author: PAINTER, Judge.

text:
    CALCASIEU PARISH SCHOOL BOARD v. LEWING CONSTRUCTION CO., INC. et al.
    No. 05-928.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Joseph A. Delafield, Lake Charles, LA, for Defendant-Appellant, Lewing Construction Co.,- Inc.
    Michael G. Gaffney, Nolan P. Lambert, New Orleans, LA, for Defendanb-Appel-lant-Appellee, D & T Tile and Terrazzo, Inc.
    Kraig T. Strenge, Lafayette, LA, for Third Party Defendant-Appellant-Appel-lee, Lafayette Insurance Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

12This appeal arises from a trial court judgment apportioning fault for a defective floor among the Defendants, Lewing Construction Co., Inc. (“Lewing”), D & T Tile and Terrazo, Inc. (“D & T”), and' Key Resin (“Key”), and finding coverage under a policy of insurance issued by Lafayette Insurance Company (“Lafayette”) to D & T.

FACTS & PROCEDURAL HISTORY

In November 1996, the Calcasieu Parish School Board (“the School Board”) contracted with Lewing to build an addition to the R.W. Vincent School (“the school”) in Sulphur, Louisiana. C. Ray Fugatt was the architect for the project and, as such, drew the plans and set the specifications for the project. The plans called for an epoxy terrazzo floor. Lewing, the general contractor, lacking the expertise needed for installation of such a floor, subcontracted this part of the project to D & T. D & T obtained the epoxy resin needed for the floor from Key Resin Company. The floor was installed both in the new addition to the school and in part of a pre-existing cafeteria. Shortly after installation, an oily substance began to appear on the surface on the floor. Upon inspection, the substance appeared to be rising out of the floor through pinholes in the surface. Efforts at remediation were made by Lewing and D & T. Ultimately, Lewing paid for a different flooring installer to replace the epoxy terrazzo floor with a cement-based terrazzo floor.

The School Board filed this suit against Lewing and D & T. Lewing filed a cross-claim against D & T. D & T filed third-party demands against Key Resin and its own commercial general liability insurer, Lafayette. Prior to trial, the School Board dismissed its claim against Lewing. The third-party claims proceeded to trial.

laAt trial, much evidence was adduced to determine whether the problems with the floor were caused by defects in the slab, defects in the flooring materials, or defects in the installation of the floor. The trial court concluded that the oily substance was brought to the surface of the floor as a result of water vapor transmission from below and rendered written reasons in which it found as follows:

This was the first time that C.R. Fu-gatt, the architect under the contract, had used this particular type of flooring, which was utilized to save money. His specifications for the job were that it conform to national standards, without really investigating what those standards were or whether or not they were obtainable in Southwest Louisiana. Lewing Construction took particular care with the job, since they understood that there may be a problem with water vapor transmission, but did no further investigation about what standards might be appropriate or what were obtainable and in particular, did not know what the terrazzo industry flooring standards were. D & T tested the floors using one of the manufacturer’s suggested tests and D & T knew or should have known of the industry standards for water vapor transmissions. Key Resin instructed its suppliers on a method to test the water vapor transmission that was not trustworthy.
As between the contractor and the subcontractor, Lewing and D & T tile, D & T Tile had the greater responsibility and knowledge to inform and advise the contractor about what the requirements were for the proper installation of a floor. However, the contractor is not free from fault and should have done some investigation of their own. I assess 20% of the fault for this floor’s failure to Lewing Construction and the architect, which they will share equally, as I believe that the architect had an obligation to do a little further investigation as it concerns this type of flooring for which he had no prior experience. As between the installer and the manufacturer, I believe that they equally had a responsibility to know the capabilities of the product that they were selling and installing. Consequently, I assess 80% of the fault to the installer, who is entitled to recover 50% of what he is required to pay because of the fault of the manufacturer in failing to warn them of the particular problems with the test that it recommends be done.
I am not convinced that any exclusions apply, consequently the insurance was in full force and effect for this work and therefore, D & T is entitled to recover what it has to pay from Lafayette Ins. Co.

|/The trial court rendered judgment as it set out in its reasons. The court assessed costs twenty-five percent to each of the Defendants. Lewing, D & T, and Lafayette appeal.

DISCUSSION

Contractor’s Liability

Lewing asserts that the trial court erred in assessing it with twenty percent of the fault for the failure of the floor, because it fully complied with the architect’s plans and specifications in pouring the slab on which the floor was installed. D & T argues that the trial court erred in finding it liable for the failure of the floor because it also followed the architect’s plans and specifications. D & T contends that it had no reason to believe a hazardous condition was present because it was impossible to know the floor would, at certain times and under certain conditions, have a vapor transmission rate over that recommended by the manufacturer. Finally, D & T argues that the trial court erred in finding it liable for the floor’s failure without finding that it improperly installed the floor. Key Resin has not appealed the trial court judgment. Therefore, we will not examine the trial court’s finding as to its liability.

Both Lewing and D & T assert that the provisions of La.R.S. 9:2771 apply to relieve them of liability for the floor’s failure. La.R.S. 9:2771 provides that:

No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.

| ./‘La.R.S. 9:2771 does not require the contractor to prove fault or insufficiency of plans and specifications, but, rather, immunity results from proof of compliance alone. City of Covington v. Heard, 428 So.2d 1132 (La.App. 1st Cir.1983).” Bernard v. State Through Dept. of (Highways) Transp. & Dev., 93-1376, p. 10 (La. App. 3 Cir. 6/1/94), 640 So.2d 694, 700, writ denied, 94-1814 (La.10/14/94), 643 So.2d 165.

However, if the evidence shows that the defects were not the result of the insufficiency of plans and specification, but were the result of the quality of the work done by a contractor, that contractor will not be protected by the statutory immunity provided by La.R.S. 9:2771. Allstate Enter., Inc. v. Brown, 39,467 (La.App. 2 Cir. 6/29/05), 907 So.2d 904.

[A] contractor is liable for damages if it is shown that he did not possess the necessary skill, efficiency or knowledge, or did not exercise ordinary care in performing work and is liable for losses, which the owner suffered because of the contractor’s non-compliance with the contract. Austin Homes, Inc. v. Thibodeaux, 2001-1282 (La.App. 3d Cir.5/8/02) 821 So.2d 10, writ denied, 2002-2324 (La.11/15/02), 829 So.2d 436.

Mount Mariah Baptist Church, Inc. v. Pannell’s Associated Elec., Inc., 36,361, pp. 8-9 (La.App. 2 Cir. 12/20/02), 835 So.2d 880, 887, writ denied, 03-0555 (La.5/2/03), 842 So.2d 1101.

Therefore, we will examine the evidence to determine whether and to what extent the defective floor resulted from the insufficiency of the plans and specifications and/or from a deficiency in the performance of a contractor.

C. Ray Fugatt, the architect who prepared the plans and specifications for the school addition and renovation, was accepted by the trial court as an expert in the field of architecture. He testified as follows. He was involved in review during the entire construction process. A new slab was poured for the addition and a topping of slab was applied in an area in the cafeteria. The new slab was above grade and, ^because the site sloped, was two feet above the ground on the east side. He tried to get to the site once a week while the site was being prepared and soil compaction was being tested. No concrete was poured before the test results were received. He could have stopped construction if the results didn’t meet his specifications. The plans called for an epoxy terrazzo floor because of cost considerations. The floor was installed in an air-conditioned space. The floor was accepted in December 1997, and the next summer Fu-gatt heard that there was a problem with it. Upon inspection, he found that everywhere the new epoxy terrazzo floor had been installed, there was an oily substance oozing out of pinholes in the floor. The floor appeared to be adhering to the slab properly. He assumed that the problems were to do with the terrazzo because he knew of no problems with the slab. He stated that he was not aware of any objection to the condition of the slab before the terrazzo floor was installed. The custom in the industry would have been for the slab contractor to leave it in a condition to receive the floor. The specifications call for Lewing to provide a subfloor in a suitable condition to receive terrazzo. He opined that it was for the flooring subcontractor to point out problems with the slab, whether with moisture or another problem, and that the flooring subcontractor should have required corrections if the floor would not perform properly due to problems with the slab. He made the specification for the terrazzo flooring a broad general performance specification which said it should be installed in accord with the National Terrazzo Institute standards, because he was not familiar with the national standards for epoxy terrazzo and wanted to put the burden on the flooring installer to do what was supposed to be done. He looks at the vapor transmission range that the manufacturer puts on a product in considering if it should be put on the slab. Fugatt admitted that he did not |7know the maximum moisture transmission rate for epoxy terrazzo, but that someone should have tested the floor and, if it was transmitting vapor at an unacceptable rate, should have suggested a change.

Both Ralph Lewing, President of Lew-ing Construction, and Lewing’s superintendent for the school job, Albert Bourgeois, testified as to the manner in which the slab was constructed. They explained the process as follows. The architect gives them the specifications. The site work is done first. Soil borings are done, the site is laid out and staked, and the contractors establish where it will obtain the materials for the dirt pad. A sample of the dirt is taken, and an engineer determines how much fill will have to be taken out of the site. At the school site, two or three feet of fill was removed. A filled dump truck is driven around the site to find soft spots, an engineer does a soil compaction test on the sub-base, and, if it passes, the fill-in process begins. After the site is filled, compacted, graded, and tested, forms are set, and footings dug. A vapor barrier is placed (in this case, ten millimeter vis-queen), anchor bolts are set, and footings poured. At the school site, the anchor bolts were covered with styrofoam blocks to prevent them breaking the vapor barrier. For the same reason, plastic stands were used to hold up the wire reinforcement. Drainage was installed. On this job, they chose not to make a single monolithic pour to prevent damage to the moisture barrier. Concrete was placed into the forms out of a hose. The concrete was tested throughout the pouring process to see if its water content was correct.

