author: McClendon, j.

text:
    OIL INSURANCE LIMITED v. DOW CHEMICAL COMPANY, Dow Hydrocarbons and Resources, Inc., Frank’s Casing Crew & Rental Tools, Inc. and Grey Wolf Drilling Company.
    No. 2007 CA 0418.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.
    Writ Denied Feb. 22, 2008.

      Edward F. Lebreton, III, Norman C. Sullivan, Jr., George Fowler, New Orleans, Louisiana, for Plaintiffs/Appellants, Oil Insurance Limited.
    F. Barry Marionneaux, Plaquemine, Louisiana, Martin Triche, Napoleonville, Louisiana, E. Lanier Edwards, Jr., Napo-leonville, LA, Amy L. Baird, B. Richard Moore, Jr., David M. Whitaker, Nicole M. Duarte, New Orleans, Louisiana, Douglas J. Kurtenbach, P.C., pro hac vice Chicago, Illinois, for Defendant/Appellee, Dow Chemical Company & Dow Hydrocarbons & Resources, Inc.
    Richard J. Hymel, Jeffrey Riggs, Lafayette, Louisiana, for Defendant/Appellee, Frank’s Case Crew & Rental Tools, Inc.
    Terrence K. Knister, New Orleans, Louisiana, for Defendant/Appellee, Gulf South Pipeline Company, LP.
    Before GAIDRY, McDONALD, and McClendon, jj.
   McClendon, j.

|sIn this suit for damages, plaintiff, Oil Insurance Limited (Oil), as the subrogated insurer for Gulf South Pipeline, L.P. (Gulf South), appeals a judgment in favor of one of the defendants, Frank’s Casing Crew & Rental Tools, Inc. (Frank’s), maintaining Frank’s peremptory exception raising the objection of prescription. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Oil filed suit on September 29, 2005, seeking reimbursement for claims paid on behalf of Gulf South. According to Oil’s petition, Dow Hydrocarbons and Resources, Inc. (Dow) contracted in the 1970’s with Frank’s “to drill and install casing for wells 13 and 14 in the Napoleon-ville salt dome.... ” In 2001, Gulf South leased the wells for storage of natural gas. On December 24, 2003, natural gas seeped out of well 13, causing damages. The Louisiana Department of Natural Resources, Office of Conservation, required Gulf South to investigate and provide a “Root Cause Analysis” for the accident. Allegedly, the cause of the accident was determined to be improper back welding by Frank’s and another company, which caused the cracks in the well casing through which the gas seeped. Although the petition shows that Oil’s tort claim against Frank’s was filed more than one year from the date of the accident, Oil alleged that the true cause of the seepage was not discovered until 2005. As of the date of the petition, Oil asserted that it had paid over $20,000,000.00 in claims on behalf of Gulf South; and prayed for judgment in its favor and against Frank’s and other defendants.

Frank’s filed peremptory exceptions raising the objection of prescription and the objection of no cause of action based on peremption, and a dilatory exception raising the objection of prematurity. At the hearing |4on the exceptions, Frank’s argued the peremptory exceptions, but withdrew the exception of prematurity. The only evidence admitted at the hearing was the deposition of Dr. Geoffrey R. Egan, the expert hired by Gulf South to determine the root cause of the seepage. Both parties presented arguments partially relying on various sections of the deposition. In a judgment dated October 5, 2006, the trial court sustained the exception of prescription and dismissed Oil’s claims against Frank’s. In its reasons for judgment, the trial court found that plaintiffs expert “suspected that welding and casing work performed by Frank’s may have been the cause of the leak as early as June 2004....”

On appeal, Oil assigned error to the trial court’s ruling, primarily arguing the discovery rule recognized by the doctrine of contra non valentem agree nulla currit praescriptio. Oil argues that Gulf South’s expert was not “confident” and had not reasonably “confirmed” that Frank’s was the true cause of the seepage until November of 2004. Thus, even without the benefit of LSA-R.S. 9:5822, the Hurricane Katrina prescription extension provision invoked by Oil, the suit was timely filed.

Frank’s asserts that the petition had prescribed on its face and Oil did not meet its burden to prove the applicability of the discovery rule provided by the contra non valentem doctrine. Frank’s posits that it is clear from the | ¡^allegations in the petition, coupled with the deposition of Dr. Egan, that Oil or Gulf South knew or should have known of facts sufficient to trigger the running of prescription by June of 2004. Thus, the petition was not filed within one year of that discovery date.

APPLICABLE LEGAL PRECEPTS

“Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” LSA-C.C. art. 3492. “Prescription runs against all persons unless exception is established by legislation” or jurisprudential rule. LSA-C.C. art. 3467; Griffin v. BSFI Western E & P, Inc., 2000-2122, p. 9 (La.App. 1 Cir. 2/15/02), 812 So.2d 726, 734. The plea of prescription must be specifically pleaded and may not be supplied by the court. LSA-C.C.P. art. 927(B). Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that prescription was interrupted or suspended, and the action has not prescribed. Williams v. Sewerage & Water Board of New Orleans, 611 So.2d 1383, 1386 (La.1993); Succession of Daigle, 2001-1777, pp. 6-7 (La.App. 1 Cir. 6/21/02), 822 So.2d 83, 88, writ denied, 2002-2389 (La.11/22/02), 829 So.2d 1045.

Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, the one which favors maintaining an action, as opposed to barring, should be adopted. Foster v. Breaux, 263 La. 1112, 270 So.2d 526, 529 (1972). Further, in an attempt to “soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non valentem non currit praescriptio, which means |fithat prescription does not run against a person who could not bring his suit.” Carter v. Haygood, 2004-0646, p. 11 (La.1/19/05), 892 So.2d 1261, 1268; Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992). The doctrine of contra non valentem is one of the suspensive theories that may be asserted by plaintiffs to prove that prescription had not run before suit was filed. See Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211; Lima v. Schmidt, 595 So.2d 624, 627-29 (La.1992), and compare Campo v. Correa, 2001-2707 pp. 6-9 (La.6/21/02), 828 So.2d 502, 507-09 (burden remains on exceptor if contra non valentem principle codified into the applicable prescriptive codal article or statute). Our supreme court has recognized

four instances where contra non valen-tem is applied to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.

Carter, 2004-0646 at pp. 11-12, 892 So.2d at 1268.

For purposes of category four, often called the “discovery rule,” prescription does not commence until a plaintiff obtains actual or constructive knowledge of facts that would indicate to a reasonable person that he is the victim of a tort, damage occurred, and the defendant’s negligence caused the damage. Harvey, 593 So.2d at 354; Griffin, 2000-2122 at p. 9, 812 So.2d at 734. Constructive knowledge consists of the facts sufficient to incite curiosity, to excite attention, or to put a reasonably minded person on guard and call for an inquiry. Griffin, 2000-2122 at p. 9, 812 So.2d at 734. In deciding whether the plaintiff had constructive |7knowledge, a plaintiff is deemed to know what he could have discovered through reasonable diligence. Tramontin v. Tramontin, 2004-2286, pp. 5-6 (La.App. 1 Cir. 12/22/05), 928 So.2d 29, 32, unit denied, 2006-0155 (La.5/26/06), 930 So.2d 20. However, “a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of preseription[,] unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by” tortious acts. Campo, 2001-2707 at p. 12, 828 So.2d at 511 (emphasis added); Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). The overriding issue is the reasonableness of the plaintiffs act, after considering his education and level of intelligence, in light of the nature of the defendant’s conduct Campo, 2001-2707 at p. 12, 828 So.2d at 511.

If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error or clearly wrong standard of review. Carter, 2004-0646 at p. 9, 892 So.2d at 1267; see Stobart v. State, Department of Trans portation and Development, 617 So.2d 880, 882-83 (La.1993). The manifest error appellate standard of review applies even “when the evidence before the trier of fact consists solely of written reports, records and depositions.” Virgil v. American Guarantee and Liability Insurance Company, 507 So.2d 825, 826 (La.1987) (per curiam). Essentially, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Carter, 2004-0646 at p. 9, 892 So.2d at 1267; Stobart, 617 So.2d at 882-83.

^ANALYSIS

The fourth category, comprising the discovery rule, is asserted here. However, we are mindful that contra non valentem exceptions are maintained only under special circumstances. Tramontin, 2004-2286 at p. 5, 928 So.2d at 32. Although the plaintiff must have more than “mere apprehension that something may be wrong” to begin the running of prescription, the discovery rule does not allow the plaintiff to wait until the cause of the damage is certified or confirmed through extensive testing. Campo, 2001-2707 at p. 12, 828 So.2d at 511. Such a delay could erode a defendant’s ability to preserve relevant evidence and jeopardize the protection afforded by prescription against stale claims. Cichirillo v. Avondale Industries, Inc., 2004-2894, 2004-2918, p. 9 (La.11/29/05), 917 So.2d 424, 430. Balancing the needs of both parties, the discovery rule offers protection to the plaintiff by interrupting prescription, but only until the plaintiff has notice, real or constructive, of facts sufficient to “incite curiosity, to excite attention, or to put a reasonably minded person on guard and call for inquiry....” Griffin, 2000-2122 at p. 9, 812 So.2d at 734.

