author: THIBODEAUX, Chief Judge.

text:
    MaCLAFF, INC. et al. v. ARCH INS. CO., et al.
    No. 07-1182.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 27, 2008.
    Rehearing Denied April 23, 2008.

      James L. Pates, Jr., Robert Edwin Tori-an, LaBorde & Neuner, Lafayette, LA, for Defendants/Appellees — Liberty Surplus Insurance Corporation and RMS Insurance Brokerage, LLC.
    Charles P. Carriere, New Orleans, LA, for Defendants/Appellees — Utica Mutual Insurance Co. and Wright & Percy Insurance, Inc.
    Nancy J. Marshall, Ashley E. Gilbert, Ambrose Victor McCall, Anne B. Rappold, Deutsch, Kerrigan & Stiles, LLP, New Orleans, LA, for Defendant/Appellee— Arch Insurance Company.
    Patrick M. Wartelle, Leake & Anderson, L.L.P., Lafayette, LA, for Plaintiffs/Appellants — MaClaff, Inc., University Partnership, Ambassador Partnership, Abnar, Inc., Wilburn Enterprises, LLC, and Terry Wilburn d/b/a Cat Enterprises.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

11Plaintiffs-appelIants, MaClaff, Inc., University Partnership, Ambassador Partnership, Abnar, Inc., Wilburn Enterprises, L.L.C., and Terry Wilburn d/b/a Cat Enterprises (collectively referred to as “franchisees”), appeal the trial court’s grant of a partial summary judgment in favor of defendant-appellee, Arch Insurance Company (Arch). The franchisees seek a reversal of that judgment, which found that their property and casualty insurance policy’s wind deductible of “2% of Total Insured Value for Named Storm” applied to their claims. For the following reasons, the judgment of the trial court is affirmed.

I.

ISSUES

1. Was summary judgment erroneously granted since the franchisees did not receive the policy disclosing the full terms of the named storm wind deductible until after their losses occurred?

2. Was the summary judgment erroneous because the Executive Summary of the Arch policy allegedly ambiguously disclosed the named storm wind deductible?

3. Was the summary judgment erroneous because RMS, as an agent of Arch, allegedly negligently misrepresented the terms of the named storm wind deductible to the franchisees?

4. Did the trial court legally err in finding that “total insured value” included both the value of the franchisees’ interest in their properties, as well as the McDonald’s Corporation’s interest in each property?

_b.IL

FACTUAL BACKGROUND

Plaintiffs-appellants are all McDonald’s Corporation (McDonald’s) franchise owners/operators of fast-food restaurants that are located in Jennings, Eunice, Oakdale, Kinder, the Morgan City area, and the Lafayette area. When Hurricane Lili struck parts of southern Louisiana on October 3, 2002, the franchisees suffered losses at their respective locations, namely, damage to signs, food spoilage, and lost revenue. At the time, the franchisees had in effect an Executive Summary of a policy issued by Arch, providing casualty and property insurance coverage.

The franchisees’ insurance agent who helped procure this coverage was Larry Andrews, an insurance agent for Wright & Percy Insurance Agency (Wright & Percy) who was designated therein as “McDonald’s Insurance Consultant.” Mr. Andrews consulted with RMS Insurance Brokerage, L.L.C., (RMS), specifically with, owner, Diana Krause, to obtain a new policy with terms that would meet McDonald’s franchise insurance requirements. He asked that she assist in obtaining coverage that mirrored, as closely as possible, the franchisees’ then-existing policy with Zurich American Insurance Company (Zurich) that was expiring on October 1, 2002. Ms. Krause was provided with a copy of the Zurich policy to use as a reference and was advised that the new policy needed to be effective as of October 1, 2002.

Ms. Krause shopped for coverages with multiple insurers and was ultimately able to obtain coverage for the franchisees through Arch. Arch was an insurer, newly-approved by McDonald’s to provide insurance to its franchise owners/operators through the McDonald’s National Franchise Property Program. This program made available to franchise owners/operators the opportunity to contract with McDonald’s-approved insurers for necessary coverages.

|sMs. Krause began negotiating the terms of the new Arch policy with Arch Senior Vice-President of Underwriting, Nathan Warde. Mr. Warde had primary responsibility for the underwriting decisions and issuance of the Arch policy. In early September 2002 — facing the September 30, 2002, expiration of the- franchisees’ existing policy — an Executive Summary of the proposed policy was drafted by RMS although the actual policy was not yet complete. On September 12, 2002, Ms. Krause provided Mr. Andrews with this Executive Summary, which he, in turn, provided to the franchisees with their respective premium quotes, for consideration. The one-page Executive Summary listed the categories of coverage to be provided by the policy, the applicable coverage limits, and deductible amounts. Pertinent to this case are the deductibles that were set forth in the Executive Summary as follows: Sign Deductible — $1,000; Food Spoilage Deductible — $1,000; Business Interruption Deductible — $1,000; and Wind Deductible — “2% Total Insured Value for Named Storm” (named storm wind deductible). At the bottom of the page, the Executive Summary stated “[t]he coverages shown are only intended to summarize the basic policy coverages and optional coverages. All coverage is subject to declarations, terms, conditions, and exclusions of the actual policy.”

All of the franchisees accepted the provisions of the Executive Summary without reviewing a completed policy. They all relied on the information set forth in the Executive Summary and the oral information provided to them by Mr. Andrews about the policy’s terms, particularly the named storm wind deductible and the meaning of “total insured value” as stated therein. According to the franchisees, although they had a wind storm deductible in their prior policy, it applied to their total losses and not the “total insured value” as the Arch policy proposed. It is undisputed that the franchisees were orally assured by Mr. Andrews that the named | ¿storm wind deductible would be calculated based on their total losses just as their last policy had, despite the specific language of the Executive Summary. The franchisees all accepted the Executive Summary. They each signified their acceptance by signing a “McDonald’s Corporate Approved Package Insurance Proposal for Policy Term 10/01/02-08” and returning it, with their respective premium deposits to Mr. Andrews on September 26, 2002, and September 27, 2002, days before their existing policy was due to expire. Each proposal contained the express declaration, “[pjlease bind my coverage eff. 10/01/02.”

The franchisees’ coverage for the one-year period beginning October 1, 2002, was confirmed on October 14, 2002, when Arch delivered its Confirmation of Binding (binder) to Ms. Krause at RMS. She, in turn, delivered this binder to Mr. Andrews at Wright & Percy. Arch’s binder not only confirmed coverage of the subject properties as of October 1, 2002, but it also listed the policy’s coverages and deductibles, including disclosure of a $25,000 minimum deductible for named storm wind claims:

Deductible(s):
2% of the total insurable values at risk at place and time of loss, subject to $25,000 minimum per occurrence as respects the peril of “Named Storm.”

