author: ROLAND L. BELSOME, Judge. MURRAY, J., CANNIZZARO, J.,

text:
    Joe DOE, Mary Doe and Oscar C. Russell, Jr. v. ABC CORPORATION, DEF Corporation, XYZ Corporation, and Hibernia Corporation. Charles J. Shaw, Jr. v. Hibernia National Bank and Hibernia Corporation John Doe, Mary Doe and Oscar C. Russell, Jr. v. ABC Corporation, DEF Corporation, XYZ Corporation, and Hibernia Corporation.
    Nos. 2004-CA-1806, 2004-CA-1807, 2005-CA-0292.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 2007.

      Scott R. Bickford, Christopher H. Sherwood, Martzell & Bickford, New Orleans, LA, for Plaintiff/Appellee, Oscar C. Russell, Jr.
    William C. Gambel, Milling Benson Woodward L.L.P., New Orleans, LA, for Plaintiff/Appellee, Charles J. Shaw.
    Roy C. Cheatwood, Kent A. Lambert, Baker Donelson Bearman Caldwell & Ber-kowitz, PC, New Orleans, LA, for Defendants/Appellees, Hibernia Corporation and Hibernia National Bank.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Plaintiffs/appellants, Oscar Russell and Charles Shaw, appeal the trial court’s grant of Hibernia Bank and Hibernia Corporation’s motion for summary judgment. The trial court granted defendants’ motion and dismissed plaintiffs’ suit on the grounds that plaintiffs’ claims constituted an impermissible collateral attack on a federal agency’s prior ruling, which lies outside the jurisdiction of that court.

FACTS

Oscar Russell and Charles Shaw are former executive officers of Hibernia National Bank (“the Bank”). Russell and Shaw signed employment agreements (“Employment Agreements”) with the Bank and the Hibernia Corporation (“the Corporation”), a bank holding company. The Employment Agreements included generous severance packages, or “golden parachutes,” that would be paid if the officers were dismissed without cause. The Employment Agreements are the subject of the current dispute.

Shaw joined the Bank in 1973 and was elected to the Bank Board in 1985. He became Bank President and was elected to the Corporate Board in 1988, and he received a generous employment agreement. The Executive Compensation Committee of the Board set the terms of the contract. His contract was for a three |2year term and provided that in the event of termination, actual or constructive, without cause, or due to change in control, he would be entitled to “a golden parachute,” i.e. the balance of the amount due for the remaining term of his contract.

Oscar Russell also received a similar contract. Russell was a vice-chairman of the Corporation and the Bank, and his job was to oversee the operational side of the Bank.

In 1991, the Office of the Comptroller of the Currency (“the OCC”), the regulatory body that oversees national banks, began investigating the Bank for what it perceived to be unsound banking practices. The OCC District Administrator, John Bodnar, began to review the validity of the Employment Agreements. On June 3, 1991, in a letter to the Bank’s executive officers, Bodnar declared that the Employment Agreements violated national banking laws and ordered the Bank to rescind the contracts. Specifically, Mr. Bodnar determined that the contracts violated 12 U.S.C. § 24, Fifth, which mandates that banks must be allowed to fire officers at their pleasure.

Bodnar declared the Employment Agreements invalid in a letter to the Hibernia Bank Board of Directors dated June 3, 1991 (“the Bodnar Letter”). Bod-nar determined that the Employment Agreements prohibited “the removal of the executive officers except for cause, thereby curtailing the statutory right of the Bank’s Board to hire and fire executive officers at will,” in violation of 12 U.S.C. § 24, Fifth. Bodnar also determined that the Employment Agreements violated many federal regulations. 12 C.F.R. § 7.5220 permits national banks to enter into | aemployment contracts so long as they contain “reasonable terms and conditions.” The “golden parachute” provisions violated this regulation according to the Bodnar Letter because they were “not consistent with national banking laws, thus they are per se unreasonable.” The Employment Agreements were also found to violate federal regulations governing profit sharing plans, pension plans, stock options, and indemnification of officers for costs associated with regulatory investigations.

On June 13, 1991, the OCC sent a letter to Shaw informing him that his contract was invalid. These two letters are collectively known as the “Bodnar Letters.” Soon after the arrival of the Bodnar Letters, both Russell and Shaw signed Termination Agreements. On July 20, 1991, Shaw and Russell signed a letter (“the Termination Agreement”) indicating that they were voluntarily resigning on July 31, 1991, and that they were accepting severance benefits limited to six-months salary and miscellaneous other benefits.

All parties disagree about the significance of the OCC directives contained in the Bodnar Letters. Shaw and Russell contend the directives in the Bodnar Letters were merely recommendations from the OCC that could have been appealed or disobeyed without consequence. Hibernia Bank and Hibernia Corporation contend that the directives were final agency action that can only be appealed in federal court, and that it had no choice but to obey the OCC’s orders to rescind the contracts.

Shaw and Russell further contend that the OCC determinations were clearly incorrect, that they were the product of the Bank Board’s surreptitious advocacy to have the contracts deemed unenforceable, and that the Board should have appealed the corresponding directives on their behalf. For these reasons, Shaw and Russell |4now claim that they signed the Termination Agreements out of mistake, since both parties believed the Employment Agreements were invalid when they actually were valid. Alternatively, they claim that they signed away their rights to substantial severance pay as the result of fraud and duress. Either way, they seek to rescind the Termination Agreements and to enforce the Employment Agreements.

PROCEDURAL HISTORY

In May of 1994, Russell filed suit against the Corporation, claiming improper rescission and breach of his employment agreement, and seeking liquidated damages. On July 22, 1996, Shaw filed a similar suit against the Corporation and the Bank. The suits were filed in the Civil District Court for the Parish of Orleans, and because the factual circumstances of both cases were nearly identical, the cases were consolidated for purposes of discovery. The cases were removed to federal court by the defendants on August 20, 1996, but remanded to state court on October 10, 1996. On May 11, 1999, Hibernia filed and was granted a motion for summary judgment on the grounds the Termination Agreement was valid and there were no genuine issues of material fact. This court reversed the trial court, holding that granting the motion for summary judgment was premature, and remanded the case for additional discovery.

On January 21, 2004, defendants filed another motion for summary judgment seeking a determination that Bodnar’s Letters of June 3 and June 13, 1991 were “final agency action” and that Shaw and Russell’s suits were an impermissible “collateral attack” on those rulings. Shaw opposed and filed his cross motion for summary judgment claiming that the Bod-nar Letters were mere |s“moral suasion,” not final agency action, and seeking a determination of the legal effect of the Termination Agreement or its rescission under Louisiana state law. The court below granted the defendants’ motion and denied plaintiffs’ cross motion.

In the trial court’s own words:

It is undisputed that the district administrator of the Office of the Comptroller of the Currency ordered that the contract be terminated and rescinded as unlawful ...
Reviewing the Plaintiffs statement of contested facts in opposition to Defendant’s motion for summary judgment shows that Plaintiff challenges the appropriateness of the OCC determination. A successful challenge of the OCC’s ruling is necessary to render Plaintiff relief he seeks.
This Court agrees with Defendant that Plaintiffs claim constitutes an impermissible collateral attack on a prior order of a federal agency, which lies outside the jurisdiction of this Court.

Plaintiffs’ appeal is now before us.

ASSIGNMENTS OF ERROR

The parties assert the following errors by the Court below: the district court erred in granting Summary Judgment on the holding that the Bodnar Letters were final agency OCC action and Shaw’s suit an impermissible collateral attack on a pri- or Agency’s ruling; further, the district court erred in denying Shaw’s Cross Motion for Summary Judgment and in failing to hold that the Bodnar Letters were mere “moral suasion,” not final agency action, and that Shaw’s suit merely seeks to determine the legal effect of the Termination Letter.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria that governs the trial court’s consideration of whether summary judgment is | ^appropriate. Richard v. Hall, 2003-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137. Summary judgment shall be rendered if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La.Code Civ. Pro. art. 966(B).

A summary judgment shall be rendered forthwith 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 a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/18/96), 684 So.2d 488, 490.

LAW AND ANALYSIS

Shaw claims that the collateral attack rule, which bars preemptive attempts to bypass the specific methods Congress has provided for reviewing agency action, is not implicated here, and does not preclude state law actions respecting contracts however much they may have been influenced by the opinions of employees of federal agencies. Shaw also argues that the OCC only takes final agency action when it issues a notice of charges and fixes a date for formal hearing to determine whether a cease and desist order should issue, thus the Bodnar Letters were not final agency action.

Suits against third parties are impermissible collateral attacks where the heart of the suit necessitates an attack on agency decision. We believe this case is analogous to Caribou Four Corners, Inc. v. American Oil Co., 628 F.Supp. 363, 371-72 (D.Utah 1985). The court in Caribou held that a suit by private oil |7refinery against other participants in Department of Energy’s entitlements program was actually a premature challenge to agency action, despite being based upon various state common-law theories, and could not be maintained without exhaustion of administrative remedies. Caribou, 628 F.Supp. at 373. Here, if appellants were allowed to sue to enforce a contract deemed illegal by the Bank’s supervising agency, it would allow them to challenge the OCC’s determination without exhausting the appropriate federal remedies.

It is settled “that Congress, acting within its constitutional powers, may prescribe the procedures and conditions under which, and the courts in which, judicial review of administrative orders may be had.” City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). The United States Congress granted a limited waiver of sovereign immunity in the Administrative Procedures Act, 5 U.S.C. § 701 et seq., specifically allowing direct judicial review of federal agency actions. The APA vests exclusive subject matter jurisdiction over these matters to the federal courts.

