text:
    Mark SAMUELS, Individually and on Behalf of his Minor Children, Geoffrey Samuels, Eric Samuels and Naomi Samuels and Madilyn Samuels v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, State Farm Fire & Casualty Insurance Company, Evanston Insurance Company and Alvin Samuels.
    No. 2006-C-0034.
    Supreme Court of Louisiana.
    Oct. 17, 2006.

      Porteous, Hainkel & Johnson, C. Gordon Johnson, Jr., Nicholas C. Gristina, New Orleans, for Applicant.
    Deutsch, Kerrigan & Stiles, Joseph L. McReynolds, Kristen M. Baumer, Robert E. Kerrigan, Jr., New Orleans, Nowalsky, Bronston & Gothard, Edward P. Gothard, Metairie, for Respondent.
   VICTORY, J.

I,The issue in this insurance policy dispute is whether, where an insurance agent makes a clerical error on the declarations page of a policy, the policy can be reformed to reflect the true intent of the parties. After reviewing the record and the applicable law, we hold that, under the facts and circumstances of this case, the error can be corrected to reflect the mutual intent of the parties. Accordingly, we affirm the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

On November 20, 2000, Alvin Samuels was operating a 1998 Chrysler Plymouth Grand Voyager owned by his son, Mark Samuels, when the vehicle was involved in a serious, single car accident. During this accident, Mark’s wife, Patti Samuels, was ejected from the vehicle and fatally injured at the scene. Mark and their children, Geoffrey, Eric and Naomi Samuels, as well as Mark’s mother and Alvin’s wife, Madi-lyn Samuels, were also in the vehicle and all allegedly sustained serious injuries and damages as a result of the accident.

The van owned by Mark and Patti Sam-uels was insured by State Farm Mutual Automobile Insurance Company with an automobile policy with liability limits of | ¡>.$100,000.00 per person and $300,000.00 per accident. This policy provided coverage to Alvin Samuels because he was a permissive operator of the vehicle. State Farm Mutual Automobile Insurance Company also issued an automobile policy to Alvin and Madilyn Samuels with liability limits of $250,000.00 per person and $500,000.00 per accident, which provided coverage to Alvin as the operator of the vehicle.

In addition to these two standard automobile policies, Alvin and Madilyn Samuels also carried two umbrella policies covering this accident. The first was “Personal Liability Umbrella Policy,” No. 18-PO-0016-1 issued by State Farm Fire and Casualty Company (“State Farm”), with $2,000,000.00 limits of liability. The State Farm policy lists three “required underlying insurance policies:” (1) an automobile liability policy (250/500/100); (2)'a personal residential policy with $100,000.00 limits of liability; and (3) a watercraft liability policy with $100,000.00 limits of liability. The policy further provides that “[t]his policy is excess over all other valid and collectible insurance.” The yearly premium due on the State Farm policy was $1,385.00.

Evanston Insurance Company (“Evans-ton”) also issued Alvin and Madilyn Sam-uels a “Personal Umbrella Liability Policy” with $2,000,000.00 limits of liability. The Evanston policy in effect at the time of the accident lists the following insurance policies as underlying policies: (1) “AUTO LIABILITY 250/500/100 STATE FARM INSURANCE S1048BACE0K;” and (2) “HOMEOWNERS LIABILITY 2,000,000 STATE FARM INSURANCE T8P000161F.” The yearly premium was $577.50. The Evanston policy provides that it will pay “[ejxcess insurance over and above the amounts provided for in basic policies” which it defines as those “policies listed on the declarations (including renewals or replacements) which provides liability | ¡¡coverage for Personal Injury or Property Damage because of accidents.” In addition, the Evanston policy provides:

There may be other collectible insurance, other than basic policies, covering a claim which is also covered by this policy. If this occurs, the other insurance will pay first and this policy will be in excess of the other insurance.

After Mark Samuels filed suit against Alvin Samuels and all the above insurance companies, State Farm filed a Motion to Rank Insurance Policies, maintaining that the State Farm umbrella policy and the Evanston umbrella policy provided coverage on a pro-rata basis. Evanston opposed State Farm’s motion and concurrently filed a Partial Motion for Summary Judgment contending that its policy is in excess of the State Farm umbrella policy. In support of its Partial Motion for Summary Judgment, Evanston presented: (1) the Evanston policy effective November 8, 1999 through November 8, 2000, which listed the underlying policies as: “AUTOMOBILE LIABILITY 250/500/100 STATE FARM S1048AACEDK” AND “HOMEOWNERS LIABILITY 2,000,000 STATE FARM 18-PO-0016-IF;” (2) the Evanston Policy effective November 8, 2000 through November 8, 2001, which incorrectly identified the State Farm Policy again as “HOMEOWNERS LIABILITY” but also incorrectly as “T8000161F;” and (3) affidavits from three insurance agents involved in obtaining the umbrella policy from Evanston tending to show that the parties’ intent was that the Evanston policy be in excess of the State Farm policy and that, but for a clerical error, the State Farm policy was mistakenly identified as a “homeowners liability” policy with the correct policy number on the original Evanston policy, and was identified as a “homeowners liability” policy with the incorrect number on the renewal policy.

[4The trial court denied Evanston’s motion and granted State Farm’s motion, concluding that “State Farm Fire and Casualty Company policy and Evanston personal umbrella liability policy both contained excess 'other insurance’ clauses that |Rare mutually repugnant and therefore mutually exclusive of each other requiring both insurance companies to share pro-rata on the limits of their policies.”

The Fourth Circuit Court of Appeal reversed, finding that the Evanston policy should be reformed to reflect the true intent of the parties that the Evanston policy is an excess umbrella policy that provides coverage only in excess of the State Farm personal liability policy. Samuels v. State Farm Mut. Auto. Ins. Co., 03-2089 (La.App. 4 Cir. 7/13/05), 914 So.2d 560. We granted State Farm’s writ application. Samuels v. State Farm Mut. Auto. Ins. Co., 06-0034 (La.4/24/06), 926 So.2d 528.

DISCUSSION

The issue before us is whether a clerical error by an insurer’s agent in an insurance policy should be corrected to conform to the intent of the parties to the insurance policy. In this case, the evidence presented clearly indicates that Evanston and the Samuels intended for the Evanston policy to provide excess umbrella coverage over and above the State Farm umbrella policy. This intent is indicated by the affidavits presented and the fact that the premium paid by the Samuels was only $577.50 per year. It. is also clear that Evanston’s agent made a clerical error in identifying the underlying policy State Farm umbrella policy on the Evanston declaration page as a Homeowner’s Policy on both the original 1999 policy and the 2000 renewal, and as No. “T8-PO-0016” instead of “18-PO-0016” on the 2000 renewal. Further, it is clear that, in issuing its umbrella policy, State Farm in no way mistakenly relied on the Evanston error in issuing its policy or assessing the risks under its policy. Finally, it is clear that no matter how we interpret these policies, the insured will have the same amount of excess coverage, $4,000,000.00, the only issue |f;is which insurance company will benefit from our decision. With those facts in mind, we look to the legal principles applicable to this case.

“The very nature of excess insurance coverage is such that a predetermined amount of underlying primary coverage must be paid before the excess coverage is activated.” Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 767. “The existence of the underlying primary coverage both reduces the risk assumed by the excess carrier and translates into a reduced premium to the insured.” Id. “The reduced premium reflects the parties’ intent that excess coverage attaches only after a predetermined amount of primary coverage has been exhausted.” Id. at 767-68 (cites omitted).

“An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code.” Louisiana Ins. Guar. Ass’n, supra at 763 (citing Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); Central Louisiana Elec. Co., Inc. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991)). “The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent.” Id. (Citing La. C.C. art.2045 (defining contractual interpretation as “the determination of the common intent of the parties”)). “The parties’ intent as reflected by the words in the policy determine the extent of coverage.” Id. (Citing Trinity Industries, Inc. v. Insurance Co. of North America, 916 F.2d 267, 269 (5th Cir.1990) (citing Pareti v. Sentry Indem. Co., 536 So.2d 417 (La.1988))).

“As other written agreements, insurance policies may be reformed if, through mutual error or fraud, the policy as issued does not express the agreement of the | parties.” William Shelby McKenzie and H. Alston Johnson, III, Louisiana Civil Law Treatise: Insurance Law and Practice, Vol. 15, § 5, p. 14 (2nd Ed.1996); Earl Williams Const. Co. v. Thornton & Brooks, Inc., 501 So.2d 1037, 1039 (La.App. 2 Cir.), writ denied, 504 So.2d 881 (La.1987). “In the absence of .fraud, the party seeking reformation has the burden of proving a mutual error in the written policy.” Id. “Parole evidence is admissible to show mutual error even though the express terms of the policy are not ambiguous.” Id. In Ferguson v. Belcher and Son, 230 La. 422, 88 So.2d 806 (1956), this Court indicated that “the burden is on the one seeking the reformation to prove the error, and he must carry said burden by clear, and the strongest possible proof.” Id. This requirement was modified in Bonadona v. Guccione, 362 So.2d 740 (La.1978), which held that the clear and convincing evidence of mutual mistake was necessary only when a party sought to prove that the insurer had insured a substantially different and greater risk than that expressed by the written policy. Id. On the other hand, only the normal burden of proof by a preponderance of the evidence was required to reform a policy in a manner which did not substantially affect the risk assumed by the insurer. Id.

