author: AMY, Judge.

text:
    NEW SOUTH FEDERAL SAVINGS BANK v. COMMONWEALTH LAND TITLE INSURANCE COMPANY, et al.
    No. 06-477.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      William M. Ford, Alexandria, LA, for Defendant/Appellee Commonwealth Land Title Insurance Company.
    James B. Reichman, Reichman & Armour, Alexandria, LA, for Plaintiff/Appellant New South Federal Savings Bank.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

hThe plaintiff bank purchased a mortgage from the original lender. The mortgage had an error, in that it contained the physical address of one location and the legal description of another. The defendant title insurance company issued a policy for the mortgaged property. The plaintiff learned of the error when it attempted to foreclose on the property. Thereafter, it commenced this proceeding to recover under the title insurance policy. The trial court ruled in favor of the defendant, finding that, although the lender did not issue a mortgage on the property for which the physical address was provided, it issued a valid mortgage on the property for which the legal description was provided. The court found no title irregularities bn the mortgaged property and, thus, no recovery under the title insurance policy. The plaintiff bank appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that in October 2000, Memphis and Dorothy Willis applied to Southern Equity Lenders for a property mortgage. According to Bill Nichols, who then served as Southern Equity’s Secretary Treasurer, it was assumed that the mortgage was to be taken on the Willises’ residence, a house located at 351 Willis Flat Road, Glenmora, Louisiana.

Southern Equity contacted one of its approved attorneys for the purpose of closing the loan. The attorney, also an agent for Commonwealth Land Title Insurance Company, issued a short form title insurance policy on the property. According to Mr. Nichols, the decision as to whether to have a survey performed on the subject property was left to the discretion of the closing attorney. At trial, the attorney pointed out that Southern Equity’s instructions as to closing did not indicate that a survey was requested. In any event, no survey was performed.

| «.The mortgage was sold to the plaintiff, New South Federal Savings Bank, upon completion. After Mr. Willis’s death and following default, New South commenced foreclosure proceedings. A survey completed as part of the foreclosure proceedings revealed that the physical address listed on the mortgage and the legal description of the property provided within the mortgage differed. Although the physical address was the Willis residence and it was the one supplied to Southern Equity through the mortgage application, the property at that address was not owned by Mr. and Mrs. Willis. Rather, it was owned by their son. The property for which the legal description was provided was owned by Mr. and Mrs. Willis, but it was an unimproved parcel of land located on Monk Road. Foreclosure proceedings on the Willis Plat Road property were suspended. There is no indication that foreclosure proceeded against the Monk Road property.

New South filed the instant matter, naming both the closing attorney and Commonwealth Land Title Insurance Company as defendants. While the closing attorney was dismissed on a successful exception of prescription/peremption, New South pursued Commonwealth for coverage under the title insurance policy issued in conjunction with the mortgage. New South sought recovery for losses stemming from what it alleged was a lack of clear title on the Willis Flat Road property. Commonwealth denied recovery. Prior to trial, Southern Equity repurchased the mortgage from New South.

The trial court found in favor of the insurer, concluding that recovery was not possible as the title to the property was not defective and, furthermore, a valid mortgage existed on the Monk Road property. The validity of the mortgage is not |san issue before the court and, therefore, is not considered herein. However, New South has appealed the trial court’s determination that the title insurance policy does not provide coverage for its inability to foreclose on the Willis Flat Road property and presents the following issues for review:

A. Did the variance between the erroneous property description and the correct municipal address; the acreage described and the actual acreage; and/or the absence of improvements on the described property constitute “adverse circumstances affecting the title” which would have been disclosed by an accurate survey, thus resulting in coverage under the title policy?
B. Should Commonwealth’s policy be reformed to reflect insurance of title on the intended property?
|4C. Did Commonwealth’s erroneous inclusion of two different properties (one by municipal address and the other by legal description) as those whose title insured render the insurance contract ambiguous so as to mandate an interpretation of title coverage for the one intended by the insured?

Discussion

Variance as to Property

New South focuses on the difference in the property intended to be insured and that for which the legal description was provided in both the mortgage and the title insurance policy. In arguing that the Commonwealth policy provides coverage for failure to obtain clear title to the Willis Flat Road property, it relies upon the Commonwealth insurance provision indicating, in part, that the “policy insures against loss or damage by reason of any violation, variation, encroachment or adverse circumstances affecting the title that would have been disclosed by an accurate survey.” New South argues that because an accurate survey would have revealed the discrepancy between the physical address of the Willis Flat Road property and the legal description provided for the Monk Road property, the policy should afford insurance of title on the intended property. As the question of the validity of the mortgage itself is not at issue, we turn to the wording of the title insurance policy to consider New South’s claim.

hThe Commitment for Title Insurance indicates that the land referred to therein is that attached as “Exhibit ‘A’.” Exhibit A to the Commitment provides the following descriptions which the parties now agree is that of the unimproved parcel on Monk Road:

Exhibit “A”
A certain tract of land containing one (1.0) acres, more or less, situated in the South half (S/2) of the Northeast Quarter (NE/4) of the Northwest Quarter (NW/4) of Section 36, Township One (1) South, Range Four (4) West, and being more particularly described as follows:
The South half (S/2) of the Northeast Quarter of the Northwest Quarter of Section 36, Township One South, Range 4 West LESS AND EXCEPT Tracts # 1 through 10 on Exhibit attached hereto:
Tract 1: 1.0 acre sold by Memphis Willis to Poley Buxton at Conveyance Book 484, page 452;
Tract 2: 2.1 acres sold by Memphis Willis to Mason Willis at Conveyance Book 1299, page 584;
Tract 3: 0.14 acre sold by Memphis Willis to Burton Ashworth at Conveyance Book 565, page 344;
Tract A: one-fourth (1/4) acre sold by Memphis Willis to Mason Willis at Conveyance Book 721, page 667;
Tract 5: one-half Qk) acre sold by Memphis Willis to Mason Willis at Conveyance Book 721, page 669;
Tract 6: 2.28 acres sold by Memphis Willis to Mason Willis at Conveyance Book 1204, page 166;
Tract 7: 1.00 acre sold by Memphis Willis to Wanda Glen Lockhart at Conveyance Book 1239, page 613 and Corrected at Conveyance Book 1306, page 210;
Tract 8: 4.0 acres sold by Memphis Willis at Mason Willis at Conveyance Book 1539, page 282;
Tract 9: 2.84 acres sold by Memphis Willis to Michael N. Willis at Conveyance Book 1555, page 242;
| ¿Tract 10: 5.7 acres sold by Memphis Willis to Geraldine Johnson at Conveyance Book 1555, page 919[.]

The “Short Form Residential Loan Policy One-to-Four Family” issued by Commonwealth lists the “property address” as “351 Willis Flat Road, Glenmora, LA 71433.” As far as identification, it further provides that:

The estate or interest in the land identified in this Schedule A and which is encumbered by the insured mortgage is fee simple and is at Date of Policy vested in the borrower(s) shown in the insured mortgage and named above.
The land referred to in this policy is described as set forth in the insured mortgage and is identified as the property address shown above.

(Emphasis added.) Schedule B to the policy is entitled: “Exceptions From Coverage And Affirmative Assurances.” It indicates, in pertinent part, that:

This policy does not insure against loss or damage (and the Company will not pay costs, attorneys’ fees or expenses) which arise by reason of the matters set forth below, except to the extent that the Company does insure in accordance with and subject to its terms against loss or damage which the insured shall sustain by reason of any inaccuracies in the affirmative assurances set forth below, except as limited in any addendum attached hereto:
5. This policy insures against loss or damage by reason of any violation, variation, encroachment or adverse circumstances affecting the title that would have been disclosed by an accurate survey. The term “encroachment” includes encroachments of existing improvements located on the land onto adjoining land, and encroachments onto the land of existing improvements located on adjoining land.

(Emphasis added.) New South argues that the above assurance provides coverage in this instance as the complained of “variation” or “adverse circumstances affecting the title” would have been disclosed if an accurate survey had been performed.