Lewing stated that no one ever told him that he did not comply with the specifications. He testified that if he had been given the technical data regarding the required moisture transmission rate for epoxy terrazzo, he would have suggested | Resting it, but, in the absence of this data, he relied on the expertise of the flooring contractor.

Lewing first heard of the problems with the floor the summer after it was installed. He inspected the floor, then called D & T. He chipped out a piece of terrazzo and sent it to D & T. He also contacted Bob Cain, President of Key Resin. Cain sent him information on a variety of problems with terrazzo, but the floor’s condition did not resemble anything illustrated in that information, which showed terrazzo peeling of the floor. He testified, as did all concerned, that the floor showed no peeling or delamination from the slab, but was oozing oil. Lewing stated that he checked for moisture problems by looking in a storage room where the slab had not been covered by terrazzo or other flooring. He reported that he found neither rust under a metal file cabinet nor moisture under a rubber floor mat. Having talked with Cain about a mat test, he taped a square of visqueen to the bare slab and, after thirty-six hours, found no moisture. Lewing testified that after attempts to solve the problem failed, he paid for another firm to remove the problem floor and install cement-based terrazzo. He testified that no problems with the floor have been reported since it was replaced.

David Dipol, President of D & T and a terrazzo mechanic, testified that his company has installed floors since 1984. Usually, a D & T representative does an inspection two weeks to a month before starting a job. Nothing out of the ordinary was found upon inspection of the school job site. Epoxy resin and hardener were obtained from Key Resin. However, the invoices introduced at trial indicate that the amount of hardener delivered to the site by Key Resin was insufficient for the amount of resin. Dipol explained this by saying that D & T frequently had sufficient hardener |9in stock from previous jobs, and that D & T always over-orders so as not to run out. D & T cleaned the slab and inspected for cracks, scaling, movements, and moisture. The floor was shot-blasted to roughen the surface so that the terrazzo would better adhere. D & T normally checks for signs of moisture by looking for calcium effervescence, which would mean that moisture is coming through the slab and bringing calcium with it. Dipol admitted that he knew of no defect or deficiency in the slab, but insisted that something had to be wrong with the slab because nothing was wrong with the terrazzo. He felt that the terrazzo was not the problem because the product was mixed and applied as D & T has always done. He opined that the problem had to be with moisture or the terrazzo product. He felt that testing for moisture before the floor was installed would not have changed anything. He stated that moisture tests before installation were done to be sure the floor would adhere and the terrazzo would not have bonded to the slab if a moisture problem had been present at that time. Dipol admitted that no calcium chloride test, which would have given the exact moisture transmission rate, was run before the floor was installed. Only a mat test was done by taping a square of visqueen to the slab overnight. Dipol admitted that if a calcium chloride test shows a high vapor transmission rate, it is possible to coat the slab to lower the transmission rate.

Robert Cain, President of Key Resin, also testified at trial. He stated that installers are sent Key Resin’s technical bulletin, one of which is entitled “Surface Preparation for Concrete and Wood Substrates.” That bulletin recommends testing for moisture and states that moisture induced failure is the terrazzo industry’s single largest problem. He stated that most installers do a moisture test of the slab and that he felt that a calcium chloride test should have been conducted. However, he could |innot say whether D & T had received Key Resin’s technical bulletin recommending the calcium chloride test. Moisture tests, according to Cain, are recommended not only to know the condition of the slab on the day of installation but for long term performance as well. However, he admitted that there was no warning with regard to the maximum vapor transmission rate on the product itself. He stated that Key Resin sells its material in proportions appropriate to mix. Cain testified that if too much hardener is put in the mix, there will be a faster hardening with an exudation of unreacted hardener. According to Cain, if too little hardener is mixed into the resin, a softer mass of material results. He opined that the problem with the floor was vapor transmission, but not at a sufficient rate to cause delami-nation.

Michael Aderman was accepted by the court as an expert in the field of structural engineering, particularly it as concerns concrete construction. He testified that he found no problem with the slab. He did not think the failure of the floor was caused by a defective slab especially since there were no floor problems in the areas that did not have terrazzo floors. He found the slab’s moisture transmission rate to be 4.6 pounds per thousand square feet. He opined that a normal rate for slabs in southern Louisiana would be four to five pounds per thousand square feet. He explained that moisture transmission rates are lower inside buildings because it is dryer and moisture moves from below the slab where water pressure is higher to inside the building where pressures are lower. He stated that the vapor barrier has the biggest effect on reducing vapor transmission and that he saw nothing to indicate that there was a problem with the vapor barrier under the school. He opined that problems with terrazzo floors commonly occur where the workmen mix incorrectly, using the wrong proportions of materials or adding additional amounts of one component to try Into keep it liquid. However, he admitted that he had no evidence that this occurred in this case. He felt that if the epoxy manufacturer recommended that this type of floor not be installed if the slab had a moisture transmission rate in excess of three pounds per thousand square feet, the installer would be at fault for installing under those conditions.

Fritz Iselin, an independent consultant on high performance flooring used in commercial and institutional construction, was accepted by the court as an expert on terrazzo flooring. He stated that he saw no evidence of defective flooring materials. He testified that epoxy flooring usually calls for a vapor transmission rate of no more than three to four pounds per thousand square feet. It was Iselin’s opinion that if environmental conditions at the time a calcium chloride test is run are not the same as they will ultimately be, the results of the test will not be correct. He stated that where the vapor transmission rate is 4.6 pounds per thousand square feet, he would expect to see delamination and oozing from blisters or domes. The condition he observed in the floor at the school was different, with oozing coming from pinholes in the terrazzo. When questioned as to whose job it is to decide if the particular floor is suitable for particular conditions, Iselin stated that the architect should write it into the specifications and the manufacturer would not be in a position to know whether the material were to be used on a ground floor or on a second story where vapor transmission would not be an issue. He opined that the general contractor and the installing contractor should step in to say if a particular product will present problems, but stated that the installer should know more about the requirements for the floor than anyone else on the job. He stated that it is good practice to run moisture tests and he would expect the floor installer to know them. He could not say b ¿what the general contractor should have done, but opined that the installer should have done more tests.

Liability of Lewing

The testimony adduced at trial indicates that Lewing complied with the architect’s plans and specifications. Fugatt’s testimony indicates that the slab was poured in conformity with his plans and specifications. Fugatt testified in detail as to the appropriate manner for pouring the slab. Lewing testified as to the manner in which the slab at the school was poured, and it is clear that the slab was poured in conformity with the methods laid out by Fugatt. Lewing further stated that no one ever told him that the architect’s specifications for the slab were not achieved. Fugatt indicated that no one objected to the condition of the slab prior to installation of the epoxy terrazzo floor. He further stated that, from the time the problem was noticed through the time of trial, no one ever told him that there was a problem with the slab being too porous or transmitting too much moisture. Ader-man stated that no one indicated to him that the slab was not properly made and that he found no problems with the slab. Iselin stated that he did not know of anything that Lewing should have done prior to the installation of the floor to prevent its failure.

This court finds nothing in the evidence presented at the trial court which suggests that the work done by Lewing did not meet the architect’s plans and specifications. Accordingly, we find that the trial court erred in finding Lewing at fault in connection with the failure of the floor. As a result, the trial court’s judgment is reversed insofar as it assesses Lewing with fault for the failure of the floor.

11SLiability ofD & T

The evidence shows that for a matter of several years prior to the installation of this floor, D & T had in its possession a technical bulletin from Key Resin which set out the required vapor transmission rate and the recommendation that, prior to installation of the floor, a calcium chloride test be run to determine the vapor transmission rate. It is undisputed that D & T failed to perform the calcium chloride vapor transmission test prior to installing the floor. Although D & T asserts that it would have been useless to perform the test prior to installation, other witnesses testified otherwise. Fugatt testified that it is standard in the construction industry for the flooring subcontractor to conduct moisture testing on the slab and tell him about the problem, ask for corrections, or suggest changes. Iselin, who testified as an expert in terrazzo, opined that a calcium chloride test conducted at the time the floor was installed would not have accurately reflected the vapor transmission rate when the building was completed, because after completion of the building the air conditioning would increase the vapor transmission. However, he stated that the terrazzo installer should have known more about the specifications than anyone else on the job, that the installer should have been aware of the tests, and that the installer should have done more tests and made further inquiries. Cain testified that D & T could not know whether a moisture problem was present unless a calcium chloride test was run.

Given the totality of this testimony, we find no error in the conclusion that D & T did not exercise ordinary care. Further, the evidence supports the conclusion that the defects were not entirely the result of the insufficiency of plans and specifications, but were, at least in part, the result of the quality of the work done by D & T.

| uApportionment of Fault

Having reversed the finding that Lewing was at fault for the failure of the floor, we must re-apportion fault.

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Bouley v. Guidry, 04-469 (La.App. 3 Cir. 9/29/04), 883 So.2d 1099, 1105-06, (quoting Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985)).