In this case, Evanston presented uncon-troverted evidence that both the Samuels and Evanston intended the umbrella policy at issue to be in excess of the State Farm umbrella policy. The affidavits presented, as well as the amount of the yearly premium, clearly showed that the Ev-anston agent misidentified the underlying State Farm policy on the renewal policy, and misidentified it as a homeowner’s policy on both the original policy and the renewal policy. However, the evidence also clearly shows that in spite of this clerical error, both Evanston and the Sam-uels believed the Evanston policy only provided umbrella coverage in excess of the State Farm umbrella policy. It is significant that State Farm in no way relied on this clerical error | sand mistakenly believed, in issuing its own umbrella policy, that the Evanston policy would provide pro rata coverage along with its policy. In fact, State Farm had to have known that there was no State Farm Homeowner’s Policy with the number T8P000161F. Further, contrary to the court of appeal’s reasoning, interpreting the State Farm policy as an underlying umbrella policy will not result in more coverage available to the insured, the insured will have the same amount of umbrella coverage no matter if the Evanston policy is reformed because of mutual mistake or not.

State Farm argues that the language of the Evanston policy is clear and does not list the State Farm umbrella policy as an underlying policy; therefore, under Louisiana Ins. Guar. Ass’n, supra, this Court lacks the authority to change or alter its terms under the guise of interpretation. However, the plain fact remains that what the Evanston policy does list as an underlying policy, i.e., a State Farm homeowner’s policy with $2,000,000.00 limits of liability, simply does not exist. Further, we are not interpreting an ambiguity in this policy, we are simply correcting a clerical error to reflect the parties’ mutual intent.

State Farm also argues that under our holding in Tiner v. Aetna Life Insurance Co., 291 So.2d 774 (La.1974), an insurer is bound by the acts and knowledge of its agent in completing an insurance application, and that therefore, Ev-anston is bound by the clerical error of its agent. However, that principle is not applicable where both the insured and the insurer agree as to the correct terms and intent of the policy. Finally, contrary to the trial court’s holding, Graves v. Traders and General Ins. Co., 252 La. 709, 214 So.2d 116 (1968) is not applicable either. In Graves, two insurance policies conflicted to such an extent that if both policies were given effect, neither insurer would be held liable. Graves stands only for the proposition that when two policies afford the same layer of coverage and both contain conflicting “other insurance” |gclauses which are irreconcilable, the policies must share liability on a pro rata basis. However, in this case, reforming the Evanston policy to reflect the mutual intent of the parties does not result in the Evanston and State Farm policies being mutually repugnant or lead to any absurdity. The policies simply provide different layers of coverage, with the Evanston policy being an excess umbrella policy over and above the State Farm umbrella policy.

CONCLUSION

In the case of mutual error, an insurance contract may be reformed to reflect the intent of the parties. Where, as here, the insurance agent has made a clerical error on the declarations page of an insurance policy as to the identity of certain underlying insurance policies, that clerical error will be corrected to reflect the clear intent of the parties. There are simply no rules of contractual interpretation that would lead us to ignore the clear intent of the parties to the fortuitous benefit of a third party insurance company who did not even rely on this error in issuing its own policy.

DECREE

For the reasons stated herein, the judgment of the court of appeal is affirmed.

AFFIRMED.

      .Evanston presented the affidavits of Stephen Geary (Alvin Samuel’s insurance agent), Arvella Campbell (Alvin Samuel’s renewal agent), and Sharesse Killebrew (Evanston's agent). The affidavit of Ms. Killebrew stated as follows:

      2. That in September of 1999, she was contacted by Stephen Geaiy of Huntleigh-McGee who inquired about obtaining a $2,000,000 excess umbrella protection for Alvin and Madilyn Samuels in excess of a $2,000,000 State Farm Fire & Casualty Insurance Company (State Farm) umbrella policy issued to Alvin and Madilyn Samuels;
      3. That on September 8, 1999, Stephen Geary forwarded to her the renewal certificate to the State Farm Umbrella Policy issued to Alvin and Madilyn Samuels numbered 18-PO-0016-1F demonstrating that the State Farm umbrella was in effect;
      3. [sic] That as general agent for Evanston she forwarded an Evanston umbrella application to Stephen Geary to be completed and properly executed by Alvin Samuels and Stephen Geary.
      4. That on October 7, 1999 she received the completed original umbrella application executed by Stephen Geary and Alvin Sam-uels, which specifically listed the $200,000 State Farm umbrella policy numbered 18-PO-0016-1F as a "basic umbrella underlying policy.;
      5. That as general agent for Evanston, she issued the Evanston excess umbrella policy and declaration page on November 30,-1999, with effective dates of November 8, 1999 through November 8, 2000, to Alvin and Madilyn Samuels, for a premium of $577.50 specifically listing the $2,000,000 State Farm umbrella policy numbered 18-PO-0016-1F as a underlying limit. While the declaration page incorrectly lists the $2,000,000 State Farm umbrella policy numbered 18-PO-0016-1F as a homeowner’s liability, this was a clerical error and the intent of Evanston was to list the $2,000,000 State Farm umbrella policy numbered 18-PO-0016-1F as an "other Liability” on the Evanston declaration page;
      6. That as general agent of Evanston, her intent was to issue to Alvin and Madilyn Samuels a $2,000,000 Evanston Insurance Company umbrella policy to be excess of Alvin and Madilyn Samuel's $2,000,000 State Farm umbrella policy numbered 18-PO-0016-1F;
      7. That as general agent for Evanston, she renewed the Evanston excess umbrella policy on December 4, 2000 again for a premium of $577.50 by listing an Insurance Declaration effective from November 8, 2000 to November 8, 2001, listing the $2,000,000 State Farm umbrella policy as an underlying limit.
      8. That while the Insurance Declaration effective November 8, 2000 to November 8, 2001 lists the $2,000,000 State Farm umbrella policy as T8-PO-0016-1F, when it should have been listed as 18-PO-0016-1F, this was a clerical error as the intent of Evanston was to list the State Farm umbrella policy numbered 18-PO-0016-1F as an underlying limit.
      9.That at all times it was the intent of Evanston for its $2;000,000 excess umbrella policy to be excess of the $2,000,000 State Farm umbrella policy.

      . At oral argument before this Court, both State Farm and Evanston made judicial admissions that their umbrella policies provide the insured with $4,000,000.00 of coverage and the insured will be entitled to this amount whether we rule that State Farm and Evans-ton are liable for this amount pro rata or that the Evanston policy is an excess umbrella policy which only affords coverage in excess of the State Farm umbrella policy.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Willard James BROWN, Sr.
    No. 2006-B-0895.
    Supreme Court of Louisiana.
    Oct. 17, 2006.

      Charles B. Plattsmier, Shana M. Brous-sard, Baton Rouge, for applicant.
    Willard J. Brown, Sr., for respondent.
   11ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) filed one count of formal charges against respondent, Willard James Brown, Sr., alleging that he neglected a client’s post-conviction relief matter and failed to communicate with his client. Respondent did not file an answer to the charges, and consequently, the ODC filed a motion requesting that the factual allegations of the formal charges be deemed admitted and proven by clear and convincing evidence. In response, respondent mailed a letter to the ODC in which he explained that he did not believe an answer to the formal charges was required because the matter had been previously resolved by consent discipline in the form of a public reprimand. Respondent also contested some of the factual allegations in the formal charges. The record is not clear as to whether the ODC responded to this letter, but it is undisputed that the ODC made no attempt to withdraw its motion to deem the charges admitted.

Subsequently, after the charges were deemed admitted by the hearing committee and the ODC filed its written arguments and documentary evidence on the issue of sanctions, respondent again attempted to raise the issue by filing a pleading captioned “Respondent’s Objection to Disciplinary Counsel’s Deemed Admitted Submission on Sanctions.” In that pleading, respondent reiterated that he believed no answer was required because the matter had been resolved by consent, and he again contested some of the deemed admitted factual allegations of the formal | ¡..charges. There is no indication from the record that the hearing committee considered or ruled upon respondent’s pleading. Ultimately, both the hearing committee and the disciplinary board accepted the sanction which had been recommended by the ODC — a six-month suspension with all but three months deferred, followed by a period of probation with conditions. Respondent filed an objection to the board’s recommendation in this court.

Our prior jurisprudence reveals that we have given a very liberal interpretation to the deemed admitted provisions, consistently holding that the deemed admitted rule should not be used to prevent a lawyer who wishes to present a defense to the formal charges from doing so. For example, in In re: Tosh, 98-2152 (La.l 0/9/98), 719 So.2d 396, we found that when a lawyer made a good faith effort to file his answer timely, the committee should allow him to participate and present evidence:

Based on our review of the facts, it appears respondent made a good faith effort to fíle his formal answer within the delays, as extended by the ODC. Respondent’s answer was sent to the ODC within the two day extension, and would have been filed into the record timely, but for the fact that it was forwarded to the Baton Rouge office. Under these circumstances, the answer should be considered timely. Moreover, even assuming respondent’s answer was untimely, the hearing committee should still make every effort to allow an attorney facing formal charges to participate and present evidence in the formal hearing, especially when the attorney makes a good faith effort to present a response, and. where such participation will not unduly delay the proceedings. The hearing committee should give a liberal construction to the rules and remain mindful of not elevating procedural restrictions over substantive rights. See Supreme Court Rule XIX, § 18(B); La. Code Civ. P. art. 5051.

