author: PARRO, J.

text:
    Jeffrey Wayne CORKERN v. T.K. VALVE and I.T.T. Specialty Risk.
    No. 2004 CA 2293.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.

      Brenda Braud, Braud & Braud, Hammond, for Plaintiff-Appellant Janice R. Cockern, as tutrix for Jordan and Jamie Corkern.
    Robert J. May, Metairie, for Defendants-Appellees T.K. Valve & Manufacturing, Inc. and I.T.T. Hartford.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

| gThe deceased employee’s ex-spouse appeals from a summary judgment dismissing claims for death benefits that she filed on behalf of her minor children after the death by suicide of their father, who had been receiving workers’ compensation disability benefits at the time of his death. For the following reasons, the judgment of the workers’ compensation judge is reversed, and this matter is remanded.

Factual and Procedural Background

Jeffrey W. Corkern (Corkern) sustained an injury to his back on July 16, 1987, during the course and scope of his employment for T.K. Valve & Manufacturing, Inc. (T.K. Valve). As a result of this injury, Corkern underwent multiple surgical procedures on his back. However, he never obtained relief from chronic pain and was never able to return to gainful employment. In light of his disability, Corkern received workers’ compensation permanent total disability benefits from T.K. Valve and its workers’ compensation insurer, I.T.T. Hartford (I.T.T.).

On December 5, 2001, Corkern died as a result of a self-inflicted gunshot wound to the head. Subsequently, Janice R. Cor-kern, Corkern’s ex-spouse, as the natural tutrix of her two minor children, Jordan and Jamie, filed a disputed claim .for compensation against T.K. Valve and I.T.T. In her disputed claim form, Ms. Corkern alleged that Corkern’s death resulted from the injury he sustained at work on July 16, 1987. Accordingly, she asserted a claim for death benefits. In their answer, T.K. Valve and I.T.T. denied that Corkern’s death was caused by or related to the injury sustained in his July 16, 1987 accident. Eventually, T.K. Valve and I.T.T. filed a motion for summary judgment, urging that Ms. Corkern would not be able to prove that Corkern had a work-related mental injury, as such injury had not been diagnosed by a licensed | apsychiatrist or psychologist as required by LSA-R.S. 23:1021(7)(d).

In an effort to defeat T.K. Valve’s and I.T.T.’s motion, Ms. Corkern obtained the services of Dr. James B. Denney, a board-certified psychiatrist and forensic psychiatrist, to prove that Corkern’s suicide was causally related to the physical injury sustained on July 16, 1987. Dr. Denney’s forensic diagnosis was that Corkern was suffering from a mental impairment that developed as a result of debilitating pain causally related solely to his original workplace injury. He reached this opinion after reviewing the medical records of Dr. David Gaudin, Corkern’s treating physician, regarding the clinical condition, diagnosis, and treatment of Corkern following his job-related injury. In a preliminary evaluation report dated May 6, 2004, Dr. Denney’s opinions are summarized as follows:

Corkern received multiple surgeries for his job-related back injury, frequently described as a persistent radiculopathy. As a result of his “failed low back surgery syndrome” and subsequent persistent radiculopathy, Corkern underwent multiple attempts at palliative treatment, which were unsuccessful.
Corkern’s treatment with opiate analgesics was unsuccessful.
In spite of concerns of possible opiate analgesic abuse, the data supporting this is at best marginal, and Corkern received no substance abuse evaluation or intervention. Corkern was neither evaluated nor treated in an in-patient pain management clinic, as would have been most appropriate. In all probability, Corkern was the victim of a pseudo-addiction.
As a result of his injuries, chronic/persistent pain, Corkern became very depressed and anxious. During the course of treating Corkern, Dr. Gaudin noted a diagnosis of depression and anxiety.
With the data available, his opinion with a reasonable medical certainty was that Corkern’s suicide was caused by the depression and hopelessness he suffered as a direct result of his unremitting, and unsuccessfully treated, chronic pain.
Corkern’s DSM-IV-TR diagnoses related to his eventual suicide are:
pain disorder with psychological factors and a general medical condition; Rmajor depressive disorder v depression NOS;
sleep disorder due to chronic pain; occupational problem (V62.2).

Based on Dr. Denney’s preliminary evaluation report, Ms.' Corkern submitted that genuine issues of material fact remained as to whether Dr. Denney qualified as an expert, whether Dr. Denney’s opinion regarding Corkern’s drug dependency was reliable, whether Corkern had been dependent on Oxycontin, whether any such dependency was causally related to his original workplace injury, whether depression was a side-effect of Oxycontin, whether Corkern’s depression was caused by Oxycontin use, and whether Corkern’s pain syndrome and dependency on Oxycontin led to his suicide.

In response to Ms. Corkern’s opposition, T.K. Valve and I.T.T. urged that summary judgment was appropriate in this case, citing this court’s opinion in Bethley v. Keller Constr., 01-1085 (La.App. 1st Cir.12/20/02), 836 So.2d 397, writ denied, 03-0228 (La.4/21/03), 841 So.2d 792. T.K. Valve and I.T.T. argued that the Bethley case established that a psychological autopsy is unreliable when offered to show why a person committed suicide and should be excluded when used to prove that a suicide death was caused by depression related to a job accident. They further urged that a forensic psychiatric opinion based solely on á review of medical records was insufficient to satisfy the statutory requirement that the mental injury be diagnosed by a licensed psychiatrist or psychologist. See LSA-R.S. 23:1021(7)(d).

During the hearing on this matter, the workers’ compensation judge (WCJ) expressed concern about the fact that there had been no diagnosis of a mental injury as required by LSA-R.S. 23:1021(7)(d) prior to Corkern’s suicide. In the absence of a preceding diagnosis of a mental injury, the WCJ found that an essential element of proof was lacking. The WCJ further remarked that a post-death diagnosis by a forensic psychiatrist is insufficient to satisfy the statutory requirements of paragraph (7)(d). Based on these findings, the WCJ ruled that summary judgment was appropriate, apparently without examining the content of Dr. Denney’s preliminary evaluation report and the medical records on which he relied. Relying on the arguments made by the parties and the Bethley case, the WCJ granted the motion for summary judgment and dismissed Ms. Corkern’s claims. Ms. Corkern appealed, contending the WCJ erred in granting a summary judgment 'based on the Bethley case without first conducting a hearing to determine the reliability of Dr. Denney’s diagnosis as required by Daubert v. Merrell Dow Pharm., Inc.,. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Discussion

When faced with a proffer of expert scientific testimony, the trial judge must determine at the outset whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 234; Daubert, 113 S.Ct. at 2796; see LSA-C.E. art. 702. In fulfilling this gatekeeping role, the trial judge must ensure that the proffered evidence is not only relevant, but reliable, by utilizing a flexible approach requiring that consideration be given to factors such as whether the technique can be (and has been) tested, whether it has been subjected to peer review and publication, whether there is a known or potential rate of error, and whether the relevant scientific/expert community generally accepts the technique. Daubert, 113 S.Ct. at 2796-97; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-50, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). Each of these factors may or may not be relevant to the particular inquiry. Kumho, 119 S.Ct. at 1175. The Daubert standards should be considered by the trial judge in deciding whether to admit expert opinion evidence in support of or in opposition to a motion for summary judgment. Independent Fire, 755 So.2d at 235-36.

In Bethley, the WCJ excluded the psychological autopsy after conducting a full Daubert analysis relative to its admissibility. This court noted the WCJ’s comments in that case that although the psychological autopsy is relatively reliable to show whether a person had a mental or substance abuse disorder or whether an incident was a | (¡suicide or a homicide, he questioned its reliability to prove that a suicide was caused by a specific work-related accident. The WCJ opined in Bethley that a psychological autopsy was unreliable in revealing the cause of a mental disorder and why a person decided to take his or her own life at a given point in time. After determining that the Daubert/Kumho requirements for admissibility of an expert’s opinion had not been satisfied, the expert testimony was excluded by the WCJ. Bethley, 836 So.2d at 402.

On review of the judgment by the WCJ in Bethley, this court observed that a trial judge has broad discretion in determining whether Daubert's specific factors are reasonable measures of reliability in a particular case. Bethley, 836 So.2d at 403. Ultimately, the trial judge’s decision to admit or exclude expert testimony is subject to the abuse of discretion standard of review. Kumho, 119 S.Ct. at 1176. In ruling on the admissibility of the expert’s testimony in Bethley, this court did not simply accept the WCJ’s broad pronouncement that a psychological autopsy is unreliable in revealing the cause of a mental disorder or why a person decided to take his or her own life at a given point in time. Nor did this court interpret LSA-R.S. 23:1021(7)(d) as mandating a pre-suicide diagnosis of a mental injury or illness to support Ms. Bethley’s claim for death benefits. Instead, this court considered the following factors in determining whether there had been an abuse of discretion in the WCJ’s ruling on the admissibility of the psychological autopsy: (1) whether the expert had ever met or interviewed the deceased, (2) the source of the information on which the expert relied, (3) the reliability of such source, (4) whether such information was corroborated by information from other sources, and (5) the reliability of the corroborative evidence. See Bethley, 836 So.2d at 403.

