author: SUSAN M. CHEHARDY, Judge.

text:
    Audrey ROME, Jr., Gayle Rome, William Rome, Fernand Rome, Carolrome, Lillie R. Dileo, Sadie R. Carey, Margaret R. Vargas, Phyllis Rome Babin, Renee Rome Dyer, Ethelyn N. Rome, Gladys R. Fife, James Friloux, Roy Weber, Henry O. Gaudet, III, Celeste Gaudet Melancon, Michael J. Gaudet, Paul Myron LeBlanc and Elaine L. Bryson v. INGRAM BARGE COMPANY.
    No. 05-CA-877.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Ricky L. Babin, Stephen P. Sheets, Erin E. St. Pierre, Sheets, Babin & Associates, Gonzales, Louisiana, for Plaintiffs/Appel-lees, Audrey Rome, Jr., et al.
    Richard B. Foster, Katherine L. Winters, Lemle & Kelleher, L.L.P., New Orleans, Louisiana, for Defendant/Appellant, Ingram Barge Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

| ¿The defendant, Ingram Barge Company, appeals a preliminary injunction issued to prevent Ingram from mooring or docking its boats and barges on the plaintiffs’ property. We affirm.

FACTS

The plaintiffs are owners of five contiguous tracts of immovable property with 1,500 feet of batture frontage along the Mississippi River in St. James Parish, near mile marker 162. On June 30, 2005, the plaintiffs filed suit against Ingram Barge Company, alleging the defendant “has docked, moored, parked, and trespassed” upon the property owned by the plaintiffs, without the plaintiffs’ permission, and without a lease agreement granting a right to enter upon, and use said property.

The petition states:

On June 30, 2004, Defendant has used the batture frontage of Plaintiffs’ property, without permission of Plaintiffs, for a ‘parking’ area for river line boats which transfer barges up and down the Mississippi River.
The Defendant’s actions were and are in contravention of La.R.S. 9:1102.1 and the Rules of the |3South Louisiana Port Commission, which is the deep water port commission having authority in St. James Parish pursuant to La.R.S. 34:2471, et seq.

The plaintiffs allege the defendant has never obtained any right to use the batture frontage owned by the plaintiffs, nor has the defendant acquired from the plaintiffs any of their riparian and/or real rights to the described property.

The plaintiffs assert the defendant’s actions are an unlawful invasion of the plaintiffs’ property, constituting trespass, and the defendant has failed and refused to comply with their request to cease and desist from blocking off and using the plaintiffs’, batture without leasing it from the plaintiffs.

The plaintiffs claim the defendant is liable to them for all damages incurred by them as a result of the trespass, including but not limited to physical damage to the plaintiffs’ property, loss of use, and inconvenience. They assert the defendant is obligated to restore their property to its former condition, but admit their damages do not exceed $50,000.00.

The plaintiffs sought a preliminary injunction under La.C.C.P. art. 3663, enjoining and prohibiting the defendant, its des-ignees, and its assigns from entering upon or in any way using or obstructing their batture frontage at any time for any reason in the conduct of barge fleeting and shipping operations. They seek a permanent injunction in due course, to the same effect.

Ingram contested the request for an injunction, asserting that (1) it has not violated La.R.S. 9:1102.1, and La.R.S. 9:1102.1 is inapplicable under the facts of this case; (2) the plaintiffs are not entitled to injunctive relief under La.C.C.P. art. 3663, because the plaintiffs cannot show a trespass on the part of Ingram that occurred within the past year that is continuing in nature; and (3) the plaintiffs are not entitled to injunctive relief and will not succeed at the trial for a permanent injunction because both Louisiana and federal law allow Ingram to use the bank of |4the Mississippi River in front of the plaintiffs’ batture property for all purposes incidental to navigation.

At a hearing on July 26, 2005, the plaintiffs presented testimony from Edward Rome, a former owner of part of the land in question, and from Audry Rome, Jr., a current owner of part of the land. The witnesses made clear their primary interest is in receiving lease payments from Ingram for use of their land.

Edward Rome testified he had transferred his interest in the property to his daughters, plaintiffs Renee Dyer and Phyllis Babin. He said he is very familiar with the property and with the river bank up and down from the property. He has seen boats and tows lying alongside their riverbank for many years, from other companies besides Ingram.

Edward Rome visited the property on June 30, 2004 — within one year of the date this suit was filed — and took photographs of barges bearing the name “Ingram” parked on the bank, pushing against the levee.

According to Edward Rome, the plaintiffs’ property has no improvements along its riverfront, and the plaintiffs do not conduct any business operations from its waterfront. They have never applied for a permit to use the frontage for barge fleeting. Back in the early 1980s, they were offered $15.00 a front-foot for a 15-year lease of the property. The majority of the owners thought that was not enough, and declined the offer. More recently, CGB made them an offer of $10.00 a front-foot, but they turned it down.

They previously obtained an injunction against ACBL (American Commercial Barge Line), and a second one against Welcome Fleet and Barge Service, Inc.

Audry Rome, Jr. testified he and his family own part of the property in question. He witnessed barges parking on the property many times in the year | ¡^preceding the hearing — he said they were “using it like a Wal-Mart parking lot.” The family had no leases with any barge companies, however, and no one in the family had ever given permission for barges to park on the property.

Audry Rome, Jr. testified the barges sometimes park so close to the levee they push into the concrete mats and crack them. Asked whether he had specifically seen Ingram Barge Company boats, he said, “It’s kind of hard to tell sometimes because you can’t make out the name on the barges, especially the barges, and the tugs.” He said he had seen an Ingram Barge Company tow and boat there, but didn’t know the exact time and date

The defendant presented testimony from Mark Aylor, Larry Marse, and Frank Chambless. Aylor is general manager of CGB Marine Services, a barge fleeting service with premises located immediately upstream from the Rome property. CGB has no corporate relationship with Ingram.

Aylor testified that CGB has tried to get permits from the Army Corps of Engineers to allow moor-barge fleeting in that area, but permits were refused. Aylors said the Corps of Engineers does not want anything moored at that point in the river for safety reasons. Nevertheless, Aylor said, although CGB cannot get permits for moor barges in the area, it has tried to lease the Rome property, offering $10.00 a foot on two different occasions. The landowners have refused at that price.

According to Aylor, sometimes other companies’ barges and tow boats stop alongside the open bank below CGB’s facility, but CGB does not request payment for that because “we just don’t have any right to it ... they do it up and down the river all over the place.”

Aylor said that CGB has placed marker stripes on the levee to separate CGB’s property from the Rome property, so the boats will “hit” on CGB’s [^property and not on the Romes’ land. Aylor said repeatedly that CGB is “trying to be a good neighbor.”

Aylor said his company does not have an economic use for the Romes’ batture property and no plans to install permanent mooring, but needed the injunction lifted.

Larry Marse, fleet operations manager for CGB Marine’s facility in Convent, testified he placed a red marking on the revetment to indicate to their customers’ pilots a point on the river where they can stop. Boats from non-customers’ fleets stop in that area also, but CGB does not charge them for parking. Because of complaints from the Romes, he placed the yellow marker to show CGB’s customers where to park so as to say within CGB’s leased property. He said they did it “just to keep peace with the neighbors.”

When he met with the Romes, Marse told them CGB was offering a lower price for the property than others because the property had no value for CGB’s operations and could only be used to park barges.

Captain Frank Chambless, a towboat captain with Ingram Barge Company, testified he stops regularly at the CGB Convent facility when fleeting barges. He has sometimes observed tows owned and operated by other companies stopped at all of the locations nearby. To make a landing with a tow, he slows the tow down to the point where there is no headway and then lets her settle sideways into the bank, letting the lead barge touch. The tow boat is positioned at the other end of the tow, out in the river. They cannot stop in the middle of the river at that point because it’s what they term a heavyset on the east bank and they would be in the flow of traffic, similar to stopping on the Interstate.

Chambless stated they have to stop from time to time in different places, sometimes for weather concerns such as rain or fog, sometimes smoke, sometimes |7mechanical issues. When such a stop is necessary, they look for an open place on the bank to stop. The ability to stop in an open area along the bank is essential to their ability to navigate the tow up and down the river.

The trial court issued an order on August 12, 2005 granting a preliminary injunction in the plaintiffs’ favor, as follows:

IT IS ORDERED, ADJUDGED AND DECREED that a preliminary injunction issue ... herein restraining, enjoining and prohibiting Ingram Barge Company from mooring, docking, or otherwise holding line boats, tugboats, barges, or any other vessels against the riverbank itself (being the land lying between the ordinary low and ordinary high stage of the water), as well as prohibiting bringing line boats, tugboats, barges or any other vessel in contact with the river , bottom immediately adjacent to the riverbank so as to hold the vessel or barge in place against the current, along the property of the plaintiffs as described in the documents attached to plaintiffs’ petition. This injunction does not prohibit any actions taken by Ingram Barge Company which are necessary for safe navigation and in response to a safety or emergency situation. This injunction applies to Ingram Barge Company, its officers, directors, agents, employees, and all persons, firms, vessels, barges or corporations acting or claiming to act on its behalf or under its direction.

On appeal Ingram asserts the trial court erred in granting plaintiffs a preliminary injunction (1) because Ingram has not violated La.R.S. 9:1102.1, and (2) because plaintiffs are not entitled to injunctive relief pursuant to La.C.C.P. art. 3663 in that (a) they did not prove a trespass on the part of Ingram within the past year that is “continuing” in nature, and (b) they will not succeed at the trial for a permanent injunction because both Louisiana and federal law protect Ingram’s right to use the banks and bottoms of the Mississippi River in front of plaintiffs’ batture property for all purposes incidental to navigation.