As insurance policies are contracts between the parties, they are to be construed in light of the general rules of contract interpretation provided by the Louisiana Civil Code. Bonin v. Westport Ins. Corp., 05-0886 (La.5/17/06), 930 So.2d 906. Relevant to this review are Articles 2045 through 2049, which provide:

Art. 2045. Determination of the intent of the parties
Interpretation of a contract is the determination of the common intent of the parties.
Art. 2046. No further interpretation when the intent is clear
When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.
Art. 2047. Meaning of words
The words of a contract must be given their generally prevailing meaning.
Words of art and technical terms must be given their technical meaning when the contract involves a technical matter.
Art. 2048. Words susceptible of different meaning
Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.
Art. 2049. Provision susceptible of different meanings
A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.

Notwithstanding the discrepancies regarding the location of the mortgaged property in this case, our review of the wording of the contract itself reveals no support for the argument that the affirmative assurance regarding an accurate survey provides coverage as urged by New South. A survey likely would have revealed the errors in both the mortgage and the insurance. In fact, it was a survey that ultimately revealed the error. However, the applicable affirmative assurance provides that the policy provides coverage losses/damages stemming from “any violation, variation, encroachment, or adverse circumstances affecting the title" that would have been |sdisclosed through a survey. (Emphasis added.) While the course of events in this case is not fully explained in the record, the problems associated with the varying property descriptions do not affect the “title” of either parcel of property. Thus, per the terms of the contract, there is no coverage for the inability to foreclose on the Willis Flat Road property.

Neither do we find relevant the jurisprudence from other states referenced by New South. Whereas those cases relate to the question of whether an encroachment/adverse circumstance would have been disclosed through an accurate survey and the scope of any such survey exception/assurance, this case is factually dissimilar in that its resolution lies with consideration of whether any such situation affected the title.

Reformation of the Contract

New South also contends that, due to the parties’ mutual mistake as to which property was being insured, the policy must be reformed to provide coverage of the title of what it asserts was the property the parties intended to mortgage, ie., the Willis Flat Road property. Alternatively, it argues that the conflicting descriptions render the insurance contract ambiguous and, according to La.Civ.Code art.2056, it must be construed in favor of coverage.

Here, with the same agent working for both, the parties entered into a contract with a discrepancy between the physical address and the property described. Any error initially occurred at the time of the mortgage and prior to the contract of | insurance. Certainly it must have been the intention of the parties to insure the title of the property actually mortgaged. Thus, the trial court did not err in its observation that the insurance policy issued “did exactly what it was intended to do. It insured that plaintiff had a valid first mortgage over the property described in the insurance policy.” These assignments lack merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the appellant, New South Federal Savings Bank.

AFFIRMED.

      . In reasons for ruling, the trial court explained:
      In its argument for coverage Plaintiff relies on the language of the survey endorsement quoted above. Plaintiff argues that insuring the wrong property is an adverse circumstance which would have been disclosed by an accurate survey. The Court has found no Louisiana jurisprudence directly on point as to the interpretation of the survey endorsement. Furthermore, a search of the jurisprudence of other states has yielded no explanation. Therefore, the Court believes that this policy must be interpreted by looking at the plain meaning of the words used in the policy.
      An insurance policy is to be enforced as written if the language in the policy is clear and unambiguous. Furthermore, if a policy is clear and unambiguous the courts have no authority to alter the terms of the policy. Pareti v. Sentry Indemnity Company, 536 So.2d 417 (La.1988). When interpreting insurance contracts, the court’s responsibility is to determine the parties’ common intent. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. Johnson v. Evan Hall Sugar Cooperative, Inc., 2001-2956 (La.App. 1 Cir. 12/30/02), 836 So.2d 484.
      The Court does not find the wording of the survey endorsement to be ambiguous. The endorsement provides that New South will be insured for an "adverse circumstance” affecting the title which would have been detected by an accurate survey. The Court does not believe that insuring the wrong property is an adverse circumstance which affected the title in this situation. Furthermore, the Court does not believe that a survey would have revealed any problem with the title in this case. Mortgagee's title insurance is to ensure that the lender has a valid first mortgage over the property mortgaged. In this case, the mortgage and title insurance may not cover the property the lender intended them to cover, however, there is no problem with the title to the property actually mortgaged to the lender and insured by the title insurance policy. The lender still has a valid first mortgage over the property that was actually mortgaged. Therefore, the Court must disagree with Plaintiff's argument that the survey endorsement covers this situation.

      . The Mortgage indicates that:
      Borrower does hereby mortgage and hy-pothecate to Lender the following described property located in RAPIDES Parish, Louisiana:
      SEE LEGAL DESCRIPTION ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A".
      which has the address of 351 WILLIS FLAT RD. GLENMORA Louisiana 71433 ("Property address”)[.]
      Exhibit "A" to the mortgage document reveals the same legal description provided in the title insurance, that of the unimproved property on Monk Rd.

      . Entitled "Standard-form contracts,” Article 2056 provides:
      In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.
      A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    Alfred L. SMITH, Jr. v. KAOUGH & ASSOCIATES.
    No. 06-471.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Robert T. Jacques, Jr., Attorney at Law, Lake Charles, LA, for PlaintiffAppellee, Alfred L. Smith, Jr.
    Christopher R. Philipp, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Kaough & Associates.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

|,Alfred Smith filed two separate workers’ compensation claims against his employer, Kaough & Associates, seeking medical benefits and indemnity payments and alleging that two workplace injuries left him disabled. The claims were consolidated in the proceedings below and remain consolidated for purposes of this appeal. The workers’ compensation judge ruled in favor of the claimant and awarded benefits, penalties, and attorney fees. The court also ordered the claimant to submit to an examination by a physician of the defendant’s choosing. Both the claimant and the defendant have appealed. We affirm.

In thorough and detailed reasons for judgment, the workers’ compensation judge summarized the evidence and her factual conclusions. Our review of the record reveals no manifest error in those conclusions; consequently, we affirm the judgment rendered below. We also render a separate opinion this day in the companion case, docket number 06-0472.

Taylor Kaough is an architect and has worked as a general contractor for thirty-five years. Smith was hired by Kaough as a carpenter in 1997 and later became a supervisor. He had a number of job related injuries through the years, but none which caused him to miss work. As time went on, however, Smith’s responsibilities were modified to accommodate his injuries and he took on a more supervisory role. Taylor Kaough was complimentary of his work, testifying that Smith was his best employee.

The two injuries at issue in this appeal allegedly occurred in August of 2001 and December of 2002. The first incident occurred when Smith lifted a heavy beam, and the second injury involved a heavy solid core door which Smith was attempting to hang after trimming the bottom. Kaough paid the initial medical bills associated with the 2001 accident. Smith did not return to work after the 2002 accident. While the evidence is equivocal, it appears that Smith did not inform Kaough of his injury 12until several days after it occurred. He also did not tell Kaough that he would not be returning to work. Although Kaough reported the 2002 injury to its insurer in January 2003, no medical benefits were paid. In fact, Smith did not actually seek medical treatment specifically for that injury until August 20, 2004, when he first saw Dr. Clark Gunderson. Dr. Gunderson’s records include MRI reports from October 2001 and September 2004 which reveal a disc herniation at the L5-S1 level, a condition consistent with his complaints of pain since 2001.

In this appeal, Kaough & Associates contends the workers’ compensation judge erred in three respects: in finding that two work-related accidents occurred, in awarding disability benefits, and in concluding the August 2001 claim was not reasonably controverted. Alfred Smith’s appeal questions the denial of penalties and attorney fees regarding the December 2002 accident and the award of disability benefits from the date of Dr. Gunderson’s evaluation, August 20, 2004, rather than the date of accident, December 19, 2002. Smith also requests an increase in the award of attorney fees for work performed in this appeal.