Similarly, in In re: Gardner, 98-1476 (La.10/9/98), 719 So.2d 400, the lawyer filed a “Motion to Vacate Order” approximately one month after the committee granted the ODC’s motion to deem the formal charges admitted. In support, he | ¡¡contended he was never served with the formal charges. He also pointed out that he had provided a “detailed response” to the complaint in 1995, and had no further contact with the ODC after that date. Finally, he asserted that the factual allegations in the complaint were false. The committee denied the motion to set aside the deemed admitted charges. We found the committee was in error when it denied this motion:

Pretermitang the merits, we find the hearing committee chair erred when he denied respondent’s motion to vacate the “deemed admitted” order. While Supreme Court Rule XIX, § 11E(3) does provide a method of deeming charges admitted when the respondent fails to answer, the hearing committee should indulge every presumption in favor of an attorney who indicates he wishes to respond and participate in the formal hearing, even though the delays to answer have expired.
In the instant matter, respondent filed a detailed response to the initial complaint, indicating a willingness to cooperate on his part. Although he did not file a timely answer, he did respond to the committee’s “deemed admitted” order, asserting he did not receive notice of the formal charges. At this point, allowing respondent to file an answer and participate in the formal hearing would not have delayed the proceedings. Accordingly, we conclude the hearing committee chair should have vacated the “deemed admitted” order and given respondent an opportunity to file an answer and present evidence.

The procedural facts of the instant case are strikingly similar to Gardner. Like the lawyer in Gardner, respondent did not file an answer to the formal charges, but he did submit a response to the ODC indicating his belief that the charges against him had been resolved by consent. After the deemed admitted order was entered, respondent filed an objection in the hearing committee, again asserting his good faith belief that he was not required to answer due to the consent agreement. Under these circumstances, we find the committee should have recalled the deemed admitted order and allowed respondent the benefit of a full hearing. The impact of the committee’s |4error is particularly glaring in this case, because the sole basis for the Rule 1.4 violation is the allegation in the formal charges that respondent did not communicate with his client. Respondent has consistently disputed that assertion, pointing out that he did communicate with his client by sending him a copy of the application for post-conviction relief. Respondent also explains his subsequent failure to contact his client was because he was waiting to hear from the trial court. If the committee heard this evidence and accepted respondent’s explanation, it might well have rejected the Rule 1.4 charge, which in all likelihood would have resulted in the imposition of a lesser sanction.

Accordingly, we hereby vacate the order of the hearing committee which deemed admitted the factual allegations of the formal charges. The formal charges are remanded to the hearing committee for formal hearing, at which time respondent should be allowed to participate and present evidence. The committee shall file its report with the disciplinary board, which shall in turn submit a new recommendation of discipline to this court.

DECREE

For the reasons assigned, the deemed admitted order is vacated and the formal charges are remanded to the hearing committee for further proceedings.

      . Our order remanding this matter for a hearing on the formal charges is not intended to foreclose the parties from entering into consent discipline, if appropriate.


author: PER CURIAM. JOHNSON, J.,

text:
    In re Claire Russell DESLATTE.
    No. 2005-OB-1834.
    Supreme Court of Louisiana.
    Oct. 17, 2006.
    Schiff Law Corporation, Leslie J. Schiff, Opelousas; Corkern & Crews, Ronald E. Corkern, Jr., Claire R. Deslatte, for Applicant.
    Richard A. Goins, New Orleans; Stone Pigman Walther Wittmann, Scott T. Whit-taker, New Orleans, Charles B. Plattsmier, Baton Rouge, for Respondent.
   LON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

The Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Claire Russell Deslatte, to sit for the Louisiana Bar Examination based on character and fitness concerns relating to her delinquent debt. We subsequently granted petitioner permission to sit for the bar exam, with the provision that upon passing the exam, she file a brief, supported by appropriate documentary evidence, explaining the details of the delinquent financial matters.

Petitioner thereafter successfully passed the essay portion of the bar exam, and she filed the brief requested by the court, asserting that she had addressed her outstanding debts by settlement or by payment arrangement. Before we considered the brief, an anonymous letter was sent to the Committee and the court which reported various complaints about petitioner related to her association with the district attorney’s office where she had been employed. By letter dated October 27, 2005, the Committee advised petitioner that it would decline to certify her character and fitness to this court “based upon new information which brings into question your honesty and integrity,” referring to the allegations raised by the anonymous letter. On the same date, we appointed a commissioner to take evidence and report to this court whether petitioner possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the | ^Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing in February 2006, pursuant to Supreme Court Rule XVII, § 9(B). The commissioner received documentary evidence and heard testimony given by petitioner and her witnesses. At the conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).

After reviewing the evidence and considering the law, we conclude petitioner, Claire Russell Deslatte, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. Should petitioner commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

JOHNSON, J., dissents and assigns reasons.

JOHNSON, J.,

dissenting.

hThe applicant, Ms. Claire Deslatte was employed by the Office of the Winn Parish District Attorney during a period when that office was charged with financial mismanagement. The investigation by the Legislator’s Auditor and the Attorney General into the District Attorney’s improper spending practices ended, when he unfortunately, committed suicide. Therefore, the allegations of wrongdoing remain unresolved.

One of the allegations made was that Ms. Deslatte received payment for work which was not performed. The record contains little documentary evidence of work performed (time records, work product, etc.) Sworn testimony that work was performed, without any documentation, does not satisfy the burden of proof.

      . In re: Deslatte, 05-1834 (La.7/14/05), 905 So.2d 1085.


author: KIMBALL, Justice. CALOGERO, Chief Justice, JOHNSON, J. WEIMER, J.,

text:
    STATE of Louisiana v. Michael BATISTE.
    No. 2005-K-1571.
    Supreme Court of Louisiana.
    Oct. 17, 2006.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Meri M. Hartley, Assistant District Attorney, for applicant.
    Loyola Law Clinic, Deborah M. Snead, New Orleans, for respondent.
   KIMBALL, Justice.

hWe granted certiorari to consider whether the district court abused its discretion when it granted defendant’s motion to quash the bill of information filed against him after the State entered a nolle prosequi on the date of trial and subsequently reinstituted the proceedings. For the reasons that follow, we find the State had a legitimate reason for entering the nolle prosequi, did not violate defendant’s statutory rights, and did not violate defendant’s constitutional right to a speedy trial. Consequently, we find the court of appeal erred when it found the district court did not abuse its discretion in granting the motion to quash.

Facts and Procedural History

On November 12, 2002, the State filed a bill of information against the defendant, Michael E. Batiste, charging him with video voyeurism, a violation of La. R.S. 14:283. At his arraignment on December 9, 2002, defendant entered a plea of |3not guilty. After a hearing on defendant’s motions to suppress evidence and a statement regarding the alleged victim, which was held on February 7, 2003, the district court denied both motions. A second hearing on the motions was held on March 14, 2003, and the district court granted the motion to suppress evidence as to the alleged victim. The State objected and declared its intent to seek supervisory writs, and the district court granted the State until April 14, 2003, to file the writ. The State did not file the writ. Instead, it requested that the district court allow it to file a memorandum for reconsideration of its ruling on the suppression issue, and the court approved the request. On June 16, 2003, defendant filed a motion to quash the bill of information, and the district court deferred ruling on the motion to suppress evidence.

On July 16, 2003, defendant again filed a motion to quash, arguing that Lá. R.S. 14:283 is unconstitutional on grounds of vagueness and overbreadth. On September 9, 2003, the district court deferred ruling on the motion to suppress and the motion to quash until the day of trial. On November 24, 2003, the court denied defendant’s motion to suppress evidence and motion to quash the bill of information.

At a status hearing on December 8, 2003, the court set trial for January 28, | ¿2004. On January 13, 2004, the State filed a motion for continuance, which was subsequently granted by the district court. Trial was reset for March 23, 2004. On March 23, 2004, the State entered a nolle prosequi.

On April 16, 2004, the State reinstituted the charge against defendant. At his arraignment on May 25, 2004, defendant pleaded not guilty. On June 7, 2004, defendant filed a motion to quash the reinsti-tuted bill of information, arguing that the State’s entering of the nolle prosequi and the reinstitution of the charge violated his speedy trial rights and overrode the trial court’s power and discretion by granting itself a previously denied continuance. After a hearing on the motion to quash, the district court quashed the bill of information without explanation.

On appeal, the court of appeal found “no palpable abuse by the trial court” and affirmed. State v. Batiste, 04-1200 (La.App. 4 Cir. 5/11/05), 904 So.2d 766. The court of appeal specifically found the State did not enter the nolle prosequi to avoid statutory time limitations. Id., 04-1200 at p. 3, 904 So.2d at 768. Regarding defendant’s constitutional right to a speedy trial, the court of appeal determined the twenty-month delay between the filing of the original bill of information and the granting of defendant’s motion to quash was presumptively prejudicial, which necessitated further analysis. The court of appeal found the defendant suffered some prejudice, the State was more responsible for the delay than the defendant, and the defendant did not object to the delay or file a motion for speedy trial. Noting the difficulty of the case, the court of appeal ultimately determined it could not find palpable abuse on the part of the trial court.

We granted certiorari to consider the correctness of the court of appeal’s judgment. State v. Batiste, 05-1571 (La.2/3/06), - So.2d -. Specifically, we intended to look at the court’s inherent power to manage its docket, see La.C.Cr.P. Bart. 17, along with the district attorney’s right to control the criminal prosecutions instituted in his district, see La.C.Cr.P. art. 61. We find, however, that we need not reach this issue because there was a legitimate reason for the State to enter the nolle prosequi that was not based upon a struggle between the powers of the court and the prosecution or for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

Discussion

Article 691 of the Louisiana Code of Criminal Procedure confers on the district attorney the power to dismiss a formal charge, in whole or in part, and provides that leave of court is not needed. La. C.Cr.P. art. 693 expressly provides, subject to narrowly delineated exceptions, that dismissal of a prosecution “is not a bar to a subsequent prosecution.... ” The general limit imposed by the legislature on the discretion of the State under La.C.Cr.P. art. 691 to dismiss a prosecution without the consent of the court is that the dismissal of the original charge is “not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.” La.C.Cr.P. art. 576. La. C.Cr.P. art. 578(2) requires that trial of a non-capital felony be commenced within two years from the date of institution of the prosecution.