This $25,000 minimum had not been expressly disclosed on the Executive Summary that had been prepared by RMS and provided to the franchisees. However, the dispute that gave rise to this litigation did not arise at this time. It arose after the franchisees’ filed claims for their respective losses due to Hurricane Lili. They claimed they learned, then, for the first time that the named storm wind deductible would apply to their losses, superceding the policy’s other $1,000 | ^deductibles, because their damages were caused by a National Oceanic and Atmospheric Administration (NOAA) “named” hurricane. In addition, they claimed to have learned for the first time that their deductible for their claims would be $25,000, based on the average total insured value of $1,250,000, that had been assessed for each property. Arch asserted that this value constituted the average total insured value McDonald’s placed on each franchise location at the time. It included McDonald’s ownership interest in each property as well as the individual franchisee’s ownership interest.

Arch contended that the deductible was applied in accordance with the policy language set forth in Endorsement 4 that was issued with the actual policy in February 2003. The applicable portion of the endorsement states:

DEDUCTIBLE (S)

$1,000 Per Occurrence applies to all coverages; except,
2% of the combined “Total Insurable Values” for Building, Personal Property and Business Income at risk at place and time of loss, subject to $25,000 minimum per occurrence due to loss or damage from “Named Storm”. A Named Storm is a windstorm or tropical disturbance that has been named by the National Weather Service. The deductible applies separately to each insured premises and to each Named Storm occurrence. We will then pay the amount of loss or damage in excess of the deductible, up to the applicable Limits of Insurance. [“JTotal Insurable Values” means the 100% value of Building, Personal Property, and Business Income insured (using the applicable policy valuation clause) without regard to the Limit of Insurance.

IflThe franchisees filed suit against Arch, RMS, and Wright & Percy, claiming that the Executive Summary represented that the $1,000 deductibles for sign damage, food spoilage, and lost profits would apply in instances of these specific losses. Alternatively, they pled that if the named storm wind deductible was found to be applicable instead, that Wright & Percy, RMS, and/or Arch was liable for negligent misrepresentations made orally and/or in the Executive Summary of the Arch policy. They also pled that if the named storm wind deductible was found to be applicable, it should be applied solely to the value of their individual interests in the properties, excluding any value held by McDonald’s in the properties. They asserted that, otherwise, the deductible would render the property insurances practically nonexistent, which would be against public policy. Finally, the suit claimed that Arch had arbitrarily and capriciously failed to tender payment of their claims after receiving satisfactory proof of their losses, triggering penalties and attorneys’ fees pursuant to La.R.S. 22:658, which penalizes insurers for their untimely tender of payments.

Cross-motions for summary judgment were filed by the parties. At issue in this appeal is the trial court’s grant of Arch’s motion for partial summary judgment. The motion for summary judgment filed by Arch sought a judgment as a matter of law that would find that:

[TJhere is no genuine issue of material fact as to the applicability of the deductible for named storms under its policy no. 32 ESP 1271200 of 2% of the total insured value, with the minimum deductible of $25,000, and as to the fact that (1) the Executive Summary of the policy provisions was provided to plaintiffs through their agent, Wright <& Percy, prior to the storm; (2) the Executive Summary was never modified by Arch or its agent, RMS; ]7and, (3) the Executive Summary provided for a named wind storm deductible of 2% of the TIY (total insured value), with a minimum $25,000 deductible.... ”

The partial summary judgment rendered by the trial court states only that there is no genuine issue as to the material fact that the franchisees’ losses “arising out of Hurricane Lili are subject to a deductible of the Total Insured Value, with the exception of the service interruption claims, which have a deductible of $1,000.” The franchisees have appealed this partial summary judgment, claiming that the trial court erred in finding that the named storm wind deductible applied for the following reasons: 1) the policy was not timely delivered to them, and the only document setting forth the deductibles prior to their losses was the Executive Summary, which was ambiguous; 2) the evidence showed that Arch was liable for its agent, RMS’s, negligent misrepresentations about the application of the named storm wind deductible; and 3) the trial court legally erred in finding that “total insured value” as referred to in the named storm wind deductible, included the McDonald’s Corporation’s interest in each property.

III.

LAW AND ANALYSIS

Standard of Review

Appellate courts review summary judgments de novo, applying the same criteria that govern a trial court’s determination of a motion for summary judgment. Douglass v. Easton, 953 So.2d 157 (La.App. 3 Cir. 3/7/07), writ denied, 07-650 (La.5/11/07), 955 So.2d 1282 (citations omitted). Louisiana’s Code of Civil Procedure states that summary judgment “shall be rendered forthwith if the pleadings, | adepositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). We are required to construe factual inferences that are reasonably drawn from the evidence presented in favor of the party opposing the motion; all doubt is to be resolved in the non-moving party’s favor. See Argonaut Great Cent. Ins. Co. v. Hammett, 39,024 (La.App. 2 Cir. 11/17/04), 887 So.2d 704.

We also are to remain cognizant of the mover’s and non-mover’s burdens of proof. Although the burden of proof on a motion for summary judgment remains with the moving party, the mover’s burden changes depending upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment:

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

La.Code Civ.P. art. 966(C)(2). Louisiana Code of Civil Procedure Article 967(B) states the following about the non-moving party’s burden:

B. When a motion for summary judgment is made and supported [by affidavits], an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

| aWe will apply these principles to the issues presented to determine whether any genuine issues of material fact continued to exist after the parties presented their evidence and testimony to the trial court and, consequently, whether Arch was entitled to this partial summary judgment as a matter of law.

Timeliness of Insurance Policy Delivery and Ambiguity of Executive Summary

The franchisees’ first argument for reversal of the partial summary judgment asserts the untimely delivery of the insurance policy, in violation of La.R.S. 22:634. They contend that Arch’s failure to timely deliver the policy deprived them of notice of the fact that the $1,000 deductibles would not apply in the event of a named storm. They also contend that their only notice of the policy’s deductibles was set forth in an ambiguous Executive Summary. The initial question we face on review of this partial summary judgment, then, is whether the facts and evidence established that the policy was untimely delivered to the franchisees, and, if so, whether the Executive Summary, by default, should be relied upon for a determination of whether the named storm wind deductible applies.

We begin with the statutory mandate of La.R.S. 22:634, which provides that delivery of an insurance policy to an insured or a person entitled to receive it, is to take place “within a reasonable period of time after its issuance.” The purpose of this law is to ensure that an insured is informed of the policy’s contents. La. Maint. Servs., Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250 (La.1993). According to the deposition testimony of Mr. Warde and Ms. Krause, the actual Arch policy was issued and delivered to Mr. Andrews at Wright & Percy in February 2003, ^approximately four months after the policy’s effective date of October 1, 2002. On October 14, 2002, after the hurricane struck, a binder was issued by Arch, confirming the attachment of coverage as of October 1, 2002, and setting forth a listing of policy coverages and deductibles. It is undisputed that pri- or to Hurricane Lili occurring on October 3, 2002, the Executive Summary of the policy was the only document provided to the franchisees that purported to reflect any of the proposed policy’s terms.

