author: WHIPPLE, J.

text:
    David MARTIN v. PRIDE OFFSHORE COMPANY, INC.
    No. 2005 CA 2373.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Timothy J. Young, N. Husted DeRussy, New Orleans, Counsel for Claimant/Appellant, David Martin.
    Chris Broadwater, J. Alan Jordan, Baton Rouge, Counsel for Defendant/Appel-lee, Pride Offshore Company, Inc.
    Before: CARTER, C.J., WHIPPLE and McDonald, JJ.
   WHIPPLE, J.

ROn November 7, 1996, claimant, David Martin, was employed by defendant, Pride Offshore Company, Inc. (“Pride”), as a roustabout on a fixed platform rig when he was injured in a single-car accident in Mississippi. At the conclusion of claimant’s regularly scheduled seven-day “hitch,” he was flown via helicopter from the rig to a parking lot in Venice, Louisiana, where his personal vehicle was parked. Approximately two to three hours and 132 miles from Venice, while traveling on Interstate 10 in Mississippi en route to his home in Alabama, claimant fell asleep at the wheel, ran off of the road, and suffered severe injuries. Claimant contended that in the week prior to the accident, he had worked approximately 123 hours and, thus, was overcome with exhaustion.

On September 23, 1998, claimant filed a disputed claim for workers’ compensation benefits. However, the suit was stayed pending resolution of a suit claimant filed against Pride Offshore with the U.S. Department of Labor under the Longshore and Harbor Workers’ Compensation Act and a general maritime tort suit claimant filed against Pride in the Civil District Court of the Parish of Orleans, which was subsequently removed to the U.S. Eastern District Court. The stay was lifted once it was judicially determined that jurisdiction did not exist under the Longshore and Harbor Workers’ Compensation Act and claimant’s federal tort action pending in the U.S. Eastern District Court was dismissed on summary judgment.

After the stay was lifted, Pride filed a peremptory exception of res judicata and motion for summary judgment, contending that claimant’s accident did not occur within the course and scope of his employment. The matter was heard before the workers’ compensation judge (WCJ) on March 7, 2005. At the hearing, Pride requested that the peremptory exception raising |3the objection of res judicata be passed on that date, reserving the right to raise it at a later date, and the parties proceeded with argument on the motion for summary judgment. At the conclusion of the hearing, the WCJ took the matter under advisement and subsequently rendered judgment on April 21, 2005, granting the motion for summary judgment and dismissing claimant’s disputed claim for compensation with prejudice.

Pursuant to claimant’s request, the WCJ issued written reasons for judgment, concluding that Pride carried its burden of proving that no genuine issue of material fact remained in dispute; that under the undisputed facts, claimant was outside the course and scope of his employment at the time of the accident; and that claimant failed to produce any evidence to suggest otherwise. The WCJ further rejected claimant’s argument that working long hours constitutes an “accident” under LSA-R.S. 23:1201(1) and that fatigue is an “injury” as defined in LSA-R.S. 23:1021(8)(a).

From this judgment, claimant appeals, contending the WCJ erred in granting summary judgment. Pride filed an answer to the appeal, contending that claimant’s appeal has no basis in law or fact and that claimant should accordingly be ordered to pay all costs incurred by Pride in the trial court and appellate court.

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Gas-pard v. Graves, 2005-1042 (La.App. 1st Cir.3/29/06), 934 So.2d 158, 160, writs denied, 2006-0882, 2006-0958 (La.6/16/06), 909 So.2d 1286, 1289. Summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of ^material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in the light of the substantive law applicable to the case. Davis v. Specialty Diving, Inc., 98-0458, 98-0459 (La.App. 1st Cir.4/01/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/08/99), 750 So.2d 972.

On a motion for summary judgment, the initial burden of proof remains with the mover. If, however, the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. LSA-C.C.P. art. 966(C)(2); Boland v. West Feliciana Parish Police Jury, 2003-1297 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 813, writ denied, 2004-2286 (La.11/24/04), 888 So.2d 231.

An employee who sustains a personal injury by accident arising out of and in the course and scope of his employment is entitled to collect benefits from his employer under the Workers’ Compensation Act. LSA-R.S. 23:1031(A). Thus, as a threshold requirement, a workers’ compensation claimant bears the initial burden of establishing by a preponderance of the evidence personal injury by accident arising out of and in the course and scope of his employment. Arabie Brothers Trucking Company v. Gautreaux, 2003-0120 (La.App. 1st Cir.8/04/04), 880 So.2d 932, 936, writ denied, 2004-2481 (La.12/10/04), 888 So.2d 846.

| sThe requirement that an employee’s injury occur “in the course of’ employment focuses on the time and place relationship ’ between the injury and the employment. McLin v. Industrial Specialty Contractors, 2002-1539 (La.7/02/03), 851 So.2d 1135, 1139-1140. An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. McLin, 851 So.2d at 1140. The requirement that an employee’s injury “arise out of’ the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment. McLin, 851 So.2d at 1140. An injury arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. Arabie Brothers Trucking Company, 880 So.2d at 936.

The terms “arising out of’ and “in the course of’ found in LSA-R.S. 23:1031 are dual requirements that cannot be considered in isolation from each other. Guil-lory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152, 1154. In a close case, a strong showing made with reference to one requirement may compensate for a weak showing with reference to the other requirement. Guillory, 653 So.2d at 1154. However, when there is a weak showing with respect to both requirements, the employee is not entitled to compensation benefits. Lewis v. Houma Industries, 2001-0641 (La.App. 1st Cir.5/10/02), 818 So.2d 956, 958.

Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of his employment, and thus, are not compensable under the Workers’ Compensation Act. McLin, 851 So.2d at 1140. This rule, often called the | fi“going-and-coming rule,” is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work. McLin, 851 So.2d at 1140. Furthermore, an employee’s place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination. Orgerpn ex reí Orgeron v. McDonald, 93-1353 (La.7/05/94), 639 So.2d 224, 227.

The underlying facts are undisputed. As established in the record, the accident at issue herein did not occur during working hours, but occurred when claimant was traveling to his home in another state. At the time of the accident, claimant was operating his own personal vehicle, was not reimbursed for mileage, and was not paid for his travel time to work and home and vice versa. At the relevant time, claimant was not under the control of Pride but was approximately two to three hours and 130 miles away from the parking lot where he had entered his vehicle after being flown in from the rig at the end of his regularly scheduled “hitch.” Pride did not have control or direction over the route that claimant chose to take to his home, and claimant was not pursuing an errand for Pride, nor was he traveling in the interest of Pride’s business.

After a thorough review of the record and relevant jurisprudence, we find that the trial court’s reasons for judgment, which we adopt and have attached hereto as “Exhibit A,” thoroughly and adequately explain the decision. Further, the record demonstrates that Pride was entitled to judgment dismissing claimant’s claims against it as a matter of law. We reject claimant’s argument that, although he was not in the course and scope of his employment at the time, because his fatigue was sustained on his employer’s |7premises during working hours, the “risk” of his accident “arose from his employment,” and that the strength of this showing should overcome the total lack of any “course-of-employment” showing by him. Instead, we agree with the WCJ that the risk of falling asleep at the wheel of a car and driving off of the roadway after a work “hitch” ended is not incidental to claimant’s employment, and that the factual situation presented herein does not fit within the any of the jurisprudentially-established exceptions to the “coming-and-going rule.” See Arabie Brothers Trucking Company, 880 So.2d at 936 and McLin, 851 So.2d at 1140-1141, n. 1 (where the Supreme Court set forth the various exceptions to the “coming-and-going rule” as established in the jurisprudence). Thus, in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1B, the April 21, 2005 judgment of the WCJ dismissing claimant’s disputed claim for workers’ compensation benefits with prejudice is affirmed.

In its answer to appeal, Pride argues that claimant should be ordered to pay the costs incurred by Pride in the trial court and on appeal. The answer to appeal is granted in part insofar as Pride is seeking that claimant be assessed with the costs of this appeal. However, it is denied in all other respects. Costs of this appeal are assessed against claimant, David Martin.

JUDGMENT AFFIRMED; ANSWER TO APPEAL GRANTED IN PART AND DENIED IN PART.

EXHIBIT A

DAVID MARTIN

VERSUS

PRIDE OFFSHORE COMPANY, INC. AND NORTH RIVER INSURANCE COMPANY

DOCKET NUMBER 98-06384

OFFICE OF WORKERS’ COMPENSATION

DISTRICT 9, HOUMA

STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

I. STATEMENT OF THE CLAIM

A. FACTUAL BACKGROUND

The claimant, David Martin (hereinafter referred to as “Martin”) was an employee of Pride Offshore, Inc. (hereinafter referred to as “Pride”) doing work as a roustabout from September 5, 1996 until November 7, 1996. After working the last seven days on a fixed platform rig, located on the Outer Continental Shelf, Martin and other members of the crew were transported via helicopter from the Pride rig to a parking lot near Venice, Louisiana where Martin’s personal vehicle had been parked. As the hitch ended, the entire crew was replaced by another crew. Martin was not scheduled to return to work for Pride until the start of his next regularly scheduled hitch. Martin left Venice, Louisiana at approximately 11 a.m. driving his personal car. Martin never received reimbursement for mileage due to use of his personal vehicle, nor was he provided with a company vehicle. Following his departure from Venice, Louisiana to his hometown of Opp, Alabama, on the same day, after approximately two hours and forty minutes of driving and nearly 132 miles from the parking lot, Martin was involved in a single car accident on Interstate 10, in the state of Mississippi. Martin is now seeking Worker’s Compensation benefits for the injuries he sustained as a result of the car accident. Pride contends Martin is not entitled to worker’s compensation benefits, and that Martin’s claim should be dismissed with prejudice at his costs pursuant to Pride’s Motion for Summary Judgment.

