text:
    William K. HAYS and Juanita Louise Hays, Plaintiff-Appellant v. CHRISTUS SCHUMPERT NORTHERN LOUISIANA d/b/a Christus Schumpert Health System and Deirdre Y. Barfield, M.D., Defendant-Appellee.
    No. 41,271-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 2006.

      Susan E. Hamm, for Appellant.
    Mark A. Goodwin, Shreveport, for Ap-pellee, Christus Health Northern Louisiana.
    Lawrence W. Pettiette, Jr., for Appel-lees, Dierdre Y. Barfield, M.D. and Louisiana Medical Mutual Insurance Company.
    Before BROWN, WILLIAMS and MOORE, JJ.
   WILLIAMS, Judge.

hThe plaintiffs, William K. Hays and Juanita Louise Hays, appeal a summary judgment rendered in favor of defendants, Christus Schumpert Northern Louisiana d/b/a Christus Schumpert Health System (“Schumpert”) and Deirdre Y. Barfield, M.D. (“Dr. Barfield”). For the following reasons, we reverse and remand for further proceedings.

FACTS

On June 14, 1999, Juanita Hays was admitted to Schumpert by her treating physician, Dr. Barfield, with complaints of continued nausea, vomiting, diarrhea, abnormal weight loss and weakness. Ms. Hays had been experiencing these symptoms for several months. During her hospital stay, Ms. Hays suffered a stroke forcing her to remain at Schumpert until July 12, 1999, when she was transferred to a rehabilitation facility.

As a result of the treatment she received by her various healthcare providers during the episode, Ms. Hays filed a medical malpractice complaint with the Louisiana Division of Administration, Patient’s Compensation Fund, which convened a medical review panel. In November 2002, the panel rendered its opinion concluding that the evidence did not show that any of the healthcare providers failed to meet the applicable standard of care and that Ms. Hays’ alleged damages were not caused by their conduct.

According to the medical review panél findings, Ms. Hays was admitted to Schumpert on June 14, 1999, for testing to determine the etiology of the symptoms she had suffered over the previous months. Among the initial battery of tests, Ms. Hays’ glucose level was measured. It | ¡¡is undisputed that on the evening of June 14, 1999, an incorrect test result was reported to Dr. Barfield indicating an elevated glucose level. As a result, Dr. Barfield instituted orders for sliding scale insulin and adjustment of Ms. Hays’ IV fluids. The following morning, Dr. Barfield wa,s provided with the correct laboratory results showing that Ms. Hays’ glucose level had in fact been low. The panel found that there was no documentation that Ms. Hays was ever administered the insulin ordered by Dr. Barfield.

On the afternoon of June 15, 1999, Ms. Hays became less responsive and hypotoxic, leading to her transfer to the intensive care unit the following day. She was diagnosed with a probable venous thrombus in her left femoral vein and a pulmonary embolus causing her oxygenation problems. However, it was not until June 19, 1999, that her chest x-ray began to show bilateral infiltrates consistent with possible pneumonia. On that date she was started on an antibiotic and Ativan was prescribed for agitation. To relieve her agitation and confusion, Ms. Hays was returned to a hospital floor room on June 20, 1999, and soft restraints were ordered as needed. Additionally, the panel found that Dr. Bar-field suggested to Ms. Hays’ family that she be supervised or restrained at all times.

On the evening of June 20, 1999, after her husband, William Hays, left the hospital to return home, a respiratory therapist found. Ms. Hays alone in her room, sitting in a chair. Ms. Hays’ breathing was shallow and her central line had been pulled out of her chest. A code was called and Ms. Hays was successfully resuscitated, intubated and returned to intensive care. An MRI taken on July 6, 1999, indicated that Ms. Hays had suffered a | astroke. On July 12,1999, Ms. Hays was transferred to Dubuis Hospital for Continuing Care for rehabilitation purposes. Her condition slowly improved and she eventually recovered significantly from her stroke and respiratory problems.

Based on these findings, the panel concluded that none of Ms. Hays’ health problems were caused by the care she received from any of her healthcare.providers, including Schumpert and Dr. Barfield. While the panel acknowledged a factual dispute as to whether Ms. Hays was to be supervised or restrained at all times, the panel stated that fact was irrelevant to Ms. Hays’ “ultimate problems” and that no causation had been shown. Likewise, the panel concluded no injury resulted from “the error in the lab work given to Dr. Barfield.”

Subsequently, the plaintiffs, Ms. Hays and her husband, William K. Hays, filed a petition for damages against the defendants, Schumpert and Dr. Barfield. The petition alleged that Schumpert personnel negligently reported erroneous lab work to Dr. Barfield on June 14, 1999, resulting in the improper administration of sliding scale insulin. Additionally, the plaintiffs alleged that defendants failed to properly monitor and restrain Ms. Hays on the evening of June 20,1999.

In October 2005, Schumpert filed a motion for summary judgment on the basis of the medical review panel’s conclusion that its conduct had neither violated the applicable standard of care nor caused any of plaintiffs’ alleged damages. • Schumpert also relied on the deposition testimony of plaintiffs’ expert, Dr. Murray Pizette, who stated that he did not have any |4criticism of the medical care rendered by Schum-pert personnel and that he agreed with the medical review panel’s opinion to the extent that it found no breach of the applicable standard of care by Schumpert.

Tn opposing the motion for summary judgment, plaintiffs relied on Ms. Hays’ medical records, affidavits from Dr. Piz-ette and Walter J. Pierron, a licensed pharmacist in Louisiana, and excerpts from the depositions of Dr. Barfield, Dr. Pizette, and William Hays. The medical records indicate that on the evening of June 14, 1999, Ms. Hays’ blood glucose level was 57 mg/dL, which is below the “LO REFERENCE” level of 80 mg/dL indicated on the blood chemistry report. The progress notes for June 15, 1999 include the following notation by Dr. Bar-field:

Addendum: Incorrect lab called to me last pm-was basis for choice of IVF (and) insulin sliding scale. Correct lab seen (and) appropriate changes made. No adverse effects to pt noted, but did delay treatment.

The medical records do not indicate what lab value was reported to Dr. Barfield, but the order for sliding scale insulin suggests it was an elevated level and not the 57 mg/dL indicated on the blood chemistry report. While the medical records do not affirmatively show that any insulin was ever administered, they indicate that Ms. Hays’ blood glucose level was measured twice on the morning of June 15, 1999. The first reading was a critically low 34 mg/dL, and the second was even lower at 32 mg/dL.

In his affidavit, Walter Pierron stated that he was a registered pharmacist with over 50 years’ experience and was familiar with the administration, effects and side effects of insulin. Based on his review of Ms. Hays’ medical records, Pierron opined that it was more probable than Rnot that Ms. Hays was given insulin at some point during the night of June 14, 1999, or the early morning hours of June 15, 1999, and that her dangerously low blood sugar levels were a result thereof.

Dr. Pizette stated in his affidavit that since the time of his deposition, he had reviewed additional information in the form of Walter Pierron’s affidavit. Based upon that information, Dr. Pizette opined that the standard of care had been breached by Schumpert when the incorrect lab values were reported to Dr. Barfield. Furthermore, he opined that if this breach resulted in the administration of insulin, the dangerously low blood levels that followed would have been a result thereof and a contributing factor in Ms. Hays’ injuries.

At the hearing on the motion for summary judgment, the parties submitted the matter without argument. Finding that Dr. Pizette’s affidavit, “based on the affidavit of a pharmacist,” was not sufficient to create a genuine issue of material fact, the district court rendered judgment granting Schumpert’s motion for summary judgment. Plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting the motion for summary judgment. Plaintiffs argue that the expert witness affidavits demonstrated a genuine issue of material fact as to whether Schumpert personnel negligently gave insulin to Ms. Hays as a result of the incorrect report of lab results.