A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinsti-tuted charges should be decided on a case-by-case basis. State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Id. In this case, however, there is no 1 ¿indication that the district attorney was flaunting his authority at the expense of the defendant. Rather, the record indicates a nolle prosequi was entered because the victim was not present for trial and was wavering in her commitment to going forward with the case.

Additionally, we note the record reveals that on the March 23, 2004, trial date, the State did not enter a nolle prosequi after its request for a continuance was requested and denied. Instead, the prosecutor dismissed the prosecution without requesting a continuance. While there may be a serious issue as to whether the district court or the prosecutor ultimately controls the docket in certain instances, we need not reach this issue because it is apparent there was a legitimate reason for the nolle prosequi in this case.

Clearly, the dismissal of the prosecution was not for the purpose of avoiding the time limitation for commencement of trial established by La.C.Cr.P. art. 578. Nevertheless, defendant argues, and the court of appeal found, that defendant’s constitutional right to a speedy trial was violated. The constitutional right to a speedy trial is imposed upon the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). The underlying purpose of this constitutional right is to protect a defendant’s interest in preventing pretrial incarceration, limiting possible impairment of his defense, and minimizing his anxiety and concern. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972). The Supreme Court has set forth the following four factors for courts to consider in determining whether a defendant’s right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of his right to speedy trial; and (4) the prejudice to the accused resulting from the delay. Id. at 531-532, 92 S.Ct. at 2192-93; see also State v. Reaves, 376 So.2d 136 (La.1979) (adopting Barker factors). The specific circumstances of a case will determine the weight to be ascribed to the length of and reason for the delay because “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

In the instant case, approximately 19 months elapsed between the filing of the original bill of information and the granting of the defendant’s motion to quash. However, the reasons for the delay cannot be placed solely upon the State. As Judge Cannizzaro pointed out in his dissent from the court of appeal’s decision, approximately 10 months, from January 24, 2003, until November 24, 2003, were spent on motion hearings initiated by the defendant. Batiste, 904 So.2d at 772 (Cannizzaro, J. dissenting). In addition, from June 16, 2003, until November 24, 2003, the trial court had the defendant’s motion to quash under advisement. Furthermore, the record reveals no intentional delay on the State’s part for the purpose of gaining a tactical advantage.

| ^Regarding the third Barker factor, defendant did not assert his right to a speedy trial until he raised the issue in his motion to quash the bill of information after the charge was reinstituted. Finally, the last factor to be considered is whether the delay prejudiced the defendant. In support of this argument, the defendant claimed he had to endure the stigma of the instant charge for 20 months and that he suffered from the anxiety involved with a criminal prosecution. He further claimed that he was fired from his job in New Orleans and was only able to obtain a new job in Florida; consequently he was inconvenienced by having to travel for court appearances. However, there was no suggestion that his defense was ever impaired by the delays of his prosecution. In addition, the defendant’s presence was waived at a majority of the court proceedings. Defendant was not incarcerated during the 20-month period. Against this backdrop, it is clear that, after reviewing the Barker factors, the State’s action did not deny the defendant his right to a speedy trial, or otherwise cause specific prejudice to his defense.

Under the specific facts presented by this case, we find the district court abused its discretion in granting defendant’s motion to quash the bill of information. The record indicates the State entered a nolle prosequi because the victim was not present for trial and was unsure whether she wanted to go forward with her testimony. The State did not violate any of the time constraints imposed by statutory law.. Finally, defendant’s constitutional right to a speedy trial was not violated. Consequently, the court of appeal erred in affirming the judgment of the district court.

RDECREE

For the reasons explained above, the district court abused its discretion in granting defendant’s motion to quash the bill of information, and the court of appeal erred in affirming the district court’s judgment. The judgments of the lower courts are reversed, and the matter is remanded to the district court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

CALOGERO, C.J., and JOHNSON and WEIMER, JJ:, dissent and assign reasons.

CALOGERO, Chief Justice,

Dissenting:

LThe ruling of the district court, affirmed by the court of appeal, was well within the district court’s discretion.

JOHNSON, J.

dissenting and assigning reasons:

| n This case involves a novel issue and appears to be one of the first cases of video voyeurism in Orleans Parish. The majority concludes that the district attorney did not abuse his authority in entering this nolle prosequi, but simply did so in response to a reluctant witness who was unsure that she wanted to go forward with her complaint.

The transcript of the June 28, 2004 hearing on the Motion to Quash shows that the court and the parties were all well aware of the victim’s reluctance to go forward. This was nothing new. The State requested additional time for supervisory writs, requested rehearings of motions, requested continuances of the trial date, then utilized its authority to nolle prosequi when it was still unprepared for trial, after a third setting.

1 ¡.The District Attorney has broad discretion in both the institution and handling of criminal prosecutions. See, LSA-C.Cr.P. art. 61. State v. Kibodeaux, (La.App. 1 Cir.1983), 435 So.2d 1128. Although the district attorney’s discretion is broad, it is not absolute. Pursuant to LSA-C.Cr.P. art. 17, the courts possess “all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders.” The district court, in the exercise of its jurisdiction, has the obligation to manage the docket and to conduct criminal proceedings with dignity, order, and in an expeditious manner in order to preserve justice. Id.

The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court, and absent abuse, the ruling should not be disturbed by the appellate court. See, State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1204.

According to LSA-R.S. 14:283, a first time offender charged with video voyeurism may be fined not more than $2,000 or subject to imprisonment with or without hard labor for no more than 2 years or both. LSA-R.S. 14:283(B)(1). With regard to this felony offense, LSA-C.Cr.P. art. 578 provides that the State must commence trial within two years from the date of institution of the original prosecution.

There are many instances when the State acted within the time limitation, but jurisprudence has deemed the delay as unreasonable and “presumptively prejudicial.” In State v. Reaves, 376 So.2d 136 (La.1979), the defendant was charged with ^possession of one marijuana cigarette, a simple misdemeanor offense. The trial was continued four times in the three and one-half months after charges had been filed. On the fourth trial date, the State moved for a continuance because its principal witness was absent. The trial court denied the continuance, and the State entered a nolle prosequi. The State then filed a new bill of information, which the defendant moved to quash on the basis that he had been denied his right to a speedy trial. The trial court granted the motion, and this Court affirmed the lower courts’ rulings.

In State v. Leban, 611 So.2d 165 (La.App. 4th Cir.1992), writ denied, 619 So.2d 533 (La.1993), the defendant was charged with simple arson. The trial was continued eight (8) times in the sixteen (16) months after the charges had been brought. On the eighth trial date, the State moved for a continuance in order to identify and locate a witness it had known about for some time. The trial court denied the continuance, and the State entered a nolle prosequi. The State subsequently filed a new bill of information and the defendant moved to quash based on the denial of his right to a speedy trial. The trial court granted the motion. The court of appeal affirmed the trial court’s decision noting that the majority of the continuances were at the request of the State.

In State v. Firshing (La.App. 4 Cir., 9/16/93), 624 So.2d 921, the defendant, who was charged with simple burglary, filed a Motion to Quash the fourth bill of information on speedy trial grounds. The trial court granted the Motion. The trial court criticized the State’s practice of entering a nolle prosequi as a response to the court’s denial of the motion to continue, suggesting that the District Attorney was “wearing two hats-one of prosecutor and the other as Judge” where he used the nolle 1¿prosequi to accomplish his continuances. The court noted that a seventeen (17) month delay between the filing of the original bill of information, and the granting of the motion to quash, violated defendant’s speedy trial rights.

In my opinion, the delay in prosecution was presumptively prejudicial to the defendant, since the defendant appeared in court with his witnesses, prepared for trial, and the matter was continued on at least three occasions. Although the defendant was not incarcerated during the 19-month period, he was prejudiced by the delay of his prosecution. Prior to his arrest at his place of employment, defendant was gainfully employed in New Orleans. After his arrest, he was terminated and forced to seek employment out of state. The defendant suffered embarrassment, anxiety, unnecessary travel expenses, and loss of income. I believe the trial court was correct in concluding that the district attorney used the nolle prosequi and re-filed the bill of information to grant itself a continuance. For these reasons, I would affirm the lower courts’ rulings, which granted the defendant’s Motion to Quash.

WEIMER, J.,

dissenting.

hi respectfully dissent.

In effect, the majority opinion enables the state to “grant itself a continuance” by using the authority to nolle prosequi. Now, rather than asking for a continuance and risking that the request would be denied, the state can enter a nolle prosequi.

This matter had previously been set for trial and continued at the State’s request. On the date the matter was reset for trial, without providing any advance notice to the defense or the court, the State appeared and entered a nolle prosequi.

The defendant filed a motion to quash the new indictment. At the motion to quash, the State had the burden to establish that the defendant was not prejudiced by the nolle prosequi and reinstitution of the prosecution. See State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, (Weimer, J., concurring in part, dissenting in part):

When the State dismisses charges within seven days of trial and thereafter reinstitutes the charges, the State should have the burden to | ¡¡establish the defendant was not prejudiced. Imposing such a burden on the State would strike an equilibrium between the statutory authority of the District Attorney and the court and ensure the District Attorney has not abused the authority. Such a requirement should not be considered a limitation on the authority of the District Attorney, but rather a limitation on a potentially abusive practice. This equilibrium between the statutory authority of the court and the District Attorney was recognized in State v. Frith, 194 La. 508, 518, 194 So. 1, 4 (1940). [Footnote omitted.]