Pursuant to the APA, any person “adversely affected or aggrieved” by “final action” of a federal agency may challenge that action in federal court in accordance with the procedures set forth in the act.

There is evidence that the Bodnar Letters may not have been final agency action. However, if they were not final agency action, there were review mechanisms available through the OCC itself. Thus, no matter how the Bodnar Letters are ultimately characterized (i.e., “final,” or “not final”), a state court does not have subject matter jurisdiction to review the appropriateness of the determination contained in those letters.

| sRussell and Shaw point out that many state courts since 1990 have agreed that the National Banking Act does not serve as a bar to the enforcement of severance provisions of employment agreements between banks and their executives. Courts in several states have upheld the validity of the severance pay provisions contained in employment agreements between executive banking officers and their employers, and found them not to be in violation of the National Banking Act’s mandate that banks be able to dismiss these officers at any time, with or without cause.

In Citizens Nat’l Bank and Trust Co. v. Stockwell, 675 So.2d 584, 586-87 (Fla. 1996), the Supreme Court of Florida pointed out the unfairness of allowing a bank not to pay agreed-upon severance benefits. First, the Court distinguished between a suit for wrongful termination (which violates the National Banking Act) and a breach of contract claim to pay severance benefits (which is permitted). It then stated that a bank:

“cannot have the proverbial cake and eat it too. We do not read the National Bank Act to permit national banks to hold out lucrative contractual provisions in order to entice officers to work for them, and 19then hide behind a tenuous interpretation of the Act to get out of those provisions when they no longer need the officers.” Stockwell at 587.

The Stockwell court then held that the “golden parachute” provisions were enforceable. Stockwell at 586.

Here, the Bank was also free to enter into contracts for employment without agreeing to payment of severance benefits on termination. But, the Bank expressly agreed that if it chose to terminate its officers, it would pay them certain severance benefits. Hibernia Bank “voluntarily used the promise of those benefits as one bargaining tool to secure” the employment of Shaw and Russell during the years before they resigned or were fired. Stock-well at 587. Because there was no limitation on the power of the Bank to remove its officers, the enforcement of the severance pay provisions is completely consistent with the National Bank Act.

Unfortunately for Appellants, this case is distinguishable from the cases listed above. Like the cases above, Russell and Shaw had employment agreements with the Bank and the Corporation, and these agreements contained “golden parachutes.” But in this case, the OCC investigated the Bank and explicitly held that the contracts violated provisions of the National Banking Act and federal banking regulations and ordered the Bank to immediately rescind the contracts, which it did.

Ultimately the appellants seek a declaration of the appropriateness of the Bod-nar Letter’s determinations, and a federal court or the OCC must make this determination. For these reasons, we affirm the trial court’s grant of summary 11 (judgment to defendants/appellees on grounds that Plaintiff Shaw’s suit against the Bank was an impermissible collateral attack on a federal agency determination.

Russell and Shaw’s claims against the Corporation are different than Shaw’s claim against the Bank. In this case, the Bank (subject to regulation by the Office of the Comptroller and Currency under the National Banking Act) and the Corporation (subject to regulation by the Federal Reserve System under the Bank Holding Company Act) entered into an employment agreement with two of the Bank’s officers, Shaw and Russell. The OCC has no jurisdiction over the Corporation, and 12 U.S.C. § 24, Fifth, does not apply to bank holding companies. Therefore, although Shaw’s claim against the Bank may not be brought in state court, Shaw and Russell’s claims against the Corporation are valid state law contract claims.

A Michigan appellate court entertained a similar dispute in Ambro v. American National Bank and Trust Co. of Michigan, 152 Mich.App. 613, 394 N.W.2d 46 (1986). There, a former senior vice-president of a national bank brought a wrongful discharge action against a national bank and a bank holding company. The court held that the National Bank Act precluded the senior vice-president from maintaining a wrongful discharge suit against the national bank. Ambro at 618, 394 N.W.2d 46. However, the Ambro court also held that the senior vice-president could maintain his suit against the bank holding company. Ambro at 619, 394 N.W.2d 46. The court reasoned that state law was not preempted with respect to employment practices of bank holding companies because,

“(t)he National Bank Act does not govern national holding companies. The National Bank Holding Company Act, 12 U.S.C. § 1841 et seq., does not contain a provision similar to § 24 of the National Bank Act. InThus, we do not believe state law is preempted with respect to employment practices of bank holding companies.” Ambro at 619, 394 N.W.2d 46.

We agree, and hold that Shaw and Russell’s claims against the Corporation do not constitute collateral attacks on any federal agency ruling, and may stay in state court.

The trial court erred in holding that Appellants’ claims against the Corporation constituted impermissible collateral attacks on the prior ruling of a federal agency. Appellants’ claims against the Corporation, which is not governed by the OCC, do not constitute impermissible collateral attacks on the OCC’s rulings. These claims are valid state law contract claims. However, Shaw’s claim against the Bank is an impermissible collateral attack on the OCC’s rulings. Therefore, the claims against the Corporation may stay in state court, and Shaw’s claim against the Bank must be brought in a more appropriate venue.

CONCLUSION

For the reasons stated above, we reverse the trial court’s rulings dismissing Appellants Shaw and Russell’s claims against Hibernia Corporation and remand for further proceedings. We further affirm the trial court’s ruling dismissing Appellant Shaw’s suit against Hibernia Bank.

DECREE

REVERSED IN PART AND REMANDED; AFFIRMED IN PART.

MURRAY, dissenting in part with reasons.

MURRAY, J.,

dissenting in part with reasons.

IT agree with the majority with regard to the determination that the trial court was wrong in concluding that the action against Hibernia Corporation was precluded. I respectfully disagree, however, with the majority with regard to the action against Hibernia Bank.

Although the two cases before us were couched as motions for summary judgment, the trial court’s rulings dismissing these cases are really determinations that the court lacked subject matter jurisdiction. As the trial court stated in its reasons for judgment, “Plaintiffs claim constitutes an impermissible collateral attack on a prior order of a federal agency, which lies outside the jurisdiction of this Court.”

On appeal, the ■ parties appear to acknowledge that the only issue is whether the trial court has subject matter jurisdiction. The question of subject matter jurisdiction may or may not hinge on whether the Bodnar Letters constitute final agency action. Even assuming no final agency action, the National Banking Act may preempt state law claims for wrongful termination because it mandates employment at will. Thus, the jurisdictional question presented must be analyzed |aby addressing both of the bases on which jurisdiction may be precluded in state court: (i) federal preemption and (ii) final agency action.

Federal preemption applies and precludes state law claims for termination under the National Banking Act. However, as the majority points out, there is a recent line of primarily state law cases recognizing that the National Banking Act does not preclude banks from entering into reasonable contractual severance provisions. Under that recent line of cases, an employee’s state law contract claim for such severance benefits would not be preempted. The trial court thus has subject matter jurisdiction to address the plaintiffs’ contractual claims for severance benefits. Given that the plaintiffs entered into subsequent settlement agreements and voluntarily resigned, they may not prevail on such contractual claims. Nevertheless, I would find the trial court has subject matter jurisdiction to address those claims.

As noted, the other basis on which the trial court could lack subject matter jurisdiction is if the Bodnar Letters are final agency action. The determination of whether there is final agency action is essentially a factual one. The last sentence in the Bodnar Letters addressed to each of the plaintiffs invites them to provide documentation establishing the legality of their contracts. This invitation belies a finding of finality of agency action. On this point, the majority concludes that no matter how the Bodnar Letters are ultimately characterized — final or not final— the trial court lacks jurisdiction to review the appropriateness of the determinations in those letters. I respectfully disagree. I would conclude that the Bodnar Letters are not final agency action (or at least that there is a genuine issue of material fact on that issue).

For these reasons, I respectfully dissent in part.

MURRAY, J., dissenting in part with reasons.

CANNIZZARO, J., concurs with reasons.

CANNIZZARO, J.,

concurs with reasons.

hi concur in the result reached by the majority, but write separately to address an issue which I believe is worthy of consideration.

Mr. Russell’s lawsuit arises from an employment contract with both Hibernia Corporation and Hibernia Bank. Under the terms of that contract, both Hibernia Bank and Hibernia Corporation are solidary ob-ligors. Louisiana Civil Code Article 1801 places limitations on the defenses that can be raised by solidary obligors. It provides:

A solidary obligor may raise against the obligee defenses that arise from the nature of the obligation, or that are personal to him, or that are common to all the solidary obligors. He may not raise a defense that is personal to another solidary obligor. [Emphasis supplied.]

It is undisputed that the OCC had regulatory control only over Hibernia Bank not Hibernia Corporation at the time of the alleged breach of Mr. Russell’s contract. Hibernia Corporation’s defense in this matter-the final agency action by the OCC-is a defense personal only to Hibernia Bank. Thus, La. C.C. art. 1801 prohibits Hibernia Corporation from raising it as a defense.

      . The terms of Shaw's contract, including the golden parachute provision, were disclosed in the proxy material published in connection with his nomination to the Board of the Corporation in 1988, and then again in 1991. On each occasion, Shaw was duly elected, the last at the Shareholders meeting of April 30, 1991. At the April 30, 1991, shareholders meeting, the Board of Hibernia Corporation convened and Shaw was re-elected to the Board of the Bank. At the Bank Board meeting held later that day, Shaw was re-elected to the Presidency of the Bank.

      . Appellants argue that this determination was clearly incorrect, and that it did not constitute final agency action.