According to the petition, the accident occurred in December of 2003, and suit was filed on September 29, 2005; more than a year after the damage was sustained. Thus, on the face of the petition, the action had prescribed, and the burden shifted to the plaintiff to show that prescription had been interrupted or suspended by the theory asserted under the doctrine of contra non valentem. See Wimberly, 93-2361, 635 So.2d at 210-12; Tramontin, 2004-2286 at pp. 4-6, 928 So.2d at 32-33; Sandoz v. Dolphin Services, Inc., 555 So.2d 996, 998 (La.App. 1 Cir.1989).

The primary facts supporting the trial court’s finding that the action had prescribed were as follows:

]91. By the end of February of 2004, the video of the well showed cracks in the casing near the couplings. It was also known that the well had been plugged at the point of the lowest crack and that the leakage stopped, which pointed to the cracks as a possible cause of the leaks.

2. No later than June of 2004, welding had been considered as a potential root cause of the seepage, and Frank’s was thought to be the company contracted with for the welding. In addition, the use of back-welding for the job was discovered and additional investigation ensued.

After reviewing the facts presented at the hearing, the trial court applied the discovery rule and found that Oil knew or should have known of facts sufficient to begin the running of prescription by the end of June, 2004. From our review of the petition and the deposition accepted as evidence at the hearing, we cannot say that the trial court was manifestly or clearly wrong in its factual determinations. We agree that the facts known or knowable by June of 2004 to Gulf South, and thus its subrogated insurer Oil, were sufficient “to incite curiosity” or “excite attention” as to the cause of the damages and a likely responsible defendant. Griffin, 2000-2122 at p. 9, 812 So.2d at 734.

Based on those facts, Gulf South did indeed “call for [further] inquiry,” which eventually led to the alleged confirmation in Gulf South’s mind of the cause of the seepage. While evidentiary confirmation of a cause would be advantageous at a trial on the merits, that level of certitude is not a prerequisite to the commencement of prescription. See Griffin, 2000-2122 at p. 9, 812 So.2d at 784. Nor did our review reveal evidence of any impediment or ignorance induced by Frank’s, acts that could have triggered another contra non exception. Thus, even though Oil showed that the discovery rule applied to extend prescription beyond the date of the accident I min December of 2003, prescription commenced on or before June 30, 2004, and ended no later than June 30, 2005. See LSA-C.C. arts. 3492, 3454, & 3456. Oil, however, did not file suit until September 29, 2005, several months after the one year prescriptive period had run.

When the record provides a reasonable basis for the trial court’s finding of fact and the finding was not manifestly erroneous, the court of appeal may not reverse the factual findings of the trial court. See Stobart, 617 So.2d at 882. Thus, in the absence of any error of fact or law in this particular case, we see no basis for reversal.

For these reasons, we affirm the judgment of the trial court. Costs of the appeal are assessed to plaintiff, Oil Insurance Limited.

AFFIRMED.

      . In the trial court’s reasons for judgment, the court noted that its dismissal based on prescription rendered a ruling on Frank's exception of no cause of action based on peremption unnecessary. In this court, Frank's filed an answer to the appeal asking that the exception based on peremption be considered and maintained.
      Peremption, which may be raised by a party through an exception of no cause of action, without the introduction of evidence, or through an exception of prescription, with supporting evidence, need not be pleaded and can be raised by a court on its own motion. LSA-C.C.P. art. 931; LSA-C.C. art. 3460; Saia v. Asher, 2001-1038, p. 4 n. 5 (La.App. 1 Cir. 7/10/02), 825 So.2d 1257, 1259 n. 5. However, as did the trial court, based on our finding that the action has prescribed, we pretermit the issue of peremption.
      In addition, we note that we do not accept new evidence or review evidence not properly admitted in the court below, and we deny Oil’s motion to supplement the record with the trial court's reasons for its ruling on a different party’s exception rendered after the judgment on appeal here. See Willis v. Letulle, 597 So.2d 456, 464 (La.App. 1 Cir. 1992); Shahla v. City of Port Allen, 601 So.2d 746, 751 n. 3 (La.App. 1 Cir.1992).

      . Although the suit was filed after Hurricane Katrina, the suspension of prescription provided by LSA-R.S. 9:5822, has no application if the prescriptive period had run before the statutory threshold date of August 26, 2005. See LSA-R.S. 9:5822 A.


source: Caselaw Access Project

author: DOWNING, J. KUHN, J.,

license: Public Domain

text:
    Marjorie Ann Romero AMBROSE v. Steven AMBROSE.
    No. 2007 CA 0106.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      Kathryn S. Lirette, Houma, LA, for Plaintiff/Appellee Marjorie Ann Romero Ambrose.
    J. Louis Watkins, III, Houma, LA, for Defendant/Appellant Steven Ambrose.
    Before PARRO, KUHN and DOWNING, JJ.
   DOWNING, J.

| gSteven Ambrose appeals a judgment sanctioning him for contempt of court. His former spouse, Marjorie Ann Romero Ambrose, filed a rule for contempt in this proceeding against Mr. Ambrose for violating the terms of a judgment rendered in another proceeding in which she was not a party. Of our own motion, pursuant to our authority under La. C.C.P. art. 927 B, we notice that Ms. Ambrose had no right of action to enforce in this proceeding a judgment in favor of the Louisiana Department of Social Services and against Mr. Am-brose, which was rendered in another proceeding in which she is not a party. Accordingly, we vacate the judgment of the trial court.

PERTINENT FACTS AND PROCEDURAL HISTORY

In this proceeding entitled, “Marjorie Ann Romero Ambrose v. Steven Ambrose,” bearing docket No. 119429, Div. E, Mr. and Ms. Ambrose were divorced on November 10, 1998. By judgment in this action dated March 14, 2002, custody issues surrounding their two children were resolved. Ms. Ambrose was given sole custody of the children, and Mr. Ambrose was given visitation.

Child support issues, however, were not resolved within this lawsuit. Rather, Ms. Ambrose made application for and received services from the Support Enforcement Services for the State of Louisiana, Louisiana Department of Social Services (“Department”) in accordance with La. R.S. 46:236.1, et seq. Accordingly, the State filed suit on May 23, 2001, against Mr. Ambrose seeking child support and medical support. Ms. Ambrose was not a party to that action. That action was entitled, “State of Louisiana v. Steve Ambrose,” bearing docket No. 10371-IV-D. Judgment was entered on | October 9, 2001 in favor of the Department ordering Mr. Ambrose to pay, among other things, child support, arrearages and a percentage of the children’s medical bills. Sums due were payable to the 32nd Judicial District Court IV-D Program. The judgment also made a hearing officer’s recommendations the order of the court.

Ms. Ambrose subsequently filed in this proceeding the rule for contempt and to make past due child support and medical payments executory. The judgment resulting from that rule is at issue in this appeal. She filed the rule in her own name personally seeking to enforce the judgment from the other proceeding that was rendered in favor of the Department. The trial court ruled in her favor, finding Mr. Ambrose to be in contempt and ordering sanctions. The trial court denied Mr. Ambrose’s motion for new trial.

Mr. Ambrose now appeals, asserting ten assignments of error. In his first assignment of error, he argues that the Department is an indispensable party to these proceedings.

DISCUSSION

In a case where the Department is providing services, the Department has a “separate and distinct cause of action” that “need not be ancillary to or dependent upon any other legal proceeding.” La. R.S. 46:236.1.2 D(l). [4The Department may take direct civil action “without the necessity of written assignment, subrogation, tutorship proceedings, or divorce proceedings.” Id. Here, upon certification by the Department that services were being provided under then La. R.S. 46:236.1 et seq., the district attorney filed suit against Mr. Ambrose seeking to obtain an order of support against him for his two minor children. This was done before custody issues were settled. The Department’s action resulted in a judgment ordering Mr. Ambrose to pay child and medical support to a court-established program. Ms. Am-brose is not identified in any way as a party.

The law does allow Ms. Ambrose to have the judgment amended to require that payments be made to her under certain conditions, but nothing in the record reflects that she has done this. La. R.S. 46:236.2 B & C say that upon the motion of an interested party, together with certification from the Department that neither benefits nor services are being provided by it, the court may order the judgment to be amended ex parte to remove the Department as payee and substitute the individual.

|r,Further, La. C.C.P. art. 225 A provides that a rule for contempt may issue only on the court’s motion or the motion of a “party to the action or proceeding.” See also La. R.S. 46:236.6, which provides the mechanism by which the Department may initiate contempt proceedings. Ms. Am-brose is not a party to the action or proceeding that resulted in the judgment she is trying to enforce.

We conclude, therefore, that there is no judgment establishing a child support or medical obligation under “Ambrose v. Ambrose,” docket No. 119429, Div. E under which Ms. Ambrose could seek a contempt citation for failure to pay child support or medical support. We further conclude that she is not a party to “State of Louisiana v. Steve Ambrose,” docket No. 10371-IV-D, the action in which judgment was rendered in favor of the Department. We know of no law that allows Ms. Ambrose to seek a contempt citation or other enforcement of this judgment in favor of the Department.