Id. 00-3347 at 4-5, 847 So.2d at 1215.

The record does not reflect the State met this evidentiary burden.

I note the court of appeal majority, upon review of this record, found there was no abuse of discretion by the trial court in granting the motion to quash. The trial court had the advantage of observing the actions of the State firsthand in determining whether the State’s actions violated the rights of the defendant. During the hearing on the motion to quash in an exchange between the trial court and the State, the State conceded that the court had been very patient and lenient with the State’s dilatory actions and had granted all prior requests for continuances.

I would find the trial court did not abuse its discretion in quashing the bill of information.

      . La. R.S. 14:283 provides:
      A. Video voyeurism is:
      (1) The use of any camera, videotape, photo-optical, photo-electric, or any other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping a person where that person has not consented to the observing, viewing, photographing, filming, or videotaping and it is for a lewd or lascivious purpose; or
      (2) The transfer of an image obtained by activity described in Paragraph (1) of this Subsection by live or recorded telephone message, electronic mail, the Internet, or a commercial online service.
      B.(l) Except as provided in Paragraphs (3) and (4) of this Subsection, whoever commits the crime of video voyeurism shall, upon a first conviction thereof, be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than two years, or both.
      (2) On a second or subsequent conviction, the offender shall be fined not more than two thousand dollars and imprisoned at hard labor for not less than six months nor more than three years without benefit of parole, probation, or suspension of sentence.
      (3) Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any vaginal or anal sexual intercourse, actual or simulated sexual intercourse, masturbation, any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva, or genitals shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than one year or more than five years, without benefit of parole, probation, or suspension of sentence.
      (4) Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any child under the age of seventeen with the intention of arousing or gratifying the sexual desires of the offender shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years without benefit of parole, probation, or suspension of sentence.
      C.The provisions of this Section shall not apply to the transference of such images by a telephone company, cable television company, or any of its affiliates, an Internet provider, or commercial online service provider, or to the carrying, broadcasting, or performing of related activities in providing telephone, cable television, Internet, or commercial online services.
      D. After the institution of prosecution, access to and the disposition of any material seized as evidence of this offense shall be in accordance with R.S. 46:1845.
      E. Any evidence resulting from the commission of video voyeurism shall be contraband.
      F.A violation of the provisions of this Section shall be considered a sex offense as defined in R.S. 15:541(14.1). Whoever commits the crime of video voyeurism shall be required to register as a sex offender as provided for in Chapter 3-B of Title 15 of the Louisiana Revised Statutes of 1950.

      . At the same hearing, the district court also granted motions to suppress the evidence and a statement regarding another victim.

      . The State mistakenly stated in its brief to this court that it requested a continuance before entering the nolle prosequi. However, the docket master and minute entry from that date indicate only that the defendant appeared for trial and the State entered a nolle prosequi. In the briefs filed in the court of appeal, neither the State nor the defendant mention a continuance being requested and denied before the nolle prosequi was entered. The court of appeal makes no mention of a continuance being requested on March 23, 2004. Furthermore, in his motion and memorandum to quash the bill of information, defendant asserted the State requested a continuance on March 23, 2004, which was denied, before the nolle prosequi was entered. In response to this motion, the State specifically addressed this assertion, stating, "On the second trial setting [March 23, 2004], the State dismissed the charges. There was no motion for continuance filed nor did the trial court deny any such motion.” Thus, the record does not support the conclusion that the State requested a continuance before entering the nolle prosequi, and we can only determine that the assistant district attorney, who was not present on March 23, 2004, made, an error of fact when stating to the contrary in briefs to this court.

      . The Barker Court rejected "the rule that a defendant who fails to demand a speedy trial forever waives his right” and adopted instead "the rule ... that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.” Barker, 407 U.S. at 528, 92 S.Ct. at 2191.

      . There is some dispute as to whether there were four trial dates.

      . LSA-C.Cr.P. art. 61 provides, in pertinent part, that "the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.”

      . The State indicates in brief that it requested a continuance before entering the nolle prose-qui.

      . The practice of the State "granting itself a continuance” via a nolle prosequi after the trial court denies the State’s motion for a continuance has been the source of growing concern. See, e.g., State v. Carter, 02-1279 (La.App. 4 Cir. 1/29/03), 839 So.2d 390; State v. Larce, 01-1992, (La. App 4 Cir. 1/23/02), 807 So.2d 1080, writ denied, 02-0335 (La. 10/3/03), 855 So.2d 293; State v. Henderson, 00-0511 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138; State v. Pham, 97-0459 (La.App. 4 Cir. 3/26/97), 692 So.2d 11; State v. DeRouen, 96-0725 (La.App. 4 Cir. 6/26/96), 678 So.2d 39; State v. Esteen, 95-1079 (La.App. 4 Cir. 4/3/96), 672 So.2d 1098, writ denied, 96-0979 (La.9/27/96), 679 So.2d 1359; State v. Firshing, 624 So.2d 921 (La.App. 4 Cir.1993), writ denied, 93-2621 (La.2/25/94), 632 So.2d 760; State v. Leban, 611 So.2d 165 (La.App. 4 Cir.1992), writ denied, 619 So.2d 533 (La.1993).


author: KIMBALL, J. VICTORY, J.,

text:
    Jason MALLETT v. Paola McNEAL and United Services Automobile Association. Charles Richey and Barbara Richey v. Infinity Insurance Company, Kameron E. Dixon and Keith Dixon.
    Nos. 2005-CC-2289, 2005-CC-2322.
    Supreme Court of Louisiana.
    Oct. 17, 2006.
    Victory, J., dissented and filed opinion.

      Seale, Smith, Zuber & Barnett, Valerie B. Bargas, Brent E. Kinchen, Baton Rouge, for Applicant in (2005-CC-2289).
    Leonard Cardenas, III, Baton Rouge, for Respondent in (2005-CC-2289).
    Bolen, Parker & Brenner, Michael D. Hislop, Alexandria, for Applicant in (2005-CC-2322).
    John R. Flynn, Jr., for Respondent in (2005-CC-2322).
   KIMBALL, J.

hWe granted certiorari and consolidated these two cases to determine whether the insurance companies’ actions with regard to the property damage claims of third party claimants qualified as acknowledgments sufficient to interrupt prescription or qualified as settlements, as the term is used in La. R.S. 22:661. For the reasons that | ¿follow, we hold that an unconditional payment of a property damage claim constitutes an acknowledgment sufficient to interrupt prescription and that the term “settlement,” as used in La. R.S. 22:661, is limited to a settlement or compromise as contemplated by La. C.C. art. 3071. Specifically, in 05-CC-2289, we find that the insurer made an unconditional payment to the third-party claimant, thereby interrupting prescription; in 05-CC-2322, we refer the issue of prescription to trial on the merits and remand the case for further proceedings consistent with this opinion.

FACTS OF 05-CC-2289

In 05-CC-2289, Jason Mallett v. Paola McNeal & United States Auto. Ass’n, plaintiff, Jason Mallett, was operating a vehicle that was struck from behind by a vehicle operated by defendant, Paola McNeal, as a result of which plaintiff suffered damages. The accident occurred on January 8, 2004, and at that time defendant Paola McNeal was insured by an automobile liability policy issued by defendant United States Automobile Association (“USAA”). In November 2004, pursuant to a demand for payment of property damage suffered by plaintiff, USAA made a payment to plaintiff. USAA issued a check in conjunction with the appraisal, and plaintiff cashed the check. Plaintiff subsequently forwarded a supplemental estimate of aftermarket parts, and USAA issued another check for the additional repairs, which plaintiff also cashed.

On February 17, 2005, more than one year after the accident, plaintiff filed the instant action against defendants for injuries and damages sustained as a result of the accident. In the petition, plaintiff states that, although the action was filed more than one year after the date of the accident, the action was not prescribed because USAA’s payment of the property damage served as an acknowledgment, thereby interrupting prescription. USAA filed an exception of prescription.

LThe district court denied USAA’s exception of prescription. In his oral reasons, the judge stated:

The legislature used the word settlement. Settlement contends a disputed claim and some negotiation and, perhaps, compromise of that. I don’t think that’s what the legislature intended, but it’s what the legislature said.
The Supreme Court has said there can be tacit acknowledgments of a debt so as to interrupt prescription, and unconditional payments amount to such an acknowledgment ...
Like I said, I think the Legislature perhaps didn’t mean settlement when it said settlement. I think it meant payment and/or settlement, but it used the word settlement.
So I must apply the law as it is written. And while I think that the case has prescribed, I’m going to overrule the exception.

The court of appeal denied the writ, with one judge dissenting. In the dissent, the judge stated there was no showing that USAA admitted liability, lulled Mallett into believing liability would not be contested, or otherwise expressed a clear declaration of intent to interrupt prescription. We granted certiorari to determine whether USAA acknowledged the claim, thereby interrupting prescription.

FACTS OF 05-CC-2322

In 05-CC-2322, Charles Richey & Barbara Richey v. Infinity Ins. Co., Kameron E. Dixon & Keith Dixon, plaintiff, Charles Richey (“Richey”), was involved in a collision with a vehicle driven by defendant Kameron Dixon and owned by defendant Keith Dixon on March 11, 2000. Defendant Keith Dixon was insured by defendant Infinity Insurance Company (“Infinity”).