In this case, the WCJ did not conduct a Daubert analysis of any kind. The WCJ’s misinterpretation of Bethley resulted in her failing to consider any of the requisite reliability factors to determine the admissibility of Dr. Denney’s diagnosis, as mandated by Daubert and Independent Fire. We conclude that the exclusion of the evidence without an evaluation of the relevant reliability factors constituted legal error. Such an analysis is crucial to determining the admissibility of Dr. Denney’s post-death diagnosis in this case. Accordingly, we conclude that summary judgment was improperly granted in this ease.

Decree

For the foregoing reasons, the judgment is reversed, and this matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to T.K. Valve & Manufacturing, Inc. and I.T.T. Hartford.

REVERSED AND REMANDED.

      . The workers’ compensation judge in this case was Elizabeth A. Warren of District 6.

      . In the disputed claim form, the claimant was incorrectly identified as the deceased, and I.T.T. Hartford was incorrectly identified • as I.T.T. Specialty Risk.

      . At the time of the accident, the jurisprudence interpreted the then-applicable paragraph (7) of Section 1021 as covering a physical-mental injury. See Sparks v. Tulane Medical Center Hospital and Clinic, 546 So.2d 138, 143 (La.1989). Although LSA-R.S. 23:102 l(7)(d) was not enacted until after Corkern’s 1987 accident, this provision, as well as the others in this paragraph pertaining to the burden of proof, apply retroactively as they are procedural in nature. See Creed v. Avondale Industries, Inc., 608 So.2d 226, 229 (La.App. 5th Cir.1992); McKnight v. General Motors Corporation, 32,629 (La.App. 2nd Cir. 1/26/00), 750 So.2d 454, 458, writ not considered, 00-0675 (La.3/17/00), 756 So.2d 316; cf. Bryant v. Giani Investment Company, 626 So.2d 390, 392 n. 1 (La.App. 4th Cir. 1993), writ denied, 94-0089 (La.3/18/94), 634 So.2d 852. Paragraph (7) of Section 1021 was redesignated as paragraph (8) of Section 1021 in 2004 pursuant to the statutory revision authority of the Louisiana State Law Institute so that the paragraphs would appear alphabetically. However, we will refer to LSA-R.S. 23:1021(7)(d) as the applicable law in this opinion.

      . Louisiana has adopted the Daubert standards for admissibility of expert opinion evidence. State v. Foret, 628 So.2d 1116, 1122-23 (La.1993); see Independent Fire, 755 So.2d at 234.

      . Paragraph (7)(d) required a diagnosis of a mental injury or illness by a licensed psychiatrist or psychologist. The statute did not mandate that such a diagnosis be made prior to an employee's death. Thus, we conclude that paragraph (7)(d) does not automatically preclude the use of a diagnosis of a mental injury or illness made after the death of the employee.


source: Caselaw Access Project

license: Public Domain

text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION v. Conrad FREY IV, d/b/a CF Trucking.
    No. 2004 CA 2517.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.
    Writ Denied June 23, 2006.
    W. Michael Stemmans, M. Todd Alley, Stemmans & Alley, Baton Rouge, for Plaintiff-Appellee Louisiana Workers’ Compensation Corporation.
    Andrew C. Partee, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, for Defendant-Appellant Conrad Frey IV, d/b/a CF Trucking.
    Before: PARRO, KUHN, PETTIGREW, MCDONALD, and HUGHES, JJ.
   PARRO, J.

Conrad Frey IV, d/b/a CF Trucking, appeals a judgment finding it owes the Louisiana Workers’ Compensation Corporation $23,940.57 in unpaid premiums for a workers’ compensation insurance policy covering the period from January 27,1999, to January 27, 2000. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Conrad Frey IV, d/b/a CF Trucking (CF) is engaged in the trucking business using independent contractors to drive its trucks. CF purchased a continuous annual workers’ compensation insurance policy from the Louisiana Workers’ Compensation Corporation (LWCC) that commenced January 27, 1997. For the first two years, LWCC charged CF an annual premium approximating $1000 per year. During the third year of the policy, CF’s insurance agent sent notarized statements to LWCC in which four persons who had begun driving for CF verified that they were independent contractors who chose to decline workers’ compensation coverage. In May 1999, an LWCC underwriter advised CF’s insurance agent in a faxed memorandum that in order to be excluded from coverage under the CF policy, each driver must be covered under its own workers’ compensation policy. In response to this memorandum, CF’s drivers obtained individual workers’ compensation policies from LWCC. Each of them paid LWCC a $150 deposit and an annual premium of $750 for individual policies, but each of them also excluded himself, as owner, from coverage under these policies under a “partners, officers and others exclusion endorsement,” pursuant to LSA-R.S. 23:1035(A).

During an audit of the CF policy on March 15, 2000, LWCC noticed that CF’s drivers had not been carrying workers’ compensation insurance on themselves. The audit report included individual notations concerning five of the six drivers, stating:

This contract driver has a policy with LWCC ... but he is excluded from coverage on his policy. He is not an owner/operator, he drives [CF’s] trucks.

|sThe auditor’s notes concluded, “This insured appears to have more exposure [than] they are currently paying on.” Based on this audit, LWCC re-calculated CF’s premium for the previous policy year and concluded that, based on remuneration paid to the drivers during 1999, an additional premium in the amount of $23,940.57 was due for coverage of six drivers for the policy period January 27, 1999, through January 27, 2000. After CF refused to pay the additional amount, LWCC can-celled the policy as of May 25, 2000, and filed this suit to collect the additional premium.

CF claimed it had paid all the premiums owed under its policy. In the alternative, CF stated it had relied on LWCC’s representations to its detriment, and should not be required to pay the additional premium for the policy year at issue. At the trial, the parties stipulated to many of the facts and submitted documents in support of their claims, and LWCC presented the testimony of two of its employees who had been involved in the CF audit,and collection efforts. Following the trial, the court took the matter under advisement and accepted post-trial memoranda. On July 9, 2004, the court ruled in favor of LWCC, ordering CF to pay $23,940.57, plus legal interest from date of judicial demand and all court costs. ■ CF’s motion for a new trial was denied, after which CF, suspen-sively appealed the judgment..

DISCUSSION

This case presents an interesting, if somewhat ironic, situation. Based solely on the documents in the record, the following facts can be adduced. LWCC issued a policy in 1997 to an individual, Conrad Frey IV, which provided workers’ compensation insurance coverage for “all employees and drivers.” The policy provision regarding premiums stated the, following, in pertinent part:

Premium for each work classification is determined by multiplying a rate times a premium basis. Remuneration is the most common premium basis. The premium basis includes payroll and all other remuneration paid or payable during the policy period for the services of:
1) all your officers and employees engaged in work covered by this policy; and
2) all other persons engaged in work that could make us liable under Part One (Workers Compensation Insurance) of this policy.... This paragraph 2 will not apply if you give us proof that the ^employers of these persons lawfully secured their workers compensation obligation.

The premium was based on an estimated annual remuneration of $2,500; a later audit showed the actual payroll for 1997 was $2,797.69 and for 1998 was $8,764.95, and premium adjustments were made and paid to account for the minimal difference.

Endorsements to the policy show that effective April 7, 1999, the narhe of the insured was changed to “Conrad Frey IV dba CF Trucking,” and CF Trucking was added as an insured under the policy. On April 14,1999, CF’s insurance agent sent a letter to LWCC concerning the CF policy, enclosing signed and notarized statements from four drivers who said they were independent contractors and were choosing to decline workers’ compensation coverage. LWCC’s senior underwriting service representative responded to this request, advising that:

In response to your request to exclude the insured’s drivers under the captioned policy, please be advised that the drivers must be covered under their own workers’ compensation policy in order to be excluded from this policy. The law does not allow them to waivé the rights of their legal dependents in case of injury or death.

