgment alone would not be dispositive in this matter. The actual facts supporting the physical aspect of where Jeremy lived are necessary to make a determination regarding whether coverage exists under the policy herein. See Alpaugh v. Continential Insurance Co., 2001-0101, pp. 4-5 (La.6/29/01), 791 So.2d 71, 73-74 (per curiam). Because there is a genuine issue regarding these material facts in the present case, we find the summary judgment was improperly granted.

DECREE

For the foregoing reasons, the summary judgment rendered by the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion. Evanston Insurance Company is cast with all costs of this appeal.

REVERSED AND REMANDED.


author: McCLENDON, J.

text:
    ETB ENTERPRISES, LLC v. Jon and Shirley KRAUSE.
    No. 2005 CA 0653.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.

      Rykert O. Toledano, Jr., Covington, Counsel for Plaintiff/Appellant ETB Enterprises, LLC.
    Stacy G. Butler, Baton Rouge, Counsel for Defendant/Appellee Hibernia National Bank.
    Jude H. Trahant, Jr., Madisonville, Counsel for 3rd Party Defendant/Appellee Allstate Insurance Company.
    Edward S. Rapier, Mandeville, Counsel for Defendants/Appellees Jon & Shirley Krause.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

Lin this suit to enforce a contractor’s lien, the trial court denied a motion for summary judgment filed by plaintiff-appellant, ETB Enterprises, LLC (ETB), against one of the defendants, Hibernia National Bank (Hibernia), and granted Hibernia’s motion for summary judgment against ETB. ETB appealed. We affirm.

FACTS AND PROCEDURAL BACKGROUND

The initial petition named Jon and Shirley Krause as defendants. Hibernia was added as a defendant by a subsequent supplemental and amending petition. The undisputed facts are as follows:

1. In the fall of 2000, the Krauses sustained fire damage to their house;
2. In December, the Krauses entered into a written agreement with a contractor, ETB, to have the insurer of the house directly pay ETB for the repair work;
3. The insurer sent a check for the repairs, dated February 2, 2001, payable to the Krauses, ETB, Regions Bank, and Hibernia, the bank that held a mortgage on the damaged house;
4. After the insurance check was properly endorsed by all parties, it was deposited into an account at Hibernia opened by the Krauses;
5. Pursuant to the “direct pay” agreement between the Krauses and ETB, the Krauses instructed Hibernia to arrange for inspections certifying that a certain percentage of the work was completed, and to issue direct draws to ETB based on the percentages reported;
6. When a draw was made from the Krauses’ account, the funds were deposited in ETB’s account at Hibernia;
|s7. In May of 2001, Hibernia received a letter from the Krauses stating that ETB was released from the repair contract effective May 1;
8. Shortly thereafter, the Krauses sent another letter to Hibernia that resulted in the draws being made to the Krauses, rather than ETB.

Based on these facts, ETB claimed that Hibernia owed it a fiduciary duty and that Hibernia breached that duty by not continuing the draws to ETB, in spite of the Krauses’ instructions. Hibernia argued that, without a written agreement, it owed no duty to ETB and that Hibernia’s duty for these transactions was to the account holder, the Krauses.

After a hearing, the trial court found that no genuine issue remained as to the following material facts: (1) no written contract existed between Hibernia and ETB, (2) ETB was not a holder of the account in question, (3) Hibernia was not a party to the direct pay agreement between the Krauses and ETB, and (4) ETB could not demand draws from the Krauses’ account without their permission. Based on these facts, the trial court held that Hibernia owed no fiduciary duty to ETB for the particular transactions at issue in the suit.

APPLICABLE LEGAL PRECEPTS

A motion for summary judgment shall be granted if no genuine issue of material fact remains and the mover is entitled to the judgment as a matter of law. LSA-C.C.P. art. 966C(1). The burden of proof rests with the mover. However, if the mover would not bear the burden at the trial of-the matter, the mover need only show “that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” LSA-C.C.P. art. 966C(2). If the adverse party in turn is unable to prove that he will be able to satisfy his evidentiary burden, there is no genuine issue of material fact. Id. Summary judgments are reviewed dejjnovo. Belanger v. Gabriel Chemicals, Inc., 2000-0747, p. 6 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, 564, writ denied, 2001-2289 (La.11/16/01), 802 So.2d 612.

Pursuant to the clear language of LSA-R.S. 6:1124,

[n]o financial institution ... shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers or to third parties ..., unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary.