Louisiana Code of Civil Procedure art. 927 B allows us to recognize the lack of a right of action on our own motion. This article provides in pertinent part: “The nonjoinder of a party, or the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court of its own motion.”

Accordingly, of our own motion, we notice that Ms. Ambrose has no right to seek enforcement of the judgment in favor of the Department. Therefore, we will vacate the judgment of the trial court in “Ambrose v. Ambrose,” docket No. 119429, Div. E, rendered on December 6, 2005, which is at issue in this appeal. All assignments of error are pretermitted.

DECREE

For the foregoing reasons, of our own motion and pursuant to our authority under La. C.C.P. art. 927 B, we notice that Ms. Ambrose has no right to seek a contempt citation or otherwise enforce the judgment in favor of the Department and against Mr. Ambrose. We vacate the judgment of the trial court in “Ambrose v. Ambrose,” docket No. 119429, Div. E, rendered on December 6, 2005, which is at issue in this appeal.

VACATED.

KUHN, J. concurs and assigns reasons.

KUHN, J.,

concurring in part.

|H concur because the 2005 trial court judgment reviewed in this appeal is properly vacated because the State of Louisiana through the Department of Social Services (“the Department”) has not been made a party to this suit. Further, the record does not establish sufficient facts to support the majority’s conclusion that Mrs. Ambrose does not have a right of action to file her rule for contempt.

La. R.S. 46:236.1.9 C provides, “The department shall be an indispensable party to any proceeding involving a support obligation or arrearages owed under [Subpart B, addressing public assistance for child support enforcement].” The majority references this statute in a footnote but does not vacate the trial court’s judgment on the basis of this statute. The record establishes that the Department was providing support enforcement services to Mrs. Ambrose in 2001 and that the Department filed proceedings against Mr. Ambrose on behalf of Mrs. Ambrose and the minor children in a suit captioned State of Louisiana v. Steve Ambrose. In that proceeding, the 2001 judgment identified that Mr. Lawrence D. Ward, Jr., Assistant District Attorney for the Department appeared on behalf of “the payee, Marjorie Ambrose,” but ordered Mr. Ambrose to pay monthly child support and 31% of unpaid medical bills to the 32nd Judicial District Court IV-D Program. See La. R.S. 46:236.1.2(D)(1). Mrs. Ambrose’s current rule, filed in a 12separate action in the 32nd Judicial District Court, seeks an executory judgment for past due child support and medical payments owed by Mrs. Ambrose under the terms of the 2001 judgment.

The majority concludes that Mrs. Am-brose does not have a right of action to enforce the 2001 judgment. Louisiana Revised Statutes 46:236.1.5, also within Sub-part B and addressing family and child support programs, provides:

A. By accepting [Family Independence Temporary Assistance Program benefits] for or on behalf of himself or another individual, the applicant or recipient shall be deemed, without the necessity of signing any document, to have made an assignment to the department of his entire right, title, and interest to any support obligation such applicant or recipient may have in his own behalf or on behalf of any family member for whom the applicant is applying for or receiving FITAP which has accrued at the time of the certification for FITAP and which accrues during the time FITAP is furnished. The assigned support rights shall constitute an obligation owed to the department by the person responsible for providing such support, and said obligation shall be established by an order of a court of competent jurisdiction, and the department may thereafter collect by appropriate process any outstanding debt thus created....
B. The applicant or recipient shall also be deemed, without the necessity of signing any document, to have consented to the designation of the department as payee in an initial or amended order of support and to have appointed the SES program administrator as his or her true and lawful attorney-in-fact to act in his or her name, place, and stead to perform the specific act of endorsing any and all drafts, checks, money orders, or other negotiable instruments representing support payments which are received on behalf of such individual or his caretaker. The department shall be an indispensable party to any proceeding involving a support obligation or arrearages owed under this Subpart. The provisions of this Subpart shall apply retrospectively to all support rights assigned, whether by written assignment or by operation of law, prior and subsequent to October 1,1981.
(Emphasis added.)

|3In the instant case, Mrs. Ambrose is seeking to enforce Mr. Ambrose’s payment of child support and medical payments for obligations that have accrued during 2005. While the record establishes generally that “support enforcement services” were being provided to Mrs. Am-brose under La. R.S. 46:236.1 et seq. as of May 2001, the record does not establish that the Department has continued to provide services or that any services were furnished to Mrs. Ambrose during 2005, when the support obligations at issue in this rule accrued. Accordingly, the record does not clearly establish that plaintiff has assigned her rights to these benefits to the Department.

The majority reasons that Mrs. Am-brose has no right of action because she has not complied with La. R.S. 46:236.2 B, which addresses the required steps that an interested party must take before it can be designated as a “payee.” Although Mrs. Ambrose may be required to comply with the steps outlined in La. R.S. 46:236.2 B to obtain an order requiring Mr. Ambrose to make the support payments directly payable to her, this statute does not establish that she cannot file a suit to enforce the terms of the 2001 judgment, i.e., requiring Mr. Ambrose to make payments to the 32nd Judicial District Court IV-D Program.

The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211, 1216-1217. As sole custodian of the minor children at issue, Mrs. Ambrose has an interest in enforcing the judgment obtained by the Department on her behalf. See |4La. R.S. 46:236.6 E (providing that the “provisions and remedies of this Section [authorizing the Department to enforce the terms of a court order issued pursuant to this Subpart] shall be construed as an addition to, and not in substitution for, any .other remedy otherwise available to obtain or enforce an order for support.”)

Thus, the record does not establish that Mrs. Ambrose does not have an interest in the subject matter of the suit or otherwise does not have the legal capacity to proceed with the suit. By filing this suit, she has effectively interrupted the applicable prescriptive period. But because the Department was not joined in the proceedings below, and La. R.S. 46:236.1.9 mandates that the Department is an indispensable party, the trial court’s 2005 judgment should be vacated. The matter should be remanded to the trial court for further proceedings.

      . Louisiana Revised Statutes 46:236. I was repealed by 2003 La. Acts, No. 1068, § 4. Its provisions were re-enacted as La. R.S. 46:236.1.1, et seq.

      . While Mr. Ambrose has not filed a formal peremptory exception under La. C.C.P. art. 927, he does argue the following language found both in La. R.S. 46:236.1.5 B and La. R.S. 46:236.1.9(C): "The department shall be an indispensable party to any proceeding involving a support obligation or arrearages owed under this Subpart.''
      We also note here that while the numbering of the pertinent provisions of Title 46 has been altered since the Department filed its petition against Mr. Ambrose, the law is substantively unchanged.

      . The full text of this paragraph is as follows:
      The department, except when it is not in the best interest of the child, may without the necessity of written assignment, subro-gation, tutorship proceedings, or divorce proceedings take direct civil action, including actions to establish affiliation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section, in any court of competent jurisdiction, to obtain an order, judgment, or agreement of support against the responsible person in any case in which the department is providing services under this Subpart. The amount of such support shall be set only by order of the court or by the consent of the parties, but in either case the department shall be designated as payee. Additionally, the department may take direct action to modify an order or judgment of support, including actions to increase or decrease support, in any case in which the department is providing services pursuant to this Subpart. A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding. (Emphasis and underlining added.)

      .In pertinent part, these paragraphs state:
      B. (Z)(a) Any interested party may by a written motion, together with a written certification from the department that the department is not presently furnishing and does not contemplate furnishing FITAP for or on behalf of an individual and that no services are being rendered by the department on behalf of the individual, obtain from the court which rendered the order to support such individual an amended order to require that support payments be made payable to thus individual or caretaker instead of the department.
      (b) As used in this Paragraph, "interested party” shall include only the department, the person owing the support obligation, or the individual or caretaker to whom the support obligation is owed.
      ⅜ ⅜ ⅜ ⅜

        C. In either of the above cases, the court shall grant its order ex parte and without hearing any adverse party.

      . This paragraph provides in pertinent part as follows:
      Except as otherwise provided by law, a person charged with committing a constructive contempt of court may be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt and punished accordingly. The rule to show cause may issue on the court’s own motion or on motion of a party to the action or proceeding and shall state the facts alleged to constitute the contempt. (Emphasis added.)

      . Mrs. Ambrose's petition for divorce filed in 1997 was the initial pleading in the present suit.


text:
    LOUISIANA INSURANCE GUARANTY ASSOCIATION v. Earl Mae WELLER.
    No. 2007 CA 0571.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      Michelle Sorrells Baton, Rouge, LA, for Plaintiff/Appellant Earl Mae Weller.
    David T. Butler, Jr., Baton Rouge, LA, for Defendant/Appellee Louisiana Insurance Guaranty Association.
    Before GAIDRY, McDONALD, and McClendon, jj.
   McClendon, j.

| ¡>In this workers’ compensation case, the defendant and plaintiff-in-reconvention, Earl Mae Weller, complains of the workers’ compensation judge’s findings that Ms. Weller is no longer totally and permanently disabled and that chiropractic care and mileage expenses were not reasonable or necessary. We affirm the judgment -in favor of the plaintiff and defendant-in-re-convention, Louisiana Insurance Guaranty Association (LIGA).