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same |ficriteria that govern the trial court’s determination of whether summary judgment is appropriate. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Hawes v. Kilpatrick Funeral Homes, Inc., 39,089 (La.App. 2d Cir.11/17/04), 887 So.2d 711. Summary judgment may be rendered to dispose of a particular issue, theory of recovery, cause of action or defense, even though the granting of same does not dispose of the entire case. LSA-C.C.P. art. 966(E).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter before the court, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, the adverse party must produce evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2); Hawes, supra.

[7In a medical malpractice action, the plaintiff must prove the applicable standard of care, the breach of this standard of care, and the causal connection between the breach and the resulting injury. LSA-R.S. 9:2794(A); Britt v. Taylor, 37,378 (La.App. 2d Cir.8/20/03), 852 So.2d 1128; Orea v. Brannan, 30,628 (La.App. 2d Cir.6/24/98), 715 So.2d 108. Generally at trial, a plaintiff must prove the applicable standard of care through expert medical testimony unless, “the physician does an obviously careless act ... from which a lay person can infer negligence.” Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228 at 1233; Strange v. Shroff, 37,353 (La.App. 2d Cir.7/16/03), 850 So.2d 1077.

Expert opinion testimony in the form of an affidavit or a deposition may be considered in support of or opposition to a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. A party cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous deposition testimony. Henderson v. Homer Memorial Hospital, 40,585 (La.App. 2d Cir.1/27/06), 920 So.2d 988, writ denied, 06-0491 (La.5/5/06), 927 So.2d 316.

In support of its motion for summary judgment, Schumpert submitted the medical review panel’s opinion that the hospital did not breach the applicable standard of care, along with the deposition testimony of Dr. Pizette generally agreeing with that conclusion. However, the undisputed facts show that on the evening of June 14, 1999, Dr. Barfield was given an erroneous blood glucose level over the phone by Schumpert personnel. The | ¡^purpose of the blood tests was to inform the physician of the patient’s medical status so that the appropriate decisions regarding the patient’s care could be made. It is also undisputed that in response to this report, at approximately 8:30 p.m., Dr. Barfield ordered that sliding scale insulin be administered to Ms. Hays. The medical records indicate that the next morning at 4:20 a.m., Ms. Hays’ blood glucose level had dropped to a dangerously low 34 mg/dL. A nurse’s note indicated that at 10:20 a.m., Ms. Hays’ blood sugar level was 32 mg/dL, which Dr. Barfield acknowledged would have put Ms. Hays at risk of significant hypoglycemic symptoms. That morning, Dr. Barfield noted in the patient’s chart that she had seen the correct lab values and made the appropriate changes. Dr. Barfield further noted that although the erroneous report had no adverse effects on Ms. Hays, the error did delay her treatment.

The record establishes that Ms. Hays suffered from a low blood glucose level on the evening of June 14, 1999. Dr. Bar-field, however, acting upon incorrect information concerning Ms. Hays’ blood glucose level, ordered the administration of insulin, a hormone commonly known to decrease blood glucose levels. Whether the hormone was actually administered is not evident from the record before us. Nevertheless, by the following morning Ms. Hays’ blood glucose level had dropped into “dangerously low” territory. Dr. Pizette opined in his affidavit that such a dangerously low blood glucose level would have contributed to Ms. Hays’ injuries. Thus, the testimony contained in the record demonstrates there is a genuine issue of material fact as to whether the misreporting of Ms. Hays’ Lblood chemistry lab results was a breach of the standard of care.

The reason for the medical review panel’s ultimate conclusion that Schumpert did not breach the standard of care seems to be the belief that insulin was not administered to Ms. Hays as a consequence of the erroneous lab results. Specifically, the panel noted in its opinion that there was no documentation that Ms. Hays had received any insulin. That being the case, it is reasonable to conclude that the panel saw no causal connection between the erroneous lab results and the complications subsequently suffered by Ms. Hays. Along the same line of reasoning, however, it is also fair to assume that the panel did not reach the issue of whether insulin, if administered, could have caused any of the complications subsequently suffered by Ms. Hays.

On this question, plaintiffs presented the affidavit of Dr. Pizette, who stated that the administration of insulin to Ms. Hays would have caused her to experience dangerously low blood sugar levels, which would have contributed to her injuries. Accordingly, in the present case, summary judgment would only be appropriate if there was no genuine issue of fact as to whether any insulin was actually administered to Ms. Hays on the evening of June 14, 1999, or in the early morning hours of June 15, 1999.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App. 2d Cir.4/4/01), 785 So.2d 101. The inferences to be |indrawn from the facts described above raise a genuine question of material fact which should have precluded summary judgment.

While one could infer that Ms. Hays was not given insulin and that her blood glucose level dropped regardless of the delay in treatment, that is neither the sole nor most likely inference to be drawn. The inference most favorable to the plaintiffs, and the more reasonable one under all of the known circumstances, is that the overnight drop in Ms. Hays’ blood glucose level was caused by either the unrecorded administration of insulin or the delay in treatment caused by the erroneous report of her lab results. If Ms. Hays’ blood glucose level was low and dropping on the evening of June 14, 1999, then the erroneous lab report to Dr. Barfield delayed her from ordering the treatment needed to reverse the condition until the following morning, when Ms. Hays’ blood glucose had reached a dangerously low level. Dr. Pizette’s affidavit to the effect that this dangerously low level could have contributed to Ms. Hays’ injuries makes this a genuine issue of material fact. Because the factual inferences reasonably drawn from the circumstantial evidence presented by the plaintiffs are to be construed in the plaintiffs’ favor at this juncture of the proceedings, summary judgment should not have been granted.

We are unpersuaded by Schumpert’s argument that Dr. Pizette’s affidavit should have been disregarded as being in conflict with his earlier deposition testimony. Schumpert presented deposition excerpts of general statements made by Dr. Pizette that he did not believe the conduct of Schumpert personnel had been a factor in causing Ms. Hays’ damages. InWhile Schumpert interprets Dr. Piz-ette’s statements as an acknowledgment that no insulin was administered and the delay in treatment had no effect, the statements could also reflect his belief that Dr. Barfield should have confirmed the blood glucose levels in person before ordering sliding scale insulin and sooner than the following morning. Given the limited nature of the testimony presented by the parties, we cannot know the basis for Dr. Pizette’s opinion.

The deposition testimony submitted to the district court does not reflect any affirmative assertions by Dr. Pizette that a dangerously low blood sugar level could not have contributed to Ms. Hays’ injuries or that Schumpert’s conduct could not have played a part in that dangerously low blood sugar level. Contrary to Schum-pert’s assertion in its brief, the deposition excerpts do not show that Dr. Pizette concluded that Ms. Hays never received insulin. Rather, Dr. Pizette stated that he did not find a reference to an insulin injection in Ms. Hays’ medical chart. Additionally, in the deposition excerpts, Dr. Pizette was not asked whether Ms. Hays’ declining glucose levels on June 15, 1999 were consistent with the administration of insulin, as addressed in his affidavit. Thus, we do not find that Dr. Pizette’s affidavit directly contradicts his prior deposition testimony.

In its brief, Schumpert also contends that Dr. Pizette’s affidavit could not rely on Pierron’s affidavit because plaintiffs did not list Pierron as a witness or provide Schumpert with his report at least 90 days before the trial date, as set forth in LSA-C.C.P. art. 1425. Although Dr. Pizette in his | ^affidavit referred to Pierron’s affidavit with regard to the effects of insulin on Ms. Hays’ blood glucose levels, Dr. Pizette also stated that he possessed personal knowledge of the treatment of patients with insulin. As a consequence, Dr. Piz-ette was qualified, independent of Pier-ron’s affidavit, to offer an opinion as to whether Ms. Hays’ condition on June 15, 1999 was consistent with receiving an injection of insulin. We have not relied on Pierron’s affidavit in this discussion and do not comment on the plaintiffs’ possible use of his testimony in any future proceedings in this case.