      . 12 C.F.R. §§ 7.5000; 7.5010; 7.5015; and 7.5217.

      . Alternatively, Shaw also contends that he was constructively terminated before he signed the Termination Agreement on May 23’ 1991' when ⅛ W3S Sfripped °f ⅛ ⅛⅛8'

      . Shaw sued both the Bank and the Corporation; Russell sued only the Corporation.

        . Until the 1990’s, most state courts held that the National Banking Act prohibited Banks from paying dismissed executives generous severance packages known as “golden parachutes” that had been negotiated for in the contract. In Copeland v. Melrose Nat’l Bank of New York, the court held that forcing banks to pay severance pay provisions of employment agreements violated the National Bank Act's provision that allows banks to dismiss officers at its pleasure. Copeland, 229 App. Div. 311, 241 N.Y.S. 429, aff'd. 254 N.Y. 632, 173 N.E. 898 (1930). Many states followed this reasoning and held that contract claims by dismissed bank officers are not allowed under the National Banking Act. See e.g., Mackey v. Pioneer Nat’l Bank, 867 F.2d 520 (9th Cir.1989); Alfano v. First Nat’l Bank of Highland, 111 A.D.2d 960, 490 N.Y.S.2d 56, 58 (1985); McGeehan v. Bank of New Hampshire Nat’l Asso’n., 123 N.H. 83, 455 A.2d 1054, 1055 (1983); Kemper v. First Nat’l Bank in Newton 94 Ill.App.3d 169, 49 Ill.Dec. 799, 418 N.E.2d 819 (1981).
      However, beginning in 1990, some courts began to break away from Copeland and its progeny. The court in Schmidt v. Park Ave. Bank, N.A. held that not allowing dismissed executives to enforce severance agreements was inconsistent with the new federal regulations that allowed banks "to enter into employment contracts with its officers and employees upon reasonable terms and conditions.” 147 Misc.2d 1043, 558 N.Y.S.2d 779 (Sup.Ct.1990), citing 12 C.F.R. § 7.5220.

      . In Kerndt v. Rolling Hills Nat’l Bank, the Iowa Supreme Court held that a contractual provision providing for compensation in the event of termination without cause does not violate the National Bank Act and thus is enforceable. 558 N.W.2d 410 (Iowa 1997). In Citizens Nat’l Bank and Trust Co. v. Stockwell, the Florida Supreme Court held that contractual severance provisions do not undermine the National Bank Act's purpose. 675 So.2d 584, 586-87 (Fla. 1996). In Ewert v. Drexel Nat’l Bank, a district court in Illinois found that an officer of a national bank can acquire the right to receive severance pay through written employment agreement. 271 Ill.App.3d 1124, 208 Ill.Dec. 431, 649 N.E.2d 487 (1 Dist.1995). In Mardula v. Rancho Dominguez Bank, a California court asserted that a severance-pay provision did not violate the National Banking Act. 43 Cal.App.4th 790, 51 Cal.Rptr.2d 63, 67 (1996).

      .We are aware that this case was previously remanded from federal court. There, Appel-lees removed the case and argued that although plaintiffs' claims were entirely state law based, the district court would inevitably have to interpret the National Banking Act, a federal statute, thus the case should be in a federal court. The federal district court remanded the case to state court, reasoning that the fact that a defendant will raise a defense based on federal law is not sufficient to establish federal jurisdiction. That is distinct from the present dispute, where a state court is being asked to review the finality and appropriateness of federal agency action.

      . 12 U.S.C. § 21 et seq.

      . 12 U.S.C. § 1841 et seq.

      . In the Bodnar Letters, it is stated that the employment contracts at issue violate the National Banking Act.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    VVP AMERICA, INC. dba Binswanger Glass Company, Plaintiff v. DESIGN BUILD DEVELOPMENT SERVICES, INC., DBCS Corp., Caddo Parish School Board, And Patterson Insurance Company, Defendants. Roofing Supply, Inc. of Shreveport, Plaintiff v. Design Build Development Services, Inc., The Patterson Insurance Company, and Caddo Parish, School Board, Defendants.
    Nos. 41,652-CA, 41,653-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2007.

      Hubley, Marcotte, Rhodes & Hussey, by Lydia M. Rhodes, Shreveport, Counsel for Appellant, Caddo Parish School Board.
    Powers & Hightower, L.L.P., by Jeffrey James Guidry, Baton Rouge, Counsel for Appellee, WP America, Inc. d/b/a Bin-swanger Glass Company.
    Provosty, Sadler, Delaunay Fiorenza & Sobel, by John Patrick, Stephanie N. Pres-tridge, Alexandria, Counsel for Appellee, Roofing Supply, Inc. of Doggett, Shreveport.
    Before STEWART, DREW and SEXTON (Pro Tempore), JJ.
   DREW, J.

hThe Caddo Parish School Board (CPSB) appealed the judgment in favor of Roofing Supply, Inc. of Shreveport, which supplied material to a subcontractor on a CPSB building project. CPSB asserted that the trial court erred in applying the Louisiana Public Works Act (LPWA), La. R.S. 38:2241, et seq., since Roofing’s lien was filed beyond the statutory 45-day period. CPSB also assigned as errors the trial court’s ruling that Roofing proved the materials for which payment was sought were used in the CPSB project and concluding that Roofing was a qualified claimant under the LPWA. Roofing answered the school board’s appeal, asserting that the trial court erred in failing to award all the funds sought and refusing to award attorney’s fees. The judgment of the trial court is amended, and as amended, is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, the CPSB entered a standard form AIA contract for $1,070,000.00 (later increased to $1,087,572.00) with the general contractor, Design Build Development Services, Inc., for the construction of the “Pine Grove” Classroom Wing Addition in Shreveport. The general contractor and the CPSB used several different permutations of the name, all of which referred to the general contractor.

As work proceeded, CPSB made ten payments to the general contractor and issued its last check on August 6, 1999, but held back a retainage amount and other amounts. The school board occupied the building for the 1999-2000 school year. The architect, the school board, and Design Build Construction Services executed a Certificate of | ^Substantial Completion recorded November 17, 1999, in Caddo Parish under # 1680005 with a $14,000.00 punch list attached.

A dispute between the school board and the general contractor arose because the building was 500 to 520 square feet smaller than shown on the plans. The general contractor did not agree to a reduced contract price requested by the school board. The building had numerous problems including foundation and wall defects which resulted in the building’s demolition. Due to liens on record and construction defects, the school board never released the money held back.

Litigation spawned by this construction debacle involved, among others:

• Design Build Development Services, Inc., general contractor. (The trial court noted there was confusion among the parties as to the correct name of the general contractor. CPSB documents included the names “Design Build Development Services, Inc.,” DBSC Corporation, and DBCS Corporation. Finding the CPSB responsible for the confusion, the trial court treated varied names as referring to the general contractor.)
• Patterson Insurance Company, bonding company for the project.
• Roofing Supply, Inc. of Shreveport, plaintiff, which supplied roofing material to the Bullard Company.
• Bullard Company, roofing subcontractor, which obtained supplies from Roofing.
• WP America, Inc. d/b/a Binswanger Glass Company, which supplied material for the project.

The following suits resulted:

1. An action by the CPSB filed September 28, 2001, against the general contractor and other parties was resolved and dismissed prior to trial which was limited to the claims by the two suppliers below.
[s2. In its action to enforce a material-man’s lien and for judgment on open account, WP America, Inc. d/b/a Binswanger Glass Company (Bin-swanger) sued the CPSB, the bonding company, and the general contractor. CPSB filed a document in this court showing the portion of the judgment favoring Binswanger has been satisfied.
3. On November 17, 2000, Roofing sued the general contractor, Patterson Insurance (general contractor’s bonding company), and the school board, seeking to recover the $23,802.10 plus interest and attorney’s fees owed Roofing by the Bul-lard Company, with which Roofing had an open account relationship.

The record shows that Patterson was placed into receivership in 2003 and the Bullard Company went bankrupt. The general contractor was not active in this appeal, which is limited to the dispute between Roofing and the school board.

Co-owner with her husband, corporate officer, and bookkeeper of Roofing Supply, Debbie Sayers testified that Roofing was a wholesale distributor of roofing and vinyl siding products. In 1999, Bullard Company contacted Roofing about supplying roofing material for the CPSB project on which Bullard was the roofing subcontractor. Over a period of years, Bullard Company maintained an open line of credit on a single account with Roofing for all of the supplies it purchased for a variety of construction jobs. Either through a Roofing salesman or through a phone call from Bullard Company to Roofing, Bullard placed orders for material for this school addition. Delivery was made by direct shipments via common carrier from the manufacturer, delivery via Roofing trucks or by Bullard employees picking up a particular order. Orders totaling $23,802.10 on the Pine Grove addition were not paid.

| ¿Sayers stated that Chuck Ashley, Roofing’s collections coordinator, prepared and filed a lien on July 20,1999. Although this lien contains a property description, it has no references to the CPSB or the Pine Grove addition project. Sayers stated it was company policy that notice of a lien be sent to the school board and the general contractor; Sayers had nothing in her file documenting that a copy of the hen was sent.

Ashley testified he did not specifically recall filing the July 20, 1999, lien, but that his practice was to determine who owned the property and send the landowner a copy of the lien. Normally, transmittal letters would have been sent also, although none were in Roofing’s file. Ashley recalled signing the affidavit on November 3, 2000, in which he stated he followed Roofing policy by sending a letter notifying the CPSB about Roofing’s filing the lien due to Bullard’s failure to pay for the supplies.