Infinity sent a letter, postmarked March 15, 2000, requesting that Richey fill out forms. Because the vehicle was totaled, Infinity sent a second letter, postmarked March 24, 2000, asking Richey to sign the bill of sale, power of attorney and related forms and send the car title to Infinity. A check was issued July 10, 2000, for $3150.00, which Richey cashed. Infinity enclosed a letter stating that the check represented payment for the total loss of the vehicle.

^Subsequently, plaintiffs Charles and Barbara Richey timely filed suit on March 12, 2001, in the Ninth Judicial District Court, Rapides Parish, plaintiffs’ domicile. Defendants filed an exception of improper venue urging Vernon Parish was the proper venue because the accident occurred in Vernon Parish and defendants were domiciled there. After the hearing on the exception of improper venue, the district court granted defendants’ motion and transferred the action to the Thirtieth Judicial. District Court, Vernon Parish.

Thereafter, defendants filed an exception of prescription urging that, because the action was filed in a court of improper venue and no defendants were served within the prescriptive period, the action had prescribed. Plaintiffs did not file a memo with the court on the exception. At a hearing on the exception of prescription plaintiffs argued that the payment of the property damage and the representations made by Infinity to Richey constituted an acknowledgment, thereby interrupting prescription. Richey testified about the letters he received from Infinity and the check that was issued for the value of the truck, and the exhibits were offered into evidence. Because the plaintiffs argued acknowledgment for the first time at the hearing, the defendants objected to the plaintiffs’ argument specifically contesting the fact that plaintiffs did not first submit a brief on the issue of acknowledgment. The defendants cited a violation of local rules, but the district court allowed plaintiffs to continue, with the stipulation that the defendants could submit supplemental briefing on the issue. Defendants subsequently filed a supplemental memorandum alleging that the | Rproperty damage claim had been settled, as contemplated by La. C.C. art. 3071. Moreover, defendants asserted that the settlement had been reduced to writing and signed by Richey. The district court denied defendants’ exception of prescription stating that “[t]he law is clear that the payment of a property claim is an acknowledgment and interrupts prescription.” The court of appeal denied the writ, stating there was no error in the district court’s ruling. We granted certio-rari to determine whether the district court was correct in finding that Infinity acknowledged the claim.

DISCUSSION

Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted. Carter v. Haygood, 04-0646, p. 10 (La.1/19/05), 892 So.2d 1261, 1268. The burden of proof on the prescription issue lies with the party asserting it unless the plaintiffs claim is barred on its face, in which case the burden shifts to the plaintiff. Bailey v. Khoury, 04-0620, p. 9 (La.1/20/05), 891 So.2d 1268, 1275.

Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464. Such an acknowledgment is not subject to any particular formality. Lake Providence Equip. Co. v. Tallulah Prod. Credit Ass’n, 231 La. 104, 241 So.2d 506, 509 (1970). It may be written or verbal, express or tacit. Id.

In Flowers v. U.S. Fid. & Guar. Co., 381 So.2d 378, 382 (La.1979) (on rehearing), this court consulted Aubry and Rau in interpreting the codal article dealing with acknowledgment, quoting:

The acknowledgment with the inter-ruptive effect may be express or tacit. No specific form is prescribed for the express acknowledgment; |fiit may be by regular mail or even orally. Tacit acknowledgment results from any action which amounts to an admission of the creditor’s or owner’s right, for instance the payment of a bill as debtor; payment of a portion of the debt, interests or arrears by the debtor or his agent; a request for a postponement of a payment; and, a fortiori, the payment of the amount due by the agent of the debtor. The same would be true of an offer to pay the damages caused by a tort, made by the defendant in the course of the trial, or of an actual act of reparation or indemnity.

2 Civil Law Translations, Aubry & Rau, Property, § 215, No. 304, p. 344 (1966), quoted in Flowers, 381 So.2d at 382.

Accordingly, this court has stated that acknowledgment sufficient to interrupt prescription may be made by partial payment, by payment of interest or by pledge, or in other ways, and that it may be implicit or it may be inferred from the facts and circumstances. Flowers, 381 So.2d at 382. Moreover, the court specifically stated that the prescription of a delictual obligation could be interrupted by either an express or tacit acknowledgment. Id. at 381-82.

Thereafter, in Lima v. Schmidt, 595 So.2d 624, 633-34 (La.1992), this court cited the commentary of Baudry-Lacantiner-ie and Tissier:

Acknowledgment is a simple admission .... A simple admission does not result in new legal ties. It only shows that the debt is not extinguished, that the creditor was not negligent, that the owner had a reason for not acting to preserve his right....
Acknowledgment interruptive of prescription results from any act or fact which contains or implies the admission of the existence of the right. It can be express or tacit.... [I]t can result from ... an offer made by the debtor even if not acceptedby the creditor, at least if it is not conditional or in the nature of a mutual settlement....

5Civil Law Translations—Baudry-Lacantinerie & Tissier, Prescription, §§ 476, 527-35 (esp. 531), 647, quoted in Lima, 595 So.2d at 633.

In Lima, 595 So.2d at 634, the court defined a tacit acknowledgment as occurring when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Id. Conversely, mere settlement offers or conditional payments, | ^humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowledgments, as reflected in the host of cases addressing the issue of what constitutes a tacit acknowledgment. Id. Our courts have added to the above generalizations other criteria that evidence an acknowledgment, including undisputed liability, repeated and open-ended reassurances of payment, and continuous and frequent contact with the creditor throughout the prescriptive period. Id. In contrast, our courts have recognized that mere recognition of a disputed claim, conditional payments, and settlement or compromise offers or negotiations do not evidence an acknowledgment. Id.

Indeed, in Collins v. Capital Valve & Fitting Co., 409 So.2d 579, 580-81 (La.1982), this court held that the check issued by the insurer, coupled with the release executed by the third party claimant, clearly indicated that the parties intended a settlement of the property damage. This court determined that “here, it is apparent that there was not an acknowledgment but, rather, a settlement which acted as a transaction and compromise of the property damages.” Id. at 580.

Thereafter, this court concluded that an unconditional payment of benefits constituted an acknowledgment which served as a waiver of the right to assert abandonment in Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, pp. 18-21 (La.5/15/01), 785 So.2d 779, 791-93. This court noted that “[t]he historical and theoretical nature of abandonment as a species of prescription renders it appropriate to consider prescriptive principles in analyzing res nova abandonment issues such as the issues presented in this case by defendant’s tender.” Id., p. 19, 785 So.2d at 791. Specifically, the court distinguished between an unconditional tender and a settlement offer, determining that an unconditional tender is made to a plaintiff “not in settlement of the case, but to show [the insurer’s] good faith in the matter and to | ^comply with the duties imposed upon them under their contract of insurance with the insured.” Clark, 00-3010, p. 18, 785 So.2d at 791 (quoting McDill v. Utica Mutual Insurance Co., 475 So.2d 1085, 1091-92 (La.1985)). A tender made to satisfy the requirements of La.R.S. 22:658(A)(1) must be unconditional, with “no strings attached,” and thus, by definition, cannot be a settlement offer. Clark, 00-3010, p. 18, 785 So.2d at 791.

Thus, this court has previously held that an unconditional payment or tender may constitute an acknowledgment sufficient to interrupt abandonment, a species of prescription. Moreover, this court has reiterated that a tacit acknowledgment is defined as an act of reparation or indemnity, an unconditional offer or payment, or actions which lull the creditor into believing he will not contest liability. Lima, 595 So.2d at 634. Relying on this definition, an unconditional payment constitutes an acknowledgment sufficient to interrupt prescription. Although we are mindful that some decisions by the lower courts have held that payment of a property damage claim was insufficient to constitute an acknowledgment, these decisions have ignored our definition of tacit acknowledgment, as announced in Lima, which expressly includes unconditional payments.

| gHaving defined acknowledgment, we are now called to resolve a split among the courts of appeal concerning the effect of La. R.S. 22:661 on acknowledgments. La. R.S. 22:661 provides:

No settlement made under a motor vehicle liability insurance policy of a claim against any insured thereunder arising from any accident or other event insured against for damage to or destruction of property owned by another person shall be construed as an admission of liability by the insured, or the insurer’s recognition of such liability, with respect to any other claim arising from the same accident or event.

Under La. R.S. 22:661, therefore, a settlement of a third-party claim for property damage relating to a motor vehicle policy shall not constitute an admission of liability by the insured, or recognition thereof by the insurer, as to any other claim arising from the same accident or event.

The primary task in interpreting La. R.S. 22:661 is to define a “settlement,” and we begin by examining the decisions of the courts of appeal discussing “settlement” as used in the statute. In Sotomayor v. Lewis, 95-2520, p. 5 (La.App. 4 Cir. 4/24/96), 673 So.2d 1201, 1204, the Fourth Circuit Court of Appeal equated “settlement” with “payment” without explanation, declaring “[i]n the scheme of determining whether there was an acknowledgment sufficient to interrupt prescription, La. R.S. 22:661 simply negates any effect to be given by the debtor’s payment of property damages. In other words, payment of property damages does not bear any weight on deciding whether prescription was interrupted.” (emphasis added).