LAW/ANALYSIS

La.C.C. art. 456 states:

|sThe banks of navigable rivers or streams are private things that are subject to public use.
The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water. Nevertheless, when there is a levee in proximity to the water, established according to law, the levee shall form the bank.

LSA-R.S. 9:1102.1 provides, in pertinent part:

A. Riparian owners and their lessees of property on navigable rivers ... within the limits of any deep water port commission of this state, ... shall have the right to erect and maintain on the batture or banks owned or leased by them and in the bed of the navigable river ... adjacent to or adjoining such batture or banks, such wharves, buildings, or improvements as may be required for the purposes of commerce, navigation, or other public purposes....

This Court has held, “Riparian landowners, by virtue of Louisiana Revised Statute 9:1102.1, own the right to erect and maintain on the batture, banks, and bed of the river, buildings and improvements as may be required for commerce, navigation, or other public purposes.” Kliebert Educational Trust v. Watson Marines Services, Inc., 454 So.2d 855, 858 (La.App. 5 Cir.), writ denied, 457 So.2d 682 (La.1984), appeal dismissed, 471 U.S. 1050, 105 S.Ct. 2108, 85 L.Ed.2d 474 (1985).

In Kliebert, the defendant was warehousing barges on the river without first negotiating a lease agreement or attempting to obtain authorization from anyone in this state. The plaintiff landowners were granted an injunction, ordering the barge fleeting company to cease the warehousing of barges immediately in front of their properties and to remove any buoys and anchor pilings from the river bed.

In Kliebert, 454 So.2d at 858, we concluded:

There is no Louisiana statute which grants a right to erect and maintain buildings and improvements on the river to persons other than riparian landowners and their lessees, the negative implication being that only landowners and their lessees have this right. The language of Louisiana Revised Statute 9:1102.1, “and their lessees,” indicates a presupposition that a nonjlandowner9 must obtain a lease from the riparian owner before seeking authorization of his commercial purposes from the Port Commission. The plaintiffs have standing to protect their right against the defendant who, prior to the trial court’s judgment, had been warehousing barges on the river without first negotiating a lease agreement or attempting to obtain authorization from anyone in this state.

In this case, there is no showing that the defendant has erected or attempted to erect any structure on plaintiffs’ land. Nevertheless, as in Kliebert, the defendant is trespassing on the plaintiffs’ land by butting the noses of barges up against the riverbank.

La.C.C.P. art. 3663 states:

Sequestration of immovable property or of a real right therein involved in a possessory or petitory action during the pendency thereof is available under the applicable provisions of Chapter 1 of Title I of Book VII.
Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to:
(1) A plaintiff in a possessory action, during the pendency thereof; and
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment. The defendant asserts the plaintiffs

failed to establish any part of the prima facie case under Article 3663, because they did not prove a “disturbance in possession,” or trespass, on the part of Ingram within the past year. Further, the defendant contends, the plaintiffs failed to prove that Ingram will likely “trespass” on plaintiffs’ property in the future. The defendant relies on the testimony of Ingram’s witnesses that the adjacent landowner, CGB, has attempted to be a good neighbor by providing better markings of the property line between CGB’s land and the plaintiffs’ land within the past year, and that CGB requests all captains 1 ^delivering tows to CGB’s fleet to land their tows on CGB’s property, not the plaintiffs’ property.

Under La.C.C.P. art. 3663, however, in-junctive relief is available to the plaintiffs to protect their ownership, possession or enjoyment of their property without a showing of irreparable injury, with no requirement for plaintiffs to make a showing of irreparable harm. Barrilleaux v. NPC, Inc., 97-2040 (La.App. 1 Cir. 12/29/97), 704 So.2d 449, 451.

For the foregoing reasons, therefore, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Ingram Barge Company.

AFFIRMED.

      . There are 19 individual plaintiffs and five tracts of land involved. Audrey Rome, Jr., Gayle Rome, William Rome, Fernand Rome, Carol Rome, Lillie R. Dileo, Sadie R. Carey, and Margaret R. Vargas are co-owners of one tract of land; Phyllis Rome Babin, Renee Rome Dyer, and Ethelyn N. Rome are co-owners of the second; Gladys R. Fife is owner of the third; James Friloux and Roy Weber are co-owners of the fourth; Henry O. Gau-det, III, Celeste Gaudet Melancon, Michael J. Gaudet, Paul Myron LeBlanc, and Elaine L. Bryson are co-owners of the fifth.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge. DALEY, J.,

license: Public Domain

text:
    Joseph A. ALMERICO v. Peter L. DALE, Chief of Police, City of Harahan, Harahan Police Department and the City of Harahan.
    No. 05-CA-861.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Rehearing Denied April 24, 2006.

      Brandon J. Venegas, Metairie, Louisiana, for Plaintiff/Appellant.
    Thomas P. Anzelmo, Sr., Kyle P. Kirsch, Andre J. Lagarde, McCranie, Sistrunk, Anzelmo, .Hardy, Maxwell & McDaniel, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

| pPlaintiff/appellant, Joseph Almerico, appeals a portion of a judgment of the district court granting partial declaratory relief, ordering an Independent Medical Examination, and granting a Motion for Production of Medical Records.

On March 7, 2005, Almerico filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction, Declaratory Judgment and Damages against Peter L. Dale, Chief of Police for the City of Harahan, the Harahan Police Department, and the City of Harahan. Al-merico, a captain in the police department, alleged that he had been an officer there since 1992. In August, 2004, he began sick leave for a work-related adjustment disorder, as diagnosed by his psychiatrist. During the sick leave, Almerieo alleges that he complied with Civil Service Rules by providing a doctor’s certificate. On September 30, 2004, Dale 1 s“decommissioned” Almerieo for alleged safety reasons. On December 30, 2004, Dale issued' a General Order addressing sick leave directed to his department and enumerating ten special regulations. Numerous conditions were set in the General Order. Included were orders that: (1) The employee is required to provide medical documentation for sick leave over nine days per calendar year; (2) The employee is to provide documentation within seven days of returning to work; (3) The employee cannot remain on sick leave if able to return to work due to the fact that he is unable to see a physician in. a timely manner; (4) Until the employee completes one tour of duty, he is confined to his residence while on sick leave; (5) An employee could not leave home except to seek medical care, obtain medication, purchase food or necessities, or for any hospital stay; (6) Employees were to inform the department dispatcher whenever they left them residence as well as when they return home; (7) The employee is restricted from outside employment while on sick leave; (8) The chief, has the right to order medical documentation at any time irrespective to the number of days or number of times the employee has been absent; (9) The employee' shall immediately notify the chief of any emotional illness which may then result in decommissioning, and could restrict the employee from carrying a firearm, as well as from using any departmental equipment; and (10) The chiéf has the right to order any employee to any physician of his or her choice, for a full medical review and examination of the employee’s illness.

Almerieo alleged he was the only employee to whom this order applied as he was the only person on sick leave when the order was issued. In January 2005, Dale wrote to Almerieo instructing him to submit payroll forms dating back to August 2004. Almerico’s attorney wrote to Dale protesting these actions. On February 11, 2005, Dale instructed the City of|4Harahan to not pay Almerieo. On February 18, 2005, Dale wrote a letter to Almerieo enclosing a copy of the General Order and ordering Almerieo to be examined by Dr. Howard Osofsky, a psychiatrist, bringing with him his medical records.

In the petition, Almerieo sought an order restraining Dale from implementing the General Order. A temporary restraining order was denied and a hearing set on the preliminary injunction. Almerieo subsequently amended his petition to dismiss the injunction and sought only a declaratory judgment declaring that the General Order with respect to sick leave was null and void as violative of LSA-R.S. 33:2557.

Almerieo was terminated on May 4, 2005, for disobeying the February 18, 2005 order regarding a medical exam. On June 9, 2005, the district court issued a judgment which declared most portions of the General Order to be without effect, except for items 1, 8, and 10. The court found that those items were consistent with enforcement of Civil Service Board Rules, and ordered Almerieo to authorize production of his medical records under seal, including notes, to the independent psychiatrist, and to submit to an examination. Almerieo appeals.

On appeal, Almerieo contends that the court erred in upholding those portions of the General Order which required him to see a physician of Dale’s choice and release medical information. He urges that the Civil Service Board, not Dale, has the right to promulgate sick leave rules. Almerico further contends that the rules were retaliatory against him, alone, and that he was entitled to know the civil service rules governing sick leave at the time leave began, as such rules are protection against targeted political discrimination.

IsThe only issue before us on appeal is the declaratory judgment insofar as it orders Almerico to see an independent medical examiner and produce his medical records to such physician. LSA-R.S. 33:2531, et al, “The Fire and Police Civil Service Law for Small Municipalities and for Parishes and Fire Protection Districts,” is applicable here. The civil service board created in LSA-R.S. 33:2536 has the duty, among other things, to provide rules for leave of absence. LSA-R.S. 33:2557 provides:

The board shall adopt rules to provide for leaves of absence in the various classes of the classified service. Such rules shall provide for annual vacation and sick leaves with pay, and for special leaves with or without pay. They may provide for special extended leaves with or without pay or with reduced pay for employees disabled through injury or illness arising out of their employment. The right to regulate the time at which any employee may take an annual leave, or any other leave which is not beyond the control of the employee, shall be vested at all times in the appointing authority.