Given the evidence and testimony at trial and in light of the Watson factors, we find that the trial court correctly apportioned fault as concerns D & T and Eey Resin. Further, we find that the architect, C. Ray Fugatt, is twenty percent at fault for the failure of the floor because of his failure to further investigate the requirements of an epoxy terrazzo floor before writing the specifications.

Insurance Coverage

Lafayette assigns as error the trial court’s determination that its policy provided D & T with coverage for this situation. Lafayette argues that its policy excludes coverage for claims rising out of the quality of the insured’s work citing a policy exclusion for improperly performed work and an exclusion for “ ‘property damage’ to ‘your product’ arising out of it or any part of it,” and “‘property damage’ to ‘your work’ arising out of it.” However, after reviewing the policy we find that the failure of the floor was covered under the “Products-Completed Operations” coverage. We l^note that while the policy refers to this coverage, there is no separate endorsement or rider which specifically describes that coverage. However, the declarations sheet of the policy shows that the coverage existed. Further, the policy states that:

14.a. “Products-completed operations hazard” includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned.
17. ‘Tour product” means:
a. Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by:
(1) You;
19. ‘Tour work” means:
a. Work or operations performed by you or on your behalf; and
b. Material, parts or equipment furnished in connection with such work or operations.

As in Mike Hooks, Inc. v. JACO Servs., Inc., 95-1485 (La.App. 3 Cir. 5/8/96), 674 So.2d 1125, ivrit denied, 96-1924 (La.11/1/96), 681 So.2d 1264, the policy herein purports both to provide coverage for “products-completed operations hazard” and apparently to exclude coverage of the same. In keeping with the holding of this court in that case, and with this court’s recent opinion in Supreme Svcs and Spec. Co. v. Sonny Greer, Inc., 04-1400 (La.App. 3 Cir.5/3/06), 930 So.2d 1077, as well as the unchallenged line of jurisprudence concerning ambiguous terms in insurance policies, we must 1 ^interpret the terms to provide coverage. 930 So.2d at 1079. Accordingly, we find no error in the trial court’s determination that the policy provides coverage for the claims made against D & T.

Attorney’s fees

Lafayette further asserts that the trial court erred in ordering it to pay attorney’s fees in the amount of $6,500.00. D & T has asked for additional attorney’s fees on appeal.

“Louisiana law is well settled that an insurer’s failure to defend the insured on plaintiffs’ allegations renders the insured liable for attorney’s fees incurred by the insured in defense of a negligence action. Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213, 1218.” Smith v. Reliance Ins. Co. of III, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010, 1022. Having found that Lafayette’s policy did afford coverage, we further find that the trial court’s award of fees is reasonable. Further, we award a $2,000.00 additional attorney’s fee on appeal.

Court Costs

Having found that Lewing is not liable for the failure of the floor, we further reverse the' assessment of court costs against him. Costs at the trial level are assessed thirty-three percent each to D & T, Key Resin, and Lafayette.

CONCLUSION

For these reasons, we reverse the trial court insofar as it found Lewing liable for the failure of the floor. Additionally, we find that the architect, C. Ray Fugatt was twenty percent at fault for the failure of the floor. We amend the award of attorney’s fees to D & T and against Lafayette to reflect an additional $2,000.00 for the appeal of the matter. In all other respects, the award of the trial court is affirmed.

REVERSED IN PART; AMENDED IN PART; AFFIRMED IN PART.


source: Caselaw Access Project

author: PAINTER, Judge. GREMILLION, J.,

license: Public Domain

text:
    James CRYAR v. Robert Dale BERNAUER, M.D., Acadian Ambulance Service, Inc., Acadian Ambulance and Air Med Services, Inc., Women’s and Children’s Hospital, Inc. d/b/a Women’s and Children’s Hospital of Lake Charles.
    No. 05-426.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      L. Paul Foreman, Raggio, Cappel, Cho-zen & Bernard, Lake Charles, LA, for Defendant-Appellant, Robert Dale Ber-nauer, M.D.
    Eugene A. Ledet, Jr., Rivers, Beck & Dalrymple, Alexandria, LA, for Plaintiff-Appellee, James Cryar.
    Benjamin W. Mount, Bergstedt & Mount, Lake Charles, LA, for Defendant-Appellee, Women’s & Children’s Hospital, L.L.C.
    Benjamin J. Guilbeau, Stockwell, Sie-vert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendants-Appellees, Acadian Ambulance Services, Inc. and Acadian Ambulance and AirMed Services.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, GLENN B. GREMILLION, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

hThe Defendant, Dr. Robert Dale Ber-nauer, appeals the trial court’s judgment granting summary judgment in favor of his co-defendants, Acadian Ambulance Services, Inc. and Acadian Ambulance and Air Med Services, Inc. (“Acadian Ambulance” collectively), and Women’s & Children’s Hospital, L.L.C. (“Women’s”). We reverse the trial court.

FACTS AND PROCEDURAL HISTORY

Gaye Cryar fell in her home and injured her left hip on March 14, 2000. She went to DeRidder Memorial Hospital in DeRid-der, Louisiana. She was transferred to Women’s in Lake Charles, Louisiana, where Dr. Bernauer performed a placement of the femoral head of the left hip on March 16, 2000. It is alleged that Mrs. Cryar’s condition did not improve in spite of inpatient and outpatient rehabilitation efforts. On July 25, 2000, Dr. Bernauer performed a total left arthroplasty. Acadi-an Ambulance transferred her from Women’s to a rehabilitation center where it was discovered that Mrs. Cryar was suffering from an acute fracture of the acetabulum and that the hip prosthesis placed by Dr. Bernauer was dislocated. On August 3, 2000, Mrs. Cryar was transferred to Methodist Hospital in Houston, Texas, allegedly because of continuing problems with the left hip. At Methodist Hospital, Dr. Michael Huo performed an exploration of Mrs. Cryar’s left hip and found a number of problems including a dislocation of the arthroplasty. Mrs. Cryar underwent seven additional surgical procedures to correct her problems. She died on May 3, 2003.

The matter was submitted to a medical review panel. The panel delivered its opinion on June 9, 2003, unanimously finding, in pertinent part, as follows:

There is a material issue of fact in this matter, not requiring expert opinion, bearing on liability for consideration by the court as it concerns | ¿the Defendant health care providers, Dr. R. Dale Ber-nauer, Acadian Ambulance, Air-Med Service and Women’s & Children’s Hospital.
This patient had a fractured hip, and due to her pre-existing medical problems, any procedure to repair her hip could have been fraught with complications. The choice of procedures by Dr. Bernauer was within the standard of care, however, the patient did suffer a central acetabular fracture with dislocation, post-operatively. Due to the lack of material evidence in this ease, specifically the pre-operative and post-operative x-rays that apparently have been inadvertently destroyed, as well as the inadequate documentation, the reason for the development of the complication is impossible for us to determine, and therefore it is also impossible for us to determine if any deviations from the standard of care occurred.

On July 14, 2003, Mrs. Cryar’s husband, James Cryar, brought this action asking for damages against Dr. Bernauer, Acadi-an Ambulance and Women’s. Mr. Cryar alleged in his petition that Dr. Bernauer breached the standard of care in his conduct with regard to the surgeries, that Acadian Ambulance dropped Mrs. Cryar while transferring her from bed to gurney at Women’s, and that Women’s breached the standard of care in failing to adequately supervise the transfer from bed to gurney. He further alleges that these failures led to Mrs. Cryar’s death.

Dr. Bernauer, Acadian Ambulance, and Women’s filed a joint motion for summary judgment supported by the report of the medical review panel. In opposition to the motion, Mr. Cryar submitted the affidavit of Dr. David Krant, an orthopedic surgeon, who opined that Dr. Bernauer deviated from the standard of care. The Plaintiff opposed only Dr. Bernauer’s motion. Dr. Bernauer, however, opposed th’e motion for summary judgment with regard to Acadian Ambulance and Women’s in order to maintain a possible defense of comparative fault. In his opposition, Dr. Bernauer asserted that material issues of fact remained as to where, when, and how Mrs. Cryar sustained the fractures which led to the additional surgeries and treatment. | sWomen’s responded by asserting that Dr. Bernauer failed to produce any evidence to show that it caused the subsequent fracture and that, as a result, no genuine issue of material fact existed as to them.

After a hearing, the trial court granted summary judgment in favor of Women’s and Acadian Ambulance and denied Dr. Bernauer’s motion. After an additional hearing, the trial court concluded that there was no reason to delay an appeal of the judgment and, the court designated the judgment as final and appealable. Dr. Bernauer appeals asserting that a genuine issue of fact remains as to the existence of fault on the part of Acadian Ambulance and Women’s.

DISCUSSION

It is well settled that appellate courts consider summary judgments rife novo using the same criteria as the trial court and giving no deference to the trial court’s determinations. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

The moving party is entitled to summary judgment where “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). Additionally, 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.” La.Code Civ.P. art. 966(C)(2).

The Defendant’s joint motion for summary judgment was supported by affidavits from the doctors who served on the medical review panel and the opinion of the panel. Mr. Cryar supported his opposition to Dr. Bernauer’s motion with the ^affidavit of Dr. Krant, in which he opined that Dr. Bernauer breached the standard of care in several respects, including: failing to note and prepare for abnormality of the acetabular bone possibly related to steroid caused osteoporosis, not recognizing instability of the acetabulum, not matching the femoral stem size to the femoral canal size closely, not testing the stability of the femoral component at the time of the revision, and failing to take a culture prior to the second procedure to determine if an infection was present.