However, we do not find that the policy’s delivery date was unreasonable in light of the facts presented. The policy was delivered in February 2003, within weeks of it being issued. The pertinent issue is whether the four-month period that passed between the effective date of the policy and its delivery placed the franchisees at a disadvantage in terms of knowledge of the terms of their policy. We do not find this to have been the case.

The binder that was issued to the franchisees through their agent on October 14, 2002, provided sufficient notice of the disputed deductible provisions. The franchisees’ agent, Mr. Andrews, was vested with the implied authority to do all of those things necessary or incidental to the agency assignment, including accepting delivery of the insurance policy for the franchisees. See Broadway v. All-Star Ins. Corp., 285 So.2d 536 (La.1973). His acceptance of delivery of the insurance binder satisfied the requirement for reasonable delivery of the policy to the franchisees. Id.

The insurance binder by its nature, “serves as a temporary policy that is subject to the conditions of the policy contemplated and incorporates the terms of the policy to be issued.... ” Donaldson v. United Comm. Ins. Co., 98-1187 (La.App. 3 Cir. 2/10/99), 741 So.2d 676, 683, writ denied, 99-727 (La.5/7/99), 740 So.2d 1285; see also, Trascher v. Foster, 559 So.2d 16 (La.App. 4 Cir.), writ denied, 563 So.2d 875 (La.1990). According to La.R.S. 22:631, it is “used to bind insurance temporarily pending the issuance of the policy.” In this case, a policy was, in fact, issued in February 2003. Arch’s binder stated that it expressly incorporated the terms of that policy. Consequently, when the binder was accepted by the franchisees through their agent on October 14, 2002, they also accepted the underlying insurance policy that was subsequently issued. Trascher, 559 So.2d 16.

Although we have found that the binder that was issued on October 14, 2002, served to provide timely notice of the disputed policy terms, we are mindful of the franchisees’ argument that policy exclusions and limitations are not valid unless they are clearly communicated to the insured. La. Maintenance, 616 So.2d 1250. “[Exclusions or limitations on coverage in a policy should be clearly communicated to the insured at the time of the issuance of the binder.” Sims v. Ins. Unlimited of West Monroe, 28,234, p. 3 (La.App. 2 Cir. 2/28/96), 669 So.2d 709, 711, writ denied, 96-785 (La.5/3/96), 672 So.2d 689. Otherwise, an insured will assume that the desired coverage exists. Id. However, we find that the binder was clear as to the application of the deductibles. It stated that the deductible of $1,000 per occurrence would apply except in three particular listed instances. The named storm wind deductible was one of the listed exceptions.

We note that the franchisees’ attempt to focus on the Executive Summary as the source for the determination of the application of the named storm wind deductible is misplaced and unsupportable based on the facts presented in the record. The Executive Summary was prepared by the brokerage firm, RMS, as a summary of the coverages to be offered by the Arch policy. The intention that the Executive Summary was to only summarize the actual policy was expressly stated at the bottom of the Executive Summary. In this regard, it stated that the “coverages shown arejjgonly intended to summarize the basic policy coverages and optional coverages .... subject to declarations, terms, conditions, and exclusions of the actual policy.” Moreover, by self-definition, a summary is a comprehensive, non-detailed restatement. The facts in the record reveal that this Executive Summary was not presented to the franchisees as a temporary policy, intending to incorporate the terms of the actual policy, as a binder would. Although the Executive Summary happened to be the only document purporting to represent the policy’s contents prior to the franchisees’ losses, this does not negate the fact that a binder, intending to incorporate the terms of the actual policy, was in fact issued approximately two weeks after the policy was bound, in the weeks following damage caused by a hurricane to the region.

Negligent Misrepresentation

The franchisees also claim that the partial summary judgment was improper because the facts established that Arch, as RMS’s principal, was liable for the negligent misrepresentations ultimately made by Wright <& Percy to the franchisees. The chain of liability, according to the franchisees, is established because Brendan Henry, an RMS employee at the time, supplied the erroneous information to Mr. Andrews at Wright & Percy that was passed on to the franchisees. The franchisees claim that these negligent misrepresentations for which Arch, as principal, was proven to be responsible, deprived them of the opportunity to shop the market for another deductible. Therefore, Arch’s motion for summary judgment should have been denied. We disagree. The facts established only that Wright & Percy through its employee, Mr. Andrews, made the disputed statements to the franchisees.

1 ^Representatives for each of the franchisees testified that after receiving the Executive Summary, they spoke with Mr. Andrews about the named storm wind deductible and questioned how it was to be applied, since that deductible was different from the wind deductible in their prior policy. Mr. Andrews also admitted through deposition testimony that he advised the franchisees that the named storm wind deductible would apply to total losses as opposed to total insured value as stated in the Executive Summary. Consequently, it is undisputed that Mr. Andrews orally advised the franchisees that the named storm wind deductible was intended to apply to their total losses as opposed to total insured values of each property.

Ms. Krause and Mr. Warde also both testified on behalf of RMS and Arch, respectively, that the named storm wind deductible was always intended to apply to the total insured value of each property, as evidenced in writing by the Executive Summary issued by RMS, Arch’s binder, and the actual Arch policy that was ultimately issued. That being said, the record does not support the contention that Arch could be liable for the negligent misrepresentations as urged by the franchisees. There is also no need for us to reach the issue of whether RMS was acting as an agent for Arch or the purpose of establishing a chain of liability. We find this assignment of error, consequently, to be meritless.

Total Insured Value

The final basis asserted for the reversal of the partial summary judgment by the franchisees is that legal error was committed by the trial court when it found that the term “total insured value,” included the value held by McDonald’s in each franchise location. The franchisees focus on the Executive Summary to support this contention. They rely on the argument that the Executive Summary was ambiguous because it failed to define “total insured value,” and, therefore, this ambiguity should luhave been construed in their favor. If properly construed in their favor, they contend that total insured value, should have been defined as that which includes only the franchise owners’ value in the property.

We have already found that the Executive Summary does not appropriately serve as the insuring document that should be analyzed for the interpretation of the named storm wind deductible. “Total insured value” is clearly defined in Endorsement 4 of the policy that was issued.

IV.

CONCLUSION

The partial summary judgment granted in favor of Arch Insurance Company is affirmed. Costs of this appeal are assessed to MaClaff, Inc., University Partnership, Ambassador Partnership, Abnar, Inc., Wilburn Enterprises, L.L.C., and Terry Wilburn d/b/a Cat Enterprises.

AFFIRMED.

PETERS, J., Dissents, Finding that There Exists Genuine Issues of Material Fact Requiring a Trial on the Merits.

      . The franchisees later filed First and Second Supplemental and Amending Petitions, adding RMS’s insurer, Liberty Surplus Insurance Company (Liberty), as a defendant and asserting claims of breach of fiduciary duty against RMS and Liberty.

      . The issue of the applicable deductible for the service interruption claims was decided in a prior hearing on the franchisees’ Motion for Summary Judgment.

