text:
    Mehrunissa SHERMOHMAD v. Mersedeh EBRAHIMI (Busse) ABC Insurance Company, New York Life Insurance Company.
    No. 06-CA-512.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      John-Michael Lawrence, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Maura Z. Pelleteri, Amy M. Seltzer, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

LOn September 26, 2003, Mehrunissa Shermohmad filed the instant petition for damages and nullification of life insurance policies against Mersedeh Ebrahimi, New York Life Insurance Company and ABC Insurance Company, Ebrahimi’s insurer. In this petition, plaintiff alleged that due to false promises and material misrepresentations made with regard to the purchase of several life insurance policies by defendant Ebrahimi as agent for New York Life, plaintiff sustained monetary loss, certain expenses, legal fees and emotional damages. Plaintiff also sought nullification of the insurance policies as well as return of premiums paid.

In November of 2003, defendants removed the action to federal court based on diversity jurisdiction. Plaintiff subsequently moved for and was granted a remand of the action to the district court based on a lack of diversity.

IsNew York Life filed an answer in federal court which was subsequently adopted in state court. Thereafter, New York Life filed a Motion for Summary Judgment on the basis that all of plaintiffs claims arising out of the sale of insurance policies by its former agent, Mersedeh Ebrahimi are perempted under La. R.S. 9:5606. Further, New York Life argued that plaintiffs allegations of fraud have also prescribed because they were not brought within the one year prescriptive period for delictual actions contained in La. C.C. art. 3492. Finally, New York Life argued that plaintiff has no cause of action for nullification of the contracts because the policies referred to in plaintiffs petition have lapsed.

By judgment rendered March 14, 2006, the trial court granted summary júdgment in favor of New York Life dismissing the demands of plaintiff Mehrunissa Shermoh-mad with prejudice. Plaintiff now appeals from this judgment.

Plaintiff contends on appeal that the trial court erred in ruling that plaintiffs claims are perempted under La. R.S. 9:5606(A). La. R.S. 9:5606 governs actions against insurance agents and reads as follows:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions Sled Rwithin one year from the date of such discovery, in all events such actions shall be Sled at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The peremptive period provided in Subsection A of. this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

In plaintiffs petition which was filed in 2003, she alleges that she first purchased two whole life insurance policies from defendant in 1993 and 1994 based on the promise that premiums would only be owed for four years. Plaintiff states that she found out one year later in 1995 that this promise was not true. Both of these policies have now lapsed.

In 1997, plaintiff purchased two variable life insurance policies from defendant based on the promise that premiums would only be due for five years. Plaintiff stated that she learned in 1999 that the policies would not be completely paid in five years. In 2001 she discovered that she would need to pay for these policies for the rest of her life.

Based on plaintiffs own allegations in her petition, she was aware or should have been aware of defendant’s wrongful acts as early as 1995 when she discovered that defendant’s promise with regard to premiums was not true. She also states that she was aware in 1999 of defendant’s false promises with regard to the additional purchase of policies. Thus, plaintiff was aware of her cause of action more than three years prior to the institution of her lawsuit, and her claims of false promises and material | ¡^misrepresentation are per-empted pursuant to the provisions of La. R.S. 9:5606.

However, pursuant to La. R.S. 9:5606(C), the peremptive periods of La. R.S. 9:5606(A) shall not apply in cases of fraud. Fraud is a misrepresentation or suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. La. C.C. art. 1953. The plaintiffs “bait and switch” allegations fit the definition of fraud, and thus the statutory peremptive periods do not apply to this portion of plaintiffs claim. See, Klein v. American Life & Cas. Co., 01-2336 (La.App. 1- Cir. 6/27/03), 858 So.2d 527, writ denied, 03-2073 (La.11/7/03), 857 So.2d 497, writ denied, 03-2101 (La.11/7/03), 857 So.2d 499.

Plaintiffs claims of fraud are nevertheless subject to the liberative prescriptive period of one year applicable to delic-tual actions and contained in La. C.C. art. 3492. See, Aetna Cas. And Surety Co. v. Stewart Constr. Co., 00-1332 (La.App. 5 Cir. 2/28/01), 780 So.2d 1253, 1256. Prescription commences to run from the day injury or damage is sustained. Damage is sustained when the damage has “manifested itself with sufficient certainty to support accrual of a cause of action.” Cole v. Celotex Corp., 93-90 (La.7/1/93), 620 So.2d 1154, 1156.

In the present case, prescription began to accrue in 1993 and 1994 upon delivery of the whole life policies and in 1997 upon delivery and receipt of the variable life policies. At the latest, plaintiff alleges in her petition that by 1995 and 1999, respectively, she knew of defendant’s misrepresentations that she was obligated to make premium payments for more than four and five years. The record indicates that plaintiff met with |fiattorneys in 1995 and again in 2000-2001 regarding this discovery and she also contacted New York Life regarding her complaints of false promises and material misrepresentations.

Although plaintiff argues that New York Life was conducting an investigation into this matter as late as February of 2003, this action would not interrupt the running of prescription in this case. Prescription begins to run from the day of injury or the manifestation of damage. In the present case, the record indicates that plaintiff was aware or should have been aware of the alleged damage in this case when she discovered in 1995 and later in 1999 that the promises made in the purchase of the life insurance policies were not true. Plaintiffs suit filed in 2003 was therefore not timely filed.

Likewise, there is insufficient evidence in the record that plaintiffs damages were the result of a continuing tort or that the last injury to plaintiff occurred within the prescriptive period for this delictual action. We fail to find support in plaintiffs claim that plaintiffs continual act of payment of insurance premiums amounted to an additional wrongful act by defendant. Under the circumstances presented here, we find that the claims raised in plaintiffs petition have prescribed as a matter of law. We therefore find the trial court ruling granting summary judgment on this issue is correct.

Plaintiff also contends that the trial court erred in ruling that plaintiff has no cause of action for nullification of the insurance contracts because the policies have lapsed. In support of her argument claiming nullification, plaintiff relies on La. C.C. ar.t.2031, which provides in pertinent part:

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.

17However, the record in this case indicates that at the time this suit was filed, most of the policies had lapsed or had been satisfied. We also find insufficient evidence in the record indicating that the contracts are relatively null for the reasons set forth in this article. Further, the evidence presented indicates that plaintiff has continued to pay premiums on the policies after discovering the alleged wrongful acts, thus confirming any relative nullity in the contracts. Under these circumstances, we find no error of the trial court in its ruling dismissing plaintiffs claim of nullification.

Lastly, plaintiff contends the trial court should have determined that defendant’s motion for summary judgment was premature as plaintiff retained new counsel and discovery was incomplete. It is well established that trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Central Railroad Co., 93-0783 (La.1/14/94), 631 So.2d 401, 406; Oliva v. Winn-Dixie Louisiana, Inc., 99-831 (La.App. 5 Cir. 1/4/00), 756 So.2d 444, 448.

In the present case, new counsel for plaintiff enrolled on December 1, 2005 and defendant filed the motion for summary judgment on December 14, 2005. Hearing on the motion set for January 18, 2006 was continued at the request of plaintiffs counsel until February 15, 2006. Counsel for plaintiff did not move to continue this hearing date a second time, although he argued at the hearing that the motion should be denied for lack of complete discovery. As set forth herein, plaintiffs petition shows on its face that her claims have prescribed and the record fails to show that additional |Rdiscovery could have altered this fact. We therefore fail to find that the motion for summary judgment was premature in this case.

Accordingly, for the reasons assigned here, the judgment of the trial court in favor of New York Life Insurance Company dismissing the claims of plaintiff is hereby affirmed.

AFFIRMED.

      . Plaintiff also appeals from a summary judgment rendered in favor of defendant Merse-deh Ebrahimi. However, the record in this matter fails to contain either a motion filed by Ms. Ebrahimi or a judgment rendered by the trial court in Ms. Ebrahimi’s favor. On this basis, counsel for Ms. Ebrahimi filed a motion to dismiss plaintiff’s appeal as to this defendant. On September 5, 2006, this Court ordered plaintiff to show cause in writing by September 8, 2006 why her appeal as to Ms. Ebrahimi should not be dismissed. Plaintiff failed to respond to this order. Because we find no judgment in the record as to plaintiff’s claims against Ms. Ebrahimi, we are without jurisdiction to consider plaintiffs appeal as to this defendant. Thus, plaintiff’s claims as they pertain to Ms. Ebrahimi will not be considered herein.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Bruce TRAYLOR.
    Nos. KA06-1144 to KA06-1147.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Hon. Douglas L. Hebert, District Attorney, Oberlin, LA, for Appellee, State of Louisiana.
    David Deshotels, Deshotels, Deshotels, & Mouser, Oberlin, LA, for Appellant, Bruce Traylor.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

_JjOn September 16, 2005, the Defendant-Appellant, Bruce Traylor, pled guilty to distribution of cocaine, second degree battery, simple robbery and aggravated assault with a firearm. He was sentenced to serve six years for the distribution of cocaine conviction, four years for second degree battery, four years for simple robbery and four years for aggravated assault with a firearm. On March 22, 2006, the Defendant filed a Motion to Correct Sentence. The district court denied the motion as untimely filed.

The Defendant filed an application for post-conviction relief on June 19, 2006, alleging an error with his sentence. The district court denied the motion on June 19, 2006, stating that the Defendant’s claim did not allege a claim which, if established, would entitle him to relief.

The Defendant filed a “Notice and Motion of Appeal” for each case on June 27, 2006, appealing the denial of his post-conviction relief application and alleging that he did state a valid ground for relief. On June 27, 2006, the trial court signed an order granting the Defendant an appeal on each conviction.