Sayers stated that on August 29, 2000, Roofing sent a letter to the general contractor requesting that the bonding company pay the unpaid invoices owed to Roofing by Bullard. Also filed into evidence was a September 26, 2000, letter from Roofing to the bonding company concerning nonpayment for the roofing materials Roofing supplied to Bullard.

On October 6, 2000, Roofing filed into the public records of Caddo Parish an amended lien naming the CPSB as owner, identifying the Pine Grove addition project, and naming the general contractor. This amendment referred to the initial lien filed July 20, 1999. Roofing also sent the CPSB a | Jetter dated October 6, 2000, informing the school board of the July 20, 1999, lien filed on the project for the outstanding debt of $23,802.10.

After the litigation commenced, Sayers testified that Roofing learned that the bonding company was in receivership. On September 30, 2003, Roofing filed a proof of claim with the Louisiana Insurance Commissioner’s office, which did not pay the claim.

On cross-examination, Sayers acknowledged that Roofing had no written agreement with Bullard to provide materials for the disputed project. When materials were delivered to the Pine Grove job site, Sayers considered the product used by Bullard for that particular job. Sayers testified that Jerry Bullard, owner of Bul-lard Company, personally guaranteed payment of Bullard’s bill to Roofing in a document signed on September 24, 1999. Sayers identified a May 1, 2000, invoice to Bullard Company totaling over $37,000.00 with a number of projects noted thereon including the Pine Grove job. The invoice reflected that Jerry Bullard had made the following payments:

07/16/99 $2,619.46
10/26/99 $1,265.99
11/23/99 $1,405.47
12/29/99 $2,000.00

Sayers declared that the payments would have been credited against whichever particular charges Bullard requested to receive the credit. Otherwise, the payments were credited against the oldest charges on the invoice. None were credited against the $23,802.10 Roofing sought from the CPSB. In addition to Bullard Company going bankrupt, Sayers stated that Jerry Bullard personally filed bankruptcy.

| ^Concerning the invoices on which Roofing based its $23,802.10 claim, Sayers testified internal pick tickets were generated before delivery and invoicing. The witness gave the following information about the unpaid invoices:

1. Inv. # 095987 04/08/99 $5,852.19
According to Sayers, because her husband’s handwriting appeared on the pick ticket, this order was delivered from the Roofing warehouse and she believed “CC” were initials for a Roofing driver making the delivery.
2. Inv. # 096079 04/09/99 $3,500.86
This was a delivery direct from the manufacturer to the Pine Grove Addition site. There was no pick ticket, and Sayers speculated it had been misfiled.
3. Inv. # 096168 04/10/99 $374.44
This was picked up by a Bullard employee who signed “R (illegible)” on the pick ticket for the Pine Grove Addition project.
4. Inv. # 097035 04/28/99 $5,251.28
This was a shipment direct from the manufacturer to the address of the Pine Grove Addition job. The pick ticket was missing and probably misfiled.
5. Inv. # 097464 05/06/99 $4,392.95
The initials “FP” indicated a Roofing driver, Floyd Pickett, delivered the order from the Roofing warehouse to the job.
6. Inv. # 098292 05/24/99 $54.56
The order was picked up by Mr. Jefferson of Bullard, who signed the pick ticket.
7. Inv. # 098404 05/26/99 $986.37
The order was picked up by Mr. Jefferson of Bullard, who signed the pick ticket.
8. Inv. # 098415 05/26/99 $1,138.98
This was picked up at the Roofing warehouse and signed for by a Bul-lard employee whose name was not legible, but who also signed pick tickets for Inv. # 096168 and # 098418.
9. Inv. # 098418 05/26/99 $814.04
17This was picked up at the Roofing warehouse and signed for by a Bul-lard employee whose name was not legible, but who also signed pick tickets for Inv. # 096168 and # 096415.
10. Inv. # 098422 05/26/99 $814.04
The order was picked up by Mr. Jefferson of Bullard, who signed the pick ticket.
11. Inv. # 098476 05/27/99 $622.39
Roofing delivered this order to the Pine Grove job site, where John Davis signed for it.

DISCUSSION

In State Through Div. of Admin. v. McInnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937, Justice Kim-ball explained the longstanding and well-settled principle that lien statutes are strieti juris and must be strictly construed. Public contract laws are to be strictly construed and the privileges granted must not be extended beyond the statutes. The LPWA is sui generis and provides exclusive remedies to parties in public construction work.

Because liens are not enforceable against publicly-owned property, workers and suppliers engaged by public agencies cannot protect themselves with liens against public property. In contrast, workers and suppliers involved in private building projects can protect their rights by filing liens against the privately-owned property itself.

Because of the need to protect those performing labor and furnishing materials for public works, the Legislature in 1918 passed Act 224, the precursor to current public works statutes, La. R.S. 38:2241 et seq., granting rights to laborers and materialmen involved in public works. The public contract law did not grant its beneficiaries a lien on the public work itself, but gave them, in effect, “a privilege against the unexpended fund in the possession of the authorities with whom the original contract ha[d] been entered into.”....

8State Through Div. of Admin. v. McInnis Bros. Const., supra, at p. 943.

The LPWA, La. R.S. 38:2241, provides, in pertinent part, that when a public entity enters into a contract over “five thousand dollars for the construction, alteration, or repair of any public works, the official representative of the public entity shall reduce the contract to writing and have it signed by the parties.” A claimant under the LPWA is “any person to whom money is due pursuant to a contract with the owner or a contractor or subcontractor for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works ...[.]” La. R.S. 38:2242(A).

La. R.S. 38:2242(B) and (D) state:

B. Any claimant may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done.
D. When an awarding authority makes final payment to the contractor without deducting the total amount of all outstanding claims so served on it or without obtaining a bond from the contractor to cover the total amount of all outstanding claims, the awarding authority shall become liable for the amount of these claims.

Appeal by the CPSB

The CPSB asserted that Roofing did not qualify as a claimant under the LPWA because Roofing did not prove it had a contract with Bullard. La. C.C. art. 1927 states that a contract is formed by the consent of the parties established through offer and acceptance which may be made orally, in writing, or by action or inaction that under the circumstances is clearly | flindicative of consent. Citing La. C.C. art. 1846, CPSB correctly stated that the contract in excess of $500.00 must be proved by at least one witness and other corroborating circumstances.

The record shows that Bullard and Roofing had a longstanding business relationship over a period of years conducted through Bullard’s orders and Roofing’s deliveries being tracked on a single open account on which Bullard made payments. In addition to Sayers’ testimony, the record contains other corroboration; ie., the documents showing the different modes of delivery including pickup by Bullard employees who signed for various orders and designated the project for which the material was to be used. The trial court did not err in finding a contractual relationship between Roofing and Bullard as required by La. R.S. 38:2242(A).

Next, the CPSB contended that Roofing failed to prove that its material was used in the Pine Grove addition. Once a supplier proves delivery to the job site, the burden shifts to the defendant to show the material was not used in the construction of the project. The material-man need only show by sufficient, competent proof that materials were delivered to the job site. Best Electric Supply Company, Inc. v. Rittiner, 334 So.2d 792 (La.App. 4th Cir.1976). The CPSB seeks to distinguish the Best Electric case factually, since there was testimony from the subcontractor in addition to the materialman’s extensive testimony about their internal procedures and invoicing system.

While no one from Bullard testified in this case, the trial court did not err in concluding there was sufficient proof that the Roofing purchases were Undelivered to the Pine Grove addition job site. Roofing Supply established that five invoices totaling $19,619.69 were delivered by Roofing Supply to the job site. The trial court also found that through testimony Roofing Supply proved that five additional invoices totaling $4,182.43 and marked with the project name were applicable.

As noted previously, Sayers testified exhaustively about the open account arrangement between Roofing and the Bullard Company. Moreover, she explained how the invoices and available pick tickets documented the orders and deliveries to the Pine Grove addition project location. Jerry Bullard personally guaranteed the Bul-lard Company’s debt to Roofing; and the record contains no indication that any of the Roofing charges were disputed. Moreover, Sayers explained how Bullard employees attributed orders to this project and signed for many of the deliveries.

In Parish Concrete, Inc. v. Fritz Culver, Inc., 399 So.2d 694 (La.App. 1st Cir.1981), sufficient proof of delivery to a job site was based upon the testimony of the supplier’s general manager who, like Sayers, described the bookkeeping, invoicing, and delivery systems. One of the supplier’s truck drivers also testified about making some of the many deliveries to the particular job in dispute. The court in Parish, supra, specifically noted that the defendant offered no evidence that the materials were not delivered by the supplier to the job site.

Sayers detailed Roofing’s method of doing business with Bullard Company, a longtime customer. The material was transported to the job site by Roofing or the manufacturer or picked up by Bullard employees. There Inis no evidence that the deliveries were not properly made. Even without testimony of a Roofing driver, the documents filed into evidence and the testimony explaining the operation were sufficient to support the trial court’s finding that Roofing established delivery of its material to the CPSB construction project at issue.

The CPSB also urged that Roofing was not entitled to recover because its lien was not filed within the prescribed 45-day period after the Certificate of Substantial Completion was filed in the public records on November 17, 1999. In its reasons for judgment, the trial court quoted two allegations from the CPSB petition that admitted the school board was still holding $99,330.22 due under the contract and that liens against the property totaling $92,395.50 and suits were pending:

13. All payments due under the contract from the School Board have been made to the Contractor, save and except for $99,330.22 in retain-age and other funds maintained and held by the School Board to ensure proper completion of the project.
48. Liens have been filed against the subject property by subcontractors and materialmen, which total $92,330.50, and suits have been filed against the School Board for the enforcement of the liens, and the School Board is entitled to damages against the Contractor and Surety Company for the amount needed to pay and cancel said liens, and for the defense or settlement and dismissal of the litigation.