After a thorough review of the record, we agree with the well founded reasons of the trial court. ETB was unable to rebut Hibernia’s assertion that no written agreement existed between ETB and Hibernia. Nor did ETB establish a duty based on its status as the holder of an account at Hibernia as ETB’s account was not the account at the center of this dispute. The only account at issue here was held by the Krauses. Pursuant to the written agreement between the Krauses and ETB, it was the Krauses that directed Hibernia to pay ETB directly from the Krauses’ account. Certainly, Hibernia, who was not a party to the direct pay agreement, was not required to ignore the change in the account holder’s instructions in favor of the demands of a third party to the account. Finally, we note that ETB does not deny that the check was properly endorsed and deposited into the Krauses’ account, not ETB’s. Thus, we find inapposite ETB’s argument based on LSA-R.S. 6:317, a statute which allows an ownership of funds presumption in favor of depositors “named on the account application, agreement or signature card .... ” ETB produced no evidence that it held such a status in the Krauses’ account.

For these reasons, we affirm the judgment. The costs of the appeal are assessed to appellant, ETB Enterprises, LLC.

1 .AFFIRMED,


author: GAIDRY, J.

text:
    Arthur BURNS v. GUARANTEE SERVICE TEAM OF PROFESSIONALS.
    No. 2005 CA 0506.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.

      Michelle Sorrells, Baton Rouge, Counsel for Plaintiff/Appellant Arthur Burns.
    Matthew W. Tierney, Robert D. Hoover, Kristine D. Smiley, Baton Rouge, Counsel for Defendant/Appellee Guarantee Service Team of Professionals.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

|?,The claimant-appellant, Arthur Burns, appeals an adverse judgment of the Office of Workers Compensation. Administration, District 5, dismissing his claim for workers’ compensation benefits instituted against his employer, Guarantee Service Team of Professionals. For the following reasons, we affirm the judgment in part and dismiss the appeal in part.

FACTS AND PROCEDURAL HISTORY

The claimant, Arthur Burns, was employed by Guarantee Service Team of Professionals (the employer) as the crew leader of an air duct cleaning crew. He claims that he suffered a compensable shoulder injury as the result of an accident in the course and scope of that employment. He instituted his claim for compensation by filing a claim form on March 10, 2003, alleging an accidental injury on October 3, 2002. According to the claim form, the accident occurred in the course of a duct cleaning job at Our Lady of the Lake Regional Medical Center in Baton Rouge. In the form, Mr. Burns stated that he was lifting a heavy ten-inch diameter hose over his head, trying to connect it to a trunk line, when his left shoulder was dislocated. He also stated that a few days later, he was unable to work due to recurrent shoulder dislocations. Mr. Burns further claimed that the accident was reported sometime in October 2002 to Danny Bowers, his employer’s manager.

In its answer to the original claim form, filed on May 9, 2003, the employer denied that Mr. Burns sustained an injury in the course and scope of his employment at the time alleged. It further affirmatively alleged that he failed to report the described accident prior to filing his compensation claim, and that there was no accident within the statutory definition.

lsOn September 8, 2003, Mr. Burns moved to amend and supplement his claim form, and that motion was granted by the workers’ compensation judge (WCJ). The claim was amended to clarify that he had no independent recollection of the accident date, and to allege that it actually occurred between September 16 and September 21, 2002. He further alleged a wrist injury as the result of a separate accident. In its answer to the amended claim form, the employer denied the occurrence of the alleged accidents.

According to the employer, no injury report was prepared, and none is present in the record. Mr. Burns testified at trial that the accident occurred in September of 2002 in the course of a duct cleaning job that lasted about two weeks, although originally scheduled for one week. He explained that he was standing on a ladder while holding a ten-inch hose and attempting to drill a screw into a flange which secured a trunk line for ductwork. While so engaged, he lost his balance and fell against an adjacent wall, striking his left shoulder. After straightening the tilted ladder, he climbed down and advised a coworker assisting him, Michael Moses, that his arm was sore, and requested another co-worker, Juan Manchester, to complete the immediate task. Mr. Burns further testified that he continued to work for his employer through January 2003, but according to his account, only in a supervisory capacity.

Mr. Moses testified by deposition that he recalled an incident during the Our Lady of the Lake job which caused Mr. Burns to complain of shoulder pain, but it involved the lifting of a heavy piece of equipment known as the “General.” He specifically denied any other incident in which Mr. Burns was injured, and also denied being informed by Mr. Burns of any other incident in which he was injured.

[¿Mr. Manchester also testified by deposition. He denied witnessing or having knowledge of any specific accident to Mr. Burns during the Our Lady of the Lake job, although he did corroborate Mr. Burns’s complaints of shoulder pain during that time period.

Joseph Hawkins, another co-worker, testified at trial that he was hired to assist Mr. Burns because he was unable to perform physical aspects of the duct cleaning due to an arm injury which occurred while he was pulling a hose on the job. At the time Mr. Hawkins began working, the Our Lady of the Lake job was in progress.