Our review of the evidence reveals no manifest error in the conclusion reached by the workers’ compensation judge that Smith met his burden of proving work-related accidents by a preponderance of the evidence. While the employment and medical records were equivocal, the evidence as a whole supports the factual conclusion reached below. We also find no manifest error in the finding regarding the claimant’s disability status. Dr. Gun-derson placed Smith on a no work status in August of 2004, and that evidence was uncontroverted. Smith was not pronounced disabled at any time prior to Dr. Gunderson’s evaluation, nor was there other medical evidence questioning his disability status at the time the report was issued. Therefore, neither Smith’s nor Kaough’s assignment of error on the disability issue has merit.

|3We likewise find no manifest error in the conclusions reached by the workers’ compensation judge on the issue of penalties and attorney fees. Kaough disputes the finding that the August 2001 accident was not reasonably controverted, while Smith disputes the finding that the December 2002 accident was reasonably controverted. The trial court’s reasons are not clearly wrong or manifestly erroneous.

Finally, we deny Smith’s request for an increase in the award of attorney fees for work performed in this appeal. Considering this request, we acknowledge that Smith successfully defended his right to compensation as awarded by the trial judge. However, because he filed his own appeal on other issues, and was ultimately unsuccessful in that regard, he is not entitled to an increased award of attorney fees for work performed on appeal. Accordingly, we decline to increase the amount awarded below.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Kaough & Associates.

AFFIRMED.


text:
    Alfred L. SMITH, Jr. v. KAOUGH & ASSOCIATES.
    No. 06-472.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Robert T. Jacques, Jr. Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Alfred L. Smith, Jr.
    Christopher R. Philipp, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Kaough & Associates.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

For the reasons assigned this date in the consolidated matter bearing docket number 06-471, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the defendant.

AFFIRMED.


author: GENOVESE, Judge.

text:
    SUCCESSION OF Ja Kun Kang CRUMBLEY.
    No. 2006-402.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    W. Alan Pesnell, Shreveport, LA, for Executor/Appellant, Kenneth W. Crum-bley, Jr. (Executor).
    Perrell Fuselier, Oakdale, LA, for Ap-pellee, Kenneth W. Crumbley, Sr.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|,Kenneth W. Crumbley, Jr., as Executor of the Succession of Ja Kun Kang Crumbley, appeals the judgment of the trial court annulling the judgment of possession in favor of Kenneth W. Crumbley, Jr., John Thomas Crumbley, and Toya Johnette Crumbley Creighton, the only children of Ja Kun Kang Crumbley. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Decedent, Ja Kun Kang Crumbley, a resident and domiciliary of Alexandria, Rapides Parish, Louisiana, died testate in Dallas, Texas, on October 30, 1999. She was survived by her husband, Kenneth W. Crumbley, Sr., and three children, Kenneth W. Crumbley, Jr., John Thomas Crumbley, and Toya Johnette Crumbley Creighton.

Decedent executed a last will and testament on September 23, 1999. In her will, decedent designated her son, Kenneth W. Crumbley, Jr., as executor of her estate and bequeathed her entire estate to her three children in equal shares.

In June of 2000, Kenneth W. Crumbley, Jr. (Executor) filed a petition for probate of his mother’s will and to have himself confirmed as executor of the estate. Said petition contained a certificate attesting that copies of the aforementioned pleadings were mailed to counsel for Kenneth W. Crumbley, Sr. Inventories of decedent’s assets were then performed with the knowledge and participation of either Kenneth W. Crumbley, Sr. or his counsel. At these inventories, Kenneth W. Crum-bley, Sr. asserts that he declared to counsel for the Executor that certain items were, in fact, his separate property.

On December 18, 2001, the Executor filed a petition for possession and for ho-mologation of first and final tableau of distribution. A judgment of possession was |2signed by the trial court on January 9, 2002, recognizing the decedent’s three children as the sole legatees of their mother’s estate.

On February 20, 2002, Kenneth W. Crumbley, Sr. filed a petition to annul judgment seeking to set aside the judgment of possession signed on January 9, 2002, alleging that “the [jjudgment ... was obtained by ill practice, due to an apparent oversight by the attorney for the heirs.” Kenneth W. Crumbley, Sr. avers that neither he nor his attorney received copies of the detailed descriptive list of assets and other documents which were filed and upon which the judgment of possession was rendered. Kenneth W. Crum-bley, Sr. further asserts that his separate funds were incorporated into the community of acquets and gains.

Following a hearing on July 15, 2002, the trial court took the matter under advisement and, on November 18, 2002, granted judgment in his favor stating:

KENNETH W. CRUMBLEY, SR., was not properly served with process as required by the Code of Civil Procedure; therefore, the Judgment of Possession rendered on the 9th day of January 2002, is hereby declared a nullity and the Petition to Annul the Judgment of Possession filed on behalf of KENNETH W. CRUMBLEY, SR., is granted.

The Executor appeals.

ISSUE

The Executor asserts that the trial court erred in declaring the January 9, 2002 judgment of possession a nullity pursuant to La.Code Civ.P. art. 2004.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure article 2004 provides, in pertinent part, that “[a] final judgment obtained by fraud or ill practices may be annulled” if the “action to annul ... [is] brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

| ¡¡The Executor argues on appeal that since Kenneth W. Crumbley, Sr. did not follow the procedural requirements set forth in La.Code Civ.P. art. 3305, the failure to send notice could not be deemed an “ill practice” warranting nullification of the judgment of possession. The Executor contends that both Kenneth W. Crumbley, Sr. and his attorney were aware of the proceedings and even participated in the inventories of decedent’s assets; therefore, Kenneth W. Crumbley, Sr. had the duty to request notice in accordance with La.Code Civ.P. art. 3305. The Executor further asserts that since no notice was requested by Kenneth W. Crumbley, Sr. that he is bound by the tableau of distribution and judgment of possession because he is, by his omission, subject to the same form of notice to which any other person interested in the succession is subjected, i.e., notice by publication.

Kenneth W. Crumbley, Sr. contends that he has been deprived of possession of his separate property; therefore, the lack of notice constitutes an ill practice justifying nullification of the judgment of possession pursuant to La.Code Civ.P. art. 2004. Kenneth W. Crumbley, Sr. further asserts that the trial court was correct in annulling the judgment of possession rendered in this succession proceeding because the Executor knew of his interest in decedent’s estate and knew he was represented |4by counsel; yet, neither he nor his counsel received notice of the filing of the detailed descriptive list of assets and the petition for possession from the Executor until after the judgment of possession was signed by the trial court and funds were distributed.

In the alternative, the Executor argues that all of the statutory notice requirements have been met; therefore, annulment was not proper. In support of his contention, the Executor argues that the alleged separate property of Kenneth W. Crumbley, Sr. contained in the judgment of possession is considered a debt against decedent’s estate; therefore, the only manner in which the Executor was bound to give Kenneth W. Crumbly, Sr. notice of their filing of the tableau of distribution with the court is through publication mandated by La.Code Civ.P. art. 3304. The record of these proceedings contains an affidavit verifying that the Executor followed the procedural rule enunciated in Article 3304 by publishing a notice of the application to pay succession debts and charges in the official Rapides Parish newspaper on December 28, 2001. Therefore, the Executor contends that notice was given to Kenneth W. Crumbley, Sr. via publication of the tableau of distribution on December 28, 2001.

Conversely, Kenneth W. Crumbley, Sr. cites the mandate set forth in La.Code Civ.P.art. 3306. His contention is that the Executor’s failure to send him notice of the detailed descriptive list of assets prior to the filing of the petition for possession and for homologation of first and final tableau of distribution amounts to an “ill practice” and is justification for a nullification of the judgment of possession signed by the trial | scourt on January 9, 2002. Louisiana Code of Civil Procedure Article 3306 (emphasis added) provides:

When notice has been requested in accordance with Article 3305, the succession representative, without the necessity for a court order thereon, shall send a notice of the filing of a tableau of distribution by mail to the attorney designated by the person praying for notice at the address designated. Proof of mailing is sufficient; no proof of receipt is required.
If no notice of the filing of a tableau of distribution has been mailed when required under this article, a judgment homologating the tableau of distribution shall have no effect against the person praying for such notice.

Kenneth W. Crumbley, Sr. argues that the Executor knew of his interest in decedent’s estate and was required under La.Code Civ.P. art. 3306 to provide him with notice. Kenneth W. Crumbley, Sr. further asserts that the Executor’s actions, or lack thereof, equate to an “ill practice” because he relied upon the Executor’s knowledge of his interest in decedent’s estate, which resulted in the deprivation of his legal rights, and that enforcement of the judgment of possession would be unconscionable and inequitable.

