author: DENNIS R. BAGNERIS, Sr., Judge, Ad Hoc. BELSOME, J. DENNIS R. BAGNERIS, Sr., Judge, Ad Hoc. BELSOME, J.,

text:
    ROBINSON BROTHERS, INC. v. Vercy CARTER, Boutit, Inc. and Progressive Security Insurance Company.
    No. 2005 CA 2452.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.
    Opinion on Rehearing May 4, 2007.

      Thomas D. Fazio, Baton Rouge, for PlaintifiyAppellee, Robinson Brothers, Inc.
    Keith D. Jones, Baton Rouge, for Plaintiff/Appellee, Robinson Brothers, Inc.
    Dianne J. Marshall, New Orleans, for Defendant/Appellant Vercy Carter.
    W. Shelby McKenzie, Baton Rouge, for Defendant/Appellant RLI Insurance Company.
    Court composed of DENNIS R. BAGNERIS, Sr., Judge MICHAEL E. KIRBY, and Judge ROLAND L. BELSOME (serving as Judges ad hoe by special appointment of the Louisiana Supreme Court).
   DENNIS R. BAGNERIS, Sr., Judge, Ad Hoc.

The Appellants, Robinson Brothers, Inc. and Louisiana Insurance Guaranty Association (LIGA), appeal the judgment of the district court granting RLI Insur-anee Company’s (RLI) Motion for Summary Judgment and dismissing the Appellants’ claims. We affirm.

Facts

There is no dispute as to the facts of this case. In late 1999, Vercy Carter brought his 1998 Lincoln Navigator to Robinson Brothers for repair over the Labor Day weekend. During the weekend Carter’s vehicle was stolen from Robinson Brothers and was found three weeks later “stripped” and damaged.

Robinson Brothers begin repairing the vehicle and dealt with Progressive Security Insurance Company (PSIC) as the collision carrier. PSIC issued a check to Carter in the amount of $15,705.91. The repairs to the vehicle totaled $19,531.51. Neither Carter nor PSIC paid for the repairs done to the Navigator and the legal battle begin when Robinson Brothers filed suit against PSIC and Carter seeking recovery for the repairs.

Procedural History

The procedural history is as follows:

1. Robinson Brothers filed suit against PSIC and Carter for repairs made to Carter’s vehicle.

2. PSIC filed an Answer and a Cross Claim against Robinson Brothers seeking recovery of the funds paid to Carter.

3. Carter filed a Reeonventional Demand claiming that his vehicle contained valuable personal property when it was stolen.

4. Robinson Brothers filed an Answer denying the Cross Claim filed by PSIC and the Reeonventional Demand filed by Carter.

5. Robinson Brother’s insurance company, Reliance Insurance was declared insolvent in October of 2001.

|s6. LIGA assumed the defense for Robinson Brothers on the Reeonventional Demand filed by Carter and the Cross Claim filed by PSIC.

7. The Cross Claim filed by Progressive was dismissed on November 7, 2002.

8. Carter added LIGA as a defendant in his Reconventional Demand on January 29, 2004.

9. Robinson Brothers and LIGA filed a Third Party Demand against RLI (the Ap-pellee herein) based on the 1999 case Freeman v. Philan, (La.App. 2 Cir. 10/9/03) 859 So.2d 821 writ denied, 2/6/04 (discussed infra).

10. Carter added RLI as a defendant to his suit.

11. RLI filed a Motion for Summary Judgment and Robinson Brothers and LIGA field a Cross Motion for Summary Judgment.

On August 3rd 2005, the district court granted RLI’s Motion for Summary Judgment and denied Robinson Brothers and LIGA’s Cross Motion for Summary Judgment. It is from this Judgment that Robinson Brothers and LIGA take the instant appeal.

Assignments of Error

The Appellants offer two assignments of error for this Court to review: (1) that the district court erred in granting RLI’s Motion for Summary Judgment and declaring that the commercial umbrella liability policy issued by RLI to Robinson Brothers does not provide primary coverage for the Reconventional Demand asserted by Carter; (2) that the district court erred in denying the Cross Motion for Summary Judgment of LIGA and Robinson Brothers, Inc.

Applicable Law

Summary Judgment

LAppellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 02-0852 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 03-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Duplantis, 849 So.2d at 679-80. The court must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 17 (La.2/29/00), 755 So.2d 226, 236; Adams v. Owens-Corning Fiberglas Corp. 2004-1589, p. 4 (La.App. 1 Cir. 9/23/05) 923 So.2d 118, 122.

Interpretation of a Contract

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 |Bthe Louisiana Civil Code. Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. See La. Civ.Code art.2045; Carbon, 719 So.2d at 439; Louisiana Ins., 630 So.2d at 763.

Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ Code art.2047; Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1028-29; Carbon, 719 So.2d at 440-441; Reynolds, 634 So.2d at 1183. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, p. 11-12 (La.4/11/00), 759 So.2d 37, 43; Peterson, 729 So.2d at 1029. The rules of construction “do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent.” Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 4 (La.1/15/02), 805 So.2d 1134, 1138; (quoting Peterson, 729 So.2d at 1029).

Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. La. Civ.Code art.2056; Carrier, 759 So.2d at 43; Louisiana Ins., 630 So.2d at 764. “Under this rule of strict ^construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer.” Carrier, 759 So.2d at 43. That strict construction principle “applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable.” Carrier, 759 So.2d at 43-44, (emphasis in original); see also Louisiana Ins., 630 So.2d at 770.

If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Fannaly, 805 So.2d at 1137; Louisiana Ins., 630 So.2d at 764. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Peterson, 729 So.2d at 1029; Louisiana Ins., 630 So.2d at 764. “The determination of whether a contract is clear or ambiguous is a question of law.” Louisiana Ins., 630 So.2d at 764; see also Cadwallader v. Allstate Ins. Co. 2002-1637, p. 4 (La.6/27/03) 848 So.2d 577, 580.

Assignment of Error # 1

The Appellants maintain that the district court erred in granting RLI’s Motion for Summary Judgment and declaring that the commercial umbrella policy issued by RLI to Robinson Brothers does not provide primary coverage for the Reconventional Demand asserted by Carter. In simpler terms, the issue is whether upon the insolvency of Reliance, the RLI policy provides first coverage for the claims asserted by Carter.

|7The Appellants rely on Freeman v. Philan 2003-37,685 (La.App. 2 Cir. 10/9/03) 859 So.2d 821, writs denied, 03-3098, 865 So.2d 723, 03-3213, 865 So.2d 728, 03-3385, 865 So.2d 735 (La.2/6/04) arguing that RLI had issued the same commercial umbrella liability policy to Robinson Brothers as it did in Freeman. They maintain that based on Freeman, Robinson Brothers and LIGA sought a declaration that RLI provide primary coverage for the claims asserted by Carter as plaintiff-in-reconvention.

RLI argues that the Freeman case is “plainly wrong” and that it is not binding on this Court.

We have adopted the rationale and language from Edna J. Huggins v. Gerry Lane Enterprises, et al., 2005-2665, 950 So.2d 750, (La.App. 1 Cir. 11/3/06), wherein the issues presented are exactly the same as the instant ease. This Court in Huggins found:

Drop down coverage occurs when an insurance carrier of a higher level of coverage is obligated to provide the coverage that the carrier of the immediately underlying level of coverage has agreed to provide, (citation omitted) There are several Louisiana Supreme Court cases examining whether coverage under an umbrella policy drops down to take the place of coverage that would have been provided by an insolvent primary insurer. Ultimately, the resolution of this issue depends on the policy language in the excess policy.

Huggins, 2005-2665, p. 5, 950 So.2d 754.

We must review the instant matter de novo and look at the four corners of the insurance policy provided by RLI in order to decipher whether the district court erred.

RLI issued a “Commercial Umbrella Liability Policy” to Robinson Brothers Inc. from April 15,1999 to April 15, 2000. This policy was a | ¿renewal of the policy Robinson Brothers held from April 15, 1998 to April 15, 1999.

Section II of RLI’s policy issued to Robinson Brothers reads (in pertinent part) as follows:

LIMITS OF LIABILITY

A. Regardless.. .we shall only be liable for the ultimate net loss in excess of:
1. the applicable limits of scheduled underlying insurance stated in Item 5, of the Declarations for occurrences covered by scheduled underlying insurance, plus the limits of any unscheduled underlying insurance which also provides coverage for such occurrences; or
2. the unscheduled underlying insurance to the retained limit, whichever is greater, for occurrences covered by unscheduled underlying insurance and by this policy only; or
3. The retained limit....