On September 7, 2006, this court issued a rule to show cause why the appeals should not be dismissed as the judgment at issue is not appealable. In response to the rule to show cause, Defendant’s counsel submitted a “Motion and Order for Extension to File Rule to Show Cause Brief’ which was granted by this court. Defense counsel did not file a brief in response to the rule to show cause within the extended deadline. | ¡.However, the Defendant has filed a pro se writ with this court seeking review of the judgment denying his request for post-conviction relief.

Accordingly, the appeals in this case are hereby dismissed.

APPEALS DISMISSED.

      . Four separate bills of indictment were filed against the Defendant, resulting in four separate docket numbers. However, the Defendant entered his guilty plea pursuant to an agreement that encompassed all of the charges. The record does not indicate that the matters were ever consolidated and four separate appeals were lodged.


author: ROLAND L. BELSOME, Judge.

text:
    Athena ANDREW-HONG and Amy Andrew-Lee, Individually and on Behalf of the Estate of Martin Andrew v. The GRAY INSURANCE CO., ConstructionSouth, Inc. and Patton Construction Systems, Inc. Stacey Ritter v. Patton Construction Systems, Inc., ConstructionSouth, Inc., and Gray Insurance Company.
    Nos. 2006-CA-0093, 2006-CA-0094.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 2006.

      Robert B. Evans, III, Cesar R. Burgos, New Orleans, LA, for Athena Andrew-Hong and Amy Andrew-Lee, Individually and on Behalf of the Estate of Martin Andrew.
    Brian' C. Beckwith, Gretna, LA, for Stacey Ritter and Brandy Ritter.
    Donald C. Douglas, Jr., Richard S. Vale, Blue Williams, L.L.P., Metairie, LA, for ConstructionSouth, Inc. and The Gray Insurance Company.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| Martin Andrew was killed on September 16, 2002, while working as a carpenter on the construction of the New Orleans Metropolitan Convention and Visitors Bureau (Visitors Bureau). Workers were in the process of installing a wood-and-steel wall to create a mold for a concrete elevator shaft, when a 10 x 12 foot section of the wall fell and struck decedent, hurling him against a wall and leaving him hanging in his safety harness.

Mr. Andrew’s children filed two wrongful death lawsuits, which have been consolidated. The decedent’s children claim that Mr. Andrew was employed by Labor Finders, Inc. (Labor Finders) and was working as a carpenter for Construction-South, Inc. (ConstructionSouth). In its answer, ConstructionSouth and its insurer, Gray Insurance Company, asserted that it had been the decedent’s statutory employer, and thus was liable to plaintiffs only in workers’ compensation, not in tort. Con-structionSouth and Gray Insurance Company filed a motion for summary judgment to establish as a matter of law that Mr. Andrew was a borrowed servant and as such the exclusive remedy of the plaintiffs was under the workers’ compensation laws. The trial court granted the motion for summary | ¿judgment and dismissed the plaintiffs’ claims against Construction-South and Gray Insurance Company. This appeal followed.

The plaintiffs have raised separate assignments of error. First, Athena Andrew-Hong and Amy Andrew-Lee argue that the trial court erred in determining that Mr. Andrew was a borrowed servant rather than a contract worker for Con-structionSouth. ConstructionSouth

claims that the courts have consistently found the type of temporary labor relationship it has with Labor Finders to be one of a borrowed-servant relationship.

This Court reviews the granting of a motion for summary judgment de novo using the same criteria as the trial court. Rapp v. City of New Orleans, 95-1638 (La.App. 4 Cir.1996); 681 So.2d 433. If the mover establishes that there are no genuine issues of material fact to be decided, summary judgment is warranted. La. C.C. P. art. 966.

Labor Finders is a provider of temporary labor. Labor Finders supplied ConstructionSouth with workers for their construction projects. The courts have set factors that are to be considered in determining whether a worker should be characterized as a borrowed servant. Those factors are as follows:

1. Who had control over the employee and the work he was performing beyond mere suggestion of details or cooperation?
2. Whose work was being performed?
3. Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship with the employee?
6. Who furnished tools and place for performance?
7. Was the new employment over a considerable length of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?

Hall v. Equitable Shipyard, Inc., 670 So.2d 543 (La.App. 4th Cir.1996) citing Ledet v. Quality Shipyards, Inc., 615 So.2d 990, 992 (La.App. 1st Cir.1993).

The courts consider an employee borrowed, for workers’ compensation purposes, when his general employer gives up control to his borrowed employer. Freeman v. Brown’s Furniture of Bunkie, Inc., 527 So.2d 544 (La.App. 3d Cir.1988). Although no one factor is dispositive in determining borrowed servant status, the control factor weighs heavily in favor of borrowed servant status.

In support of the summary judgment, ConstructionSouth and Gray Insurance Company, presented the affidavit of Conrad Appel, President of Construction-South, Inc. Mr. Appel attested to the fact that Labor Finders did not provide any supervision for its employees on the Con-structionSouth job site. All work on the ConstructionSouth job site was overseen and supervised by ConstructionSouth personnel.

Further, ConstructionSouth and Labor Finders had an agreement in place that specified the terms of the relationship between Labor Finders and Construction-South. More specifically, the agreement is titled “Account Terms” and addresses ConstructionSouth’s payment of earned wages to Labor Finders and Labor Finders’ responsibility to the employee regarding payroll. The document provides sufficient information to establish that Labor Finders was the general employer of Mr. Andrew.

Mr. Andrew’s work for Construction-South was in furtherance of the completion of the Visitors Bureau. Clearly, this benefited ConstructionSouth. Mr. Andrew worked on the New Orleans Metropolitan Convention and Visitors Bureau project from July 10, 2002 until his death on September 16, 2002. There is nothing in the evidence to dispute that he acquiesced to the work situation.

14From the record it appears the only thing Labor Finders did in relation to Mr. Andrew during the time he was working for ConstructionSouth was draft his paycheck in accordance with the hours submitted by ConstructionSouth. There is absolutely no indication that Labor Finders had any presence on the job site or maintained any relationship with Mr. Andrew while he was working for Construction-South.

As per the agreement between Labor Finders and ConstructionSouth, Construc-tionSouth provided equipment and tools for Labor Finders’ employees. Mr. Andrew worked exclusively at the Construc-tionSouth job site for approximately two months. Although two months is not a substantial period of time, under the circumstances of this case we do not find the brief period of employment is an indication that Mr. Andrews was not a borrowed servant.

Mr. Appel’s affidavit also established that ConstructionSouth had the authority to fire a Labor Finders’ employee for dis-satisfactory work. Additionally, by their agreement, ConstructionSouth maintained the records of Mr. Andrew’s hours and paid Labor Finders a predetermined hourly rate for those hours. In turn, Labor Finders would issue Mr. Andrew a check. ConstructionSouth was the source of the funds used to pay Mr. Andrews’ wages. This is yet another factor found to be consistent with that of a borrowed servant.

For the reasons provided we must find that as a matter of law Mr. Andrew was a borrowed servant and therefore, ConstructionSouth is afforded the immunity provided such employers by La. R.S. 23:1032. Thus, workers’ compensation provides the exclusive remedy for the appellants.

| ^Alternatively, Stacey Ritter and Brandy Ritter argue that the intentional act exception to the Louisiana Workers’ Compensation Act applies in this case and therefore summary judgment was inappropriate. The burden placed on an employee in an intentional tort suit against his employer is an onerous one. To prove intentional act the employee/plaintiff must show that the employer 1) consciously desired the physical result or 2) knew that the result was substantially certain to follow. Presently, courts have failed to recognize that wanton or reckless disregard for public safety or gross negligence is sufficient to rise to the level of intentional tort. Until there are consequences on employers for placing untrained workers in hazardous situations we will continue to witness senseless injuries and fatalities.

Although this argument was raised at the trial court level, in opposition to the defendants’ motion for summary judgment, intentional act was not pled in the | ^plaintiffs’ petition. Further, the record in this case does not establish that the plaintiffs can make a prima facie showing under La. R.S. art. 23:1032(B) “intentional act” theory of recovery.

We are bound by the evidence in the record and the present status of the law. Thus, we do not find that the trial court erred in granting the summary judgment in favor of ConstructionSouth and The Gray Insurance Company.

AFFIRMED.

      . Athena Andrew-Hong and Amy Andrew-Lee filed case no. 2003-1690 and Stacey Rit-ter and Brandy Ritter filed case no.2003-13936 these cases were consolidated by the district court.

      . Stacey Ritter and Brandy Ritter concede that Mr. Andrew was a borrowed servant.

      . La. R.S. 23:1032 provides in pertinent part: A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease, (b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

      .La. R.S. 23:1032(B) states:
      B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

      . Escande v. Alliance Francaise De la Nouvelle Orleaits, 2004-1134 (La.App. 4th Cir.1/1905); 894 So.2d 488; also see Perret v. Cytec Industries, Inc., 04-745 (La.App. 5 Cir. 11/30/04); 889 So.2d 1121, writ denied 04-3004 (La.2/18/05); 89ó So.2d 34; Craft v. Wal-Mart Stores, Inc., 01-564 (La.App 3rd Cir. 10/31/01); 799 So.2d 1211.