After reviewing the record, we conclude that summary judgment was inappropriate because a genuine issue of material fact existed as to whether the initial reporting of the erroneous lab results by Schumpert personnel contributed to Ms. Hays’ injuries. In reaching this conclusion, we need not address the issue of whether a genuine issue of fact existed as to the allegation of improper monitoring or restraining of the patient by Schumpert.

CONCLUSION

For the foregoing reasons, the summary judgment rendered in favor of Christus Schumpert Northern Louisiana d/b/a Christus Schumpert Health System is hereby reversed, and the matter is remanded for further proceedings. Costs of this appeal are assessed to the appellee.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Ruby COX, Plaintiff-Appellee v. SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, Defendant-Appellant.
    No. 41,391-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 2006.
    Rehearing Denied Sept. 21, 2006.

      Neal R. Elliott, Jr., Baton Rouge, for Appellant, Louisiana Dept, of Health & Hospitals.
    Pesnell Law Firm, by W. Alan Pesnell, for Appellee, Ruby Cox.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   LOLLEY, J.

h The Louisiana Department of Health and Hospitals (“LDHH”) appeals a trial court judgment of the Second Judicial District Court, Parish of Jackson, State of Louisiana, ruling that the plaintiff, Ruby Cox, was entitled to long-term care (“LTC”) Medicaid benefits. The trial court concluded that the administrative law judge committed an error of law in finding that Ruby Cox’s husband, Virgil Cox, had made a transfer of assets for less than fair market value and therefore Ruby Cox was not eligible for LTC Medicaid benefits. For the following reasons, we reverse the trial court’s decision and reinstate the decision of the administrative law judge.

FACTS

Procedural History

Ruby Cox (“Mrs. Cox”) entered a long term nursing facility in October, 2003. Virgil Cox (“Mr. Cox”) originally applied for LTC Medicaid benefits on behalf of his institutionalized wife, Mrs. Cox, on or about October 27, 2003. In December, 2003, Mrs. Cox received Medicaid health care coverage but was denied LTC Medicaid benefits due to excessive resources which were deemed available to her. The Coxes requested a “fair hearing” to rebut the decision, and again were denied. Subsequently, they sought a judicial review of the administrative law judge’s decision (“ALJ”) and the trial court reversed and remanded the case for a redetermination of eligibility.

|2On redetermination, Mrs. Cox was again denied LTC Medicaid benefits, this time based on a transfer of assets (a loan) from Mr. Cox to their son, Kevin, for less than fair market value — an action that is penalized when determining eligibility for LTC benefits. A second “fair hearing” was held on March 31, 2005, and the LTC benefits were again denied based on the transfer of assets for less than fair market value. A judicial review was sought, and the trial court reversed the ALJ’s ruling and determined Mrs. Cox to be eligible for LTC Medicaid benefits.

Details about the Loan from Mr. Cox to Kevin Cox

On July 24, 2003, Mr. Cox loaned to his son, Kevin, the sum of $68,000.00. In consideration for this loan, Kevin executed a promissory note payable to the order of Virgil W. Cox, Jr. The promissory note set forth 84 equal monthly installments in the amount of $365.04, due on the first day of each month beginning September 1, 2003, and ending on August 1, 2010, with a final balloon payment in the amount $59,802.48. Additionally, the note carried an interest rate of 5%, per annum.

The instrument at issue was non-negotiable and non-transferable by Virgil W. Cox, Jr., and the note specifically stipulated there shall be no cash surrender value for any party. Any transfer, assignment or pledge of the instrument by Virgil W. Cox, Jr., would immediately void the instrument and the instrument was further non-assumable. The note also carried a penalty for late payments, failure to pay, and set forth attorney’s fees in the event attorneys were needed. Kevin made the required monthly payments and wrote a number of checks to Mr. Cox. However, Mr. Cox did not cash |3the checks until March 23, 2006, a week before the second “fair hearing.” Furthermore, this court notes that Mrs. Cox died on April 3, 2004.

DISCUSSION

In the instant case, the issue is whether Virgil Cox, as spouse of Ruby Cox, transferred an available resource for less than fair market value for purposes of qualifying for Medicaid benefits. The LDHH assigns as error that the trial court erred in finding Mrs. Cox was entitled to LTC Medicaid benefits, reversing the ALJ’s ruling.

Standard of Review

The standard of review for this case is clearly stated in our prior decision in Smith v. State, Department of Health and Hospitals, 39,368 (La.App. 2d Cir.03/02/05), 895 So.2d 735, writ denied, 2005-1103 (La.06/17/05), 904 So.2d 701 (citations omitted):
When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. Once a final judgment is rendered by the district court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court’s judgment, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court.
The applicable standard of review is set forth in La. R.S. 49:964. Section F of La. R.S. 49:964 provides that a reviewing court is confined to the record established before the agency (except in cases of alleged irregularity in procedure before the agency). A reviewing court’s function is not to weigh de novo the available evidence and to substitute its judgment for that of the agency. Nevertheless, the district court and the court of appeal have the authority to reverse or modify the decision of |4the agency if substantial rights of the party seeking review have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedures; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) manifestly erroneous in view of the reliable, probative and substantial evidence in the record.

Medicaid Program Background

The Medicaid program, established in 1965, provides federal funds to states choosing to reimburse certain costs of medical treatment of needy persons. Estate of Messina v. State Department of Health and Hospitals, 38,220 (La.App. 2d Cir.03/03/04), 867 So.2d 879. States participating in the program are required to institute reasonable standards for determining eligibility that are consistent with the objectives of the program, and these standards must consider only resources and income available to the applicant and provide a reasonable method for evaluating such resources and income. Ouzts v. Secretary, Louisiana Department of Health and Hospitals, 38,634 (La.App. 2d Cir.07/29/04), 880 So.2d 918. The LDHH created a Medicaid Eligibility Manual (“manual”), based on the State Medicaid Manual issued by the Federal Health Care Financing Administration, to determine standards for Medicaid eligibility for long-term care nursing facilities. Eligibility for LTC vendor payments is specifically based on an applicant’s need, calculated based on income and resources. See Estate of Messina, supra.

Before interpreting and applying the provisions of our state’s manual, we note at the outset that because Medicaid was designed to help pay for the |Rmedical treatment of needy individuals, it essentially is a provider of last resort; the provisions regulating Medicaid are not estate planning tools for those able to meet their needs through other means. The question herein involves the provisions of the manual, based on federal requirements, concerning transfers of assets for less than fair market value.

Louisiana’s Medicaid Manual and Applicable Provisions

The manual does allow certain transfer of assets to occur without penalty and are not considered when determining eligibility. Section I-1534.45 of the manual provides that income received as the result of valid loan agreements is not counted as income. In the general provision section of the manual a “valid loan” is defined as “a legally binding agreement made in good faith,” and also states that an informal loan should be considered valid if it is binding under state law and includes certain basic elements. (Emphasis added.) On the other hand, transfers that do not meet the handful of provisions established in the manual as valid transfers “are presumed to be for the purpose of qualifying for LTC vendor payment unless the individual can prove convincingly that the transfer was for some other purpose.” Here, there are several undisputed facts that force us to question whether the transaction at issue was made in “good faith” and gives rise to the presumption set forth in the manual. Lack of good faith would be present in a sham transaction made for the purpose of obtaining Medicaid benefits; therefore, we examine the indicia of good faith vel non, including, when appropriate, the value given and received in a transaction. [ fiTo evaluate this issue we look to the other sections of the manual for guidance.