B. PROCEDURAL HISTORY

This case has a long procedural history. On November 4,1997, David Martin filed a lawsuit against Pride Offshore Inc. and Freeport-McMoran in the Civil District Court of the Parish of New Orleans. He alleged that his employer was negligent in permitting him to work excessive hours that lead him to exhaustion. He asserted claims under the Jones Act, the General Maritime Law and applicable state law. On December 4, 1997, Pride and Freeport removed the case to the Eastern District of Louisiana. The Federal Court later granted Pride’s Motion for Summary Judgment, resulting in a dismissal of all claims asserted in federal court against Pride. | ^Meanwhile, on February 9, 1998, Martin filed a claim against Pride with the United States Department of Labor seeking compensation under the Longshore and Harbor Worker’s Compensation Act, which also ultimately failed. While this claim was pending, on October 11, 1999 Martin filed another tort lawsuit in the Thirty-Second Judicial District Court for the Parish of Terrebonne alleging negligence in requiring and/or permitting him to work excessive hours that lead him to exhaustion. On November 4, 1999 the claim was removed to federal court on the basis of diversity and federal jurisdiction. On September 30, 2002 the district court entered an Order and Reasons holding that Pride did not owe any duty to Martin to prevent him from driving home in an alleged exhausted condition. The Court also reasoned, as to the background of the case, that Martin was not in the course and scope of his employment at the time of this accident. The Federal Fifth Circuit affirmed the order on appeal.

On or about September 18, 1998, Martin filed a 1008 seeking benefits under the Workers’ Compensation Statute and alleged that; “Employee fell asleep while driving home during the course and scope of his employment. Employee was receiving reimbursement for mileage during this time.” Further, Martin alleged that his injury was a “traumatic brain injury”, and marked no wage benefits have been paid and no medical treatment has been authorized on his claim form. On November 4, 1998, Martin filed an amended 1008 substituting the name of the insurance company North River Insurance Company (hereinafter referred to as North River) with all other allegations remaining the same. Pride and .North River answered the suit and in response to the allegations of Martin, Pride submitted a Motion for Summary Judgment based upon the contention that the accident alleged by Martin did not occur in the course and scope of his employment. In Martin’s Memorandum in Opposition to Pride’s motion, Martin alleged a separate accident and injury than was originally asserted in his 1008. Specifically, Martin alleged that the “accident” was his working long hours on the rig and his “injury” was fatigue.

This matter came before the Court on March 7, 2005 for a hearing on Pride’s Motion for Summary Judgment. At that time, Pride contended that the accident and subsequent injury did not arise out of Martin’s employment and that the car accident in which Martin was involved did not occur in the course and scope of employment. Martin’s attorney contented that Martin suffered an accident with injury by Pride requiring him to work long hours on the rig which resulted in his fatigue. Further, Pride responded to the new allegations of accident and injury by pointing out the new allegations do not constitute an “accident” or “injury” as contemplated by statute or case law.

The Court requested that the parties submit Post-Hearing Briefs on or before March 21, 2005 in order for it to determine if the accident and injury alleged by Martin in his 1008 did or did not occur in the course and scope of his employment and that there is no genuine issue of material fact in dispute in that regard.

II. FINDINGS OF FACT

1. David Martin was employed by Pride Offshore, Inc. on a fixed platform rig located on the Outer Continental Shelf.
|s2. On November 7, 1996, David Martin was transported via helicopter from the oil rig to a parking lot near Venice, Louisiana where his personal vehicle was parked.
3. At the time David Martin left the parking lot in his personal vehicle, he was not under the control of his employer, nor was his employer paying him, and nor was he carrying out any mission of his employer. (See Exhibit D-B — Testimony of Alex Barker.)
4. David Martin was not reimbursed for mileage by Pride Offshore, Inc. (See Exhibit D-B — Testimony of Alex Barker.)
5. David Martin was not provided with a company vehicle for his personal use. (See Exhibit D-B — Testimony of Alex Barker.)
6. David Martin was involved in a single car accident in the State of Mississippi, over 130 miles from his last point of contact with his employer. (See Exhibit D-A — Mississippi Accident Report.)
7. David Martin filed a 1008 on September 18,1998 alleging, “Employee fell asleep while driving home during the course and scope of his employment. Employee was receiving reimbursement for mileage during this time.”
8. David Martin’s allegation that his “accident” was working long hours and his “injury” was fatigue are not part of his original 1008, but appeared for the first time in Martin’s Memorandum in Opposition to the pending Motion for Summary Judgment and was subsequently argued at the hearing.

III. CONCLUSIONS OF LAW

A. SUMMARY JUDGMENT DISCUSSION

Summary judgment is appropriate when it is evident that Martin is unable to meet his burden of proof at trial on a necessary element of his claim, or when all material facts not in dispute indicate that a party is entitled to judgment as a matter of law. La. CCP Art. 966.

The law with respect to motions for summary judgment changed significantly with the amendment of La. C.C.P. Art. 966 as part of the 1996 legislative tort reform package, which has been recognized in a number of Court decisions. See Cajun Concrete Services, Inc. v. Lemoine Co., Inc., 791 So.2d 709 (La.App. 1st Cir.2/16/01), writ denied, 2001-0746 (La.5/4/01) 791 So.2d 659. (“The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action.”) See also Marrogi v. Gerber, 2000-1091 (La.App. 4th Cir.5/16/01) 787 So.2d 1098, writ denied 2001-1768 (La.9/2S/01) 798 So.2d 120 (affirming summary judgment); Naquin v. Louisiana Power & Light Company, 98-2270 (La.App. 1st Cir.3/31/00), 768 So.2d 605, 607, writ denied, 2000-1741 (La.9/15/00), 769 So.2d 546; (affirming summary judgment)

4La. C.C.P. art. 966(C)(2) provides:

“... if the movant will not bear the burden of proof at trial on the matter that is before the Court on the Motion for Summary Judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the Court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.”

After the movant has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. Art. 966(C)(2); Smith v. General Motors Corp., 31-258 (La.App. 2nd Cir.12/9/98), 722 So.2d 348, 351. If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. Art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4th Cir.9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. Art. 967; Townley v. City of Iowa, 97-493 (La.App. 3rd Cir.10/29/27), 702 So.2d 323, 326; Marrogi v. Gerber, 2000-1091 (La.App. 4th Cir.5/16/01) 787 So.2d 1098.

B. DISCUSSION_REGARDING WHETHER OR NOT MARTIN WAS WITHIN THE COURSE AND SCOPE OF EMPLOYMENT AT THE TIME OF ACCIDENT

Pride contends one theory which is that Martin’s injury is not compensable under the Louisiana Worker’s Compensation Act because his accident did not “arise out of’ and did not occur “in the course and scope” of employment. Under the Workers’ Compensation Act, employers are responsible for compensation benefits to employees only when the injury results from an accident “arising out of and in the course of his employment.” McLin v. Industrial Specialty Contractors, Inc. 851 So.2d 1135, 2002-1539 (La.7/2/03), Rehearing Denied. The requirement that an employee’s injury occur “in the course of’ employment focuses on the time and place relationship between the injury and the employment. McLin v. Industrial Specialty Contractors, Inc. 851 So.2d 1135, 2002-1539 (La.7/2/03), Rehearing Denied. An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. Id. citing Mundy v. Department of Health and Human Resources 593 So.2d 346 at 349 Rehearing Denied. The requirement that an employee’s injury “arise out of’ the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment. Id. citing Williams v. Regional Transit Authority 546 So.2d 150, at 161 Rehearing Denied.

In the present case none of these requirements are met. Martin’s injuries were the result of a car accident, which had nothing to do with his work. He was not reimbursed for travel, was | Bnot carrying out any mission for his employer and was over 130 miles from the last point of contact with his employer. (See accident report — attached as “Exhibit D-A”) Martin cannot meet his burden of proving either of the two cumulative requirements. ‘When there is a weak showing with respect to both requirements, the employee is not entitled to compensation benefits.” Arabie Bros. Trucking Co. v. Gautreaux 2004 WL 1737467 (La.App. 1 Cir.), 2003-0120 (La.App. 1 Cir. 8/4/04) citing Guillory v. Interstate Gas Station, 94-1767, p. 3 (La.3/30/95), 653 So.2d 1152, 1154; Lewis v. Houma Industries, 2001-0641, p. 3 (La/App. 1 Cir. 5/10/02), 818 So.2d 956, 957-958.