      . Mouton v. Blue Marlin Specialty Tools, Inc., 01-648 (La.App. 3 Cir. 10/31/01); 799 So.2d 1215; Labbe v. Chemical Waste Management, Inc. 99-1562 (La.App.3/2900); 756 So.2d 613.


author: MAX N. TOBIAS, JR., Judge. KIRBY, J.

text:
    Barbara OCHSNER v. IDEALIFE INSURANCE COMPANY and Hibernia Corporation.
    No. 2004-CA-1067.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      L. Kevin Coleman, Law Office of L. Kevin Coleman, APLC, Mandeville, LA, for Plaintiff/Appellant.
    Corinne Ann Morrison, James C. Young, Heather M. Valliant, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant/Appellee (Hibernia National Bank).
    E. Ashley Carter, Raymond J. Pajares, Paige F. Rosato, Pajares & Schexnaydre, L.L.C., Covington, LA, for Defendant/Ap-pellee (Idealife Insurance Company).
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiff, Barbara Ochsner, appeals the judgment of the trial court granting the defendant’s, IdeaLife Insurance Company’s, exception of prescription. After conducting a de novo review and for the reasons that follow, we affirm.

The plaintiff-appellant, Barbara Ochs-ner, brought this action against IdeaLife Insurance Company (“IdeaLife”) to compel payment of death benefits on a life insurance policy insuring her late husband, Dr. Alton Ochsner, Jr. (“Dr.Ochsner”). Dr. Ochsner was the insured and owner of the policy and Mrs. Ochsner was the named beneficiary.

Dr. Ochsner purchased life insurance policy No. 01OU624618 from the Capitol Life Insurance Company. The policy, described as a “Flexible Premium Adjustable Life” policy, had a death benefit of $220,000.00, was effective 5 April 1985, and had a maturity date of 5 April 2020. The policy provided for an annual premium for the first year of $2,892.72 but thereafter increased to $5,599.00 annually, all to be paid in monthly installments. Additionally, the policy had provisions for cash surrender value and loan(s), and an option to convert the net payable proceeds into an annuity.

|20n 27 March 1987, Dr. Ochsner pledged the policy to First Industrial Bank (“FIB”) as collateral for loan(s) issued by FIB. FIB later merged with the First National Bank of Covington, Louisiana. Hibernia Corporation, doing business as Hibernia National Bank (“Hibernia”), subsequently purchased certain of First National Bank’s assets, one of which was Dr. Ochsner’s loan.

On 20 January 1989, Mutual Security Life Insurance Company (“Mutual Security”) assumed the policy in question from Capitol Life Insurance Company. A few years after that assumption (in the early 1990s), Mutual Security went into receivership and IdeaLife acquired its assets, including the policy in question.

In 1989, Dr. Ochsner was diagnosed with Parkinson’s disease that increasingly impaired his ability to manage his affairs; he died on 6 January 2000. IdeaLife contends that Dr. Ochsner quit paying the life insurance policy premiums in 1991. In support of its contention, IdeaLife presented copies of two notices of cancellation, dated 10 March 1991 and 1 April 1991, which Mutual Security allegedly mailed noticing non-payment of premium. Both of these notices of cancellation were directed solely to FIB and were addressed as follows:

First Industrial Bank

Jefferson Parish, LA.

Apparently, no notice was ever sent to Dr. Ochsner and no follow up by either Mutual Security or IdeaLife ensued. The evidence that IdeaLife could produce to support its alleged mailing of notices of cancellation consisted of the | ¡¡aforedescribed copies of unsigned form letters, and the affidavit of Delone Wood, an employee of IdeaLife.

When Mrs. Ochsner made claim for policy benefits in 2008, IdeaLife declined coverage, asserting a nonpayment of premiums default. Mrs. Ochsner sued contending IdeaLife failed to follow the prerequisites for forfeiting a policy pursuant to La. R.S. 22:177 and thus asserted that the policy never lapsed. Hibernia was made a defendant in the alternative as successor in interest to FIB. In the event it was found that FIB failed to notify Dr. Ochsner of the notice of cancellation, then it was alleged the bank (FIB) had breached a fiduciary duty to Dr. Ochsner, rendering it liable for payment of the death benefits due under the policy; as successor in interest, Mrs. Ochsner argued Hibernia was therefore liable. IdeaLife excepted to the petition, maintaining that since more than two years passed since the default in payment, the plaintiffs suit had prescribed under La. R.S. 22:177.

The trial court granted IdeaLife’s exception of prescription, and Mrs. Ochsner appealed.

La. R.S. 22:177 states:

§ 177 Written notice required before lapsing life policies
No life insurer shall within one year after default in payment of any premium, installment, loan or interest, declare forfeited or lapsed any policy issued or renewed, and not issued upon the payment of monthly or weekly premiums or for a term of one year or less, for nonpayment when due of any premium, installment, loan or interest, or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating:
|4(1) The amount of such premium, installment, loan or interest, or portion thereof due on such policy; and (2) The place where it shall be paid and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured or the assignee of the policy if notice of the assignment has been given to the insurer, at the last known post office address of such insured or assign-ee, postage prepaid by the insurer or any person appointed by it to collect such payment, at least fifteen and not more than forty-five days prior to the date when the same is payable.
No policy shall in any case be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. Any payment demanded by such notice and made within the time limit shall be taken to be full compliance with the requirements of the policy in respect to the time of such payment.
The affidavit of any officer, clerk or agent of the insurer or of anyone authorized to mail such notice that the notice required by this section has been duly addressed and mailed by the insurer issuing such policy, shall be presumptive evidence that such notice has been duly given. No action shall be maintained to recover under a forfeited policy, unless the same is instituted within two years from the day upon which default was made in paying the premium, installment, interest or portion thereof for which it is claimed that forfeiture ensued. This Section shall not apply to group insurance policies.

No dispute exists that La. R.S. 22:177 applies to the life insurance contract at issue in this case. We find that the purpose of La. R.S. 22:177 is to protect an insured against loss of accrued policy benefits through mere neglect to pay premiums and to give the insured or policy owner a fair chance to meet the obligation to pay a premium when due. Vining v. State Farm Life Insurance Co., 409 So.2d 1306 (La.App. 2 Cir.1982); Lemoine v. Security Industrial Ins. Co., 569 So.2d 1092 (La.App. 3 Cir.1990).

The statute indicates that the required notice had to be sent to FIB as pledgee/as-signee “at the last known post office address of such insured or assignee.” Mail addressed to “First Industrial Bank, Jefferson Parish, LA.” is not directed to a “post office address,” although we acknowledge that arguably such an address is adequate if it could be established that the United States Postal Service, could deliver the mail to the appropriate entity with such an incomplete address.

Pursuant to court order, IdeaLife and Hibernia were permitted to file an exception of no cause of action. They based their exception on the language in the first sentence of La. R.S. 22:177 which states in pertinent part that:

No life insurer shall within one year after default in payment of any premium ... declare forfeited or lapsed any policy ... unless a written ... notice [is sent.] [Emphasis added.]

In their exception, they argue that if non-payment of the policy premium persists for a period of one-year, the policy lapses ipso facto without the necessity of notice. It is uncontested that there was a failure to pay the premiums for nine years from 1991 until the death of the insured in 2000. Pursuant to this reasoning, IdeaL-ife and Hibernia contend that no policy exists and, therefore, Mrs. Ochsner has no cause of action.

We pretermit the question of whether this argument should more properly be styled a defense rather than as an exception of no cause of action. We find that, in addition to the arguments addressed to the question of cancellation without notice | fiafter a default in premium payments persists for more than one year as set forth in the exception of prescription, this issue was also the focus of the parties in their briefs directed to the exception of no cause of action, as well as being the focus of their oral arguments. The parties noted that this is simply a question of law. In other words, the parties tell us that the question they want addressed, whether it be on the exception of prescription, on the exception of no cause of action, or on the -merits, is the same: Is notice required when non-payment persists for over a year? As the answer to this question of law is disposi-tive of the entire case, and as it is based on uncontested fact, we find that it is in the interest of judicial economy and all the parties for this court to decide the case now regardless of the technical procedural vehicle we employ to do so.

First American Bank & Trust of Louisiana v. Texas Life Ins. Co., 10 F.3d 332 (5th Cir.1994) answers the question before the court in unequivocal language of great clarity; it, in effect, states that after nonpayment of the premium for one-year, a life policy lapses ipso facto without the necessity of notice:

First American, however, raises the subsidiary issue of whether Texas Life’s failure to give notice at the end of the one-year extension automatically extended the policy for another year. The bank argues that the policy can be terminated only with written notice. It contends that Texas Life never provided written notice and, therefore, the policy remained in force until Mr. Rowe’s death.
This ingenious construction is without support either in the words or the purpose of the statute. The statute’s language gives no indication that a failure to give notice of termination after that one year should result in another year of extended coverage. Moreover, that proffered interpretation would have dramatic implications: a simple mistake by an insurance company’s mail room employee could result in a self-perpetuating lifetime policy. It is true that the insurance company could terminate the policy after one year, but |7we are hesitant to impose such a drastic penalty for failure to do so. Reason dictates that the policy automatically expire after the one-year extension. [Emphasis added.]

Id. at 335.

While there are no Louisiana state court cases on point concerning La. R.S. 22:177 in which the non-payment of premiums persisted for over one-year, those cases discussing La. R.S. 22:177 consistently and strongly imply that the result reached by First American Bank, supra, is correct; no cases exist suggesting a contrary result.

For example, this court in Guillot v. Atlas Life Ins. Co., 245 So.2d 788, 789 (La.App. 4 Cir.1971), explained that:

This issue arises because of the provisions of LSA-R.S. 22:177 which clearly prohibit the lapse of any life insurance policy for non-payment of premiums within a year of default in the absence of a written notice specifically described therein addressed to the insured, except in the cases of policies issued upon the payment of monthly or weekly premiums or for a term of one year or less. There is no dispute as to the term being for more than a year or as to failure to give the prescribed notice. [Emphasis added.]