This court in Succession of Blackwell, 98-50 (La.App. 3 Cir. 5/6/98), 713 So.2d 625, writ denied, 98-1983 (La.10/30/98), 727 So.2d 1169, affirmed a nullification of a judgment of possession where the parties had not filed formal pleadings with each other, but rather had communicated informally. Citing La. Code Civ.P. art. 2004, this court reasoned:

The courts have recognized that this provision is not limited to actual fraud or wrong doing. Schoen v. Burns, 321 So.2d 908 (La.App. 1 Cir.1975). The court is also directed to look to equitable considerations. There is actionable fraud or ill practice when (1) the circumstances illustrate a deprivation of the legal rights of the litigant seeking relief, and (2) enforcement of the judgment would be unconscionable and inequitable. Douglas v. Louisiana Gin Co., Inc., 95-1637 (La.App. 3 Cir. 6/5/96); 688 So.2d 1058.

Id. at 628.

| fiThe supreme court in Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983)(emphasis added), interpreted La. Code Civ.P. art. 2004 to:

encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable. Chauvin v. Nelkin Ins. Agency, Inc.[,] 345 So.2d 132 (La.App. 1st Cir.1977), writ denied, 347 So.2d 256 (La.1977); Schoen v. Burns, 321 So.2d 908 (La.App. 1st Cir.1975); St. Mary v. St. Mary, 175 So.2d 893 (La.App. 3d Cir.1965); Tapp v. Guaranty Finance Co., 158 So.2d 228 (La.App. 1st Cir.1963), writ denied, 245 La. 640, 160 So.2d 228 (1964).

We find that Kenneth W. Crumbley, Sr.’s claim of ill practices is supported by the record of these proceedings. The Executor was aware that Kenneth W. Crum-bley, Sr. was an interested party and was represented by counsel. The Executor was likewise aware that Kenneth W. Crumbley, Sr. disputed the descriptive list of assets and claimed that certain accounts and investments were his separate property. The record does not contain evidence of sufficient notice to Kenneth W. Crum-bley, Sr. of the filing of the petition for possession for homologation of first and final tableau of distribution prior to obtaining the judgment of possession in this matter. Therefore, we find that the record supports the trial court’s judgment declaring the January 9, 2002 judgment of possession a nullity pursuant to La.Code Civ.P. art. 2004.

DECREE

For the above stated reasons, we affirm the judgment of the trial court. The costs of this appeal are assessed to the Succession of Ja Kun Kang Crumbley through its Executor, Kenneth W. Crumbley, Jr.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 3305. Petition for notice of filing of tableau of distribution.
      An interested person may petition the court for notice of the filing of a tableau of distribution.
      The petition for such notice shall be signed by the petitioner or by his attorney, and shall set forth: (1) the name, surname, and address of the petitioner; (2) a statement of the interest of petitioner; (3) the name, surname, and office address of the attorney at law licensed to practice law in this state to whom the notice prayed for shall be mailed; and (4) a prayer that petitioner be notified, through his attorney, of the filing of the tableau of distribution.
      A copy of this petition shall be served upon the succession representative, as provided in Article 1314.

      . Louisiana Code of Civil Procedure Article 3304. Notice of filing of petition; publication.
      Notice of the filing of a petition for authority to pay an estate debt shall be published once in the parish where the succession proceeding is pending in the manner provided by law. The notice shall state that the petition can be homologated after the expiration of seven days from the date of publication and that any opposition to the petition must be filed prior to homologation.


author: PICKETT, J.

text:
    Vad DAOTHEUANG v. EL PASO PRODUCTION OIL & GAS CO., et al.
    No. 2006-403.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Gerald C. deLaunay, Lafayette, LA, for Defendant/Appellee, Omega Natchiq, Inc.
    Alistair A. Adkinson, Baton Rouge, LA, for Plaintiff/Appellant, Vad Daotheuang.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, J.

_JjThe plaintiff, Vad Daotheuang, appeals a judgment of the trial court granting the defendant’s, Omega Natchiq’s (Omega), motion for summary judgment and dismissing the plaintiffs suit. We affirm the judgment of the trial court.

FACTS

On April 19, 2000, the plaintiff, who was employed by the defendant, was injured in the course and scope of his employment when a gasket on a flow meter on a piece of oil field equipment (described as a “skid”) on which the plaintiff was working failed. The skid was being constructed for El Paso Oil & Gas Production Company out of various components, some of which were supplied by Halliburton Energy Services. The components supplied by Halliburton included flow meters and installation kits which contained flange gaskets manufactured by Lydall, Inc. It was one of these gaskets which failed while the system was undergoing hydrostatic testing. When the gasket failed, fluid under approximately 1700 pounds per square inch of pressure was released striking the plaintiff in the head and upper torso knocking him backward into some nearby pipes and causing multiple injuries.

This suit for spoliation of evidence arose when the plaintiff, during the March 2002 deposition of Todd LeBlanc, the then current safety director of Omega, found out that Omega could not locate the gasket. In response to the suit, Omega filed an exception of prescription and a motion for summary judgment. The trial court denied the former and granted the latter. The plaintiff appealed, and the defendant answered the appeal. In its answer to appeal, the defendant seeks damages for frivolous appeal and, in the event this court would reverse the motion for summary judgment, | ^defendants ask that we reconsider its exception of prescription. We affirm the judgment of the trial court and deny damages for frivolous appeal.

LAW AND DISCUSSION

The law applicable to the case at bar is well settled.

In Hines v. Riceland Drilling Co., 04-503 (La.App. 3 Cir. 9/29/04), 882 So.2d 1287, writ denied, 04-2705 (La.1/07/05), 891 So.2d 681, this court recounted the law applicable to the appellate review of summary judgments, stating as follows:
In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:
Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows:
The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his eviden-tiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
Hines, 882 So.2d at 1289-90. Accordingly, we must undertake a de novo review of the summary judgment.

Lafayette Parish Sch. Bd. v. Cormier ex rel. Cormier, 05-05, pp. 2-8 (La.App. 3 Cir. 5/4/05), 901 So.2d 1197, 1199, writ denied, 05-1482 (La. 12/16/05), 917 So.2d 1112.

The facts in this case are not in dispute. A little over one month after the accident, on May 26, 2000, the plaintiffs counsel wrote a letter to Bryan Aucoin, Omega’s Safety Director, informing the defendant that he was representing the plaintiff in his workers’ compensation claim. The letter went on to say that “we are also interested in investigating the -potential of a third-party claim” (emphasis ours). In connection with the possibility of a third-party claim, the letter stated (emphasis ours):

[T]his is our formal request that you provide us with all information and documents relative to the company’s investigation of this accident, including accident reports, diagrams, photographs, sketches, investigative reports, statements, and any and all other documents regarding this accident in your possession so that I can evaluate whether a third-party claim can be made. I specifically need to know from you how this accident happened, what equipment or gaskets failed, and who the manufacturers, installers, and/or repairers of the equipment or gaskets which caused my client’s injuries.

At his deposition on April 18, 2001, Mr. Aucoin testified that immediately after the accident he sent someone “to look at the valve and see if we could find the gasket, and that photo [of the gasket] was taken at that time.” Mr. Aucoin went on to state that he knew of no subsequent accident reports, after the initial investigation, and that he was unaware of any subsequent photographs. During the deposition he was never asked to produce the gasket, was never asked if he knew its current location, and no request was made that he locate and/or preserve the gasket. Mr. Aucoin left Omega’s employ on November 1, 2001. In an affidavit executed in August of 2005, he stated that some photographed and photocopied material concerning the accident was turned over to Omega workers’ compensation carrier. He testified that, to the best of his |4recollection, up to the time he left Omega, neither the plaintiff nor his attorney requested that he or anyone else at Omega to preserve any evidence related to the accident.