      . The statute states, in relevant part, that: "A. Subject to the insurer’s requirements as to payment of premium, every policy shall be delivered to the insured or to the person entitled thereto within a reasonable period of time after its issuance.”


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Jeromie Alan BENSON, Appellant.
    No. 43,150-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2008.

      Louisiana Appellate Project by James E. Beal, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   DREW, J.

hJeromie Benson was charged with three counts of felony carnal knowledge of a juvenile, a violation of La. R.S. 14:80. He pled guilty to one of the counts. The court sentenced Benson to serve seven years at hard labor. He now appeals his sentence as being excessive. We affirm.

FACTS

Even though the defendant entered a guilty plea to one count of felony carnal knowledge of a juvenile, La. R.S. 14:80, there is no Boykin colloquy in this record. Accordingly, we have relied heavily upon police reports and the presentence investigation report.

A brief time line may be helpful here:

• April 21,1979 — Defendant is born.
• August 20, 1988 — Victim (“A.G.”) is born.
• October 6, 2005 — Defendant admits having had sexual intercourse with his juvenile sister-in-law, A.G., on three occasions:
(1) First, about two years before his statement, after promising to give the child a car that he owned;
(2) Second, about a couple of months after the first time, in exchange for some music CDs; and
(3) Third and final time, about two months prior to the date he was giving his statement, after agreeing to give the girl a car stereo in exchange for sex.
• March 28, 2006 — The state charged the defendant in a bill of information with three counts of felony carnal knowledge of a juvenile.
• December 14, 2006 — Defendant pled guilty to one of the counts.
^•February 8, 2007 — Defendant sentenced to seven years at hard labor.
• July 25, 2007 — Motion to reconsider sentence denied.

Benson adamantly denied that force was involved in any of these incidents.

The victim gave the Ouachita Parish Sheriffs Office a very different account, saying that:

• the defendant began having sex with her when she was 11 years old;
• she and the defendant had sex approximately once per month until about one month prior to her September 29, 2005, statement to the Ouachita Parish Sheriffs Office;
• Benson threatened her with physical violence on occasion; and
• several months, prior to her statement, the defendant put a gun to her head and forced her to, have sex with him.

The judge reviewed the presentence investigation report and noted that:

• the defendant had no criminal record;
• acts of intercourse between the defendant and the victim probably occurred . on multiple occasions;
• this abhorrent conduct was enabled by his kinship by affinity;
• the maximum sentence here would be a 10 years at hard labor;
• the relationship had an adverse impact upon her grades;
• the experience caused her to have nightmares;
• the offense had a detrimental effect on the victim’s life; and
• a seven-year hard labor sentence was appropriate for this defendant.

IsOur law on review of sentences for excessiveness is well settled.

The trial court thoroughly reviewed the presentence investigation report, and gave adequate consideration to the factors listed in La. C. Cr. P. art. 894.1.

The most significant mitigating factor in this case was the defendant’s lack of a prior criminal record, but that was overshadowed by the extent of the defendant’s conduct and the benefit that the defendant obtained from the plea bargain. The defendant faced three separate charges of felony carnal knowledge of a juvenile but was allowed to plead guilty to only one count, thereby eliminating the chance that he could receive multiple consecutive sentences. The defendant’s conduct continued over a period of time, even | accepting his version of the events. Although the defendant was a first offender, the court felt a significant sentence was appropriate. The trial court concluded that the defendant needed correctional treatment rather than probation, and on this record, that decision is clearly not an abuse of the court’s wide discretion. The defendant’s sentence is not excessive.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The victim’s date of birth in the record is also listed as August 28, 1988.

      . The date of the first admitted offense would therefore be sometime in the fall of 2003.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the . criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P'. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      A trial court is not required to render a suspended sentence or probation on a first felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Woodman, 28,004 (La.App.2d Cir. 1/24/96), 666 So.2d 1255, writ denied, 96-0489 (La.5/3/96), 672 So.2d 696.


author: GASKINS, J. STEWART, J.,

text:
    REGIONS BANK, Plaintiff-Appellee v. PARISH OF CADDO, City of Shreveport, Dr. Mairus T. McFarland, and unopened Succession of George M. McCormick, II, Defendant-Appellant/Defendants-Appellees.
    No. 42,920-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2008.

      Nelson & Hammons, by John L. Ham-mons, Shreveport, for Defendant-Appellant, Susan U. McCormick, Executrix of the Estate of George McCormick, II, M.D.
    Rogers, Hearne & Carter, by W. Lake Hearne, Shreveport, for Plaintiff-Appellee, Regions Bank.
    Charles C. Grubb, Shreveport, for Defendant-Appellee, Parish of Caddo.
    Pettiette, Armand, Dunkleman, Wood-ley, Byrd & Cromwell, by Edwin H. Byrd, III, Shreveport, for Defendant-Appellee, City of Shreveport.
    The Malone Law Firm, L.L.C., by Dan-nye W. Malone, Shreveport, for Defendant-Appellee, Dr. Mairus T. McFarland, Coroner.
    Before STEWART, GASKINS and LOLLEY, JJ.
   GASKINS, J.

|!This case concerns ownership of funds in accounts at Regions Bank which were opened in the name of the Caddo Parish Coroner’s Office. The executrix of the succession of the late coroner Dr. George M. McCormick, II, claims that the funds in these accounts were the personal property of Dr. McCormick. She appeals from a judgment directing that the funds be delivered by the bank to Dr. Mairus T. McFarland, Dr. McCormick’s successor, in his capacity as coroner for Caddo Parish. We affirm the trial court judgment.

FACTS

Dr. McCormick served as the coroner of Caddo Parish from 1982 until his death on September 20, 2005. At some point, he opened five accounts at Regions Bank, each in the name of the “Caddo Parish Coroners [sic] Office.” On September 30, 2005, Dr. McFarland was appointed interim coroner by the Caddo Parish Commission until a special election could be held to replace Dr. McCormick. Dr. McFarland began to issue checks on one or more of the accounts which the bank honored. On November 8, 2005, the bank was notified by persons claiming to represent Dr. McCormick’s unopened succession that the funds were owned by the estate.

On November 10, 2005, the bank filed a concursus proceeding to determine ownership of the funds. Named as defendants were the Parish of Caddo (“the Parish”); the City of Shreveport (“the City”); Dr. McFarland, the duly acting coroner of Caddo Parish; and Dr. McCormick’s unopened | ^succession. In its petition, the bank alleged that the sources of the funds in the accounts were the appropriations from the Parish and the City pursuant to La. R.S. 33:1556.1, and that the City and the Parish contended that they are parties needed for just adjudication of the issues. In the event that the succession was found to be the owner, the bank requested judgment against Dr. McFarland for the sums paid from the accounts at his direction.

In their respective answers, the City, the Parish and Dr. McFarland asserted that the funds in dispute were paid to the Caddo Parish Coroner’s Office pursuant to La. R.S. 33:1556.1 and that the use of the funds for any purpose other than those set forth in the statute would be a prohibited donation of public funds.