FACTS AND PROCEDURAL BACKGROUND

On April 1,1976, Ms. Weller was injured in the course and scope of her employment as a waitress at Cattleman’s Restaurant. Ms. Weller thereafter filed suit against her employer, Margie Brown d/b/a Cattleman’s Restaurant, and her employer’s workers’ compensation insurer, Rockwood Insurance Company, seeking workers’ compensation benefits. The matter was tried on January 22, 1979, and, in a judgment signed on February 13, 1979, the trial court awarded Ms. Weller weekly compensation benefits in the amount of $80.78 for total and permanént disability, commencing March 22, 1977, and continuing for as long as her disability remained, subject to statutory limitations. Additionally, Ms. Weller was awarded medical and drug expenses, which were reasonable and necessary and were incurred from date of trial for as long as her disability continued, subject to statutory limitations. Rock-wood Insurance Company and Margie Brown d/b/a Cattleman’s Restaurant unsuccessfully appealed the February 13, 1979 judgment. See Weller v. Brown, 398 So.2d 551 (La.App. 1 Cir.1979).

Years later, LIGA, as statutory successor to the then insolvent Rockwood Insurance Company, filed a petition in the Nineteenth Judicial District Court seeking termination or modification of the workers’ [..¡compensation benefits awarded to Ms. Weller pursuant to .the February 13, 1979 judgment. The matter was tried on May 5, 1997, and judgment was signed on June 25, 1997. After concluding that Ms. Weller remained totally and permanently disabled, the trial court ordered LIGA to continue to pay $80.78 per week in disability benefits. The trial court further ordered LIGA to pay all travel expenses for treatment of Ms. Weller’s work-related injury, including past and future travel expenses. Additionally, the trial court ordered LIGA to pay for all unpaid chiropractic treatment rendered by Dr. Stanley Mouk.

Subsequently, LIGA filed an appeal of the June 25, 1997 judgment. On appeal, this court reversed the trial court’s finding that Ms. Weller was totally and permanently disabled and entitled to continued benefits. Weller v. Brown, 97-2155 (La.App. 1 Cir. 11/6/98), 724 So.2d 230, writ denied, 99-2872 (La.12/10/99), 751 So.2d 856.

On May 23, 2000, Ms. Weller filed a petition in the Nineteenth Judicial District Court seeking to nullify the June 25, 1997 judgment, alleging that the district court lacked subject matter jurisdiction to adjudicate the matter. Thereafter, on August 16, 2000, Ms. Weller filed a motion for summary judgment. Following a hearing on the motion, judgment was rendered vacating the June 25, 1997 judgment and dismissing LIGA’s petition, with prejudice, for lack of subject matter jurisdiction. This court affirmed. Weller v. Brown, 2001-0314 (La.App. 1 Cir. 3/28/02), 813 So.2d 635.

On January 22, 2003, Ms. Weller filed a disputed claim for compensation with the Office of Workers’ Compensation. On the same day, LIGA’s petition for modification or termination of disability status and benefits was filed. Ms. Weller answered the petition, and filed a | ¿reconventional demand requesting various medical and mileage expenses.

After a hearing, the workers’ compensation judge (WCJ) rendered judgment in favor of LIGA. The judgment, signed on June 16, 2006, held that Ms. Weller was “no longer disabled in any capacity as a result of the 1976 accident and all further benefits, including medical expenses [were] denied.” In addition, the judgment denied the claims sought by Ms. Weller in her reconventional demand. Costs were assessed to LIGA.

In oral reasons, the WCJ noted that, after considering all of the evidence, including the medical evidence, a surveillance videotape of Ms. Weller performing various physical activities, and Ms. Weller’s testimony and demeanor during the hearing, the WCJ found Ms. Weller not to be a credible witness. After again considering all of the evidence, and Ms. Weller’s lack of credibility, the WCJ found that LIGA had met its burden of proof and shown that Ms. Weller was no longer disabled due to the work injury, and denied the requested benefits and expenses. On the issue of medical payments for specific chiropractic treatments, the WCJ found that the services were not reasonable or medically necessary in relation to the work injury.

In her appeal, Ms. Weller assigned error to the findings that she “was no longer disabled as a result of her 1976 work accident,” and that the “chiropractic care and mileage expenses were not reasonable and necessary.” She essentially argues that she suffers from chronic pain syndrome, which stemmed from her work injury, and that the syndrome, coupled with other medical problems, makes it impossible for her to work. The appellant, LIGA, argues that Ms. Weller is not permanently and totally disabled, at present; but, alternatively, argues that if such a condition does | Sexist, the disability is not causally related to her 1976 employment-related injury.

ANALYSIS

A worker is totally disabled only if he cannot engage in any gainful occupation for wages. LSA-R.S. 23:1221(2)(a) & (c); Magee v. Abek, Inc., 2004-2554, pp. 5-6 & 11 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 807 & 811, writ denied, 2006-1876 (La.10/27/06), 939 So.2d 1287. A person who can engage in a gainful occupation is not totally disabled, even if such occupation is not the same or similar to his old occupation and even if it is not one for which he is particularly fitted by education, training, or experience. Magee, 2004-2554 at pp. 5-6 & 11, 934 So.2d at 807 & 811.

Ordinarily, the testimony of an employee’s treating physician should be afforded more weight than that of an examining physician. Johnson v. Travelers Insurance Co., 284 So.2d 888, 891 (La.1973); Graziano v. Lallie Kemp Charity Hospital, 400 So.2d 1164, 1165-66 (La.App. 1 Cir. 1981); McClendon v. Keith Hutchinson Logging, 96-2373, p. 11 (La.App. 1 Cir. 11/7/97); 702 So.2d 1164, 1172, unit denied, 97-2872 (La.2/13/98); 706 So.2d 995. Where the treating physician finds that the claimant can work, despite some restrictions, a worker’s compensation claimant is not entitled to benefits for permanent total disability. Spencer v. Gaylord Container Corp., 96-1230, p. 5 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 822.

However, the testimony of a specialist is entitled to greater weight when the subject at issue concerns the particular field of the specialist’s expertise. McClendon, 96-2373 at p. 11, 702 So.2d at 1172; see Graziano, 400 So.2d at 1165-66. The trier of fact is not bound to accept the testimony of an expert, even one whose testimony is presumptively given more weight, | fiif the trier of fact finds the opinion is less credible than that of other experts. McClendon, 96-2373 at pp. 11-12, 702 So.2d at 1172.

Over the years, Ms. Weller has been examined by numerous doctors, including psychologists, chiropractors, and several orthopedists, in an attempt to specifically assess the existence or level of any ongoing physical disability. The vast majority of the expert medical opinions, and all of the orthopedic specialists, overwhelmingly support the conclusion that Ms. Weller is no longer totally and permanently disabled from the 1976 injury • and that she can work with restrictions.

In addition, a surveillance tape contained in the record forcefully contradicts the level and degree of Ms. Weller’s complaints, including the degree of pain that she asserts. The surveillance video evinces Ms. Weller performing various daily activities, such as walking, carrying items, and bending, without visible signs of discomfort or physical limitations.

Dr. John Taylor Howe, Ms. Weller’s treating physician, was the only medical doctor to render a direct opinion that Ms. Weller continued to suffer from the com-pensable injury, and could not work, more probably than not, because of chronic pain triggered by the 1976 injury. Dr. Howe, who was trained in family practice and psychiatry, began treating Ms. Weller as her family medicine practitioner in 1978. He concluded that her illness is of both a physical and psychiatric nature. As to the psychiatric nature, he diagnosed Ms. Weller as having chronic pain syndrome, coupled with a personality disorder. However, when LIGA asked a hypothetical question based on Ms. Weller’s ability to perform certain physical activities, which corresponded to the activities observed on the surveillance tape, Dr. Howe testified by deposition that if Ms. Weller was able to perform those activities, she should be able to work. When asked a similar hypothetical question, her treating |7chiropractor, Dr. Sidney Mouk, responded in a like manner. Thus, Ms. Weller’s treating physician, as well as her treating chiropractor, albeit hypothetically, along with myriad expert specialists in a more direct fashion, agreed on the critical assessment that Ms. Weller could work on some level.

After considering all of the evidence, we find a supportable and reasonable basis for assigning greater weight to the opinion of the specialists and discounting the connections drawn by Dr. Howe between the 1976 injury and Ms. Weller’s continuing medical problems and complaints of pain. In addition, the- surveillance tape and the great majority of the medical evidence support the trial court’s credibility determinations and unquestionably indicate that Ms. Weller can work in some capacity. Therefore, we find that the WCJ was not manifestly erroneous and, based on the facts found by the WCJ, we find no error in the findings on disability status and benefits.