Similarly, the record contains no request from the plaintiff to Omega or any Omega representative imploring them to locate and/or preserve the gasket. In fact no request, from any party, was made until Halliburton included a request for the serial number and location of the Lydall gasket in its March 22, 2002 Notice of Deposition of Omega.

In response to Halliburton’s notice, Early Romero, Omega’s Piping Superintendent, testified on behalf of Omega at the deposition taken on March 27, 2002. He stated that he was about 100 feet away from the plaintiff at the time of the accident. He went on to say that following the accident the gasket involved in the accident was photographed, another gasket was installed, and the skid was completed and shipped. The plaintiffs supervisor, Thongseo Sourinhaphouthone (Soury), also gave a deposition. He. remembered that, following the accident, the gasket was several feet from the skid, having been carried along by the water pressure. He stated that he couldn’t remember anyone from Omega’s safety department asking for the broken gasket, the installation diagram, or the flow meter parts list; however, he believes that he was the one who brought the gasket, the accident report and the paper chart which was recording the hydrostatic test to the safety office.

In Guillory v. Dillard’s Department Store, Inc., 00-190, pp. 3-6 (La.App. 3 Cir. 10/11/00), 777 So.2d 1, 3-4 (footnotes omitted), this court discussed the tort of spoliation of evidence:

Recognizing a claim in tort for spoliation of evidence presents a relatively new concept in Louisiana jurisprudence and has been the |ssubject of recent consideration in our courts. See Pham v. Contico Intern., Inc., 99-945 (La.App. 5 Cir. 3/22/00); 759 So.2d 880; Bethea v. Modern Biomedical Services, Inc., 97-332 (La.App 3 Cir. 11/19/97); 704 So.2d 1227, writ denied, 97-3169 (La.2/13/98); 709 So.2d 760; Carter v. Exide Corp., 27,358 (La.App. 2 Cir. 9/29/95); 661 So.2d 698. See also MARIA A. LOSA-VIO, SYNTHESIS OF LOUISIANA LAW ON SPOLIATION OF EVIDENCE-COMPARED TO THE REST OF THE COUNTRY, DID WE HANDLE IT CORRECTLY?, 58 La.L.Rev. 837 (1998). Prior to being discussed as a tort, the term “spoliation of evidence” appeared in our jurisprudence along with the evidentiary theory of adverse presumption. See e.g. Rodriguez v. Northwestern National Ins. Co., 358 So.2d 1237 (La.1978); Babineaux v. Black, 396 So.2d 584 (La.App. 3 Cir. 1981); Miller v. Montgomery Ward & Co., 317 So.2d 278 (La.App. 1 Cir.1975). In those eases where it was proven that a party had destroyed, altered, concealed, or failed to produce evidence relevant to the pending civil claim, and they could not reasonably explain their actions, Louisiana courts have sanctioned the party by instructing the jury of the adverse presumption that had the evidence in question been presented, it would be unfavorable to the party spoli-ator. See Rodriguez, 358 So.2d 1237; Gordon v. State Farm Ins. Co., 97-270 (La.App. 5 Cir. 9/30/97); 700 So.2d 1117; Salone v. Jefferson Parish Dept. of Water, 94-212 (La.App. 5 Cir. 10/12/94); 645 So.2d 747; Randolph v. General Motors Corp., 93-1983 (La.App. 1 Cir. 11/10/94); 646 So.2d 1019, writ denied, 95-194 (La.3/17/95); 651 So.2d 276; McElroy v. Allstate Ins. Co., 420 So.2d 214 (La.App. 4 Cir.), unit denied, 422 So.2d 165 (La.1982). Although the adverse presumption rule is still viable, the present inquiry is whether a plaintiff can seek damages in tort, from a person who allegedly destroys or conceals evidence material to a potential or pending lawsuit and, if so, under what circumstances that person will be held liable.
First, we note that our jurisprudence has recognized a person’s right to assert a similar cause of action for the tort of impairment of a civil claim. See e.g. Williams v. General Motors Corp., 607 So.2d 695 (La.App. 4 Cir.1992); Duhe v. Delta Air Lines, Inc., 635 F.Supp. 1414 (E.D.La.1986); Fischer v. Travelers Ins. Co., 429 So.2d 538 (La.App. 4 Cir.1983). See also Morgan v. ABC Manufacturer, 93-701 (La.App. 5 Cir. 3/16/94); 637 So.2d 1076. Although the claims may be separate, both causes of action are premised on the right of a plaintiff to be free from interference in pursuing and/or proving his or her lawsuit. See Kammerer v. Sewerage and Water Board of New Orleans, 633 So.2d 1357 (La.App. 4 Cir. 3/15/94) (Waltzer, J., concurring opinion), writ denied, 639 So.2d 1163 (La.7/1/94); Fischer, 429 So.2d 538. In some cases, when a plaintiff claims that the ability to institute or prove a civil claim has been impaired due to the negligent or intentional spoliation of evidence by another, courts have addressed the causes of action for impairment of a civil claim and spoliation of evidence as one. See e.g. Bethea, 97-332; 704 So.2d 1227; Carter, 27,358; 661 So.2d 698. Thus, 1 fiwe believe that it is of little importance here, to determine an exact title to label plaintiffs claim for damages resulting from the acts alleged; for when a plaintiff alleges sufficient facts which indicate that he or she has suffered damages caused by another’s fault, that plaintiff has asserted a claim actionable under Louisiana tort law. 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989); Bethea, 97-332; 704 So.2d 1227. See also La.Civ.Code art. 2315 et seq.
Therefore, we turn to the instant matter in order to determine whether there is a genuine issue of material fact as to the plaintiffs claim which would preclude summary judgment. The plaintiff alleges that pursuant to La.Civ.Code art. 2315, a duty was imposed on Dillard’s to preserve the keys on which Ms. Guillory allegedly slipped and fell. She alleges that the duty was in place from the time she brought the keys to a Dillard’s employee and filed an accident report. Therefore, she argues Dillard’s failure to maintain custody of the keys, either through negligent or intentional conduct, has caused her damage by hindering her ability to prove her claim for the slip-and-fall. In her appellate brief, the plaintiff alleges that this court in Bethea, recognized that such a broad duty exists under Article 2315 and that the case supports the maintenance of this action.
Although the plaintiff argues that the discussion contained in Bethea requires reversal of the summary judgment, the breadth or specificity that must be alleged to maintain a cause of action in spoliation of evidence is not at issue in this case as it was in Bethea, thus, we find the previous case inapplicable. Further, the standard for determining whether a party has alleged a cause of action in his or her petition is different than that required in determining whether or not a genuine issue of material fact exists as to that cause of action in order to preclude the granting of summary judgment. It is well-settled that whether a duty exists is a question of law. “The inquiry is whether the plaintiff has any law statutory, jurisprudential, or arising from general principles of fault-to support his claim.” Hardy v. Bowie, 98-2821, p. 12 (La.9/8/99); 744 So.2d 606, 614. See Faucheaux v. Terrebonne Const. Gov., 615 So.2d 289 (La.1993). Such a determination shall be made on a case-by-case basis according to the facts particular to that claim. Id.

The court then went on to find “that under the particular facts of this case, the plaintiff has failed to offer any genuine issue of material fact to support her claim that Dillard’s either intentionally or negligently spoliated evidence.” Id. at 4.

Later, in McCool v. Beauregard Memorial Hospital, 01-1670, p. 2 (La.App. 3 Cir. 4/3/02), 814 So.2d 116, 118, this court, relying on Guillory, affirmed “the right 17of an individual to institute a tort action against someone who has impaired the party’s ability to institute or prove a civil claim due to negligent or intentional spoliation of evidence.” There is absolutely no evidence in the record to support even an allegation that Omega intentionally destroyed or disposed of the gasket. Therefore, if the plaintiff was to succeed in his claim for spoliation, it would have to be under the theory of negligence. “In order to establish negligence, the appellant must first establish that the [defendant] had a duty as a matter of law to preserve the evidence and that there was a breach of that duty.” McCool, 814 So.2d at 119.