Four of the men driving for CF obtained workers’ compensation policies from LWCC effective August 4, 1999; a fifth driver purchased a policy in November 1999. LWCC received the minimum annual premium of $750 and a $150 deposit for each policy. The applications attached to the policies showed each was an individual business owner with no employees and no estimated annual payroll. Each policy also contained an endorsement excluding the insured owner from coverage under the policy and a “Non-Election Notice” stating that:

In accordance with Louisiana Revised Statutes, Title 23, Section 1035, I(we) hereby elect to exclude myself (ourselves) from coverage under the captioned policy and not be subject to the provisions of the Louisiana Workers’ Compensation Act while employed with the above named insured.

| nAt the same time that these policies were purchased by CF’s drivers, Conrad Frey IV executed a similar endorsement to the CF policy, whereby he elected to exclude himself from its coverage.

Therefore, by the end of 1999, five persons were paying LWCC premiums for workers’ compensation policies that provided absolutely no coverage to anyone. This fact is obvious from the five drivers’ policy applications and policy documents. If LWCC had not noticed this when it issued the policies, it clearly became cognizant of the situation when it audited the CF policy in March of 2000. Based on this new awareness that none of the drivers were covered under any of their policies, LWCC charged an additional premium to CF, ostensibly for exposure attributable to its drivers during the preceding year, even though no one had made a claim under the policy and five of the persons who might conceivably have made such a claim had opted out of coverage pursuant to LSA-R.S. 23:1035(A).

Prior to an amendment in 2001, that provision stated, in pertinent part:

The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his own trade, business, or occupation, or in the course of his employer’s trade, business, or occupation, except that ... a sole proprietor with respect to such sole proprietorship may by written agreement elect not to be covered by the provisions of this Chapter. Such election shall not be limited, but shall apply to all trades, businesses, or occupations conducted by said corporation, partnership, limited liability company, or sole proprietorship. Such an election shall be binding upon the employing corporation, partnership, limited liability company, and sole proprietor and the widow, relatives, personal representative, heirs, or dependents of the officer, partner, member, or sole proprietor so electing. No salary or compensation received by any such bona fide corporate officer, partner, member, or sole proprietor so electing shall be used in computing the premium rate for workers’ compensation insurance.

A careful reading of this statute demonstrates several fallacies in the legal position taken by LWCC in responding to CF’s request to exclude its drivers from coverage under its policy. First, LSA-R.S. 23:1035(A) very clearly does allow a sole proprietor to elect not to be covered by the provisions of workers’ compensation law | fiWhen conducting the business of the sole proprietorship. And under the clear wording of the statute, such an election is “binding upon the ... sole proprietor and the widow, relatives, personal representative, heirs, or dependents of the ... sole proprietor so electing.” Therefore, contrary to the LWCC advisory, the law does “allow them to waive the rights of their legal dependents in case of injury or death.” Second, the statute does not specify with whom or how such a “written agreement” must be made in order to effectuate the election. In another case involving a sole proprietor’s election not to be covered under an LWCC policy, Pierce v. Tom Fullilove Const, Co., 39,349 (La. App. 2nd Cir.1/26/05), 892 So.2d 757, the court noted that under the applicable statutes:

[T]he election not to be covered by the provisions of the chapter may be made by “written agreement.” The statutes do not specify with whom the sole proprietor may make this agreement. The principal contractor argues that the sole proprietor’s election not to be covered by his compensation insurer is such an agreement. Under that interpretation, the written agreement would be between the sole proprietor and his insurer. Another interpretation would be that the statute contemplates that the written agreement would be between the sole proprietor and the principal contractor. We conclude that the language in both statutes is sufficiently broad to encompass both interpretations; the sole proprietor may make the agreement with his own insurer or with the principal contractor.

Pierce, 892 So.2d at 761-62. Therefore, the statements that were written on CF’s stationery, signed by each of CF’s drivers as they began providing services to CF. and notarized, were sufficient to effectuate the election between themselves and CF, the principal contractor. When it received these statements, LWCC was on notice that each of the drivers had opted out of coverage under all the workers’ compensation laws.

The statute clearly states that such an election removes the sole proprietor making it from coverage under “this Chapter.” As the Pierce court explained,

When a sole proprietor elects not to cover himself under his compensation insurance policy, he excludes himself from the benefits of the workers’ compensation laws. An election to opt-out of insurance coverage is, thus, an election to opt-out from the provisions of the compensation Act.

Pierce, 892 So.2d at 764. Upon receiving the signed and notarized written agreements, LWCC was apprised that it had and would have no exposure under the CF policy for workers’ compensation payments to these drivers. Therefore, applying the language of LWCC’s policy, these drivers were not “persons engaged in work that could make us liable” for workers’ compensation payments, and premiums could not be based on remuneration paid to them.

In its assignments of error, CF urges legal error on the part of the district court in several particulars, including its failure to recognize that LWCC’s claim of potential liability for injury claims under CF’s policy was contrary to the explicit language of LSA-R.S. 23:1035(A). Based on the preceding analysis, we agree. Because there never was any exposure to LWCC for claims by these five drivers under the policy it had issued to CF, there was no justification for the additional premium charged for the period of January 27,1999, through January 27, 2000, and the trial court’s failure to recognize this was legal error.

There is no evidence in the record to indicate that the sixth driver made such an election. As previously noted, the LWCC audit showed this driver was paid only $2,255 during the 1999 policy year. Based on the premium calculation shown in the policy of $26.19 per $100 of remuneration, a premium of $590.58 was payable for this driver. As this is less than the $750 per year minimum premium, there is no additional premium due for this driver.

CONCLUSION

For the foregoing reasons, the judgment is reversed. All costs of this appeal are assessed to LWCC.

HUGHES, J., dissents.

REVERSED.

      . The four initial drivers purchased their policies in August 1999. It appears that an additional person began driving later in the year, as he did not purchase his policy until November 1999. The record does not include a separate policy for a sixth driver, who was paid only $2,250 during the year.

      . The wording varied slightly from one driver to another, but the basic information was the same for each of the five drivers who had purchased LWCC policies.

      . This statement is not legally correct in several respects, which will be addressed later in this opinion.

      .CF's brief to this court states that CF paid these premiums for its drivers; however, the record has no evidence of the source of the premium payments.

      .The only person who might still have been covered under the CF policy was the sixth driver who did not have a separate policy and was paid $2,255 during 1999.

        .See 2001 La. Acts, No. 1014, § 1.

      . The other statute referenced was LSA-R.S. 23:1063(B), which was added by a later amendment, but has no direct bearing on the issues we are addressing. See 2001 La. Acts, No. 1014, § 1.

      . This fact distinguishes this case from the cases cited to this court by LWCC, in which nothing was provided to the insurers to show that the independent contractor truck drivers could not expose LWCC and the principal contractor to additional workers’ compensation liability. Compare LWCC v. N/C Materials, Inc., 02-2127 (La.App. 1st Cir.6/27/03), 858 So.2d 534, writ denied, 03-2134 (La. 11/7/03), 857 So.2d 504; Fleniken v. Entergy Corp., 00-1824 (La.App. 1st Cir.2/16/01), 780 So.2d 1175, writs denied, 01-1268, 01-1305, 01-1317 (La.6/15/01), 793 So.2d 1250, 1253, and 1254.

      . We pretermit discussion of CF’s remaining assignments of error.

      . That audit also accepted the exclusion of Conrad Frey IV from coverage under the CF policy, and made no premium calculations based on any remuneration he might have received from the company.


text:
    Marie H. MANNO and Joseph R. Manno v. Hilario M. GUTIERREZ, Cristobal Zavala, Illinois National Insurance Company, Matthew D. Cieslak, Michael B. Cieslak, State Farm Mutual Automobile Insurance Company, John C. Zeringue III, D.L. Peterson Trust and Liberty Mutual Insurance Company.
    No. 2005 CA 0476.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.

      Faye D. Morrison, Taylor, Wellons, Politz & Duhe, Baton Rouge, for Plaintiffs-Appellants Marie and Joseph Manno.
    Michael P. Colvin, Judson G. Banks, Hannah, Colvin & Pipes, Baton Rouge, for Defendanb-Appellant State Farm Mutual Automobile Ins. Co.
    Keith S. Giardina, Baton Rouge, for Defendants-Appellees John C. Zeringue III, D.L. Peterson Trust, and Liberty Mutual Ins. Co.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

lain this case arising out of an automobile/pedestrian accident, two parties appeal the trial court’s granting of a motion for summary judgment in favor of three other parties, dismissing them from the litigation. Based on our de novo review of the record, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of two successive incidents on 1-10 between Lafayette and Baton Rouge. It was a rainy morning with intermittent heavy downpours and poor visibility. Dr. Marie H. Manno was driving her pickup truck westbound toward Lafayette, when a truck towing another truck jackknifed and blocked both westbound travel lanes directly ahead of her. The truck that jackknifed was owned by Cristobal Zavala, was being driven by Hilario M. Gutierrez, and was insured by Illinois National Insurance Co. To avoid hitting the jackknifed trucks, Dr. Manno veered left into the median, slid across it and both eastbound lanes, and came to rest on the grass beyond the paved shoulder of eastbound I — 10 facing oncoming traffic. Dr. Manno then got out of her truck and walked behind it along the paved shoulder; some personal items had fallen out of the truck bed and were strewn across the median and highway. She had just retrieved her husband’s jacket and was standing on the shoulder when she was struck by another vehicle.