On the issue of payments for particular medical services, an injured employee is not entitled to recover for medical expenses where he or she fails to substantiate a claim. LSA-R.S. 23:1203 Starks v. Universal Life Insurance Company, 95-1003, p. 5 (La.App. 1 Cir. 12/15/95), 666 So.2d 387, 391, writ denied, 96-0113 (La.3/8/96), 669 So.2d 400; see LSA-R.S. 23:1203. Pursuant to LSA-R.S. 23:1203, the employee must prove that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Patterson v. Long, 96-0191, p. 11 (La.App. 1 Cir. 11/8/96), 682 So.2d 1327, 1334, writ denied, 96-2958 (La.2/7/97), 688 So.2d 499. The question of whether a claimant is entitled to medical benefits is ultimately a question of fact, and the WCJ’s resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Starks, 95-1003 at p. 5, 666 So.2d at 391.

|sDr. Howe, Ms. Weller’s treating physician, testified that the chiropractic treatments are probably helpful, but not medically necessary. Dr. Duval and Dr. Henning, both chiropractic physicians, testified that the chiropractic treatments rendered through many years by Dr. Mouk were not medically necessary to Ms. Weller beyond a relatively short period after the 1976 injury. Moreover, the chiropractic bill review performed at the request of LIGA reported the absence of evidence to substantiate the need for ongoing care following the first two weeks of care or that the treatments were medically necessary. Thus, based on our thorough review of the record, particularly the medical testimony cited here and in our discussion of permanent disability above, we find that the WCJ was not clearly wrong in denying the chiropractic care and mileage benefits.

CONCLUSION

For these reasons, we affirm the judgment. The costs of the appeal are assessed to plaintiff, LIGA.

AFFIRMED.


author: DOWNING, J.

text:
    STATE of Louisiana in the Interest of K.S.
    No. 2007 CJ 1045.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      Ersalee C. Unangst, Gonzales, LA, for Appellant, K.S.
    Anthony G. Falterman, District Attorney, Michael Poirrier, Donald D. Candell, Assistant District Attorneys, Gonzales, LA, for Appellee, State of Louisiana.
    John Gutierrez, Prairieville, LA, for Mother, L.S.
    Before PARRO, KUHN and DOWNING, JJ.
   DOWNING, J.

| ¡.This is an appeal on behalf of K.S., a minor child in need of care. The judgment appealed “continued” the child’s legal custody with the Louisiana Department of Public Safety and Corrections (DPSC), relieved the Office of Community Services (OCS) of legal custody and of any obligation to provide supervision for K.S., and ruled that OCS “[had] completed all possible services to [K.S.’s] family. For the following reasons, we reverse the judgment of the juvenile court. We enter orders accordingly.

PROCEDURAL HISTORY

K.S. is a sixteen-year-old child who, in 1999, at the age of eight, was adjudicated a child in need of care. The reason for such adjudication was the inability of KS.’s mother and his legal guardian (his great-grandmother) to supervise him and regulate his medication for a severe behavioral disorder. After the adjudication, despite continued reunification efforts by the OCS, his behavioral problems escalated, resulting in his routinely being removed and transferred to several different foster care group homes. The record reveals that K.S. was transferred to several facilities based on his aggressive, defiant, and disorderly conduct, including frequently running away from the homes in which he was placed. Because of his behavior, he remained in the continuous custody of the Louisiana Department of Social Services, Rfrom 1999 until through May 18, 2006, and his case purportedly closed on January 4, 2007, for reasons detailed below.

In May 2006, K.S. was residing at Christian Acres, a group home in Tallulah, Louisiana. He ran away from that facility on May 13, 2006 and did not return. On May 18, 2006, he was arrested and charged as an adult with attempted first-degree murder and armed robbery. He was detained at the Madison Parish Correctional Center to await trial.

In November 2006, the OCS recommended that KS.’s case plan be changed. OCS recommended that the case be closed, based on the charges against K.S. and the fact that he was currently incarcerated and awaiting a trial in which he would face the charges as an adult. An objection to the OCS’s recommendation was filed on KS.’s behalf, urging that closing the case would not be in KS.’s best interest, as it would leave him, at the age of fifteen, with no legal custodian. Moreover, K.S. argued that closing the ease was improper and in violation of the Children’s Code, as HS.’s temporary incarceration does not qualify as a permanent placement of a child in need of care as mandated by La. Ch.C. art. 603.

A review hearing was held on November 9, 2006, at which time the trial court heard arguments and took the matter under advisement, continuing the matter to December 14, 2006. On that date, the trial court gave extensive reasons for finding it appropriate to allow the OCS to close its case on K.S. A judgment was signed on January 4, 2007, ordering the 14child’s legal custody to continue with the DPSC and specifically decreeing that OCS be “relieved of any further legal custody or supervision” of K.S. The judgment further provided “that due to [K.S.]’s incarceration, the agency has completed all possible services to this family.”

This appeal on behalf of the minor child followed. K.S. contends the juvenile court committed reversible error in allowing his case to be closed without a permanency plan for him, in violation of La. Ch.C. art. 603. K.S. also asserts the juvenile court abused its discretion by allowingOCS to “ignore the needs of K.S. as his legal guardian” and “abandon K.S., leaving him an orphan with no plan for meeting his needs as a minor.”

BACKGROUND FACTS

The record reveals the following pertinent evidence regarding K.S.’s environment and his special needs that render him a child in need of care. When K.S. was eight years old, he was adjudicated a child in need of care based on his having a severe behavioral disorder and the fact that C.S., his legal guardian and great-grandmother, was unable to regulate his medicine or behavior. The record also contains evidence that KS.’s mother, L.S., was present sporadically in his life, often living with C.S. in her two-bedroom mobile home, together with L.S.’s other minor children, as well as C.S.’s other children, grandchildren, and great-grandchildren. At various times, K.S.’s mother was away with her boyfriend, leaving K.S. and her other children with C.S.

Initially, K.S. was placed in the VOA Parker House in Baton Rouge, and his case plan’s goal was reunification with his family. The OCS worked extensively with C.S. (and L.S., whenever she was available), providing them with in-home psychological studies, in-home parenting education and | ¡^support, monitoring KS.’s medical appointments and the administration of KS.’s medications, as well as providing transportation, and encouraging visitation with K.S. in order to meet the goal of reunification. However, insignificant progress was made, and KS.’s severe behavioral problems, including defiance, aggression, truancy, suspension from school, and running away worsened, causing him to be discharged and transferred to several foster facilities. In 2002, as a result of the insufficient progress made in C.S.’s ability to provide a stable, structured, and supervised environment, as well as the increasing severity of KS.’s aggressive behavior, described as “out of control” and “explosive,” the plan goal was changed from reunification to Alternative Permanent Living Arrangements (APLA). The last facility at which K.S. resided was Christian Acres in Tallulah, Louisiana. He escaped from that facility on May 13, 2006, and subsequently was arrested and charged with the pending charges that gave rise to the OCS proceedings to terminate its supervision of K.S.

DISCUSSION

Subject Matter Jurisdiction

We first review whether the juvenile court was divested of subject matter jurisdiction when K.S. was transferred for prosecution as an adult pursuant to La. Ch.C. art. 305. The appellee here, the State of Louisiana, argues that because of the transfer, K.S. is no longer subject to juvenile court jurisdiction.

| fiWhile there has been no exception raised challenging the juvenile court’s subject matter jurisdiction, we are required to consider the issue. It is the duty of a reviewing court to examine subject matter jurisdiction sua sponte. Whittenberg v. Whittenberg, 97-1424, pp. 2-3 (La.App. 1 Cir. 4/8/98), 710 So.2d 1157, 1158. “Whenever there is a serious issue regarding subject matter jurisdiction, a court (including an appellate court) should consider and rule on the issue at anytime, and the issue can even be raised by the court on its own motion.” Lowenburg v. Entergy New Orleans, Inc., 99-2894, p. 1 (La.12/17/99), 751 So.2d 868, 868 (Lemmon, J., concurring opinion).

The record does not reveal how the criminal charges against K.S. were transferred to the court exercising criminal jurisdiction, but it is undisputed that K.S. was transferred on charges of armed robbery and attempted murder. These offenses are transferable for criminal prosecution under La. Ch.C. art. 305 B(4) upon indictment or filing of a bill of information. This paragraph provides as follows:

If an indictment is returned or a bill of information is filed, the child is subject to the exclusive jurisdiction of the appropriate court exercising criminal jurisdiction for all subsequent procedures, including the review of bail applications, and the child shall be transferred forthwith to the appropriate adult facility for detention prior to his trial as an adult. (Emphasis added.)

The State argues that this language precludes the juvenile court from all jurisdiction in this matter, presumably even the jurisdiction to render the judgment at issue on appeal. The jurisdictional language found in La. Ch.C. art. 305, however, does not stand alone. Louisiana Children’s Code article 303 provides in pertinent part:

|7A court exercising juvenile jurisdiction shall have exclusive original jurisdiction over:
(1) Delinquency proceedings pursuant to Title VIII, except when a child either:
(a) Is subject to the jurisdiction of the criminal courts for prosecution and liability as an adult pursuant to Chapter 4 of this Title.
(b) Has been transferred by the juvenile court for criminal prosecution and liability as an adult pursuant to Chapter 11 of Title VIII.
(2) Child in need of care proceedings pursuant to Title VI. * * *
(Footnotes omitted.)