The defendant, Omega, is the plaintiffs former employer. Its liability was limited to workers’ compensation benefits. In the tort suit in which the gasket was to be introduced, the plaintiff was seeking damages from Halliburton and/or Lydell. Omega stood to gain nothing by the disappearance of the gasket. The gasket was only important in the plaintiffs tort claims. The record establishes that the plaintiff sought “accident reports, diagrams, photographs, sketches, investigative reports, statements, and any and all other documents regarding [his] accident.” However, for the two years between the accident and Halliburton’s taking of Omega’s deposition (when it came to light the gasket was missing), the plaintiff never asked Omega to produce or safeguard the gasket. Furthermore, the existence of the gasket had nothing to do with the plaintiffs claim for workers’ compensation benefits. Considering all the evidence, even the affidavits the defendant sought to have excluded, we find no duty on the part of Omega to preserve the gasket.

Accordingly, because we find the plaintiff failed to prove that the defendant acted intentionally or in a negligent manner by failing to preserve the gasket, we find the summary judgment granted by the trial court to be appropriate.

|sAs to the defendant’s claim for damages for the taking of a frivolous appeal, it is well settled that pursuant to La.Code Civ.P. art. 2164, frivolous appeal damages are allowed only when it is obvious that the appellant took the appeal solely for the purpose of delay or that counsel is not sincere in the view of the law he advocates. Appeals are always favored and the slightest justification for an appeal precludes such an award. Hebert v. Broussard, 04-485 (La.App. 3 Cir. 11/10/04), 886 So.2d 666. We find the appellant to be sincere in the view of the law he advocates and refuse to award damages for frivolous appeal.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed; damages for frivolous appeal are denied; and all costs of this appeal are cast against the appellant, Vad Daotheuang.

AFFIRMED.


author: PICKETT, Judge.

text:
    Travis J. HAAS v. Ryan S. ROMERO, et al.
    No. 2006-401.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Rehearing Denied Nov. 15, 2006.

      Jerry A. Oubre, Caffery, Oubre, Campbell & Garrison, LLP, New Iberia, LA, for Defendants/Appellants, Rodney P. Leleux and Louisiana Farm Bureau Casualty Ins. Co.
    Michael G. Gee, Thibodaux, LA, for Defendant/Appellant, Louisiana Farm Bureau Casualty Ins. Co.
    John W. Penny Jr., Penny and Hardy, P.L.C. Lafayette, LA, for Defendant/Ap-pellee, Ryan S. Romero.
    Matthew D. McConnell, Preis, Kraft & Roy, Lafayette, LA, for Plaintiff/Appellee, Travis J. Haas.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

|, APPEAL

Farm Bureau Insurance Company appeals a judgment of the trial court finding that each of six policies issued to the Le-leux family provides coverage if the court finds that Rodney Leleaux was driving the vehicle which was involved in this accident.

STATEMENT OF THE CASE

Ryan Romero, Rodney Leleaux, and Travis Haas were traveling in a Ford pickup truck owned by Courtney Romero when the vehicle was involved in an accident. Either Rodney Leleaux or Ryan Romero was driving the truck, though each denies that he was driving, and Travis Haas was a passenger. Haas sustained serious injuries. He filed suit against Ryan Romero, as driver of the truck, and Courtney Romero, as owner of the truck, and their insurer, Allstate Insurance Company, and alternatively, Rodney Leleux, as driver of the truck, and his insurer, Farm Bureau Insurance Company.

Farm Bureau filed A Motion for Summary Judgment seeking a ruling that in the event Rodney Leleux was the driver of the truck, only the policy issued in his name, and not any of the policies issued to members of his family with whom he lived, provided coverage pursuant to the “Other Insurance” clause in the policies. The plaintiff filed an opposition to the Motion for Summary Judgment, which the parties agreed would serve as a Cross Motion for Summary Judgment. Following a hearing, the trial court found in favor of Travis Haas, ruling that if Rodney Leleux is found to have been the driver of the vehicle at the time of the accident, all six of the policies issued by Farm Bureau to the Leleux family provide coverage. Farm Bureau | ?now appeals.

ASSIGNMENT OF ERROR

Farm Bureau asserts one assignment of error:

The trial court erred in finding that the other Leleux family household automobile insurance policies issued by Louisiana Farm Bureau Casualty Insurance Company provide overlapping liability coverage for Plaintiffs claims.

DISCUSSION

“Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether judgment is appropriate.” Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). The mover is entitled to judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law.” La.Code Civ.P.art. 966(B).

The supreme court discussed the rules for interpreting an insurance contract in Cadwallader v. Allstate Ins. Co., 02-1637, pp. 3-4 (La.6/27/03), 848 So.2d 577, 580:

An insurance policy is a contract between the parties and should be construed by issuing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. See La. Civ.Code art. 2045; Carbon, 719 So.2d at 439; Louisiana Ins., 630 So.2d at 763.
Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ[.]Code art. 2047; Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1028-29; Carbon, 719 So.2d at 440-441; Reynolds [v. Select Properties, Ltd., 93-1480 (La.4/11/94)], 634 So.2d [1180,] 1183. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to | ¡¡restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, p. 11 (La.4/11/00), 759 So.2d 37, 43; Peterson, 729 So.2d at 1029. The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent. Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 4 (La.1/15/02), 805 So.2d 1134, 1138; Peterson, 729 So.2d at 1029.
Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. La. Civ.Code art. 2056; Carrier, 759 So.2d at 43; Louisiana Ins., 630 So.2d at 764. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Carrier, 759 So.2d at 43. This strict construction principal applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Carrier, 759 So.2d at 43-44, (emphasis in original); Louisiana Ins. 630 So.2d at 770.
If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Fannaly, 805 So.2d at 1137; Louisiana Ins., 630 So.2d at 764. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Peterson, 729 So.2d at 1029; Louisiana Ins., 630 So.2d at 764. The determination of whether a contract is clear or ambiguous is a question of law. Louisiana Ins., 630 So.2d at 764.

Farm Bureau argues that its policy issued to Rodney Leleux provides excess coverage to the Allstate policy issued on the Romero vehicle. Farm Bureau further argues the clear language of the policy at issue limits the company’s liability by providing that if there is more than one policy applicable to an insured, only one policy will become excess. We agree.

The Farm Bureau policy clearly provides coverage for the use of other automobiles, as they admit. The policy sets forth the following language on page 26 of the policy under a clause entitled “Other Insurance”:

Coverages A, B, C, D, and E. If the insured has other insurance against |4a loss covered by this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated on the declarations bear to the total applicable limit of liability of all valid and collectible insurance against such loss. Any coverage provided by this policy shall extend to “temporary substitute automobiles” or rental private passenger automobiles. Such insurance shall be primary, unless the insured has purchased insurance for the “temporary substitute automobile” or rental private passenger automobile, in which case, this insurance will be excess. However, if the insured has more than one automobile insured in the Company, then only one policy will become excess. (Emphasis ours)

An “insured” is defined in the policy as follows:

Under Coverages A and B, the unqualified word “insured” means the named insured and any resident of the same household.

We find the terms of the Farm Bureau policy clearly limit Farm Bureau’s liability to coverage under one policy only as excess coverage. The trial court erred in determining that the five other Farm Bureau policies issued to the other members of the Leleux household also provide coverage.

Accordingly, the judgment of the trial court is reversed, and Summary Judgment is granted in favor of Farm Bureau’s limiting it’s liability to the policy issued in Rodney Leleux’s name, should he be determined to be the driver of the vehicle. All costs of this appeal are assessed against the plaintiff/appellee, Travis J. Haas.

REVERSED AND RENDERED.


author: SAUNDERS, Judge.

text:
    Ilean CARMOUCHE, et al. v. Jeffery B. CARMOUCHE, et al.
    No. CA 06-396.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      John Taylor Bennett, Bennett Law Offices, Marksville, LA, for Plaintiffs/Appel-lees, Ilean Carmouche, Jake Carmouche.
    Steven J. Bienvenu, Dauzat, Falgoust, Caviness, and Bienvenu, L.L.P., Opelou-sas, LA, for Defendants/Appellants, Louisiana Farm Bureau Mutual Ins. Co., Jeffery B. Carmouche.
    Laurel Irene White, Assistant Attorney General, Alexandria, LA, for Defendant/Appellee, State of LA., DOTD.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

h Ilean Carmouche, her husband Jeffrey Carmouche, and their minor son, Jake, were returning from a vacation to Holly Beach when Jeffrey Carmouche lost control of the vehicle and the camper he was towing. The camper and the vehicle flipped over on the highway, and became dislodged. After becoming dislodged, the vehicle continued to flip several times before coming to rest in a canal alongside the highway.