This case is no different from Freeman wherein the Court noted:

Subpart A(l) is applicable to the plaintiffs claims because the accident was covered by the underlying insurance. Unquestionably, the scheduled underlying insurance policy had automobile liability limits of $1,000,000.00. Subpart A(2) is inapplicable to this case. However, Subpart A(3) is directly applicable because RLI’s liability begins when its retained limit is exhausted. Here that limit is $0, so coverage begins at dollar one.
The court properly noted RLI simply could have avoided liability by simply requiring the insured to maintain a retained limit in the same amount as the underlying insurance. The trial court focused on Numbers 2 and 3 of “Limits of Liability.” The policy states that RLI is liable for the ultimate net loss in excess of the retained limit. Thus, RLI is liable for the ultimate net loss in excess of zero.
In this case, the language is not clear, and is not sufficiently limited to create mutually exclusive categories of coverage. The RLI policy is ambiguous, and that ambiguity must be resolved against RLI. Moreover, the Financial Impairment exclusion provision of the RLI policy does not | flapply in this case because liability attaches at the retained limit of zero and is not contingent on the insolvency of the underlying carrier. Freeman, 859 So.2d at 825.

In the case at bar, the retained limit of liability as to Robinson Brothers per the RLI policy is “0”. The retained limit in the underlying insurance policy provided by Reliance is $1,000,000. In the instant case, the district court referenced Section “H” of the umbrella policy which states:

FINANCIAL IMPAIRMENT

Bankruptcy, rehabilitation, receivership, liquidation or other financial impairment of the insured or any underlying insurer shall neither relieve nor increase any of our obligations under this policy.
In the event there is diminished recovery or no recovery available to the insured as a result of such financial impairment of any insurer providing scheduled underlying insurance or unscheduled underlying insurance, the coverage under this policy shall apply only in excess of the limits of liability stated in the scheduled underlying insurance or unscheduled underlying insurance. Under no circumstances shall we be required to drop down and replace the limits of liability of a financially impaired insurer. Nor shall we assume any other obligations of a financially impaired insurer.

In excerpts taken from Huggins, this Court noted:

In two cases decided the same day, Kelly v. Weil, 563 So.2d 221 (La.1990), and Robichaux v. Randolph, 563 So.2d 226 (La.1990), the supreme court examined situations in which the relevant provisions of the umbrella policies were virtually identical. The court used the Kelly case to summarize the law on this issue. In doing so, it identified three basic types of excess policies, depending on the policy language.

Huggins, 2005-2665, p. 5, 950 So.2d at 754. Further,

The Robichaux case addressed the same issue and |1nreached the same conclusion concerning another umbrella policy falling within the third category of cases described in Kelly. Robichaux, 563 So.2d at 228. Regarding the policy at issue in Robichaux, the supreme court took particular notice of an additional provision providing specifically for the event of insolvency of the underlying insurer. That provision stated that in the event there was no recovery available to the insured as a result of the bankruptcy or insolvency of the underlying insurer, the coverage under the umbrella policy would apply only in excess of the applicable limit of liability specified in the underlying policy or policies. The court commented that this provision made the result in Robichaux “even more compelling than in Kelly,” because:
It is evident that the parties to this insurance policy intended and, indeed specifically provided, that [the umbrella coverage] would not drop down in the event of the underlying insurer’s insolvency.
Id. at 227-28.
The supreme court revisited the issue in Louisiana Ins. Guar. Ass’n, 630 So.2d 759 (the LIGA case). The court began its analysis by trying to fit the excess policy in that case into the appropriate Kelly category, using the limits of liability section, since these provisions define the scope of coverage. Id. at 762. However, the language of that section did not fit neatly into any of the Kelly categories, so the court examined the policy using the basic precepts of contractual interpretation, as set out in the Louisiana Civil Code and applicable jurisprudence. Id. at 762-63. The policy clearly stated in many of its provisions that it provided “excess” coverage only, and thus fell within the general rule that policies clearly stating they are excess are not required to provide drop down coverage. Id. at 769. The exception to that rule exists only when the policy language creates a “genuine ambiguity” as to the scope of coverage, such as clauses indicating coverage will be provided over underlying “collectible” or “recoverable” insurance, as in the first category of Kelly cases. Id. at 770.

In/d. at p. 755. This Court concluded in Huggins that

Having examined the RLI policy, the codal articles governing its interpretation, and the applicable jurisprudence, we are forced to disagree with the second circuit’s conclusion regarding the RLI policy. We conclude that the RLI policy falls squarely within the second category described in the Kelly case. The policy language is properly understood not to facilitate a drop down of the excess insurance, because there was scheduled underlying insurance providing coverage for the occurrence, as described in subpart (A)(1), and only that provision is applicable. Therefore, RLI could only be liable for the ultimate net loss in excess of the Reliance policy’s applicable limits of $1 million. There is no specific requirement or undertaking in the RLI policy to drop down in the event of the primary insurer’s insolvency, so RLI’s coverage should not be construed as dropping down. Rather, as discussed in the Robichaux and LIGA cases, the “Financial Impairment” provision in the RLI policy is an anti drop down provision, which clearly expresses that the parties never intended that coverage provided by the RLI policy would drop down in the event of the insolvency of the underlying scheduled insurer.
Id. at p. 9, 950 So.2d at 756-57.

In the instant case, the district court concluded, “... Section ‘H’ of the policy provides that RLI will not drop down and cover it because of the insolvency of any underlying scheduled carriers or even unscheduled carriers. So that Reliance’s impaired liability does not cause RLI to drop down. And for that reason I’m going to grant the Motion for Summary Judgment in favor of RLI and deny the Motion for Summary Judgment filed by LIGA.” In accordance with Huggins, we also find that there was no error by the district court.

The court in Freeman correctly found that the “Financial Impairment” exclusion provision did not apply in the Freeman case, as it does not here, 112because liability attaches at the retained limit of zero which is not contingent on the insolvency of the underlying carrier. Id at 825.

Assignment of error # 2

In their second assignment of error, the Appellants maintain that the district court erred in denying the Cross Motion for Summary Judgment of LIGA and Robinson Brothers, Inc. Considering the applicable law, it may appear that not to reverse the denial of the Appellant’s summary judgment seems somewhat contradictory. Although RLI becomes the primary insurer, the merits of the case are still undecided thus leaving genuine issues of material fact. We are not in a posture to dismiss Robinson Brothers and LIGA and we cannot say that the district court abused its discretion in denying their Cross Motion for Summary Judgment.

Decree

For the reasons stated herein, we reverse the judgment of the district court granting summary judgment in favor of RLI and affirm the judgment of the district court denying the Appellant’s Cross Motion for Summary Judgment.

AFFIRMED.

BELSOME, J. concurs with reasons.

BELSOME, J.

Concurring.

U respectfully concur in the result but write separately to address the explicit policy language in this case. The RLI policy language in the instant case specifically and unambiguously stated in multiple sections that it absolutely would not drop down to act as a primary insurer in any event, particularly in the event of insolvency of the underlying insurance carrier. This Court’s decision should not be misinterpreted to apply in all cases to policyholders whose primary carriers become insolvent; whether an excess policy should cover losses from dollar one in the event of a primary insurer’s insolvency shall be evaluated according to the particular facts and circumstances of each case and within the context of the specific policy language.

ON APPLICATION FOR REHEARING

DENNIS R. BAGNERIS, Sr., Judge, Ad Hoc.

LThe Appellants, Robinson Brothers, Inc. and Louisiana Insurance Guaranty Association (LIGA), appeal the judgment of the district court granting RLI Insurance Company’s (RLI) Motion for Summary Judgment and dismissing the Appellants’ claims. We affirm.

Facts

There is no dispute as to the facts of this case. In late 1999, Vercy Carter brought his 1998 Lincoln Navigator to Robinson Brothers for repair over the Labor Day weekend. During the weekend Carter’s vehicle was stolen from Robinson Brothers and was found three weeks later “stripped” and damaged.

Robinson Brothers begin repairing the vehicle and dealt with Progressive Security Insurance Company (PSIC) as the collision carrier. PSIC issued a check to Carter in the amount of $15,705.91. The repairs to the vehicle totaled $19,531.51. Neither Carter nor PSIC paid for the repairs done to the Navigator and the legal battle began when Robinson Brothers filed suit against PSIC and Carter seeking recovery for the repairs.

Procedural History

The procedural history is as follows:

1. Robinson Brothers filed suit against PSIC and Carter for repairs made to Carter’s vehicle.

2. PSIC filed an Answer and a Cross Claim against Robinson Brothers seeking recovery of the funds paid to Carter.

8. Carter filed a Reconventional Demand claiming that his vehicle contained valuable personal property when it was stolen.

4. Robinson Brothers filed an Answer denying the Cross Claim filed by PSIC and the Reconventional Demand filed by Carter.

5. Robinson Brother’s insurance company, Reliance Insurance was declared insolvent in October of 2001.

|s6. LIGA assumed the defense for Robinson Brothers on the Reconventional Demand filed by Carter and the Cross Claim filed by PSIC.

7. The Cross Claim filed by Progressive was dismissed on November 7, 2002.

8. Carter added LIGA as a defendant in his Reconventional Demand on January 29, 2004.

9. Robinson Brothers and LIGA filed a Third Party Demand against RLI (the Appellee herein) based on the 1999 case Freeman v. Philan 37,685, (La.App. 2 Cir 10/9/03); 859 So.2d 821 writs denied, 03-3098, 865 So.2d 723, 03-3213, 865 So.2d 728, 03-3385, 865 So.2d 735 (2/6/04) (discussed infra).