The trial court found the applicable rule of the Harahan Civil Service Board is Rule IX, Section 3(B):

Should any illness last longer than three (3) days, the employee is required to submit a doctor’s certificate if requested by the chief indicating the illness or condition which justified his absence, as well as the probable duration of the illness. For failure to produce a doctor’s certificate for any illness over three (3) days, the employee will be classified as ‘Absent without Leave and Pay.’

The court found that LSA-R.S. 33:2557 and Rule IX, Section 3(B) support permitting the Chief to obtain further proof of Almerico’s illness, that is, an IME (Independent Medical Examination) as noted in items 1, 8, and 10 of the General Order:

The court finds that the appointing authority is entitled to know whether the sick leave applicant is indeed sick. Proof of his illness, such as the doctor’s certificate, is already required in the rules adopted by the Board, as are follow-up evaluations. See C.C.P. art. 1542[sic] (permitting mental examinations and requests for release of medical records). Here, where the issue is Al-merico’s alleged, unresolved ill|ness,R an IME is a reasonable safeguard to give the statute and rule effect. An IME coupled with an order to produce medical history records and notes will prevent the absurd result of interpreting the Board’s rule to allow a doctor to review only short-term employee illnesses. The court finds that the IME ordered here places no additional burden on the plaintiff beyond the current Board rule and provides maximum confidentiality for the mental health records by requiring that the sealed record go directly to the IME physician. It is not overly onerous for plaintiff to consult a different physician on one or two occasions and to produce records and notes under seal.

In the absence of a Louisiana Code of Civil Procedure article numbered 1542, we presume a typographical error and that the court intended to refer to LSA-C.C.P. art. 1421, which deals with discovery methods and is, thus, inapplicable to a matter not yet the subject of a civil lawsuit.

LSA-R.S. 33:2557 clearly gives the right and duty of establishment of leave policies to the Board and leave is to be as set forth in the rules adopted by the Fire and Police Civil Service Board. Although the Civil Service Board has exclusive authority to provide for the amount of annual and sick leave for fire and police personnel, this does not extend to control over when such leave is taken. This control is within the powers and duties of the chief to recommend leave for his personnel. The governing authority cannot revoke or impair the inherent power of an elected chief of police.

Under LSA-R.S. 33:2560, the appointing authority may remove any employee from civil service or take such disciplinary action as the circumstances warrant, on the development of any defect or physical condition which precludes the employee from properly performing the duties of his position, or the development of any physical condition that may endanger the health or lives of fellow employees. Under LSA-R.S. 33:423, |7the chief shall make recommendations to the mayor and board of aldermen for appointment of police personnel, for the promotion of officers, to effect disciplinary action, and for dismissal of police personnel. To accomplish these ends, the chief of police has the responsibility to ascertain the fitness of any employee for duty, the possible development of any condition which precludes him from properly performing his duties, and to make appropriate recommendations to the board.

After examination of the present facts, we find that the requirements in question are encompassed within the chiefs day-to day authority. The Harahan Civil Service Rules grant discretion to the chief in determining the authenticity of an employee’s illness. Rule XI, Section 3(B) continues: “Should any employee of the classified service frequently or consistently absent himself before or after his scheduled days off or at any other time, he will be required to submit a doctor’s certificate should the absence be for only one (1) day, if requested by the chief.”

As the trial court found, the appointing authority, here the mayor and board of aldermen, have a right to know if any employee is indeed sick, and the board has required proof of such illness in its requirement of a doctor’s certificate. The appointing authority is clearly entitled to know whether the employee’s illness impacts his ability to perform his job. Here, the chief has determined the frequency of the need for medical certificates in order to insure the fitness of his employees, and, if necessary, to make recommendations to the mayor and board of aldermen in keeping with LSA-R.S. 33:423 and 33:2560. We agree with the trial court that an independent medical examination is a reasonable safeguard, and we find nothing in the rules that precludes such examination. Long term illnesses may well require periodic updates to employers, and, as stated above, the employer is clearly | sentitled to know whether such illness impacts an employee’s ability to perform his job. The chiefs order does not place a more stringent obligation on Almerico; rather, it implements the chiefs right to obtain a medical certificate in accordance with the rules. Such is embodied in the judgment, which states that the IME psychiatrist:

[Sjhall conduct his own assessment of petitioner and his history on the limited issues of the onset of any illness and his current and future fitness for work and provide a written confidential evaluation to counsel for petitioner and defendants .... counsel shall neither copy, distribute nor publish the evaluation or any other materials relating to petitioner’s employment.

The chiefs order to report to an IME and produce medical records is not in conflict with the Civil Service Board’s right to regulate sick leave, or its rules. For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

DALEY, J., dissents with reasons.

DALEY, J.,

dissents with reasons:

hi respectfully dissent from the majority ruling in this matter because in my view the authority to pass regulations regarding sick leave for the Harahan Police Department falls solely under the purview of the Harahan Municipal Fire and Police Civil Service Board (the Board).

LSA-R.S. 33:2557 states that the Board shall adopt rules to provide for sick leave. Although the case law interpreting this statute allows the appointing authority to regulate the manner in which sick leave may be taken, there is no law which provides Chief Dale with the authority to pass specific rules regarding sick leave including the requirement that the sick employee undergo examination by a physician of the Chiefs choosing. In promulgating General Order Number 0014-04, the appointing authority, Chief Dale, violated R.S. 33:2557. In Attorney General Opinion 78-622, the Attorney General was asked to answer a question nearly identical to the one before us. The Attorney General clearly stated that the Board “and not the municipalities have the authority to regulate requirements for sick leave for municipalities of 7,000 to 250,000 population.” The Attorney General repeated this position in Attorney General Opinion 92-767 stating that the Board “has the exclusive authority to adopt rules and regulations relative to the vacation and/or sick leave of fire and police personnel.”

12While I recognize that R.S. 33:2560 gives the appointing authority, Chief Dale in this case, the authority to discharge police personnel, there is no statutory authority allowing Chief Dale to promulgate rules and conditions regarding sick leave. As stated by the trial court in its reasons for Judgment, “The Civil Service Board in its controlling rules has addressed sick leave issues such as notice, documentation, and medical evaluation.” The trial court and the majority opinion allow an expansion of those sick leave rules by Chief Dale while acknowledging that the Board has exclusive authority to promulgate sick leave rules. I find those two positions irreconcilable. Accordingly, in my view, only the Board had the authority to promulgate rules and regulations regarding sick leave and Chief Dale was without authority to issue or enforce General Order Number 0014-04 without first having the Board adopt the amended rules. I find the trial court erred in allowing any portion of this order to stand and would reverse the trial court judgment.

      . See, Op. Att’y Gen., No. 03-202 (June 12, 2003).

      . See, Op. Att’y Gen., No. 03-202A (September 11, 2003).

        .See, Op. Att'y Gen., No. 02-361 (Oct. 18, 2002).


author: PAINTER, Judge. SAUNDERS, J.,

text:
    Felix MOUTON, Jr. v. RAPIDES PARISH POLICE JURY.
    No. 05-721.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Daniel E. Broussard, Jr., Alexandria, LA, for Defendant-Appellant, Rapides Parish Police Jury.
    Malcolm X. Lavardain, Alexandria, LA, for Plaintiff-Appellee, Felix Mouton, Jr.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|,The Defendant, Rapides Parish Police Jury (“the RPPJ”), appeals the trial court’s failure to award damages for wrongful issuance of a temporary restraining order (TRO). The Plaintiff, Felix Mouton, Jr., answered the appeal asserting that the trial court erred in assessing him with attorney’s fees pursuant to La.Code Civ.P. art. 3608. Finding that an award of damages is appropriate, we amend the judgment of the trial court and affirm the judgment as amended.

FACTS AND PROCEDURAL HISTORY

Mouton was employed by the RPPJ as Work Investment Action Operations Director. He was placed on administrative leave with pay pending an investigation of certain complaints. At its scheduled meeting on November 8, 2004, the RPPJ planned to consider terminating Mouton’s employment. On that date, Mouton obtained an ex parte TRO restraining the RPPJ from terminating him or altering any term of his employment at that meeting. On November 9, 2004, Mouton filed a Petition for Injunction seeking a preliminary injunction in the form of the TRO and asking for damages under the Louisiana Whistleblower Statute, La.R.S. 23:967.

The RPPJ responded by filing a dilatory exception of unauthorized use of summary proceedings. Therein, it asserted that the issuance of a TRO without notice to the RPPJ was inappropriate under the provisions of La.Code Civ.P. art. 3603. The RPPJ also filed a motion to dissolve the TRO and an exception of no cause of action, asserting again that the TRO was wrongfully issued and, additionally, that Mouton had no cause of action under La. R.S. 23:967.

At a January 3, 2005 hearing on the petition for injunctive relief and the exception of unauthorized use of summary proceedings, Mouton moved to dismiss | ?all his claims for injunctive relief with prejudice. The court granted that motion and dismissed the claims for injunctive relief.

On January 31, 2005, a hearing was held on the RPPJ’s exception of no cause of action and its motion for attorney’s fees and damages in connection with the wrongful issuance of the TRO. The trial court granted the exception and awarded attorney’s fees in the amount of $4,947.87 but denied the request for damages. The RPPJ appeals this ruling. Mouton filed an Answer to Appeal.