It is now well established by an extensive amount of case law that an employee who is traveling to and from work is not considered to be in the course and scope of his employment. “Generally, an employee who has an accident while traveling to and from work is not in the course and scope of employment and, thus, is not entitled to workers’ compensation benefits.” Robert v. Lecompte 829 So.2d 1200, 2002-569 (La.App. 3 Cir. 10/30/02) citing Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1975) and Dupre v. Exxon Pipeline Co., 93-1528 (La.App. 3 Cir. 6/1/94); 638 So.2d 1118, writ denied, 94-2200 (La.11/18/94); 646 So.2d 379. See also W. Malone & H. Johnson, 13 Louisiana Civil Law Treatise-Workers Compensation § 168 (4th ed.2002). The Louisiana Supreme Court explained that “this rule, often called the “going-and-coming rule,” is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work.” McLin v. Industrial Specialty Contractors, Inc. 851 So.2d 1135, 2002-1539 (La.7/2/03), Rehearing Denied citing Phipps v. Bruno Const., 00-0480 (La.App. 3 Cir. 11/2/00), 773 So.2d 826. Furthermore, an employee’s place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination. Id. citing Orgeron on Behalf of Orgeron v. McDonald 93-1353 (La.7/5/94) 639 So.2d 224, 227.

In the present case, Martin had an accident while returning home after his hitch ended. While there are some specific instances when an accident while traveling to or from work might be considered in the course and scope of employment none of those exceptions apply in this case. In a recent decision McLin v. Industrial Specialty Contractors, Inc. 851 So.2d 1135, 2002-1539 (La.7/2/03), Rehearing Denied, the Louisiana Supreme Court held the following as exceptions that have been cited in the jurisprudence to the going-and-coming rule:

“(1) If the accident happened on the employer’s premises;
(2) If the employee was deemed to be on a specific mission for the employer, such as making a trip in the interest of his employer’s business or pursuant to his employer’s order;
(3) If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;
(4) If the employee was doing work for his employer under the circumstances where the employer’s consent could be fairly implied;
|fi(5) If the employee was hurt while traveling to and from one work site to another;
(6) If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee (the “threshold doctrine”); and
(7) If the operation of a motor vehicle was the performance of one of the duties of the employment of the employee.”

The accident was not near the employer’s premises. It occurred in another state, at nearly 130 miles from Martin’s last contact with Pride. Martin was not traveling in the interest of the employer’s business, was not pursuing a employer’s order and was not doing any work for his employer at the time at the accident. Furthermore, he was not traveling from one work site to another. In fact, he was off work and making a personal trip back to his home in Opp, Alabama.

According to the sworn testimony of Alex Barker, Pride’s Personnel Manager, once Martin was discharged at the dock, he was on his off time and was free to go anywhere. (See excerpt of trial testimony of Alex Barker, pp. 106-111 — attached as “Exhibit D-B”). Martin was using his personal vehicle and at no time was he ever provided with a company vehicle. Martin was not paid for his travel time, nor was he reimbursed for any of his mileage. Martin was fully responsible for his transportation. Since Martin’s accident does not qualify for any of these exceptions, Martin was not in the course and scope of employment at the time of the accident.

As a side note, this court points out that the United States District Court for the Eastern District of Louisiana expressly stated that “Martin was not in the course and scope of his employment at the time of this accident”. See Martin v. Pride Offshore, Inc., 2002 WL 31175215, *1 (E.D.La.9/30/02). Although this statement was not the specific holding of that case, it nevertheless represents the reasoning of the Court on the specific circumstances of the case. The Court proceeded to analyze the merits of a TORT case.

As this Court is well aware, by means of La. R.S. 23:1032, when applicable, worker’s compensation benefits are the exclusive remedies of all other rights, remedies and claims for damages. Menson v. Taylor 764 So.2d 1079, 1999-0300 (La.App. 1 Cir. 4/17/00). “The remedies provided to an injured employee by the Louisiana Workers’ Compensation statute, La. R.S. 23:1032 displace all other rights and remedies against the injured employee’s employer or co-employees.” Bourque v. Nan Ya Plastics Corp., America 906 F.Supp. 348 M.D.La., 1995. Employers, therefore are exempt from general tort claims by employees. The Federal Court took the view that Mr. Martin’s accident occurred outside the course and scope of employment, otherwise it would not have proceeded to analyze the merits of the Tort claim. Should the Court have believed that the accident was in the course and scope of employment and thus covered by Louisiana Worker’s Compensation Laws, Martin’s claim under general tort liability would have been barred from the beginning.

This Court feels it is clear that Martin was not in the course and scope of his employment at the time of the accident. Therefore, Martin is not entitled to workers’ compensation benefits under Louisiana Worker’s Compensation Law. ‘Whenever showing with respect to requirements 17that injury arise out of and in course of the employment is relatively weak, a denial of compensation is indicated.” Lisonbee v. Chicago Mill and Lumber Company 278 So.2d 5, LA 1973.

C. DISCUSSION REGARDING “ACCIDENT” AND “INJURY” ALLEGED IN MARTIN’S MEMO IN OPPOSITION AND AT THE MOTION FOR SUMMARY JUDGMENT HEARING

A second theory asserted by Pride is that in Martin’s Memorandum in Opposition and the hearing on the Motion for Summary Judgment, Martin presented a new allegation. Though the defendant believes that such an allegation is beyond the scope of the pleadings and is not properly before the Court, the Court will proceed to analyze the new allegations of “accident” and “injury” advanced by Martin.

First, Martin contends that his “accident” is not the car accident in Mississippi (as was alleged in his 1008). Rather, he contends that his working long hours on the Outer Continental Shelf constitutes an “accident”. La. R.S. 23:1021(1) defines “accident” for the purposes of the Louisiana Workers Compensation Act. That statute states, “Accident means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with our without human fault, and directly producing at the time objective findings of an injury which more than simply a gradual deterioration or progressive degeneration.” Working long hours does not constitute an “accident” as defined by the Act. Working long hours by its very nature involves an event occurring over a period of time. As such, there is no single, identifiable, precipitous event. It does not occur suddenly or violently. Thus, the additional allegation or theory alleged by Martin regarding the “accident” is not an accident at all and is not compen-sable under the act.

Second, Martin has alleged that his actual “injury” is fatigue. La. R.S. 23:1021(8)(a) states, “Injury and personal injuries include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.” In the present case, fatigue is not an “injury” as contemplated by the Act. It does not result from any physical violence to the body. Rather, fatigue occurs as the direct result of a full day’s work in the lives of most, if not all, workers in Louisiana. Accepting Martin’s theory would certainly lead to absurd consequences as virtually every worker in Louisiana would have a viable comp claim at the end of every day. La. R.S. 23:1021(8)(a) presents a nondiscretionary command in the last sentence. “These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.” (Emphasis added.)

At the hearing of this matter, Martin submitted evidence that he worked hard and that his fatigue may have contributed to his car accident; however, Martin has presented no evidence or argument thus far that explains how hard work and fatigue are “accidents” and “injuries” as defined by the Act.

|sIn fact, the Legislature did consider a few exceptions to the rule in regards to various types of stress. See La. R.S. 23:1021(8) wherein the Legislature states:

(b) Mental injury caused by mental stress.
“Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to the Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury.
A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not com-pensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American psychiatric Association.”

This is not the case at hand but in looking at the definition it is clear to see that the legislature drafted a very narrow exception to the definition of injury and stress.

Also under La. R.S. 23:1021(8)(e), physical work stress is contemplated but only under the following narrow exception to the general rule. The work stress must be associated with a heart-related or perivas-cular injury.

(e) Heart-related or perivascular injuries.
A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition was the predominant and major cause of the heart-related or perivascular injury, illness or death.

|aHad the Legislature contemplated work stress to include a traditional injury, it would have worded the statute accordingly, Instead it carved out specific exceptions to the definition only in the areas of mental stress and heart related or perivas-cular injuries. The claim at hand does not fall under either of these exceptions.

Martin in trying to persuade the court that his injury falls under the Workers’ Compensation Statue cites the case of DeGruy v. Pala, Inc. 525 So.2d 1124 (La.App. 1st Cir.4/19/88) In DeGruy, the employee injured his back while working for a prior employer. After going to work for Pala, Inc., he aggravated his pre-existing condition while lifting valve covers at the plant site. DeGruy had a prior accident and then suffered a clearly definable second accident in the course and scope of his employment. The phrase quoted by Martin is lifted from a case with an entirely different set of facts and issues. As such, it is the contention of the Court that the language from the DeGruy case does not support the theory that one’s fatigue as the result of work may contribute to some event outside of the work environment where the employer has no control nor any direction of the acts of the employee and then result in a compensable workers compensation claim.

As a side note, the court suggests that if considering Martin’s argument of an “accident” and “injury” occurring as described above and occurring where it did, then the accident and injury occurred on the Outer Continental Shelf and is beyond the jurisdiction of this court as such an occurrence, occurs beyond the territorial waters of Louisiana.