The car that hit Dr. Manno was owned by the D.L. Peterson Trust (the Peterson Trust), operated by John C. Zeringue III, and insured by Liberty Mutual Insurance Company (Liberty Mutual). Realizing there was some kind of problem on the roadway ahead of him, Zeringue had slowed and eventually stopped alongside another vehicle (the Schultz vehicle) that was stopped or nearly stopped in the left or inside eastbound lane. Matthew Cies-lak, a following motorist, was traveling near the speed limit in the eastbound left lane. When Cieslak saw cars ahead of him blocking both lanes of the highway, he braked, skidded or hydroplaned on the wet surface, and moved to the fright. Cieslak struck Zeringue’s car, pushing it first into the Schultz vehicle and then into Dr. Man-no. Cieslak’s car was insured by State Farm Mutual Automobile Insurance Company.

Dr. Manno and her husband, Joseph R. Manno, sued all the above-described parties except Schultz, claiming their negligence combined to cause her injuries and their damages. Zeringue, the Peterson Trust, and Liberty Mutual (the Zeringue defendants) filed a motion for summary judgment, alleging Zeringue owed no duty to protect Dr. Manno from the negligence of other parties and that he was not himself negligent. Zeringue claimed in his deposition that he saw brake lights ahead of him and a vehicle facing him on the right shoulder, so he slowed as he approached the site. When he got near a vehicle that was stopped in the left lane, he saw an elderly woman walking on the right shoulder toward the roadway ahead of him. Zeringue said he stopped alongside the other vehicle in order to avoid hitting her in the event she stepped into the eastbound lane. He did not move onto the shoulder because' of the woman’s position immediately ahead of him and to his right. Ten to fifteen seconds after he stopped, before he could fully assess the situation or even put on his emergency flashers, Zeringue saw a fast-approaching vehicle in his rear-view mirror. Immediately thereafter, Cieslak hit the left rear of Ze-ringue’s vehicle. As a result, Zeringue’s car spun and “t-boned” the vehicle on his left, and then was shoved forward into the woman, who ended up on the right eastbound lane of 1-10 after the impact.

After reviewing the evidence and arguments, the court agreed with the Zeringue defendants and rendered summary judgment in their favor, dismissing them from the lawsuit. The court designated the judgment as final and immediately appeal-able, finding there was no just cause for delay, in accordance with LSA-C.C.P. art. 1915. The Mannos and State Farm appealed, contending summary judgment was not 14appropriate, because genuine issues of material fact remain as to Ze-ringue’s fault or negligence, such that reasonable jurors could find that Zeringue was at least partly at fault in causing Dr. Manno’s injuries and resultant damages.

APPLICABLE LAW

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Washauer v. J.C. Penney Co., Inc., 03-0642 (La.App. 1st Cir.4/21/04), 879 So.2d 195, 197. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Davis v. Specialty Diving, Inc., 98-0458, 98-0459 (La.App. 1st Cir.4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or Bher conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 275-76. Duty is a question of law. The inquiry is whether a plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his or her claim. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La.App. 1st Cir.5/9/03), 849 So.2d 622, 627, writ denied, 03-1579 (La.10/3/03), 855 So.2d 315. When no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Boland v. West Feliciana Parish Police Jury, OS-1297 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 816, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231. However, breach of duty, cause in fact, and actual damages are all factual issues. Snearl v. Mercer, 99-1738 (La.App. 1st Cir.2/16/01), 780 So.2d 563, 574, writs denied, 01-1319 (La.6/22/01), 794 So.2d 800 and 01-1320 (La.6/22/01), 794 So.2d 801. Where there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident. Whether the defendant’s conduct was a substantial factor in bringing about the harm, and thus, a cause in fact of the injuries, is a factual question to be determined by the fact finder. Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89, 94.

ANALYSIS

We note that all parties acknowledge that Zeringue had a duty to exercise due care to avoid colliding with any pedestrian upon any roadway and to exercise proper precautions upon observing any confused person upon a highway. See LSA-R.S. 32:214. In addition, Dr. Manno and State Farm suggest that Zeringue also had a duty to avoid blocking the interstate highway, particularly when the road conditions and visibility were poor. The law provides that every motorist has a duty to maintain a | (¡proper lookout for hazards which, by the use of ordinary care and observation, he should be able to see in time to avoid. Mack v. Transport Ins. Co., 577 So.2d 112, 118 (La.App. 1st Cir.1991). Therefore, it appears that the legal issue as to whether Zeringue had any duty under these circumstances has already been answered in the affirmative, and the only questions left for determination are factual issues, such as whether he breached those duties and whether his actions were a substantial factor in bringing about the harm, that are inappropriate for summary judgment.

However, the Zeringue defendants argue for application of the doctrine of “sudden emergency,” whereby one who finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence. See Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385, 389 (1972); Barbay v. Aetna Cas. & Sur. Co., 454 So.2d 181, 184 (La.App. 1st Cir.), writ denied, 457 So.2d 1181 (La.1984). The sudden emergency doctrine is not limited to situations where the person claiming the benefit of the defense is the person in immediate peril. Rather, it is the unanticipated hazard which is the foundation for invoking the sudden emergency doctrine. Armstrong v. Fireman’s Fund Ins. Co., 558 So.2d 646, 648 (La.App. 1st Cir.), writ denied, 560 So.2d 30 (La.1990). The rationale for the doctrine is the principle that a person confronted with a sudden emergency, who does not have sufficient time to weigh and consider the best means to avoid an impending danger, should not be held to the same standard of control, care, and caution as someone who has ample opportunity to fully exercise judgment and reason. This rationale applies equally, regardless of whether the person in imminent peril is the defendant claiming the defense or another person who the defendant recognizes to be in a position of imminent peril. Whiddon v. Hutchinson, 94-2000 (La.App. 1st Cir.2/23/96), 668 So.2d 1368,1374, units denied, 96-0731 and 0775 (La.5/10/96), 672 So.2d 923.

|7We note first that the application of the sudden emergency doctrine requires factual determinations concerning whether the driver was confronted with imminent peril and whether there was sufficient time to consider and weigh the circumstances in order to take action to avoid an impending danger. While we cannot say that it would never be possible to apply the doctrine on a motion for summary judgment, our research has disclosed no cases from this court that have so applied it, and by the nature of the sudden emergency doctrine, it would seem rarely appropriate on a motion for summary judgment.

Yet, as the Zeringue defendants have pointed out, there are cases from other courts affirming the granting of a motion for summary judgment, because there were no genuine issues of material fact and the defendant was faced with a situation that could only be described as a sudden emergency, such that there was no possible finding of liability for the accident. See Lee v. Davis, 03-997 (La.App. 5th Cir.12/30/03), 864 So.2d 780; Marigny v. Allstate Ins. Co., 95-0952 (La.App. 4th Cir.1/31/96), 667 So.2d 1229, unit denied, 96-0693 (La.4/26/96), 672 So.2d 910. In the Lee case, while driving about 25 miles per hour on a two-lane road at night, in a wooded area with no street lamps, the driver was suddenly confronted with a bicycle with no headlamp being driven toward him in the middle of the road. For some reason, the cyclist swerved directly into his path, and the driver’s only course of action was to swerve hard to the right, causing his vehicle to run into a ditch and injure one of his passengers. The driver’s and the passengers’ affidavits confirmed all of these facts, and the court’s conclusion that there could not be any finding of actionable negligence under these circumstances was affirmed on appeal. In the Marigny case, which also involved injuries to a passenger, the driver of the car in which the passenger was riding was driving the speed limit a reasonable distance behind a vehicle that swerved to avoid a car being driven the wrong way in its traffic lane. The car that swerved hit another vehicle to its right, leaving nowhere for the following driver to go and resulting in a head-on collision that injured the passenger. In Marigny, both parties agreed as to|saIl the applicable facts of the situation, and the appellate court affirmed the court’s finding that summary judgment was appropriate.