Thus, this court in Guillot implied, but did not hold, that no notice is required for defaults lasting beyond one year. The Third Circuit did the same in Francis v. Universal Life Ins. Co., 223 So.2d 188, 193 (La.App. 3 Cir.1969):

Under LSA-R.S. 22:177, the defendant in this suit is prohibited, within one year after default in payment of a premium, from declaring this policy lapsed for non-payment of premiums, unless a written or printed notice of the amount of premiums due on such policy is sent to the insured. We think the oral or verbal notices given by defendant’s agent in this instance were not sufficient to satisfy the requirements of this section of the Revised Statutes. [Emphasis added.]

|RLikewise, see Lemoine v. Security Industrial Ins. Co., 569 So.2d 1092, 1096 (La.App. 3 Cir.1990), wherein the court stated that:

Whether or not a failure to comply with the notice requirements of the statute calls for a true estoppel, the effect is to prohibit the insurer from declaring a forfeiture or lapse in a policy for the one-year period following default in payment of a premium.

In Vining v. State Farm Life Ins. Co., 409 So.2d 1306 (La.App. 2 Cir.1982), the Second Circuit also strongly implied that no notice is required after one-year:

There being no competent evidence proving that defendant sent the required notice, under the provisions of the applicable statute the defendant is therefore estopped by law from declaring the life insurance policy forfeited or lapsed for a period of one year after default in payment of the September 14, 1978, premium and the October 2,1978 partial premium. [Emphasis added.]

Id., at p. 1313.

In addition to these cases, the basic principle exists that we give effect to the language in La. R.S. 22:177 where it refers to “within one year after default in payment of any premium,” i.e., if we apply the 30-day notice provision mentioned later in the body of La. R.S. 22:177 to all defaults regardless of whether they last for more than one year, then the words “within one year” become meaningless. However, if we give effect to the words “within one year” by saying that no notice is required for defaults persisting beyond one year, we can, simultaneously and without conflict or inconsistency, give effect to the 30-day notice requirement by applying it to cancellations attempted in less than one year.

Thus, under La. R.S. 22:177, if the insured lives and received no notice of cancellation, he gets free life insurance coverage for a year. If he dies during that | syear, his beneficiary collects the policy proceeds, subject, perhaps, only to a claim for a pro-rata arrearage in unpaid premiums. This interpretation does not penalize the insured; it favors him and places the risk of loss for a whole year entirely on the insurance company. This is sufficient to achieve the public policy of protecting the insured. We agree with Judge John Minor Wisdom in First American Bank that to require the insurance company to send a notice after a year of non-payment is a “drastic penalty for the failure to do so. Reason dictates that the policy automatically expire after the one-year extension.” 10 F.3d. at 385.

For the foregoing reasons, we find in favor of IdeaLife and Hibernia, and affirm the trial court judgment granting the exception of prescription. The policy lapsed one-year after non-payment of the premiums and Dr. Ochsner under La. R.S. 22:177 had “two years from the day upon which default was made in paying the premium ... for which it is claimed that the forfeiture ensued,” in which to bring this suit. As this effectively answers and disposes of the question that forms the basis of the appellees’ exception of no cause of action, we find that exception moot.

AFFIRMED.

ARMSTRONG, C.J., concur in the decision to affirm the judgment of the trial court.

JONES, J., dissent for the reasons assigned by Judge Kirby.

KIRBY, J., Dissents with reasons.

KIRBY, J.

DISSENTING.

|TI respectfully dissent. A cursory reading of La. R.S. 22:177 shows that the required notice must be sent to First Industrial Bank as pledgee/assignee “at the last known post office address of such insured or assignee.” Certainly mail addressed to “First Industrial Bank, Jefferson Parish, LA.” is not directed to a “post office address.” The statute was not strictly complied with. I would hold that prescription in this case never began to run and it was error for the trial court to grant the exception of prescription.

I think the reliance on First American Bank & Trust of Louisiana v. Texas Life Ins.Co., 10 F.3d 332 (5th Cir.1994), is misplaced because the federal court there failed to grasp the Civil Law distinction between a pledgee and an assignee. As-signee is defined in La. C.C. art. 3506(5):

Assigns means those to whom rights have been transmitted by particular title; such as sale, donation, legacy, transfer or cession.

Pledge is defined by La. C.C. art. 3133:

The pledge is a contract by which one debtor gives something to his creditor as a security for his debt.

The effects of the pledge or pawn of an incorporeal immovable, as took place here, are explained in La. C.C. art. 3157, to wit:

| ?The pawn invests the creditor with the right of causing his debt to be satisfied by privilege and in preference to the other creditors of his debtor, out of the product of the movable, corporeal or incorporeal, which has been thus burdened.

This distinction is of import because a pledge, or a security interest, is an ancillary obligation that does not divest the pledgor of his title. The underlying reason is that the pledgor has a greater interest in preserving and protecting his property than someone who merely has a security interest in a thing as collateral. This case epitomizes why that distinction cannot be glossed over. Once Dr. Ochs-ner would have repaid the loan, the bank would have had no interest in preserving the pledged life insurance. This may explain why the insured never received notice of forfeiture of his paid premiums (totaling over $30,000.00), a result that this statute was designed to prevent. The only other logical explanation is that since First Industrial Bank was defunct, and there was no post office address listed, the notice was lost. Either way, La. R.S. 22:177 is clear on the type of notice that is required.

The burden that La. R.S. 22:177 places upon the insurer to send notice of forfeiture is minimal. I further disagree with the following statement in First American Bank and Trust, supra:

The statute’s language gives no indication that a failure to give notice of termination after that one year should result in another year of extended coverage. Moreover, that proffered interpretation would have dramatic implications: a simple mistake by an insurance company’s mail room employee could result in a self-perpetuating lifetime policy.

In the first place, there is privity of contract between the insurer and the insured. I can find no instance where the law allows a corporate entity to forfeit a customer’s premiums because the entity has a large number of accounts with lawhich to contend. This is obviously the premise behind the First American Bank & Trust court’s statement that “a simple mistake by ... [a] mail room employee could result in a self-perpetuating lifetime policy.” Secondly, even if a whole life insurer did absolutely nothing except receive premiums for several years, its liability would not be self-perpetuating beyond the ten year liberative prescriptive period for personal actions as found in La. C.C. art. 3499.

IdeaLife’s argument that, since La. R.S. 22:177 states: “No life insurer shall within one year after default in payment of any premium, ... declare forfeited or lapsed any policy, ...” [emphasis added] we should construe it to mean that after the passage of one year from default in payment of any premium all life insurers shall declare the subject policy forfeited or lapsed. This contention is untenable because it requires one to draw an affirmative conclusion from a negative premise. Such an action cannot be validated. The federal court in First American Bank & Trust was willing to assume this alternate proposition to be true, contrary to the law which mandates strict interpretation of forfeiture statutes. The fallacy of First American Bank & Trust’s rationale is that it drew an affirmative conclusion from a negative premise. One can only venture that First American Bank & Trust attempted to give meaning to the perceived ambiguous prepositional phrase “within one year.” Nevertheless, our rules of statutory construction do not permit one to reach the result that the First American Bank & Trust court reached. La. C.C. art. 9 teaches us to apply clear and unambiguous laws as written unless to do so would lead to absurd consequences. When the language of the law can have multiple meanings La. C.C. art. 10 mandates us to give it the meaning that best conforms to the purpose of the law. Had the Louisiana Legislature intended for life insurance companies to have the right to declare forfeited all unpaid life, insurance premiums after the lapse of one year without any notice being given, .it | ¿could have explicitly said so. This is not the case, though, and we may not substitute our will for that of the legislature.

For these reasons I would reverse the judgment of the court below and remand for further proceedings.

      . The transaction was characterized as an assignment for purposes of security.

      . This is not a case of forfeiture for which La. R.S. 22:166-168 and La. R.S. 22:526 were enacted.

      . It should be noted that the plaintiff's opposition to the exception was based entirely on the underlying question of whether notice is required after one year. The plaintiff's opposition did not raise the argument that the exception might more properly be raised as a defense, undoubtedly because she wished to have the underlying issue addressed in the interest of judicial economy and we have to agree. The plaintiff in her Reply Brief to the appeal expressly stated this wish:
      However, since a reversal would only result in this same case coming before this Honorable Court on the same uncontested facts and the same legal issue, in the interests of judicial efficiency, as well as the avoidance of the redundant costs and expenses all parties would incur, Appellant, Mrs. Ochs-ner, agrees with Appellee, IdeaLife, that this Honorable Court should consider this appeal now and render a judgment on the merits. Mrs. Ochsner will therefore now address each of the points raised in IdeaL-ife's brief.

      . The Civil Codes of Europe, for example the Italian Civil Code, are more protective of the consumer than the Uniform Commercial Code.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Clara RICKS v. Bobby BUTLER, and Associated Hospital Services, Inc.
    No. 2006-C-0847.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.
    Raymond A. Pelleteri, Jr., Gina G. Olivier, Pelleteri, Wiedorn & Cooper, L.L.C., New Orleans, LA, for Bobbie Butler.
    Thomas L. Gaudry, Jr., Thomas W. Darling, Gaudry, Ranson, Higgins & Gremil-lion, L.L.C., Baton Rouge, La, for Zurich American Insurance Company.

      (Court composed of Chief Judge Joan Bernard Armstrong, Judge James F. McKay III and Judge Leon A. Cannizzaro Jr.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| ,The relator/defendant, Bobby Butler, seeks supervisory review of the judgment granting the respondent/defendant, Zurich American Insurance Company’s (Zurich) motion for summary judgment.