CONCLUSION

For the foregoing reasons, this Court concludes that the defendant has carried its burden of proving that there is no genuine issue of material fact in dispute as to whether Martin was outside the course and scope of his employment at the time of the accident he alleged in his 1008. Further, Martin failed to present any evidence at the hearing of this matter to suggest otherwise. Working long hours does not constitute an “accident” under La. R.S. 28:1021(1). Further, fatigue is not an “injury” as defined by La. R.S. 23:1021(8)(a). As such, Martin has failed to present any evidence or argument to suggest otherwise. For these reasons, the Court grants Pride’s Motion for Summary Judgment and dismisses Martin’s claim with prejudice.

SIGNED this 16th day of June 2005, at Houma, Louisiana.

/s/Elizabeth C Lanier

Elizabeth Lanier, Judge

District 9

Office of Workers’ Compensation 8026 Main Street, Suite 404 Houma, Louisiana 70360


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Steve HUDSON v. PROGRESSIVE SECURITY INSURANCE COMPANY, Joyce Hanson and Allied Property and Casualty Insurance Company.
    No. 2005 CA 2648.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Roy Maughan, Baton Rouge, Counsel for Plaintiff/Appellant Steve Hudson.
    Collin J. LeBlanc, Stephen M. Whitlow, Baton Rouge, Counsel for Defendants/Ap-pellees Progressive Security Insurance Company and Joyce Hansen.
    Nahum D. Laventhal, Metairie, Counsel for Defendant/Appellee Allied Property and Casualty Insurance Company.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

| gThis appeal is taken from a summary-judgment dismissing plaintiffs tort claims on the grounds that defendants were immune from this suit under the Workers’ Compensation Act. For the reasons assigned, we reverse the district court judgment.

FACTS AND PROCEDURAL HISTORY

Steve Hudson and Joyce Hansen were colleagues working together at Internet Business Solutions (IBS). On July 1, 2002, they were traveling to the IBS office in Baton Rouge from a trip they had taken to Mississippi. Ms. Hansen drove Mr. Hudson’s car, while he rode as a passenger. He was injured when Ms. Hansen drove into the back of a preceding vehicle.

Mr. Hudson subsequently filed a damage suit naming as defendants: Ms. Hansen; Progressive Security Insurance Company (Progressive), the insurer of Mr. Hudson’s vehicle; and Allied Property and Casualty Insurance Company (Allied), Ms. Hansen’s insurer. Thereafter, the defendants each filed a motion for summary judgment claiming they were immune from this tort suit because Mr. Hudson and Ms. Hansen were co-employees of IBS and were engaged in the course and scope of their employment at the time of the accident. Thus, defendants argued Mr. Hudson’s sole remedy was workers’ compensation. Following a hearing, the district court rendered summary judgment dismissing plaintiffs claims against all defendants. Mr. Hudson now appeals, alleging as his sole assignment of error that the district court committed reversible error in finding he and Ms. Hansen were co-employees in the course and scope of their employment at the time of the accident.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary | ¿judgment is appropriate. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B. An issue is “genuine” if reasonable persons could disagree. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable substantive theory of recovery. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion for summary judgment and in favor of a trial on the merits. Haydel v. State Farm Insurance Company, 2005-0701, p. 4 (La.App. 1st Cir.3/24/06), 934 So.2d 726, 728.

DISCUSSION

On appeal, Mr. Hudson admits that he performed services for IBS, but argues on appeal that he did so as an independent contractor, rather than as an employee. He further asserts that the trip he and Ms. Hansen made to Mississippi was not for purposes of conducting business for IBS.

14An employee is entitled to workers’ compensation benefits when he is injured in an accident arising out of and in the course of his employment. La. R.S. 23:1031 A. Moreover, the rights and remedies granted under the Workers’ Compensation Act are exclusive of all other rights, remedies and claims for damages, except for liability resulting from an intentional act. La. R.S. 23:1032 A(l)(a). The exclusive remedy defense is available not only to the employer, but to co-employees and insurers as well. Haywood v. Dugal, 2000-334, 2000-335, p. 4 (La.App. 5th Cir.10/31/00), 772 So.2d 240, 242, writs denied, 2000-3215, 2000-3258 (La.2/2/01), 784 So.2d 4; Hill v. West American Insurance Company, 93-915, 93-932 (La.App. 3rd Cir.3/2/94), 635 So.2d 1165, 1169, writ denied, 94-1630 (La.9/30/94), 642 So.2d 881.

Thus, a determination of whether Mr. Hudson is limited to workers’ compensation and is precluded from pursuing a tort claim against Ms. Hansen and the insurers is dependent on whether he and Ms. Hansen were co-employees acting in the course and scope of their employment at the time of the accident. The provisions of La. R.S. 23:1044 are relevant to a consideration of the status of Mr. Hudson and Ms. Hansen with respect to IBS. This statute provides that:

A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.
Every executive officer elected or appointed and empowered in accordance with the charter and by-laws of a corporation ... shall be an employee of such corporation under this Chapter. (Emphasis added.)

Accordingly, since both parties indicated Ms. Hansen performed services for IBS, she is presumed to be an employee of that business. The record does not reflect that there was any evidence properly before the district | scourt that rebutted this presumption. As to Mr. Hudson, despite his assertion that he was an independent contractor, rather than an employee of IBS, it is undisputed that he was the president of IBS. Therefore, under the mandatory language of La. R.S. 23:1044, he must be considered an employee of that business for workers’ compensation purposes.

In arguing he is not an employee of IBS, Mr. Hudson cites jurisprudence holding that the presumption of employee status provided by La. R.S. 23:1044 for one performing services for a business is a rebut-table presumption. This argument lacks merit, because we did not rely on this presumption in concluding Mr. Hudson was an IBS employee. Rather, our conclusion is based on that portion of the statute providing that an executive officer of a corporation shall be considered an employee thereof for workers’ compensation purposes.

Our conclusion that Mr. Hudson must be considered an IBS employee does not end our inquiry, because an injured employee is free to seek tort recovery from a co-employee who caused the injury, when that co-employee was not engaged in the normal course and scope of his employment at the time of the injury. La. R.S. 23:1032 C(l); Smith v. Berteau, 98-1438, p. 4, (La.App. 1st Cir.6/25/99), 739 So.2d 269, 272. In fact, Mr. Hudson argues he and Ms. Hansen were not in the course and scope of any employment for IBS when the accident occurred.

Mr. Hudson was injured as he and Ms. Hansen were driving from Mississippi to the IBS office in Baton Rouge. Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of his employment. McLin v. Industrial Specialty Contractors, Inc., 2002-1539, p. 4 (La.7/2/03), 851 So.2d 1135, 1140. However, an accident is considered as having occurred |fiin the course of employment for purpose of the workers’ compensation statute if the accident occurred while the employee was on a specific mission for his employer, such as making a trip in the interest of the employer’s business or while traveling from one work site to another. See Brown v. Coastal Construction & Engineering, Inc., 96-2705, p. 3 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10. In determining whether an accident arose out of the employment, it is necessary to consider: (1) whether the employee was engaged about his employer’s business; and (2) whether the conditions of the obligations of the employment caused the employee to be at the place of the accident at the time the accident occurred. McLin, 2002-1539 at p. 9, 851 So.2d at 1142.

After reviewing the record de novo, we conclude the evidence establishes the existence of a genuine issue of material fact in this case. The district court was presented with conflicting testimony regarding the purpose of the trip to Mississippi. Ms. Hansen stated in her deposition that the trip was a business trip to seek new business for IBS. Mr. Hudson indicated in his deposition that the purpose of the trip was to look at some business opportunities regarding computer and satellite work. However, he specifically denied that this work was conducted on behalf of IBS. Thus, there was a direct conflict in the testimony as to whether the business trip was made on IBS’ behalf. This fact is material because, if the trip was not made in furtherance of IBS’ business, Mr. Hudson and Ms. Hansen clearly were not within the course and scope of their employment for IBS at the time of the accident.

In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Haydel, 2005-0701 at p. 4, 934 So.2d at 728. Accordingly, the 17district court erred in granting summary judgment dismissing plaintiffs claims when a genuine issue of material fact exists as to whether the accident occurred within the course and scope of Mr. Hudson and Ms. Hansen’s employment.

CONCLUSION

For the above reasons, the summary judgment granted by the district court is reversed, and this matter is remanded for further proceedings consistent with this opinion. All costs of this appeal are to be shared equally by defendants.

REVERSED AND REMANDED.