10. Carter added RLI as a defendant to his suit.

11. RLI filed a Motion for Summary Judgment and Robinson Brothers and LIGA field a Cross Motion fro Summary Judgment.

On August 3rd 2005, the district court granted RLI’s Motion for Summary Judgment and denied Robinson Brothers and LIGA’s Cross Motion for Summary Judgment. It is from this Judgment that Robinson Brothers and LIGA take the instant appeal.

Assignments of Error

The Appellants offer two assignments of error for this Court to review: (1) that the district court erred in granting RLI’s Motion for Summary Judgment and declaring that the commercial umbrella liability policy issued by RLI to Robinson Brothers does not provide primary coverage for the Reconventional Demand asserted by Carter; (2) that the district court erred in denying the Cross Motion for Summary Judgment of LIGA and Robinson Brothers, Inc.

Applicable Law

Summary Judgment

LAppellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 02-0852 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 03-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Duplantis, 849 So.2d at 679-80. The court must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 17 (La.2/29/00), 755 So.2d 226, 236; Adams v. Owens-Corning Fiberglas Corp. 2004-1589, p.4 (La.App. 1 Cir. 9/23/05) 923 So.2d 118, 122.

Interpretation of a Contract

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 |Bthe Louisiana Civil Code. Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. See La. Civ. Code art. 2045; Carbon, 719 So.2d at 439; Louisiana Ins., 630 So.2d at 763.

Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ Code art. 2047; Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1028-29; Carbon, 719 So.2d at 440-441; Reynolds, 634 So.2d at 1183. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, p. 11-12 (La.4/11/00), 759 So.2d 37, 43; Peterson, 729 So.2d at 1029. The rules of construction “do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent.” Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 4 (La.1/15/02), 805 So.2d 1134, 1138; (quoting Peterson, 729 So.2d at 1029).

Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. La. Civ.Code art. 2056; Carrier, 759 So.2d at 43; Louisiana Ins., 630 So.2d at 764. “Under this rule of strict | ^construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer.” Carrier, 759 So.2d at 43. That strict construction principle “applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable.” Carrier, 759 So.2d at 43-44, (emphasis in original); see also Louisiana Ins., 630 So.2d at 770.

If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Fannaly, 805 So.2d at 1137; Louisiana Ins., 630 So.2d at 764. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Peterson, 729 So.2d at 1029; Louisiana Ins., 630 So.2d at 764. “The determination of whether a contract is clear or ambiguous is a question of law.” Louisiana Ins., 630 So.2d at 764; see also Cadwallader v. Allstate Ins. Co. 2002-1637, p.4 (La.6/27/03) 848 So.2d 577, 580.

Assignment of Error # 1

The Appellants maintain that the district court erred in granting RLI’s Motion for Summary Judgment and declaring that the commercial umbrella policy issued by RLI to Robinson Brothers does not provide primary coverage for the Recon-ventional Demand asserted by Carter. In simpler terms, the issue is whether upon the insolvency of Reliance, the RLI policy provides first coverage for the claims asserted by Carter.

|7The Appellants rely on Freeman v. Philan 2003-37,685 (La.App. 2 Cir. 10/9/03) 859 So.2d 821, writs denied, 03-3098, 865 So.2d 723, 03-3213, 865 So.2d 728, 03-3385, 865 So.2d 735 (La.2/6/04) arguing that RLI had issued the same commercial umbrella liability policy to Robinson Brothers as it did in Freeman. They maintain that based on Freeman, Robinson Brothers and LIGA sought a declaration that RLI provide primary coverage for the claims asserted by Carter as plaintiff-in-reconvention.

RLI argues that the Freeman case is “plainly wrong” and that it is not binding on this Court.

We must review the instant matter de novo and look at the four corners of the insurance policy provided by RLI in order to decipher whether the district court erred.

RLI issued a “Commercial Umbrella Liability Policy” to Robinson Brothers Inc. from April 15,1999 to April 15, 2000. This policy was a renewal of the policy Robinson Brothers held from April 15, 1998 to April 15,1999.

Section II of RLI’s policy issued to Robinson Brothers reads (in pertinent part) as follows:

LIMITS OF LIABILITY
A. Regardless.. .we shall only be liable for the ultimate net loss in excess of:
1. the applicable limits of scheduled underlying insurance stated in Item 5, of the Declarations for occurrences covered by scheduled underlying insurance, plus the limits of any unscheduled underlying insurance which also provides coverage for such occurrences; or
2. the unscheduled underlying insurance to the retained limit, whichever is greater, for occurrences covered by unscheduled underlying insurance and by this policy only; or
3. The retained limit....
In Freeman the Court noted:
IsSubpart A(l) is applicable to the plaintiffs claims because the accident was covered by the underlying insurance. Unquestionably, the scheduled underlying insurance policy had automobile liability limits of $1,000,000.00. Subpart A(2) is inapplicable to this case. However, Subpart A(3) is directly applicable because RLI’s liability begins when its retained limit is exhausted. Here that limit is $0, so coverage begins at dollar one.
The court properly noted RLI simply could have avoided liability by simply requiring the insured to maintain a retained limit in the same amount as the underlying insurance. The trial court focused on Numbers 2 and 3 of “Limits of Liability.” The policy states that RLI is liable for the ultimate net loss in excess of the retained limit. Thus, RLI is liable for the ultimate net loss in excess of zero.
In this case, the language is not clear, and is not sufficiently limited to create mutually exclusive categories of coverage. The RLI policy is ambiguous, and that ambiguity must be resolved against RLI. Moreover, the Financial Impairment exclusion provision of the RLI policy does not apply in this case because liability attaches at the retained limit of zero and is not contingent on the insolvency of the underlying carrier.
Freeman, 859 So.2d 825.

In the case at bar, the retained limit of liability as to Robinson Brothers per the RLI policy is “0”. The retained limit in the underlying insurance policy provided by Reliance is $1,000,000. In the instant case, the district court referenced Section “H” of the umbrella policy which states:

FINANCIAL IMPAIRMENT

Bankruptcy, rehabilitation, receivership, liquidation or other financial impairment of the insured or any underlying insurer shall nether relieve nor increase any of our obligations under this policy.
In the event there is diminished recovery or no recovery available to the insured as a result of such financial impairment of any insurer providing scheduled underlying insurance or unscheduled 19underlying insurance, the coverage under this policy shall apply only in excess of the limits of liability stated in the scheduled underlying insurance or unscheduled underlying insurance. Under no circumstances shall we be required to drop down and replace the limits of liability of a financially impaired insurer. Nor shall we assume any other obligations of a financially impaired insurer.

In excerpts taken from Huggins, this Court noted:

In two cases decided the same day, Kelly v. Weil, 563 So.2d 221 (La.1990), and Robichaux v. Randolph, 563 So.2d 226 (La.1990), the supreme court examined situations in which the relevant provisions of the umbrella policies were virtually identical. The court used the Kelly case to summarize the law on this issue. In doing so, it identified three basic types of excess policies, depending on the policy language.

Huggins, 2005-2665, p. 5, 950 So.2d at 754. Further,

The Robichaux case addressed the same issue and reached the same conclusion concerning another umbrella policy falling within the third category of cases described in Kelly. Robichaux, 563 So.2d at 228. Regarding the policy at issue in Robichaux, the supreme court took particular notice of an additional provision providing specifically for the event of insolvency of the underlying insurer. That provision stated that in the event there was no recovery available to the insured as a result of the bankruptcy or insolvency of the underlying insurer, the coverage under the umbrella policy would apply only in excess of the applicable limit of liability specified in the underlying policy or policies. The court commented that this provision made the result in Robichaux “even more compelling than in Kelly,” because:
It is evident that the parties to this insurance policy intended and, indeed specifically provided, that [the umbrella coverage] would not drop down in the event of the underlying insurer’s insolvency.
|1f>Id. at 227-28.
The supreme court revisited the issue in Louisiana Ins. Guar. Ass’n, 630 So.2d 759 (the LIGA case). The court began its analysis by trying to fit the excess policy in that case into the appropriate Kelly category, using the limits of liability section, since these provisions define the scope of coverage. Id. at 762. However, the language of that section did not fit neatly into any of the Kelly categories, so the court examined the policy using the basic precepts of contractual interpretation, as set out in the Louisiana Civil Code and applicable jurisprudence. Id. at 762-63. The policy clearly stated in many of its provisions that it provided “excess” coverage only, and thus fell within the general rule that policies clearly stating they are excess are not required to provide drop down coverage. Id. at 769. The exception to that rule exists only when the policy language creates a “genuine ambiguity” as to the scope of coverage, such as clauses indicating coverage will be provided over underlying “collectible” or “recoverable” insurance, as in the first category of Kelly cases. Id. at 770.