In opposition to the motion for summary judgment, Dr. Bernauer filed his own affidavit in which he outlined his care of Mrs. Cryar, noted that prior to the discharge on July 28, 2000, she was being assisted out of and back into bed and undergoing some physical therapy as well as using a bedside commode without substantial difficulty, and averred that the fracture did not exist at the time Mrs. Cryar left his care. Attached as an exhibit to his affidavit is the radiological report which relates no fracture of the acetabulum. He further noted, and attached as an exhibit, a progress note from the rehabilitation facility’s record which memorializes a complaint by Mrs. Cryar that she had been roughly transferred from bed to stretcher, that she landed on her left hip, and that, from that time, she had complaints of increased pain and the feeling that “bones are moving around inside” with attempted weight bearing. Women’s responded to Dr. Ber-nauer’s opposition by filing a memorandum supported by the affidavit of Carolyn Sylvester, who was the floor nurse assigned to Mrs. Cryar at Women’s on the date she was transferred to the rehabilitation facility. Ms. Sylvester stated that she was “not aware of an alleged incident occurring during the transfer from the hospital bed to the stretcher.”

The Louisiana Supreme court recently set out guidelines for determining the existence of a genuine issue of material fact.

|,,jln determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. A fact is “material” if it is one that would matter at trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.

Swire v. Lafayette City-Parish Consol. Govt., 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48 (citations omitted).

Examining the evidence in support of Dr. Bernauer’s opposition in light of this directive, we note that, in spite of the fact that the actual x-ray is missing, the record contains the radiologist’s report of his analysis of the x-ray, which was made shortly after the x-ray was taken. The report contains no reference to the existence of a fracture, which is sufficient to raise a question as to whether one existed at that time. Taken in conjunction with the progress note from a facility not implicated in any of Mrs. Cryar’s problems which shows increasing complaints after the patient reported a rough transfer from bed to stretcher at Women’s, this evidence is sufficient to raise a material issue of fact as to how, when, and where the fracture occurred, as well as to the possible fault of Women’s and Acadian Ambulance. Accordingly, we find that the trial court erred in granting summary judgment in favor of Women’s and Acadian Ambulance.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of Women’s and Acadian Ambulance is reversed, and the case is remanded for further proceedings. Costs of appeal are to be assessed equally to Women’s and Acadian Ambulance.

REVERSED AND REMANDED.

GREMILLION, J., dissents with written reasons.

DECUIR, J., dissents for reasons assigned by Judge GREMILLION.

GREMILLION, J.,

dissents with written reasons.

_JjMy colleagues on the majority correctly and succinctly set forth our standard of review of summary judgments. In order to show that either Acadian Ambulance or Women’s bears a portion of the fault for the ensuing hip injuries, Dr. Bernauer must produce evidence to show that he will be able to prove the essential elements of causation. In my opinion, Dr. Bernauer cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, and no genuine issues of material fact exist in this case.

Women’s and Acadian Ambulance both argued at the hearing that Dr. Bernauer failed to produce any evidence showing that there was any material issues of fact as to whether either of them caused Mrs. Cryar’s hip fracture. They urge that the only evidence creating a material issue of fact is the affidavit of Dr. Krant, which leads solely back to Dr. Bernauer. I agree.

| ¡(There is insufficient evidence in the record to suggest that Dr. Bernauer will be able to meet his evidentiary burden of proving that either Acadian Ambulance or Women’s was the cause of the subsequent fracture. Other than his testimony that Mrs. Cryar was fine when she left his care, Dr. Bernauer can only produce a note on the rehabilitation center’s progress record that Mrs. Cryar reported to Dr. Wilson that she was “roughly transferred from litter to bed landing on [left] hip.” Even though Dr. Krant’s affidavit found numerous deficiencies in Dr. Bernauer’s care, the affidavit did mention Dr. Wilson’s notation but ultimately found that “[tjhere is no direct evidence to suggest that the transfer of Ms. Cryar by ambulance was the direct cause of the hip displacement. As I have mentioned, the hip was bound to fall apart in a short time anyway.” The medical review panel opinion clearly states that it cannot be determined what caused the subsequent fractures due to the destruction of the x-rays.

Dr. Bernauer cites Homage v. Cleco Power, L.L.C., 04-1492 (La.App. 3 Cm. 4/6/05), 899 So.2d 153, a recent case rendered by this court. In Homage, one of the defendants filed a motion for summary judgment, which was granted. However, the defendant did not request notice to the co-defendants of the hearing, thus, the co-defendants were unable to oppose the motion or appeal a ruling dismissing the defendant from the suit. We mentioned that if a co-defendant’s conduct may directly affect the outcome of the litigation, then summary judgment is inappropriate and the conduct of all co-defendants should be considered. This holding is not inconsistent with the granting of summary judgment in this case. There were no procedural defects preventing Dr. Bernauer from exercising his right to Uoppose the motion and now appeal the grant of that motion. Moreover, Dr. Bernauer had sufficient opportunity to present evidence proving that either Acadian Ambulance or Women’s caused Mrs. Cryar’s subsequent injuries. The notation on the rehabilitation center’s progress record is insufficient to show that he will be able to satisfy this burden of proof. In my opinion, there are no material issues of fact surrounding the transfer of Mrs. Cryar. Accordingly, I respectfully dissent from the majority opinion and would affirm the trial court’s grant of a motion for summary judgment.

      . At the hearing only the childrens' attorney was present-they did not sue Women's or Acadian Ambulance. Mr. Cryar’s' attorney was not present and did not oppose the motion in favor of Women’s and Acadian Ambulance.


author: PETERS, J.

text:
    REGIONS BANK v. Carroll KOUNTZ, et al.
    No. 2005-1106.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Jeffrey Ackermann, Durio, McGoffin, Stagg and Ackermann, Lafayette, LA, for Plaintiff/Appellant, Regions Bank.
    James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, West-port Insurance Corporation.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   PETERS, J.

11This is an appeal from the trial court’s grant of a partial summary judgment in favor of Westport Insurance Corporation (Westport), dismissing with prejudice a third-party demand filed by Bryant Kountz (Kountz) against Westport, the professional liability insurer of Donald G. Coffman, Jr. (Coffman), a Baton Rouge, Louisiana attorney. For the following reasons, we affirm the trial court’s grant of the summary judgment.

DISCUSSION OF THE RECORD

The facts as they pertain to the issue now before us are not in dispute. Kountz is a Lafayette, Louisiana businessman, and Coffman was a Baton Rouge, Louisiana attorney. Westport issued Coffman a claims-made policy of professional liability (legal malpractice) insurance covering the period from July 22, 2000, to July 22, 2001, with a retroactive date to July 22, 1997.

Kountz and others invested $150,000.00 in an unsuccessful business venture which, according to Kountz’s pleadings, involved South African gold and was spearheaded by Coffman. As a part of the business venture, on June 15, 2000, Coffman issued a $150,000.00 check to Kountz drawn on his client trust account in Whitney National Bank. Kountz deposited the check in an account in Regions Bank in New Iberia, Louisiana, on September 28, 2000. On October 3, 2000, Kountz obtained a cashier’s check from Regions Bank in the amount of $150,000.00, based on the September 28 deposit and negotiated that check to a third party. On the next day, Regions Bank received notification that Whitney National Bank had dishonored Coffman’s check because the client trust account from which it was drawn had been closed.

lijOn November 2, 2000, Regions Bank instituted suit against Kountz and others in an effort to recover the $150,000.00 it had disbursed by issuing the cashier’s check. Kountz responded to the suit by filing a number of pleadings, including a third-party demand against Coffman. This third-party demand, filed on September 27, 2001, named Coffman as a defendant in his capacity as an attorney and asserted an indemnity claim based on various causes of action, including Coffman’s role as Kountz’s attorney in the unsuccessful South African gold venture.

Kountz amended his third-party demand on October 31, 2001, by adding XYZ Insurance Company as another third-party defendant. The amendment alleged that XYZ Insurance Company was either Coff-man’s legal malpractice insurer or his commercial general liability insurer, that Coffman had left the state and had not appointed an agent for service of process, and that Coffman’s whereabouts were unknown. It further requested that the trial court appoint an attorney to represent Coffman as an absentee defendant. The trial court granted this relief, and, since that date, all appearances on behalf of Coffman in this litigation have been through his appointed attorney ad hoc.

On November 7, 2003, or over three years after Regions Bank filed its suit and over two years after Kountz filed his third-party claim against Coffman, Kountz again amended his third-party demand — this time to name Westport and another insurance company as third-party defendants based on policies of professional liability insurance issued by the two companies insuring Coffman for legal malpractice. | oKountz asserted in his pleadings that the identity of the two insurers had been discovered only within the two weeks prior to filing the amended third-party demand.