      . In conducting our de novo review herein, we have not given weight to the affidavit executed by Mr. Hudson shortly before the hearing on the defendants’ motions for summary judgment. In the affidavit, Mr. Hudson asserted the purpose of the trip to Mississippi was purely personal, and that he and Ms. Hansen made no business calls during the trip. These assertions conflicted with his earlier deposition testimony that he and Ms. Hansen went to Mississippi to look at business opportunities, and stopped to talk to several business owners. An inconsistent affidavit offered only after the motion for summary judgment was filed is not sufficient to create a genuine issue of material fact where no justification for the inconsistency is offered. See Douglas v. Hillhaven Rest Home, Inc., 97-0596, p. 6 (La.App. 1st Cir.4/8/98), 709 So.2d 1079, 1083, writ denied, 98-1793 (La.10/30/98), 727 So.2d 1161; LeBlanc v. Dynamic Offshore Contractors, Inc., 626 So.2d 16, 18 n. 3 (La.App. 1st Cir. 1993).
      We also have not considered the supplement to the record consisting of the errata/amendment sheet to Ms. Hansen’s deposition, which was added to the record pursuant to an August 11, 2006 order of the district court. The record does not reflect that the sheet actually was filed into evidence or even placed in the district court record prior to rendition of &e summary judgment on appeal before us.


author: GUIDRY, J. McCLENDON, J.,

text:
    Luwana THOMAS v. SONIC.
    No. 2006 CA 0014.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Daniel Steven Wanko, Jr., Covington, Counsel for Plaintiff/Appellant Luwana Thomas.

      John J. Rabalais, Janice B. Unland, Robert T. Lorio, David B. Parnell, Coving-ton, Counsel for Defendant/Appellee Sonic.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

12An employee appeals the dismissal of her workers’ compensation claim based on her failure to amend the claim after the workers’ compensation judge (WCJ) sustained the employer’s exception raising the objection of vagueness. On reviewing the employee’s claim in conjunction with the record before us, we amend the judgment appealed, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

On October 14, 2004, Luwana Thomas filed a disputed claim for compensation with the Office of Workers’ Compensation, listing Sonic as her employer and Louisiana United Businesses Association (LUBA) as insurer/administrator on her claim form. On the preprinted form, under the section entitled “THE BONA-FIDE DISPUTE,” Ms. Thomas marked the spaces next to the statements, “No wage benefits have been paid” and “No medical treatment has been authorized.” She also marked the space next to the word “Other” and wrote “Attorney’s fees and penalties due as a result of employer’s handling of this claim” in the blank space provided next to that selection.

In response to the claim form filed by Ms. Thomas, Sonic filed an exception urging the objection of vagueness, averring that Ms. Thomas failed to give “proper notice” of what was being claimed so that Sonic might prepare a defense. Following a hearing on the exception, the WCJ sustained the exception and ordered Ms. Thomas “to amend [her] Disputed Claim for Compensation to set forth in detail the exact issues in dispute as requested by the Employer in its Exception on or before February 21, 2005.” Ms. Thomas failed to file an amended claim form. Sonic filed a motion to dismiss Ms. Thomas’ claim for failure to amend, and following a hearing on the motion, the WCJ granted the motion and | adismissed Ms. Thomas’ disputed claim with prejudice. Following the denial of her motion for new trial, Ms. Thomas moved to appeal the judgment of dismissal.

ASSIGNMENTS OF ERROR

Ms. Thomas raises the following objections to the WCJ’s judgment:

1. The [WCJ] erred in granting the employer’s exception of vagueness[.]
2. If the [WCJ] was appropriate in granting the employer’s motion to dismiss, the [WCJ] erred in granting the dismissal of the matter with prejudice^]
3. The [WCJ] erred in denying claimant’s motion for a new trial under La. C.C.P. art.1972 as the judgment was clearly contrary to the law[.]

DISCUSSION

The Louisiana Administrative Code 40:1.5823 provides that exceptions shall be governed by La. C.C.P. art. 921 et seq. The objection of vagueness is urged by way of a dilatory exception. La. C.C.P. art. 926. In sustaining the exception filed by Sonic, the WCJ ordered Ms. Thomas to amend her claim form to address the specific issues raised by Sonic in its exception. In the memorandum in support of the exception, Sonic raised the following contentions in regard to the disputed claim form filed by Ms. Thomas:

Sonic excepts to the Employee’s Disputed Claim for Compensation in that it is vague as to what period of time the Employee seeks indemnity benefits, the nature/character of said benefits as well as the amount of such benefits.
* * *
.. .the Employee should be made to amend her Disputed Claim for Compensation to specify what medical treatment was not authorized. Specifically, Sonic is entitled to know the specific medical providers which were not authorized, the date of such failure to authorize, who requested authorization, the mode or method by which authorization for medical treatment was requested, who denied any such request for medical authorization and whether such request for medical [¿authorizations came with medical opinions and/or reports causally relating such treatment to the Employee’s alleged February 11, 2004, work accident.
* * *
Sonic excepts to the Employee’s Disputed Claim for Compensation on the grounds of vagueness as it does not specify exactly which action or inaction would justify an award of penalties and attorneys’ fees as well as the dates and times of such action and/or inaction against Sonic and Defendant requires this information before proceeding to trial herein.

Admittedly, we too find the factual allegations of Ms. Thomas’ claim form to be a bit scant, but as previously observed in this opinion, the claim form submitted by Ms. Thomas is a pre-printed document, issued by the Office of Workers’ Compensation, wherein a claimant simply has to mark the appropriate responses or fill in the requested information where indicated. On the claim form, Ms. Thomas stated her occupation, her date of injury, how she was injured, and the grounds of her “bona-fide dispute” with Sonic.

The purpose of the exception of vagueness is to place the defendant on notice of the nature of the facts sought to be proved so as to enable him to identify the cause of action, and, thus prevent future relitigation of the same cause of action after judgment is obtained in the present suit. Snoddy v. City of Marksville, 97-327, p. 6 (La.App. 3rd Cir.10/8/97), 702 So.2d 890, 893. However, the exception of vagueness does not entitle the defendant to demand exactitude and detail of pleading beyond what is necessary to fulfill the aims of La. C.C.P. arts. 854 and 891. If the plaintiff’s petition fairly informs the defendant of the nature |fiof the cause of action and includes sufficient substantial particulars to enable the defendant to prepare its defense, then the exception of vagueness will be denied. Whipple v. Whipple, 408 So.2d 890, 392 (La.App. 1st Cir.1981), writ not considered, 412 So.2d 1089 (La.1982); Williams v. State, 34,691, pp. 4-5 (La.App. 2nd Cir.5/9/01), 786 So.2d 927, 930-931.

Although we find the information stated in Ms. Thomas’ claim form to be sufficient to state a cause of action, we find no error in the WCJ’s determination that the factual allegations contained therein were lacking in sufficient substantial particulars, which hindered Sonic in preparing its defense. The WCJ’s finding was particularly appropriate in this matter where pending before her were three separate, unconsolidated workers’ compensation claims involving the same parties, relative to three separate accidents, all occurring within a relatively short time span of each other. The arguments presented by counsel at the hearing on the exception clearly demonstrated the confusion caused by the three separately pending, workers’ compensation claims filed by Ms. Thomas and the need for specificity regarding the allegations pertaining to each claim. As such, we find that the WCJ did not err in sustaining the exception urging the objection of vagueness.

We further find that the WCJ properly acted within the authority granted her in dismissing Ms. Thomas’ claim after she failed to amend her claim form within the time period provided. When the grounds of the objections pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove | fthem within the delay allowed by the court; and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a noncompliance with this order. La. C.C.P. art. 933(B).

We do, however, find merit in Ms. Thomas’ contention that the WCJ abused her discretion in dismissing Ms. Thomas’ claim with prejudice. By definition, a dilatory exception is one that does not tend to defeat the action but merely retards its progress. La. C.C.P. art. 923. Further, the judgment of dismissal with prejudice was not in accordance with La. C.C.P. art. 933 and the jurisprudence interpreting the effect of that article. See Saunders v. Lomonaco, 396 So.2d 316, 321 (La.App. 4th Cir.1981); see also Washington v. Flenniken Construction Company, 188 So.2d 486, 491 (La.App. 3rd Cir.1966). Accordingly, we will amend the judgment to provide that Ms. Thomas’ claim be dismissed without prejudice.

CONCLUSION

Accordingly, we amend the judgment of dismissal to provide that Ms. Thomas’ disputed claim for compensation be dismissed without prejudice, but in all other respects we affirm. All costs of this appeal are to be equally borne by the parties.

AMENDED, AND AS AMENDED, AFFIRMED.

McCLENDON J., agrees and assigns additional reasons.

McCLENDON, J.,

agrees, and assigns additional reasons.

I agree with the opinion, and respectfully assign additional reasons. This court, in the interest of justice, has consistently held that the dismissal for failure to correct a defect in the pleadings should be without prejudice. Whipple v. Whipple, 408 So.2d 390, 392-93 (La.App. 1 Cir.1981), writ not considered, 412 So.2d 1089 (La. 1982); Jenkins v. Hartford Accident and Indeminity Co., Inc., 356 So.2d 490, 490-91 (La.App. 1 Cir.1977). I do, however, note that this was the first time that this matter was dismissed for failure to amend.

      . LUBA filed exceptions urging the objections of no right of action and no cause of action. The WCJ sustained the exception urging the objection of no right of action and dismissed LUBA from the suit with prejudice. Thus, LUBA is not a party to the matter before us.

      . Based on our resolution of Ms. Thomas' first two assignments of error, we pretermit discussion of her third assignment of error.

      . The pertinent portions of La. C.C.P. arts. 854 and 891 respectively provide:
      Art. 854. Form of pleading
      No technical forms of pleading are required.
      All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.
      Art. 891. Form of petition
      A. The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It shall ... contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation ....