Zurich is the insurer of Associated Hospital Services, Inc. (Associated), a hospital laundry service business owned by East Jefferson and West Jefferson Hospitals. At all times relevant to this litigation, the plaintiff, Ms. Clara Ricks, and the relator, Bobby Butler, were co-employees of Associated, Zurich’s insured. The plaintiff was employed in Associated’s pack room. Relator served as Associated’s President and Chief Executive Officer.

The plaintiff alleges the following: On July 25, 2003, plaintiff was leaning over a laundry cart, with one foot on the ground and her other leg raised off the floor, attempting to reach a bag of dirty towels on the other side of the cart. As relator walked past the plaintiff, he lifted the plaintiffs raised leg, causing her to fall headfirst into the laundry cart. Plaintiff sued Associated; Zurich, Associated’s general liability carrier; relator, Bobby Butler; and State Farm Fire and Casualty Company, relator’s homeowner’s insurer, for intentional tortious injury. Plaintiff also sued the Louisiana Workers Compensation Corporation.

| ¡.Zurich and relator filed cross-motions for summary judgment. Zurich sought dismissal asserting that its policy did not provide coverage for the plaintiffs claims by virtue of the “bodily injury” exclusions in its insurance contract. Relator sought dismissal of the plaintiffs claims against him on the basis of the exclusivity provision of the Workers Compensation law.

By judgment dated May 30, 2006, the trial court granted Zurich’s Motion for Summary Judgment and dismissed it from the litigation. In that same judgment, the court also denied relator’s Motion for Summary Judgment.

This timely application followed.

The threshhold question to be answered herein is whether this Court should exercise its supervisory jurisdiction to review the grant of Zurich’s Motion for Summary Judgment. An appellate court generally will not exercise its discretionary supervisory jurisdiction absent a showing of irreparable injury or unless an ordinary appeal does not afford an adequate remedy, Miller v. Tassin, 02-2383 (La.App. 4 Cir. 6/4/03), 849 So.2d 782, 790; State Farm General Ins. Co. v. Fink, 99-1833 (La.App. 4 Cir. 12/29/99), 751 So.2d 335, 337.

We find that this Court should not entertain the merits of this application for supervisory review because the grant of summary judgment in this case is a final, appealable judgment, in spite of the fact that it was a partial judgment that was not certified as final.

A final judgment of a trial court can be appealed. La. C.C.P. art. 2083. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. Whether a partial judgment is appealable is determined by examining the requirements of La. C.C. P. art. 1915 which provides in part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
* * :¡: *
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
* * * *
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay. [Emphasis added.]

We find that the trial court’s May 30, 2006 summary judgment dismissing Zurich from the litigation is a partial final judgment under La. C.C.P. art. 1915(A), and is immediately appealable under La. C.C.P. art. 1911, which provides that “[a]n appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.” La. C.C.P. art. 1911. This Court explained in Weeks, Kavanagh Rendeiro v. Blake, 02-0964 (La.App. 4 Cir. 8/14/02), 826 So.2d 577, why the dismissal of a party is a final judgment under Article 1915(A) as amended in 1999 (effective January 1, 2000):

| ¿The comments to La. C.C.P. art. 1915 further clarifies that cases that fall under La. C.C.P. art. 1915(A) are appeal-able, without the necessity of a designation. [FN1 omitted.] The legislature provided additional clarification as to partial final judgments governed by La. C.C.P. art. 1915(A) which are appealable without having to be so designated, by adding the following two sentences to La. C.C.P. art. 1911:
No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated. [Emphasis added.]

Id., 02-0964, p. 5, 826 So.2d at 580-581.

The Fifth Circuit went into greater depth in Regency Motors of Metairie, L.L.C. v. Hibernia-Rosenthal Ins., 03-1312 (La.App. 5 Cir. 2 /23/04), 868 So.2d 905:

We are not restricted by the cases cited by defendant to support its argument that this judgment is not appealable, because those cases were rendered prior to a 1999 amendment to Article 1915(B)(1). [FN 3 omitted.] Prior to the 1999 amendment, a judgment that related to “as to one or more but less than all of the claims, demands, issues, theories, or parties [emphasis added]” could not constitute a final judgment unless designated as such by the court “after an express determination that there is no just reason for delay.”
Acts 1999, No. 1263, § 1, eliminated the term “parties” from (B)(1) to eliminate confusion with Article 1915(A). A partial final judgment under Article 1915(B) is appealable only if so designated by the court, while a final judgment under Article 1915(A) is appealable without being so designated, except for a partial summary judgment under Article 966(E). As mentioned above, Art. 966(E) is not applicable to the summary judgment in favor of Federal; thus, the judgment before us is appealable.

Id., 03-1312, pp. 4-5, 868 So.2d at 907-908.

IsThe Louisiana Supreme Court, in its very recent opinion rendered in Strother v. Continental Casualty Co., et al, 06-0302 (La.6/2/06), 930 So.2d 948, also noted the distinction between appeals under La. C.C.P. art. 1915(A) and those which fall under 1915(B), thereby strongly implying agreement with the above cited cases. See also: Cavalier v. Rivere’s Trucking, Inc., 03-2197 (La.App. 1 Cir. 9/17/04), 897 So.2d 38; Sheppard v. City of Baton Rouge, 02-2421 (La.App. 1 Cir. 9/17/04) 897 So.2d 25, writ den. 04-2566 (La.1/14/05), 889 So.2d 268; and Motorola, Inc. v. Associated Indem. Corp., 02-0716 (La.App. 1 Cir. 04/30/03), 867 So.2d 715.

Having found that the judgment at issue in this writ application is a final, appeal-able judgment, we hereby convert this writ application into a timely devolutive appeal pursuant to the procedure adopted by this Court in Blake, supra, and order that appeal costs be paid and the record prepared and lodged with this Court.

WRIT CONVERTED TO AN APPEAL.

McKAY, J., concurs in the result.

      . Relator seeks supervisory review of this adverse ruling in the companion writ Clara Ricks v. Bobby Butler, et al, No.2006-C-0848.

      . Accord: Stiltner v. Stiltner, 00-2079 (La.App. 4 Cir. 11/8/00), 772 So.2d 909.


author: DAVID S. GORBATY, Judge.

text:
    Godiva HAWKINS-ROBERTSON, Steven Hawkins, Sr., and Joell Jackson on Behalf of her Minor Child Kevin Jackson, and the Succession of Steven Hawkins, Jr. v. Eric HESSLER and the New Orleans Police Department.
    No. 2006-C-0004.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      Penya M. Moses-Fields, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Franz Zibilich, Associate City Attorney, Heather M. Valliant, James B. Mullaly, Assistant City Attorneys, New Orleans, LA, for Eric Hessler and New Orleans Police Department.
    Craig S. Sossaman, Craig S. Sossaman, P.L.C., Metairie, LA, for Godiva Hawkins Robertson, et al.
    Court composed of Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD.
   DAVID S. GORBATY, Judge.

h On January 3, 2006, the City of New Orleans filed this writ application seeking review of a judgment of the trial court denying its motion for court ordered DNA of the minor child, Kevin Jackson, and its motion to disqualify plaintiffs’ counsel. This court denied the writ, finding no abuse of discretion. Defendants sought writs from the Louisiana Supreme Court, which were granted. The Supreme Court remanded the matter to this court for briefing, oral argument, and opinion. Hawkins-Robertson v. Hessler, 2006-0563 (La.5/5/06), 927 So.2d 319. For the reasons set forth below, we deny the writ and affirm the judgment of the trial court.

FACTS

The instant litigation arises out of the death of Steven Hawkins, Jr., who was shot by police officer Eric Hessler in 2000. Mr. Hawkins parents, Godiva Hawkins Robertson and Steven Hawkins, Sr., along with Joell Jackson, on behalf of the minor child, Kevin Jackson, filed survival and wrongful death actions against Eric Hes-sler and the New Orleans Police department (NOPD). In the original petition, the plaintiffs alleged that Kevin Jackson was the decedent’s only child. Several | ¡.months after the suit was filed, the plaintiffs, Godiva Hawkins Robertson, Steven Hawkins, and Joell Jackson, filed a petition to establish filiation and paternity wherein they alleged, “It is thought that Steven Hawkins, Jr. was the father of the minor child, Kevin Jackson, born on September 29, 1995.” Accordingly the parties requested that the court appoint Reliagene Technologies, Inc. (Reliagene) or another dependable paternity testing entity to perform paternity/DNA testing on Kevin Jackson, on his mother, Joell Jackson, and on the parents of the decedent, Steven Hawkins. On November 2, 2000, the trial court signed an order authorizing Relia-gene to perform the requested paternity testing upon the minor, Kevin Jackson, his mother, Joell Jackson, and the parents of the decedent, Godiva Hawkins Robertson and Steven Hawkins, Sr., to determine whether the decedent was the father of Kevin Jackson.

The results of the court ordered paternity testing are apparently unknown to the City; however, in March of 2001, the plaintiffs filed a motion to dismiss their petition to establish filiation and paternity. Additionally, they filed a supplemental and amending petition deleting the allegations that Kevin Jackson was the decedent’s only child. Further, in June of 2001, Joell Jackson, on behalf of her minor child, Kevin Jackson, filed a motion to dismiss her son’s claims in the survival and wrongful death actions, reserving unto the grandparents the rights to pursue their actions. By order dated June 20, 2001, the trial court dismissed, with prejudice, the claims of the minor child.