In her answer, Susan McCormick, Dr. McCormick’s widow and the executrix of his succession, claimed that the funds were the proprietary funds owned by the estate and that Dr. McCormick was entitled to the “emoluments of the office” as coroner.

Mrs. McCormick filed exceptions of no cause of action and no right of action against the City and the Parish. The exceptions were denied by judgment signed in October 2006.

A bench trial was held in March 2007. The following witnesses testified: Henry Dodd, Dr. McCormick’s personal CPA who also served as the accountant for the coroner’s office during Dr. McCormick’s tenure; Grover Austin, a CPA who had been the first assistant legislative auditor for the State of Louisiana; and Erica Bryant, the director of finance and human resources for the Caddo Parish Commission. The deposition of Marcia Kay | a Gilbert, who formerly served as administrative assistant and later administrator for the Caddo Parish Coroner’s Office, was admitted into evidence. A stipulation as to the testimony of Tom Dark, chief administrative officer for the City, was also admitted.

According to the stipulation, if called to testify, Mr. Dark would say that the City funded the coroner’s office through appropriations issued in 12 monthly installments based upon an amount identified by the coroner’s office as the amount necessary to operate the office of the coroner. He also would testify that the City paid a percentage of that amount pursuant to an agreement with the Parish, which funded the remaining percentage.

Mr. Dodd testified that because the annual audits of the coroner’s office utilized an accounting methodology known as proprietary fund accounting, the funds were the personal funds of Dr. McCormick. However, he admitted on cross-examination that the proprietary fund accounting method does not determine ownership of the funds. He also admitted that he was unaware of the accounts at Regions Bank being used for anything other than the operation of the coroner’s office.

Mr. Austin testified that the use of the proprietary fund accounting method did not confer ownership of public funds to an elected official. ■ He testified that this method of accounting is used by governmental entities that provide goods and services to private entities or other governmental entities. In providing those goods and services, the governmental entities wish to measure revenues as compared to expenditures to ensure that they are fully recovering their costs of the services provided, including the depreciation of |4cost of capital. According to Mr. Austin, any retained or net earnings reflected in an annual audit indicated funds belonging to the coroner’s office as a public entity which were to be used for future expenses.

Ms. Bryant and Ms. Gilbert testified about the coroner’s office annual budget process. Ms. Gilbert also testified about the operation of the coroner’s office. According to her, the purpose of the bank accounts was to run the coroner’s office; Dr. McCormick received a salary from the funds. To her knowledge, he did not make any withdrawals from the accounts for his own personal use. At the request of the trial judge, the litigants filed into the record evidence as to the amount of salary Dr. McCormick received.

The trial court issued a written opinion in which it ruled against Dr. McCormick’s succession. The trial court described the testimony of Mr. Dodd — who opined that the funds were Dr. McCormick’s personal property as an emolument of office — as confusing, difficult to follow, and unsupported by all the other' evidence. The court found Mr. Austin’s testimony to be more logical. The trial court held that the uncontradicted and overwhelming evidence showed that the sources of almost all funds received by the coroner’s office were annual appropriations made by the City and the Parish from their general funds. The appropriations were made pursuant to annual budget requests by Dr. McCormick. These requests included money for salaries for the coroner, deputy coroner and investigators, as well as for the administrator, assistants and clerical personnel. Funding was provided by the City and the Parish pursuant to La. |sR.S. 33:1556.1; however, not all funds requested were actually spent, resulting in a surplus.

In light of Ms. Gilbert’s testimony that the coroner’s office was not a fees for services office, the trial court rejected the succession’s argument that the coroner’s office should be considered a “fee based” or a salary plus fee based office in which all money somehow belonged to the coroner. The court also stated that the succession’s “emoluments of office” argument defied logic and common sense when dealing with an elected official. It found that any excess funds remain with the governmental entity for future use. The court also noted the financial benefits Dr. McCormick received — in addition to his salary— as a result of an agreement between the City, the Parish, and Forensic Pathologists, Inc.

By judgment signed in April 2007y the trial court directed that the money in the accounts, which totaled $308,934.59, be delivered by Regions Bank to Dr. McFarland in his capacity as coroner for Caddo Parish. Costs were assessed against the succession.

The succession appealed.

STANDING

The succession complains that the City and the Parish should not have been allowed to participate in this suit because they had no ownership claims on the funds in the Regions Bank accounts.

A concursus proceeding is one in which two or more persons having competing or conflicting claims to money, property, or mortgages or | ^privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding. La. C.C.P. art. 4651. The purpose of a concursus action is to avoid multiplicity of suits, by providing for a single judgment which will finally adjudicate all the issues between all the parties. Hibernia National Bank v. Orleans Regional Hospital, L.L.C., 28,982 (La.App. 2d Cir.11/1/96), 682 So.2d 1291, writ denied, 97-0026 (La.2/21/97), 688 So.2d 513; Rehabilitation Concepts Plus, Inc. v. Wills, 42,400 (La.App. 2d Cir.10/10/07), 968 So.2d 262.

In the event of a ruling granting the succession ownership of the funds in the Regions Bank accounts — which contained funds appropriated by the City and the Parish for the “necessary or unavoidable expenses” of operating the coroner’s office — the City and the Parish could have been called upon to provide additional funding to allow the coroner’s office to continue to operate. This would have undoubtedly led to further litigation. Thus, these parties had an interest in this suit to determine ownership of the funds in the Regions Bank accounts.

The trial court correctly found that the City and the Parish had standing to participate in this concursus suit.

| OWNERSHIP OF FUNDS

The succession claims that the trial court erred in not holding that the disputed funds were the personal property of Dr. McCormick. We disagree with the succession’s argument for essentially the same reasons set forth in the trial court’s excellent and well-reasoned written opinion.

The office of coroner is provided for in the Louisiana Constitution. La. Const, art. 5, § 29 (stating that “[i]n each parish a coroner shall be elected for a term of four years”). Coroners are members of the judicial branch of government, and although their jurisdiction is limited to the parish in which they hold office, coroners are state officials who perform state functions. Mullins v. State, 387 So.2d 1151 (La.1980); Carriere v. St. Landry Parish Police Jury, 1997-1914 (La.3/4/98), 707 So.2d 979.