DISCUSSION

Motion to Dismiss Ansiver to Appeal

In his answer to the appeal, Mouton asserts that the trial court erred in awarding attorney’s fees. The RPPJ argues that the answer to its appeal should be dismissed because Mouton acquiesced in the judgment by paying the attorney’s fee. La.Code Civ.P. art. 2085 states that:

An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.

However, “[t]he party alleging acquiescence must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce.” Vincent v. State Farm Mut. Auto. Ins. Co., 95-1538, pp. 3-4 (La.App. 3 Cir. 4/3/96), 671 So.2d 1127, 1129 (citation omitted). We find no evidence of record to establish that Mouton paid the fees, much less that he intended to acquiesce in the judgment.

Attorney’s Foes

Mouton asserts that the trial court erred in awarding attorney’s fees. He suggests that attorney’s fees were not warranted because he voluntarily dismissed the | oTRO after the discovery process revealed that he did not have a basis for arguing for existing law to be overturned. It is well settled, however, that even where “an injunction [is] voluntarily dismissed, attorney’s fees may still be awarded if the injunction was wrongfully issued.” Scheyd, Inc. v. Jefferson Parish Sch. Bd., 412 So.2d 567, 569 (La.1982) (citation omitted).

In this case, Mouton had a TRO issued without notice. He admitted in his “Certificate of Compliance with La.Code of Civil Procedure Article 3603” that he did not attempt to notify the RPPJ. Further, the harm to which he would have been exposed by the RPP J’s action, termination of his employment, would have been pecuniary. Louisiana Code of Civil Procedure Article 3603 provides, in pertinent part, that:

A. A temporary restraining order shall be granted without notice when:
(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and
(2) The applicant’s attorney certifies to the court in writing the efforts which have been made to give the notice or the reasons supporting his claim that notice should not be required.

“Irreparable injury is injury or loss for which damages cannot be measured by a pecuniary standard or which cannot be adequately compensated in money damages.” Brannan v. Talbot, 29,692, p. 10 (La.App. 2 Cir. 4/2/97), 691 So.2d 848, 854, writ denied, 97-1419 (La.9/19/97), 701 So.2d 172 (citations omitted). See also Succession of Vice, 385 So.2d 554 (La.App. 3 Cir.), writ refused, 392 So.2d 1066 (La.1980). Therefore, the trial court correctly concluded that the TRO was wrongfully issued.

^Furthermore, Louisiana Code of Civil Procedure Article 3608 provides that:

The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or a preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on a motion or after trial on the merits.

Accordingly, the determination as to whether to award attorney’s fees is within the trial court’s discretion. The decision to award attorney’s fees in this case is well founded. Although the claims for injunctive relief were ultimately dismissed voluntarily, the RPPJ had no way of knowing that this would be the outcome and had to defend themselves from the claims while Mouton continued to pursue them. The bill rendered by counsel for the RPPJ and the check evidencing payment thereof by the RPPJ were filed into evidence. The bill shows two months of services, including attendance at depositions, court hearings, and conferences and pleadings drafted and filed. Mouton does not contest the amount charged by counsel for the RPPJ. In light of these factors, the award of attorney’s fees made by the trial court was not an abuse of discretion.

Damages

The RPPJ contends that the trial court erred in failing to make an award of damages for wrongful issuance of the TRO. Mouton, on the other hand, argues that the decision to award damages is purely discretionary with the trial court and that its decision should not be overturned by this court. He further argues that, since he voluntarily dismissed the TRO after discovering that he did not have an adequate basis to challenge existing law, the trial court did not abuse its discretion in refusing to award damages. As we have stated, the RPPJ had no way of knowing that Mouton |Rdid not intend to pursue his claim. Further, while the wrongfully issued TRO was in effect, the RPPJ continued to pay Mouton’s salary and fringe benefits while he continued on administrative leave. While it is true that the trial court has great discretion in deciding whether to make an award of damages in connection with the dissolution of a wrongfully issued TRO, that discretion is not unlimited. Damages should be awarded where they are appropriate. In this case, an award of damages is warranted in the amount of salary and fringe benefits paid between November 8, 2004 and January 5, 2005, a total of $10,256.51.

CONCLUSION

For these reasons, the RPPJ’s motion to dismiss Mouton’s answer to the appeal is denied. The trial court’s award of attorney’s fees is affirmed. The judgment of the trial court is amended to include an award of damages in the amount of $10,256.51. Costs of appeal are assessed to the Plaintiff, Felix Mouton, Jr.

AFFIRMED AS AMENDED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissenting.

lil respectfully dissent. I agree with the majority on all matters except the issue of damages. The majority notes that awarding damages is within the trial court’s discretion and should not be overturned absent abuse. It is then noted that the trial court’s discretion is not unfettered and the majority concluded that damages should be awarded in the amount of salary and fringe benefits paid to plaintiff while the TRO was in effect. I disagree. Plaintiff dismissed his claims for injunctive relief after investigating and analyzing his legal position. He conducted what certainly appears to have been a good faith investigation into his legal rights and then simply decided not to pursue his claim. It is also noteworthy that defendant chose to place Mr. Mouton on leave during the two months in question. Had they not done so, he would have been at work and would have earned his wages. Under these circumstances, I do not believe that the trial court abused its discretion by failing to award damages in the amount of the salary paid to Mr. Mouton while he was in the process of analyzing his legal position.

      . Although that case was reversed on other grounds by the Louisiana Supreme Court, we agree with the reasoning in this regard set out in ARCO Oil & Gas Co., a Div. of Atlantic Richfield Co. v. Deshazer, 96-1344 (La.App. 3 Cir. 5/21/97), 698 So.2d 408, reversed on other grounds, 98-1487 (La.1/20/99), 728 So.2d 841.


author: SULLIVAN, Judge.

text:
    Wanda LAFLEUR, Individually, et al. v. AFTCO ENTERPRISES, INC., et al.
    No. CW 05-127.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    Rehearing Denied May 24, 2006.

      Howard L. Murphy, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, Louisiana, for Defendant/Respondent, Acceptance Indemnity Insurance Company.
    John P. Guillory, The Dill Firm, A.P.L.C., Lafayette, Louisiana, for Defendants/Applicants, Harco National Insurance Company, Southern County Mutual Insurance Company.
    James D. Hollier, Laborde'fe Neuner, Lafayette, Louisiana, for Defendants/Respondents, Norman Roberts, Francisco Gonzales, V.C. Enterprises, L.L.C.
    Hal. J. Broussard, Ped C. Kay, III, Broussard & Kay, Lafayette, Louisiana, for Plaintiffs/Respondents, Richard J. La-fleur, Jr., Tina T. Lafleur, Sarah R. La-fleur, Wanda Lafleur.
    Michael J. Remondet, Jr., Scott F. Higgins, Jeansonne & Remondet, Lafayette, Louisiana, for Defendants/Respondents, AFTCO Enterprises, Inc., ETSI, Inc., Home State County Mutual Ins. Co.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

_JjThis lawsuit arises from a multi-vehicle accident that occurred on April 24, 2003, when a tractor/trailer rig failed to stop for a red light on U.S. Highway 90 East in Lafayette Parish. Plaintiffs and three insurers filed motions for summary judgment regarding insurance coverage and the ranking of insurance policies. The trial court’s rulings on the motions for summary judgment are the subject of this writ application. For the following reasons, we deny the writ application as it pertains to coverage under one policy, and we grant the writ application as it pertains tb coverage under another policy.

Facts

Norman Roberts was driving a tractor/trailer rig when he failed to stop for a red light on Highway 90 and plowed into the thirteen or fourteen vehicles that had stopped ahead of him for the light. Richard Lafleur was the driver of a vehicle stopped for the red light. He died in the accident. Mr. Lafleur’s wife and children filed this suit.

Plaintiffs and Acceptance Indemnity Insurance Company (AIIC) filed motions for summary judgment which were granted by the trial court. Motions for summary judgment filed by Southern County Insurance Company (Southern County) and Harco Insurance Company (Harco) were denied by the trial court. Southern County and Harco sought writs, asserting that the trial court’s rulings on all of the motions for summary judgment were erroneous.

Summary Judgment

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This 12inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “[FJacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596 So.2d 211 (La.1992) (alteration in original)).

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La. Code Civ.P. art. 966(A)(2).

The mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

“Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment.” Robinson v. Heard, 01-1697, p. 4 (La.2/26/02), 809 So.2d 943, 945.

| sDiscussion

Insurance policies are contracts between the parties and have the effect of law between them. Bryant v. United Servs. Auto. Ass’n, 03-3491, 04-28 (La.9/9/04), 881 So.2d 1214. “The intention of the parties is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the agreement and by giving consideration on a practical basis to the instrument in its entirety.” Fleniken v. Entergy Corp., 99-3023, 99-3024, p. 6 (La.App. 1 Cir. 2/16/01), 790 So.2d 64, 68, writs denied, 01-1269, 01-1295 (La.6/15/01), 793 So.2d 1250, 1252. “When the language of an insurance policy is clear and unambiguous, a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given.” Robinson, 809 So.2d at 945 (citing Sanchez v. Callegan, 99-137 (La.App. 1 Cir. 2/18/00), 753 So.2d 403). Further, when the words of a contract are clear, explicit, and lead to no absurd consequences, the contract must be interpreted within its four corners and cannot be explained or contradicted by parol evidence. La.Civ.Code art. 1848; Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024.