Id. at p. 6-7, 750 So.2d at 755. This Court concluded in Huggins that:

Having examined the RLI policy, the codal articles governing its interpretation, and the applicable jurisprudence, we are forced to disagree with the second circuit’s conclusion regarding the RLI policy. We conclude that the RLI policy falls squarely within the second category described in the Kelly case. The policy language is properly understood not to facilitate a drop down of the excess insurance, because there was scheduled underlying insurance providing coverage for the occurrence, as described in subpart (A)(1), and only that provision is applicable. Therefore, RLI could only be liable for the ultimate net loss in excess of the Reliance policy’s applicable limits of $1 million. There is no specific requirement or undertaking in the RLI policy to drop down in the event of the primary insurer’s insolvency, so RLI’s coverage should not be construed as dropping down. Rather, as discussed in the Robichaux and LIGA cases, the “Financial Impairment” provision in the RLI policy is an anti drop down provision, which clearly expresses that the parties never | riintended that coverage provided by the RLI policy would drop down in the event of the insolvency of the underlying scheduled insurer.

Id. at p. 9, 740 So.2d at 756-57.

In the instant case, the district court concluded, “... Section ‘H’ of the policy provides that RLI will not drop down and cover it because of the insolvency of any underlying scheduled carriers or even unscheduled carriers. So that Reliance’s impaired liability does not cause RLI to drop down. And for that reason I’m going to grant the Motion for Summary Judgment in favor of RLI and deny the Motion for Summary Judgment filed by LIGA.” In accordance with Huggins, we also find that there was no error by the district court.

Assignment of error # 2

In their second assignment of error, the Appellants maintain that the district court erred in denying the Cross Motion for Summary Judgment of LIGA and Robinson Brothers, Inc. Considering the applicable law and this Court’s most recent decision in Huggins, we are of the opinion that there was no error by the district court for the reasons stated above.

Decree

We affirm the judgment of the district court granting summary judgment in favor of RLI and affirm the judgment of the district court denying the Appellant’s Cross Motion for Summary Judgment.

AFFIRMED.

BELSOME, J. Concurs with Reasons.

BELSOME, J.,

concurring.

LI respectfully concur in the result but write separately to address the explicit policy language in this case. The RLI policy language in the instant case specifically and unambiguously stated in multiple sections that it absolutely would not drop down to act as a primary insurer in any event, particularly in the event of insolvency of the underlying insurance carrier. This Court’s decision should not be misinterpreted to apply in all cases to policyholders whose primary carriers become insolvent; whether an excess policy should cover losses from dollar one in the event of a primary insurer’s insolvency shall be evaluated according to the particular facts and circumstances of each case and within the context of the specific policy language.

      . The merits of this case are not before this Court.

      . The merits of this case are not before this Court.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Robert HORTON, Appellant.
    No. 42,199-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Rehearing Denied Aug. 9, 2007.

      Stephen A. Glassell, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, J. Dhu Thompson, William Edwards, Assistant District, Attorneys, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

I,The defendant, Robert Horton, was charged with pornography involving juveniles, a violation of La. R.S. 14:81.1. After a jury trial, he was found guilty and sentenced to seven years at hard labor without benefit of probation, parole, or suspension of sentence. He appeals his conviction and sentence. For the reasons set forth below, we affirm.

FACTS

On July 24, 2004, Horton took his computer (the tower portion containing the hard drive) to Best Buy in Shreveport, Louisiana. He instructed a computer technician there, Christopher Stoll, to install a new hard drive, but not to remove the old hard drive; he also agreed to a suggestion that the computer be physically cleaned. According to Stoll, as he began to work on the computer he found that the power button sometimes did not function, the CD-ROMs were not working correctly, and the monitor was “flickering and shaking.” Stoll indicated that after installing the new hard drive, he followed what was termed “post-op procedure” to see if he could determine what was causing the problems. He admitted that this was not necessary in order to install the new hard drive, but explained that Best Buy wanted to make sure that the computer would work “a couple of weeks down the road at least.”

During this testing procedure, Stoll decided to view an image from his own pen drive (a small stick-like storage device that plugs in a USB port). Stoll indicated that this was a common procedure used by technicians at Best Buy in order to find problems. In order to do this, he opened the MS Paint program found on all Windows computers. When he opened MS | aPaint, a default picture directory automatically opened “My Pictures,” and Stoll saw six thumbnail pictures of nude children, some of whom were engaged in sexual acts. Stoll then alerted Best Buy employees Shawn Smiley and Brandon Jones. They decided to call the police.

The Caddo Parish district attorney’s investigator, Mark Fargerson, an expert in forensic computer analysis, responded to the call. Smiley showed Fargerson the images they had discovered. Fargerson viewed additional images as well, and concluded that many of the images constituted child pornography. He recorded specific information concerning the computer and gave the information to Detective Collette Kelly, and she obtained a search warrant for the computer. The computer was seized and delivered to Fargerson, who performed a forensic search. He reported these results to Kelly, who then obtained a search warrant for Horton’s house.

The “My Pictures” folder in Horton’s computer drive contained over 100 pages of pornography involving juveniles. Additionally, over 300 VHS tapes of adult pornography were seized from Horton’s home, along with CD-ROMs and computer diskettes. One diskette, labeled “My Favorites” included pornography involving juveniles.

Horton challenged the private search of his computer by the Best Buy employees, and moved to quash the bill of information that charged him with pornography involving juveniles, claiming that the statute, La. R.S. 14:81.1, was unconstitutionally vague and overbroad. The trial court denied both motions.

|sThe two Best Buy employees who discovered the images, Stoll and Smiley, testified at trial to the factual account recited above. Fargerson, who qualified as an expert in computer forensic analysis, testified concerning the pictures found on Horton’s computer and his role in obtaining the search warrants, preparing his report on his findings from forensic analysis of the computer, and participating in the search of Horton’s house. Fargerson’s testimony established how images are downloaded from the internet, and that the images in this case were downloaded over a period of several years, thereby proving that Horton did not download the pornographic images of juveniles by accident.

Although Horton did not dispute that he had pornographic images of juveniles, Dr. Ann Springer, a pediatrician from the Louisiana Health Science Center in Shreveport, testified as an expert concerning the ages of the children in the computer images. She stated the images involved children from ages less than one year old up to the teen years participating in oral, vaginal, and anal sex with adults.

Detective Collette Kelly testified concerning the obtaining of the search warrants and the search of Horton’s home. Horton does not contest the chain of custody of the evidence in this case. Nor has he attempted to attack the validity of the findings of Det. Fargerson concerning what was on his computer or the testimony of Fargerson and Kelly concerning what was found at his home.

The defense called only two witnesses, Kier Karlson and Mary Salvail. Both were co-employees of Horton at the Caddo Parish Office of | ¿Family Support, and both essentially testified that Horton did not have good computer skills. They indicated that he had problems using his computer at work, and that they had never seen any type of pornography on his computer at the workplace. On the other hand, Mr. Karlson did indicate that he had seen some adult pornography on Horton’s home computer along with other pictures that were not pornographic. At the conclusion of Ms. Salvail’s testimony, the defense rested.

DISCUSSION

By his first assignment of error, defendant alleges that the district court erred in denying his motion to suppress evidence obtained from the search of his computer which was subsequently used to obtain a warrant for the search of his residence. He contends that his right to privacy under Article I, Section 5 the Louisiana Constitution was violated by the unauthorized private search of his computer by the Best Buy employees who, in turn, reported their findings to police. Horton’s counsel suggests that the court should “set some guidelines in what is a permissible private search by a computer technician.” Horton further argues that Fargerson exceeded the scope of the private search by the Best Buy employees because he “did additional procedures in opening and enlarging the photos,” citing U.S. v. Runyan, 275 F.3d 449 (5th Cir.2001) and U.S. v. Barth, 26 F.Supp.2d 929 (W.D.Tex.1998).

Horton contends that the unauthorized private search was an unreasonable invasion of his client’s privacy. The Best Buy employees testified that the work that the defendant requested, ie., to install and format 1 Ran additional hard drive and clean the computer, did not require the employees to look into Horton’s file folders. Although the defense acknowledges that it was unable to establish a connection between the employees and the police, counsel characterized the Best Buy employees, Stoll and Smiley, who carried the monikers “Counter Agent” and “Double Agent” as “police wannabees” who went into the computer for the purpose of searching for pornography in Horton’s private computer files. Horton contends that the court should set guidelines for computer technicians that include a guideline that a technician cannot look into any folders or files on a computer without the express consent of the owner of the computer. Under such guidelines, he argues, the instant search would fall.

In addition to suppression of evidence seized from the computer, Horton argues that evidence from the search of his residence should be suppressed as “fruit of the poisonous tree.”