After being served with the third-party demand, Westport responded by filing the motion for summary judgment, which is the subject of this appeal. In its motion for summary judgment, Westport acknowledged that it had issued a professional liability or legal malpractice policy to Coff-man, covering the period from July 22, 2000, to July 22, 2001, with a retroactive date to July 22,1997, but asserted that the policy was a claims-made policy such that coverage extended only to those claims made against it and reported to it during the policy period. Westport further asserted that its first notice of Kountz’s claim against Coffman occurred on November 17, 2003, when it received service of the third-party demand arising from the November 7, 2003 filing. Because of this chronology, Westport sought a judgment in its favor declaring that there was no coverage relative to the $150,000.00 dishonored check. In support of its motion for summary judgment, Westport filed a copy of the policy issued to Coffman, an affidavit of its authorized agent referring to particular provisions of the policy relative to the notice requirement, and depositions of both Kountz and a Regions Bank representative.

|4The trial court heard the motion for summary judgment on March 21, 2005, and, on the next day, entered judgment in favor of Westport, granting the motion and dismissing Kountz’s third-party demand against it. In reaching this decision, the trial court concluded that the insured under the policy (Coffman) had not complied with the claims-made and notice requirements of that policy and that consequently the policy provided no coverage. The trial court later designated the judgment as a final judgment as authorized by La.Code Civ.P. art. 1915, and Kountz perfected this appeal.

The principal issue in this appeal is whether, considering the terms of West-port’s policy and the undisputed facts that appear in the pleadings, depositions and affidavits on file, summary judgment was proper. A second issue raised by the assignments of error is whether summary judgment was proper where Westport failed to establish that it was prejudiced by the delayed notice.

OPINION

We review a summary judgment determining insurance coverage de novo, using the same criteria for these insurance issues as those governing the trial court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). “Where the meaning of a contract is to be determined solely from the words upon its face, without the necessity of extrinsic evidence, the appellate courts are as competent to review the evidence as the trial court, and no special deference is usually accorded the trial court’s findings.” Id. at 345. Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, |sshow that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(B).

The specific language of Westport’s policy provided Coffman with coverage only for claims made against him and reported to it during the same policy period. The DECLARATIONS page of Westport’s policy states the following with regard to the notice requirements:

This is a Claims-Made and Reported Policy. Except as may be otherwise provided herein, this coverage is limited to liability for only those CLAIMS which are first made against the NAMED INSURED and reported to the Company while the POLICY is in force.

Additionally, under the INSURING AGREEMENTS section of the policy, the following language appears:

The Company shall pay on behalf of any INSURED all LOSS in excess of the deductible which any INSURED becomes legally obligated to pay as a result of CLAIMS first made against any INSURED during the POLICY PERIOD and reported to the Company in writing during the POLICY PERIOD or within sixty (60) days thereafter, by reason of any WRONGFUL ACT occurring on or after the RETROACTIVE DATE, if any....

Under the DEFINITIONS section of the policy, the following language appears:

“CLAIM” MEANS a demand made upon any INSURED for LOSS, as defined in each of the attached COVERAGE UNITS, including, but not limited to, service of suit or institution of arbitration proceedings or administrative proceedings against any INSURED....

Thus, while sometimes referred to by Westport as a claims-made policy, it is better described as a claims-made-and-reported policy. That is to say, it is a policy in which coverage attaches only if the wrongful act is discovered and reported to the insurer within the policy period or within sixty days thereafter. This type of policy | fiis different from an occurrence policy in that the insured peril is different. In an occurrence policy, the peril insured is the occurrence itself. Once the occurrence takes place, coverage attaches even though the claim may not be made for some time thereafter. In a claims-made policy, the making of the claim is the event and peril being insured, regardless of when the occurrence took place. Anderson v. Ichinose, 98-2157 (La.9/8/99), 760 So.2d 302. Pure claims-made policies shift to the insured only the risk of claims incurred but not made, whereas claims-made-and-reported policies shift the risks both of claims incurred but not made and of claims made but not reported. Id. The purpose of a elaims-made-and-reported policy is to alleviate problems in determining when a claim was made or whether an insured should have known a claim was going to be made. Id.

In Livingston Parish School Board v. Fireman’s Fund American Insurance Co., 282 So.2d 478, 481 (La.1973), the supreme court addressed the nature of claims-made policies and stated the often-cited general rule that “[wjhere a policy unambiguously and clearly limits coverage to acts discovered and reported during the policy term, such limitation of liability is not per se impermissible.” In doing so, the supreme court reaffirmed the general principle that, in the absence of conflict with a statutory provision or public policy, insurers may by unambiguous and clear notice provisions “limit their liability and impose such reasonable conditions as they wish upon the obligations they assume by their contract.” Id.; see also Anderson, 760 So.2d 302. However, the general rule enunciated by the supreme court does not end our inquiry because, as the jurisprudence has established, application of the general rule is fact intensive to each case.

1/This circuit has considered claims-made policies in a number of opinions. In Case v. Louisiana Medical Mutual Insurance Co., 624 So.2d 1285 (La.App. 3 Cir. 1993), this court considered a claim against the insurer of a physician in the context of a medical malpractice action. The malpractice act at issue occurred on September 26, 1986, well within the insurer’s policy period of July 1, 1986, through July 1, 1987. The plaintiffs initially brought an action against the physician on September 25, 1987, and the physician’s insurer first received notice of the claim on October 5, 1987. The trial court granted the insurer a summary judgment, finding that its claims-made policy provided no coverage for the medical malpractice because the incident was not reported during the policy’s effective period. This court affirmed the trial court’s judgment, applying the general rule enunciated in the Livingston Parish School Board decision. However, in doing so, this court did not address whether any Louisiana statutory provision might have affected the claims-made conditions of the policy.

Applying facts similar to those in Case, this court in Murray v. City of Bunkie, 96-297 (La.App. 3 Cir. 11/6/96), 686 So.2d 45, writ denied, 97-514 (La.5/9/97), 693 So.2d 767, considered the effect of the policy provisions of a elaims-made-and-re-ported policy when considered in light of the provisions of the Louisiana Direct Action Statute, La.R.S. 22:655. In Murray, the plaintiff claimed to have sustained ^damages as the result of the fault of the City of Bunkie in August and September of 1993. The City had a claims-made-and-reported insurance policy in effect at the time which had an expiration date of May 1994. The plaintiff gave notice of his claim to the City in September of 1993, but the City did not report the claim to its insurer. The insurer first received notice of the claim when the plaintiff instituted suit against it in August of 1994. Thus, notice was timely given to the insured during the policy period, but not to the insurer. Basing the decision on public policy considerations as expressed in West v. Monroe Bakery, Inc., 217 La. 189, 46 So.2d 122 (1950) and Williams v. Lemaire, 94-1465 (La.App. 4 Cir. 5/16/95), 655 So.2d 765, writ denied, 95-1514 (La.9/22/95), 660 So.2d 481, this court held that the right of the tort victim to sue the insurer directly under the Louisiana Direct Action Statute was a vested right and that the plaintiff could not be divested of this right by the breach of a policy condition requiring prompt notice when the delay was due to the fault of the insured over whom the injured person had no control. In other words, this court reasoned that, if language in a claims-made policy between an insurer and its insured required notice by the insured to the insurer within the policy period thereby defeating an injured party’s right to proceed directly against the insurer, that language was against public policy.

We considered a claims-made policy again in the context of a medical malpractice case in Gary v. Witherspoon, 98-1810 (La.App. 3 Cir. 6/2/99), 743 So.2d 708. In that case, a dentist was covered by a claims-made policy providing coverage from February 10, 1995, through February 10, 1996, with a retroactive date to February 10, 1988. The dentist treated the plaintiff from August 11, 1993, through January 25, 1996, and, on July 2, 1996, the plaintiffs cause of action accrued when Lshe discovered the dentist’s malpractice. She filed suit against both the dentist and his insurer on June 9, 1997. The insurer first received notice of the claim when it received service of the suit on June 17, 1997.

The filing was timely for prescription purposes under La.R.S. 9:5628, the medical malpractice prescription statute, and this court concluded that disallowing the claim against the insurer would violate La. R.S. 22:629 because the claims-made language limited the plaintiffs exercise of her right of action against the defendant to a period of less than one year from the time when her cause of action accrued. The court concluded that it was contrary to public policy as clearly and unambiguously expressed by our legislature by that statute as well as by La.R.S. 9:5628. However, the court was careful to point out that the claims-made language had that “effect” because of the facts “in this case.” Id. at 713.

|inIn reaching the conclusion that the facts effectively caused a conflict between the claims-made language and both La. R.S. 22:629 and La.R.S. 9:5628 and that the policy’s claims-made reporting requirements had to give way to the statutory requirements, this court in Gary considered and found persuasive the decision of Hedgepeth v. Guerin, 96-1044 (La.App. 1 Cir. 3/27/97), 691 So.2d 1355, urrit denied, 97-1377 (La.9/26/97), 701 So.2d 983. In Hedgepeth, as in Gary, the notices complied with the statutes but not with the policy requirements. The medical procedure giving rise to the plaintiffs’ malpractice action in Hedgepeth occurred on October 2, 1985. The claims-made policy was in effect between January 31, 1985, and January 31, 1986, and the plaintiffs’ claim for medical malpractice was initiated on July 23, 1986, and reported to the'insurer on August 7, 1986. These dates were outside the policy period but less than one year from the date of the acts giving rise to the medical malpractice action. However, the insurance policy limited its liability to those acts which occurred and were reported prior to the end of the policy’s coverage. As a result, the plaintiffs in Hed-gepeth effectively had less than one year from the date of the act of malpractice to commence the action against the insurer. On those chronological facts, the court in Hedgepeth relied upon La.R.S. 22:629, La. R.S. 9:5628(A), and La.R.S. 40:1299.45 in holding that the insurer used the policy limitations to decrease impermissibly the amount of time the medical malpractice plaintiff had to bring suit. The Hedgepeth court held that under its facts the policy was unenforceable and without effect to the extent it limited the liability of the insurer to those claims which occurred and were reported while the policy was in force. Accordingly, it held that the “policy would afford coverage to those acts of malpractice which occurred during the policy period, were filed within one year from |naecrual of the cause of action, and were reported to the insurer within one year of the date from accrual of the cause of action.” Hedgepeth, 691 So.2d at 1364. The Hedgepeth facts met those three requirements, and coverage was afforded.