As noted previously, the CPSB’s suit was settled and dismissed prior to trial of the consolidated actions. The trial court stated that the CPSB witness, Steve White, testified that the CPSB received over a million in settlement and never released the retainage and other funds due to the defects and problems with the project.

|1?The CPSB urged that the trial court erroneously relied upon cases decided before the modern amendments to the LPWA for the ruling that claims filed before or beyond the 45-day period following the recordation of the notice of substantial completion were timely. However, both Act 224 of 1918 and Act 271 of 1926 of the Louisiana Legislature contained a 45-day filing requirement.

The trial court found that the lien filed July 20, 1999, was insufficient to provide any notice to the school board, since it only referred to the Bullard Company and did not mention the project, the school board, or the general contractor. Roofing Supply also failed to prove that the first lien was mailed to the school board. The trial court found that the evidence established that the school board received notice of the amended October 2000 lien and that the contractor and surety received notice of the July 1999 lien in August and September 1999, respectively. The trial court correctly decided the CPSB had retainage funds and notice of the claims at the time Roofing filed its lien; therefore, the CPSB was liable to Roofing for the cost of the materials sold to Bullard Company for the project.

The trial court explained:

In Levingston Supply Co. v. American Employers’ [Ins.] Company, 216 So.2d 158 (La.App. 1st Cir.1968), one of the defenses was that the plaintiffs lien was filed “prematurely” because it was filed prior to the acceptance of the work. This argument was rejected and the court reasoned that the statutes do not require an acceptance as a condition precedent to a demand for payment or a lien. Thus, a lien can be filed before the 45-day period is activated. Both the Louisiana Supreme Court and the federal Court have recognized that liens filed after the 45-day period are considered and timely enforceable if they were filed before the funds and obligations of the public entity were entirely paid out and the public entity had |13knowledge of the claims. See Claiborne Parish School Board v. Fidelity and Deposit Company of Maryland, 40 F.2d 577 (USCA 5th Cir.1930) (affirming 35 F.2d 376); Uvalde Rock Asphalt Co. v. City of Shreveport, 172 La. 987, 136 So. 26 (La.Sup.Ct.1931). Thus, the School Board arguments that the liens have to be filed within the narrow 45-day period commencing from the date of the re-cordation of the certificate of substantial completion are not well founded in the jurisprudence.
The Court understands that the different notice provisions under the LPWA are designed to work in tandem so that the general contractor, surety and owner are all aware of what is going on and each can take steps to preserve their rights against each other. However, the legislation and the jurisprudence clearly recognize that he owner has liability to subcontractors and materialmen when the owner has knowledge of liens and claims and has contract funds in its possession. The record in this case clearly reflects that the School Board had actual knowledge of the liens and was still holding on to $99,330.22 as of September 28, 1991. [Sic: Date should be September 28, 2001, when the CPSB filed its petition containing the admissions about retainage and liens relied upon by the trial court.]

Roofing’s Answer to the Appeal

In answering the appeal, Roofing complained that the trial court erred in crediting the CPSB with the $7,190.92 payments made by Jerry Bullard personally on the Bullard Company account. Since Roofing Supply had only one account with Bullard, the trial court decided that payments from Bullard of $7,190.92 made from July until December 1999 should be deducted from the total amount Roofing Supply claimed against Bullard and sought to recover from the CPSB.

Roofing is correct that the payments were properly credited against the oldest debts due. A debtor owing several debts to a creditor has the right to impute his payments to the debts he intends to pay. La. C.C. art. 1864. Sayers stated that had Bullard attributed any payments to the Pine luGrove addition bills, that credit would have been given and those debts would not have been included in the invoices for which Roofing sought payment from the CPSB.

La. C.C. art. 1868 directs that, when the debtor does not impute a payment to a particular debt, then payment is first credited against interest bearing debts, then secured debts, and then the debts most burdensome to the debtor. If all debts are of the same nature and became due at the same time, payment must be proportionally imputed to all. If the debtor has the same interest in paying all debts, payment must be imputed to the debt that became due first.

The Roofing statement which the CPSB placed into the record does not indicate any interest charged on the various invoice amounts or show any of the debts are secured. Roofing properly charged Jerry Bullard’s four payments against the oldest debt on the open account statement. Therefore, Roofing is entitled to recover $23,802.10 from the CPSB.

Roofing also requested an award for attorney’s fees. La. R.S. 38:2246(A) states:

A. After amicable demand for payment has been made on the principal and surety and thirty days have elapsed without payment being made, any claimant recovering the full amount of his timely and properly recorded or sworn claim, whether by concursus proceeding or separate suit, shall be allowed ten percent attorney’s fees which shall be taxed in the judgment on the amount recovered.

While Roofing did place into evidence correspondence to both the general contractor and the surety informing them of the lien, neither letter was sufficient to constitute amicable demand for payment. CPSB correctly |1fipoints out in its reply brief that because Roofing did not comply with the provisions of 38:2246(A), Roofing is not entitled to 10% attorney’s fees.

CONCLUSION

Roofing is entitled to recover $23,802.10 for the material furnished to Bullard Company for the CPSB’s Pine Grove addition building project. Therefore, the judgment is amended to increase the award of $16,711.18 by $7,190.92, the payment amount improperly credited to the amount owed by Bullard to Roofing. Due to lack of sufficient amicable demand against the general contractor and its surety, Roofing is not entitled to recover 10% in attorney’s fees under La. R.S. 38:2246(A).

DECREE

The judgment of the trial court is amended to increase the award from the Caddo Parish School Board to Roofing Supply, Inc. of Shreveport by $7,190.92, for a total award of $23,802.10. In all other respects, the judgment is affirmed. Costs of $383.50 are assessed against the Caddo Parish School Board.

AMENDED, AND AS AMENDED, AFFIRMED.


author: GENOVESE, Judge.

text:
    Christin R. DECOU v. TARGET CORPORATION OF MINNESOTA.
    No. 2006-1100.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Bob Broussard, D. Patrick Daniel, Jr., Bob Broussard, APLC, Lafayette, Louisiana, for Plaintiff/Appellant, Christin R. Decon.
    John S. Lawrence, Jr., David P. Curlin, Lawrence & Associates, Mandeville, Louisiana, for Defendant/Appellee, Target Corporation of Minnesota.
    Court composed of MARC T. AMY, DAVID J. PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Plaintiff, Christin R. Decou (Decou), appeals the judgment of the trial court granting summary judgment in favor of Defendant, Target Corporation of Minnesota (Target). The trial court ruled that the intentional tort exclusion to the Workers’ Compensation Act did not apply, thereby dismissing Decou’s claims. For the following reasons, we affirm.

STATEMENT OF THE CASE

Decou alleges that she was injured on May 1, 2003 in the course and scope of her employment at Super Target on Ambassador Caffery in Lafayette, Louisiana, when she slipped and fell on ice in a freezer. Decou filed suit against Target in the district court, alleging that her injuries were caused by the intentional actions of Target, through its employees, which made the risk of her injuries substantially certain to occur. Target filed a motion for summary judgment seeking to dismiss Decou’s claims on the basis that the intentional tort exclusion to the Workers’ Compensation Act, set forth in La.R.S. 23:1032(B), was inapplicable. The trial court granted Target’s motion for summary judgment, finding that the actions in this case did not rise to the level of an intentional tort as defined by the jurisprudence and that the Workers’ Compensation Act applied. De-cou appeals.

FACTS

On May 1, 2003, Decou was employed as a bakery team member at Super Target on Ambassador Caffery in Lafayette, Louisiana. Decou’s duties included retrieving goods from the bakery’s freezer in order to bake the items for their eventual sale and also returning goods to the freezer. Decou alleged that her accident occurred in the bakery’s freezer while she was in the process of returning and retrieving a box 1 gof goods. Decou testified that in order to return the box to an upper shelf, she used an aluminum ladder which was routinely kept in the bakery’s freezer. After returning the box of goods to an upper shelf, Decou then retrieved a different box of goods also located on an upper shelf in the freezer. Decou alleges that as she descended the ladder, with box in hand, “the ladder slipped” causing her to fall to the floor due to the presence of ice on both the ladder and the freezer’s floor. Decou alleges that as a result of her fall, she injured her lower back which necessitated a lumbar discectomy with fusion.

ISSUES

In her brief to this court, Decou presents the following issues:

1. Whether the evidence presented on behalf of [Decou] regarding Target’s practices and the circumstances surrounding her injuries established, more probably than not, that injuries of the nature she suffered were substantially certain to occur and, therefore, Target’s [mjotion [f|or [s]ummary [¡judgment should have been denied.
2. Whether the evidence presented on behalf of [Decou] established genuine issues of material fact with regard to the issue of whether the injuries in suit were substantially certain to follow as a result of Target’s conduct, thereby precluding [s]ummary [judgment.

LAW AND DISCUSSION

In this appeal, Decou contends that the trial court erred in granting Target’s motion for summary judgment, alleging that there are genuine issues of material fact as to whether Target, the employer, placed her in a work area where her injuries were substantially certain to occur.

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 mover is entitled to | ¡judgment as a matter of law.” La.Code Civ.P. art. 966(B). The summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.... ” La.Code Civ.P. art. 966(A)(2).