Insurance companies have the right to limit coverage in any manner they desire, but the limitations cannot conflict with statutory provisions or public policy. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. “Exclusionary provisions in insurance contracts are strictly construed against the insurer, and

Tractor
Owner: V.C. Enterprises, Inc./
Francisco Gonzales Leased to: ETSI, Inc.
Driver: Norman Roberts
Insurers: Home State-$1 million AIIC-$1 million

AFTCO contracted with its sister company, ETSI, to haul the Performance Rental trailer. ETSI leased the tractor from V.C. Enterprises, Ine./Francisco Gonzales and hired Roberts to drive it. Home State and AIIC issued policies of insurance to AFT-CO, as the named insured; ETSI was named an additional insured by an endorsement. Performance Rental is a named insured of policies issued by Southern County and Harco.

Coverage under Southern County’s Policy

Southern County issued a policy of business auto insurance to Cleveland Mack Sales, Inc. Performance Rental, L.C. is a named insured of the policy, and the trailer involved in this accident is listed as a “covered auto” in the policy. The tractor driven by Roberts is not identified as a “covered auto,” and neither AFTCO/ETSI nor Roberts are named insureds under Southern County’s policy. Plaintiffs assert that Southern County’s policy of in-any ambiguity is construed in favor of the insured.” Garcia v. St. Bernard Parish Sch. Bd., 576 So.2d 975, 976 (La.1991). This rule of strict construction does not allow courts to pervert policy language or be inventive and create an ambiguity where none exists. Muse v. Metro. Life Ins. Co., 193 La. 605, 192 So. 72 (1939).

|4In an effort to clarify our discussion of the issues presented herein, the following outline of ownership, contractual relationships, and insurance coverage at issue has been prepared:

Trailer
Owner: Performance Rental, L.C.
Leased to: AFTCO Enterprises, Inc.
Insurers: Southern County-$l million Harco-$10 million

surance on the trailer owned by Performance Rental provides coverage to them for this accident; Southern County contends there is no coverage under its policy for this accident.

| .^Southern County’s policy provides liability coverage as follows:

We will pay all sums an insured legally must pay as damages because of bodily injury or property damages to which this insurance applies, caused by an accident and resulting from the ownership; maintenance or use of a covered auto.

The policy defines insureds in pertinent part as “[ajnyone else while using with your permission a covered auto you own, hire or borrow” and “[a]nyone liable for the conduct of an insured described above but only to the extent of that liability.”

Plaintiffs assert AFTCO/ETSI and Roberts were insureds under these provisions because Performance Rental’s trailer was a “covered auto” insured by Southern County’s policy. The policy defines “covered autos” in pertinent part as:

SPECIFICALLY DESCRIBED AUTOS. Only those autos described in ITEM THREE of the Declarations for which a premium charge is shown (and for Liability Coverage any trailers you don’t own while attached to any power unit described in ITEM THREE).

“Auto” is defined in Southern County’s policy as “a land motor vehicle, trailer or semitrailer designed for travel on public roads but does not include mobile equipment.”

Plaintiffs and AIIC first argue that, when the trailer, a “specifically described auto,” was coupled with the tractor, the two became one vehicle, a “specifically described auto”; therefore, Roberts was an insured under the policy and the policy provides primary coverage for this accident. Countering, Southern County asserts that an accident must result from the “use” of thé trailer for there to be coverage under its policy. It argues that Roberts’ driving of the tractor caused the accident, not his “use” of the trailer; therefore,, there is no coverage under this provision.

In Aetna Casualty & Surety Co. v. Hertz Corp., 366 So.2d 1362 (La.1978), the supreme court held that a tractor and the trailer it was hauling became one vehicle for | fithe transportation of the cargo. This holding is premised on the decision in Mays v. Aetna Casualty & Surety Co., 242 So.2d 264 (La.App. 2 Cir.1970). In Mays, the court was faced with the opposite of Southern County’s argument, i.e., the tractor was not in use because it was stationary while the trailer it was hauling was being loaded. The court dismissed the argument, explaining:

[The tractor insurer] contends that [the driver] did not use the truck-tractor, because it was stationary and was not being loaded; that only the trailer was being loaded; that the truck-tractor, possessing only a cab and a fifth wheel, was not capable of being .loaded.
Common sense interpretation of the situation resists such an argument. The truck-tractor and the semitrailer become one vehicle for transporting things like the caterpillar tractor. See Johnson Transfer & Freight Lines, Inc. v. American National Fire Insurance Company, 168 Tenn. 514, 79 S.W.2d 587, 99 A.L.R. 277; Delametter v. Home Insurance Company, 233 Mo.App. 645, 126 S.W.2d 262.
The truck-tractor insured by TriState is designed to haul cargo. It has no efficient or economic utility otherwise. In order to haul cargo, it is designed to pull a trailer which in turn contains the cargo. This is the very use for which the vehicle is made. Although it was at rest, it supported the trailer on which the caterpillar machine was being loaded. To load the trailer is to load the truck-tractor.

Id. at 266-67. See also Pitre v. Elliott, 541 So.2d 989 (La.App. 3 Cir.1989).

Delametter v. Home Ins. Co., 233 Mo. App. 645, 126 S.W.2d 262 (1939), is analogous to the situation here. In Delametter, the trailer insurer argued that its policy did not provide coverage because the tractor pulling the trailer, not the trailer, caught on fire. The court rejected the insurer’s argument, explaining:

When the defendant issued its policy of insurance on this trailer it, of course, knew that the trailer was not equipped with any automotive power within itself and that it could be operated only when attached to an automobile tractor, and that the trailer when in operation must of necessity be a part of a single operating unit consisting of a tractor and the insured trailer.

Id. at 659, 126 S.W.2d at 268.

|7The court’s reasoning in Fruehauf Trailer Co. v. South Carolina Electric & Gas Co., 223 S.C. 320, 75 S.E.2d 688, (S.C.1953), pointedly reveals the fallacy of Southern County’s argument that the trailer did not cause or contribute to this accident. In Fruehauf, the issue was whether a trailer drawn by a tractor was subject to attachment for damages which resulted from an accident involving the tractor/trailer. The plaintiff had a contract to buy the trailer; he sought to resist the attachment of the trailer to satisfy the damages resulting from the accident, arguing it was not a vehicle within the meaning of the attachment statute. The court ordered the attachment, explaining:

The trailer and the truck-tractor form one unit. They are both part of one operation out of which the damages arose. The truck-tractor is by the nature of its construction designed to operate with the trailer, and likewise the trailer to operate with the tractor. The trailer, because of the additional weight and momentum given to the unit, has a definite bearing on the operation of the truck tractor. These considerations are but common experience.

Id. at 323, 75 S.E.2d at 689 (emphasis added). Pursuant to this jurisprudence, we find that Performance Rental’s trailer and the tractor were one vehicle and that Roberts is an insured under Southern County’s policy.

Southern County argues this finding is misplaced because the defendant-drivers in Mays and Hertz were named insureds or employees of named insureds and unquestionably insureds under the policies in question. It urges that because insured status was not an issue in those cases, they are not applicable to the determination herein. Based on our consideration of the discussions presented in the cited cases, especially, Fruehauf, we find this argument is without merit.

Southern County cites Carter v. Vangilder, 803 F.2d 189 (5th Cir.1986), in support of its proposition that Mays and Hertz should not be applied to this case. In | ^Carter, the issue was whether the policy insuring the trailer involved in the accident sued on was primary and payable pro-rata with the insurance on the tractor or excess to the insurance on the tractor. Louisiana Farm Bureau argued that “once the tractor and trailer were joined, the separate policies on each unit became one, and, therefore, the liability must be shared on a pro rata basis.” Id. at 192. The clause at issue read: “when the covered auto is a trailer which is connected to a power unit, this policy’s liability coverage ... (b) Is excess if the power unit is not a covered auto.” Id. at 193. The issue was not whether the policy provided coverage but whether the coverage was primary or excess. Carter is not analogous to the issue presented here, and any language employed by the court in its decision is not pertinent to a decision on the facts presented here. We find no error with the trial court’s determination that the tractor and trailer were one vehicle and that Roberts was an insured under Southern County’s policy.

The trial court also found coverage under the “Nonowned Autos Only” provision which provides:

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

Plaintiffs and AIIC contend that the tractor is a “covered auto” under this provision because it was not owned, leased, hired, rented, or borrowed by Performance Rental and it was used in connection with Performance Rental’s business of leasing trailers. Southern County argues that, because Roberts was not in the course and scope of employment with Performance Rental and Performance Rental did not have anything to do with the trailer at the time of the accident, [ 9Roberts’ driving the tractor/trailer did not constitute “use[ ] in connection with” Performance Rental’s business.

We must determine whether the trailer was being used in AFTCO/ETSI’s business and Performance Rental’s business at the time of the accident. AFTCO rented the trailer from Performance Rental. Performance Rental’s involvement with the trailer was leasing it to AFTCO, which was completed before the accident occurred. There is no evidence Performance Rental was involved in contracting to deliver cargo or delivering cargo in any way.

Plaintiffs argue the nature of the business of transporting goods requires a finding that the trailer was being used in both AFTCO and Performance Rental’s businesses. They contend federal regulations of the trucking industry mandate such a finding and cite federal regulations which mandate that authorized motor carriers maintain liability insurance in the minimum amount of $750,000.00 on tractors and trailers. Federal regulations do impose a liability insurance requirement of $750,000.00; however, this requirement is imposed on the lessee/authorized motor carrier, not the owner/lessor of the leased equipment. 49 U.S.C. § 13906.