On March 9, 2005, the City allegedly served a subpoena upon the minor child, through his mother, directing the child to appear and provide a DNA sample. A copy of the subpoena was also allegedly served on plaintiffs’ counsel. Included with the City’s writ application is a copy of a motion to quash the City’s subpoena 1 ¡¡requesting that the minor child submit to a blood test pending a hearing. In the memorandum filed with the trial court in support of the motion to quash the City’s subpoena requiring the minor child to appear for DNA testing, the plaintiffs averred that while they had initially alleged that the minor child was the child of the decedent, “[i]t was later determined that in fact, though the decedent, Steven Hawkins, Jr., treated Kevin Jackson, Jr., as his son, he, in fact, was not the biological father of the minor child.”’ For that reason, the plaintiffs alleged that the claims of the minor child had been dismissed. Inasmuch as the child was a non-party to the litigation, the plaintiffs argued that a subpoena directing invasive medical testing was improper and an abuse of the subpoena power of the court. Plaintiffs argued that if the defendants wished to have the paternity of the minor child established, it should have filed a petition to establish paternity and sought an order directing that such blood testing be performed. Accordingly, the plaintiffs requested that the subpoena and subpoena duces tecum issued to the minor child through his mother be quashed.

The City filed an opposition memorandum to the motion to quash their subpoena. They argued that the issue of whether Kevin Jackson is in fact the son of the decedent is relevant to the issue of whether the grandparents can now pursue the remaining claims because parents have no right of action in a survival or wrongful death claim if there is a surviving child. The City argued that it could not properly defend against the parents’ claims against it without proof that the minor child is in fact the child of the decedent. They argued that information concerning the child’s paternity was relevant and discoverable under La. C.C.P. part. 1422 and 1464. Moreover, the City alleged that it was now merely requesting a DNA test in the form of a non-invasive, painless cheek swab of the minor child.

Following a hearing on July 29, 2005, the trial court signed a judgment on August 8, 2005 denying the City’s motions to disqualify counsel and for court ordered DNA testing. The City seeks review of this judgment.

DISCUSSION

The City cites numerous cases for the proposition that DNA testing is an acceptable method of establishing paternity. However, it does not appear that this was a contested issue in the trial court. Rather, in its motion to quash the City’s subpoena, the plaintiffs merely argued that the City had no right to issue a subpoena to a non-party to the litigation for DNA testing. In essence, the plaintiffs argue that the City has no right to establish the paternity of the minor child because the child is no longer a party to these proceedings.

However, the City argues that determining whether the child is the child of the decedent is necessary in order for it to properly defend the remaining case of the decedent’s parents. It notes that pursuant to La. C.C. art. 2315.1 and La. C.C. art. 2315.2, the parents have no right to maintain survival and wrongful [fideath actions if the decedent left a surviving child. If the minor child, Kevin Jackson, is a child of the decedent within the meaning of the two statutes, the parents cannot maintain their actions against the City.

In general, “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” La. C.C.P. art. 1422. Connick v. Brechtel, 98-0543, p. 7 (La.App. 4 Cir. 4/22/98), 713 So.2d 583, 587. Assuming the child could be considered a child of the decedent if it can be shown he is the decedent’s biological child, the results of any DNA testing would conceivably be relevant to the City’s defense.

The writ application contains an order signed by the trial judge dismissing with prejudice the action filed on behalf of the child. That order was signed in June of 2001, and no one filed an objection or appealed that judgment. It is a final judgment. Since these proceedings have been dismissed, the child no longer has any right to pursue survival or wrongful death claims. Thus, the question arises as to whether the City can seek to prove paternity when the child can no longer do so.

A similar issue was addressed by the Second Circuit in Chatelain v. State, Dept. of Transp. and Development, 566 So.2d 156 (La.App. 2 Cir.1990), reversed, 586 So.2d 1373 (La.1991). In that case a decedent’s mother timely filed a wrongful death action alleging that the decedent was not survived by wife or children. The tutrix of decedent’s illegitimate child filed an untimely motion to intervene alleging filiation. Following the denial of the motion, the defendants filed an exception of no right of action against the mother. The trial court found decedent had informally acknowledged the illegitimate child and sustained the |fiexception of no right of action against the mother. The mother appealed and the second circuit affirmed, finding that the fact that the child existed excluded the mother of decedent as a class two wrongful death beneficiary. The appeal court concluded that the legitimated child who had failed to timely filed suit would not be legally deemed to be nonexistent. On appeal, the Louisiana Supreme Court reversed and remanded the case, finding that the evidence did not support the trial court’s finding that the decedent had informally acknowledged the child. The court did not directly address the issue of whether the fact that the alleged legitimated child’s claim had prescribed prevented the defendants from proving paternity. However, in a concurring opinion, Justice Dennis addressed the issue stating:

I respectfully concur. If the unfiliat-ed illegitimate had a wrongful death claim, it has prescribed. Court of Appeal Judge Hightower’s dissent is persuasive that it was not the legislative aim to enable a tortfeasor to revive such a claim and use it as an affirmative defense against the just claims of a deceased’s legitimate relatives. Furthermore, the general rule is that a person has a right to use a prescribed obligation-as a defense only when he is the person who had a right to enforce it. La.C.C.P. art. 424. The defendants had no right to enforce the illegitimate’s cause of action or obligation, so they could not use it as a defense.
Chatelain, 586 So.2d at 1381.

The City cites no cases wherein a non-party was ordered to submit to a physical examination. Even in case involving a request for a medical examination of a party, the mover must demonstrate (1) that the physical or mental condition of the party sought to be examined is in controversy, and (2) that good cause exists 17for requiring the party to submit to the examination. LSA-C.C.P. art. 1464; Leaf v. Leaf, 2001-1417 (La.App. 4 Cir.8/15/01), 796 So.2d 42, (La.App. 4 Cir.2001). It is required that the party seeking to compel a DNA test must establish a prima facie showing of the reasonable possibility of a match or non-match, depending on the party seeking the test and the reasons, before obtaining the requested order. Hargrave v. Brown, 00-1082 (La.App. 5 Cir. 3/22/01), 783 So.2d 497.

The only alleged basis for requiring a paternity test in the instant case is that the plaintiffs originally averred that it was thought that the minor child was the child of the decedent and sought paternity testing to prove it. No information has been provided concerning the results of that court-ordered testing or the basis for the plaintiffs’ later allegation that the minor child was not the decedent’s biological child. Thus, this court has no way of determining the possibility of a match or non-match. No basis exists for allowing paternity testing because the City failed to establish a prima facie case of reasonable possibility that the minor child is the child of the decedent.

The trial court is afforded wide discretion in granting physical examinations La. C.C.P. art. 1464; Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46. We find that the trial court did not abuse its discretion by refusing to order the minor child to submit to paternity testing simply to satisfy the unexplained doubts of the City.

The City also seeks review of its motion to disqualify plaintiffs’ counsel on the basis that he will be called as a-material witness, presumably on the issue of paternity. Since this court has determined that the trial court did not err in denying |sthe motion to order DNA testing, the issue of whether plaintiffs’ counsel should be disqualified is moot

CONCLUSION

Accordingly, for the foregoing reasons, we deny the writ and specifically find that the trial court did not abuse its discretion.

WRIT DENIED.

      . This case has been before this court several times, and detailed facts can be found at Robertson v. Hessler, 2003-1060 (La. App 4 Cir. 4/14/04), 881 So.2d 116, writ denied, 2004-1168 (La.7/2/04), 877 So.2d 149.

      . Exhibit 7, p. 1 of memorandum in support of motion to quash subpoenas.

      . The judgment further decreed that the discovery deposition of Joell Jackson’s mother scheduled for August 2, 2005 be limited to inquiry as to the location of Joell Jackson.

      . La. C.C. art. 2315.1 provides in relevant part:
      A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

        (2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving, (emphasis added)

      . La. C.C. art. 2315.2 provides in relevant part:
      A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

      . The dissenting judge however stated that "child” as used in La. C.C. art 2315 referred only to those person who timely establish filiation according to law. Moreover he opined that the right to establish filiation was personal to the child or someone acting on the child’s behalf and that the defendants should not be allowed to establish filiation.


author: STEWART, J.

text:
    Steven W. JENKINS, Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY, et al., Defendants-Appellees.
    No. 41,566-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 15, 2006.

      Dollar Laird L.L.P. by Johnny E. Dollar, Monroe, for Appellant, Steven W. Jenkins.
    Larry Feldmán, Jr., New Orleans, for Iriterven'or Appellee, International Paper Company.
    Juge, Napolitano, Guilbeau, Ruli, Frie-man & Whiteley by Jeffrey C. Napolitano; Breaud & Meyers by Andrew H. Meyers, Lafayette, for Appellee, BE & K Construction.
    Hayes, Harkey, Smith &-.Cascio by Thomas M. Hayes, III, Monroe, for Appel-lee, James Brinkley Co., Inc.
    Shotwell, Brown, & Sperry by Clarence A. Martin, III, Monroe, for Appellee, Voith Paper, Inc.'
    Before BROWN, WILLIAMS and STEWART, JJ.
   STEWART, J.

hln this products liability action, the plaintiff, Steven W. Jenkins, appeals the dismissal by summary judgment of his claims against defendants, Voith Paper, Inc., and James Brinkley Company, Inc. For the reasons expressed, we affirm.

FACTS

At the time of the accident, Steven W. Jenkins had been employed by International Paper Company (“IP”) in Bastrop, Louisiana, for ten years. He spent the last seven of those years as an operator in the re-pulping section of the plant. The re-pulping process converts scrap paper, such as defective rolls, to reusable pulp. From a staging area, the scrap paper was placed on a belt conveyor that was level with the floor; the legs of the conveyor sat in a pit four feet below floor level. The conveyor moved the paper through a guillotine, also referred to as a roll splitter, that cut the rolls. The cut paper was then moved upwards on a slat conveyor to continue the re-pulping process.