“In ruling on a motion for summary judgment, the [trial courtj’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765. Further, the trial court should resolve all doubts in the non-moving party’s favor. Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.

Id. at 765-66 (citations omitted).

The moving party bears the burden of proving that summary judgment is appropriate. However, when the movant will not bear the burden of proof at trial on the matter that is before the court, the mov-ant’s burden on the motion does not require him to negate all of the essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more of the elements essential to the adverse party’s claim. See La.Code Civ.P. art. 966(C)(2). If the adverse party fails to produce factual support to convince the court that he can carry his burden of proof at trial, then there is no genuine issue of material fact and granting of the motion is mandated. Hines, 876 So.2d at 765.

“Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137. ^Therefore, we must determine whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id.

Decou filed the instant suit seeking to recover damages under the intentional acts exception to the Workers’ Compensation Act. Target moved for summary judgment asserting that Decou could not carry her burden of proving the existence of the necessary elements which constitute an “intentional act” for the purpose of allowing her claim to proceed as an exception to the exclusivity of the workers’ compensation remedy. To constitute an intentional act, Decou must show that Target either consciously desired the physical results of its particular conduct or that it had knowledge that the physical results were substantially certain to follow such conduct. Reeves v. Structural Pres. Sys., 98-1795 (La.3/12/99), 731 So.2d 208; Mouton v. Blue Marlin Specialty Tools, Inc., 01-648 (La.App. 3 Cir. 10/31/01), 799 So.2d 1215.

After reviewing the record, we find that the evidence produced by Decou fails to establish that she will be able to satisfy her evidentiary burden of proof at trial. Decou basically alleges that Target failed to provide her with a safe working environment. Decou’s own testimony does not support the conclusion that Target consciously desired an injury to occur or was substantially certain its conduct would cause injury to Decou. At her deposition, Decou testified that she verbally remarked to a supervisor that the floor in the freezer was slippery; however, Decou admitted that she never registered any type of written complaint to Target about the icy conditions in the freezer, nor did she advise any of her supervisors that she felt unsafe |Bgoing into the freezer. Decou even candidly admitted:

I don’t think it was anybody’s intention of [sic] me to get hurt. That’s not an employer. That’s not a good manager, no.
But the problem of the ice — that it was not somebody’s intention for me to go in there and purposely slip, no, no.
But the problem, everybody knew about it. So, like, what you said, intentional tort.

Decou testified that she began working at Target in October of 2002, before the store actually opened for business at its new location on Ambassador Caffery in Lafayette. At the time of her accident in May of 2003, Decou had been employed at Target for approximately seven months, working three to four days a week, and going into and out of the bakery’s freezer at least five times per day. When asked how often ice was removed from the bakery freezer’s floor, Decou replied, “I’m trying to think how often they would have an inspection. It was regularly. Probably once a month, if not longer.” Decou also conceded that Target brought in maintenance personnel in attempts to address the ice accumulation issues. However, Decou contends that the ice was a regular, recurring problem of which she and other employees had complained. Decou asserts that the existence of ice and Target’s failure to successfully resolve the problem prior to her fall and injury constitutes an intentional act for which she is entitled to damages pursuant to La.Civ.Code art. 2315. We disagree.

lr,At the time of Decou’s accident, there had been no other injuries in Target’s bakery freezer from people slipping and falling on ice. In fact, the only other Target employee allegedly injured in a slip and fall accident in a freezer at Target was Heather Hoffman (Hoffman). Unlike De-cou however, the fall involving Hoffman occurred in Target’s stock freezer located in the grocery department, not in Target’s bakery freezer. Like Decou, Hoffman filed suit seeking to recover damages under the intentional acts exception to the workers’ compensation statutes alleging that Target failed to provide her with a safe working environment by allowing ice to dangerously accumulate on the grocery department freezer’s floor. However, Hoffman’s deposition testimony supports Target’s position that it neither intended for its employees to get hurt nor did it place its employees in a work area where injuries were substantially certain to occur.

In her deposition, Hoffman admitted that people, other employees, would leave the door to the grocery department’s freezer open. Hoffman testified, “[tjhere were chunks of ice just here and there, everywhere. [ ] There was melted water from the door being left open and there was condensation dripping from the ceiling, and there was a huge fan. []” She further stated that “on the ceiling, there was a huge fan. And whenever the door would be — stay open, the fan would turn off which caused it to drip on the floor and make huge piles of ice on the floor.” Finally, Hoffman acknowledged that she, like Deeou, also did not believe that anyone at Target intended for her to get injured in the grocery department’s freezer and that she knew of “maybe three times” when Target did make efforts to fix the freezer’s ice problems by hiring maintenance personnel.

Also admitted into evidence were the depositions of Tyra Guilbeau (Guilbeau), |7Kaili Capone Broussard (Broussard), and Renée Delahoussaye (Delahoussaye). Gu-ilbeau, a Bakery Team Leader at Target and the supervisor directly above both De-cou and Hoffman, testified that condensation occurred when the freezers’ doors were left open and that, thereafter, the water would freeze. This same testimony was elicited from both Broussard and De-lahoussaye. Broussard was the Bakery Executive Team Leader and the supervisor above Guilbeau at the time of Decou’s accident. Delahoussaye described her job title with Target as “Executive Team Leader, Human Resource,” whose position was above that of Broussard. In her deposition, Delahoussaye also testified that a heating, ventilation, and air conditioning (HVAC) firm, Hussman, was retained to address the freezers’ ice issues; however, the diagnosis was that the ice was caused by condensation which occurred when the freezers’ doors were left open. Thereafter, employees were advised of the cause of the water/ice problems; were instructed to keep the doors closed; and when ice formed, it was regularly removed.

In this case, Deeou has failed to present any evidence to show that Target consciously desired that she fall or that Target was substantially certain that Deeou would fall. We find that the testimony in the record indicates that Target’s employees, not Target, could best address actions which caused the ice to form. Further, the testimony corroborates Target’s contention that it neither intended for its employees to get hurt nor did it place its employees in a work area where injuries were substantially certain to occur. At most, the record before this court demonstrates the exposure of workers to dangerous conditions.

In Reeves, 731 So.2d at 212, the Louisiana Supreme Court held “[bjelieving that someone may, or even probably will, eventually get hurt if a workplace practice |sis continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.” In Reeves, 731 So.2d 208, the plaintiff was injured while manually moving a sandblasting pot in the course and scope of his employment as a general laborer. OSHA required that a sticker be placed on the sandblasting pot which read “DO NOT MOVE MANUALLY,” and on previous job sites, the pot had been moved by a forklift. However, at this particular job site, the plaintiffs supervisor had requested a forklift several times, but the employer had never provided one. The supervisor testified that he feared someone would eventually get hurt moving the pot manually and, for that reason, he sometimes moved the pot manually himself. Other employees had moved the pot manually on numerous occasions without being injured, and the plaintiff himself had done so several times without complaint and without ever having any trouble. On the day of the accident, the supervisor directed the plaintiff to move the sandblasting pot about forty to fifty feet and then, after the plaintiff had moved it about halfway with no trouble, directed another employee to help him. The supervisor testified that he believed the two employees could move the pot safely. However, as they attempted to do so, it fell over onto the plaintiff and injured him.

In Reeves, the plaintiff filed suit against his employer alleging that his injuries were caused by his employer’s intentional acts and, therefore, fell outside the realm of workers’ compensation. After a jury trial, the jury found that the employer’s actions were intentional and awarded him damages for pain and suffering, lost wages, and past and future medical expenses. This court affirmed, finding the record reflected the employer knew that the sandblasting pot could not be moved safely without a tow motor, knew that moving it manually violated OSHA safety 19regulations, and yet failed to provide the appropriate equipment.

The supreme court in Reeves rendered a reversal finding that the jury’s conclusion that the employer’s conduct constituted an intentional act was not reasonable in light of the record reviewed in its entirety and that there was no evidence presented that the accident was substantially certain to occur. Accordingly, the supreme court found that the jury had committed manifest error in determining the employer’s conduct rose to the level of an intentional act for purposes of the exception to the exclusive remedy of workers’ compensation, and the court of appeal had erred in affirming the jury’s decision.

We find that the analysis of Reeves is applicable in the instant case and, therefore, affirm the trial court’s judgment. The trial court was correct in its finding that Decou failed to produce factual support to convince it that she can carry her burden of proof at trial. Thus, there is no genuine issue of material fact, and summary judgment is appropriate.

DECREE

For the foregoing reasons, the judgment of the trial court granting Target’s motion for summary judgment is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Christin R. Decou.

AFFIRMED.

      . Louisiana Civil Code Article 2315 provides:
      A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.


author: PAINTER, Judge.

text:
    Timothy BUTTERFIELD v. TURNER INDUSTRIES.
    No. 2006-1098.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Brian L. Coody, Lake Charles, LA, for Defendant-Appellant Turner Industries.
    Mark Zimmerman, Lake Charles, LA, for Plaintiff-Appellee Timothy Butterfield.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| defendant, Turner Industries, appeals the judgment of the Workers’ Compensation Judge (WCJ) finding that a compensa-ble work injury occurred and awarding Plaintiff, Timothy Butterfield (“Butter-field”), weekly indemnity benefits, medical benefits, penalties, and attorney’s fees. Finding that the evidence does not support the WCJ’s ruling that Butterfield suffered a compensable work-related accident, we reverse the judgment of the WCJ and render judgment in favor of Defendant, Turner Industries.