The section of the manual specifically dealing with transfer of resources for less than fair market value contains a general information section (I-1671) stating in part:

Public Law 96-611 originally amended the Social Security Act to establish a penalty for transferring non-excluded resources at less than fair market value (FMV) in order to become eligible for benefits. The statute presumes that the transfer of a resource for less than fair market value was for the purpose of establishing Medicaid eligibility unless the individual presents convincing evidence that the transfer was exclusively for some other purpose.
The Medicare Catastrophic Coverage Act of 1988 (Public Law 100-360) made fundamental changes in the transfer of resources policy applicable under Medicaid while eliminating the statutory requirement for SSA/SSI eligibility effective for transfers of resources for less than fair market value occurring on or after July 1,1988.
The Omnibus Budget Reconciliation Act of 1993 (OBRA 1993) further amended the transfer provisions to include new requirements for treatment of transfers of assets for less than fair market value and for treatment of trust funds applicable to all trusts established and all transfers made on or after August 11,1993 (emphasis in original).

In the instant case, we note that both the application for institutional coverage herein and the date of the alleged transfer for less than fair market value occurred subsequent to August 11, 1993. Therefore, we look particularly to the provisions of that section of the manual (I-1674) that addresses transfers on or after August 11, 1993.

Section I-1674 states that for transfers of assets, which includes income and resources, occurring on or after August 11, 1993, the state must develop the uncompensated value of such transfers occurring during the 36-jmonth7 period before application for institutional coverage and any time thereafter, also known as the “look-back period.” Transfers of assets for less than fair market value made after August 11, 1993, by an institutionalized individual or the individual’s spouse are presumed to be for the purpose of qualifying for LTC vendor payment unless the individual can prove convincingly that the transfer was for some other purpose. In all cases, the individual shall be offered the opportunity to rebut the presumption, and evidence must be provided that establishes the transfer was solely for a reason other than to qualify for Medicaid.

Section I-1674 also contains definitions that apply to transfer of assets. “Assets” are defined as all income and resources of the individual and the individual’s spouse. “Resources” are given the same definition used by the Supplemental Security Income (SSI) program except that the home is not excluded for institutionalized individuals. In turn, under Section I-1634 covering types of SSI-related resources, cash is a resource (I-1634.8). With respect to loans, Section I-1634.20 provides that when the applicant/recipient is the lender, the resource rule is provided by Section I-1634.22, entitled “Mortgages and Promissory Notes.” This section recognizes that a promissory note may be negotiable or non-negotiable. The section continues to explain that while a negotiable promissory note is a resource, a non-negotiable promissory note is not a resource because there is a legal bar to the transfer of ownership; the total payment on such a note (principal and interest) is countable as unearned income.

1 ¡/Turning back to the definitions in Section I-1674, “fair-market value” is defined as the value of an asset, if sold at the prevailing price at the time it was actually transferred. For an asset to be considered transferred for fair market value or to be considered to be transferred for valuable consideration, the compensation received for the asset must be in a tangible form with intrinsic value. “Intrinsic Value” is defined as something that has value in and of itself, while “Valuable Consideration” means that an individual receives in exchange for his or her right or interest in an asset some act, object, service, or other benefit which has a tangible and/or intrinsic value to the individual that is roughly equivalent to or greater than the value of the transferred asset. “Uncompensated Value” is the difference between the fair market value at the time of transfer (less any encumbrances) and amount received for the asset.

Analysis of the Cox “Loan”

Applying the definitions and concepts discussed above to the facts of the instant case, we conclude that the trial court should not have reversed the administrative law judge’s finding that there was a transfer of assets for less than fair market value. The $68,000 given by Mr. Cox to his son in exchange for the non-negotiable promissory note plainly was an asset. However, the non-negotiable promissory note that Mr. Cox received in compensation was not an asset. The note specifically stated that it had no cash surrender value for any party; thus, while the $68,000 would have been available, but for the alleged loan, to pay for nursing home expenses, the promissory note could not be used for that purpose.

| gMoreover, the note was non-transferable so that Mr. Cox could not sell the note to a third party, as he could with a negotiable instrument, in order to raise money to pay for nursing home expenses. Thus, subsequent to the alleged loan, instead of a $68,000 resource, Mr. Cox had a non-negotiable instrument with no surrender value that generated only $365.04 per month. The “fair market value” of the original asset was $68,000, but the non-negotiable promissory note received in return had no intrinsic value; as previously noted, for an asset to be considered transferred for fair market value or to be considered to be transferred for valuable consideration, the compensation received for the asset must be in a tangible form with intrinsic value.

Despite the presumption that a transfer for less than fair market value is for the purpose of qualifying for Medicaid, we also observe additional facts that weigh in favor of a finding that the transaction at issue was not made in good faith as a simple loan, but was made to divest assets in order to qualify for Medicaid. The additional facts include that: the alleged loan was made only a few months before the application was filed; the alleged loan had a very large final balloon payment of almost 88% of the face amount of the loan; the checks for the small monthly payments ($365.04 per month) were not cashed until a little over a week before the March 2005 hearing; and, Mrs. Cox, who was approximately 78 years old, entered the nursing home less than two weeks after the first installment payment was due.

The Coxes argue that the LDHH should not have applied Section I-1674 because Section I-1671 indicates that a valid loan is not to be | ^considered a transfer. As previously noted, Section I-1671 contains general information concerning the transfer of a resource at less than fair market value, and emphasizes the importance of applying the policy in effect at the time of the application for institutional coverage and the date of transfer. Section I-1674 is the specific section of the Medicaid Eligibility Manual containing valid exceptions and penalized types of transfers, on or after August 11, 1993.

Here, the transaction on its face is arguably a “formal promissory note” which can be characterized as a valid loan. However, to stop the inquiry there would be to turn a blind eye to the stated policy changes promulgated by OBRA 1993. The policy change specifically heightened the consideration of transfers of assets by any action taken, either by the individual or by any other person, “that reduces or eliminates the individual’s ownership or control.” Clearly the alleged loan eliminated Mr. Cox’s ownership of $68,000 in exchange for a non-negotiable note with no cash surrender value, and no transferability, backed by only an unsecured promise.

Using a resource to make a purchase, where the item purchased is of roughly equivalent value to the price paid, certainly would not be a transfer for less than fair market value to which a penalty should apply. However, paying a large sum of money for a trinket is exactly the kind of transaction to which a penalty should attach and would have exactly the same improper result as selling a valuable asset for a paltry price. Accordingly, the manual instructs a case worker to not consider as a transfer the using of a resource in |1Ta legally binding agreement made in good faith. Conversely, use of a resource should be counted as a transfer to which a penalty applies if the transaction had no legally binding effect or was not made in good faith.

Considering the value given and received in the alleged loan, where $68,000 was exchanged for a non-negotiable promissory note with no cash value, leads to the conclusion that a transfer for less than fair market value occurred. Accordingly, this transfer is presumed to be for the purpose of obtaining LTC Medicaid benefits and, by definition, would not be one made in good faith so as to constitute a valid loan that would qualify as an exception from the policy that penalizes transfers of resources. Furthermore, the record contains the additional facts, referred to above, that also weigh in favor of a finding that the transaction was made for the purpose of obtaining LTC Medicaid benefits.

Finally, we again note the clear purposes underlying the state and federal provisions concerning penalizing certain assets transfers, as well as the specific provisions of Section 1674 which apply to transfers, like this one, that occurred on or after August 11, 1993, require that the transfer at issue herein be subject to the penalty provisions for transfers of assets for less than fair market value. These provisions do not prevent an applicant/recipient from transferring assets, but simply delay the time at which LTC Medicaid payments will commence. Unfortunately, due to Mrs. Cox’s death only a few months after entering the nursing home, this delay extended beyond the date of her death. After a thorough review of the record, we agree with the ALJ’s findings.

1 ^CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby reversed, and the decision of the administrative law judge is hereby reinstated at ap-pellee’s costs.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, PEATROSS and LOLLEY, JJ.

Rehearing denied.

BROWN, J., would grant rehearing.

      . Ruby Cox died during the course of this litigation. Her husband, Kevin Cox, was appointed Administrator of the Succession of Ruby Cox, and was substituted as party-plaintiff by a motion granted by this court.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Ronald Lee WASHINGTON, Appellant.
    No. 41,182-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 1, 2006.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant
    Ronald Lee Washington, pro se.
    Paul J. Carmouche, District Attorney, Tommy Jan Johnson, Brian H. Barber, Assistant District Attorneys, for Appellee.