The court in Hedgepeth gave consideration to the Direct Action Statute, which we had applied in Murray, 686 So.2d 45. However, unlike Murray, where the injured party provided notice to the insured during the policy period, in Hedgepeth the plaintiffs did not make a claim during the policy period. Because of that distinction, Hedgepeth was not decided on the basis of a violation of the Direct Action Statute. Instead, Hedgepeth held that the claims-made policy was unenforceable as contrary to the prescriptive period for insurance and medical malpractice actions and the general principles of the Medical Malpractice Act. Hedgepeth, 691 So.2d 1355.

Shortly after the Gary case was decided by this court, the supreme court in Anderson, 760 So.2d 302, examined a medical malpractice third-party claim involving a claims-made-and-reported policy. There, the doctor’s October 1986 misdiagnosis of the cancerous nature of a mole was discovered in December of 1987. In November of 1988, the plaintiffs filed suit against the doctor, and in May of 1995 the plaintiffs amended their petition to add as a defendant the doctor’s insurer. The policy period had expired on October 1, 1987, and the supreme court stated that it was significant that “the event that triggered policy coverage [the May 1995 suit against the doctor] did not occur during the policy period.” Id. at 307. The supreme court further stated that, “[u]nless there is a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume.” Id. at 306. The decision concluded that the “application of the requirements of the [1gclaims-made policy under the facts of the present case does not violate public policy.” Id. at 307 (emphasis added).

The particular question in Anderson was “whether the policy’s denial of the applicability of coverage, when the professional service occurred within the policy period but the claim was not made or reported until after the policy period expired, violates public policy.” Id. at 303. The Anderson decision addressed the application of the Direct Action Statute and held that the Direct Action Statute did not “extend the protection of the liability policy to risks that were not covered by the policy or were excluded thereby (at least in the absence of some mandatory coverage provisions in other statutes),” stating further:

The unambiguous terms of the policy in the present case limit coverage to professional services for which claims were made during the policy period. No claim was made against either the insured or the insurer during the policy period, and the insured has no right to coverage under the terms of the policy. Under these circumstances, the Direct Action Statute does not extend any greater right to third party tort victims who were damaged by the insured.

Id. at 307.

The court referred to Murray and other court decisions on the issue of whether a third-party tort victim, who is denied coverage under a claims-made policy because the timely notified insured failed to notify the insurer timely, may resort to the public policy provisions of the Direct Action Statute to obtain coverage. However, the court held that, because the doctor was not notified of the claim and neither knew nor should have known of the claim during the policy period, it did not need to discuss whether notice to the insured satisfied the policy requirement of notice to the insurer in the absence of prejudice resulting from the delay in notice. Id.

ha Although it mentioned parenthetically that mandatory coverage provisions in statutes other than the Direct Action Statute might affect coverage, the Anderson decision did not discuss or mention La.R.S. 22:629, nor did it discuss or mention Hed-gepeth, the first case that had relied principally on La.R.S. 22:629 and held that a claims-made policy was unenforceable when it was effectively contrary to the statutory time allowed for filing insurance actions. We assume that the reason it was not believed necessary to mention that case was because of the factual distinction that in Anderson the claim was not reported to the insurer within the policy period and was also not reported until more than a year after accrual of the cause of action.

After Anderson, this circuit considered a claims-made policy once again in Robicheaux v. Adly, 00-1207 (La.App. 3 Cir. 1/31/01), 779 So.2d 1048. The claims-made medical malpractice policy in that case had a term from January 1, 1995, through January 1, 1996, with a retroactive date to May 7, 1994. The doctor treated the plaintiffs’ deceased during the policy period. She died on December 6, 1995. The plaintiffs filed their suit against the doctor on August 16, 1996. The doctor could not be located, and a curator ad hoc was appointed to protect his interests. On December 4, 1996, the curator was served with the petition for damages. We noted in Robicheaux that under La.R.S. 9:5628, the medical malpractice prescription statute, the plaintiffs’ suit was timely brought against the doctor. However, we also noted that the insurer’s first notice of the claim was on February 12, 1999, when personal service was made on its agent for service of process, which was well over two years after suit was timely brought against the doctor and approaching four years after the death of the plaintiffs’ deceased. Accordingly, notice to the insurer was too late. We recognized that prior jurisprudence had interpreted La.R.S. 22:629 and La.R.S. |149:5628 to hold that a policy provision which effectively reduces the prescriptive period against the insurer to less that the statutorily mandated period is without effect. However, we found that such was not the factual situation in Robi-cheaux. Citing Hedgepeth and Gary as authority, we stated that “[i]f the alleged incident occurs within the policy period, and a claim is filed outside of the policy period but within one year of the alleged incident, and the insurer is notified of the claim within one year of the alleged incident, coverage will be afforded under the claims made policy in order to conform to Louisiana law.” Id. at 1054. Because the insurer was not notified of the claim within one year of the alleged incident, we found that the application of the policy language to the particular facts of that case did not impermissibly limit the statutory time granted to bring the claim. We affirmed the judgment finding that there was no coverage.

The first circuit has continued to follow the rule of Hedgepeth. In Bennett v. Krupkin, 99-2702 (La.App. 1 Cir. 12/22/00), 779 So.2d 923, writ denied, 01-193 (La.3/30/01), 788 So.2d 1190, the court affirmed a final partial summary judgment in favor of the plaintiffs, holding that, as in Hedgepeth, the policy provided coverage for the alleged act of malpractice. Under the undisputed facts of Bennett, the cause of action accrued on October 25, 1996, the policy period ended January 15, 1997, and the suit against both the insured and the insurer was filed on April 17, 1997. The policy provision reduced the prescriptive period such that the plaintiffs effectively lidiad less than one year from the date of the accrual of their cause of action to commence the action against the insurer.

In LeBlanc v. Succession of Raggio, 00-2407 (La.App. 1 Cir. 2/20/02), 818 So.2d 140, writ denied, 02-870 (La.5/31/02), 817 So.2d 95, a legal malpractice suit brought by the third-party client, the court again applied the rule of Hedgepeth. As in Hed-gepeth and Bennett, the claim was made and notice given after the policy terminated. The record in LeBlanc disclosed that the alleged act of legal malpractice occurred sometime in 1996. The decision did not state exactly when the act was discovered and the cause of action accrued. The attorney had malpractice insurance from August 6, 1995, to August 6, 1998. The client filed suit against the succession of her deceased attorney on January 14, 2000, amending the petition on January 24, 2000, to join the malpractice insurer whose policy was in effect at the time of the alleged malpractice. This was the first notice the insurer had of the claim. The LeBlanc court noted that Anderson, although ruling that insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume, qualified its ruling just as had Livingston by recognizing an exception if there should be a conflict with statutory provisions or public policy. The LeBlanc court concluded that the notice requirement of the claims-made policy conflicted with La.R.S. 22:629 and La.R.S. 9:5605 and voided Imthe terms of the policy regarding when a claim could be made. Finding that the insurer had failed to show it was entitled to judgment as a matter of law, the court reversed the summary judgment granted in favor of the insurance company and remanded the matter for further proceedings. The court stated that, because of the disposition made, it would not consider the plaintiffs additional argument regarding notice to the insurer through notice to the insured. The court stated that it would “pretermit the issue of when notice to an insured satisfies policy requirements of notice to the insurer in the absence of prejudice resulting from the delay in notice.” Id. at 143.

Other circuits after Anderson have considered claims-made-and-reported policies and the effect on coverage when notice to the insurer is not given during the policy period. In Verhalen v. Forum Health Management, of Georgia, Inc., 34,090 (La.App. 2 Cir. 11/3/00), 771 So.2d 238, writ denied, 01-72 (La.3/9/01), 786 So.2d 738, a medical malpractice case, the court, distinguishing its facts from those of Gary and Hedgepeth, held there was no coverage because the particular facts did not shorten the statutorily mandated period for bringing suit dictated by either La.R.S. 9:5628 or La.R.S. 22:629. The holding in Sanches v. Morris, 01-398 (La.App. 5 Cir. 11/14/01), 802 So.2d 755, suggests that the court applied the simple test that coverage is determined by whether or not notice is given to the insurer during the policy period without regard to the presence of any other factors, including any statutory mandate. The case of Burns v. CLD, Inc., 38,998 (La.App. 2 Cir. 10/27/04), 886 So.2d 607, writ denied, 04-2906 (La.2/18/05), 896 So.2d 31, expressly rejected the reasoning |17of Hedgepeth, Gary, and Bennett and held that because a claim was not made during the policy period there was no coverage.