The state argues that “private searches, no matter how intrusive, are not subject to be [sic ] suppressed,” citing our opinion in State v. Coleman, 466 So.2d 68 (La.App. 2 Cir.1985), writ denied 467 So.2d 542 (La.1985). Alternatively, it implicitly argues that the private search in this case was reasonable because the discovery of the child pornography was inadvertent. Finally, the state contends that Fargerson did not unlawfully exceed the scope of the prior private search when he went to Best Buy to examine the reported images. Fargerson simply examined more thoroughly the evidence inadvertently discovered, which it contends is permissible, citing U.S. v. Runyan, supra. Alternatively, the state claims that the search warrant was | fibased upon the images that appeared on the first page inadvertently discovered by the Best Buy employees.

Trial courts are vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 2003-2592, (La.9/9/04), 884 So.2d 1176, 1179. (citations omitted).

In this instance, the trial judge denied the defendant’s motion to suppress with a rather short ruling, giving a general reason for her denial of the motion. The judge stated that the motion is not supported by the law or the evidence and that she relied heavily on Runyan, supra. She agreed with the characterization of the discovery by the Best Buy employees as a “private search.”

Our review of the facts and testimony in this case support the trial court’s conclusion that this was solely a “private search.” That is to say, there is no merit to Horton’s argument that the Best Buy employees were acting under color of law or in connection with the police. Their company monikers, “Counter Intelligence Agent” or its acronym, “CIA,” and “Double Agent,” were nothing more than the company’s way to humorously distinguish those computer technicians who work at the counter from those who do “at home” as well as “in store” computer repairs. In short, the evidence does not show that the employees were “police wannabees” as characterized by Horton as an attempt to depict them as over-zealous citizens acting as police.

|7The testimony and other evidence adduced compels us to conclude that the discovery of the unlawful pornographic images by the Best Buy employees was inadvertent and unexpected. This constituted a “private search” only to the extent that it was not under color of law or in any way connected with state authority. Thus, the sole question is whether Article I, Section 5 of the Louisiana Constitution, that protects a person’s right to privacy, extends to the “private search” in this case.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend. TV. The Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. Art. I § 5. It is undisputed that the guarantee of the right to privacy contained in the Louisiana Constitution affords more stringent protection of individual liberty than the Fourth Amendment to the Federal Constitution. State v. Smith, 99-2015 (La.7/6/00) 766 So.2d 501, 99-2019 (La.7/6/00), 99-2094 (La.7/6/00), 99-0606 (La.7/6/00); State v. Perry, 610 So.2d 746, 756 (La.1992). Whether this more stringent protection of individual liberty extends to private searches is not entirely clear. The Louisiana Supreme Court has not expressly decided in a criminal context whether the |sstate constitution may prohibit certain unreasonable searches by private persons in a criminal prosecution. See State v. Hutchinson, 349 So.2d 1252 (La.1977); State v. McCabe, 383 So.2d 380 (La.1980). In Hutchinson, the court stated that it was “unwilling to hold that the rights safeguarded by Article I, § 5 of our constitution are merely coextensive with those protected by the Fourth Amendment to the federal constitution, or that private searches and seizures are not within the ambit of protection afforded by our state charter.” Id. at 1254. Under the facts of that case, however, the court concluded that the search was not an unreasonable invasion of privacy, thereby implying that an “unreasonable” private search might be protected.

On the other hand, this court and other appellate courts in the state have held that “Article 1, § 5 permits use of evidence obtained from some purely private searches to procure an otherwise valid search warrant, even if the private search is found, or assumed, unreasonable,” since “the primary purpose of the exclusionary rule ... is to deter official misconduct by government agents.” State v. Coleman, supra. (Emphasis on “some” added); State v. Clark 454 So.2d 232 (La.App. 3 Cir.1984). Our state supreme court denied writs filed by defendants after each of these appellate court rulings.

In Coleman, supra, the defendant asked his neighbor to feed his plants and his cat while he was away during the Thanksgiving holidays. During that time the neighbor went into the defendants bedroom and looked through his closet where he found a box containing some pornographic |9video cassettes. Having viewed some of the defendant’s pornographic videos in the past, the neighbor viewed the cassettes and discovered what he had lately suspected— there was video footage of his seven-year old daughter engaging in pornographic and sexual acts with the defendant. He subsequently gave the information to police in order for them to obtain a search warrant.

Forgoing the “reasonable expectation of privacy analysis,” we assumed that a person has a high expectation of privacy regarding his or her bedroom closet, and that the neighbor’s search into the defendant’s closet in this case was “unauthorized.” We faced squarely the issue of whether Article I, § 5 protects individuals from unreasonable private searches through the use of judicial power to exclude such evidence obtained from the intrusion and concluded that because the search was not under color of law, the exclusionary rule did not apply, inasmuch as the purpose of the rule is dissuade official or governmental misconduct.

We recognize that State v. Hutchinson, supra, was decided in 1977 and State v. Coleman, supra, was decided in 1985, some thirty and twenty-two years ago respectively — long before the technological revolution in electronic communications, computers and the internet in the last ten years. These new technologies have raised privacy issues in all aspects of our cultural life which will perhaps one day require this court or the supreme court to revisit the private search question. However, the facts of this case do not warrant a re-examination of our previous decision in State v. Coleman, supra, because the discovery of the illicit images on Horton’s hncomputer was clearly by accident, and the evidence adduced does not establish that Horton had a subjective expectation of privacy, nor did he demonstrate that his expectation is one that society is prepared to recognize as reasonable and legitimate. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Horton brought his computer to Best Buy to have a hard drive installed and the computer physically cleaned. Surely it is not a far reach for a customer to expect that the computer technician might perform a cursory inspection of the computer’s operation, particularly if the computer appeared to be having some problems. In a sense, the discovery of the images by the technician in this case is more analogous to a “plain view” discovery of evidence of a crime.

Even if we assumed that the Best Buy employee’s opening of the “My Pictures” file was unauthorized, and that Horton had a privacy interest in the images contained in the folder, we cannot conclude that Horton thereby meets the “reasonable expectation of privacy test” standards. Horton did not exercise dominion or control over the computer images in the “My Pictures” folder because he had voluntarily relinquished control of the computer to the repair store and failed to secure the images in the folder. The images were located in the default file, which meant that it opened automatically when the “My Pictures” folder was opened. In other words, displaying the images required no conscious thought and action or intention of the technician to enter the file.

The court stated that it relied on U.S. v. Runyan, supra, a federal child pornography case, which concerned the claim that a police In search conducted before a search warrant was obtained exceeded the scope of the initial private search. Appellant raises the same sort of claim, based on testimony that Fargerson viewed more images than the two Best Buy employees. In Runyan, the court stated that police do not exceed the scope of the prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than the private parties.

The state tacitly admits that Fargerson looked beyond the first page, but contends that the pictures on the first page were enough to support the search warrant that was issued. In fact, the search warrant was based solely on the images on the first page, and copies of those first page images were placed on the back of the original affidavit to the court.

Because the search warrant was apparently based on the same images inadvertently discovered by the Best Buy employees, we conclude that Fargerson’s further exploration of additional images, while constituting an arguably unlawful search, did not taint the original warrantless viewing of the images upon which the search warrant was granted. Cf. U.S. v. Grosenheider, 200 F.3d 321 (5 Cir.(Tex.) 2000). Accordingly, this assignment is without merit.

By his second assignment of error, Horton contends that the district court erred in denying his pretrial Motion to Quash the indictment, the post-trial Motion in Arrest of Judgment and the Post-trial Motion for Judgment of Acquittal. These motions concern the statutory interpretation of the words “intentional possession” as applied to the facts of this case.

h ¡/Under La. R.S. 14:81.1(A)(3) “pornography involving juveniles” includes:

The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.

Appellant argues that the statute was enacted to punish those persons who produced and distributed child pornography and that the legislature did not intend to provide “the same harsh minimum mandatory sentence” (two years) for a person who merely possessed such items. Appellant also argues that the legislature did not define the term “intentional possession.” Appellant cites State v. Fussell, 2006-324 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, in which the court refused to allow multiple photos to be used to support multiple counts of a violation of La. R.S. 14:81.1. Appellant then requests this court to apply “the doctrine of lenity” to find that the statute is “overbroad, ambiguous, and vague and unconstitutional as applied to the facts of this case.”

The state urges that statutes are presumed constitutional, and that any doubt is to be resolved in favor of the constitutionality of the statute. State v. Brenner, 486 So.2d 101 (La.1986). The party challenging the constitutionality of a statute bears a heavy burden in proving that statute unconstitutional. State v. Brooks, 541 So.2d 801 (La.1989). The state distinguishes Fussell, swpra, because it only dealt with the constitutionality of charging multiple counts of possession of child pornography, whereas Horton was only charged with one count.

| ^Assignment of Error No. 3 also concerns the interpretation of the words “intentional possession.” The appellant, although couching his argument as one of sufficiency of the evidence, has simply adopted the arguments made under Assignment of Error No. 2 and contends that “intentional possession” should be interpreted to mean more than simple possession, as opposed to situations involving a person producing or distributing such photographs.