      Before GASKINS, PEATROSS and DREW, JJ.
   DREW, J.

It Ronald Lee Washington was convicted at jury trial of middle-grade theft of goods valued at least $100.00, but less than $500.00. He was subsequently adjudicated to be a fourth felony offender, and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. We affirm in all respects.

FACTS

On August 10, 2004, Washington was caught shoplifting at Shreveport’s Foot Action in Mall St. Vincent as he hid behind a rack while concealing two $60.00 jerseys. Mall security, which included an off-duty Shreveport police officer, apprehended the suspect. After being arrested, Washington admitted that he took the jerseys, but argued with the officer that he had committed only a misdemeanor, not a felony, since (he alleged) the jerseys were on sale that day for $45.00 each. The state charged Washington with middle-grade theft of goods under La. R.S. 14:67.10, for which offense a jury found him guilty as charged.

DISCUSSION

I. Sufficiency of the Evidence

Washington argues that the evidence was insufficient to prove he took the items since there was only verbal “evidence.” He also asserts that the evidence was insufficient, since the state produced no photographs of Rthe items he took.

The law on sufficiency is clear.

The trial court stated, in denying defendant’s motion for a new trial, that the evidence was overwhelming. This characterization is correct, as the record reflects that:

• an employee testified seeing Washington leave the store with two $60.00 jerseys without having paid for them;

• another store employee confiscated one of the stolen jerseys after Washington left the store;

• a police officer retrieved the other jersey during a search incident to the arrest of Washington;

| when confronted about this thievery, Washington did not argue with the officer about whether or not he stole the jerseys, but only quibbled as to the correct value of the items ($45.00 each versus $60.00 each); and

• the employee specifically testified that these particular jerseys were new stock and were not on sale.

We agree with the learned trial court— the evidence of guilt is indeed overwhelming.

II. Habitual Offender Adjudication

A. Use of Convictions Obtained on Same Day

Washington argues that the convictions found in Caddo District Court docket numbers 125,895 and 125,895(A) cannot both be used as prior offenses since they were obtained on the same day.

Even if this court were to find that these two convictions should have counted as one, the state still submitted proof of at least seven other felony convictions by which to support the trial court’s finding that Washington is a fourth felony offender. In addition, the trial court made it clear that it counted these two (May 15, 1984) convictions as one conviction for purposes of the adjudication proceeding.

B. Use of Drug Conviction

Washington complains that one of the prior offenses, possession of a Schedule II controlled dangerous substance, is not punishable by imprisonment for 10 years or more and thus could not be used as a predicate by which to adjudicate him as a fourth-felony offender. We disagree, as Washington has inappropriately confused sentencing and adjudication issues.

La. R.S. 15:529.1(A)(1)(c)(i), which provides a sentencing bracket of 20-years to life, does NOT require consideration of the length of sentences relative to underlying convictions on CDS and other matters.

La. R.S. 15:529.1(A)(1)(c)(ii) requires a mandatory life sentence, and is based in part on the length of imprisonment for CDS offenses and other offenses.

The sentence here was imposed under La. R.S. 15:529.1(A)(1)(c)(i), making this assignment irrelevant and inapplicable to these proceedings.

III. Failure to Vacate Original Sentence

A sentence imposed prior to sentencing as a habitual offender shall be vacated if already imposed. La. R.S. 529.1(D)(3). This record shows (and Washington admits in his pro se filing) that no sentence was imposed prior to the habitual offender hearing.

IV. Charging Statutes

Washington argues that it was error for him to be tried under La. R.S. 14:67.10, since this retail-theft statute provided at the time more severe penalties for the theft of $100.00 or more than did the basic theft statute under La. R.S. 14:67. We find that the trial court did not err in denying the motion for post-verdict judgment of acquittal on these specious grounds. Charging discretion rightfully belongs to the prosecutor. See La. C. Cr. P. art. 61.

V. Defective Bill of Information

Washington in his pro se brief presents an argument that the jury did not make a finding that he took goods valued over $100.00 but under 15$500.00.

La. C. Cr. P. art. 464 provides: “The indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The bill of information must contain all the elements of the crime intended to be charged in sufficient particularity to allow the defendant to prepare for trial, to enable the court to determine the propriety of the evidence that is submitted upon the trial, to impose the appropriate penalty on a guilty verdict, and to protect the defendant from double jeopardy. State v. Johnson, 02-254 (La.App. 5th Cir.6/26/02), 822 So.2d 840.

Furthermore, the standard for errors in the bill of information is that an “[e]rror in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” La. C. Cr. P. 464. See State v. Bryant, 38,950 (La.App.2d Cir.9/22/04), 882 So.2d 1201.

The omission of essential facts from an indictment is not necessarily prejudicial error because such facts can be given through responses in a bill of particulars. State v. Duncan, 94 1563 (La.App. 1st Cir.12/15/95), 667 So.2d 1141.

Since a conviction under La. R.S. 14:67.10 is a graded offense, the value of the goods should have been clearly shown in the indictment. The bill of information correctly cites the statutory provision for theft of goods from a merchant. The record shows that the state fully responded to the requested bill of particulars, and no motion to quash the bill of information IfiWas filed.

In his brief on this assignment, Washington argues that the “verdict does not include whether or not the theft was of value at more or less than $500.00 in order to identify the appropriate sentencing.” The record shows that the jury foreman wrote out the verdict, which found Washington “guilty of theft of goods having a value of more than $100.00 but less than $500.00.” Under these circumstances, Washington was not prejudiced in any way by any deficiency in the bill of information or the jury verdict forms.

VI. Failure to Rule on Motion for Reconsideration

On August 2, 2005, in a well-reasoned decision, the trial court denied Defendant’s pro se motion for reconsideration, which had been filed on July 20, 2005. Defense counsel had previously filed a motion for reconsideration on June 29, 2005, which was not specifically alluded to in the trial court’s ruling. Nonetheless, the trial court went into great detail at sentencing to explain his reasoning for this harsh sentence. The court below also dealt with the excessiveness issue (the basis for defense counsel’s motion for reconsideration) at the latter part of its denial of this relief.

Given the thoroughness given the sentencing decision herein, we do not find that a remand is necessary.

VII. Excessiveness

Washington argues that a life sentence for shoplifting two jerseys, a nonviolent crime, is shocking. He further argues that “heightened scrutiny” is triggered when a defendant faces a mandatory life sentence.

|7In opposition to this claim, the state noted that the trial court ordered a pre-sentence investigation and thoroughly considered Washington’s history.

As a fourth felony offender convicted of theft of goods, Washington faced a sentencing range of 20 years to life under La. R.S. 15:529.1(A)(1)(c)(i). The court below exacted the maximum sentence.

The law on reviewing claims of excessive sentence is clear.

The trial court sagely explained its reasons for imposing this life sentence, stating;

• that because of Washington’s incredible history of convictions “there is an undue risk that if he were to receive any leniency from this Court that he would commit another crime”;

• that Washington’s completion of Byrd High School and a culinary arts program at Avoyelles Technical College indicated this offender had the “ability to be a productive citizen;”

Is* that the PSI showed both juvenile and adult convictions; and

• that Washington had never taken responsibility for his wrongdoing.

A life this dedicated to crime deserves a harsh sentence. The trial court had before it at sentencing a truly stunning quarter century record of criminal convictions accumulated by this defendant. We note the attention to detail evidenced by the trial court’s comments relative to the sentence imposed.

Washington’s life of crime deserves to be published, reflecting at least two dozen convictions from 1977 to 2004. Several other charges were dismissed relative to plea negotiations. Further, consider that much of this time he was incarcerated, unable to prey upon others. His convictions follow (with felonies in all capital letters).