The audits indicate that a small portion of the funds for running the coroner’s office were derived from such things as fees charged for emergency commitments or copies of autopsy reports. The overwhelming majority of the funds were provided by the City and the Parish pursuant to La. R.S. 33:1556.1. This statute provides:

Notwithstanding any provision of this Part to the contrary, all necessary or unavoidable expenses, including supplies, incident to the operation and functioning of the Caddo Parish coroner’s office, in accordance with a budget approved by the city and the parish governing authorities, shall be paid by the governing authorities of the parish of Caddo and the city of Shreveport when such expenses are certified by the coroner as being necessary, or unavoidable. For the purposes of this Section, the parish of Caddo and the city of Shreveport shall each pay their portion of the necessary or unavoidable expenses for the coroner’s services on the basis of the percentage of all coroner’s services performed on behalf of the parish of Caddo and the city of Shreveport, respectively.

| ^According to the evidence presented at trial, coroners are compensated in three different manners: a salary, a salary plus fees, or fees alone. Mr. Dodd initially testified that Dr. McCormick was paid under a fees basis; he later stated that Dr. McCormick also paid himself a salary as an employee of the coroner’s office. On the other hand, Ms. Gilbert, who was involved in budget preparations from 1990 to 2005, testified that none of the coroner’s budgets were prepared with respect to a fees for services concept. She also testified that Dr. McCormick received a salary as his compensation. An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless the' finding is clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, supra. The trial court resolved any questions pertaining to witness credibility against Mr. Dodd and in favor of Ms. Gilbert. On this record, such a finding was reasonable and supported by the evidence. We find no manifest error in the trial court’s conclusion that the Cad-do Parish Coroner’s Office was not run on a fees for services basis.

The budgets submitted to the City and the Parish by the coroner included provisions for salaries; one line item included salaries for “Coroner, Deputy Coroners, Investigators.” Additional evidence submitted 1 sat the request of the trial court showed the specific amounts of the coroner’s individual salary from 1994 to 2005. According to Mr. Dodd’s testimony, Dr. McCormick reported this salary on his personal tax returns every year. Although Mr. Dodd opined that Dr. McCormick owned the retained earnings carried over in the coroner’s budget at the end of the year, he also testified that Dr. McCormick never paid taxes on this money.

According to the witnesses, the funds in the accounts were either generated by the coroner’s office, such as fees for copies of autopsy reports, or were appropriations from the City and the Parish made pursuant to annual budget requests submitted by the coroner. The coroner certified that all listed expenses were “necessary or unavoidable.” Once obtained from the City and the Parish, the funds were used exclusively for the operation of the coroner’s office. While there was testimony that Dr. McCormick believed that he personally owned the funds, no one testified that he had ever withdrawn money from any of ■these accounts for his personal use.

The succession argues that any money left over at the end of a budgetary year belonged to the coroner personally because there was no “reversionary provision” in the funding arrangement entitling the funding authorities to refunds of overpay-ments, as is the case with the Parish’s funding for the First Judicial District Court. However, in Carriere v. St. Landry Parish Police Jury, 707 So.2d at 986, the Louisiana Supreme Court stated when discussing a coroner’s budget:

|inAt the end of the year, any surplus amounts will be returned to the Police Jury or may be used as a credit in funding the next year’s budget request.

The evidence presented in the instant case indicates that the latter occurred, i.e., the funds remaining at the end of a year were simply put toward funding the next year’s operation of the coroner’s office.

The succession also contends that if the coroner’s office ran out of money before the end of the year, Dr. McCormick was personally liable for the expenses associated with fulfilling his duties as coroner. However, the record does not demonstrate that Dr. McCormick ever made a deposit of his own personal funds into any of the Regions Bank accounts under such circumstances. According to Ms. Gilbert, when there was a deficit, they simply cut back on expenses or Dr. McCormick would delay receipt of his own monthly paycheck to improve cash flow.

In Black’s Law Dictionary (8th ed.2004), “emolument” is defined as “[a]ny advantage, profit, or gain received as a result of one’s employment or one’s holding of office.” As to the “emoluments” of office argument advanced by the succession, we are unaware of any law which would allow a public official, like Dr. McCormick, to claim personal ownership of funds appropriated for the operation of the public official’s office. None of the witnesses — including Mr. Dodd — were aware of any other coroner attempting to claim personal ownership of such funds and take the retained earnings with him when he left office. The records demonstrates that Dr. McCormick was compensated with a salary for his position as coroner; he l^also received separate payment for autopsies performed through his personal lab, Forensics Pathologists.

The succession also complains about the trial court’s refusal to apply an “uncalled witness” adverse presumption to the failure of the other parties to call Radford Snelding to testify. Mr. Snelding, a former City employee, was present for part of the trial but was never called to testify. Mr. Dodd testified that he had discussions with Mr. Snelding about the retained earnings being the coroner’s personal property and that Mr. Snelding disagreed with him. When the matter was discussed on the record during the.trial, counsel for the Parish stated that Mr. Snelding was not called because everything he was going to testify to had been adequately covered by the testimony of other witnesses. As the .trial court noted in its opinion, Mr. Dodd acknowledged that Mr. Snelding disagreed with him. An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebuttable and is tempered by the fact that a party need only put on enough evidence to prove the case. Easter v. Direct Insurance Company, 42,178 (La.App. 2d Cir.5/9/07), 957 So.2d 323. The record reveals that ample evidence had already been presented to support the position of the City, the Parish and Dr. McFarland. As a result, no presumption was warranted.

Finally, the succession makes certain allegations in its brief of biased and unprofessional conduct by the trial court. We have carefully reviewed the record, and we have found no evidence supporting any of these assertions. To the contrary, the record demonstrates that the trial judge 112behaved courteously and fairly to all parties, treating them all in an evenhanded manner. Although the succession refers to an “unexplained signing of two separate judgments” as evidence of some sort of bias by the trial judge, we observe that the appellate record contains a full explanation of the trial court’s accidental signing of a courtesy copy of the judgment and the subsequent signing of the original judgment. Additionally, the trial court filed a per curiam to ensure that this court was completely advised of the circumstances surrounding the signing of the judgments.

Based on the foregoing, we affirm the trial court judgment directing that the funds in the Regions Bank accounts be delivered to Dr. McFarland in his capacity as coroner of Caddo Parish.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against Susan McCormick in her capacity as executrix of the estate of George M. McCormick, II, M.D.

AFFIRMED.

STEWART, J., concurs with -written reasons.

STEWART, J.,

concurring.

11While I agree with the opinion affirming the trial court’s judgment, I write separately to emphasize that several of appellant counsel’s remarks regarding the trial judge made in brief and at oral argument appear to violate U.R.C.A. Rule 2-12.4 and exhibit a lack of professionalism that warrants admonishment.

Rule 2-12.4 states, in relevant part:

The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge, or other officer thereof, or of any institution.

Moreover, Rule 8.2 of the Rules of Professional Conduct, provides that a lawyer shall not make a statement he “knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.... ”

In the appellant brief, counsel asserted four times that the trial judge demonstrated “bias.” Counsel also asserted that the trial judge demonstrated “a decidedly unprofessional demeanor toward Dr. McCormick personally throughout these proceedings.” The only basis given for these assertions was the trial judge’s rulings, which rejected the contentions of the plaintiff-appellant, and her signing of two separate judgments, which is addressed in the majority opinion. The record offers no support for the discourteous criticisms of the trial court by appellant counsel. Even when asked about his assertions during oral arguments, counsel could provide no legitimate basis for his remarks in the brief. He merely referred to the trial judge’s body language and manner in exiting the courtroom for a proffer of | ^evidence as support for his allegations of “bias” and “unprofessional demeanor.”