Ilean Carmouche filed suit individually and on behalf of her minor son, Jake, against Jeffrey Carmouche, his liability insurer, Louisiana Farm Bureau Mutual Insurance Company, and the State of Louisiana, through the Department of Transportation and Development, for injuries sustained in the accident. Jeffrey Carmouche was later dismissed as Defendant, following a hearing on an Exception of No Right of Action.

The trial court found Jeffrey Carmouche 100% at fault for the accident, and assessed liability against Defendant, Louisiana Farm Bureau. All claims against the State of Louisiana, through the Department of Transportation and Development were dismissed.

FACTS AND PROCEDURAL HISTORY

On May 30, 2004, Jeffrey Carmouche, his wife, Ilean Carmouche, and their minor son, Jake, were returning home from a trip to Holly Beach when they were injured in an automobile accident on Louisiana Highway 27 in Cameron Parish. Jeffrey Carmouche was driving his. 2000 Mercury Mountaineer when the camper attached to the vehicle began to sway back and forth. He attempted to slow down; however, the camper swayed more, causing him to lose control, and the vehicle and camper began flipping. After the vehicle and the camper flipped once, the camper became dislodged from the vehicle and remained on the highway. The vehicle | ¡¡continued to flip several more times, eventually coming to rest in a canal along the highway.

As a result of the accident, Ilean Car-mouche sustained injuries to her mid and lower back, left arm, left breast, chest, legs, head, left hip, right elbow, and neck. Jake Carmouche, who was asleep in the backseat of the vehicle at the time of the accident, sustained injuries to his neck and back. He also had bruising on his shin, ankle, and left knee as a result of the collision.

On November 9, 2004, Plaintiff, Ilean Carmouche, individually, and on behalf of her minor son, Jake, filed suit in Avoyelles Parish against Jeffrey Carmouche, his insurer, Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau), and the State of Louisiana, through the Department of Transportation and Development (State). In their petition, Plaintiffs alleged the fault and/or negligence of Jeffrey Car-mouche for failure to maintain proper control of his vehicle, as well as a right to recover from his liability insurer, Farm Bureau. Additionally, Plaintiffs alleged that the State was negligent in knowingly providing a defective roadway and shoulder which was a cause in fact of the accident.

Defendants, Jeffrey Carmouche and Farm Bureau, filed an Exception of No Right of Action, as well as an Exception of Improper Venue. The State also filed and Exception of Improper Venue.

Plaintiffs responded by filing a First Supplemental and Amending Petition, adding Jeffrey Carmouche as a plaintiff, alleging that Farm Bureau failed to adjust the claim for property damage and medical payment and the alteration of Jeffrey Car-mouche’s waiver of uninsured/underin-sured motorist coverage.

lain response, Defendants, Jeffrey Car-mouche and Farm Bureau, filed Exceptions of No Right of Action, No Cause of Action, Vagueness, and Prematurity. Following a hearing on the aforementioned exceptions, a judgment was signed on January 24, 2005 dismissing Jeffrey Car-mouche as Defendant and denying the Exceptions of No Right of Action, No Cause of Action, Vagueness, and Prematurity filed by Farm Bureau. The Exceptions of Improper Venue were also denied, and the State applied for a supervisory writ on the denial of their Exception of Improper Venue.

We denied said writ on June 22, 2005. The State subsequently filed Exceptions of Improper Cumulation of Actions and another Exception of Improper Venue.

The trial court granted the Exception of Improper Cumulation of Actions and transferred the Plaintiffs’ case against the State only, to Cameron Parish.

Plaintiffs then filed a Motion for Limited New Trial and Reconsideration. By judgment signed on August 2, 2005, the court reversed its previous ruling, returning the entire case to Avoyelles Parish.

The State applied for supervisory writs, seeking relief in connection with said judgment. On November 18, 2005, we denied the State’s writ, and the case came to trial on December 1, 2005. At the outset of the trial, Plaintiffs agreed to a dismissal of all claims against Farm Bureau under the uninsured/underinsured motorist provisions of the policy and under the medical payments portions of the policy, thereby acknowledging that there was no uninsured/underinsured motorist coverage and that all medical payments were made on a timely basis. A Partial Motion to Dismiss was signed on the morning of trial dismissing those claims.

|4At the close of the trial, the court ruled in favor of Plaintiffs, Ilean and Jake Car-mouche, and against Defendant, Farm Bureau, finding Jeffrey Carmouche 100% at fault in causing the accident, and awarding Ilean Carmouche $7,000.00 in general damages together with legal interest thereon from the date of judicial demand. Additionally, Jake Carmouche was awarded general damages in the amount of $2,750.00 together with legal interest thereon from the date of judicial demand.

All claims against the State were dismissed. The Judgment was signed on December 2, 2005. Defendant, Farm Bureau, perfected a suspensive appeal by an order signed on February 17, 2006.

Plaintiffs answered the appeal, alleging that the trial court was clearly erroneous in awarded them “grossly insufficient” damages. In their answer, Plaintiffs further sought attorney fees and damages, for frivolous appeal.

ASSIGNMENTS OF ERROR

1) The trial court was clearly wrong in finding negligence on the part of the insured driver in this case when the uncon-tradicted testimony of the witnesses indicated that the sole cause of the accident was the defective condition of the road in question, that Defendant driver had pulled the same camper with the same truck many times previously without difficulty, and that the driver was proceeding well below the posted speed limit when the ruts in the road his camper to sway resulting in the accident.

2) The trial court committed error in awarding “grossly insufficient” damages to Plaintiffs Ilean Carmouche and Jake Car-mouche.

1 .STANDARD OF REVIEW

A trial court’s factual determinations are subject to the manifest error standard of review and may not be overturned unless they are found to be “manifestly erroneous” or “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). In applying the standard, the appellate court must determine not whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Id. at 880. Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

LAW AND ANALYSIS

Defendant, Farm Bureau, asserts one assignment of error. It argues that the trial court committed manifest error in finding Jeffrey Carmouche to be the sole cause of the automobile accident giving rise to this litigation. When a driver loses control of an automobile and runs off the road, the driver is presumptively negligent. Ardoin v. State Farm, 302 So.2d 372, 373 (La.App. 3 Cir.1974). Therefore, in order to exculpate himself from liability, he must prove that he was not at fault for causing the accident. Defendant admits that Jeffrey Carmouche lost control of his vehicle. However, it argues that Jeffrey Carmouche had no reason to expect that an accident of this nature would occur, nor was there anything he could do to prevent the accident from occurring. Plaintiffs counter, asserting that the evidence in the record does not | fiallow Defendant to overcome the presumption of Jeffrey Carmouche’s negligence; therefore, it is liable for the damages incurred as a result of his fault.

In this case, it is clear that Jeffrey Carmouche lost control of his vehicle when the trailer he was towing began to sway, eventually causing the vehicle and camper to flip. Deputy Joshua Dupuy with the Cameron Parish Sheriffs Office, the patrol deputy who investigated the accident, testified that after the accident, Jeffrey Car-mouche told him, and the accident report reflects, that he lost control of the vehicle, started bouncing back and forth, and was thrown into the canal. Additionally, Ilean Carmouche told Dr. Bryan McCann, her treating physician, that she was injured in a car accident when she was riding in the front passenger seat of an SUV when the driver lost control of the vehicle. Clearly, the evidence in the record supports a finding that the accident occurred as a result of Jeffrey Carmouche losing control of the vehicle. Therefore, he is presumed to be negligent. Id.