JUVENILE RECORD:

1. FELONY-SIMPLE BURGLARY;
2. Shoplifting;
3. Shoplifting.

ADULT RECORD:

1. Misdemeanor theft;
2. Misdemeanor receiving stolen things;
3. FELONY THEFT;
4. FELONY SIMPLE BURGLARY OF AN INHABITED DWELLING (pleading to one of three counts);
5. Misdemeanor theft (resisting an officer dismissed);
6. FELONY SIMPLE BURGLARY OF INHABITED DWELLING (a crime of violence as per R.S.15:529.1(A)(2)Cj);
7. Misdemeanor Theft;
8. Misdemeanor Theft;
9. Misdemeanor — Misrepresentation during booking;
10. Resisting an Officer;
11. FELONY — SIMPLE BURGLARY;
12. Misdemeanor Misrepresentation during booking;
13. Misdemeanor Simple Theft;
14. Misdemeanor Simple Theft;
15. FELONY — POSSESSION OF COCAINE;
16. FELONY — THEFT;
|917. FELONY — FORGERY;
18. Misdemeanor Theft;
19. FELONY — Theft of goods (drug possession and resisting dismissed);
20. Misdemeanor — Theft;
21. Misdemeanor — Remaining after being forbidden;
22. Misdemeanor — Resisting an officer;
23. FELONY — THEFT; and now
24. The instant FELONY offense of middle-grade theft of good for shoplifting two $60 jerseys, which triggered his habitual offender adjudication as a fourth felony offender, leading to the life sentence we have now reviewed.

Considering the total record of this lifetime thief, which includes a conviction for a crime of violence, we find that the trial court made the right decision in administering this harsh sentence.

DECREE

We affirm the conviction, the adjudication, and the sentence, in all respects.

AFFIRMED.

      . R.S.15:529.1(G) mandates that any sentences under that statute shall be without probation or suspension of sentence. All predicates were relative felonies (allowing sentences with or without hard labor), meaning that the prohibition against parole appears to be an illegal sentence. However, La. R.S. 15:574.4(B) states that no prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years.

      . This argument illustrates Washington's expert knowledge of the Louisiana criminal justice system.

      . La. C. Cr. P. art. 821 provides that a motion for post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).
      The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

      . First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a 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). 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. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.
      Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. 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. 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 viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

      . Trial counsel erred in listing as a mitigating factor this appellant's lack of vocational skills.


author: BROWN, Chief Judge.

text:
    In re ST. LOUIS ENCEPHALITIS OUTBREAK IN OUACHITA PARISH NO. 01-4224 ALL CASES.
    Nos. 41,250-CA, 41,251-CA, 41,252-CA, 41,253-CA, 41,254-CA, 41,255-CA, 41,256-CA, 41,257-CA, 41,258-CA, 41,259-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 1, 2006.
    Rehearing Denied Sept. 21, 2006.

      Davenport, Files & Kelly, by M. Shane Craighead, Monroe, for Defendants-Appellants, Specialty National Ins. Co. and/or Specialty Surplus Ins. Co.
    Crawford & Anzelmo, by Brian Crawford, Jeffrey Joyce, Monroe, Gainsburgh, Benjamin, David, Meunier & Warshauer, by Gerald E. Meunier, New Orleans, for Plaintiffs-Appellees.
    Daigle Fisse, PLC, by Howard Daigle, Jr., Mark E. Seamster, Covington, Nelson, Zentner, Sartor & Snellings, by George M. Snellings, IV, F. Williams Sartor, Jr., Monroe, for Defendants-Appellees.
    Before BROWN, STEWART, and GASKINS, JJ.
   BROWN, Chief Judge.

| defendants, Specialty Surplus Insurance Company and Specialty National Insurance Company, have appealed the trial court’s judgment denying their motions for summary judgment. These insurers claim that their policies did not provide coverage and defense obligations under the allegations of these consolidated lawsuits. Finding no error, we affirm.

Facts and Procedural History

Beginning on September 16, 1996, the Ouachita Parish Police Jury (“Police Jury”) contracted with Mosquito Control, Inc. (“MCI”) for mosquito control and/or abatement services. This contract was extended through the summer of 2001.

MCI employed Southwestern Assurance Corporation (“SAC”) as a broker to obtain insurance coverage for its mosquito abatement project. In 1998 a woman died, possibly of encephalitis, in Jefferson Parish and MCI became concerned as to whether its insurance policy covered such a claim. At that time, MCI communicated its concerns to SAC.

SAC obtained comprehensive general liability insurance coverage for MCI’s mosquito abatement project. Specialty Surplus provided commercial general liability coverage to MCI from July 1, 2000, through July 1, 2001. Specialty National provided commercial general liability insurance to MCI from July 1, 2001, through July 1, 2002. MCI paid approximately $28,000 a year in premiums. Specialty Surplus and Specialty National (“the Insurers”) used similar policies.

An encephalitis outbreak occurred in the Monroe area during the summer of 2001, and a number of lawsuits were later brought naming the | ¡.Police Jury, MCI, and MCI’s Insurers as defendants. The Insurers denied. coverage based upon a breach of contract exclusion in the respective policies, arguing that MCI did not purchase professional liability coverage.

The trial court consolidated nine civil actions and ordered that the insurance coverage issues proceed on a separate track. After discovery, the parties filed cross-motions for summary judgment seeking a ruling on the insurance coverage dispute.

The trial court denied the Insurers’ motions for summary judgment and partially granted the cross-motion for summary judgment filed by plaintiffs and MCI. The trial court designated the judgment as final and appealable under La. C.C.P. art. 1915. Both insurers timely appealed.

Discussion

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146 (La.01/21/04), 864 So.2d 129. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

[oAn insurance policy is a contract between the parties and should be construed by using the general rules of contract interpretation set forth in the Louisiana Civil Code. Mayo v. State Farm Mutual Automobile Insurance Company, 03-1801 (La.02/25/04), 869 So.2d 96. The extent of coverage under an insurance contract is dependent on the common intent of the insured and insurer. Succession of Fannaly v. Lafayette Ins. Co., 01-1144 (La.01/15/02), 805 So.2d 1134. In ascertaining the common intent of the insured and insurer, courts begin their analysis with a review of the words in the insurance contract. Id. at 1137.

Words in an insurance contract must be ascribed their generally prevailing meaning, unless the words have acquired a technical meaning, in which ease the words must be ascribed their technical meaning. La. C.C. art. 2047. Moreover, an insurance contract is construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. Peterson v. Schimek, 98-1712 (La.03/02/99), 729 So.2d 1024. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written. Succession of Fannaly, supra.

Breach of Contract Exclusion

The policies issued in this case provided:

This coverage part does not apply to:
... [Liability for damages arising out of failure to perform or breach of a contractual obligation.

LThe Insurers claim that any duty owed by MCI to plaintiffs necessarily has its origin in contract. They assert that absent the contract with the Police Jury, MCI would owe no specific duty to plaintiffs and that any liability for damages necessarily arises out of its failure to perform under that contract. They particularly reference plaintiffs’ allegations that plaintiffs “are the Third Party Beneficiaries of the contract entered into between MCI and Ouachita Parish Police Jury ...” The Insurers’ argument is that general liability insurance provides coverage for accidents occurring during the course of normal operations and does not guarantee performance of contractual obligations.

The Insurers’ argument was rejected by the trial court. We agree with the trial court’s conclusion. The allegations of the petitions specifically averred that MCI was negligent in a number of ways. In particular, that MCI failed to use the appropriate chemicals and/or concentrations of the same; failed to use appropriate equipment to trap and destroy the mosquitoes that carried and/or transmitted the Encephalitis virus; and failed to adequately monitor and insure the effectiveness of their work.