Adverse rulings by the trial court are not to be challenged with personal attacks on the integrity of the court in the absence of any supporting evidence. Appellant counsel’s allegations are wholly unsupported by the record, which demonstrates the utmost professionalism and courtesy on the part of the trial judge. With these additional remarks, I concur in the judgment.

      . We note that Mairus is incorrectly spelled as “Marius” in some pleadings.

      . Forensic Pathologists, Inc., was a private laboratory owned by Dr. McCormick which performed autopsies; it billed the City and the Parish directly for its services.

      . In the portion of its brief addressing the issue of standing, the succession also contends that there is no such legal entity as "the coroner's office.” However, we note that the legislature apparently disagrees with this assertion. The provisions of La. R.S. 33:1573 state that, under certain circumstances, ownership of real property purchased by a coroner for the performance of his duties "shall be vested in the name of the office of the coroner.” Additionally, La. R.S. 33:1573.1 allows the coroner of St. Tammany Parish to hold immovable property “in the name of the coroner's office.”

      . The Louisiana Supreme Court set forth these three methods of compensation for coroners in Carriere v. St. Landry Parish Police Jury, supra. In its opinion, the court relied in part upon La. R.S. 33:1559, which was repealed in 2003. However, we note that since the repeal of that statute, the legislature has not made any change in the law to reflect implementation of a different compensation scheme for coroners.

      . In contrast, as to Dr. McCormick’s private lab, Mr. Dodd testified that Dr. McCormick did pay taxes on the retained earnings carried over at the end of the year for Forensics Pathologists, Inc.

      . The succession complained to the trial court about the signing of the two judgments. A letter dated May 23, 2007, from the trial judge to all counsel was filed in the record, explaining the situation. On April 16, 2007, the trial court signed a courtesy copy of a judgment submitted by counsel for Dr. McFarland. The court was then advised that counsel for the succession had an objection to the form of the judgment. A telephone conference with the attorneys was held on April 19, 2007; since counsel for the succession was on a trip, another lawyer in his firm participated in the telephone conference. The court determined that the form of the judgment already signed was correct. However, it was discovered that the judgment signed previously was only a courtesy copy, and the Caddo Clerk of Court’s office requires that the original judgment filed with its office be signed. Consequently, the judge signed the original judgement on April 19, 2007.


author: WILLIAMS, J.

text:
    Ashley G. PRITCHARD, Plaintiff-Appellant v. SHELTER INSURANCE COMPANY, et al., Defendant-Appellee.
    No. 42,832-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2008.

      Tommy J. Johnson, Shreveport, for Appellant.
    Christopher R. Teske, New Orleans, Charlotte J. Bell, for Appellee, Scottsdale Insurance Company.
    Gregg A. Wilkes, Shreveport, for Appel-lee, Shelter Insurance Company.
    Tommy G. Zentner, Jr., for Appellee/In-tervenor, Louisiana Farm Bureau Mutual Insurance Company.
    Terry F. Hessick, Assistant Attorney General, for Appellee, Charles C. Foti, Jr.
    E. Joseph Bleich, Ruston, for Appellee, Whitetail Hunting Club # 2, Ricky Pendle-ton, Matt Lang and Danny Gilcrease.
    Joseph P. Williams, Metairie, for Appel-lee, Danny Gilcrease.
    Craig 0. Marcotte, Shreveport, for Ap-pellee, Matt Lang.
    Shawn Pendleton, In Proper Person.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

liThe plaintiff, Ashley Pritchard, appeals a judgment in favor of the defendant, Scottsdale Insurance Company (“Scottsdale”). The district court granted Scottsdale’s motion for summary judgment, concluding that the insurance policy excluded coverage for plaintiffs injuries. For the following reasons, we affirm.

FACTS

In the early morning of December 28, 2003, Ashley Pritchard (“Pritchard”) and her husband, Jason Pritchard (“Jason”), drove from Shreveport to the Whitetail Hunting Club camp in Bienville Parish. At the camp, they joined hunting club members Shaun Pendleton, Danny Gil-crease, Ricky Pendleton and Matt Lang to hunt deer with dogs. Pritchard was a passenger in a Ford pickup truck driven by Shaun Pendleton (“Pendleton”). During the afternoon, Pendleton stopped his truck in a clearing and he and Pritchard exited the vehicle. While Pendleton was talking with Jason, who was parked nearby, Pritchard walked around to the front of Pendleton’s truck to urinate. As Pritch-ard was squatting in front of the truck, Pendleton heard a call on his CB radio to drive to another area where some of the dogs had been seen. Pendleton hurriedly entered his vehicle, started the engine and drove forward, hitting and running over Pritchard with the truck’s front and rear passenger tires. As a result of the impact, Pritchard sustained serious physical injuries, including a broken pelvis, partially collapsed lungs, contusions of the head and jaw, loss of teeth and facial scarring.

The plaintiff, Pritchard, filed a petition for damages against the | adefendants, Shaun Pendleton, his insurer Shelter Insurance Company, Whitetail Hunting Club (“the Club”), Scottsdale, Danny Gilerease, Ricky Pendleton and Matt Lang. Scottsdale provided insurance coverage for the Club and its members under a commercial general liability policy issued to All States Hunting Clubs Association. The policy contained an auto exclusion clause precluding coverage for bodily injury “arising out of the ownership, maintenance, use ... of any ... ‘auto’ ... owned or operated” by an insured. The term “auto” was defined as “a land motor vehicle, trailer or semitrailer designed for travel on public roads.”

Subsequently, Scottsdale filed a motion for summary judgment on the grounds that the policy’s auto exclusion precluded insurance coverage for Pritchard’s injuries. Pritchard filed an opposition and her own motion for summary judgment, asserting that Scottsdale was liable for her injuries because the policy contained an ambiguity in the language of the auto exclusion when read together with the definition of “mobile equipment.” The policy defined mobile equipment to include vehicles “designed for use principally off public roads.”

After a hearing in November 2006, the district court rendered judgment granting Scottsdale’s motion for summary judgment, concluding that Pritchard was not entitled to insurance coverage because the truck qualified as an “auto” under the policy language. In addition, the court denied Pritchard’s motion for summary judgment as procedurally improper. Pritchard appeals the judgment.

| .DISCUSSION

In two assignments of error, the plaintiff contends the district court erred in granting Scottsdale’s motion for summary judgment. Plaintiff argues that the insurance policy provides coverage for her injuries because the tortfeasor’s truck could be considered mobile equipment under the ambiguous language of the exclusion clause.

An insurance policy is a contract between the parties and should be construed by using the general rules of contract interpretation set forth in the Louisiana Civil Code. Cadwallader v. Allstate Insurance Co., 02-1637 (La.6/27/03), 848 So.2d 577. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. LSA-C.C. art. 2047; Cadwallader, supra.

Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. Carrier v. Reliance Insurance Co., 99-2573 (La.4/11/00), 759 So.2d 37. Equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Carrier, supra. The insurer has the burden of proving that a loss comes within a policy exclusion. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250 (La.1993). The determination of whether a contract provision is clear or ambiguous is a question of law. Cadwallader, supra.

Appellate courts conduct a de novo review of summary judgment under the same criteria that govern the trial court’s consideration of whether |4summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Welch v. Technotrim, Inc., 34,355 (La.App. 2d Cir.1/24/01), 778 So.2d 728, writ denied, 01-0512 (La.6/15/01), 793 So.2d 1232.

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

In the present case, the Scottsdale policy provides in pertinent part:

2. Exclusions
This insurance does not apply to:
“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by ... any insured.
IsSECTION V-DEFINITIONS
“Auto” means a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment. But “auto” does not include “mobile equipment.”
“Mobile equipment” means any of the following types of land vehicles, including any attached machinery or equipment:
a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads;
b. Vehicles maintaiiied for use solely on or next to premises you own or rent;

In his deposition, Pendleton stated that at the time of the accident he was driving a 1981 Ford F-150 four-wheel drive pickup truck, which remained at the camp during the hunting season. Pendleton said that he only used that truck for hunting and that even though the inspection sticker had expired in 2002, the truck was insured. Pendleton stated that he transported the 1981 truck on a trailer to and from the hunting camp.

In their appellate briefs, the plaintiff, the Club and its members contend the 1981 Ford truck met the policy’s definition of mobile equipment. They argue that because the four-wheel drive vehicle was capable of off-road use and was actually used by Pendleton only for hunting purposes, the truck should be considered as designed for use principally off public roads. To support their position, they cite Doty v. Safeco Ins. Co., 400 So.2d 718 (La.App. 3rd Cir.1981), in which the court found that a pickup truck carrying a bolted-down welding machine was mobile equipment under policy language similar to that used in this case. However, | fithe Doty court’s decision was based on a section of the definition of mobile equipment that is not applicable in the present case.

Here, the policy defined auto as a vehicle designed for travel on public roads. Considering the evidence that Pendleton’s truck was previously registered and inspected for such travel and was covered by an automobile insurance policy, the 1981 Ford truck satisfied the definition of auto under the policy. After reviewing the record, we conclude that although Pendleton used his pickup truck primarily for off-road purposes, the 1981 truck was not a vehicle designed “principally” for use off public roads, such as a bulldozer or forklift. Thus, contrary to the argument of plaintiff and the above-named defendants, the truck did not qualify as mobile equipment under subsection (a) of the policy definition.

The plaintiff also contends that Pendleton’s truck was mobile equipment under subsection (b) of the definition because it was maintained for use solely on the rented premises. Plaintiff argues that the identification of the named insured as “All States Hunting Clubs” on the supplemental declarations page, omitting “Association” from the name, creates a question of fact as to whether each individual hunting club is a named insured.

The Scottsdale policy states that “the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy.” All States Hunting Clubs Association is listed as the named insured on the common policy declarations page.

The plaintiff has not indicated any policy endorsement or amendment 17identifying Whitetail Hunting Club as a named insured under the policy. The form entitled “All States Hunting Clubs Association Hunting Lease Liability,” referenced by plaintiff, does not make the identity of the named insured ambiguous. The form indicates that Whitetail Hunting Club is an “insured” under the policy, but does not identify the Club as named insured.

Nor does the record support plaintiffs contention that there is no insurable interest if All States Hunting Clubs Association, as the named insured, does not own or rent the hunting camp land. The Association would appear to have an insurable interest with regard to activities carried out on its behalf and would not necessarily need to own or rent any of the land on which such activities might be performed.

Under the subsection (b) definition of mobile equipment, because All States Hunting Clubs Association did not own or rent the premises where the 1981 truck was maintained, the vehicle does not qualify as mobile equipment and is subject to the policy’s auto exclusion. Thus, we cannot say the district court erred in concluding that the Scottsdale insurance policy excluded coverage for plaintiffs injuries. The assignments of error lack merit. In reaching this conclusion, we pretermit discussion of the remaining assignment regarding the denial of plaintiffs motion for summary judgment.

CONCLUSION

For the foregoing reasons, the district court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Ashley Pritchard.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Jason Aaron SCOTT, Appellant.
    No. 43,175-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2008.

      Louisiana Appellate Project by William Jarred Franklin, Counsel for Appellant.
    Paul Joseph Carmouche, District Attorney, Tommy Jan Johnson, Brady D. O’Callaghan, Assistant District Attorneys, Counsel for Appellee.
    Before BROWN, PEATROSS and DREW, JJ.
   DREW, J.

11 Jason Aaron Scott was previously convicted of aggravated burglary. On appeal, we reversed that conviction [State v. Scott, 41,690 (La.App.2d Cir.1/24/07), 948 So.2d 1159], and entered a conviction for the lesser crime of unauthorized entry of an inhabited dwelling, remanding for resen-tencing.

The defendant was thereupon adjudicated a second felony habitual offender and sentenced to serve seven years at hard labor, with credit for time served. He now appeals his present sentence as being excessive. We amend and affirm.

Our law on the review of sentences is well settled.

12As a second felony offender, this defendant faced a sentence of imprisonment for not less than three nor more than 12 years, with or without hard labor, without benefit of probation or suspension of sentence. La. R.S. 14:62.3 and La. R.S. 15:529.1(A)(l)(a) and (G).

By omitting the provision that the sentence be without benefit of probation or suspension of sentence, the trial court imposed an illegally lenient, mid-range sentence of seven years at hard labor. We amend the sentence to comport with La. R.S. 15:529.1(G), requiring that the sentence be served without benefit of probation or suspension of sentence.

Considering the totality of the record, this sentence is not constitutionally excessive. Although he may be sincerely remorseful and ■ even though he will be missed by his young family, Scott, as a second felony offender, deserves just punishment. We do not find that the sentence imposed is grossly disproportionate to the severity of the offense, nor is it shocking to our sense of justice. The trial court did not abuse its discretion.

ERROR PATENT

The trial court did not advise the defendant of the time period within which to apply for post-conviction relief. The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitation period for filing an application for post-conviction relief, is supplicatory language which does not bestow an ^enforceable right in favor of an individual defendant. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. We now advise defendant that no application for post-conviction relief, including applications for out-of-time appeal, shall be considered if filed more than two years after the finality of conviction and sentence. La. C. Cr. P. arts. 914 or 922.

DECREE

The sentence is amended to require that it be served without benefit of probation or suspension of sentence. The defendant’s conviction, adjudication, and sentence, as amended, are AFFIRMED.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged.
      First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows, as it does here, an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La. App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dor-they, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir. 1/26/05), 892 So.2d 710. A trial judge is in (he best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.