Since a juvenile court has exclusive original jurisdiction over child in need of care proceedings, such jurisdiction cannot transfer to a court exercising criminal jurisdiction. Further, there is no provision in law for the extinguishment of a child in need of care proceeding upon the transfer of jurisdiction over a juvenile’s delinquency charges to the criminal court for prosecution as an adult. Accordingly, we conclude that the “exclusive jurisdiction of the appropriate court exercising criminal jurisdiction” referenced under La. Ch.C. art. 305 extends only to jurisdiction over the criminal matter. Therefore, the juvenile court retained jurisdiction to consider the matter now on appeal.

Legal Custody

K.S. argues that the juvenile court erred in placing him in the custody of the DPSC. We agree. Such action is plainly contrary to law, despite the State’s argument that the juvenile court did not abuse its discretion. La. Ch.C. art. 681 B. provides as follows:

A child in need of care shall not be committed to the Department of Public Safety and Corrections, nor shall such department accept a child in need of care.

| sK.S. has been adjudicated a child in need of care. Therefore, the juvenile court is without authority to place him with the DPSC, and the DPSC is without authority to accept his legal custody. Accordingly, we will reverse the judgment of the juvenile court, including its provision placing legal custody of K.S. with the DPSC.

The State, OCS, and the juvenile court seem to suggest that K.S., an unemanci-pated minor, can live without a legal custodian. Yet they have cited no law, and we know of none, that allows an unemanci-pated minor to be without a legal custodian, even when, maybe especially when, he is charged with and is being held for prosecution on serious criminal charges.

OCS’s Supervision

K.S. also argues that the juvenile court erred in relieving OCS of its supervision of him without a permanent plan for him in accordance with La. Ch.C. art. 603(15). Because we are reversing the judgment of the juvenile court based on legal error, thus retaining custody of K.S. with OCS, we review this issue de novo. When a legal error skews the court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735.

lflHere, OCS has determined that it is not in the K.S.’s best interest for him to be returned to his great-grandmother’s custody. The record reveals no other potential custodian. Therefore, we conclude that it is in K.S.’s best interest to remain in the custody of OCS, pending further legally mandated review.

Further, while OCS argues that it can provide no further services for K.S., we observe that K.S. is presently only charged with a crime. He is presumed innocent, and he may be absolved of the crimes charged. Accordingly, we disagree with OCS that it has completed all possible services to K.S. Accordingly, we conclude that while OCS’s ability to provide services may be severely curtailed while K.S. remains incarcerated, he still needs and is entitled to supervision by OCS. Perhaps services exist that OCS can provide to assist K.S. while he is incarcerated. OCS could perhaps facilitate contact between K.S. and his family and caretakers.

Additionally, we see no prejudice or harm to OCS in requiring it to continue supervision under regular court review as provided by law.

Therefore, in accordance with La. Ch.C. art. 700 A(2), we find that the case plan is not appropriate insofar as it recommends that the case be closed. We order OCS to revise the case plan accordingly.

DECREE

For the foregoing reasons, we reverse the judgment of the juvenile court. Further, we conclude that the case plan developed by OCS is inappropriate in recommending that its case in this matter be closed. We order OCS to revise its case plan to comport with this decision, subject to further review as required by law. Costs of this appeal are assessed to the State of Louisiana, Department of Social Services, Office of Community linServices, in the amount of One Hundred Nineteen and 50/100 Dollars ($119.50).

REVERSED WITH ORDER.

      . The judgment actually places K.S. in the custody of the "Department of Corrections,” an incorrect designation. See La. R.S. 36:401 et seq. and particularly, La. R.S. 36:409 F(6).

      . The record reveals the following chronology: K.S. was initially placed in a foster home. After one week, on November 17, 1999, he was placed in the VOA Parker House and was soon transferred to Riverside Residential Center. In October 2000, he was transferred to Hope Youth Ranch after Riverside found his behavior to be a danger to himself and others. (The record indicates that five other facilities contacted refused to take K.S. based on his history of delinquent behavior in other facilities.) He spent some time after this at the Boys Sanctuary, and in September 2002, he was transferred to Bethlehem Children’s Treatment Center based on his uncooperative and disruptive behavior. His behavior continued to worsen, and he was moved to Hope Haven Group Home in October 2004. In May 2005, he was placed at Challenge and Development Center, and in December 2005, he was transferred to Christian Acres, where he remained until he ran away and did not return in May 2006. (We also note that the chronology and history of housing for K.S. while in the custody of the OCS as presented in briefs on appeal differs slightly and appears to be more complete than the information provided by the record. We are limited in our review to the contents of the record. However, because the exact chronology of K.S.’s housing throughout the years is not pertinent to the issues raised on appeal, these minor discrepancies are inconsequential.)

      . The OCS worked with K.S. and his family toward the goal of reunification from 1999 to 2002, with no changes in the family situation and with K.S.'s behavioral problems escalating. In 2002, the goal for K.S. was changed to the Alternative Permanent Living Arrangement.

      . The record reveals that K.S. allegedly shot a 91-year-old woman in the hip and in the head, and that he confessed to the shooting and led police to where he had placed the weapon (gun) used in the offenses.

      . The judgment recites that the matters before the court were reviews under LA. Ch.C. art. 692 and 702. La. Ch.C. art. 692 requires case reviews at least once every six months until a child is permanently placed. La. Ch.C. art. 702 requires a permanency review at least once every twelve months until a child is permanently placed.

      . The record also reveals that K.S.’s biological father is unknown, as is the location of his stepfather. The whereabouts of his grandmother were not mentioned at all throughout the record.

      . The record reveals that although C.S., K.S.’s legal guardian and great-grandmother, attempted to cooperate with the services provided and meet the scheduled visitations with K.S., her participation in the program and ability to provide an environment to meet K.S.’s needs deteriorated over time. The record reveals that K.S.’s mother continued to move from place to place and could not be found. She eventually had another child, born with meningitis, and was back living with C.S. in her two-bedroom trailer together with eight to ten other children, grandchildren and great-grandchildren. In 2004, L.S. was expecting yet another child.

      .In the present context, "juvenile court” means the parish court "when exercising juvenile jurisdiction.” See La. Ch.C arts. 418 and 116(4) & (9).

      . The State argues in brief that by being transferred to criminal court for prosecution as an adult, K.S. can otherwise be treated as an adult. OCS proposed closing K.S.’s case without proposing legal custody. Among other things, the juvenile court remarked regarding K.S.'s legal custody: "[B]y his being incarcerated ..., all my concerns about who has him and does he have a place to lay his head, those don't exist anymore.... He is not left in limbo. He is in a correctional facility."

      . This paragraph provides:
      "Permanent placement” means:
      (a) Return of the legal custody of a child to his parent(s).
      (b) Placement of the child with adoptive parents pursuant to a final decree of adoption.
      (c) Placement of the child with a legal guardian.

      .A legal error occurs when a court applies incorrect principles of law and such error is prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 97-0541, p. 7 (La.2/6/98), 708 So.2d 731, 735.


author: GUIDRY, J. WHIPPLE, J.,

text:
    Mark A. HERMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2007 CA 0548.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      Christopher B. Siegrist, Patrick H. Yan-cey, Houma, LA, for Plaintiff/Appellant, Mark A. Herman.
    G. Bruce Parkerson, Glenn S. New-bauer, New Orleans, LA, for Defendant/Appellee, The Times-Picayune, L.L.C.
    Maurice Mathieu, Houma, LA, Pamela Richard, New Orleans, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    Herman Bastían, Jr., Thomas Barnett, New Orleans, LA, for Defendants/Appel-lees, AIG Insurance and John Ross.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

UThis is an appeal by the plaintiff, Mark A. Herman (Herman), from a judgment maintaining the peremptory exception raising the objection of prescription in favor of The Times-Picayune, L.L.C. (Times-Picayune) and its unnamed insurer, and dismissing the plaintiffs claim against them. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Herman, was injured as a result of an accident that occurred on June 16, 2001, between the motorcycle he was driving and a vehicle with an attached flatbed trailer being driven by J.H. Ross (Ross). It is undisputed that the accident was caused by Ross’s negligence in failing to yield and pulling out into the path of Herman’s motorcycle. Ross was insured by an automobile liability policy issued by AIG National Insurance; Company (AIG), with policy limits of $100,000.00 per person.

On June 14, 2002, Herman settled his claims against Ross and AIG and executed a release of any and all claims against them as well as “any and all other persons” for any damages arising out of said accident. To preserve his claims against his uninsured motorist carrier, Herman predicated his execution of the release on Ross providing a sworn affidavit attesting that he, Ross, had no other insurance coverage or other source of funds or assets to apply toward any damage owed to Herman as a result of the accident. Ross’s affidavit was signed on June 13; Herman executed the release the next day, on June 14, 2002. Herman was unrepresented by counsel during these settlement negotiations; rather, he relied on information provided and assurances made by the insurance adjuster and the tortfeasor.

|s0n June 6, 2003, Herman, represented by counsel, filed a petition for damages against State Farm Mutual Automobile Insurance Company (State Farm), asserting his claims for excess damages arising out of the accident under his uninsured motorist policy with State Farm. During the course of discovery in that suit, Ross was deposed, and it was revealed that he was employed by the Times-Picayune, and he may have been in the course and scope of that employment at the time of the accident.