      . The judgment sustaining the dilatory exception does not have to order amendment of the petition when the objection plead is want of amicable demand or prematurity. La. C.C.P. art. 933(A).


author: HUGHES, J.

text:
    Matthew WENDELBOE v. SEARIYER MARITIME, INC.
    No. 2006 CA 0013.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Gary P. Koederitz, Baton Rouge, Counsel for Plaintiff/Appellee Matthew Wendel-boe.
    Thomas J. Wagner, Thomas A. Rayer, Jr., New Orleans, Counsel for Defendant/Appellant SeaRiver Maritime, Inc.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.

      . "Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.”

   HUGHES, J.

| gDefendant, SeaRiver Maritime, Inc., appeals from the trial court’s denial of its motion for summary judgment and granting of Plaintiff Matthew Wendelboe’s motion for summary judgment. For the reasons that follow, we reverse and render judgment in favor of SeaRiver Maritime, Inc.

I. FACTS AND PROCEDURAL HISTORY

On December 9,1992, Plaintiff, Matthew Wendelboe, was aboard the Exxon New Orleans, a vessel owned and operated by Defendant, SeaRiver Maritime, Inc. (SeaRiver). Mr. Wendelboe served as the vessel’s chief engineer and safety coordinator. The vessel was in the northern Pacific Ocean en route from Valdez, Aaska to Anacortes, Washington. On that date, Mr. Wendelboe accompanied the vessel’s chief mate onto the deck of the vessel to inspect and repair a broken door. While the two men were engaged in this activity, a powerful wave struck the vessel and washed the chief mate away into the sea. The wave nearly washed Mr. Wendelboe away as well, but he held onto a rail on the vessel’s deck.

Mr. Wendelboe survived the wave but sustained what appears to have been a substantial wrist injury. SeaRiver paid Mr. Wendelboe’s maintenance in the amount of $11,240.00, medical expenses in the amount of $17,206.65, and ongoing disability benefits totaling $460,000.00 through the onset of this litigation. Mr. Wendelboe sued SeaRiver in November 1995, alleging negligence and seeking damages under the Jones Act, 46 U.S.CApp. § 688(a), and general maritime law. After the parties concluded discovery, each filed a motion for summary judgment on the question whether the disability benefits paid to Mr. Wendelboe amounted to a fringe |sbenefit of his employment and thus a collateral source of recovery or if SeaRi-ver could offset the benefits already paid to Mr. Wendelboe against any judgment he might receive in court and thus avoid double payment. These motions were heard on November 15, 2005. The trial court issued oral reasons on the same day, finding for Mr. Wendelboe and concluding that the disability plan was a “fringe benefit.” Thus, SeaRiver was not “entitled to a reduction.” SeaRiver has appealed, alleging legal error.

II. LAW AND ANALYSIS

The parties have agreed that no factual dispute exists; this case presents a question of law subject to de novo review on appeal: did the trial court err in granting Mr. Wendelboe’s motion for summary judgment, thus shielding his disability benefits from offset by SeaRiver against any tort litigation recovery he may receive?

In the Jones Act of 1920, Congress granted maritime workers the right to sue their employers for negligence. The Jones Act incorporates the Federal Employers’ Liability Act (FELA) by reference. Presumptively, therefore, FELA jurisprudence is authoritative in Jones Act cases, and vice versa. David W. Robertson & Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at The National Level and in the Fifth and Eleventh Circuits, 30 Tul. Mar. L.J. 195, 232 (2006); see also Cox v. Roth, 348 U.S. 207, 208, 75 S.Ct. 242, 99 L.Ed. 260 (1955). This is such a case, as it asks us to determine whether the worker disability plan provided by SeaRiver contained a provision, as contemplated by FELA, wherein a common carrier being sued may “set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to |4the injured employee... on account of the injury or death for which said action was brought.” 45 U.S.C. § 55.

FELA, and by extension, the Jones Act, operate in this context to create an exception to the “collateral source” rule, which holds that if an injured party receives compensation for its injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay. Black’s Law Dictionary (7th ed.1999); see also Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir.1994). The rationale for this exception is to protect an employer that has purposefully sought to indemnify itself against double liability by providing a self-funded plan to compensate workers for injuries that may lead to litigation. Assuming such a plan or fund is proper and fair; FELA allows an employer to credit plan payments against any recovery in tort so that the plaintiff does not recover doubly. Clark v. Burlington N., Inc., 726 F.2d 448, 450 (8th Cir.1984) (citing Haughton v. Blackships, 462 F.2d 788, 791 (5th Cir.1972)).

Maritime cases like the one at bar do not present a typical collateral source rule application. As Black’s definition notes, the “collateral source” is one that is “independent of the tortfeasor,” such as a tort-feasor’s insurance company, whose potential liability cannot be offset or reduced if a plaintiff receives compensation from the plaintiffs own insurer. Here, as in many cases involving maritime enterprises and railroads, SeaRiver is both the alleged tortfeasor and the would-be “independent” source that funds the disability plan. As these conceptual identities are merged in the same entity, there is no true collateral source here. The inquiry hinges on the nature of the plan at issue.

| ¡(The case at bar presents the issue of how such a fund or plan is to be characterized. Either, as guided by FELA, the employer has created and funded the plan specifically to shield itself against liability for injuries to workers or the plan has another independent purpose, such as to provide deferred compensation or some other fringe benefit to workers. Whether the employer is the source of the fund or plan clearly matters, but case law notes that the primary analytical emphasis remains on determining the “character of the benefits received.” Clark, 726 F.2d at 450 (citing Haughton, 462 F.2d at 791).

SeaRiver argues that the trial court erred in deeming the disability plan at issue a fringe benefit and thus not subject to offset because it covered both work-related and non-work-related injuries. This brings up one of the factors in the jurisprudential test used to discern between fringe benefits, which cannot be set off against tort recovery, and conscious indemnification mechanisms, which can be set off against tort recovery. The factors include: (1) whether the employee makes any contribution to funding of the disability payment, (2) whether the benefit plan arises as the result of a collective bargaining activity, (3) whether the plan and payments under it cover both work-related and non-work-related injuries, (4) whether payments from the plan are contingent upon length of service of the employee, and (5) whether the plan contains any specific language contemplating a set-off of benefits received under the plan against a judgment recovered in a tort action. Allen v. Exxon Shipping Co., 639 F.Supp. 1545, 1548 (D.Me.1986).

Here, factors (1) and (2) are not contested: employees do not contribute to the SeaRiver plan and it is not the result of a collective bargaining agreement. Regarding factors (3) and (4), the SeaRiver plan does provide coverage for both work-related and non-work-related injuries, but it | fitreats them distinctly. The primary difference for this inquiry is that work-related injuries are covered by the plan regardless of the worker’s tenure, but benefits for non-work-related injuries depend to a degree on the worker’s tenure. Although the trial court emphasized this factor, we do not find it dispositive in the case at bar.

The final factor, whether the plan includes specific language indicating its purpose as a set-off mechanism, has been the subject of debate between the parties. The pertinent SeaRiver provisions are as follows. Under section 2, “Long Term Disability Benefit,” subsection 2.5 sets forth the “amount of each monthly installment” due to an injured worker. This amount is to be “equal to the excess, if any, of the person’s Long-Term Disability Standard over...[t]he amount of any judgment or settlement payable to a disabled person by a service-oriented employer on account of' a claim for personal injuries, including.. .a claim arising under the Jones Act (46 U.S.GApp. § 688) or a claim for maintenance and cure arising under general U.S. maritime law.”

Continuing to section 3, “Denial of Benefits,” subsection 3.1 allows that the employer may deny benefits under the plan if it determines that the worker has been “paid a sum by the employer under a judgment for personal injuries or for maintenance and cure while benefits are paid or payable under this Plan, until denied benefits that would have been payable to such person equal the total of such sum so paid by the employer.”

Mr. Wendelboe argues that these plan provisions contain no language to the effect that an employer may “reduce its tort liability by the amount of |7the benefits paid to the plaintiff/employee,” only language, rather, that “could result in a reduction of disability benefits to the claimant, depending upon resolution of a tort claim against the employer.” SeaRiver argues that the statute requires no “talis-manic language” and that “the intent of the employer [through the plan] to avoid a double payment is what controls.”

SeaRiver is correct on this point. The FELA provision in 45 U.S.C. § 55, as incorporated into the Jones Act, requires no “magic words.” It demands, rather, a showing that the injury for which the worker received benefits be the basis of the action and that the benefits received by the worker in payment concerning that injury be sourced from a fund or plan (“any insurance, relief benefit, or indemnity”) that includes contributions or payments by the employer for that purpose.

The SeaRiver plan language, albeit with some difficulty, attempts to express and succeeds in conveying the company’s intent to avoid double payment for both benefits and tort recovery. In the monthly calculations from section 2.5, SeaRiver clearly claims the right to credit any judgment or settlement payments it makes to an injured worker against the monthly amount due. Similarly, in section 3.2, SeaRiver clearly claims the right to deny benefits outright (which we believe includes the “lesser” approach of reducing benefits) to the extent that it has paid amounts as a result of a judgment for personal injuries or for maintenance and cure for a particular injury.