Federal regulations also require a written lease agreement between the equipment owner/lessor and the lessee/authorized motor carrier, which:

[S]hall clearly specify the legal obligation of the authorized carrier to maintain insurance coverage for the protection of the public pursuant to [Federal Motor Carrier Safety Act] regulations under 49 U.S.C. [§ ]13906. The lease shall further specify who is responsible for providing any other insurance coverage for the operation of the leased equipment, such as bobtail insurance. If the authorized carrier will make a charge back to the lessor for any of this insurance, the lease shall specify the amount which will be charged-back to the lessor.

49 C.F.R. § 376.12(j)(l) (emphasis added). Plaintiffs have not cited any federal law or regulation which requires both the owner/lessor and the lessee/authorized motor |incarrier to carry liability insurance which provides coverage for an accident which occurs when the truck or trailer is leased, in the possession of the lessee/authorized motor carrier, and being operated by the lessee/authorized motor carrier.

Louisiana jurisprudence has “interpreted the nonowned autos provision as requiring that the accident occur while the non-owned auto is being used in the course and scope of the insured’s business or personal affairs.” Perkins v. Guar. Nat’l Ins. Co., 95-229, p. 6 (La.App. 3 Cir. 11/2/95), 667 So.2d 559, 563, writ denied, 96-759 (La.5/31/96), 673 So.2d 1033. See also Adams v. Thomason, 32,728 (La.App. 2 Cir. 3/1/00), 753 So.2d 416, writ denied, 00-1221 (La.6/16/00), 764 So.2d 965. In Adams, the court found that a cotton trailer owned by a gin company was not being used in the gin company’s business when one of its officer’s employees was involved in an accident while hauling the officer’s cotton to the gin. Plaintiffs argued the trailer was being used in the gin company’s business. The court rejected the argument, observing that the driver of the truck hauling the trailer was not an employee of the gin company, but of the officer, who was also a cotton farmer, and that the officer/farmer was vicariously liable for the driver’s actions, not the gin company.

As in Adams, Roberts was not an employee of the insured, Performance Rental, but ETSI. He was not performing services for Performance Rental, but for AFT-CO/ETSI at the time of the accident. The tractor/trailer was being used in AFTCO’s business at the time of the accident, not Performance Rental’s business. Therefore, there is no coverage for the tractor under the “nonowned autos only” provision of Southern County’s policy.

In For these reasons, we find no error with the trial court’s judgment in favor of Plaintiffs that Southern County’s policy of insurance provides coverage for this accident pursuant to its “specifically described auto” and permissive user provisions. However, we do find error with the trial court’s denial of summary judgment in favor of Southern County under the “non-owned auto” provision, and we grant judgment in favor of Southern County that the tractor is not insured under the “non-owned auto” provision of its policy.

Leasing or Rental Concerns-Contingent Coverage

At the hearing on these motions for summary judgment, counsel for Southern County admitted coverage under the policy, stating “I insure anyone who uses the trailer with Performance Rental’s permission.” However, in its cross-motion for summary judgment, Southern County contends its policy does not provide primary coverage for this accident. It argues that the Leasing or Rental Concerns-Contingent Coverage Endorsement to its policy requires the lessee, AFTCO/ETSI, to provide primary insurance coverage to Performance Rental, and that, pursuant to the terms of the endorsement, its policy does not provide primary coverage for this accident. Plaintiffs argue the endorsement is inapplicable.

AIIC seeks a judgment declaring that the coverage provided by its policy for this accident is excess to the coverage provided by Home State on the tractor and by Southern County on the trailer. It asserts that its policy is an umbrella policy that pays on behalf of ETSI, lessee of the tractor, only if the ultimate net loss for the accident is greater than the sum of coverage from all collectible primary insurance, i.e., Home State and Southern County’s policies.

| is>The trial court held that Southern County’s policy was primary on the trailer and that AIIC’s policy was excess to Southern County’s policy. Southern County urges that the trial court’s ranking of these two policies is wrong and that any coverage its policy provides for this accident is excess to Home State’s primary coverage and AIIC’s umbrella coverage on the tractor. It also argues that it did not contemplate liability for damages caused solely by the fault of tractor drivers who have no relationship with its insured, Per1 formance Rental, when it issued the policy.

The “Leasing or Rental Concerns-Contingent Coverage” endorsement of Southern County’s policy provides, in pertinent part:

This endorsement applies when the “lease or rental agreement” in effect at the time of an “accident” specifies that the lessee or rentee is responsible for providing primary liability insurance or primary physical damage.

(Emphasis added). The endorsement fur1 ther provides that Southern County’s obligation is contingent upon liability insurance “required in the ‘lease or rental agreement’ ” not being “collectible” and that its coverage is “excess over any other collectible insurance.”

Plaintiffs and AIIC argue this endorsement does not apply because the rental agreement between Performance Rental and AFTCO does not “specify” that AFT-CO must provide “primary liability insurance.” Southern County does not deny this but argues that the lease agreement evidences its and Performance Rental’s intent for AFTCO/ETSI to provide primary insurance and for this endorsement to apply in situations like this one. It points to Performance Rental’s lease agreement which requires AFTCO to maintain liability insurance in the amount of $1 million with Performance Rental being named an additional insured and to indemnify and hold Performance Rental harmless “against all loss or liability (including reasonable |1sattorney’s fees) for injuries or damages to persons or property resulting from use of trailers rented from Performance [Rental].”

The trial court strictly construed the endorsement because it limits coverage; it granted AIIC’s motion and denied Southern County’s motion. Southern County urges that the trial court’s strict construction of the endorsement was improper, arguing that strict construction inures only to the benefit of the insured, Performance Rental. Southern County’s argument fails in the face of Article 2046 of the Civil Code, which provides: “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” The “Leasing or Rental Concerns-Contingent Coverage” endorsement is clear and explicit. It is applicable if Performance Rental’s lease agreement “specifies” that AFTCO is responsible for providing primary liability insurance. The lease does not specify this requirement; therefore, the endorsement is not applicable, and “no further interpretation can be made in search of the parties’ intent.”

Southern County urges that this court’s decision in Pitre, 541 So.2d 989, requires a different conclusion: that it and AIIC pay on a pro-rata basis. In Pitre, the two policies at issue each contained an excess coverage provision which was mutually repugnant to the other policy’s excess coverage provision, resulting in no coverage under either policy. That is not the case here. Southern County’s “Leasing or Rental Concerns-Contingent Coverage” endorsement is not applicable; therefore, it is not mutually repugnant with AIIC’s policy, an excess policy.

The trial court’s rulings that Southern County’s policy provides primary coverage for this accident and that AIIC’s policy provides excess coverage to Home luState’s policy on the tractor and Southern County’s policy on Performance Rental’s trailer are affirmed.

Coverage under Harco’s Policy

Harco filed a motion for summary judgment, arguing its policy does not provide coverage for this accident; Plaintiffs filed a motion for summary judgment, seeking a judgment that Harco’s policy does provide coverage. The trial court found Harco’s $10 million excess policy provided coverage for this accident. Har-co makes three arguments regarding the trial court’s determination. Finding merit in one of those arguments, we need not address the other two.

Harco contends that its policy’s “Leased Autos” exclusion excluded the trailer Performance Rental rented to AFTCO from coverage provided by its policy. Harco’s policy provided in pertinent part:

This insurance does not apply to:
17. Leased Autos
Any “covered auto” while leased or rented to others. But this exclusion does not apply to:
a. A “covered auto” you rent to one of your customers while their “covered auto” is left with you for service or repair;
b. “Bodily injury” or “property damage” arising out of the work you performed or defective products; or
c. “Bodily injury” or “property damage” caused by an “occurrence” resulting from the ownership of a “covered autof’

Harco points to this exclusion and argues its policy did not provide coverage because the trailer was leased by Performance Rental to AFTCO. Plaintiffs argued 11Rto the trial court that this exclusion applies only when “anyone who is an insured under this policy” leases Performance Rental’s trailers to someone else, e.g., AFTCO subleases one of the trailers it leased from Performance Rentals to another. Plaintiffs and AIIC also argue that, because no lease agreement existed between Performance Rental 'and ETSI or Roberts, this exclusion does not apply. Lastly, Plaintiffs argue Roberts, as a permissive user of Performance Rental’s trailer, was an insured under Harco’s policy; therefore, he cannot be an “other” within the meaning of this exclusion. AIIC also argues that, because the exclusion does not expressly negate coverage for users of leased autos, there is coverage. The trial court found that Harco’s policy provided coverage for ETSI and Gonzales, Robert’s employer, that is not excluded by this provision.

In Brown v. Coregis Insurance Co., 99-48, 99-49, p. 7 (La.App. 1 Cir. 2/18/00), 752 So.2d 347, 353, the court interpreted a leased autos exclusion which contained language identical to the language at issue here: “[a]ny ‘covered auto’ while leased or rented to others.” The plaintiffs argued the accident resulted from the lessor’s negligence in installing a mirror on the véhi-cle; therefore, the exclusion should' not apply. The court rejected the argument, finding “[t]he language of the policy clearly and unambiguously excludes all coverage under the policy for any covered auto while it is leased to another ... [T]he ‘leased auto’ exclusion ... excludes coverage, without qualification, once a covered auto is leased to another.” Id.

The plaintiffs in Ranger Insurance Co. v. Mancuso, 94-464, p. 8 (La.App. 5 Cir. 2/15/95), 652 So.2d 28, 32, argued that “others,” which was undefined, meant “anyone other than the ‘insureds.’ ” They urged that, because the defendant-driver of the truck was using the truck with the named insured’s permission, he was an | ^“insured” under the policy. Plaintiffs make the same argument here. The fifth circuit rejected this argument because the facts established that the defendant-driver was leasing the truck from the named insured; stating: “We read the policy at face value and declare [defendant-driver] was not an ‘insured’ under the policy, because he was ... leasing the truck from [the named insured.]” Id.