Based on this information, on April 15, 2005, State Farm filed a supplemental answer to Herman’s Petition, asserting that Ross was acting in the course and scope of his employment at the time of the accident; therefore, it would be entitled to full credit for the assessment and payment of any damages from the Times-Picayune and its automobile liability insurer. Herman responded with a First Supplemental and Amending. Petition, filed on May 31, 2005, adding as defendants Ross, AIG, the Times-Picayune, and ABC Insurance Company, for the then unknown insurer for the Times-Picayune. This supplemental petition alleged that Herman had settled with Ross and AIG based on an affidavit from Ross that there was no other insurance coverage for the accident at issue, giving rise to Herman’s action against his UM insurer, State Farm. The petition also asserted facts that indicated, contrary to the affidavit, that Ross may have been in the course and scope of his employment at the time of the accident, which if proven, would trigger liability and coverage under the Times-Picayune’s automobile insurance policy.

On November 14, 2005, the Times-Picayune filed a peremptory exception raising the objection of prescription on the grounds that Herman |4did not file suit against the original tortfeasor, Ross, or his employer, the Times-Picayune, within the one-year prescriptive period applicable; and, his suit filed against his UM insurer within the two-year applicable prescriptive period did not interrupt prescription against the Times-Picayune. The exception also raised the objection of res judica-ta on the grounds that the release executed by Herman releasing Ross, AIG, and “any and all other parties” operated in favor of the Times-Picayune, barring Herman’s claims against it. On April 26, 2006, two days before the hearing set on the Times-Picayune’s exceptions, Ross and AIG filed their own exceptions of prescription and res judicata adopting and asserting, by way of incorporation, the arguments made by the Times-Picayune in support thereof.

On February 10, 2006, the Times-Picayune additionally filed a motion for summary judgment asserting that the uncontested facts established that Ross was not acting in the course and scope of his employment at the time of the accident, that there were no genuine issues of material fact, and that it was entitled to judgment as a matter of law. The Times-Picayune requested the motion for summary judgment be heard in conjunction with its previously filed exceptions.

On March 10, 2006, State Farm filed a cross motion for summary judgment, asserting that Ross was acting in the course and scope of his employment at the time of the accident, that there were no genuine issues of material fact, and that it was entitled to judgment as a matter of law. The cross motion was set for hearing on the same date as the earlier filed exceptions and motion for summary judgment on behalf of the Times-Picayune.

|sOn March 15, 2006, Herman filed a memorandum in opposition to the Times-Picayune’s exceptions of prescription and res judicata. Regarding the exception of prescription, Herman claims entitlement to the contra non valentem suspension of the one-year prescriptive period, in particular the fourth category recognized by our jurisprudence: where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Herman claimed that he executed a release predicated on assurances by Ross (and AIG’s insurance adjuster, Karen Delhardt) that there was no other insurance coverage for his damages. He further asserted that his reliance on Ross’s affidavit to that effect was reasonable, and that the possibility of coverage through Ross’s employer was a cause of action not known, nor reasonably knowable to him, based on the affidavit by Ross declaring that none existed. According to Herman, “Ross’[s] sworn affidavit should be reason enough for anyone to foreclose further investigation as to whether TP or anyone else was potentially liable: for Herman’s damages.” Notably, Herman cites no authority for this conclusive assertion.

A hearing on the exceptions filed by the Times-Picayune, Ross, and AIG, as well as on the Times-Pieayune’s summary judgment motion and State Farm’s cross motion for summary judgment, was held on April 28, 2006. On May 11, 2006, the trial court rendered judgment maintaining the exception of prescription filed by the Times-Picayune and dismissing the plaintiffs claims against it. The trial court further found there was no just reason for delay and designated the judgment as final for purposes of appeal pursuant to La. C.C.P. art. 1915(B)(1). On May 15, 2006, the trial court rendered judgment denying both the motion and cross motion for summary judgment, finding genuine issues of material fact remain concerning whether | (¡Ross was acting in the course and scope of his employment at the time of the accident. And on May 22, 2006, the trial court rendered judgment denying the exceptions of prescription and res judicata filed by Ross and AIG.

On June 5, 2006, Herman filed a motion for new trial on the Times-Picayune’s exception of prescription, which was denied by the trial court on July 20, 2006. This appeal of that judgment by Herman followed.

CONTRA NON VALENTEM

Herman assigns error to the trial court’s failure to apply the fourth factor of contra non valentem to excuse the running of prescription against Herman and in finding his claims against the Times-Picayune and its insurer prescribed. Herman asserts that prescription did not begin to run on his potential claims against the Times-Picayune pursuant to the fourth jurisprudential factor allowing the application of the doctrine, known as the; “discovery rule”: “where the cause of action is not known or reasonably knowable to the plaintiff, even though his ignorance is not induced by the defendant.” In support of the application of contra non valentem, Herman asserts that it was reasonable of him to rely on the information provided and representations made to him by both Ross, the original tortfeasor, and the AIG claims adjuster, to the effect that there was no other source of insurance coverage available to Ross. Based on his reliance on the affidavit, Herman asserts it was not known or knowable to him that Ross may have been in the course and scope of employment at the time of the accident and that there may be other insurers against which to proceed. According to Herman, the information regarding the possibility of insurance coverage through Ross’s employer was not known to him until certain facts were disclosed during 17Ross’s deposition taken as part of discovery in his suit against State Farm. For the following reasons, we must reject this argument because under the particular facts and circumstances of this case, and the applicable jurisprudence, it has no merit.

The doctrine of contra non va-lentem is exceedingly stringent and applies only in “exceptional circumstances.” La. C.C. art. 3467, Official Revision Comment (d); Eastin v. Entergy Corporation, 03-1030, p. 7 (La.2/6/04), 865 So.2d 49, 55; Renfroe v. State ex rel. Dept. of Transportation and Development, 01-1646, p. 9 (La.2/26/02), 809 So.2d 947, 953. Moreover, the doctrine will not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned. Id., citing Corsey v. State of Louisiana, Through the Department of Corrections, 375 So.2d 1319, 1322 (La.1979).

APPLICABLE JURISPRUDENCE

In Renfroe, the plaintiff filed a wrongful death suit against DOTD arising out of an accident resulting in his wife’s" death, which occurred on Causeway Boulevard. Plaintiff sued DOTD as defendant based on signs along parts of the Causeway Boulevard designating it as a state highway (LA 3046); and also because the accident was investigated by the State Police. However, it was discovered in a Motion for Summary Judgment filed by DOTD, that it was not the proper owner or responsible party for any alleged defects in the portion of the roadway where the accident occurred. The plaintiff responded with a supplemental and amending petition naming as defendants the proper owners of the portion of Causeway Boulevard where the accident occurred, Road District No. 1 (of the Parish of Jefferson) and the Greater New Orleans Expressway Commission (GNOEC). The trial |scourt denied the newly named defendants’ exception of prescription, and the court of appeal affirmed. The Supreme Court reversed, rejecting the .plaintiffs assertion of contra non va-lentem, finding that plaintiff did not exercise the requisite reasonable diligence in ascertaining the- identity of the proper owners of the roadway at issue. The Court simply stated, “[w]hile it is indeed unusual that different unrelated parties would own and maintain different portions of one roadway, the fact that the portion of the roadway was owned by some party other [than] the DOTD was ‘reasonably knowable’ by the plaintiff within the prescriptive period.” Renfroe, 01-1646 at p. 10, 809 So.2d at 954. Implicit in the Court’s holding is a finding that the plaintiffs reliance on the roadway signs indicating state ownership and the fact that the accident was investigated by the State Police did not meet, the requisite due diligence required of plaintiffs in filing suit timely against the proper defendants.

Two other eases in our jurisprudence are particularly instructive because of the similarity of facts and circumstances under which the applicability of the contra non valentem doctrine was analyzed. The case of Bell v. Kreider, 03-300 (La.App. 5th Cir.9/16/03), 858 So.2d 58, writ denied, 03-2875 (La.1/9/04), 862 So.2d 986, involved an automobile accident that also occurred on the Greater New Orleans Expressway, more commonly known as the “causeway bridge,” on which traffic had been restricted to the right hand lane of travel due to foggy weather conditions. Notwithstanding the closure of the left hand lane, New Orleans police officer Karl M. Kreider, who was off-duty and driving a privately owned vehicle, had requested and received permission from a GNOEC policeman, Officer Brock, to use the left lane of travel. The accident occurred between plaintiffs’ vehicle and Officer Kreider’s vehicle in the left hand lane when |9the plaintiffs attempted to veer into the emergency crossover to the left hand lane because of malfunctioning windshield wipers. Plaintiffs filed suit for their damages originally naming as defendants Kreider, Desiree Gau-det, the owner of the vehicle being driven by Kreider, and the insurer of that vehicle, Allstate Insurance Company. Almost four years after the original petitions were filed, the plaintiffs amended to name as additional defendants the GNOEC, its director, and Officer Brock. Exceptions of prescription filed by both GNOEC and Officer Brock were sustained. The plaintiffs appealed urging the application of the discovery rule of contra non valentem. As in the case before us, the plaintiffs in Bell claimed that they were unaware of the possibility of claims against the GNOEC and Officer Brock until facts suggesting their potential liability and potential causes of action were revealed in a deposition of Sgt. Mike Viola, the ranking supervisor with the GNOEC on the date of the- accident. The plaintiffs claimed that prescription was suspended until Sgt. Viola’s deposition made them aware of potential causes of action against GNOEC and Officer Brock.