Mr. Wendelboe argues that the plan anticipates an after-the-fact reduction of disability benefits as a result of tort recovery, but not a | ^reduction of tort recovery concurrent with and to the extent of disability benefits received. This approach attempts a semantic distinction that does not hold up on application. It is our opinion that the policy of judicial efficiency and the intent of 45 U.S.C. § 55 do not entertain that approach. We suggest, rather, that the statute allows an injured worker to begin collecting employer-funded disability benefits for his injury in an expedited manner, far more quickly and reliably than dependence on litigation recovery. Should the employee decide to sue his or her employer, any recovery will still derive from the employer, not from an outside source.

As a final policy point, SeaRiver argues that the likely and logical result of finding for Mr. Wendelboe and allowing double recovery under SeaRiver’s disability plan will be employers’ reluctance to continue providing such plans. This point is valid. Knowing that providing such plans may expose them to the obligation of double payment, and knowing also that the set-off provision of 45 U.S.C. § 55 may not protect them, employers will have little incentive to maintain such plans. It will be less costly for employers to simply settle or defend lawsuits as they arise, and maritime employees may likely find themselves with a cause of action under the Jones Act, but little else.

The statute’s language clearly aims to provide a means by which employees can receive employer assistance and compensation for their injuries and employers have an incentive to provide such benefits while protecting themselves against double payment obligations. In the case at bar, SeaRiver has drafted a plan that clearly expresses its intent to do so, in accordance with the statute. In the words of one court, “the employer’s manifest intent to avoid double liability in offering disability plans must be | ^respected if the collateral source rule is not to swallow up 45 U.S.C. § 55 at the ultimate expense of employees.” Clark, 726 F.2d at 451.

CONCLUSION

For the above and foregoing reasons, we reverse the trial court’s November 28, 2005 judgment and hereby render judgment in favor of Defendant, SeaRiver Maritime, Inc. Each party is to bear its own costs.

REVERSED.

DOWNING, J., concurs.

      . The chief mate was lost at sea and his body was never found.

      . 45 U.S.C.A. §§ 51-60.

      . Section 2.6 of the SeaRiver plan defines this figure as, with occasional modifications, 50% of the worker’s monthly recognized compensation as of the beginning of the month within which the injury occurs or the plan otherwise becomes payable.

      . The SeaRiver plan apparently employs underlining to designate terms defined within the plan; this usage does not seem to suggest any particular substantive emphasis.


author: GAIDRY, J.

text:
    CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE v. Milford LEE.
    No. 2005 CA 2497.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Writ Denied Jan. 26, 2007.
    E. Wade Shows, Lea Anne Batson, Gwendolyn K. Brown, Baton Rouge, Counsel for Plaintiff/Appellees City of Baton Rouge/Parish of East Baton Rouge.
    Kimuel Lee, Baton Rouge, Counsel for Defendant/Appellant Milford Lee.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

^Defendant, Milford Lee, appeals a Judgment of Contempt rendered against him based upon his violation of an injunction. Specifically, Mr. Lee alleges that the court erred in basing a finding of contempt upon a violation of a judgment that was both vague and not yet final.

Mr. Lee’s argument that the injunction was vague was addressed in his appeal under Docket Number 2005CA2496, and rejected. Other issues related to the injunction itself were also addressed in the companion appeal. City of Baton Rouge v. Lee, 20052496 (La.App. 1 Cir. 11/03/06), 941 So.2d 199, (Unpublished opinion). Since we have found that the injunction was not vague, Mr. Lee’s argument that the court erred in basing a contempt ruling on his failure to comply with a vague injunction is without merit.

Mr. Lee next argues that the court could not properly find him in contempt for his failure to comply with the injunction because he had filed a motion for new trial and therefore the judgment granting the injunction was not yet final. Louisiana Code of Civil Procedure article 3605 provides that the order granting an injunction “shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.” The judgment granting the injunction, which was rendered in court on May 9, 2005, was signed on May 24, 2005. At the hearing on the injunction, Mr. Lee’s attorney asked the judge when the injunction would be effective, and the judge answered that “[I]t’s effective as of this minute” and that Mr. Lee had fifteen days to comply. The judgment was mailed to counsel for all parties on May 24, 2005, and there is no indication that the judgment was | ¡¡returned undeliverable. Mr. Lee’s attorney filed a Motion for New Trial on May 31, 2005, which was denied by the court on June 1, 2005. A rule for contempt was filed by the plaintiff on June 28, 2005, and after a September 12, 2005 hearing, at which evidence was produced to show that Mr. Lee had still failed to comply with the order of the court, he was found to be in contempt. It is clear from the record that Mr. Lee had “actual knowledge of the order by personal service or otherwise.” See Graves v. Kemsco Group, Inc., 676 F.Supp. 1411, 1416-17 (N.D.Ind. 1987). Mr. Lee’s second assignment of error is without merit.

DECREE

The September 20, 2005 judgment of the district court is affirmed. All costs of this appeal are assessed to defendant, Milford Lee.

AFFIRMED.

      . Mr. Lee also raises issues related to the injunction itself in a separate appeal, under Docket Number 2005CA2496.

      . Graves involved Rule 65(d) of the Federal Rules of Civil Procedure rather than Louisiana Code of Civil Procedure art. 3605; however, Louisiana Code of Civil Procedure art. 3605 is substantially identical to FRCP 65(d), and therefore, federal jurisprudence interpreting Rule 53 provides useful guidance in interpreting the statute. Scott v. Hospital Service Dist. No. 1 of St. Charles Parish, 496 So.2d 270 (La. 1986).


text:
    VALLEJO ENTERPRISE, L.L.C. v. BOULDER IMAGE, INC.
    No. 2005 CA 2649.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2006.

      Joseph R. Ward, Jr., Covington, Counsel for PlaintiffiAppellant Vallejo Enterprise, L.L.C.
    Stephen L. Williamson, Jeffrey W. Peters, New Orleans, Counsel for Defendant/Appellee Boulder Image, Inc.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

1 gThis is an appeal of a judgment sustaining a declinatory exception of improper venue, based upon a forum-selection clause in the contract between the parties. For the following reasons, we amend the judgment and affirm the judgment as amended.

FACTS AND PROCEDURAL HISTORY

On January 1, 2004, the plaintiff-appellant, Vallejo Enterprise, L.L.C. (Vallejo), a domestic business enterprise, entered into a distributorship agreement with the defendant-appellee, Boulder Image, Inc. (Boulder), an Arizona manufacturer of synthetic stone and other masonry products. The agreement provided exclusive distri-button rights to Vallejo for a term of two years, extendable for additional one-year terms at its option. The agreement also contained the following provision, incorporating a choice-of-law clause and a forum-selection clause:

9. GOVERNING LAW

This agreement shall be construed and interpreted in accordance with Arizona law and any suits with respect to this transaction contemplated herein shall be instituted in courts having their forum with [sic ] the state of Arizona.

On February 23, 2005, Vallejo filed a petition in the 22nd Judicial District Court for the Parish of St. Tammany, seeking rescission of the distributorship agreement on the grounds of fraud, together with damages and attorney fees as authorized by La. C.C. art. 1958. In its petition, Vallejo alleged that prior to the execution of the agreement, Boulder made material misrepresentations as to the number of established jobbers or purchasers of its products in the distributorship territory. Vallejo further alleged that based upon these alleged misrepresentations, it was fraudulently induced into entering the agreement. Thus, it contends that the contract is void ab initio under La. C.C. art. 1948, as its consent was obtained through fraud.

RBoulder responded to Vallejo’s petition with a declinatory exception of improper venue, objecting to the jurisdiction and venue of the trial court by reason of the forum-selection clause quoted above.

The hearing on Boulder’s exception was held on July 27, 2005. At the conclusion of the hearing, the trial court ruled in favor of Boulder. Its judgment sustaining the declinatory exception was signed on August 3, 2005, and provided that Vallejo’s claims were dismissed with prejudice. Vallejo now appeals, assigning as error the trial court’s sustaining the exception and dismissing its action.

DISCUSSION

Forum-selection clauses, or choice-of-exclusive-forum clauses, are pri-ma, facie valid, legal, and binding in Louisiana, and a party seeking to set aside such a provision bears a heavy burden of proof. See Pitts, Inc. v. Ark-La Resources, L.P., 30,836, p. 2 (La.App. 2nd Cir.8/19/98), 717 So.2d 268, 270. Such a clause should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, or that the clause arises from fraud or overreaching, or that enforcement would contravene a strong public policy of the forum where the suit is brought. M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 15-16, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972). For the forum-selection clause to be unenforceable on the ^grounds of fraud or overreaching, it must be shown that the inclusion of the clause in the contract was the product of fraud or coercion. Scherk v. Alberto-Cul ver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 2457 n. 14, 41 L.Ed.2d 270 (1974).