In contrast to these cases, the Mannos and State Farm claim that in the situation we are reviewing, Zeringue had plenty of opportunity to assess the situation as he approached the site and was not faced with circumstances that could only be considered a “sudden emergency.” Zeringue said in his deposition that he saw brake lights ahead of him from as much as a mile away. After he saw Dr. Manno’s truck on the grassy shoulder of the road to his right, he continued another twenty or thirty feet before stopping alongside the Schultz vehicle. Zeringue admitted he did not put on his emergency flashers as he approached the scene and did not move to the shoulder. Eventually, he said he came to a complete stop in the travel portion of the roadway and blocked the right lane, while Schultz, to his left, blocked the left lane. The Mannos and State Farm argue that based on these facts, a reasonable juror could find some fault or negligence on Zeringue’s part, either because the danger was not imminent, because he had sufficient time to assess the situation and take other evasive action, and/or" because the action he took — stopping in the right lane when a car to his left was already stopped in that lane, thus completely blocking the interstate highway — was a breach of his duty to other motorists and a causative factor in the accident and injuries to Dr. Manno.

We agree. The four depositions in the record have many differences in the factual descriptions of the incident from the four persons most directly involved: Dr. Manno, Cieslak, Zeringue, and Schultz. For instance, Cieslak claimed he saw a woman in the median as he approached, which is why he tried to move to the right when he saw the two cars blocking the lanes ahead of him. Cieslak had a passenger, but there was no affidavit or deposition from her to confirm his account. Schultz claimed he was initially in the right lane, shifted to the left lane when he saw a pickup truck off to the right, and tried to stop when he saw a garbage bag in the left lane ahead of him and also saw a woman on the right shoulder walking toward the roadway. Schultz also said Zeringue was behind him in the left lane and moved to the right lane as he (Schultz) | awas slowing down in the left lane. Zeringue said he saw brake lights ahead of him from almost a mile away, and also said he continued twenty to thirty feet past the stopped pickup truck on the right shoulder before bringing his vehicle to a stop in the right lane. These are factual details that are material to a determination of whether Zeringue had some fault in this accident— and the material facts are not undisputed. Moreover, a reasonable fact finder might conclude that under these facts, there was no “sudden emergency,” so as to insulate Zeringue from liability as a matter of law. Therefore, we find the existence of genuine issues of material fact and conclude the court erred in granting the motion for summary judgment and dismissing Dr. and Mr. Manno’s claims against the Ze-ringue defendants.

CONCLUSION

For the foregoing reasons, we reverse the judgment and remand this case for further proceedings. All costs of this appeal are assessed against the D.L. Peterson Trust, John C. Zeringue III, and Liberty Mutual Insurance Company.

HUGHES and McDONALD, JJ., concur.

REVERSED AND REMANDED.

      . Zeringue’s name is spelled differently in various places in the record; we will use the spelling used by his counsel in briefs to this court.

      . The motion was supported by the depositions of Dr. Manno, Schultz, Zeringue, and Cieslak.

      . The judgment and the order designating the judgment as final indicate the court adopted some written reasons as its own. However, there are no written reasons and it is not clear what reasons the court meant to adopt. Since our review of a summary judgment is de novo, the lack of written reasons does not affect this court’s review of the judgment. Moreover, the judgment was a partial final judgment, pursuant to LSA-C.C.P. art. 1915(A)(1), which does not require such designation by the court.


author: KUHN, J.

text:
    Sandra Lombardo D’ANGELO v. Barry Jude D’ANGELO.
    No. 2005 CA 0553.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.
    See also 901 So.2d 607.

      Mark Alan Jolissaint, Slidell, Counsel for Plaintiff/Appellant Sandra Lombardo D’Angelo.
    Raymond C. Burkart, Jr., New Orleans, Counsel for Defendant/Appellee Barry Jude D’Angelo.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

^¿Plaintiff-appellant, Sandra Lombardo D’Angelo, appeals the trial court’s judgment granting a declinatory exception raising the objection of lis pendens filed by defendant-appellee, Barry Jude D’Angelo. The judgment also transferred and consolidated her lawsuit with a suit previously filed by Barry D’Angelo in the Jefferson Parish district court and denied her request for a stay of the lis pendens proceeding. Barry D’Angelo answered the appeal, requesting damages for frivolous appeal. We affirm in part and reverse in part.

PROCEDURAL BACKGROUND

On March 27, 2003, Barry D’Angelo filed a petition for divorce in Jefferson Parish (the Jefferson Parish suit). His petition requested, among other things, a full and final divorce under La. C.C. art. 103 or, alternatively, under La. C.C. art. 102; partition of the community; use and occupancy of immovable property located in Mississippi; that Sandra D’Angelo be given use and occupancy of immovable property located in Slidell, Louisiana; a finding that he is free from fault in the breakup of the marriage; and permission to remove his personal items from the former matrimonial residence. Sandra D’Angelo filed a declinatory exception raising the objection of improper venue, which was denied by the Jefferson Parish trial court. Sandra D’Angelo appealed that ruling, and the Fifth Circuit Court of Appeal affirmed. See D’Angelo v. D’Angelo, 2004-1233 (La. App. 5th Cir.4/26/05), 901 So.2d 607. On May 27, 2005, the fifth circuit denied Sandra D’Angelo’s application for a rehearing.

Prior to the fifth circuit’s affirmance of the Jefferson Parish trial court’s ruling, Sandra D’Angelo filed a petition for divorce in St. Tammany Parish on April 16, 2004 (the St. Tammany Parish suit). Her petition requested, among Pother things, a divorce; a finding that Barry D’Angelo was at fault in the breakup of the marriage and, therefore, not entitled to spousal support; a finding that she was free from fault in the breakup of the marriage; interim and permanent spousal support; use and possession of immovable property located in Slidell, Louisiana; use and possession of movable community property in her possession; and injunctions prohibiting Barry D’Angelo from harassing her and from alienating and encumbering community property, specifically including his New Orleans Fire Department retirement benefits. By supplemental petition, Sandra D’Angelo requested that the parties’ community be partitioned.

Barry D’Angelo filed declinatory exceptions raising objections of lis pendens and the lack of jurisdiction. The trial court granted the lis pendens exception, ordered that Sandra D’Angelo’s petition be transferred and consolidated with the Jefferson Parish suit, and denied a request to stay the lis pendens proceeding requested by Sandra D’Angelo. The St. Tammany Parish trial court signed a judgment in conformity with its determinations.

Sandra D’Angelo appeals urging that the trial court erred in granting the lis pendens exception for her action for determination of the incidental matters of in-junctive relief, provisional use of community movables, and | Jnterim and permanent spousal support. Barry D’Angelo answered the appeal, requesting damages for frivolous appeal.

DISCUSSION

Louisiana Code of Civil Procedure article 531 addresses suits pending in Louisiana courts and states:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Because Barry D’Angelo has filed a declinatory exception of lis pendens under La. C.C.P. art. 925 as required by Article 531, the question before us is whether Sandra D’Angelo’s action in the St. Tammany Parish suit for a determination of matters incidental to divorce is based “on the same transaction or occurrence” as those actions filed in the Jefferson Parish suit. To answer this question, we must determine whether a judgment in the Jefferson Parish suit will bar — by the doctrine of res judicata — any of actions asserted in the St. Tammany Parish suit. Newman v. Newman, 96-1062, pp. 4-5 (La.App. 1st Cir.3/27/97), 691 So.2d 743, 745.

Louisiana Revised Statute 13:4231 sets forth the doctrine of res judicata and states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1)If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the | ¡^transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

But La. R.S. 13:4232 B provides for exceptions to the general rule of res judicata, stating:

In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

Louisiana Code of Civil Procedure art. 425, which puts the parties on notice that all causes of action arising out of the transaction or subject matter of the litigation must be raised, states:

A. A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.
B. Paragraph A of this Article shall not apply to an action for divorce under Civil Code Article 102 or 103, an action for determination of incidental matters under Civil Code Article 105, an action for contributions to a spouse’s education or training under Civil Code Article 121, and an action for partition of community property and settlement of claims between spouses under R.S. 9:2801.

Under Article 425, a party is not required to assert all actions arising out of the transaction or occurrence if the action is one for determination of matters incidental to divorce, which includes requests for injunctive relief, use and possession of community movables, and spousal support. See Newman, 96-1062 at p. 5, 691 So.2d at 745.