The re-pulping system was procured by IP in 1988 and 1989. IP designed the system layout and contracted with Voith Paper, Inc. (“Voith”) for the purchase of the machinery for the system. Voith contracted with James Brinkley Company, Inc. (“Brinkley”) to manufacture the machinery. The machinery was shipped by Brinkley directly to IP, who contracted with another entity for installation. Once the machinery was installed, the layout left a gap between the staging area and the conveyor. The tires of machinery unloading scrap paper on the conveyor would get caught in the gap, and this damaged the conveyor belts. To remedy the problem, IP ^installed a metal plate extending from the edge of the staging area toward the conveyor. The metal plate left a smaller gap of 2)6 inches between the staging area and the conveyor. The gap created a nip point when the conveyor was operated.

The accident which led to this litigation occurred on July 2, 2002. Jenkins arrived on the job to find that the conveyor was jammed. According to Jenkins’ deposition, he stood on the concrete staging area while his co-worker operated the conveyor in reverse so that he could pull out the jammed paper to the staging area. However, he did not realize that the reverse operation was pulling the paper off the staging area and under the machinery. When Jenkins stepped on the moving paper, his feet became entangled in it, and his legs were pulled down into the gap, or nip point, between the concrete staging area and the conveyor. He sustained severe injuries, including crushed ankles and fractured bones in his right leg and knee.

Jenkins filed suit against his employer alleging that the gap posed an extreme danger to workers. He alleged that the gap of 2% inches had existed for several years, that IP’s managers and supervisors had repeatedly been notified of the danger posed by the gap and asked to place a guard over it or close it in some other way, and that IP had taken no action to remedy the problem. In his first amended petition, Jenkins added eleven more | ^defendants, including Brinkley, all of whom were alleged to either have designed, manufactured, installed, or maintained the re-pulping machinery. Jenkins alleged that the absence of a guard was an unreasonably dangerous condition, and he asserted product liability claims of defective design, defective construction, and inadequate warning. Jenkins reasserted these claims in a second amended petition, which added Voith as a defendant.

Both Brinkley and Voith filed motions for summary judgment, which were granted by the trial court in a judgment rendered March 16, 2006. This appeal by Jenkins followed.

APPLICABLE LAW

Appellate courts conduct a de novo review of summary judgment under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Welch v. Technotrim, Inc., 34,355 (La.App.2d Cir.1/24/01), 778 So.2d 728, writ denied, 2001-0512 (La.6/15/01), 793 So.2d 1232.

The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2). However, when the moving party will not bear the burden of proof at trial on the matter before the court on summary judgment and points out an absence of factual support for one or more elements essential l4to the adverse party’s claim, the non-moving party must produce factual support sufficient to show that he will be able to satisfy his evidentiary burden at trial. Otherwise, there is no genuine issue of material fact for trial, and summary judgment is appropriate. La. C.C.P. arts. 966 and 967; Welch, supra.

The exclusive theories of liability for manufacturers for damages caused by their products are set forth in the Louisiana Products Liability Act (“LPLA”), La. R.S. 9:2800.51 et seq. Welch, supra. A manufacturer shall be liable for damage caused by an unreasonably dangerous characteristic of a product when such damage arose from a reasonably anticipated use of the product. Id; La. R.S. 9:2800:54(A). A seller may be considered a manufacturer if he exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage. La. R.S. 9:2800.53. A non-manufacturing seller does not incur liability under the LPLA unless he vouches for the product by holding it out as his own; however, he may be responsible for damages in tort if he knew or should have known the product was defective and failed to declare it. Slaid v. Evergreen Indem., Ltd., 32,363 (La.App.2d Cir.10/27/98), 745 So.2d 793, writ denied, 97-3036 (La.2/13/98), 709 So.2d 751.

A product may be unreasonably dangerous in the following four ways: (1) construction or composition; (2) design; (3) inadequate warning; and (4) nonconformity to an express warranty. La. R.S. 9:2800.54(B). The plaintiff has the burden of proving a product is unreasonably dangerous. La. R.S. 9:2800.55(D). Defects are not presumed by the mere occurrence of an accident. Welch, supra. Jenkins has alleged that the unguarded gap was unreasonably dangerous in construction, design, and inadequate warning.

SUMMARY JUDGMENT EVIDENCE

Brinkley’s Motion for Summary Judgment

Brinkley claims IP created the dangerous condition by installing the conveyor in a pit so that the belts would be at floor level and later covering the gap between the staging area and conveyor with a metal plate thereby creating an even smaller gap and a nip point. Brinkley states the machinery it manufactured was not unreasonably dangerous in construction, did not deviate from specifications, and had no defect upon leaving its control. Brinkley claims it did not know the conveyor was to be installed with the belts at floor level. Moreover, it did not design or install the metal plate to cover the gap. Brinkley claims it had no duty to warn of the danger posed by the nip point created by IP’s installation and layout. Jenkins was a sophisticated user who knew of the danger posed by the nip point, and he was not engaged in a reasonably anticipated use at the time of the accident. Rather, Jenkins was violating IP’s policy by standing in the staging area while the conveyor was operating in reverse.

Brinkley’s exhibits in support of its motion include affidavits of Clyde L.Crawford, III, Brinkley’s president, and Gary L. Edwards, Brinkley’s senior project manager, attesting that Brinkley had no knowledge of IP’s plan to install the conveyor at floor level and was not involved in the installation of the machinery at IP. Supplemental affidavits offered in |firesponse to Jenkins’ opposition relate that Brinkley was not provided IP’s layout drawing showing the conveyor mounted in a pit, that Brinkley would not have had to know that the conveyor was to be mounted in a pit to provide an anchor bolt layout for the machinery, and that Brinkley’s drawing showing the control panel four feet above the conveyor does not mean it knew the belts were at floor level.

Excerpts from the deposition of Maurice Bertrand Marquis, IP’s corporate representative, relate that IP had no documentation of Brinkley being present at the installation of the machinery or involved in the installation of the metal plate over the gap. Marquis explained that IP installed the metal plate to prevent the tires of tow motors from damaging the belts when unloading scrap rolls on the conveyor. After the accident, IP installed a cap plate to remedy the gap problem. Marquis testified that Jenkins violated IP’s policy by not shutting off the conveyor when working on it or dangerously close to it. As shown by a safety warning issued to Jenkins on June 18, 2003, IP concluded that he violated policy by working on the guillotine conveyor without placing it in ZES (zero energy state), by working on a moving conveyor, and by overriding the jog button that controlled reverse operation. IP believed that Jenkins had jammed a knife in the jog button to keep the convey- or running while he worked on it.

Brinkley’s exhibits also include excerpts from Jenkins’ deposition, in which he testified the gap had been there as long as he could remember. Jenkins said he had notified managers and a safety leader about the danger 17posed by the gap, but nothing had been done. He denied standing on the conveyor belt while it was moving.

Voith’s Motion for Summary Judgment

Voith argues that it is a non-manufacturing seller and had neither notice nor knowledge of any defects in the products sold to IP. Voith asserts that it did not install the machinery at IP and was not involved in its maintenance. Finally, Voith asserts that, as the seller, it had no duty to warn, particularly as the gap was an open and obvious danger, and Jenkins was a sophisticated user who knew of the danger.

Voith’s exhibits include excerpts from Jenkins’ deposition regarding his knowledge about the gap as related above. These excerpts also reveal that Jenkins had been a safety advocate for three years and had been concerned about the danger posed by the gap.

The exhibits also include excerpts from the Marquis deposition. These refer to drawings of the re-pulper machinery layout prepared by IP. Marquis did not know who decided to mount the conveyor legs in a pit so that the belts would be level with the floor surface; however, he admitted that IP would have either had to build the area where the re-pulper machinery was to be installed or to contract with someone to do so.

The affidavit of Robert J. Matz, Voith’s vice-president of engineering, states that Voith was not involved in designing, engineering, or manufacturing the machinery sold to IP. It simply purchased the equipment from Brinkley, who shipped it directly to IP. Matz claims that Voith neither installed nor provided maintenance for the equipment.

IsJenkins’ Opposition to the Motions for Summary Judgment

Jenkins asserts that material facts in dispute preclude summary judgment. He argues that Voith should be considered a manufacturer, because it was involved in the design process and was present at the installation of the machinery. He claims that Voith’s drawings of a similar system were the guiding point for the development of IP’s system. Jenkins admits that while he knew of the danger posed by the gap, he did not know of the specific danger posed when operating the conveyor in reverse. He had never seen paper on the staging area pulled under the machinery during reverse operation.

Jenkins argues that Brinkley knew the conveyor was to be mounted in a pit so that the belts would be at floor level. He cites an OSHA regulation, 29 C.F.R. § 1910.212, which requires a guarding device at the point where operation of the machine might expose an employee to injury, as imposing a duty on both Brinkley and Voith to have provided a guard device for the gap. Included in Jenkins’ exhibits are Brinkley’s guarantee and Voith’s proposal to IP on March 22, 1988, both of which state that they endeavor to comply with OSHA regulations but do not guarantee that the equipment supplied is in full compliance.

Among Jenkins’ exhibits are records regarding the sale and manufacture of the re-pulper machinery, including drawings by IP, Voith, and Brinkley. Also among the records is Voith’s proposal to IP on March 22, 1988, which includes operating data, features, material specifications, |9and dimensional data for the re-pulper system. The proposal suggests options for changes in the system. Jenkins stresses the importance of a fax from Voith to Brinkley on August 31, 1988, reminding Brinkley that IP wanted written confirmation that “the overall system layout they made is exactly how the equipment is to be installed.” The fax noted that IP was to be provided an “anchor bolt layout” for the system showing the location of all the anchor bolts for the equipment on one drawing.