Appellant has not raised a true sufficiency argument under the familiar standard in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in which the evidence is viewed, for purposes of sufficiency, in the light most favorable to the prosecution. In this case, Horton is not even arguing that he did not possess child pornography on his computer hard drive. Thus, the real issue for both Assignment of Errors Nos. 2 and 3 concern “intentional possession.”

La. R.S. 14:81.1(A)(3) unambiguously states that “pornography involving juveniles includes the intentional possession ... or possession with intent to sell or distribute....” Thus, there appears to be no mistake by the legislature in intending to punish not only possession with intent to sell or distribute, but also merely “intentional possession.” Additionally, the words “intentional possession,” taken in their usual sense, mean that the individual knowingly and voluntarily possessed the pornography, in contrast to circumstances where a person downloads images from the internet without realizing that some images included in the download were child pornography. Appellant has offered no evidence to show that the two-tyear14 minimum sentence for the crime of pornography involving juveniles somehow shows that the legislature could not have meant to apply that length of sentence to someone who “merely” intentionally possesses child pornography. This assignment is without merit. Likewise, viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of pornography involving juveniles were proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132.

The next three assignments of error arise out of motions regarding the defendant’s sentence. Horton contends the trial court erred in denying his motion to depart downward from the statutory minimum sentence of two years without benefits, that the actual seven-year sentence imposed is excessive and the trial court erred in denying his motion to reconsider sentence.

The sentencing range for “pornography involving juveniles” is imprisonment for not less than two years nor more than ten years, without benefit of parole, probation or suspension of sentence. La. R.S. 14:81.1(D). The court imposed a seven-year sentence on Horton, who was 62 or 63 years old at the time.

With respect to a downward departure from the two-year minimum mandatory sentence, Horton argues that “because of unusual circumstances” he was a victim of the legislature’s failure to assign a sentence that was meaningfully tailored to his culpability, the gravity of the offense, and the 11ficircumstances of the case. He notes a similar federal offense has no minimum sentence for possession of child pornography. Horton fists five items in support of his “character, health and culpability.” He has been gainfully employed by the state for over 20 years, performing a “valuable service” working for the State Office of Family Support. He is held in “high regard” by all his coworkers. He also asserts that he is not a danger to anyone in the community, and he points out that at age 64, he suffers from “severe emphysema, and end stage COPD and is not in good overall health.” Horton also points out that this is his first felony conviction and that a misdemeanor conviction for contributing to the delinquency of a juvenile occurred 16 years ago. Finally, under the heading of “character, health and culpability,” he asserts that the possession of pornography in his home was not limited to child pornography because he had a large amount of adult porn mixed in with the child pornography.

Unlike the federal crime for this offense, the statute prescribes the same penalty range for those individuals who merely possess child pornography as for those who produce and sell it, whereas in the federal system the penalty for distribution is much greater. Horton correctly points out that there was no evidence that he sold, distributed, or possessed with intent to distribute, and that there was no evidence that he produced any child pornography. By an analogy to drug cases in which the legislature has mandated less severe sentences for individuals who possess illegal drugs as compared to those who sell illegal drugs, he argues that the legislature failed to provide a different penalty for individuals who merely possess child 11S'pornography versus those who produce and sell it. Lastly, he argues that a probated sentence for an individual who merely possesses child pornography is “a meaningful, serious sentence” and he argues that the search of his computer by the Best Buy employees was a “gross invasion” of his privacy.

Finally, Horton argues that the sentencing judge did not comply with Article 894.1 and the sentence should be set aside and remanded for further proceedings and re-sentencing. Alternatively, Horton argues that this court should vacate the sentence and impose a reasonable sentence which Horton argues is probation. Horton notes that he has been in jail since July 5, 2006. Horton notes that the maximum sentence is ten years, that the statute is primarily designed to punish persons who produce and distribute child pornography, and that the worst offenders are the ones who should receive sentences on the high side of the sentencing range. According to Horton, he is not one of the worst offenders and should not receive a sentence on the high side of the sentencing range.

In support of the trial court’s sentencing choice, the state argues that Horton had saved hundreds and hundreds of images of child pornography on his computer, as well as possessed “several instances of child pornography” on a floppy disk labeled “My Favorites.” The state also notes that it presented the testimony of a young man who had been victimized by Horton in 1990. The boy and his family were tenants in the other side of the duplex which Horton owned and lived in, and the state asserts that “in the fashion of pedophiles,” Horton made friends with the boy and his family. |17Then, after establishing a habit of inviting the boy to watch cartoons, Horton began to introduce pornographic movies to the boy who was nine years old at the time. Although the boy testified that Horton never touched him inappropriately, the boy stated that Horton would place him on his lap, and that Horton would touch himself. Horton also allegedly talked to the boy about anticipated sexual activity between Horton and Horton’s girlfriend, and indicated that the boy would be able to watch them and join in the future. Horton also gave the boy a picture of a nude woman in a sexually suggestive pose. The victim testified that as a result of Horton’s actions the victim had to undergo repeated counseling, that he had problems in his relationships, and that it was hard for him to sit with his back to people.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App. 2 Cir. 1/28/04), 865 So.2d 280, writ denied, 04,057 (La.9/24/04), 882 So.2d 1165.

11sThere is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, 394, unit denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App. 2 Cir. 2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2 Cir.1993); State v. Russell, 40,526 (La.App. 2 Cir. 1/27/05), 920 So.2d 866. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof that the defendant committed the other offenses. State v. Jones, 31,569 (La.App. 2 Cir. 12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App. 2 Cir. 10/29/97), 702 So.2d 40, 42.

As a general rule, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Brisco, 33,179 (La.App. 2 Cir. 4/5/00), 756 So.2d 644, writ denied, 2000-1478 (La.5/25/01), 792 So.2d 749; State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2 Cir.1991).

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show |1flthat the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2 Cir. 6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are | j,nviewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

The trial judge stated that she had reviewed the sentencing guidelines and the Code of Criminal Procedure Article 894.1, and had heard all of the testimony and statements made at the sentencing hearing; she also had reviewed letters and other documentation submitted to the court, and had heard all arguments from both the state and defense counsel.

Judge Emanuel stated that she had considered the following factors: the nature of the defendant’s prior misdemeanor conviction, although many years ago; his work history and life experience; and his age and health concerns. The court also indicated that she had looked to the nature and seriousness of the offense, along with all other relevant factors to be considered. She then sentenced Horton to serve seven years at hard labor without benefits and ordered him to register as a sex offender.

Judge Emanuel’s reasons for sentencing show that Horton’s prior misdemeanor conviction weighed heavily in her sentencing choice. Horton’s work history, as well as his age and health concerns, are somewhat favorable to a lesser sentence. Thus, when we consider that maximum sentences or near maximum sentences are generally reserved for the worst offenders, it is clear that the sentencing court distinguished Horton’s case from any other case involving only possession of pornographic images based on the prior misdemeanor conviction. Although the conviction took |⅞1 place 16 years prior, the acts described by his victim could have resulted in felony charges against Horton. See La. R.S. 14:81, Indecent Behavior with Juveniles. Plainly, there is a major difference between possessing pornography, including child pornography, and taking actions with a child like those underlying the misdemeanor conviction.

Although the sentence is severe, we cannot say that the sentence shocks our sense of justice. Considering Horton’s involvement with pornography over a long period of time, including child pornography, and including the acts disclosed concerning his former misdemeanor conviction, we affirm the sentence.

Conclusion

For the reasons stated above, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . The Fourth Amendment proscribes only governmental action. It is "wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.' ” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct 2395, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)).

      . State v. Coleman, 467 So.2d 542 (La.1985); State v. Clark, 456 So.2d 1012 (La.1984).


author: EDWIN A. LOMBARD, Judge.

text:
    Kory STEEN and Bonnie Steen, Husband and Wife, Individually and on Behalf of their Minor Son, Patrick Steen v. PROFESSIONAL LIABILITY INSURANCE COMPANY OF AMERICA, et al.
    No. 2006-CA-1230.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 2007.

      Tracey Rannals Bryan, Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., New Orleans, LA, James M. Williams, Gauthier, Houghtaling, Williams & Sulzer, L.L.P., Metairie, LA, for Plaintiffs/Appellees.
    Corinne A. Morrison, Douglas L. Grund-meyer, James C. Young, Loretta O. Hos-kins, Chaffe McCall, L.L.P., New Orleans, LA, for the Louisiana Patient’s Compensation Fund and the Louisiana Patient’s Compensation Fund Oversight Board.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

LDefendant Dr. Thomas B. Ryan, an obstetrician, and his medical malpractice insurer, Professional Liability Insurance Company of America, appeal the judgment entered in favor of plaintiffs Kory and Bonnie Steen, individually and on behalf of their minor child, Patrick Steen, for damages arising from Patrick’s birth. In addition, the Louisiana Patient’s Compensation Fund (“PCF”) and the Louisiana Patient’s Compensation Fund Oversight Board (“PCFOB”), exercising their statutory rights under La.Rev.Stat. 40:1299.41, et seq., the Louisiana Medical Malpractice Act (“MMA”), seek review of any damages greater than $100,000.00 payable by the Fund.