Defendant, in attempting to overcome the presumption of negligence, argues that the evidence in the record clearly establishes that Jeffrey Carmouche was not negligent, as he could not have foreseen that this accident would have occurred, nor could he have done anything to prevent it. Jeffrey Carmouche testified that he had owned the camper approximately a year and a half and the vehicle approximately one year before the date of the accident. He further testified that he and his family camped a couple weekends a month, and had towed the camper with the vehicle numerous times without experiencing any problems whatsoever.

Defendant further points out that when the camper began to sway, Jeffrey Car-mouche was already taking precautionary measures by driving approximately ten to fifteen miles per hour below the posted speed limit, as he knew the condition of the 17highway was “substandard.” He testified that although he slowed down even more after the camper began to sway and tried to apply the brakes to remain in control, he could not have prevented the accident because the vehicle and camper flipped almost immediately.

Defendant asserts that the uncontradict-ed witness testimony indicates that it was the condition of the highway alone, rather than Jeffrey Carmouche’s negligence that led to the accident, and therefore, neither he, nor his liability insurer, should be held liable. At trial, Jeffrey Carmouche stated that, in his opinion, the surface of the roadway was the cause of the accident. He explained, “you got to drive in the groove. It’s like a little trail, like a bicycle trail. If your tires get out of the trail, it’s going to throw you side to side and that’s what happened.”

Mr. Max Wiley, who was traveling in the convoy with the Carmouches on their return from Holly Beach, was driving approximately 150-200 feet behind them. He characterized the highway as “[n]ot a real good road.” He testified that there may have been some “dips” and “low places” on the highway that caused the Carmouches’ vehicle and trailer to bounce. However, Plaintiffs point out that Mr. Wiley was towing “a little old boat trailer with a fourteen foot bass tow with an outboard motor” behind his vehicle, which he testified was not bouncing.

Deputy Dupuy’s accident report noted that at the time of the accident, the weather was clear, there were no defects on the vehicle, there were no defects on the roadway, and there was nothing obscuring the driver’s vision. He did, however, testify that there was a strong wind blowing from the east when he arrived at the scene of the accident. Max Wiley and Ilean Car-mouche also made statements about the strong wind that was blowing at the time of the accident.

IsDefendant argues that there is no evidence that Jeffrey Carmouehe did anything wrong to cause the accident at issue; however, there is evidence in the record that indicates that Jeffrey Carmouehe did not take all the precautionary measures to avoid the accident.

Louisiana Revised Statutes 32:64(A) states:

No person shall drive a vehicle on the highway within this state a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.

Therefore, a driver has the duty to operate his vehicle at a speed that is reasonable and prudent under the conditions and potential hazards then existing and having due regard for the weather. Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982). Although he was traveling under the posted speed limit, Jeffrey Carmouehe testified that he knew about the condition of the surface of the road, as he had been traveling it for ten years. According to Jeffrey Carmouehe, its poor condition was “obvious to anyone who travels the road.” Both Max Wiley and Deputy Dupuy testified that there was a strong wind blowing on the day of the accident. Additionally, Ile-an Carmouehe told Dr. McCann that the accident occurred when they were pulling a camper in heavy wind and the driver lost control. Given this evidence, the trial court found that Jeffrey Carmouehe should have noted the unsafe driving conditions and either slowed down more or pulled over until the wind subsided.

Plaintiffs further point out that Jeffrey Carmouehe is at fault, as he did not use a pin or safety chains to hook the camper to the vehicle. Defendant counters this | flargument, asserting that “there is absolutely no evidence to suggest that the failure to connect the chains or use a cotter pin made any difference whatsoever.” The trial court found that although Jeffrey Carmouche’s failure to use a cotter pin and chains may not have been a cause of the accident, it was an aggravating circumstance regarding Plaintiffs’ injuries.

The issues of whether the presumption of negligence applies and whether there is adequate evidence to overcome the presumption of negligence are fact intensive inquiries and, as such, are subject to the manifest error rule. Rosell, 549 So.2d at 844. Our review of the record indicates that there was a reasonable evi-dentiary basis for the court’s finding that Jeffrey Carmouche was the sole cause of the accident. Therefore, we affirm the decision of the trial court in finding Jeffrey Carmouche 100% at fault for the accident, thereby assessing 100% of the liability against Defendant, Farm Bureau.

ANSWER TO APPEAL

In their answer to the appeal filed by Defendant, Plaintiffs argue that the trial court committed manifest error in awarding them “grossly insufficient” damages. At trial, Dr. Bryan McCann testified that the first time he examined Ilean Carmouche on June 2, 2004, she had a nine-inch very tender hematoma on the left hip and a three-inch by four-inch he-matoma over the right hip, which was also very tender. There was a four-inch by six-inch mild green right lateral elbow, which was tender, and there was tenderness in the left lower back with lumbar spasm. There was also tenderness in the right mid back. She was very tender in the right lateral breast with a five-inch by ten-inch blue green area, and there was tenderness in the posterior neck.

|inAn MRI was performed on July 1, 2004, which Dr. McCann testified demonstrated “mild degenerative changes of the L5-S1 disc with defused [sic] posteria bulging and suggestive of a very small focal herniation far lateral posteria on the left as described above.... So she had a small herniation in that L5-S1 according to the MRI.” Plaintiffs assert that Dr. McCann clearly related this herniation to the accident, and therefore, Ilean Car-mouche’s injuries clearly exceed general award damages of $100,000.00.

Dr. McCann was asked if Ilean Car-mouche had back trouble whether it would be consistent with what was shown on the MRI. He was also asked whether his treatment of Ilean Carmouche was related to the automobile accident. However, he was not asked to, nor did he, testify as to whether the herniation or the degenerative changes of the disc were caused by the accident at issue. Further, he did not testify that the disc injury was a cause of Ilean Carmouche’s pain or that surgery would be required in order to repair it. We do not find that the trial court’s award of damages to Ilean Carmouche was “grossly insufficient.” Moreover, we do not find that the trial court was manifestly erroneous in awarding damages to Ilean Carmouche. Accordingly, we affirm the award of damages by the trial court to Ilean Carmouche.

Plaintiffs also contend that the damages awarded to Jake Carmouche were “grossly insufficient.” The trial court awarded Jake $2,750.00 in general damages. However, Plaintiffs claim that “[j]ust the fright this young [sic] sustained is clearly worth more than that ...” Jake Carmouche sustained injuries to his neck, back, and also suffered several bruises to his leg as a result of the accident. Although Plaintiffs contend that the trial court’s award was “grossly insufficient,” they have offered no In evidence to support the contention that the trial court’s award of damages was “clearly wrong.” In light of the facts, we find the award of damages reasonable. Therefore, we do not find that the trial court was manifestly erroneous in awarding damages to Jake Carmouche. Accordingly, we affirm trial court’s award of damages.

FRIVOLOUS APPEAL

In their answer, Plaintiffs additionally pray for attorney fees and damages, arguing that Defendant, Farm Bureau, has taken a frivolous appeal. They assert that the driver clearly lost control and the vehicle flipped as a result of his failure to insert the pin and hook the safety chains. The trial court found that while the failure to use a cotter pin and the chain were aggravating circumstances regarding Plaintiffs’ injuries, it was not the cause of the accident. Instead, the court determined that Jeffrey Carmouche did not carry his burden of proving that he was free from any negligence.

We find that Defendant raises a viable issue on appeal, as there is evidence in the record that tends to show that the accident could have been caused by the substandard condition of the highway. Although this witness testimony may be negated, we find it to be well-argued and well-presented. Therefore, we do not find that Defendant, Farm Bureau, has taken a frivolous appeal in this case. Accordingly, Plaintiffs are not entitled to recover attorney fees and damages for frivolous appeal.

CONCLUSION

Upon review of the record, we do not find that the trial court was manifestly erroneous in holding Jeffrey Carmouche 100% liable for the accident at issue. Therefore, we find that the trial court appropriately assessed all liability to Defendant, Farm Bureau. Further, we find that the trial court was not manifestly erroneous in its |1?award of damages to Plaintiffs, Ilean and Jake Carmouche. Additionally, we do not find that Plaintiffs áre entitled to attorney fees and damages for frivolous appeal. Accordingly, we affirm the decision of the trial court.

AFFIRMED.