Mr. Bowers, Mr. Burns’s supervisor and the employer’s project manager, testified that Mr. Burns never reported any work-related accident, but acknowledged that he did complain of arm soreness during the course of the Our Lady of the Lake job. Mr. Bowers also testified that Mr. Burns had complained of shoulder pain on occasions both prior to and after September 2002.

William Folks is the owner of the employer company. He testified that although he was aware of Mr. Burns’s complaints of general soreness around September 2002, Mr. Burns attributed his complaints to “arthritis,” and expressly denied the occurrence of any work-related accident upon being questioned by Mr. Folks.

On September 18, 2002, Mr. Burns was examined at the emergency room of Baton Rouge General Medical Center. The emergency department record stated that Mr. Burns was complaining of left wrist pain after a “metal pipe” fell on it. A nurse’s note contains the additional information that Mr. Burns was complaining of left wrist pain after hitting his arm at work.

IfiOn October 3, 2002, Mr. Burns presented at the emergency room of Earl K. Long Medical Center in Baton Rouge. At trial, he confirmed that this was the first occasion on which he sought treatment for his shoulder injury. The initial nurse’s assessment in the record of that visit noted that Mr. Burns was complaining of left shoulder dislocation and that he reported a history of that complaint. The emergency room physician’s assessment recorded Mr. Burns as stating, “I think my left shoulder is out of place” and “It’s been slipping in and out,” and denying recent trauma. Mr. Burns was also recorded as saying that he had “laid [sic] down on [a] couch over [the] weekend and it came out,” and that “[his] mother straightened [his] arm and it went back in.”

An MRI study of the left shoulder was performed on February 7, 2003, and revealed degenerative changes and impingement of the acromioclavicular joint, bursitis, chronic tendinopathy, and a large amount of joint effusion. On its “trauma” setting, the MRI study revealed the possibility of a Hill-Sachs fracture and bone contusions, with an alternate differential diagnosis of inflammatory arthritis “if there is no history of trauma.”

Mr. Burns first consulted Darryl W. Peterson, M.D., an orthopedic surgeon, on October 8, 2003. On his patient registration form, Mr. Burns identified his areas of complaint as his left shoulder and left wrist, and stated that he was injured in an accident at Our Lady of the Lake Hospital on October 3, 2002. Dr. Peterson .eventually performed arthroscopic decompression surgery on June 25, 2004 to relieve the shoulder joint impingement. His operative report documented the large osteo-phyte and osteoarthritis seen in diagnostic studies, but there is no mention of any fracture or bone contusion suggestive of trauma.

IfiThe trial of this matter was held on October 11, 2004. After hearing the testimony and reviewing the exhibits introduced at trial, the WCJ summarized her factual findings and ruled in favor of the employer and against Mr. Burns, dismissing his claim for compensation for his left shoulder injury. The WCJ also found that Mr. Burns'proved his alleged left wrist injury from the separate accident, but noted that there was no disability attributable to that injury and no related claim for medical benefits made.

The WCJ’s judgment was signed on November 4, 2004. The judgment incorporated her factual finding that Mr. Burns failed to prove a work-related accident causing his left shoulder injury, and dismissed his compensation claim with prejudice. The judgment also incorporated the WCJ’s factual finding of a work-related left wrist injury, in the form of a “judgment in favor of the claimant and against the employer” on that issue.

Mr. Burns .now appeals, assigning as error the WCJ’s finding that he failed to meet his burden of proof of the occurrence of a compensable accident.

STANDARD OF REVIEW

In a workers’ compensation case, as in other civil cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Peters v. Harmsen, 03-1296, p. 4 (La.App. 1st Cir.4/2/04), 879 So.2d 157, 160. In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test: (1) the appellate court must find that a reasonable factual basis does not exist in the record for the finding; and (2) the appellate court must further determine that the record 'establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Further, when factual |7findings are based upon determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

DISCUSSION

For purposes of workers’ compensation, an “accident” is statutorily defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

A workers’ compensation claimant has the burden of proof to establish that a work-related accident occurred by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony should be accepted as true. Id. In Bruno, the Louisiana Supreme Court held that a worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Therefore, if the worker testifies that he suffered an accident, a court must then look to see if the Bruno elements are satisfied. Coats v. American Tel. & Tel. Co., 95-2670, p. 5 (La.10/25/96), 681 So.2d 1243, 1245.

1 RIf the evidence leaves the probabilities of the existence of a work-related accident equally balanced, the claimant has failed to carry his burden of proof by a preponderance of the evidence. See Harrison v. Baldwin Motors, 03-2682, p. 4 (La.App. 1st Cir.11/3/04), 889 So.2d 313, 316, writ denied, 05-0249 (La.4/1/05), 897 So.2d 609. In other words, if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture, the claimant has failed in his burden of proof. Id.