As the cases we have discussed demonstrate, the problem is a confusing one, and the results have not been entirely consistent. However, the baseline rule which we choose to follow in this case is that appearing in the supreme court’s Anderson decision and our Robicheaux case, both of which were decided on similar facts. Applying the policy language to the facts involved in the case now before us, we conclude that the partial summary judgment in favor of Westport was properly granted.

The insuring agreement in the policy covered a loss by an insured which the insured became legally obligated to pay as a result of a claim first made against the insured during the policy period and reported to the insurer during the policy period or within sixty days thereafter. Although “claim” is defined in the policy as “a demand made upon any INSURED for LOSS ... including, but not limited to, service of suit,” service was not made on Coffman because a curator ad hoc was appointed to represent him, by authority of La.Code Civ.P. art. 5091, et seq., when it was determined that he was an absentee whose whereabouts were unknown. The authority given by statute to an attorney appointed to represent an unrepresented defendant does not include filing a third-party demand. La. Code Civ. P. art. 5095 and its comments. Kountz failed to produce any evidence that Coffman either knew or should have known of the claim during the policy period. Thus, although the suit by Kountz may have interrupted prescription, it was not a demand as required by the policy language to qualify as a claim made within one year of the wrongful act. The claim was made on Westport long after the end of the policy term and more than sixty hsdays thereafter as well as more than a year after the date of the wrongful act. On these facts, the policy language did not impermissibly limit the statutory time granted to assert the claim. There was no coverage under the policy.

There remains for consideration the other issue raised by the appellant, which is whether the policy required the insurer to show that it was prejudiced by delayed notice in order to avoid its obligations. That issue involves an interpretation of the REPORTING AND NOTICE provisions of the policy, from which we quote the following relevant language:

As a condition precedent to coverage under this COVERAGE UNIT, if a CLAIM is made against any INSURED, or any INSURED becomes aware of any CLAIM, the INSURED(S) shall, as soon as practicable, but no later than sixty (60) days after termination of the POLICY PERIOD, provide written notice to the Company, provided, that coverage under this COVERAGE UNIT shall not be denied or forfeited solely as a result of the failure of the INSURED to provide such notice as soon as practical, unless such notice is provided later than sixty (60) days after termination of the POLICY PERIOD or the Company proves actual prejudice as a result of the failure of the INSURED to provide such notice. However, breach of this condition shall not result in a denial of coverage with respect to any INSURED who had no knowledge of the CLAIM. Nothing contained herein shall be construed as limiting the reporting requirements of INSURING AGREEMENT LA.

Attached to the policy is an AMENDA-TORY ENDORSEMENT stating:

It is agreed that the REPORTING AND NOTICE SECTION of the individual COVERAGE UNITS is hereby amended to the extent that coverage will not be denied or forfeited solely as a result of the failure of the INSURED to provide such notice within the POLICY PERIOD or the EXTENDED REPORTING PERIOD unless the Company can demonstrate actual prejudice as a result of the INSURED’S failure to provide such notice.

The appellant argues that this language imposed on Westport the burden of proving it was prejudiced by the delayed notice and that, having failed to offer any evidence of prejudice, it was not entitled to summary judgment in its favor.

|1flWe disagree with that strained construction of the policy language. An interpretation of contractual language which would lead to absurd consequences must be rejected as unreasonable.

DISPOSITION

For the foregoing reasons, we affirm the grant of the partial summary judgment in favor of Westport Insurance Company, dismissing Bryant Kountz’s third-party demand against it. We assess all costs of this appeal to Bryant Kountz.

AFFIRMED.

      . Coffman's whereabouts have remained unknown since the events that gave rise to the main demand. No one was able to contact him after his check was dishonored in October of 2000. At the time of the hearing of the motion for summary judgment, it was believed that he had left the country, and it was rumored that he was in Costa Rica.

      . Westport's motion for summary judgment pleaded as an additional ground for noncov-erage that the relationship between Coffman and Kountz was one of business and not attorney-client. Whether Coffman's. conduct was within the professional scope of coverage was not addressed by the trial court and is not now before us.

      . The other newly named third-party defendant, Continental Casualty Company, answered the amended third-party demand, ' asserting that it provided Coffman with professional liability insurance for the period from July 21, 2001, through July 22, 2002, and also denied that any claim had been reported to it as required by its claims-made policy. However, that coverage issue is not before us.

      .The agent also denied receiving any notice of a claim against Coffman. However, in doing so, the affidavit twice referred to "a claim by Regions Bank against Donald Coff-man.” The claim being denied was, of course, the claim by Kountz against Coffman. The reference to having been Regions Bank's lack of notice was obviously a typographical error.

      . The filing of suit in a court of competent jurisdiction and venue interrupts prescription. La.Civ.Code art. 3462. However, because there was never personal service on Coffman and the record demonstrates no notice to him by any other means, Coffman never received notice of Kountz's claim in accordance with the requirements of the insurance policy.

      . Louisiana Revised Statutes 22:655, provides in pertinent part:
      B. (1) The injured person ... shall have a right of direct action against the insurer within the terms and limits of the policy....

      D. It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable; and, that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.

      . Louisiana Revised Statutes 9:5628(A) provides:

        No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall he brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
      (Emphasis added.)

      . Louisiana Revised Statutes 22:629 provides, in pertinent part, as follows:
      A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in. this state or any group health and accident policy insuring a resident of this state, regardless of where made or delivered shall contain any condition, stipulation, or agreement:

      (3) Limiting right of action against the insurer ... to a period of less than one year from the time when the cause of action accrues in connection with all other insurances unless otherwise specifically provided in this Code.
      B. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract.
      (Emphasis added.)

      . In our opinion in Robicheaux, we defined the issue as being “whether the trial court erred in granting [the insurer's] motion for summary judgment despite the statutory language of La.R.S. 22:629, Louisiana's Direct Action Statute, precluding an insurer from limiting the prescriptive period in a policy for a period of less than twelve months.” Id. at 1051. Obviously, it was an inadvertence that we called La. R.S. 22:629 "Louisiana's Direct Action Statute.” The Direct Action Statute is La. R.S. 22:655, not La. R.S. 22:629. We did not perpetuate that inadvertence, however, as we fully discussed the appropriate statutes and expressly found that, when the facts of the case were considered, the policy language did not shorten the statutorily mandated period dictated by either La.R.S. 22:629 or La. R.S. 9:5628.

      . The attorney malpractice prescriptive statute provides in pertinent part as follows:
      A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
      (Emphasis added.)


author: AMY, Judge.

text:
    Charles E. SLAIN, Jr., et al. v. Carnell J. THOMAS, et al.
    No. 05-1616.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Johnnie L. Matthews, Matthews & Matthews, Baton Rouge, LA, for Plaintiffs/Ap-pellees: Charles E. Slain, Jr., Brenda Slain, John Delaney, Magnolia Washington.
    Byron A. Richie, Richie, Richie & Ob-erle, L.L.P., Shreveport, LA, for Defendant/Appellant: Imperial Fire and Casualty Insurance Company.
    Tracy L. Oakley, Ruston, LA, for Defendant/Appellee: Safeway Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

I The plaintiffs were involved in a car accident when the truck driven by the defendant struck the plaintiffs car in the rear. The plaintiffs filed suit against the defendant, the truck owner’s liability insurer, and the driving plaintiffs uninsured/underinsured motorist carrier. Following a bench trial, the trial court found the defendant solely responsible for causing the accident. The trial court determined that the truck owner gave the defendant permission to use his vehicle; thus, his liability policy provided coverage to the defendant. The truck owner’s liability insurer was ordered to pay damages subject to the extent of its liability policy limit and property damages for the plaintiffs vehicle. It appeals this judgment, asserting two assignments of error. For the following reasons, we reverse and dismiss in part, and render.

Factual and Procedural Background

The record indicates that on October 31, 2003, Carl White and Carnell Thomas traveled from Baton Rouge, Louisiana to New Orleans, Louisiana. According to White, he decided to go to New Orleans for Halloween, and he asked Thomas to accompany him, to which Thomas agreed. White drove his pickup truck to New Orleans, and the two spent the day visiting with friends, riding around, and “enjoying [themjselves.” It was getting late, so White and Thomas decided to spend the night in New Orleans. According to White’s deposition testimony, Thomas woke up the next morning and he asked White to bring him by a friend’s house. White consented, and he testified that on route to Thomas’ friend’s house, Thomas asked him questions about his truck, “like how it was running and everything like that, if it was a good truck.”

laWhen White and Thomas reached their destination, Thomas exited the truck, knocked on the door, and talked to his friend. White remained in the truck. After speaking with his friend, Thomas entered the truck and asked White for the keys. White testified that when he refused to relinquish his keys, he and Thomas “started to fight, and the next thing you know his friend came out and shot me.” White stated that because he was “too busy fighting” with Thomas, he did not know where Thomas’ friend was when he shot him.

White was shot twice in the abdomen. When asked what happened after he was shot, White answered: “Then they told me get out of the truck. Well, I was in the driver’s seat, and so I just pulled off. I just took off because I was taking the truck with rae, and I was driving trying to get to the hospital.” Thomas was still in the vehicle with White. White testified that on the way to the hospital, he became drowsy and was losing consciousness and blood. . He recalled the conversation that he and Thomas had in the truck:

He [Thomas] kept on asking me, “Let me drive, let me drive. You’re going to kill us both.” And I was telling him, “No, no.!’ And then I got so drowsy, I mean, I was about to die. So, I mean, I just said okay, you know, because I couldn’t make it no more. I’d drove enough, and I couldn’t make it no more with driving, so I let him drive.