Fraud is a misrepresentation or a 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. Fraud may also result from silence or inaction. La. C.C. art. 1953. Error induced by fraud need not concern the cause of the obligation to vitiate consent, but it must concern a circumstance that has substantially influenced that consent. La. C.C. art. 1955.

On the trial of the declinatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon. La. C.C.P. art. 930. In pleading fraud or mistake (error), the circumstances constituting fraud or mistake must be alleged with particularity. See La. C.C.P. art. 856. However, fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. La. C.C. art. 1957.

The terms of the agreement at issue were not disputed; in fact, Vallejo’s counsel unequivocally advised the trial court that his client “[was] not contesting any provision in the contract” and that there was “no misinterpretation or misunderstanding or any ambiguity whatsoever.” At the hearing of Boulder’s exception, Vallejo offered no evidence in support of its petition’s allegations, and opted to rely upon the bare allegations of its | ^petition in lieu of presenting testimony from its potential witnesses on the issue of fraud.

The agreement at issue contained no express warranty or other representation by Boulder as to the number of established jobbers or product purchasers, the subject of the alleged fraudulent misrepresentation. In fact, the agreement required Vallejo as distributor to “actively solicit business and promote the sale of [Boulder’s] Products to potential customers .... ” It also contained an integration clause which provided that all of the agreement’s terms were set forth therein and that “there [were] no other warranties, obligations, covenants or understandings between the parties.” This integration clause would not necessarily preclude the use of parol evidence to show error or fraud, however. See La. C.C. art. 1848. It was therefore incumbent upon Vallejo to overcome the presumption in favor of the forum-selection clause’s validity by proof of fraud or a showing that its enforcement would be unreasonable or unjust, or contrary to the established public policy of this state.

In determining whether enforcement of a forum-selection clause would be unreasonable or unjust, the party seeking to avoid its enforcement must show that the chosen forum is seriously inconvenient for the trial of the action. M/S Bremen, 407 U.S. at 16, 92 S.Ct at 1916. Since the claimed inconvenience would generally be foreseeable at the time the freely negotiated agreement was made, the party seeking to escape the clause must | ^demonstrate that trial in the contractual forum will be so gravely difficult and inconvenient that it will for all practical purposes be deprived of its day in court. M/S Bremen, 407 U.S. at 17-18, 92 S.Ct. at 1917. Mere inconvenience or additional expense should not suffice as proof of hardship since these are burdens that were allocated by the parties’ private bargain. See Anastasi Bros. Corp. v. St. Paul Fire & Marine Ins. Co., 519 P.Supp. 862, 864 (E.D.Pa.1981). Vallejo presented no evidence in the trial court and makes no showing on appeal that the designated forum, Arizona, would pose serious inconvenience to it under the foregoing standards.

In this appeal, Vallejo contends that it would be patently unfair to allow a foreign manufacturer to fraudulently induce a Louisiana company to enter into a contract and then permit the enforcement of a forum-selection clause for a foreign forum in that contract. Although the public policy of this state does militate against the use of forum-selection clauses in employment contracts, La. R.S. 23:921(A)(2), and in consumer transactions and cases of unfair trade practices, La. R.S. 51:1407, Vallejo has pointed to no authority supporting a proposition that commercially sophisticated parties may not limit their disputes to any forum of their choosing. See Reynolds v. Paulson, 03-1884, pp. 7-8 (La.App. 4th Cir.3/31/04), 871 So.2d 1215, 1220 and Lejano v. Bandak, 97-0388, pp. 23-4 (La.12/12/97), 705 So.2d 158, 170-71, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998).

We would agree that that the presence of a forum-selection clause does not divest the trial court of jurisdiction to determine the underlying contract’s validity and legality. While the issue of fraud is the ultimate issue underlying the merits of Vallejo’s cause of action for rescission and damages, the preliminary resolution of that issue in Vallejo’s favor (at the Every least insofar as it bore upon the forum-selection clause itself) was a necessary predicate to invalidation of the forum-selection clause. Absent proof of fraud or a showing as to one of the other criteria warranting its invalidation, the forum-selection clause is unambiguous and enforceable as a matter of law. The trial court’s implicit conclusion that Vallejo failed to meet its threshold burden of proof of fraud vitiating either the clause or the entire contract is not manifestly erroneous.

Louisiana Code of Civil Procedure article 932 sets forth the effect of sustaining a declinatory exception:

A. When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court....
B. If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action, claim, demand, issue, or theory subject to the exception shall be dismissed; except that if an action has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.

As the grounds of the objection raised in the exception at issue were based upon the undisputed content of the agreement, amendment of the petition would not have served the purpose of removing those grounds. It would therefore have been a vain and useless act to allow Vallejo to amend its petition in an attempt to overcome the forum-selection clause. See American Int’l Gaming Ass’n, Inc. v. La. Riverboat Gaming Comm’n, 00-2864, p. 17 (La.App. 1st Cir.9/11/02), 888 So.2d 5, 18.

The only “other action” which Vallejo might have taken to remove the grounds of the objection was the presentation of evidence to controvert the forum-selection clause under the criteria established in M/S Bremen, 407 U.S. at 15-16, 92 S.Ct. at 1916. We must conclude that where a plaintiff has |sthe opportunity but fails to offer any evidence at the hearing of a declinatory exception to controvert its grounds, he has failed to adequately establish a right to further “delay allowed by the court” to take “other action” on his part to remove the grounds of the objection. Under these circumstances and because transfer of the action was impossible, dismissal under La. C.C.P. art. 932(B) was the only appropriate relief which the trial court could have granted.

Although the trial court was correct in sustaining Boulder’s exception, the trial court erred in dismissing Vallejo’s cause of action with prejudice. In the case of objections to either the venue or jurisdiction of the court, dismissal should result only in those cases where a transfer to the proper court would not be possible or would not be conducive to the administration of justice. See La. C.C.P. art. 982, Comments, (b). Such a dismissal would not preclude the filing of an action in the proper court. M

Vallejo has not expressly assigned any error or raised any issue on appeal as to the nature or effect of the dismissal. This court has, however, a statutory mandate to render a judgment “which is just, legal, and proper upon the record on appeal.” La. C.C.P. art. 2164. The purpose of article 2164 is to give the appellate courts “complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” Comment (a), La. C.C.P. art. 2164. Reading Vallejo’s assignment of error as to the dismissal of its action broadly, we conclude that the trial court’s judgment must be amended to |9provide that Vallejo’s cause of action is dismissed without prejudice to its right to seek relief in a court of proper jurisdiction and venue.

DECREE

The judgment of the trial court, sustaining the declinatory exception of improper venue of the defendant-appellee, Boulder Image, Inc., is amended to provide that the claims of the plaintiff-appellant, Vallejo Enterprise, L.L.C., are dismissed without prejudice, and, as amended, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Vallejo Enterprise, L.L.C.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

      . Although the usual objection raised by a defendant to assert the application of a forum-selection clause is that of "improper venue,” where the forum designated in the clause is not another Louisiana court, the objection should perhaps more appropriately be styled as that of "improper jurisdiction” or "conventional lack of personal and subject matter jurisdiction.” A forum-selection clause designating a foreign state's court as the exclusive forum for any contractual dispute between the parties essentially amounts to the conventional elimination or mutual waiver of such jurisdiction in all courts other than those designated. Louisiana Code of Civil Procedure article 925’s list of objections which may be raised through a declinatory exception is expressly described as non-exclusive. At any rate, the substance of the objection, rather than its title, should control its disposition.

      . See Black’s Law Dictionary 258, 681 (8th ed.2004).

      . Under this article, it is enough that the error induced by fraud concerned a circumstance that substantially influenced the party to bind himself, even though it did not concern the actual cause or reason why the party bound himself. This type of error thus differs from simple error. See La. C.C. art. 1955, Revision Comments — 1984, (b).

      . The trial court specifically addressed the need for an evidentiary hearing to determine the issue of whether error induced by fraud vitiated the agreement. After inquiring of the court whether it intended to conduct the evi-dentiary hearing that day, Vallejo's counsel advised the court that he might present testimony from two witnesses on that issue, but for some reason submitted the matter for the trial court’s ruling without calling those witnesses. After the trial court expressed its ruling, Vallejo did not express any objection that the trial court precluded it from presenting evidence, nor did it request leave to make an offer of proof. In its appellate brief, Vallejo does not dispute its failure to present evidence, but instead contends that the trial court erred in preliminarily requiring such proof on the “ultimate liability issue,” in addition to the relevant allegations of its petition.

      . See, e.g., Farmers Cotton Co., Inc. v. Savage, 30,289, p. 5 (La.App. 2nd Cir.6/26/98), 714 So.2d 926, 929, writ denied, 98-2322 (La. 11/20/98), 728 So.2d 1288.

      . See, e.g., Mitchell v. Terrebonne Parish School Board, 02-1021, pp. 6-7 (La.App. 1st Cir.4/2/03), 843 So.2d 531, 534, writ denied, 03-2275 (La. 11/26/03), 860 So.2d 1135.

      . See also La. C.C.P. art. 123(B), providing for dismissal of an action without prejudice on the grounds of forum non conveniens where a more appropriate forum exists outside of this state.