In contrast, the Third Circuit Court of Appeal specifically distinguished between “settlement” and “payment” and noted that La. R.S. 22:661 was limited to “settlements” as traditionally defined in Louisiana law in Compton v. St. Paul Fire & Marine Ins. Co., 01-386, pp. 4-5, (La.App. 3 Cir. 10/3/01), 796 So.2d 896, 899. The court stated:

However, La. R.S. 22:661 does not state that no payment shall be construed as an admission of liability by the insured; it states that no settlement shall be construed as an admission. A settlement and a payment are two distinct things. Louisiana jurisprudence has consistently equated a settlement with a transaction or compromise. Therefore, settlements are governed by the civil code articles on transaction and compromise, requiring a meeting of the minds and reciprocal concessions, as well as the form requirements discussed above. Here, St. Paul simply paid Ms. Compton for her property damage and wrecker expenses. There was no settlement as envisioned by La. R.S. 22:661, and therefore, the statute does not apply.

Id. (footnotes omitted). Thus, the Third Circuit applied the definition of settlement or compromise as found in La. C.C. art. 3071, which provides:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

Likewise, the Fifth Circuit Court of Appeal, in Young v. Gremillion, 05-802, pp. 9-11 (La.App. 5 Cir. 3/14/06), 924 So.2d 1285, 1290-92, recognized a distinction between “settlement” and “unconditional payments.” The court determined that the unambiguous language of La. R.S. 22:661 only applies to settlements or compromises as contemplated by La. C.C. art. 3071. The court concluded that since the statute does not mention unconditional payments of property damage claims, such unconditional payments are inapplicable to La. R.S. 22:661. The court also considered the insurer’s argument that since La. R.S. 22:658 requires |nan unconditional payment upon satisfactory proof of loss, it cannot be concluded that such a payment, required by law, can serve as an acknowledgment interrupting prescription. The court recognized that under La. R.S. 22:658, an insurer is only required to make an unconditional payment to an insured, not a third-party claimant. The only duties imposed on insurers by La. R.S. 22:658 with regard to third-party claimants are to “make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim” under 22:658 A(4) and to “pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant” under 22:658 A(2). Thus, the insurer essentially has an obligation to make a timely offer of settlement, and if a settlement had been confected in writing, the insurer' has an obligation to timely perform its obligations under the settlement agreement. The court stated that:

Compliance with the statute, as to third party claims, is only mandated as part of a settlement. Had the payment been made as part of a settlement as required by statute, it would not be deemed an acknowledgment of liability under the dictates of La. R.S. 22:661 and the jurisprudence.

Young, 05-802, p. 11, 924 So.2d at 1291.

In determining the meaning of “settlement” in the context of La. R.S. 22:661, we recall that interpretation of this statute begins, as it must, with the language of the statute itself. Trahan v. Coca Cola Bottling Co. United. Inc., 04-0100, p. 6 (La.3/2/05), 894 So.2d 1096, 1102. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. C.C. art. 9. Words and phrases shall be read with their context and shall be construed according hato the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. La. R.S. 1:3. When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. R.S. 1:4.

We are cognizant of the abundance of jurisprudence that defines “settlement” as a compromise or transaction and distinguishes between a “settlement” and an “unconditional payment.” See, e.g., Trahan, 04-0100, pp. 7-11, 894 So.2d at 1102-04; Clark, 00-3010, pp. 18-20, 785 So.2d at 791-92; Lima, 595 So.2d at 632-34; McDill, 475 So.2d at 1091-92; Collins, 409 So.2d at 580-81; Flowers, 381 So.2d at 381-382.

Next we consider La. R.S. 22:661 in pari materia with La. R.S. 22:658. 1 iaWe agree with the court of appeal, in Young, that an insurer has no duty to make an unconditional payment to a third party under La. R.S. 22:658, and conversely, that La. R.S. 22:661 only applies to settlements between insurers and third-party claimants. Therefore, no potential interaction can exist between the duty to render unconditional | upayments to insureds as mandated by La. R.S. 22:658 and the limitation on the recognition of liability as to third-party claimants under La. R.S. 22:661. Moreover, the insurer’s obligations under La. R.S. 22:658 to make an offer of settlement parallels the limitation in La R.S. 22:661 preventing such a settlement from being construed as an insurer’s recognition of liability.

At oral argument, counsel for USAA suggested that the insurance code is sui generis, and therefore subject to separate rules which may or may not coincide with the rules of the Civil Code and that “settlement” has a separate and distinct meaning in the context of the insurance code. La. R.S. 22:658, another insurance provision, however, makes a distinction between “payments” and “settlement.” La. R.S. 22:658(B)(1) begins “[fjailure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim.... ” The use of the disjunctive “or” indicates that the statute contemplates two different situations — failure to make a payment and failure to make an offer of settlement. Thus, even under the limited purview of insurance law, “settlement” is not equated with “payment.”

We are unable to overlook the frequency in which the term “settlement” is placed in contradistinction to “unconditional payments” and therefore decline to equate settlement with payment, as urged by USAA. We find the use of the term “settlement” in La. R.S. 22:661 to clearly and unambiguously refer to a compromise or transaction as contemplated by La. C.C. art. 3071.

With this principle in mind, we now turn to the instant cases. In 05-CC-2289, Jason Mallett v. Paola McNeal & United States Auto. Ass’n, USAA issued a check to Mallett, a third-party claimant, for his property damage and then issued a subsequent check for additional property damages. The property claim was not Unsettled by the issuance of the first check, because otherwise there would be no reason to issue a second check in recompense for property damage, and likewise there is no evidence that the claim was settled after the second check was issued. There is no evidence that Mallett took the checks subject to any conditions, released USAA from any further obligations, or signed a document evidencing a settlement. Under these facts, USAA’s actions constituted an unconditional payment and not a settlement. Because the parties did not effectuate a settlement in 05-CC-2289, La. R.S. 22:661 is inapplicable. Moreover, as explained above, this unconditional payment constitutes a tacit acknowledgment sufficient to interrupt prescription. Accordingly, we conclude that the district court correctly denied USAA’s exception of prescription.

In 05-CC-2322, Charles Richey & Barbara Richey v. Infinity Ins. Co., Kameron E. Dixon & Keith Dixon, Infinity requested that Richey sign a bill of sale, power of attorney, and related forms, which stated that Richey would receive $3150.00 from Infinity. After Richey returned the form, Infinity issued him a check in the amount of $3150, which he cashed. Although Infinity asserts in its supplemental memorandum that a signed settlement agreement was confected, an agreement was not entered into evidence and therefore is not before us. Considering the procedural circumstances surrounding the exception of prescription, however, namely that defendants were essentially surprised by plaintiffs’ argument that an acknowledgment served to interrupt prescription, this case is remanded to the district court and the issue of prescription is referred to the merits. The district court may reconsider the exception of prescription after reviewing the evidence submitted at trial.

hfiDECREE

For all of the foregoing reasons, we conclude that an unconditional payment of property damage claim constitutes an acknowledgment interrupting prescription. Moreover, we hold that the term “settlement” in La. R.S. 22:661 can be equated with compromise, as the term is defined in La. C.C. art. 3071. Therefore, we affirm the district court’s denial of the exception of prescription in 05-CC-2289, and we vacate the ruling in 05-CC-2322 and remand the case to the district court for further proceedings consistent with this opinion.

05-CC-2289 AFFIRMED.

05-CC-2322 VACATED AND REMANDED.

VICTORY, J., dissents and assigns reasons.

VICTORY, J.,

dissenting.

hi dissent from the majority opinion. La. R.S. 22:661 expressly provides:

No settlement made under a motor vehicle liability insurance policy of a claim against any insured thereunder arising from any accident or other event insured against for damage to or destruction of property owned by another person shall be construed as an admission of liability by the insured, or the insurer’s recognition of such liability, with respect to any other claim arising from the same accident or event.

I disagree with the majority’s holding that the term “settlement” in La. R.S. 22:661 refers only to a “compromise or transaction” as contemplated by La. C.C. art. 3071 and not to an unconditional payment of a claimant’s property damage claim. La. R.S. 22:661 was clearly intended to promote an insurer’s obligations under La. R.S. 22:658 to pay unconditionally, in the case of the insured, or to settle, in the case of a third party claimant, property damage claims.

hi also disagree with the majority that La. R.S. 22:661 was only meant to allow an insurer to settle property damage claims with third party claimants, as it is obligated to do under La. R.S. 22:658, and not interrupt prescription as to all other claims, but not meant to also apply when the insurer simply pays the third party’s property damage claim. The application of La. R.S. 22:661 does not hinge on whether the payment of a property damage claim is unconditional or part of a settlement, but instead is directed toward promoting the payment of undisputed property damage claims without fear of interrupting prescription as to all other claims.

I agree with the view of the Second and Fourth Circuits which both hold that unconditional payment of a property damage claim is not an acknowledgment sufficient to interrupt prescription of the claimant’s other insurance claims. Waller v. Stuckey, 24,578 (La.App. 2 Cir. 1/20/93), 613 So.2d 643, writ denied, 618 So.2d 409 (La.4/30/93); Rosen v. State Farm Mutual Automobile Ins. Co., 03-1744 (La.App. 4 Cir. 3/17/04), 870 So.2d 1057; Perez v. Finn, 04-1914 (La.App. 4 Cir. 3/2/05), 899 So.2d 585.

For the above reasons, I respectfully dissent.

      . Prescription is interrupted when the obligee commences action against the obligor in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. La. C.C. art. 3462. In this case, plaintiffs commenced an action in a court of improper venue, and defendants were served on March 16, 2001, approximately one year and five days after .the accident and after the case had prescribed on its face.