According to La. C.C.P. art. 1061, which addresses compulsory reconventional demands:

|r,A- The defendant in the principal action may assert in a reconventional demand any causes of action which he may have against the plaintiff in the principal action, even if these two parties are domiciled in the same parish and regardless of connexity between the principal and reconventional demands.
B. The defendant in the principal action, except in an action for divorce under Civil Code Article 102 or 103, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.

Under an application of Article 1061 to the facts before us, all actions that Sandra D’Angelo may have arising out of the transactions or occurrences that are the subject matter of the Jefferson Parish suit are not compulsory reconventional demands that she was required to assert in the earlier-filed suit. See Newman, 96-1062 at p. 5, 691 So.2d at 745. Therefore, because Article 425 does not require her to assert in the Jefferson Parish suit the action for determinations of matters incidental to divorce, and Article 1061 does not mandate that she assert all actions arising out of the transactions or occurrences that are the subject matter of the Jefferson suit, as to the action for determination of matters incidental to divorce alleged in the St. Tammany Parish suit not asserted in the Jefferson suit, the exception of lis pendens is inapplicable.

Clearly, Sandra D’Angelo’s request for injunctive relief prohibiting Barry D’Angelo from harassing her was not within the ambit of the facts pled in the Jefferson Parish divorce suit. And a judgment in the Jefferson suit would not be a res-judicata bar to a later-filed action for the injunctive relief. Thus, the St. Tammany Parish trial court erred in granting the exception of lis pendens for the action for determination of the incidental matter of injunctive relief prohibiting Barry D’Angelo from harassing Sandra D’Angelo, and that portion of the judgment is reversed.

|7Barry D’Angelo’s Jefferson Parish petition for divorce expressly requested that the community be partitioned. Therefore, a judgment ordering Sandra D’Angelo’s request for injunctive relief prohibiting Barry D’Angelo from alienating or encumbering movable and immovable property, including any retirement benefits he has with the New Orleans Fire Department, would be barred under the doctrine of res judicata by the earlier-filed Jefferson Parish suit if the property is included in the descriptive lists ordered in conjunction with the partition of the community asserted in the Jefferson Parish suit and to the extent that it was property actually partitioned. See La. R.S. 13:4231 & 4232 B. Accordingly, the St. Tammany Parish trial court correctly granted the lis pendens exception for Sandra D’Angelo’s action for determination of the incidental matter of injunctive relief prohibiting Barry D’Angelo from alienating or encumbering community property.

Likewise, we find that the request for partition of the community asserted in the Jefferson Parish suit necessarily encompasses Sandra D’Angelo’s action for determination of the incidental matter of use and possession of community movables, including the 1997 Camry because this property would be among the items included in the descriptive lists the parties will file. Thus, a final judgment partitioning the community in the Jefferson Parish suit would bar Sandra D’Angelo’s later-filed action for determination of the incidental matter of use and possession of community movables. The St. Tammany Parish trial court correctly included in its grant of the lis pendens exception Sandra D’Angelo’s action for determination of the incidental matter of use and possession of community movables.

Barry D’Angelo’s petition expressly requested a finding that he was free from fault in the break up of the marriage. Specifically, he pled:

| ^Petitioner was a dutiful and faithful husband, never giving defendant any cause whatsoever to breach her marital vows....
Petitioner is free from fault in the breakup of the marriage.

Mindful that a final judgment shall grant the relief to which a party is entitled whether he has demanded such relief in his pleadings and even if he has failed to include a prayer for general or equitable relief, see La. C.C.P. art. 862, and that spousal support is awarded to a party free from fault, see La. C.C. art. Ill, we conclude that the allegations contained in Barry D’Angelo’s petition were sufficient to raise the issue of the parties’ entitlement to spousal support. Although Barry D’Angelo did not expressly pray for a judgment awarding him spousal support, in this case there is no other purpose an allegation of his lack of fault can serve. By alleging facts about fault, the issue of Barry D’Angelo’s entitlement to spousal support is an action included in the Jefferson Parish suit. And because a trial court renders but a single award to that spouse who is entitled to spousal support, a judgment in the Jefferson Parish suit would be a res-judicata bar to Sandra D’Angelo’s later-filed action for a determination of the incidental matter of spousal support. As such, the St. Tammany Parish trial court correctly granted the lis pendens exception on Sandra D’Angelo’s action for spousal support.

Accordingly, insofar as the trial court’s grant of the lis pendens exception for determination of the incidental matter of in-junctive relief prohibiting Barry D’Angelo from harassing Sandra D’Angelo, the St. Tammany Parish trial court erred, and that portion of the judgment is reversed. In all other respects, the St. Tammany Parish trial court correctly granted the lis pendens exception.

Sandra D’Angelo next asserts that the St. Tammany Parish trial court erred when it ordered the St. Tammany Parish suit transferred and | aconsolidated with the Jefferson Parish suit. Under an application of La. C.C.P. art. 531, the trial court was permitted to dismiss the St. Tammany Parish suit as to those actions for which the lis pendens exception is applicable. Because in their pleadings filed in the St. Tammany Parish suit, the parties did not request an order transferring and consolidating it with the Jefferson Parish suit and La. C.C.P. art. 531 only permits dismissal of those actions for which the lis pendens exception applies, the order of transfer and consolidation in the St. Tammany Parish judgment is erroneous and reversed. Thus, all actions except for a determination of the incidental matter of injunctive relief prohibiting Barry D’Angelo from harassing Sandra D’Angelo are dismissed in the St. Tammany Parish suit.

Because Sandra D’Angelo successfully prosecuted her appeal of the grant of lis pendens in part, Barry D’Angelo is not entitled to damages for frivolous appeal. See Juracovich v. St. Anne General Hosp., 2004-1323, p. 6 (La.App. 1st Cir.6/10/05), 916 So.2d 264, 267. Accordingly, his request for relief filed in his answer to the appeal is denied.

DECREE

For these reasons, the St. Tammany Parish trial court judgment is reversed insofar as it grants the lis pendens exception for Sandra D’Angelo’s action for determination of the incidental matter of in-junctive relief prohibiting Barry D’Angelo from harassing her. That portion of the judgment granting the lis pendens exception is otherwise affirmed. The order transferring and consolidating the St. Tammany Parish suit with the Jefferson Parish suit is reversed. All actions except for the action for a determination of the incidental matter of injunctive relief prohibiting Barry D’Angelo from | ^harassing Sandra D’Angelo are dismissed. Appeal costs are assessed one-half to Barry Jude D’Angelo and one-half to Sandra Lombar-do D’Angelo.

AFFIRMED IN PART; REVERSED IN PART. ANSWER DENIED.

      . Sandra D’Angelo requested a stay of the lis pendens proceeding insofar as those actions that duplicated the relief requested by Barry D’Angelo in the Jefferson Parish suit until the ruling denying the exception of venue filed in the Jefferson Parish suit had become final and definitive. The St. Tammany Parish trial court denied her request. Although on appeal, Sandra D'Angelo asserts that the trial court erroneously denied the request for the stay, because the supreme court denied her writ application, see D’Angelo v. D'Angelo, 2005-1659 (La. 1/9/06), 918 So.2d 1051, the venue ruling in the Jefferson Parish denying Sandra D'Angelo's exception of venue is final and definitive, thereby rendering moot her request for a stay in the St. Tammany Parish suit. See Suire v. Lafayette City-Parish Con-sol. Government, 2004-1459, p. 24 (La.4/12/05), 907 So.2d 37, 55 (explaining that an issue is "moot" where "it has been deprived of practical significance and made abstract or purely academic"). Accordingly, the propriety of the St. Tammany Parish trial court’s ruling on the request for a stay is not properly before us.

      . On August 22, 2005, Barry D’Angelo's motion to dismiss Sandra D’Angelo’s suspensive appeal was granted, and it is maintained as a devolutive appeal.


text:
    The HOME DEPOT v. STATE of Louisiana WORKERS’ COMPENSATION SECOND INJURY BOARD.
    No. 2005 CA 0674.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.

      Denis Paul Juge, Metairie, Counsel for Plaintiff/Appellant The Home Depot.
    Matthew R. Richards, Baton Rouge, Counsel for Defendant/Appellee Louisiana Workers’ Compensation Second Injury Board.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

L.This appeal considers a district court judgment affirming the dismissal of plaintiffs claim for reimbursement from the Second Injury Board.

FACTS

Noel Howell was employed as a full-time employee by Home Depot on April 4,1994, in the lumber and roofing department. Howell’s duties included assisting customers and loading purchased supplies. On November 2, 1995, while lifting a hundred-pound bag of sand for a customer, Howell injured his back. He reported the injury to his employer and continued to work, but eventually, his injury required back surgery. On March 27,1997, although Howell was still experiencing pain, he returned to work part-time on light duty.