Jenkins’ exhibits also include customer call reports by Voith which show that it sent representatives to IP from April 18, 1989 to April 21, 1989, for support during the start-up of the re-pulping system. There are additional reports by Voith from June and July of 1989, regarding problems IP wanted addressed, including an unguarded chain and sprocket area on the dewiring conveyor which IP believed Voith should have provided. Voith’s report notes that IP’s drawings showed the de-wiring conveyor without guards and that it quoted the job and got approval of the drawings without including the disputed guards.

Finally, Jenkins offers an expert report by Dr. P.F. Packman, a professor of materials and mechanical engineering at Southern Methodist University. Dr. Packman describes the gap between the conveyor and Imstaging area as a latent defect that was designed into the system and became activated when the conveyor ran in reverse. The gap and the absence of a guard made the conveyor unreasonably dangerous. Without reference to specific records, Dr. Packman concludes that both Brinkley and Voith had input in the design of the system. He explains that prior to 1988, good engineering practice required evaluation of a design for potentially dangerous “pinch points” so that either they could be designed out of the system or guards and warnings put in place to prevent injury. He concludes that the remedy of covering the gap, as IP did after the accident, was something that Voith and Brinkley could have included in the designs of the system without any adverse effect on the system’s utility.

REVIEW

Construction and Composition

La. R.S. 9:2800.55 states:

A product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer’s control, the product deviated in a material way from the manufacturer’s specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.

A claimant must demonstrate not only the manufacturer’s specifications or performance standards for the particular product, but also how the product materially deviated from those standards so as to render it “unreasonably dangerous.” Welch, supra; Morris v. United Services Auto. Ass’n., 32,528 (La.App.2d Cir.2/18/00), 756 So.2d 549.

Jenkins claims that his injury was caused by the gap between the staging area and conveyor, and that the gap was unreasonably dangerous in |n construction or composition of the re-pulper system. Having reviewed the submissions in support of and in opposition to summary judgment, including the drawings and specifications for the re-pulper system, we find no factual support for this claim. None of the specifications include a guard on the conveyor where placed adjacent to the staging area. There is no evidence that the conveyor was not manufactured according to either specifications provided to Brinkley or performance standards for similar products manufactured by Brinkley. In fact, the dangerous gap of 2j4 inches resulted from IP’s attachment of a metal plate to the staging area sometime after installation of the re-pulper system in its plant. It did not result from an act of either Brinkley or Voith. We find that Jenkins lacks factual support for this claim and will be unable to meet his evidentiary burden at trial on this issue.

Design

Jenkins’ claims against Voith and Brinkley rests largely on the design issue. La. R.S. 9:2800.56 states:

A product is unreasonably dangerous in design if, at the time the product left its manufacturer’s control:
(1) There existed an alternative design for the product that was capable of preventing the claimant’s damage; and
(2) The likelihood that the product’s design would cause the claimant’s damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.

11 ¿Thus, the claimant must prove there existed another way to design the product at the time of manufacture, the alternative design would have either been significantly less likely than the chosen design to cause the damages or would have significantly reduced such damage, and the likelihood that the product as designed at the time it left the manufacturer’s control would cause the damage along with the gravity of the damage outweighed the burden on the manufacturer of adopting the alternative design identified by the claimant. Johnson v. Black & Decker U.S., Inc., 29,996 (La.App.2d Cir.10/31/97), 701 So.2d 1360, writ denied, 97-2971 (La.2/6/98), 709 So.2d 741.

The unreasonably dangerous condition identified by the plaintiff as the cause of the accident is the gap of inches between the staging area and the convey- or. Dr. Packman’s report concluded that the gap was designed into the system and dimensioned in Brinkley’s design drawing in 1988. He also asserted that Voith had design input and drew design specifications. Dr. Packman explained that good engineering practice in 1988, required Voith or Brinkley to evaluate the design for dangerous pinch points so that these could either be eliminated or protected by a guard. He suggested that either Voith or Brinkley could have designed and installed a simple guard similar to that ultimately used by IP after the accident.

Review of the Brinkley drawing referred to by Dr. Packman does not support his . claim that the gap was dimensioned in its drawing. The Brinkley drawing is of the guillotine with belt conveyor standing alone. It is not shown in relation to the staging area as part of IP’s planned layout. lisContrary to Jenkins’ assertions, nothing in the Brinkley drawing shows that the conveyor was to be mounted in a pit with the belts at floor level in close proximity to a staging area where a dangerous nip point might be created. Voith’s drawing appears substantially the same as Brinkley’s. The only drawing showing the layout of the entire system is IP’s drawing (No. 176-L-IPE), which includes a gap of one foot between the staging area and the conveyor and does not call for any guard at the start of the conveyor. Jenkins has no evidence that Brinkley received IP’s drawing, which showed the layout of the re-pulping system in conjunction with the staging area. Affidavits submitted by Clyde Crawford and Gary Edwards of Brinkley specifically deny receipt of the drawing or knowledge of IP’s planned layout.

Review of the exhibits establishes that the gap was not the result of the manufacture or design of the conveyor and re-pulper machinery by either Voith or Brinkley. The gap between the staging area and the conveyor was the result of IP’s design layout and installation of its re-pulper system. This layout was not designed by either Voith or Brinkley. Nor does the record show that either Voith or Brinkley was involved in creating the 2% inch gap with the dangerous nip point. Rather, IP designed the layout and, sometime after installation of the re-pulper machinery, created the 2% inch gap by installing a metal plate extending from the staging area toward the conveyor in an effort reduce the larger gap so as to prevent damage to the conveyor’s belts. It did not install the plate as a guard to protect its employees from a dangerous nip point. Other than Jenkins’ unsupported | ustatement in his brief that the larger gap of 8]4 inches posed an even greater danger, there is no evidence that the larger gap designed into the system by IP posed a danger by creating a nip point, raised safety concerns, or required a guard for employee safety. This lack of evidence coupled with the fact that creation of the 2i4 inch gap was solely due to IP’s attachment of a metal plate to the staging shows an absence of factual support for Jenkins design claim.

Because the gap was created solely by IP’s system layout and installation of the metal plate, Jenkins exhibits in opposition to the motions for summary judgment do not establish that he will be able to meet his evidentiary burden at trial. The exhibits do not show that either Voith or Brinkley designed the system layout, and there is no showing of a defect in the design of the machinery sold by Voith and manufactured by Brinkley. Even considering the OSHA regulation, 29 C.F.R. § 1910.212, requiring a guard at ingoing nip points or at the point of operation on the machine where the work is actually performed on the material being processed, Jenkins has not produced evidence to establish that this regulation required either Voith or Brinkley to ensure that a guard was attached to the conveyor. Dr. Packman’s opinion that Voith and Brinkley should have evaluated the system for possible “pinch points” does not raise an issue of fact as the gap between the staging area and conveyor resulted from the system layout, and neither defendant designed the system layout. Defendants were only involved in the sale and manufacture of the machinery components for the re-pulper system.

11fiInadequate Warning

La. R.S. 9:2800.57 provides:

A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristic.
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.
C. A manufacturer of a product who, after the product has left his control acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

As stated, the unreasonably dangerous condition of the 2)4 inch gap did not exist when the guillotine conveyor left Brinkley’s control or even when Voith’s representatives were present at IP for the start-up of the system. The gap was not a characteristic of the machinery sold by Voith and manufactured by Brinkley. It was the result of IP’s layout and later installation of a metal plate. Nothing in the record even suggests that either defendant had knowledge of IP’s installation of the metal plate to protect the belts from damage. Consequently, neither defendant could be Irresponsible for warning of a condition of which they had no knowledge and which did not exist until sometime after the manufacture and installation of the re-pulper system.

Moreover, excerpts from Jenkins’ depositions establish that he had knowledge of the danger posed by the gap. His claim that he did not know of the danger posed by reverse operation of the conveyor is not convincing and does not create an issue of fact. Even if, as claimed, he had never seen paper pulled under the machinery during reverse operation, the danger posed by the gap is that of ah employee becoming ensnared in the nip point during the conveyor’s operation. This danger is obviously present both in forward and reverse operation. Jenkins lacks factual support for the claim of inadequate warning.

CONCLUSION

Upon review of the record, we find no genuine issue of material fact that would preclude summary judgment dismissing Jenkins’ claims against Voith and Brinkley. Costs of the appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . Though not specifically explained in the record, a nip point appears to be an area where a narrow opening exists in machinery and poses a danger during operation of ensnaring workers and causing injury.

      . Various parts of the record refer to the gap as being either 2 l/i or 2¡4 inches. Either way, the gap was slightly more than two inches,

      . Voith’s proposal letter of March 22, 1988, refers to the re-pulper machinery being sold as a "Pulper Charging System,” which includes a Roll Splitter with Thru Conveyor, Slat Conveyor, and Dewiring Dump Table. Our review of the record suggests that the Roll Splitter with Thru Conveyor is what the parties refer to as the guillotine cutter and guillotine conveyor or belt conveyor onto which the scrap paper is loaded and conveyed through the guillotine or splitter. Additional machinery for the system was sold by Voith via a proposal letter of May 17, 1988; this proposal pertained to the sale of a Downen-der and Dewiring Conveyor with Bale Shunt and does not appear to be related to the accident.

      . The dewiring conveyor is not the conveyor involved in Jenkins’ accident.