      . As pointed out by one court of appeal:
      "Finally, we note one other distinction among the cases that is sometimes overlooked. In Lima v. Schmidt, supra, the Supreme Court, defining tacit acknowledgment, stated that "[a] tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment or lulls the creditor into believing he will not contest liability.” The Supreme Court used the disjunctive "or” annunciating distinctly different examples of tacit acknowledgment. In reviewing the prior jurisprudence in this area, we note that the courts have sometimes missed this distinction. Rather than viewing an unconditional payment of property damages as a separate and distinct act of tacit acknowledgment, as provided by the Supreme Court in Lima, they have combined the unconditional payment with a "lulling” analysis and reviewed the facts to determine if, overall, the creditor was lulled into believing that the debtor would not contest liability ...”

        Young v. Gremillion, 05-802, p. 11, (La.App. 5 Cir. 3/14/06), 924 So.2d 1285, 1291-92.

      . An application for writ of certiorari is currently pending before this court in this case.

      . La. R.S. 22:658 provides in part:
      A. (1) All insurers issuing any type of contract, other than those specified in La. R.S. 22:656, La. R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
      (2) All insurers issuing any type of contract, other than those specified in La. R.S. 22:656, La. R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
      (3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in La. R.S. 22:1220.
      (4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.
      B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due.
      (2) The period set herein for payment of losses resulting from fire and the penalty provisions for nonpayment within the period shall not apply where the loss from fire was arson related and the state fire marshal or other state or local investigative bodies have the loss under active arson investigation. The provisions relative to time of payment and penalties shall commence to run upon certification of the investigating authority that there is no evidence of arson or that there is insufficient evidence to warrant further proceedings.
      (3) The provisions relative to suspension of payment due to arson shall not apply to a bona fide lender which holds a valid recorded mortgage on the property in question.
      (4) Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant’s loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable expenses or one thousand dollars whichever is greater together with reasonable attorneys fees for the collection of such expenses.

      . We reiterate that at the hearing on the exception of prescription, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art 931.


text:
    Zandrea JOHNSON v. Bobby SPURLOCK.
    No. 2006-CJ-2417.
    Supreme Court of Louisiana.
    Oct. 17, 2006.
   PER CURIAM.

Granted. The trial court’s ex parte order of October 4, 2006 transferring physical custody of the child to the father is vacated and set aside. Physical custody of the child shall remain with the mother until such time as the trial court has heard and ruled upon the mother’s pending motion for new trial. The case is remanded to the trial court, which is directed to hear and rule upon the motion for new trial on an expedited basis.

CALOGERO, C.J., and VICTORY and WEIMER, JJ., would recall stay and deny the writ.


text:
    Joseph Brandon LOCKE v. Lonnie Dale YOUNG, Jr., Illinois National Insurance Company, and RPM Pizza, LLC, d/b/a Domino’s Pizza.
    No. 2006-CC-2454.
    Supreme Court of Louisiana.
    Oct. 17, 2006.
   In re Clarendon America Insurance Co.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. I, No. 484,368-A; to the Court of Appeal, Second Circuit, No. 41801-CW.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    STATE of Louisiana v. Emmitt LEWIS.
    No. 2006-KK-2457.
    Supreme Court of Louisiana.
    Oct. 18, 2006.
   In re Lewis, Emmitt;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. III, No. 469-107; to the Court of Appeal, Fourth Circuit, No. 2006-K-1302.

Denied.

CALOGERO, C.J., would grant.

KIMBALL, J., would grant with respect to the identity of the victim otherwise denied.

JOHNSON, J., would grant.


text:
    J.L. FRANKLIN v. SECRETARY OF STATE, State of Louisiana, Al Ater.
    No. 2006-OC-2538.
    Supreme Court of Louisiana.
    Oct. 25, 2006.
   In re Franklin, J. L.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2006-004815; to the Court of Appeal, Third Circuit, No. 06-1332.

Not considered. Not timely filed. The court of appeal rendered its judgment on Thursday, October 19, 2006 at 10:45 a.m. Because the forty-eight hour time interval under La.R.S. 18:1409(G) for filing this application ended on a legal holiday, relator’s application was due by noon on the next legal day. La.R.S. 18:1413. The application was not filed until Monday, October 23, 2006 at 1:31 p.m. and is therefore untimely.


text:
    Misty Marie Ruschel ORDOYNE v. Bill Joseph ORDOYNE, Jr.
    No. 2006-CC-2550.
    Supreme Court of Louisiana.
    Oct. 25, 2006.
   In re Ordoyne, Bill Joseph Jr.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 1997-21041; to the Court of Appeal, Fourth Circuit, No. 2006-C-1362.

Stay denied.

KIMBALL, J., would grant stay.

TRAYLOR, J., would grant stay.

KNOLL, J., would grant stay.


text:
    Misty Marie Ruschel ORDOYNE v. Bill Joseph ORDOYNE, Jr.
    No. 2006-CC-2551.
    Supreme Court of Louisiana.
    Oct. 25, 2006.
   In re Ordoyne, Bill Joseph Jr.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 1997-21041; to the Court of Appeal, Fourth Circuit, No. 2006-C-1362.

Writ denied.

KIMBALL, J., would grant.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    SCAFFIDI AND CHETTA ENTERTAINMENT, Timmy’s Travels, Inc., et al. v. UNIVERSITY OF NEW ORLEANS FOUNDATION.
    No. 2006-CC-2552.
    Supreme Court of Louisiana.
    Oct. 25, 2006.
   In re University of New Orleans Foundation;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 599-285; to the Court of Appeal, Fifth Circuit, No. 06-C-746.

Denied.

CALOGERO, C.J., would grant.

KIMBALL, J., would grant.


text:
    Kimmie NICHOLS v. REGIONAL TRANSIT AUTHORITY.
    No. 2006-OC-1802.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Regional Transit Authority;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 99-14022; to the Court of Appeal, Fourth Circuit, No. 2006-0690.

Granted. The case is remanded to the court of appeal, which is instructed to allow relator to supplement its application with the appropriate documentation and to consider the application, as supplemented, on the merits.

KIMBALL, J., would deny.

JOHNSON, J., would deny.

TRAYLOR, J., would deny.


text:
    Kelli I. JONES and Richard S. Jones v. Dr. Allen PARR, Dr. R. Lee Berry, Dr. Mark Hontas and Dr. John B. Logan.
    No. 2006-CC-1861.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Jones, Kelli I. et al.; Jones, Richard S.;—Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 00-14201; to the Court of Appeal, First Circuit, No. 2006 CW 0769.

Granted.

The trial court erred in excluding the testimony of Dr. Turkewitz merely because he practices in a different specialty than defendants. See McLean v. Hunter, 495 So.2d 1298 (La.1986). Accordingly, the judgment of the trial court is vacated and the case remanded to the trial court for a hearing to determine whether Dr. Turkewitz has the requisite knowledge, skill, experience, training, or education to testify as an expert under La.Code Evid. art. 702, and whether his methodology is scientifically reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

JOHNSON, J., would deny.

VICTORY, J., would deny.

TRAYLOR, J., would deny.


text:
    STATE ex rel. Tyron B. ASH v. STATE of Louisiana.
    No. 2006-KH-0408.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Tyron B. Ash, applying for Reconsideration of this Court’s Order dated August 16, 2006; Parish of Orleans, Criminal District Court, Division B, No. 357-523; to the Court of Appeal Fourth Circuit, No. 2005-K-1294.

Reconsideration denied.


text:
    STATE ex rel. Glen WELCH v. STATE of Louisiana.
    No. 2006-KH-0829.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Welch, Glen;—Plaintiff; Applying for Reconsideration of this Court’s action dated August 18, 2006; Parish of Orleans, Criminal District Court, Division G, No. 447-882; to the Court of Appeal, Fourth Circuit, No. 2004-KA-1842.

Reconsideration denied.


text:
    STATE of Louisiana v. James BAKER.
    No. 2006-K-0905.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Baker, James;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 7-04-0648; to the Court of Appeal, First Circuit, No. 2005 KW 1983.

Not considered, not timely filed.


text:
    STATE of Louisiana v. Charles WATKINS.
    No. 2006-KK-1798.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Watkins, Charles;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. C, No. 05-352; to the Court of Appeal, Fifth Circuit, No. 06-K-383.

Not considered, not timely filed.


text:
    Dodiyi William WEST v. Ronald MELANCON, Catherine Melancon, Robert Drouant, and Associates, Allstate Insurance Company and Associates, et al.
    No. 2006-C-1830.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re West, Dodiyi William;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2001-15313; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1183.

Not considered, not timely filed.


text:
    STATE of Louisiana v. Juan R. VIDAURRI.
    No. 2006-K-0573.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re State of Louisiana;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, No. 264,127; to the Court of Appeal, Third Circuit, No. 05-742.

Stay denied. Writ denied.

TRAYLOR, J., would grant.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. John WILLIAMS.
    No. 2006-KP-0307.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Williams, John;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 04-97-0291; to the Court of Appeal, First Circuit, No. 2005 KW 2275.

Denied.


text:
    STATE of Louisiana v. Bryan THIBODEAUX.
    No. 2006-KP-0373.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Thibodeaux, Bryan;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. G, No. 82740; to the Court of Appeal, First Circuit, No. 2005 KW 2337.

Denied.


text:
    STATE ex rel. Duane PARKER v. STATE of Louisiana.
    No. 2006-KH-0760.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Parker, Duane;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, Nos. 257720, 329805, 329806, 327768; to the Court of Appeal, First Circuit, No. 2005 KW 1961.

Denied.


text:
    George David TOKMAN v. Terry TERRELL, Warden, ALC, and the State of Louisiana.
    No. 2006-CI-0810.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Tokman, George David;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33th Judicial District Court Div. A, No. CR-05-4549.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).