The court rejected plaintiffs’ claims and found the discovery rule of the contra non valentem doctrine inapplicable. Noting that the plaintiffs could have themselves deposed Sgt. Viola prior to the running of prescription, the court held:

[W]e find that plaintiffs in this case failed to use reasonable diligence in pursuing possible claims against Officer Brock and the GNOEC. Nothing in the record suggests that plaintiffs were unduly prevented from obtaining and verifying information as to the GNOEC policies and procedures. Nothing in the record suggests that plaintiffs [were] prevented from investigating whether Officer John Brock had violated said policies and procedures in permitting an off duty police officer to drive a privately owned vehicle in the restricted lane of travel.

Bell 03-300, at pp. 7-8, 858 So.2d at 62-63. The court relied on its earlier decision in Drake v. Sarpy Properties, Inc., 01-1323(La.App. 5th Cir.4/10/02), 817 So.2d 209, writ denied, 02-1339 (La.9/13/02), 824 So.2d 1170, the other case we have found that is most similar to the facts and circumstances presented in this appeal, in which the court held that reliance on misinformation, standing alone, does not satisfy the reasonable due diligence requirement for the application of the discovery rule of contra non valentem.

In Drake, the plaintiff sustained injuries when he stepped into a hole in a shopping center parking lot. He retained counsel who contacted the Jefferson Parish Assessor’s Office by telephone to obtain the identity of the owner of the shopping center. Erroneous information was provided to plaintiffs counsel by the Assessor’s Office, and as a result, the plaintiff sued the wrong property owner. In opposition to the exception of prescription filed by the correct property owner, who was named a defendant by amending petition filed more than one year after the accident, the plaintiff claimed that it was reasonable to rely on the information provided by the Assessor’s office, and that this exercise of due diligence was sufficient to invoke the fourth category of the contra non valen-tón doctrine. The court: rejected the plaintiffs argument, finding that due diligence was not exercised in obtaining the true identity of the' defendant, which as noted by the court, notwithstanding the incorrect information provided by the public servant, was information that was readily available and could have been confirmed or verified by the plaintiff by simply obtaining a written record from the Assessor’s office. Drake, 01-1323 at pp. 7-8, 817 So.2d at 213.

ANALYSIS

In the present case, as in Drake, the plaintiff, Herman, relied on misinformation in determining the parties against whom he had a cause of action for damages sustained in the accident. In this case, unlike Drake, the |, information was not provided by a third-party agency that retains and provides such information to the public, but was provided to Herman by the tortfeasor, Ross, and the insurance adjuster for Ross’s insurer. We question outright the diligence exercised in relying on information provided by a tortfeasor and his insurer, as they can be considered one’s “adversaries” when liability is alleged and damages are claimed. However, we need not stop there in our analysis in assessing Herman’s diligence in flatly relying on Ross’s statement that no other insurance coverage was available. The record reveals that at no time did Herman inquire whether Ross was employed and by whom. While we believe this inquiry is not too onerous to expect of a layperson, especially an educated plaintiff like Herman, a chiropractor, we again need not rest our analysis on this fact alone. In this case, the record also reveals that at the time of the accident, Ross was driving a vehicle pulling a flatbed trailer on which a Times-Picayune newspaper vending machine was clearly visible. Indeed, Herman admitted in his deposition that he saw the vehicle, the trailer and the Times-Picayune vending machine both prior to and after the accident.

We find these circumstances sufficient to incite reasonable inquiry from the average layperson regarding the employment status of the tortfeasor. Indeed, we can think of no other reason a person would be driving around visibly transporting a Times-Picayune machine without having some connexity with the Times-Picayune. At the very least, these facts are sufficient to reasonably incite such inquiry about Ross’s employment, particularly in consideration of potential liability and coverage for damages and injuries sustained in the accident.

Finally, we note that the release executed by Herman, after obtaining the affidavit from Ross, contains express language releasing “any other party l^or parties” who may be liable, language we believe is also sufficient to put him on notice that other parties may indeed be liable and that further investigation is warranted for the exercise of reasonable due diligence.

Given all these facts and circumstances, and considering similar jurisprudence, we find the trial court did not err in sustaining the exception of prescription and implicitly rejecting plaintiffs assertion of the discovery rule exception of contra non va-lentem.

INTERRUPTION OF PRESCRIPTION

Herman also asserts that the trial court erred in sustaining the exception of prescription, while at the same time finding a genuine issue of material fact regarding whether Ross was in the course and scope of his employment with the Times-Picayune at. the time of the accident. According; to Herman, if Ross is later determined to have been acting in the course and scope of his employment with the Times-Picayune, this would give rise to solidary liability between Ross and the Times-Picayune, rendering the running of prescription against the Times-Picayune interrupted. While the plaintiff correctly asserts the potential solidarity that may subsequently exist in this matter, its claim that this fact alone serves to interrupt prescription against the Times-Picayune has no merit under the circumstances of this case. The faultiness in plaintiffs argument lies in his failure to recognize that no suit was filed against any of the original tortfeasors, including Ross, within the one-year prescriptive period applicable to those claims. Herman's suit was filed almost two years after the accident. While Herman’s suit was timely filed against a UM insurer pursuant to the two-year prescriptive period provided in La. R.S. 9:5629, no action was filed within the one-year prescriptive period applicable to any other tort-feasor or liable party.

_[i2Our supreme court has held that an otherwise timely action against one soli-dary obligor cannot revive an action already extinguished by prescription. In Rizer v. American Surety and Fidelity Ins. Co., 95-1200 (La.3/8/96), 669 So.2d 387, the Court held:

Once prescription extinguishes a cause of action, a subsequent timely suit against a solidary obligor cannot revive the already prescribed action. “Once prescription occurs, it cannot be interrupted. Timely suit against one solidary obligor does not interrupt prescription that has run against another solidary obligor.”

Rizer, 95-1200 at p. 6, 669 So.2d at 390-91 (citations omitted).

In this case, Herman is relying on his action against Ross and AIG to interrupt prescription against the Times-Picayune, a solidary obligor if Ross is found to have been in the course and scope of his employment. This argument fails because there was no tort action asserted against Ross and AIG within the one-year prescriptive period. In fact, there has never been a tort action filed against Ross and AIG. That claim was settled. The; amended petition adding Ross and AIG as defendants is an action against them to annul the release executed by Herman on the basis of alleged error or misrepresentation. This is not the obligation for which the Times-Picayune would allegedly be solidarily liable. Therefore, even if that action was timely filed against Ross and AIG, it is not the action that would interrupt prescription against the Times-Picayune. The action that may have interrupted prescription against the Times-Picayune would have to be a tort action for damages arising out of the same facts and circumstances upon which Herman claims a suspension of prescription, and it would have to have been filed within one year from the date of the accident. The record reveals that neither was done. Accordingly, this argument lacks merit.

^CONCLUSION

For all the foregoing reasons, we find the trial court did not err in maintaining the Exception of Prescription in favor of the Times-Picayune and dismissing the plaintiffs action against it. Accordingly, that judgment is affirmed. Plaintiff, Mark Herman, is assessed all costs of this appeal.

AFFIRMED.

WHIPPLE, J., concurs for reasons assigned.

WHIPPLE, J.,

concurring.

hi disagree with the majority’s statement that a plaintiff who goes to the trouble of obtaining a sworn affidavit is not entitled to rely on that affidavit or that any error in such is wholly chargeable to the plaintiff and operates solely to his detriment. Pretermitting whether Ross or his adjuster misled plaintiff herein, I agree that the plaintiffs admission that he saw the vending machine being transported precludes the application of the doctrine of contra non valentem against the Times-Picayune.

Moreover, although I must reluctantly agree with the ultimate result reached herein vis-a-vis any claims by plaintiff against the Times-Picayune, I disagree with the majority’s reliance upon the boiler-plate language found in the release (prepared by AIG) as somehow providing notice to plaintiff that others were or could be liable. As the majority correctly notes, our holding herein does not address any claims plaintiff may have for damages against Ross and AIG arising from the execution of the release.

      . The petition erroneously states the accident occurred on June 16, 2002; however, throughout the rest of the record, June 16, 2001, is established as the date of the accident.

      . Although filed almost two years after the accident, this petition against State Farm, Herman’s contractual UM insurer, was timely filed pursuant to the two-year prescriptive period applicable to actions brought under uninsured motorist provisions, pursuant to La. R.S. 9:5629.

      . We note that the record also contains another separate but identical judgment denying those exceptions; however, this judgment is signed and dated May 30, 2006. Because that judgment has no effect or impact on this appeal, that inexplicable discrepancy in the record is inconsequential.