As previously discussed, the supreme court held in Hertz, 366 So.2d 1362, that the owner of the trailer “partially owned” the “automobile” which resulted when the tractor and trailer were operated as one unit. Applying that rationale here, the' tractor/trailer driven by Roberts was “partially leased” by Performance Rental. Applying the rationales of Hertz, Brown, and Ranger, the tractor/trailer unit was excluded from the coverage provided by Harco’s policy. Based on Hertz, we reject the arguments that, because no lease agreement existed between Performance Rental and ETSI or Roberts, the exclusion does not apply. For the reasons stated in Btoum and Ranger, we reject the arguments that the leased autos exclusion applies only when “anyone who is an insured under this policy” subleases one of Performance Rentals’ leased trailers to someone else and that Roberts, a permissive user insured under Harco’s policy, cannot be an “other” within the meaning of this exclusion.

AIIC cites the case of Keen Leasing, Inc. v. Fireman’s Fund Insurance Co., 39 Pa.D. & C.3d 653 (C.P.5/12/86), for the proposition that the exclusion is ambiguous. In Keen, the plaintiff leased a truck. When the truck needed repairs, plaintiff sent an employee to pick it up and bring it in to be repaired. Plaintiffs employee was involved in an accident while driving the truck. The plaintiff made demand on its insurer to defend and pay the claim. The insurer refused on the basis of the leased autos exclusion in its policy. The policy at issue was a garage policy, and the 117plaintiff s primary business, “if not the very raison d’etre,” was the repair and maintenance of vehicles it leased. Id. at 658. The trial court held that the provision was ambiguous because “the premiums charged were substantially greater than the coverage which [the insurer] now alleges was available.” Id. at 659. The court noted that the vehicle was subject to a lease agreement but was not in the possession of the lessee at the time of the accident, and AIIC contends that this observation means that a leased autos exclusion applies only when the leased vehicle is in the possession of the lessee. We do not agree. Possession was important in Keen because the plaintiff/insured’s primary business was repairing and maintaining the vehicles it leased and the vehicle was being driven by its employee to its shop to be repaired when the accident occurred. The situation in Keen is not comparable to the situation here.

We find that the leased autos exclusion is clear: the tractor/trailer unit and the trailer individually were excluded from coverage under Hareo’s policy. The judgment of the trial court in favor of Plaintiffs against Harco is reversed, and judgment is rendered in favor of Harco against Plaintiffs denying them coverage under its policy-

Disposition

The judgment of the trial court is affirmed in part and denied in part. Costs of these consolidated writs are to be paid equally by Plaintiffs, AIIC, Southern County, and Harco.

WRIT DENIED IN PART AND GRANTED IN PART; JUDGMENT RENDERED.


author: THIBODEAUX, Chief Judge.

text:
    Billy L. REED and Teresa Reed v. AMERICAN EQUITY INSURANCE CO., et al.
    No. 2005-1298.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    Rehearing Denied May 24, 2006.

      Jeffery Paul Robert, Law Firm of Gray-son H. Brown, Baton Rouge, LA, for Defendant/Appellant, American Equity Insurance Company.
    Kevin Lawrence Cole, Mandeville, LA, for Defendants/Appellees, Universal Specialty Underwriters of La., Inc. and Duane Ransome.
    Donald James Armand, Jr., Pettiette, Armand, Dunkelman, Shreveport, LA, for Defendant/Appellee, C.H. Delaney.
    Andrew Parker Texada, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellees, Classic’s by C.H., Johnnie L. Bell, and Delaney Can Company, Inc.
    Eugene A. Ledet, Jr., Rivers, Beck & Dalrymple, Alexandria, LA, for Plaintiff/Appellee, Teresa Reed and Billy L. Reed.
    Jeffrey Scott Ingram, Alexandria, LA, for Defendant/Appellee, State Farm Mutual Auto Ins. Co.
    Kerrie T. Belsome, New Orleans, LA, for Defendant/Appellee, Thomasee Insurance Agency, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

| jDefendant-appellant, American Equity Insurance Company (American Equity), appeals the trial court’s grant of a partial summary judgment in favor of cross-claimants-appellees, Johnnie L. Bell (Bell), C.H. Delaney d/b/a Classics By C.H. (Classics), and Delaney Can Company, Inc. (Delaney Can). The judgment declared that American Equity’s policy provided liability coverage to the cross-claimants-appellees for the claims asserted in the automobile personal injury action filed by plaintiffs, Billy L. Reed and Teresa Reed. For the reasons assigned below, we reverse and remand on the basis that genuine issues of material fact exist regarding whether the vehicle driven by Bell was a “specifically described auto,” i.e., a covered vehicle under the policy.

I.

ISSUE

Did the trial court erroneously find that no genuine issues of material fact existed that would preclude a finding of liability coverage for the claims asserted?

II.

FACTUAL BACKGROUND

On January 10, 2003, Bell, an employee of Delaney Can, was involved in a car accident while on-duty. He was driving a 1989 Dodge 6000 truck to deliver portable toilets. While en route to the first delivery site, one of the portable toilets fell off the truck bed and struck the car being driven by plaintiff, Teresa Reed.

At the time of the accident, Bell was driving a truck that had been taken off the premises of Classics. C.H. Delaney, who is also the president and majority shareholder of Delaney Can, permitted Bell to use one of the dealership’s vehicles as |aa substitute for Delaney Can’s regular vehicle that was in need of repair. According to C.H. Delaney, the truck picked up by Bell at the dealership was a recent auction purchase by Classics that was to be sold at the used car lot.

Classics possessed an American Equity commercial garage liability policy. The policy was issued on May 11, 2002 and was effective until May 11, 2003. The January 10, 2003, accident occurred within this coverage period.

On April 4, 2003, Mrs. Reed and her husband, Billy Reed, sued Bell, Delaney Can, Classics, C.H. Delaney, individually, and American Equity to recover bodily injury, loss of consortium, and property damages. American Equity accepted a tender of the defense of C.H. Delaney and Classics; however, it reserved its rights to later deny coverage based, preliminarily, on lack of proof that the truck driven by Bell was owned by the policy holder, Classics, or that Bell was engaged in “garage operations” at the time of the accident. American Equity asserted that without proof that the vehicle was an “owned auto” that was listed specifically in the policy, liability coverage would not apply. Moreover, it was asserted that the use of the truck to make deliveries, as Bell was doing at the time of the accident, did not meet the definition of “garage operations,” which was also necessary to invoke coverage for the subject accident.

Bell, Classics, and Delaney Can filed a cross-claim against American Equity and then filed a motion for partial summary judgment, seeking a declaration of liability coverage. They argued that liability coverage applied because there was no factual dispute that at the time of the accident Bell was permissively using one of the policy holders’ owned autos to engage in “garage operations.” This contention was based on the assertion that Delaney’s affidavit, attesting to Classics’ ownership |sof the truck at issue, was sufficient proof of its ownership by an insured. In addition, they contended that the policy broadly defined “garage operations” as “the ownership, maintenance or use of an owned automobile” and, as a result, Bell’s use of the truck satisfied that definition. It was also argued that liability coverage extended to this accident because Bell was a listed driver on the policy’s “Named Driver Limitation” endorsement. This endorsement granted liability coverage to those persons expressly named who would otherwise be excluded from coverage for the use of “covered autos” that did not constitute garage operations. Finally, they alternatively argued that because Bell was using the vehicle with the permission of the owner, liability coverage automatically extended to the accident pursuant -to Louisiana’s mandatory liability law, as set forth in La.R.S. 32:900, regardless of any exclusions in the policy that might be urged to otherwise deny liability coverage.

A hearing was held and the trial court rendered judgment declaring that the policy provided liability coverage for the claims asserted by the Reeds. American Equity appealed.

III.

LAW AND ANALYSIS

The Standard of Review

Summary judgments are reviewed de novo on appeal. See State Farm Mut. Auto. Ins. Co. v. Landry, 96-331 (La.App. 3 Cir. 10/9/96), 688 So.2d 1125 (citing Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991)). Accordingly, our review of this matter requires application of the same standards as those applied by the trial court. Id. These standards require us to adhere to La.Code Civ.P. art. 966, which provides that summary judgment shall be granted forthwith, as a matter of law, when the mover establishes with competent evidence, consisting of Lpleadings, depositions, answers to interrogatories, admissions on file, and any affidavits, that there is no genuine issue as to a material fact and that he is entitled to judgment as a matter of law. See also Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

Prior to this final determination being made, we are to assess whether the party opposing the motion has responded with competent documents to produce evidence of a material factual dispute as to the claims asserted. Id. We recognize, however, that more than merely the existence of a scintilla of evidence is needed to survive the motion. See Davis v. Bd. of Sup’rs of La. State Univ., 97-382 (La.App. 4 Cir. 3/18/98), 709 So.2d 1030, writ denied, 98-1329 (La.6/26/98), 719 So.2d 1288. Rather, in an ordinary civil case such as this, when summary judgment is sought based on the lack of a material fact, we are required to ask “whether a fair-minded jury could return a verdict for the non-moving party on the evidence presented.” Id. at 1034 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Equal scrutiny is required to be given to the supporting documentation submitted by the parties and there is no overriding presumption in favor of trial. Hayes, 685 So.2d 691.