After review of the record in light of the arguments of the parties and applicable law, we affirm in part and reverse in part.

Relevant Facts

Mrs. Steen was admitted on June 9, 1996, to the Labor and Delivery Unit of Memorial Medical CenterBaptist Campus for delivery of her baby. Although Mrs. Steen’s previous delivery was by the surgical procedural commonly referred to as a C-Section, Dr. Ryan proceeded with a vaginal delivery. Upon being fully dilated, Mrs. Steen was instructed to push. Labor progressed normally until Dr. | aRyan delivered the baby’s head with low forceps and the baby displayed what is referred to as a “turtle sign,” ie., the baby’s head is sucked back toward the mother’s perineum or vulva and does not restitute on its own. Dr. Ryan continued to apply moderate traction on the baby’s head for approximately thirty seconds in an attempt to dislodge the baby’s shoulders. After traction failed to release the baby’s shoulders, Dr. Ryan performed a Zavenelli maneuver to reinsert the baby’s head into the vagina and then delivered the baby by C-section. Patrick Steen sustained a brachial plexus injury during birth and has been diagnosed with Erbs Palsy.

The matter was submitted to a Medical Review Panel on June 5, 1997. Several years later, on February 17, 2000, the Medical Review Panel issued its finding that there was a material issue of fact bearing on liability pertaining to the initial decision to attempt a vaginal birth in this case, but that once the shoulder dystocia occurred, the defendant acted in a timely and expeditious fashion.

On May 3, 2000, the Steens timely filed this medical malpractice lawsuit, individually and on behalf of their child, seeking damages from Tenet Healthsystems of Louisiana, Inc. and Tenet Healthsystems of Louisiana Memorial Medical Center— Baptist Campus (“Tenet”), Physician Network Corporation of Louisiana (“Physician Network”), Professional Liability Insurance Company of America, and Dr. Ryan. The defendants answered, averring that the alleged injuries did not result from the medical care and treatment that they provided and were not caused by a failure on the part of Dr. Ryan to meet the standard of care. Prior to trial the plaintiffs dismissed Physician Network and the district court dismissed Tenet. After a four-day bench trial in February 2006, the district court took the matter under advisement. On April 12, 2006, the district court signed a | judgment finding Dr. Ryan at fault for the brachial plexus injury sustained during delivery, awarding Patrick Steen a total of $500,000.00 in general damages plus interests and costs, and $513, 328.10 in special damages for past and future medical expenses, and awarding each of his parents $50,000.00 for their loss of consortium.

Standard of Review

Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, in order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirely and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart, supra at 882. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. (citation omitted). Accordingly, even where an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra at 844. “The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Stobart, supra at 883 (quoting Canter v. Koehring Co., 283 So.2d 716 (La.1973). Thus, when two permissible views of |4the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Likewise, unless documents or objective evidence clearly contradict the fact finder’s credibility determination, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, supra at 844-45.

Applicable Law

In a medical malpractice action, the plaintiff has the burden of proving: (1) the degree of knowledge or skill possessed or degree of care ordinarily exercised by physicians within that medical specialty, ie., the standard of care; (2) that defendant either lacked such degree of knowledge or skill, or failed to use reasonable care and diligence along with his best judgment in application of that skill, ie. a breach of the standard of care; and (3) that as result, injuries were sustained that would not have otherwise occurred, ie., causation. La.Rev.Stat. 9:2794; Williams v. Memorial Medical Center, 03-1806 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044 (in a medical malpractice case, the physician is found to be negligent when the physician violates the applicable standard of care, and that violation results in the plaintiffs injury).

Discussion

On appeal, the defendants do not dispute causation but argue that the plaintiffs failed to establish that Dr. Ryan breached the applicable standard of care and that record does not support the damages awarded in this case.

Standard of Care

First, the defendants argue that the trial court’s determination of the applicable standard of care is not supported by the record and is therefore manifestly erroneous. Specifically, the defendants allege that the trial court erred in finding that “all physicians agreed that the standard of care is to cease all | ¿traction upon encountering shoulder dystocia” because some of the defendants’ experts testified that traction may be used to confirm the diagnosis of shoulder dystocia and as an initial attempt to dislodge the shoulder.

At trial, the plaintiffs presented expert testimony to establish the standard of care in this case and, in response, the defendants presented the testimony of their own expert witnesses as to the standard of care. As evidenced in her reasons for judgment, the trial judge considered the testimony of all the expert witnesses in determining the applicable standard of care, stating as follows:

This Court must first determine the applicable standard of care in this care [sic] in this case. Both parties presented expert testimony on the issue of the applicable standard of care. While the expert opinion as to whether Dr. Ryan breached the applicable standard of care varied widely, most agreed the applicable standard of care in such case as this one is that once a physician is encountered with a shoulder dystocia any and all traction, mild, moderate or otherwise, should cease and certain maneuvers should be performed in an attempt to dislodge the shoulder.
FN. There are two significant points of disagreement between the experts as to the applicable standard of care. First, plaintiff experts asserted that once a shoulder dystocia is even suspected, it would be a breach of the standard of care to apply any traction. Defendants’ experts, however, stated that traction could still be used to confirm a shoulder dystocia, but once the shoulder dystocia is confirmed all traction, unless accompanied with a maneuver should cease. Second, there is a disagreement between the experts as to what maneuvers should be attempted and in what order they should be attempted
As all physicians ag<. i that the above is the applicable standa, J of care, this Court is comfortable in holding the same as the law of the case.

(emphasis added).

On appeal, the defendants argue that the trial court was clearly wrong in adopting the plaintiff expert’s version of the applicable standard of care (all |fitraction must cease as soon as a shoulder dystocia is encountered) because “the record unequivocally establishes that all the experts did not agree that upon encountering shoulder all traction must cease.”

The defendants misapprehend the trial court’s judgment, however. While the reasons for judgment initially appear inconsistent, when read in its full context (including the footnote), it is clear that the trial court was not adopting the standard of care posited by the plaintiff expert witnesses, i.e., that all traction must stop upon encountering shoulder dystocia, but rather adopted the standard to which all of the expert witnesses agreed, i.e, once shoulder dystocia was confirmed, all traction unless accompanied tuith a maneuver should cease. To find otherwise, as the defendant’s suggest we should, necessitates an inherently contradictory interpretation of the trial judge’s reasoning.

Moreover, our review of the record indicates that (as the trial court noted in her footnote) the expert witnesses disagreed as to which specific maneuvers are appropriate in conjunction with continued traction after encountering shoulder dystocia but generally agreed that continued traction after encountering shoulder dystocia is only appropriate when performed in conjunction with a diagnostic or corrective maneuver and, concomitantly, that the continuation of traction alone, without the requisite diagnostic or corrective maneuver, is inappropriate. Accordingly, we cannot find that the trial court was manifestly erroneous in adopting as the applicable standard of care the standard agreed to by all the experts, i.e., that it was below the standard of care for a physician to continue to assert traction alone (without a diagnostic or corrective action) once he encountered shoulder dystocia.

1 ^Whether Dr. Ryan Breached the Standard of Care

Next, the defendants contend that because the trial court’s determination of the standard of care was clearly wrong, the subsequent finding that Dr. Ryan breached the standard of care is also clearly wrong. The defendants also contend that it was error for the trial court to find that Dr. Ryan breached the standard of care based upon a statement in his deposition testimony.

First, as discussed above, the trial court was not clearly wrong in its determination of the applicable standard of care and, thus, there is no merit to the defendants’ contention that the trial court erred in determining that Dr. Ryan breached the standard of care on that basis.

Likewise, the defendant’s alternative argument that the trial court erred in finding that Dr. Ryan breached the standard of care based on a statement in his deposition testimony rather than accepting his trial testimony and the medical evidence submitted at trial is also without merit. A review of the record indicates that Dr. Ryan’s defense at trial was that he continued the traction 20-30 seconds after encountering the turtle sign only to confirm a shoulder dystocia and, as such, his action in applying mild to moderate traction for diagnostic purposes did not constitute a breach of the standard of care. In her reasons for judgment, the trial judge made the following finding:

The Court does not agree with the defendants’ recitation of the facts. Dr. Ryan did consistently testify at trial that he only applied traction to confirm his suspicions of shoulder dystocia. However, an excerpt from his deposition testimony is replicated below:
Q. Why didn’t you do it?
A. After I delivered the baby’s head, it was evident to me that this was a significant shoulder dystocia from the tightness of the baby’s head against the mother’s tissues. I gave the baby a moderate tug to see if the anterior should would slip past ...”
IsWhen confronted with this testimony at trial, Dr. Ryan stated that he simply misspoke during his deposition. He did admit, however, that upon the delivery of the head the baby exhibited the “turtle sign”, which is synonymous with a shoulder dystocia. He further admitted that after the delivery of the head he applied 20 to 30 seconds of mild to moderate traction on the baby’s head and neck.
Based upon these admissions, taking in conjunction with the deposition testimony, the court holds that Dr. Ryan did in fact breach the applicable standard of care. Dr. Ryan continued to apply mild to moderate traction to the head and neck of Patrick Steen even after he knew that he was dealing with a “significant” shoulder dystocia.