Several plaintiffs did assert that they were beneficiaries of the contract between MCI and the Police Jury; however, this does not change the character of the allegations of negligence. It is well settled that the same acts or omissions may constitute breaches of both general duties and contractual duties and may give rise to both actions in tort and actions in contract. A plaintiff may assert both actions and is not required to plead the theory of his case. Dubin v. Dubin, 641 So.2d 1036 (La.App. 2d Cir.1994). When a person negligently performs a contractual obligation, he has committed an active breach of contract which may also support an action in tort. Dubin, supra.

As correctly noted by the trial court, plaintiffs have pled causes of action in both tort and contract. Plaintiffs have alleged a breach of duty owed to all persons which supports an action in tort. The trial court correctly found that under the allegations, the breach of contract exclusion is inapplicable.

Professional Liability

The Common Policy Declarations did not list professional liability under coverage parts for which a premium is indicated, and on the Schedule of Coverages and Limits of Insurance, the box providing for professional liability is not checked. However, under Mosquito Abatement Endorsement “coverage is extended to include professional liability caused by an error or omission committed prior to the policy period and after the Retroactive Date shown on the Declaration ...”

The trial court found that “ambiguities exist within the terms and provisions of the policy as to whether or not such coverage is extended to the named insured ...” and that the attachments or endorsements created ambiguities as to professional liability coverage.

On this record, it is clear that MCI sought coverage for any liability flowing from its mosquito abatement project. In particular, MCI wanted | ^coverage for persons claiming that they contracted encephalitis because of the inadequacy of MCI’s performance. The Insurers understood what MCI was seeking, as well as its purpose to prevent encephalitis, and based their premium on that information.

The trial court found that the endorsement concerning professional liability rendered the policy ambiguous and subject to reformation in favor of coverage. We agree. In Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co., 630 So.2d 759, 764 (La.1994), the supreme court stated:

If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the drafter, or, as originating in the insurance context, in favor of the insured. This rule of strict construction requires that ambiguous policy provisions be construed against the insurer who issued the policy and in favor of coverage to the insured. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993) (citing Breland, supra). Under this rule, “[e]quivocal provisions seeking to narrow the insurer’s obligation are strictly construed against the insurer, since these are prepared by the insurer and the insured had no voice in the preparation.” Garcia v. St. Bernard Parish School Board, 576 So.2d 975, 976 (La.1991). LSA-C.C. Art. 2056 codifies this rule of strict construction, providing that “[i]n case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.” LSA-C.C. Art. 2056; Civil Law Treatise, supra § 4; see also W. Freedman, 2 Richards on the Law of Insurance § 11:2[f] (6th Ed.1990) (“Richards”) (noting that the rule of strict construction is also labeled the doctrine of contra proferentum). “Ambiguity will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered.” Breland v. Schilling, 550 So.2d 609, 610-11 (La.1989). The court should construe the policy “to fulfill the reasonable expectations of the parties in the light of the customs and usages of the industry.” Trinity Industries, 916 F.2d at 269 (5th Cir.1990) (citing Benton, 379 So.2d at 231 and LSA-C.C. Arts. 2045, 2050, 2053 and 2054). In insurance parlance, this is labeled the reasonable expectations doctrine. Richards, supra at § 11:2[g].FN9
FN9. The reasonable expectations doctrine can be capsulized as follows: “courts will protect the [insured’s] reasonable expectations iii regarding the coverage afforded by insurance contracts even though a careful examination of the policy provisions indicates that such expectations are contrary to the expressed intention of the insurer.” R. Keeton and A. Widiss, Insurance Law § 6.13 (1988).

In this case, MCI’s reasonable expectations were clearly expressed and understood by the insurers and the contradiction contained in the endorsement titled Mosquito Abatement Endorsement created at least an ambiguity which must be interpreted as providing coverage.

Conclusion

For the reasons set forth above, the trial court’s judgment denying Specialty Surplus Insurance Company and Specialty National Insurance Company’s motions for summary judgment is affirmed at their cost. This matter is remanded for further proceedings.

Affirmed and Remanded.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, PEATROSS and LOLLEY, JJ.

Rehearing denied.

      . Plaintiffs and MCI also sued SAC, alleging that if the policies did not provide coverage, then the broker negligently failed to procure the coverage MCI desired. Those claims have apparently been placed in abeyance pending resolution of the issues before this court.

      . The trial court noted that the ruling was only partial, as it dealt solely with the breach of contract exclusion and whether professional liability coverage was purchased.

      . The trial court cogently observed that to grant the insurers motion for summary judgment, “the court would have to construe the insurance policy in question in such a manner that it is unclear to the court what, if anything, would be covered by this policy.”


author: PEATROSS, J.

text:
    STATE of Louisiana, Plaintiff-Appellant v. Ricky Don PEARSON, Defendant-Appellee.
    No. 41,812-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 8, 2006.
    Writ Denied Sept. 13, 2006.

      Walter E. May, Jr., District Attorney, Tammy L. Gantt Jump, Assistant District Attorney, for Appellant.
    Chris L. Bowman, Jonesboro, Ronald J. Miciotto, Shreveport, for Appellee.
    Before WILLIAMS, GASKINS, PEATROSS DREW & LOLLEY, JJ.
   PEATROSS, J.

11 This is an election contest in which the district attorney for Bienville Parish, pursuant to the provisions of La. R.S. 18:491(B), objected to the candidacy of defendant, Ricky Don Pearson, for Chief of Police of the Town of Arcadia. The petition to disqualify asserted that Pearson failed to meet the qualifications for office because he was not a domiciliary of the Town of Arcadia as required by law. Following trial, the district court rejected the attempt to disqualify and this timely appeal followed. For the following reasons, we reverse.

FACTS

The following facts are undisputed. Pearson moved to Bienville Parish from Georgia in July 2005. Pearson’s mother, who was not in good health, lived at 776 Crawford Road outside the city limits of Arcadia. She lived at that address with her father who was over 100 years old, and Pearson spent a significant amount of time at the Crawford Road address taking care of his mother and grandfather. He had that address put on his driver’s license. Shortly after moving back, he spoke to his cousins, Terrence and Jerrod Smith, about moving into a three-bedroom house which they leased at 1186 Parkwood Street inside the city limits of Arcadia. They also discussed having Pearson’s name put on the lease, and Pearson’s name was placed on the water bill for the house, but, apparently, not until 2006. Pearson had mail sent to that address, and on September 15, 2005, he used that address when he registered to vote. Pearson’s cousins were deployed to New Orleans in August 2005 in connection with Hurricane Katrina and did not return until February 2006. Pearson’s name was never added to the please. Pearson filed his notice of candidacy for police chief on August 9, 2006, listing 1186 Parkwood Street as his domicile.

There was conflicting testimony concerning indicia of Pearson’s residency at the Parkwood Street address. When Terrence Smith was asked whether Pearson lived at 1186 Parkwood Street, he responded: “No, he doesn’t.” When asked if Pearson had personal belongings there, he responded: “Not as of now, no, has been.” He was then asked when Pearson did have personal belongings there, and he answered that it was “a while back.” Smith indicated that Pearson had spent the night at that address, but he could not remember a specific date; he could only recall that the last time was during the spring of 2006. He also indicated that when Pearson did stay, “it wouldn’t be long.” Smith was asked where Pearson was living at that time, to which Smith replied: “I have[n’t] the slightest idea.” According to Smith, Pearson had not paid rent and had not paid utilities. He had “offered to pay” the water bill, but had not paid it. Smith admitted not living in the house from late August 2005 until February 2006, and Smith also indicated that for the two months prior to the trial Smith had been staying with a friend rather than living in the house.