On cross-examination at trial, Mr. Burns was confronted with a contradictory account of the mechanism of the shoulder injury contained in his answers to interrogatories. There, he had described the incident as involving a vacuum hose which had “ripped forward” and “caused [him] to pull [his] shoulder while standing on the ladder and trying not to fall.” At trial, he admitted feeling shoulder pain after the lifting incident with the “General,” but had denied the occurrence of the specific incident described by Mr. Moses in his prior deposition.

The factual evidence relating to the alleged accident, apart from Mr. Burns’s own testimony, is circumstantial at best and contradictory. The only independent eyewitness testimony to an accident related to the lifting incident with the “General,” which Mr. Burns himself described as occurring after the accident at issue.

The relative timeline of Mr. Burns’s wrist injury and the Our Lady of the Lake job severely narrows the time frame within which the accident described by Mr. Burns could have occurred. That circumstance alone casts |flserious doubt on his version of the accident, as the WCJ observed. Further, the complete absence of any reference to an accident or trauma in the hospital record of October 3, 2002, the first occasion of treatment for the shoulder complaint, likewise creates doubt as to the accuracy of Mr. Burns’s account. That circumstance is further compounded by the failure of Mr. Burns to inform Dr. Peterson of the history of the shoulder dislocation given at the time of the October 3, 2002 hospital visit.

Although ample corroborative evidence exists to support Mr. Burns’s complaints of shoulder pain and dislocation from October 2002 and thereafter, no independent testimony or objective documentary evidence reasonably corroborates the occurrence of the accident described by Mr. Burns. The WCJ, who made the same observation, correctly concluded that the elements of the Bruno standard were not established, and that her determination of whether a compensable accident occurred ultimately hinged'on a credibility call.

The record demonstrates a reasonable factual basis for the WCJ’s credibility determinations and ultimate conclusion that Mr. Burns failed to meet his burden of proof of the occurrence of a compensable work-related accident. Viewing the evidence relating to the claimed accident itself in light of the Bruno standard, we must conclude that the WCJ’s determination in that regard is not manifestly erroneous.

Accordingly, we affirm the judgment of the WCJ in favor of the employer, dismissing Mr. Burns’s claim as to the alleged left shoulder injury. In doing so, however, we note that the portion of the WCJ’s | judgment addressing the left wrist injury grants no relief, and seemingly contradicts the judgment dismissing Mr. Burns’s claims. In that regard, it constitutes a bare recitation of a factual finding which the WCJ in her oral reasons acknowledged carried no result. Louisiana Code of Civil Procedure article 1918 requires that written reasons for judgment (including findings of fact) be set out in an opinion separate from the judgment. See also La. C.C.P. art. 1917(A). Our law also requires that a valid judgment be precise, definite, and certain. Davis v. Farm Fresh Food Supplier, 02-1401, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 352, 354. The factual finding relating to the left wrist injury is, at best,, only an interlocutory factual ruling and, as such, does not carry the finality of a judgment. Id., 02-1401 at p. 3, 844 So.2d at 354. As it determines no rights and grants no -relief, it involves a moot issue and is not properly the subject of a final judgment. See La. C.C.P. art. 1841. We will therefore amend the WCJ’s judgment to vacate that paragraph granting “judgment” in favor of Mr. Burns as to his left wrist injury.

DECREE

The judgment of the Office of Workers Compensation Administration, District 5, dismissing the claim for workers’ compensation of the claimant-appellant, Arthur Burns, is affirmed, but amended for the purpose of vacating the paragraph reading “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the claimant and against the employer as to the existence of an injury in the course and scope of employment to the claimant’s left wrist.” The costs of this appeal are assessed to the claimant-appellant.

AMENDED AND, AS AMENDED, AFFIRMED.

DOWNING, J., concurs.

      . In his brief in this appeal, Mr. Burns now contends that the accident at issue occurred on or within a few days after September 19, 2002.

      . Mr. Burns’s trial testimony confirmed that although he was engaged in the same type of work task at the time of both accidents, drilling on a flange, the alleged accident was not the same as that involving the wrist injury. The wrist injury occurred on September 17 or 18, 2002. September 18, 2002 was a Wednesday. Mr. Burns unequivocally stated that the wrist injury occurred during or immediately prior to an earlier job at a plant, since his supervisor did not want him to wear a prescribed wrist brace during that plant job. September 21 and 22 were on a weekend, and the evidence indicates Mr. Hawkins began his work assisting Mr. Burns around Monday, September 23. If it is assumed the plant job lasted only one day, then the alleged accident could only have occurred on September 19 or 20, more probably the latter. There was contradictory evidence as to whether the Our Lady of the Lake job had lasted a week or as long as , .two weeks, as contended by Mr. Burns. The job was concluded by September 27, 2002, when Mr. Burns visited another job site.