We are also mindful that in the context of a summary judgment motion involving a coverage issue, a declaration of a lack of coverage under an insurance policy shall not be rendered unless there is no reasonable interpretation of the policy, according to the undisputed material facts shown, under which coverage could be afforded. See Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. In Hayes, 685 So.2d at 694 (quoting Smith v. Our Lady of the Lake Hosp., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751), we recognized that material facts are those which are crucial to the determination at issue:

15A fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). ‘[F]aets are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.’ South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied, 596 So.2d 211 (La.1992).

Coverage

The Insurance Policy

We first address American Equity’s argument that summary judgment regarding the existence of liability coverage was improper because there remained a genuine issue as to the material fact of what liability coverages were effective in the policy issued to Classics. This asserted dispute is based on the fact that two policies showing different coverages were filed into the record by the respective parties. At the summary judgment hearing, American Equity filed in the record a certified copy of the insurance policy that was issued to Classics. American Equity had also previously filed in the record Classics’ Certificate of Liability Insurance issued by the State of Louisiana, which is self-authenticating according to La.Code Evid. art. 905. On the other hand, the movers attached an uncertified copy of the purported policy as an exhibit to their memorandum in support of the partial motion for summary judgment.

The submissions differ in one relevant respect: American Equity’s copy of the policy, as well as the state-issued Certificate of Insurance, shows that liability coverage for “owned autos” and “specifically described autos” was provided by the | fipolicy; the movers’ uncertified copy of the policy shows the existence of liability coverage for “owned autos” only.

Louisiana’s Code of Evidence requires, as a condition precedent to the admissibility of evidence, that it be authenticated or identified to support a finding that the material in question is what it is purported to be. La.Code Evid. art. 901(A). However, uncertified insurance policies that are filed with a motion for summary judgment, as was done in this case, may be considered if nothing in the record calls their authenticity into question. See Adams v. Arceneaux, 00-1440 (La.App. 1 Cir. 6/22/01), 809 So.2d 190, writ denied, 01-2559 (La.12/7/01), 802 So.2d 640; see also, American Deposit Ins. Co. v. Myles, 99-2659 (La.App. 4 Cir. 5/31/00), 764 So.2d 173, aff'd and remanded by 00-2457 (La.4/25/01), 783 So.2d 1282. In this case, the policy that was presented as an exhibit by the movers has been challenged and its contents contradicted by certified copies of the policy and the certificate of insurance, which reflect an additional liability coverage. Therefore, we find that the policy submitted by the movers is not reliable documentary evidence of the policy or the applicable coverages that were in effect at the time of the accident.

We are satisfied with the authenticity of the policy and the Certificate of Insurance filed by American Equity. Accordingly, we do not find that the existence of contradictory policies filed in the record presented a genuine issue of material fact that should have precluded a determination of the existence of coverage. Rather, the question of coverage for the claims brought as a result of the accident at issue may be answered by looking at the coverages designated in the certified copy of the policy.

Does a Genuine Issue Remain as to Whether the Dodge Truck was a “Covered Auto” Under the Liability Policy?

|7In order to determine whether coverage applies, the policy requires a determination that the accident involving the Reeds resulted from “garage operations” involving the ownership, maintenance and use of a covered “auto.” Specifically, the policy states:

SECTION II — LIABILITY COVERAGE B. Coverage
2. “Garage Operations” — Covered “Autos”
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from “garage operations” involving the ownership, maintenance or use of covered “autos.”
“Garage operations” is defined by the policy in the following manner:
SECTION VI. — DEFINITIONS
H. “Garage operations” means the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. “Garage operations” includes the ownership, maintenance or use of the “autos” indicated in Section I of this Coverage Form as covered “autos.” “Garage operations” also include all operations necessary or incidental to a garage business.

According to the Garage Coverage Form of the policy, liability insurance was in effect for the following types of covered autos: “owned autos” and “specifically described autos.” These two coverages were reflected, respectively, on the Garage Coverage Form Declarations page in “Item Two — Schedule of Coverages | Rand Covered Autos” by the symbols 22 and 27. The two coverages were described as follows:

SECTION I — COVERED AUTOS
Item Two of the Declarations shows the “autos” that are covered “autos” for each of your coverages. The following numerical symbols describe the “autos” that may be covered “autos.” The symbols entered next to a coverage on the Declarations designate the only “autos” that are covered “autos.”
A. Description Of Covered Auto Designation Symbols
Symbol Description of Covered Auto Designation Symbols
22 Owned “Autos” Only
Only those “autos” you own.... This includes those “autos” you acquire ownership of after the policy begins.
27 Specifically Described “Autos”
Only those “autos” described in ... Item Nine of the Dealers’ Supplementary Schedule for which a premium charge is shown....
B. Owned Autos You Acquire After the Policy Begins
1. If symbols 21, 22, 23, 24, 25 or 26 are entered next to a coverage in Item Two of the Declarations, then you have coverage for “autos” that you acquire for the type described for the remainder of the policy period.
2. But, if symbol 27 is entered next to a coverage in Item Two of the Declarations, an “auto” you acquire will be a covered “auto” for that coverage only if:
[sa. We already cover all “autos” that you own for that coverage or it replaces an “auto” you previously owned that had that coverage; and
b. You tell us within 30 days after you acquire it that you want us to cover it for that coverage.

(Emphasis added).

The burden of proof rests with the movers to establish each fact essential to their claim and that their claim is within the insurance policy coverage. Regency Motors of Metairie, L.L.C. v. Hibernia-Rosenthal Ins. Agency, L.L.C., 03-1312 (La.App. 5 Cir. 2/23/04), 868 So.2d 905, writ denied, 04-753 (La.5/7/04), 872 So.2d 1087 (citing Gandy v. United Services Auto. Ass’n, 98-215 (La.App. 1 Cir. 10/14/98), 721 So.2d 34, writ denied, 98-2836 (La.1/15/99), 736 So.2d 208). Addressing, first, the issue of ownership, we find that the movers filed the affidavit of C.H. Delaney. He averred in the affidavit that the Dodge truck was owned by Classics. Aside from that attestation, however, the movers did not submit any other proof of ownership. American Equity contends that the lone affidavit of Delaney was insufficient to establish ownership of the vehicle. But other than this argument and the assertion made by American Equity in its pleadings in this regard, which cannot be relied upon to counter the motion for partial summary judgment, it failed to present any competent evidence to contradict Delaney’s attestation. See La.Code Civ.P. art. 967(B). Therefore, we are faced with the question of whether this affidavit satisfactorily satisfied the movers’ burden of establishing ownership of the vehicle, and, consequently, that it was a covered auto under the policy.

As we reasoned in Touchet v. Guidry, 550 So.2d 308 (La.App. 3 Cir.1989), an effective transfer of ownership of a vehicle may occur in this state even though the documentation of such transfer of title may not have been complied with in accordance with statutory law. Accordingly, we find that the unchallenged, Incompetent affidavit of Delaney, which swore to the ownership of the vehicle, met the movers’ burden of asserting prima facie, albeit rebuttable, proof of ownership of the vehicle. Subsequent to this showing, however, American Equity failed to produce any contradictory evidence that would establish that the ownership of the vehicle remains a genuine issue for trial. Therefore, we find that no genuine issue remains as to the issue of ownership of the vehicle.

However, we do find that genuine issues of material fact still remain as to whether the truck is a covered auto under the liability policy. To begin with, if the truck was an after-acquired vehicle, which is argued as fact in the briefs of both parties, then we find that this policy requires that the terms of Section 1(B)(2) be met in order for liability coverage to apply. That section requires that a showing be made that the policy already covers (1) all owned autos for that coverage or that it replaces an auto owned by the policy holder, and (2) that the policy holder notify the insurer within thirty days of the acquisition date of the desire to have the vehicle insured. Assuming, by virtue of the liability coverage designated by symbol “22” in the policy, that the policy holders had in effect coverage for all owned autos, we find, nevertheless, that the record contains no evidence that the second component to this section was satisfied. Specifically, although the affidavit of Delaney avers that Classics owns the truck in question, there is no information asserted as to its purchase date. Nor is there located in the record any evidence establishing that Classics provided to American Equity, within thirty days of its attainment of the vehicle, a request that it also be covered, in accordance with Section 1(B)(2) of the policy.

Consequently, we find that these constitute multiple, genuine issues of material fact that should have precluded the grant of a summary judgment as to this _|jj coverage issue. Since we find the existence of these issues sufficient to have prevented the determination of liability coverage on the evidence presented at the hearing, we pretermit discussion of the remaining issues raised by the parties.

IV.

CONCLUSION

We find that multiple genuine issues of material fact exist that should have precluded the determination of liability coverage based on the facts in the record. The judgment granting the motion for partial summary judgment is reversed and this case is remanded for trial. Costs of this appeal are assessed to eross-claimants-ap-pellees, Johnnie L. Bell, C.H. Delaney d/b/a Classics By C.H., and Delaney Can Company, Inc.

REVERSED AND REMANDED.

      . C.H. Delaney later hired separate counsel to represent him in his individual capacity in this suit.

      . The policy of insurance filed by American Equity is missing page two of the two-page "Nuclear Energy Liability Exclusion Endorsement (Broad Form).” However, we do not find this uncontroverted, omission to be material to the issue of coverage.

      . Our conclusion does not preclude the existence of coverage. Coverage may well exist once all facts relevant to coverage are ultimately determined. At this juncture of these proceedings, however, a finding of coverage is legally untenable.