FACTUAL AND PROCEDURAL BACKGROUND

Timothy Butterfield was employed by Turner Industries from April 29, 1998, through April 21, 2004. His job required him to inspect and measure pipes, which involved carrying equipment up scaffolds, bending, stooping, and twisting. He normally worked alone.

Prior to becoming employed by Turner Industries, Butterfield underwent a cervical fusion performed by Dr. Dale Bernauer on February 27, 1997, following a neck injury received in 1996 while working offshore for Mike Hooks. Following this surgery, Butterfield did not return to work until April 29, 1998, when he became employed by Turner Industries. Butterfield contends that he performed his job duties without any significant problems until June 2002 when he returned to Dr. Ber-nauer with complaints of neck, left shoulder, and back pain. It is at this time that Butterfield contends that he first injured his back in the course and scope of his employment with Turner Industries. Dr. Bernauer performed surgery on Butter-field’s shoulder on July 1, 2003. Following this surgery, Butterfield did not return to work for Turner Industries until mid-August 2003. Butterfield further contends that he | ^aggravated his back at work in December 2003 after bending over into a pipe rack in an awkward position and climbing down the scaffold. However, Butterfield continued to work at full duty. Butterfield returned to Dr. Bernauer on March 31, 2004. At an April 15, 2004 safety meeting, Butterfield told his supervisor that he slipped in the bathtub and hurt his back that morning. Butterfield also told his supervisor that he was having marital problems and would likely have to quit his job for a while to go to Oklahoma to try to resolve those problems. Despite that statement, Butterfield alleges that he was forced to quit working for Turner Industries on or about April 22, 2004, because of the worsening condition of his back. Butterfield contends that he did not know the extent of his back problems on April 15, 2004. Butterfield saw Dr. Ber-nauer on April 21, 2004, at which time Dr. Bernauer advised him of the need for a two-level lumbar fusion which would have a six-month recovery period.

Butterfield filed this claim for workers’ compensation on May 14, 2004. Following trial, the WCJ rendered judgment in favor of Butterfield, finding that a compensable work injury occurred in December of 2003. The judgment awarded Butterfield the maximum weekly indemnity rate allowed at the time of the accident (which was $429.00) from the last day of his employment and payment of all reasonable and necessary medical care related to the on-the-job injury. The judgment also awarded penalties in the amount of $4,000.00 based on the finding that Turner Industries did not reasonably controvert the claim and was unreasonable in its denial of Butterfield’s claim. Attorney’s fees in the amount of $7,500.00 were also awarded. Defendant appeals, and Plaintiff has answered said appeal seeking an additional | oaward of attorney’s fees for work done on appeal. For the reasons that follow, we reverse and render.

DISCUSSION

Standard of Review

On appeal, Defendant asserts that the WCJ committed several “clear” or “reversible” errors in finding that a compen-sable work-related accident occurred based on its allegations that the WCJ made findings of fact based upon false information which was not in evidence. Thus, Defendant urges us to review this matter de novo. We disagree.

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

|4This court, in Monceaux v. R & R Const., Inc., 05-533, p. 6 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, 799-800, writs denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317, noted the following:

The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases),

(emphasis added.)

Therefore, the standard of review in this case is clearly wrong/manifest error.

Work-Related Accident

Turner Industries asserts several assignments of error concerning the WCJ’s finding that a compensable work-related accident occurred in December 2003. It is |sTurner Industries’ contention that the WCJ erred in finding that “having symptoms from a progressive degenerative condition is an accident on the job” and in finding that Butterfield met his burden of proving that an accident had occurred on the job because of Butterfield’s lack of credibility, among other things. For the following reasons, we find that Butterfield failed to meet his burden of proof.

Louisiana Revised Statutes 23:1021(1) states:

“Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

In Richard v. Workover & Completion, 00-794, p. 4 (La.App. 3 Cir. 12/6/00), 774 So.2d 361, 364, this court recognized:

Although the definition of accident was amended to emphasize that the identifiable, precipitous event must be more than a gradual deterioration or progressive degeneration, jurisprudence holds that these terms do not exclude those instances where a worker can establish a work-related event, which may seem to be a customary or routine work activity, which results in an injury to the employee. Bryan v. Allstate Timber Co., 98-840 (La.App. 3 Cir. 12/16/98); 724 So.2d 853; Robin v. Schwegmann Giant Supermarkets Inc., 93-2310 (La.App. 1 Cir. 11/10/94); 646 So.2d 1030, writ denied, 95-202 (La.3/17/95); 651 So.2d 259; Guilbeaux v. Martin Mills, Inc., 93-1359 (La.App. 3 Cir. 5/4/94); 640 So.2d 472; writ denied, 94-1444 (La.9/23/94); 642 So.2d 1291; Dyson v. State Employees Group Benefits Program, 610 So.2d 953 (La.App. 1 Cir. 1992).

The “injured employee must prove by a preponderance of the evidence that he suffered a ‘personal injury by accident arising out of and in the course of his employment.’” Monceaux, 919 So.2d at 799 (citation omitted). “If the evidence leaves the probabilities evenly balanced, or if it shows only a possibility of a work-related event or leaves it to speculation or conjecture, then the plaintiff fails to carry his burden.” Millage v. Builder’s Lumber & Supply Co., 38,635, p. 7 (La.App. 2 Cir. 67/2/04), 877 So.2d 1171, 1175, writ denied, 04-1885 (La.10/29/04), 885 So.2d 594 (citation omitted). Furthermore, although we must afford great deference on appeal to factual findings from the court below, when they are “clearly wrong in light of the entire record,” they must be reversed. Id. “[W]here objective evidence so contradicts an employee’s testimony, or testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would discredit the story, the reviewing court may well find manifest error or clear wrongness even in a credibility determination.” Hubbard v. Allied Bldg. Stores, Inc., 41,534, p. 5 (La.App. 2 Cir. 11/1/06), 942 So.2d 639, 644. Such is the case here.

As this alleged accident was unwit-nessed, we must decide whether “serious doubt” exists and whether Butterfield’s testimony is corroborated by circumstances following the alleged December 2003 accident. Only Butterfield and Lori Owens, the claims representative from Gallagher Bassette Services, testified at trial. Butterfield’s supervisor, Johnny Rosario, and a co-worker, Ronald Mhire, testified by affidavit. Butterfield’s medical records from several providers were introduced into evidence. No treating physician testified; however, the deposition of Dr. Frank Robbins, which was taken in 1997 in connection with a different claim by Butterfield against another employer, was introduced into evidence.

Butterfield testified that he largely worked alone, and this accident was unwit-nessed; however, Butterfield testified that it occurred in December 2003 when he was bending over into a pipe rack in an awkward position and climbing down the scaffold and that the pain began at that time. However, he did not report that he had a work-related injury or accident to his supervisor, Johnny Rosario. In fact, in deposition, Butterfield admitted that the first time he told anybody about this incident |7was when he filed the claim for compensation. Butterfield did not deny that he had fallen in the bathtub on or about April 15, 2004, and hurt his back. He also admitted that he told his co-workers about that incident. Butterfield contends that he fell in the bathtub because his legs “gave out.” In his deposition, Butterfield testified that he had not taken medication for back pain or gone to a doctor for back pain before he slipped in the bathtub. At trial, he recalled giving that testimony but stated that the testimony was false. Other medical records admitted into evidence show that he was treated for back pain in 1996 at the University of Texas Galveston after a fall and in 1999. Butterfield contends that Rosario knew about his back pain; however, Butterfield did not disclose his prior back injuries in his employment screening questionnaires for Turner Industries.

The records of Dr. Dale Bernauer do not indicate that Butterfield reported the alleged December 2003 work-related injury to him. These records reveal that Dr. Bernauer treated Butterfield in 1997 for a neck injury that required surgery, from 2002 to 2004 for a bone spur in the right shoulder that required surgery, and in June 2002 for complaints of lower back pain. Dr. Bernauer’s records do not contain any complaint of Butterfield’s legs being numb or “giving out” or any mention of the fall in the bathtub.

Butterfield also sought Social Security benefits in May 2004. In that application, he indicated that his onset of symptoms was April 21, 2004. He also told the physician who was assigned to examine him that his lower back pain had started two years ago after bending over at work. There was no mention of the December 2003 injury.

| sButterfield contends that he was hesitant to inform his employer of the injury and did not want to file a claim for workers’ compensation because he was scared that he would be fired.

After reviewing the record in its entirety, we conclude that the WCJ was clearly wrong in finding that Butterfield met his burden of proof. Based on the numerous inconsistencies in the testimony, we find that “serious doubt” exists and that there is a lack of corroborating evidence in the form of testimony or medical records in this case. In sum, Butterfield alone testified as to the occurrence of a work-related accident, and his version of events regarding the accident, and the events following it, is squarely at odds with the evidence in this case. Butterfield failed to produce any positive evidence to corroborate his version of events presented at trial. The judgment in favor of Butterfield is, therefore, reversed.

Defendant’s Other Assignments of Error

Turner Industries asserts that it was manifest error for the WCJ not to rule on the issue of its affirmative defense that Butterfield made misrepresentations on the pre-employment health questionnaire and in failing to find that Butterfield made misrepresentations for the purposes of obtaining workers’ compensation benefits in violation of La.R.S. 23:1208. Additionally, Turner Industries avers that the WCJ erred in denying its motion for summary judgment and exception of prescription.