On August 13, 1999, Howell again injured his back while descending a ladder while in the course and scope of his work. Although he continued to work, Howell could work only irregularly because of pain. Howell’s pain increased, and his last day of employment was August 3, 2001.

Home Depot paid Howell workers’ compensation benefits following both the 1995 and 1999 injuries. On June 23, 2003, Home Depot filed a claim with the Second Injury Fund (the Fund), seeking reimbursement pursuant to La. R.S. 23:1378. The Second Injury Board (the Board) denied the claim finding the claim was not timely filed. Home Depot appealed the Board’s decision to the district court and filed a motion for summary judgment asserting its claim was timely. A hearing to consider Home Depot’s motion for summary judgment was held. At the conclusion of the hearing on the motion for summary judgment, the district court stated, “It’s clear to the court that Home Depot failed to meet the timeliness requirements of LA R.S. 23:1378(B); therefore, the motion for summary |;¿judgment must be denied. And also, I see no reason not to affirm the Board’s ruling at this point and time.” The district court subsequently rendered a judgment denying the motion for summary judgment and a judgment affirming the Board’s decision. Home Depot appeals.

DISCUSSION

When an employee is injured while in the course and scope of employment, an employer or its insurer, generally, must pay compensation benefits to the employee pursuant to La. R.S. 23:1031, et seq. However, to encourage the employment of individuals with preexisting disabilities, the Fund was established. La. R.S. 23:1371, et seq. When an employer knowingly hires or retains in its employment an employee with a preexisting disability and that employee becomes injured while in the course and scope of his latest employment, though an employer must pay compensation benefits to the employee, it can apply to the Fund for reimbursement for benefits paid to the employee. La. R.S. 23:1371; La. R.S. 23:1378.

The procedure for applying for reimbursement is set forth in La. R.S. 23:1378. Initially, notice to the Board by the employer or its insurer is required. The Board may hold hearings to determine if the employer is entitled to reimbursement from the Fund. The Board is to provide written notice of its decision to all parties.

Appellate review of a decision of the Board is governed by La. R.S. 23:1378 E, which provides, in pertinent part:

[T]he decision of the board shall be final; however, an appeal therefrom may be taken by any of the parties within thirty days after the date of the decision of the board.... The appeal shall be to the Nineteenth Judicial District Court, parish of East Baton Rouge. All appeals in all such cases shall be tried de novo.

14Pursuant to express statutory provisions governing the appeal of decisions of the Board, the review by the district court shall be by trial de novo. Black’s Law Dictionary 392 (5th ed.1979) defines the term de novo: “Anew; afresh; a second time.” A de novo trial is defined as “[t]rying a matter anew; the same as if it had not been heard before and as if no decision had been previously rendered.” Id. It is clear the statute contemplates an entire trial, from the beginning, wherein the whole case is retried as if there had been no prior trial. See Pardue v. Stephens, 558 So.2d 1149, 1159 (La.App. 1 Cir.1989).

Under the facts presented herein, we find the district court’s simultaneous consideration of Home Depot’s motion for summary judgment and the merits of Home Depot’s appeal for de novo review, and the subsequent rendition of judgments in this matter, constitutes reversible error. There was no opportunity for a trial anew.

Moreover, La. C.C.P. article 966 D provides:

The court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any event judgment on the motion shall be rendered at least ten days prior to trial.

In Lassere v. State, Department of Health & Hospitals, Office of Public Health, 2000-0306, p. 6 (La.App. 1 Cir. 3/28/01), 808 So.2d 513, 517, this Court stated the time limitation set forth in article 966 D is mandatory. In the instant matter, the judgment of the motion for summary judgment was not rendered at least ten days prior to trial.

CONCLUSION

Accordingly, we reverse the district court’s judgment affirming the Board’s decision, and we remand this matter for further proceedings. Costs 15of this appeal, in the amount of $1,238.62, are assessed against the Second Injury Board.

JUDGMENT REVERSED; REMANDED.


text:
    Lawrence CHAPMAN v. DISTRICT ATTORNEY, East Baton Rouge Parish, et al.
    No. 2005 CA 0577.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.
    Lawrence Chapman, Angola, Plaintiff-Appellant In Proper Person.
    Monisa Thompson, Assistant District Attorney, Baton Rouge, for Defendant-Ap-pellee District Attorney, Parish of East Baton Rouge.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

li>An inmate appeals from a judgment dismissing his application for a writ of mandamus in connection with a request for public records made to the district attorney. For the following reasons, we affirm.

Inmate Lawrence Chapman was serving a felony sentence, which according to the record had become final after his conviction and sentence were affirmed on December 28, 1998. State v. Chapman, 98-0289 (La.App. 1st Cir.12/28/98) (unpublished opinion). Chapman filed an application for a writ of mandamus on August 2, 2004, seeking the issuance of a writ of mandamus causing the district attorney (DA) to provide him with a cost estimate for a copy of the file in his criminal case pursuant to the authority of the Public Records Act, LSA-R.S. 44:1 et seq. Attached to his application for a writ of mandamus was a copy of a letter dated August 19, 2003, to the DA requesting a copy of the DA’s file for use in an application for post conviction relief. He also sought to have the DA ordered to provide him with the requested public records upon payment of the copying charges.

At the contradictory hearing on this matter, the district attorney provided Chapman with a copy of the only document left in his file—a card with limited information concerning the bill number, charge, and other identifying information regarding the record. After taking this matter under advisement, the trial court found that the post-conviction time limitations had clearly run on all claims, with the exception of newly discovered evidence, if any could be found. It observed that the DA’s policy was to keep documents in his office file for three years following the finality of a conviction. In this case, the three-year period would have expired on or about December 28, 2001, just under two years prior to Chapman’s first request for records. Considering the fact that there were no other records available for Chapman to obtain from the DA, the trial court dismissed Chapman’s suit for a writ of mandamus. Chapman appealed.

| a At the time Chapman’s conviction became final, no application for post-conviction relief, including applications which sought an out-of-time appeal, could be considered if it was filed more than three years after the judgment of conviction and sentence had become final under the provisions of LSA-C.Cr.P. art. 914 or 922, unless any of the following applied:

(1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney.
(2) The claim asserted in the petition is based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling.
(3) The application would already be barred by the provisions of this Article, but the application is filed on or before October 1,1991.
(4) The person asserting the claim has been sentenced to death.

LSA-C.Cr.P. art. 930.8. However, nothing in LSA-R.S. 44:31.1 of the Public Records Act prevents an inmate from seeking records related to his conviction simply because more than three years have passed since the conviction has become final. State ex rel. Kenneth Leonard v. State of Louisiana, 96-1889 (La.6/13/97), 695 So.2d 1325. Nonetheless, the legislature in 1997 La. Acts, No. 1269, § 1, effective July 15, 1997, enacted LSA-R.S. 44:36(E)(1) which provides:

The public records of a prosecuting agency, pertaining to a criminal prosecution that results in a conviction, in a manner other than a plea, shall be retained for a period of three years from the date on which a court of appeal affirms the conviction, the Louisiana Supreme Court denies writs, or the Louisiana Supreme Court makes its final ruling on the appeal, whichever occurs last.

The Public Records Act, LSA-R.S. 44:1 et seq., sets out a procedure to guarantee access to various public records and provides for enforcement of this right by seeking the issuance of a writ of mandamus, injunctive relief, or declaratory relief, together with attorney fees, costs, and damages as provided by LSA-R.S. 44:35. See LSA-R.S. 444:35(A). Should the custodian refuse to allow access to the public records, the custodian must defend his action in a contradictory hearing. However, the enforcement provisions of LSA-R.S. 44:35 presuppose the existence of the records in the office of the custodian. Revere v. Taylor, 613 So.2d 738 (La.App. 4th Cir.), writ denied, 615 So.2d 332 (La.1993). In this case, the DA disposed of the records being sought at the conclusion of the three-year retention period provided for in LSA-R.S. 44:36(E)(1). Thus, the records being sought by Chapman were no longer in existence when the request for public records was allegedly made of the DA in 2003.

Under the circumstances of this case, we find that it would be a vain and useless waste of the trial court’s time to issue a writ of mandamus ordering the custodian to provide records or a cost estimate relative to records that he no longer possesses. See Wallace v. Ware, 94-2204 (La.App. 1st Cir.6/23/95), 657 So.2d 734, 737. Mandamus is clearly not appropriate in this case. Accordingly, we are unable to find error in the trial court’s dismissal of Chapman’s application for a writ of mandamus.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Lawrence Chapman.

AFFIRMED.