Upon his arrival at the hospital, White lost consciousness or as he states “fell out.” He “woke up in the hospital, and [he] was in the bed, and everything was over.”' He testified that after being in the hospital for a couple of days, 'he began to wonder where his truck was. Weeks passed before White’s truck was located. His mother, Kathy White, told him that his truck was involved in an accident.

The record indicates that after Thomas drove White to the hospital, he left in White’s truck.' On November 23, 2003, Thomas was involved in a motor vehicle |saccident in Ferriday, Louisiana. Thomas rear-ended a vehicle driven by Charles Slain, Jr. Slain and his three passengers were allegedly injured as a result of the accident, and they instituted this suit for damages. Named as defendants were Thomas, White, White’s liability insurer, Imperial Fire & Casualty Insurance Company (Imperial), and Siam’s uninsured/un-derinsured motorist carrier, Safeway Insurance Company (Safeway).

A trial was held on May 23, 2005, in which the trial court found Thomas wholly at fault in causing the accident. The trial court concluded that “Defendant Thomas was given permission by Defendant White to use the vehicle insured by Imperial, and therefore, the liability policy issued by Imperial shall apply to this accident.” The trial court awarded the plaintiffs $49,109.49 in damages and ordered that Imperial pay damages subject to the extent of its liability policy limit, twenty thousand dollars ($20,000.00), plus judicial interest and costs. Imperial was also ordered to pay $1,486.00 for the property damage to Siam’s vehicle. Safeway was cast in judgment for its policy limits of $20,000.00.

Imperial appeals, designating as error the following assignments:

A. Whether the trial court was manifestly erroneous/clearly wrong in concluding that “permission” existed where Carl White acquiesced to Carnell Thomas’ driving him to the hospital while bleeding to death from two bullet wounds received to his abdomen as the result of a car jacking instigated by Carnell Thomas and an unknown associate; and that Carnell Thomas did not deviate from said “permission” when he left Carl White in the hospital with gunshot wounds and drove the insured vehicle one |4hundred eighty miles away and was involved in an accident twenty-two days later.
B. Whether the trial court erred in allowing a hearsay statement attributed to Carnell Thomas as an “excited utterance” where no testimony was illicited [sic] establishing the deelarent [sic] was under the “stress of excitement caused by” the motor vehicle accident which forms the basis of the lawsuit and which had occurred one hour before the alleged statement took place.

Discussion

Initial Permission

Imperial asserts that because White- was shot, bleeding, and losing consciousness, he acquiesced and allowed Thomas to drive him to the hospital. It argues that given the circumstances, the trial court erred in finding that White gave Thomas permission to leave the hospital in his truck and drive one hundred eighty miles away. Imperial, therefore, contends that its liability policy does not provide coverage as “the deviation from the use consented to amounts to theft or other conduct displaying utter disregard for the return or safekeeping of the vehicle.”

Louisiana Revised Statutes 32:900(B)(2) provides that a motor vehicle liability policy:

Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles[.]

The type of “omnibus clause” required by La.R.S. 32:900(B)(2) is reflected in the Imperial policy. In part, the policy provides:

LIABILITY INSURANCE
Protection for Others
Any individual person using, with your express or implied permission, a car we insure, has the same rights and obligations that you have under this insurance.
_k- •• •
Exclusions
There are some situations we do not insure and for which we will not pay. These are as follows:
We do not insure anyone using your car without your express or implied permission.

The omnibus clause is applicable if White, as the owner of the vehicle and the named insured, gave Thomas permission, express or implied, to drive his truck. Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398. It is undisputed that White granted Thomas permission to drive him to the hospital. Therefore, the pertinent issue before this court is whether the permission given on November 1, 2003, the day White was shot, continued until November 23, 2003, the date of the motor vehicle accident.

In Norton v. Lewis, 623 So.2d 874, 875 (La.1993), the supreme court explained the “initial permission” rule:

Once permission, whether express or implied, to use a motor vehicle is established it is given a wide and liberal meaning in determining coverage. So long as the initial use of the vehicle is with the consent, express or implied, of the insured, any subsequent changes in the character or scope of the use do not require additional specific consent of the insured; coverage will be precluded only where the deviation from the use consented to amounts to theft or other conduct displaying utter disregard for the return or safekeeping of the vehicle.

In addressing the question of permissive use in its reasons for judgment, the trial court stated briefly that: “[T]his Court finds that Defendant Thomas was given permission by Defendant White to use the vehicle insured by Imperial, and therefore, the liability policy issued by Imperial shall apply to this accident.” Whether or not permissive use exists is a factual finding that will not be overturned on appeal absent manifest error. Tross v. Windsor Ins. Co., 98-617 (La.App. 5 Cir. 1/26/99), 726 So.2d 459. Having reviewed the record, we find that the trial court’s factual finding in this regard is manifestly erroneous.

Upon his release from the hospital, White gave a deposition which was entered into evidence. White testified that when he moved to Baton Rouge to live with his brother, he did not know anyone. Thomas’ family lived in the same building as White, and Thomas lived in the neighborhood. He testified that he first met Thomas in October 2003, and they “just started” talking. Although he only knew Thomas for a couple of weeks, White asked him if he wanted to go to New Orleans with him. White testified that he drove his truck to New Orleans and that prior to this incident, Thomas had never driven his truck.

White and Thomas spent the night in New Orleans. The following morning, Thomas asked White to bring him to his friend’s house, which he did. White testified that after Thomas spoke with his friend, he entered the vehicle and asked White for the keys; White refused. A fistfight ensued, and White was shot twice in the abdomen, allegedly by Thomas’ friend. White remembered that Thomas and his friend told him to get out of the truck. Because he was seated in the driver’s seat, White “just pulled off[,]” attempting to drive himself to the hospital.

On the way to the hospital, White was losing blood, getting drowsy, and “was about to go to sleep and wreck[.]” He testified that Thomas was telling him, “Let me drive, let me drive. You’re going to kill us both.” Because of his condition, White acquiesced. White estimated that when he gave Thomas permission to drive, the hospital was approximately three blocks away.

|7Upon arrival at the hospital, White lost consciousness and did not wake up until approximately four days after the shooting. He testified that when he woke up, he tried to locate his truck. When questioned about Thomas’ “taking” of his truck, White responded:

He never returned it, never called or anything, never returned the truck to my brother or anything of that manner. That’s how come I was going to go and put it down for stolen, but I couldn’t because I was in the hospital, and he was involved in a case that with me getting shot, because that’s why the people wouldn’t talk to me mainly because the hospital didn’t want to get involved in it.

Although Thomas brought White to the hospital, the record does not state whether he remained for a period of time to inquire about White’s condition. Rather Thomas drove White’s truck for three weeks before he was involved in a motor vehicle accident in Ferriday, which according to White, is one hundred eighty miles away from New Orleans. Because Thomas drove the vehicle for an extended period of time and to a location which exceeded White’s alleged initial permission, we find that this constitutes an “utter disregard for the return of the vehicle.” Cf. Pope v. Allstate Ins. Co., 99-494, p. 6 (La.App. 5 Cir. 11/30/99), 751 So.2d 299, 302 (because the accident occurred on the same day permission was granted and the defendant “did not attempt to steal the van or keep it for an extended period of time for his own personal use[,]” this did not amount to an utter disregard for the return or safekeeping of the vehicle).

We are mindful of the fact that prior to the shooting, Thomas attempted to take the car from White. It appears that White allowed Thomas to drive his truck for the sole purpose of getting him to the hospital. We note that it was impossible for White to revoke any permission given, because when he arrived at the hospital, he lost consciousness and did not wake up until days later. There is no indication that IsWhite’s acquiescence in letting Thomas drive extended beyond the arrival at the hospital. Beyond that point, Thomas was nowhere to be found. The record indicates that both White and his mother tried unsuccessfully to get the police to report the truck as stolen.

Given the circumstances, “deviation from the use consented to amounts to theft or other conduct displaying utter disregard for the return or safekeeping of the vehicle.” Norton, 623 So.2d at 875. Accordingly, the trial court’s determination that Imperial’s liability policy extended coverage to Thomas is manifestly erroneous.

Due to this finding, we deem it unnecessary to address Imperial’s remaining assignment of error.

DECREE

For the above reasons, the judgment of the trial court is reversed insofar as it found the appellant, Imperial Fire & Casualty Insurance Company, provided coverage for the plaintiffs’ damage. Accordingly, the claim against Imperial Fire & Casualty Insurance Company is dismissed with prejudice. Costs of this proceeding are assigned to the plaintiffs-appellees, Charles Slain, Belinda Slain, and Magnolia Washington.

REVERSED AND DISMISSED IN PART. RENDERED.

      . One of the plaintiffs was not present for trial; therefore, his claim was dismissed.

      . The trial court held that White was not negligent. Thomas "could not be served at the address provided and, therefore, was not made a party to this litigation.”

      . Prior to the lodging of the record in this court, Safeway Insurance Company settled with the plaintiffs.

      . The issues of liability and medical causation have not been appealed..

      . White only knew Thomas by his first name, Carnell.