It is clear from the reasons for judgment, that the trial court made a credibility determination that Dr. Ryan’s deposition testimony, rather than his later trial testimony, accurately reflected the facts. Although Dr. Ryan subsequently changed his testimony to adhere to the standard of care, there is no dispute that Dr. Ryan’s initial statement of events in his deposition clearly indicates that he continued traction without any sort of corrective maneuver even after he knew (or diagnosed) the shoulder dystocia. Accordingly, we do not find that the trial court was clearly wrong in finding, based upon Dr. Ryan’s initial statement that he continued traction without any diagnostic or corrective maneuver after encountering shoulder dystocia, that Dr. Ryan breached the standard of care.

Damages

Dr. Ryan and his insurer raise only one assignment of error pertaining to the damage award, arguing that the trial court erred in awarding consortium damages exceeding the statutory medical malpractice cap of $500,000.00. The PCF and PCFOB raise four assignments of error pertaining the damages award: (1) the district court manifestly erred in concluding that the plaintiffs carried their burden of proving that the defendant caused damages in excess of $100,000.00; (2) the district court erred in awarding $400,477.00 for Patrick Steen’s future medical expenses when the Louisiana Medical Malpractice Act mandates that expenses for 1 amedical care not yet incurred at the time of trial may not be reduced to a money judgment; (3) the district court erred in awarding $10,412.20, in past medical expenses for the birth of Patrick Steen, when plaintiffs failed to prove that those medical expenses are related to the treatment of Patrick Steen’s injuries; and (4) the district court manifestly erred in concluding that the plaintiffs carried their burden of proving that the defendant caused the loss of consortium damages in the amount of $50,000.00.

Consortium damages

The plaintiffs concede that the loss of consortium awards made to Mr. and Mrs. Steen are derivative of the general damages and are extinguished due to the fact that Patrick Steen’s claims exceed the medical malpractice cap and agree that the consortium damage awards should be vacated.

General Damages

Finding that the plaintiffs proved that Dr. Ryan’s malpractice caused permanent and life-long injuries with damages exceeding the statutory cap of $500,000.00, the trial court awarded $500⅛000.00, plus interests and court costs, for general damages. The defendants assert, however, that because the child retains 50-55% use of his hand and arm, the damages arising from Dr. Ryan’s malpractice warrant no more that an award of $160,000.00. According to the defendants, an award of $500,000.00 is warranted only when a child sustains a complete loss of use of his arm.

The discretion vested in the trial court is vast and, accordingly, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Because “[r]easonable persons frequently disagree about the measure of general damages in a particular case” ... lm“only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular .plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. (emphasis added). In this case, the defendants assert that this court should reduce the award because the child suffers only a lifelong permanent 45-50% hand and arm disability. We do not agree. The trial court did not abuse its vast discretion in awarding $500,000.00, the maximum amount available, in general damages.

Future Medical Expenses

The trial court awarded $513,328.10 for special damages based on its finding that the plaintiffs submitted uncontroverted past medical expenses of $111,285.10 and future medical expenses of $641,046.00 (reduced to present day value of $400,477.00). The defendants argue, however, that the trial court is. prohibited from awarding a lump sum for future medical expenses because, under La.Rev.Stat. 40:1299.43 and Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, 1217-19, the PCF has exclusive jurisdiction over all claims for future medical care and related benefits.

The defendants, however, misinterpret the statute and relevant jurisprudence. Pursuant to La.Rev.Stat. 40:1299.44(D)(l)(a) and (2)(a), the PCFOB is a legislative creation vested with the responsibility and full authority under law for the “management, administration, operation and defense” of the PCF. The PCFOB’s role with regard to payments for future medical care and related benefits required as a result of a medical malpractice settlement or judgment is explained in La.Rev.Stat. 40:1299.43(C) as follows:

InC. Once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits that will be incurred after the date of the response to the special interrogatory by the jury or the court’s finding or a settlement is reached between a patient and the patient’s compensation fund in which the provision of medical care and related benefits that will be incurred after the date of settlement is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a claim to the patient’s compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider’s malpractice unless the patient refuses to allow them to be furnished.

The statute further provides, “The district court from which final judgment issues shall have continuing jurisdiction in cases where medical care and related benefits are determined to be needed by the patient.” La.Rev.Stat. 40:1299.43(E)(1). In Kelty, the Louisiana Supreme Court interpreted La.Rev.Stat. 40:1299.43(C) as granting the PCFOB “exclusive jurisdiction for future medical care and related care claims” and, accordingly, the PCFOB’s jurisdiction over future medical care and related claims includes the authority to receive and evaluate, as well as to pay, settle, or reject claims and to “supervise the administration of continuing claims.” Kelty, 633 So.2d at 1218-1219; see also Bijou v. Alton Ochsner Foundation, 95-3074 (La.09/05/1996), 679 So.2d 893, 898 (plaintiff who received a favorable trial court judgment finding him in need of future medical care and related benefits was directed to make claim to the PCFOB for further action and recovery of his future medical care claim). However, Section C and Kelty must be read in the context of La.Rev.Stat. 40:1299.43(A)(2) which provides in pertinent part that “In actions upon malpractice claims tried by the court, the court’s finding shall include a recitation that the patient is or is not in need of future medical care and related benefits that will be incurred after the date of the response to the special interrogatory and the amount \ ^hereof (emphasis added).” Thus, Section A requires the trial court to determine whether a plaintiff is in need of future medical care and, if so, to specify “the amount thereof’, thereby mandating that the trial court render a judgment for future medical expenses prior to the plaintiff submitting a claim for payment to the PCF. Watkins v. Lake Charles Memorial Hospital, 04-355, pp. 4-5 (La.App. 3 Cir. 12/15/04), 896 So.2d 130, 134-135, writ den., 05-0145 (La.4/8/05), 898 So.2d 1279. Accordingly, a lump sum award for future medical expenses is properly contained in the judgment even though it is not made executory until review and approval by the LPCF or, if denied, upon subsequent order of the court under its continuing jurisdiction. See La.Rev.Stat. 40:1299.43(E)(1) (“The district court from which final judgment issues shall have continuing jurisdiction in cases where medical care and related benefits are determined to be needed by the patient.”).

Past Medical Expenses

With regard to the previously incurred medical costs, the PCF argues that the plaintiffs did not sustain their burden in proving these expenses. The trial court found, however, that the plaintiffs claim for medical benefits already received was unrefuted.

The definition of “future medical care and related benefits” is contained in La. Rev.Stat. 40:1299.43(B)(1), which provides broadly, that:

“Future medical care and related benefits” for the purpose of this Section means all of the following reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, after the date of injury.

|ia(Emphasis added.) Although this provision does not distinguish between medical expenses incurred from the date of injury to judgment or settlement and those expenses not yet incurred but which may be necessary after the date of judgment, some courts have routinely included already incurred medical expenses in the judgment and made that portion of the judgment executory. See Hall v. Brookshire, Ltd., 02-2404, p. 28 (La.6/27/03), 848 So.2d 559, 576 (holding interest was owed on “future” medical expenses which had already been incurred);); Maxtvell v. Soileau, 561 So.2d 1378 (La.1990) (including already incurred medical expenses in a money judgment awarded to plaintiff on appeal); see also LeRay v. Bartholomew, 03-1370 (La.App. 5 Cir. 3/30/04), 871 So.2d 492 (noting that trial court correctly made distinction between medical expenses and related benefits incurred between the accident and the date of trial and future medical expenses which will occur after trial and, in so doing, correctly reduced the past medical expenses to a money judgment). With regard to the portion of the special damage award based on past medical expenses, a 2004 amendment to La.Rev.Stat. 40:1299.43(A)(4), clarifies that future medical expenses already incurred at the time of judgment shall be included in the money judgment and made executory. The amendment provides: “The remaining portion of the judgment, including the amount of future medical care and related benefits incurred up to the date of the response to the special interrogatory by the jury or the court’s finding shall be paid in accordance with R.S. 40:1299.44(A)(7) and R.S. 40:1299(B)(2)(a), (b), and (c).”

Accordingly, the LPCF had a fair opportunity at trial to contest the amount requested by the plaintiff, but failed to refute these expenses. Accordingly, we conclude the trial court had authority to make a determination regarding the 114amounts owed for past medical care and to reduce those amounts to a money judgment and in light of the recent amendment, that portion of the special damage award shall be made executory.

Conclusion

In accordance with the foregoing analysis, the judgment of the trial court is affirmed in part and reversed in part.

AFFIRMED IN PART; REVERSED IN PART.