      . These findings appear in the commissioner's report that was adopted by the trial court as its reasons for judgment.

      . This Article was subsequently amended by 1999 La. Acts, No. 1262, § 1, and 2004 La. Acts, No. 401, § 1.

      .The provisions of LSA-R.S. 44:31.1 permit an inmate access to public records when the request is limited to grounds upon which the inmate may file for post-conviction relief.

      . Notably, there is no evidence that Chapman made a request for public records to the DA during the statutorily mandated retention period.


text:
    William Daniel HAMMONS v. ABB C-E SERVICES, INC.
    No. 2005 CA 0807.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.
    Writ Denied June 23, 2006.

      J. Arthur Smith, III, Baton Rouge, for Plaintiff-Appellant William D. Hammons.
    Kirk L. Landry, Keogh, Cox & Wilson, Baton Rouge, for Defendant-Appellee ABB C-E Services, Inc.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

| ¡William Daniel Hammons appeals a judgment of the Office of Workers’ Compensation Administration, denying his request for medical benefits on the basis that his claim for such benefits had prescribed. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Hammons was injured in 1990 while working for ABB C-E Services, Inc. (ABB). He eventually filed a disputed claim concerning his disability status and was found to be totally and permanently disabled as a result of the injury. This court affirmed the judgment in his favor in an en bane decision with four judges dissenting in part. Hammons v. ABB C-E Services, Inc., 94-2444 (La.App. 1st Cir.10/6/95), 671 So.2d 370 (en banc).

As a result of the injury, Hammons received medical treatment that included a total left knee replacement. ABB paid all his medical bills resulting from the accident; therefore, the original judgment did not address medical benefits, which were not at issue at that time. Hammons has not claimed any medical benefits from ABB for a number of years; the last medical bills for accident-related treatments were paid by ABB in June 1998. However, apparently his orthopedist recently advised him that the original knee replacement has worn out and a second knee replacement is necessary. ABB refused to pay for this procedure, and on October 21, 2003, Hammons filed a disputed claim for medical treatment necessitated by his 1990 accident. ABB filed an exception raising the objection of prescription. After a hearing and the receipt of evidence establishing that the last date of ABB’s payment for medical benefits was June 1998, the workers’ compensation judge (WCJ) sustained the exception and dismissed Hammons’ claim. Hammons contends in this appeal that this decision was legal error.

| ¡¿DISCUSSION

It is well settled in Louisiana jurisprudence that the purpose of a prescription statute is to afford a defendant economic and psychological security if a cause of action is not pleaded timely and to protect the defendant from stale claims and the loss of relevant proof. Craig v. Bantek West, Inc., 03-2757 (La.App. 1st Cir.9/17/04), 885 So.2d 1234, 1240, writ denied, 04-2995 (La.3/18/05), 896 So.2d 1004. ABB’s exception raising the objection of prescription was based on LSA-R.S. 23:1209(C), which states:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

The Louisiana Supreme Court reluctantly applied this provision in Boquet v. Tetra Technologies, Inc., 02-1634 (La.2/25/03), 839 So.2d 13. Despite recognizing the harsh results for injured claimants and inviting the legislature to re-visit this limitation, the court ultimately concluded that the plain language of this provision leads to the inescapable conclusion that when medical benefits have been paid, the time limitation for making additional claims for medical benefits is three years from the last payment of medical benefits. Boquet, 839 So.2d at 17.

However, Hammons contends the prescriptive period set out in section 1209(C) applies only to claims for medical expenses when the claimant does not have a prior judgment. Unlike the claimant in the Bo-quet case, he has a judgment recognizing his entitlement to benefits as a result of total and permanent disability caused by the work-related accident. Therefore, his current action is a request for modification of the prior judgment, on which the WCJ retains jurisdiction under LSA-R.S. 23:1310.8 and prescription does not run.

^Louisiana Revised Statute 23:1310.8 states, in pertinent part:

A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified
B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.
D. A petition to modify a judgment awarding benefits shall be subject to the prescriptive limitations established in R.S. 2S:1209.

Hammons argues that the 1999 amendment to this statute, which applies the prescriptive periods of section 1209 to judgments awarding benefits, cannot be applied retroactively to his case, because he had a judgment that became a vested property right in 1995, citing Falgout v. Dealers Truck Equip. Co., 98-3150 (La.10/19/99), 748 So.2d 399, 407-08. In the Falgout case, the court observed that the concept of modification of a judgment is unique to the workers’ compensation scheme, because it allows a case to be reopened and the award amended after the judgment becomes final. The court further stated that retroactive application of subsection D of LSA-R.S. 23:1310.8 would divest the claimant of his vested property right to file a claim for modification of his compensation award. Therefore, the court stated that for a claimant whose judgment could otherwise be modified under the statute, the amendment was to be applied prospectively only. Falgout, 748 So.2d at 405 and 408; see also Williams v. BET Const., Inc., 00-1765 (La.App. 1st Cir.11/9/01), 818 So.2d 21, 25.

We agree with Hammons that the Falgout case controls the application of subsection D of section 1310.8 to his judgment, which became final in 1995. Therefore, if his judgment were subject to modification under either subsection A or B of section 1310.8, the limitation added in subsection D could not be applied to deprive him of his vested right to modification. The WCJ concluded in this case that section |s1310.8 limited the modification of a prior judgment to changes in indemnity benefits only and did not apply to medical benefits. We agree with this analysis as .to subsection B of the statute, which uses the word “compensation” in discussing the WCJ’s authority to end, diminish, or increase a prior award. However, we believe the provisions of subsection A of the statute are broader in scope, allowing the WCJ to make any justifiable modifications or changes with respect to former findings or orders relating to the case.

Hammons’ disability judgment in this case did not mention medical benefits, because at the time the judgment was rendered, ABB was paying all of his medical bills as they were incurred, pursuant to LSA-R.S. 23:1201(E) and 1203, and these were not at issue. Moreover, because an employer’s liability to an employee for medical expenses arises only as the medical expenses are incurred, a workers’ compensation claimant is not entitled to an award for future medical expenses. Spencer v. Gaylord Container Corp., 96-1230 (La.App. 1st Cir.3/27/97), 693 So.2d 818, 824., Therefore, the disability judgment could not have made an award for future medical expenses resulting from Hammons’ work-related injuries. However, that judgment determined that Hammons was totally and permanently disabled as a result of his work-related injury, thus putting ABB on notice that medical bills related to his condition could continue indefinitely. Hammons’ entitlement to continuing benefits has already been adjudicated, and since medical bills are only paid as they accrue, ABB does not need protection from stale claims or loss of relevant proof. We conclude that since Hammons has now put the payment of those bills at issue, the WCJ has authority under subsection A to modify the earlier judgment and can order ABB to pay the medical bills for the knee replacement procedure if Hammons establishes that this procedure is directly related to his condition as a result of his job injuries.

| ^CONCLUSION

For the above reasons, the judgment dismissing Hammons’ claim for medical benefits is reversed, and the matter is remanded to the WCJ for further proceedings. All costs of this appeal are assessed against ABB.

REVERSED AND REMANDED.

      . Judges Carter, Whipple, Parro, and Red-mann dissented as to the interpretation of LSA-R.S 23:1201.3(A) concerning computation of interest on the weekly benefits installments. The provision has since been amended to clearly reflect the dissenting judges' position that interest should be computed from the date compensation was due, rather than from the date compensation was "ordered paid by the hearing officer.” 1997 La. Acts, No. 52, § 1.

      . At the hearing in this matter, his attorney commented that Hammons’ medical treatments after June 1998 were apparently billed to and paid by Medicare, rather than ABB or its insurer. A similar situation was alleged in Stroud v. Morrison Nursery, 04-1610 (La.App. 3rd Cir.4/6/05), 899 So.2d 840.

      . Hammons also urges this court to broadly interpret section 1209(C) as applicable only to those claims for medical expenses for which the claimant does not have a prior judgment, regardless of whether the modification provisions of section 1310.8 are applicable. Because we decide this case by applying the provisions of the modification statute to Ham-mons’ judgment, we pretermit discussion of this argument.

      . Subsection D was added by a 1999 amendment. See 1999 La. Acts, No. 323, § 1.

      . The WCJ also recognized that subsection D could not be applied retroactively to the 1995 judgment.

      . Compare Avdoyan v. Covington Country Club, 02-1025 (La.App. 1st Cir.5/28/03), 844 So.2d 277 (Because there was no prior judgment, no award existed which could be subject to modification pursuant to section 1310.8. Therefore, the prescriptive period established by section 1209(C) was applicable to the claim.)