Since we have found that Butterfield failed to satisfy his burden of proving the occurrence of a work-related accident, the remaining assignments of error are moot.

| ⅞Penalties and Attorney’s Fees

Turner Industries also asserts that the WCJ erred in awarding penalties and attorney fees, contending that it reasonably controverted the claim under La.R.S. 23:1201 based on the defenses asserted by it. The WCJ awarded a total of $4,000.00 in penalties and $7,500.00 in attorney’s fees. This award of penalties and attorney’s fees is hereby reversed based on the above findings.

Finally, Butterfield has answered the appeal seeking additional attorney’s fees for work done on appeal. Since we have reversed the WCJ’s judgment and found in favor of Turner Industries, Butterfield’s claim for additional attorney’s fees is denied.

DECREE

For the reasons stated above, the WCJ’s judgment is reversed in its entirety, and judgment is rendered in favor of Defendant, Turner Industries. Costs of this appeal are assessed to Plaintiff-Appellee, Timothy Butterfield, whose demand for additional attorney’s fees is also rejected.

REVERSED AND RENDERED.


author: AMY, Judge.

text:
    James SAM v. DIRECT GENERAL INSURANCE COMPANY OF LOUISIANA, et al.
    No. 2006-1116.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Alfred F. Boustany, II, Lafayette, LA, for Plaintifl/Appellant: James Sam.
    K. Wade Trahan, Ottinger Hebert, LLC, Lafayette, LA, for Defendant/Appellee: Acadian Ambulance Services, Inc.
    Bret T. Walsh, Adair, Schuerman & White, Baton Rouge, LA, for Defendants/Appellees: Direct General Insurance Co. of Louisiana, Melvin Julien.
    Eric T. Haik, Haik, Minvielle & Grubbs, New Iberia, LA for Defendants/Appellees: Louisiana State University, Health Science Center, Health Care Services, Our Lady of Lourdes Regional Medical Center.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

hThe plaintiff sustained injury after being struck by an automobile. The limits of the vehicle owner’s insurance policy were deposited into the registry of the court and a concursus proceeding was invoked. The plaintiffs attorney and three of the plaintiffs medical providers claimed privileges on the funds. After recognizing the primacy of the attorney’s privilege, the trial court determined that the medical providers failed to perfect their privilege. However, the trial court ordered that the remainder of the funds be distributed to the medical providers. The plaintiff appeals. For the following reasons, we reverse in part and render.

Factual and Procedural Background

The plaintiff, James Sam, filed suit alleging injuries after a July 4, 2001 incident in which he was struck by a vehicle driven by Melvin Julien. The vehicle was insured by an automobile liability policy issued by Direct General Insurance Company (Direct General).

On August 27, 2003, Direct General filed a “Petition for Concursus and For Declaratory Judgment” and obtained an order permitting the deposit of the $10,000.00 limit into the registry of the court. The plaintiff and a number of his medical providers were named as defendants in the concursus proceeding. Thereafter, the plaintiffs attorney and three of the plaintiffs medical providers, Our Lady of Lourdes Regional Medical Center (Our Lady of Lourdes), University Medical Center (UMC), and Acadian Ambulance Service (Acadian Ambulance), answered the petition for concursus and asserted their respective privileges. The record reflects that, after payment of court costs, $8,973.74 remained in the registry of the court for allocation.

| ^Following a hearing, the trial court recognized the attorney’s privilege as the first ranking privilege and awarded $3,209.92 in this respect. This portion of the award is not appealed, and we affirm it herein. The trial court then turned its examination to the documentation submitted by Our Lady of Lourdes, UMC, and Acadian Ambulance and concluded that each failed to perfect its respective privilege as required by La.R.S. 9:4753. The trial court went on, however, to distribute the $5,763.82 remaining after deduction of the attorney’s award, to the three medical providers “in the interest of judicial efficiency[.]” The judgment reflects the distribution as follows: “Acadian Ambulance Services, Inc. is entitled to three (3%) percent, or $172.91; Louisiana State University, Health Sciences Center, Health Care Services Division (UMC) is entitled to one (1%) percent, or $57.64; and Our Lady of Lourdes Regional Medical Center is entitled to the remaining funds, or $5,533.27.” The plaintiff appeals.

Discussion

In his sole assignment of error, the plaintiff asserts that the trial court erred in ordering that the medical providers be paid funds deposited in the registry of the court after finding they failed to properly perfect their privileges.

The medical provider privilege is created by La.R.S. 9:4752, which provides:
§ 4752. Privilege on net proceeds collected from third party in favor of medical providers for services and supplies furnished injured persons
A health care provider, hospital, or ambulance service that furnishes services or supplies to any injured person shall have a |3privilege for the reasonable charges or fees of such health care provider, hospital, or ambulance service on the net amount payable to the injured person, his heirs, or legal representatives, out of the total amount of any recovery or sum had, collected, or to be collected, whether by judgment or by settlement or compromise, from another person on account of such injuries, and on the net payable by any insurance company under any contract providing for indemnity or compensation to the injured person. The privilege of an attorney shall have precedence over the privilege created under this Section.

The trial court was first required to determine whether the medical providers perfected their privilege in accordance with the requirements of La.R.S. 9:4753. At the time of the accident and the creation of the purported privileges, La.R.S. 9:4753 required that the notice of privilege contain:

§ 4753. Written notice
The privilege created herein shall become effective if, prior to the payment of insurance proceeds, or to the payment of any judgment, settlement, or compromise on account of injuries, a written notice containing the name and address of the injured person, the name and location of the interested health care provider, hospital, or ambulance service, and the name of the person alleged to be liable to the injured person on account of the injuries received, is mailed by the interested health care provider, hospital, or ambulance service, or the attorney or agent for the interested health care provider, hospital, or ambulance service, certified mail, return receipt requested, to the injured person, to his attorney, to the person alleged to be liable to the injured person on account of the injuries sustained, to any insurance carrier which has insured such person against liability, and to any insurance company obligated by contract to pay indemnity or compensation to the injured person. This privilege shall be effective against all persons given notice according to the provisions hereof, and shall not be defeated nor rendered ineffective as against any person that has been given such notice, because of failure to give such notice to all those persons named herein.

Lien statutes are stricti juris and must be strictly construed. Davison v. Winford Co., Inc., 02-342 (La.App. 3 Cir. 10/2/02), 827 So.2d 1255.

The record reveals that the trial court correctly observed that two of the medical providers failed to perfect their privilege under the requirements of La. R.S. 9:4753. First, documentation submitted by Our Lady of Lourdes indicates that its initial notice |4of privilege failed to list the party alleged to be liable as is required by the applicable version of La.R.S. 9:4753. There is no indication that its “supplement” to the notice, which included the name of the liable party, was delivered by certified mail as is required. Neither does the statute indicate that the mailing requirement was inapplicable due to the supplemental nature of the second letter. Acadian Ambulance’s notice also failed to list the name of the allegedly liable party as is required.

Finally, UMC’s September 2002 notice bears no indication that it was delivered by certified mail. However, a second notice, dated August 29, 2003, satisfies the requirements of La.R.S. 9:4753 as it reveals the name/address of the injured party, the name/location of the hospital, the name of the allegedly hable party, was mailed by certified mail with return receipt requested, and was mailed to the injured person (through his attorney), to the allegedly liable person (again through his attorney), and to the insurance provider. Given the dates listed on the notice and on the return receipts, it appears that it was mailed prior to the September 3, 2003 order whereby the Clerk of Court was ordered to receive and deposit the insurance policy proceeds into the registry of the court. Accordingly, the trial court erred in finding that UMC failed to demonstrate that it perfected its privilege.

In addition to the error involving the privilege of UMC, the trial court further erred in finding that although Our Lady of Lourdes and Acadian Ambulance failed to perfect their privileges, it could order that the remainder of the funds be distributed to them in pro rata fashion. As the plaintiff is the injured party, he was entitled to the remaining funds prior to those medical providers who failed to perfect a privilege. Therefore, we reverse that portion of the trial court’s judgment distributing the $5,763.82 remaining in the registry of the court in pro rata fashion to the medical | ¡^providers and recast the judgment to reflect the privilege of UMC and the dispersal of the remaining funds to the plaintiff.

DECREE

The trial court’s judgment is affirmed insofar as it ordered the disbursement of $3,209.92 to the plaintiffs attorney, Alfred F. Boustany, II. The judgment is reversed insofar as it distributed $5,763.82 remaining in the registry of the court to the plaintiffs medical providers. This latter portion of the judgment is recast as follows:

IT IS FURTHER ORDERED that of the remaining $5,763.82 held in the Registry of the Court, $423.80 be disbursed to the Louisiana State University, Health Science Center, Health Care Services Division, all of which are entities of the University Medical Center of Louisiana at Lafayette, and that all remaining funds be disbursed to plaintiff, James Sam.

Costs of this proceeding are assessed equally to the appellees, Our Lady of Lourdes Regional Medical Center and Acadian Ambulance Service, Inc.

REVERSED IN PART AND RENDERED.

      . The record indicates that the medical providers incurred the following expenses: Aca-dian Ambulance — $889.00; Our Lady of Lourdes — $27,821.47; UMC-$423.80. The plaintiff’s attorney incurred $218.67 in expenses and held a contingency agreement whereby Mr. Sam agreed to the payment of one-third of the amount recovered.

      . See La.R.S. 9:5001 which provides, in part:
      A. A special privilege is hereby granted to attorneys at law for the amount of their professional fees on all judgments obtained by them, and on the property recovered thereby, either as plaintiff or defendant, to take rank as a first privilege thereon superi- or to all other privileges and security interests under Chapter 9 of the Louisiana Commercial Laws.