Pearson’s other cousin, Jerrod Smith, testified that Pearson received some of his mail at the Parkwood Street address. As to how Pearson got his mail after it came to the house, Jerrod stated: “I brought it to him a couple of times and he, uh, he came over there and picked it up, too.” Smith confirmed that he and his brother paid the water and the electricity bill there, and he indicated that he was unaware that Pearson’s name was on the | ¡¡bill “until like three or four months ago.” According to Jerrod Smith, Pearson had never stayed with the brothers. When specifically asked whether Pearson had spent the night “or anything like that,” Jerrod Smith responded in the negative. He also indicated that Pearson did not eat any meals there and that to Smith’s knowledge Pearson had no personal belongings there. However, Jerrod Smith admitted that he had been absent from the house from late August 2005 through February 2006 and did not know what had occurred at the house during that time. He acknowledged that upon returning from New Orleans the house was not like the brothers had left it, but knew his sister had asked to stay and did stay there “a couple of nights” while they were gone. Smith responded in the negative when asked if there was anything in the house that would show that Pearson was the one who stayed at the house. Like his brother, Jerrod Smith indicated that Pearson was welcome to stay in the home anytime. When asked if he had any knowledge as to where Pearson stayed, he replied: “Uh, as far as I know with his mother.”

Other than Isadore Millican, a resident of 1138 Parkwood Street whose testimony added little if anything of value toward resolving the issues, the only other witness to testify was Pearson himself. Without question, his testimony was evasive at best and unresponsive at worst. When asked by counsel for the state if it was his testimony that he had been staying at the Parkwood address, the following colloquy ensued:

A: It’s my testimony that I had — that was my residence.
Q: That’s not what I asked you.
|4A: Well, that’s my answer.
Q: Did you sleep there?
A: That was my residence.
Court: Please answer the question.
A: I plead the Fifth.

After Pearson’s counsel talked to him off the record, the questioning continued:

Q: My question was do you sleep at your....
A: ... .that was my residence.
Q: So you’re not going to tell me whether you sleep at 1186 Park-wood Street?
A: That’s my residence.
Q: Do you shower at 1186 Parkwood Street?
A: That is my residence.
Q: Do you eat your meals there?
A: That is my residence.
Q: Do you — is any of your stuff there like clothes, anything like that?
A: That’s my residence.
Q: Do you receive mail there?
A: That is my residence.

When asked how often he stayed at the Crawford Road address, he responded “as often as my mother would have me.” When asked how often he went out of town in connection with his jobs, he responded “as often as I’m called.”

1 aPearson’s testimony later in the trial concerning residence at the Parkwood address was slightly more revealing, but evasive. He admitted that he had not stayed at the Parkwood Street address within the last month, but stated he could not remember whether he had stayed there within the last two months. He indicated that he had two bank accounts, one with the Park-wood Street address, and one with the Crawford Road address. With respect to the water bill at the Parkwood Street address, he testified that he had “paid some on this bill.” He testified that it was his intent to remain permanently at the Park-wood Street address and to make that address his domicile. He also testified that he had received mail there since the latter part of July 2005.

When the subject of the number of nights spent at the Parkwood Street address was again visited by counsel for the state after Pearson’s motion for involuntary dismissal has been denied, Pearson testified that he had slept at the address within the last year, but could not recall how many times. Similarly, he indicated that he had eaten there in the last year, but could not recall how many times.

At the end of the trial, the trial court gave oral reasons for judgment. After recounting the evidence and testimony presented, and adverting to the distinction between domicile and residence, the trial court stated that it was not convinced that Pearson intended to have his domicile with his elderly mother and grandfather. Instead, the trial court believed that Pearson’s intent was to have his domicile at the Parkwood Street address. The trial court had no doubt that Pearson was domiciled “somewhere in Bienville | f;Parish,” and under the circumstances, the trial court concluded that “the best we can determine is that it’s the 1186 address.” Accordingly, the trial court rejected the challenge to Pearson’s candidacy; the district attorney then filed a timely appeal.

DISCUSSION

Under the provisions of La. R.S. 33:385.1 concerning qualifications of an elected chief of police, Pearson was required to be an elector in the Town of Arcadia; furthermore, at the time of qualification as a candidate for the office of chief of police, he had to have been domiciled for at least the immediately preceding year in the municipality. The use of the term “domicile” in the statute is significant because, while a person can have several residences, he can have only one domicile. Becker v. Dean, 03-2493 (La.9/18/03), 854 So.2d 864. Domicile is general defined in La. C.C. art. 38 which provides:

The domicile of each citizen is the parish wherein he has principal establishment. The principal establishment is that in which he makes habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides maybe considered as his principal establishment, at the option of the persons whose interests are thereby affected.

In Landiak v. Richmond, 05-0758 (La.3/24/05), 899 So.2d 535, the Louisiana Supreme Court also quoted Article 38 when discussing domicile in an election ease. The court noted that when a party has not declared his intention as to domicile under La. C.C. art. 43, proof of a person’s intention regarding domicile depends on the circumstances. In discussing relevant 1 factors bearing on the determination of domicile in fact, the Louisiana Supreme Court stated:

Since domicile is generally defined as residence plus intent to remain, a party’s uncontroverted testimony regarding his intent may be sufficient to establish domicile, in the absence of any documentary or other objective evidence to the contrary.... However, in the absence of a formal declaration, when documentary or other objective evidence casts doubt on a person’s statements regarding intent, it is incumbent on courts to weigh the evidence present in order to determine domicile in fact. Otherwise, the legal concept for domicile is meaningless and every person would be considered legally domiciled wherever he says he is domiciled.

The supreme court also stated in Landiak that domicile is an issue of fact that must be determined on a case-by-case basis, and that any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. We also note that as an appellate court, we must give great deference to the trial court’s factual findings based on credibility judgments. Rosell v. ESCO, 549 So.2d 840 (La.1989).

As previously noted, the trial court herein had no doubt that Pearson was domiciled in Bienville Parish, and the court concluded that Pearson’s intent was to be domiciled at the Parkwood Street residence. Furthermore, the trial court concluded with respect to domicile in fact that “the best we can determine is that it’s the 1186 address.”

Even when we give proper deference to the trial court’s judgment herein, we must disagree that Pearson’s domicile in fact was the Parkwood Street residence. Though we find no manifest error in the trial court’s conclusion that Pearson intended to be domiciled at the Parkwood Street ^residence, we hold that the trial court clearly erred in concluding that Pearson actually resided at that address for at least the year immediately preceding the time of his qualification as a candidate for the Office of Chief of Police.

In light of the evidence discussed above, there can be no doubt that Pearson did not have his principal establishment at the Parkwood Street residence. To the contrary, his uncooperative, evasive answers did little to rebut the prima facie case for disqualification made by the district attorney. Even when we view his testimony in the light most favorable to his claim of domicile, we cannot ignore the fact that Pearson could not or would not tell the court how often he had spent the night or taken meals at the Parkwood Street residence in the preceding year. At the same time, both Smith brothers testified that at the time of the trial, Pearson was not living at the Parkwood Street residence, and the brother who was present at that residence since returning from New Orleans in February testified unequivocally that Pearson did not live there during that time. Both brothers agreed that Pearson did not have any belongings at that residence; one brother indicated Pearson had never had any belongings there, while the other indicated that he had not had personal belongings at the residence “for a while.” With regard to nights spent and belongings present, Pearson’s testimony did not establish either what kind of personal belongings he may have had at the residence at any time, or when he spent any night at the residence, other than within a one-year time frame.

ItiBy his own admission, he had not spent the night there in at least a month, and considering both Smith brothers’ testimony together, the last day upon which he may have spent a night at the residence was in spring 2006. However, the election law does not require Pearson to simply have been domiciled in Arcadia at some time during the preceding year; the law requires Pearson to be domiciled there for at least an entire year prior to the time of qualification. Significantly, one cannot have domicile without residence, and, as we stated in Reeves v. Johnson, 36,837 (La.App. 2d Cir.9/11/02), 824 So.2d 1277, at the very least, one must retain minimal indicia of living at an abode in order to legitimately say that one is residing there.

The overwhelming weight of the evidence in this case is that Pearson’s principal establishment was at 776 Crawford Road, outside the city limits of Arcadia. It was there that he made his habitual residence. Furthermore, his testimony did not establish that for several months immediately preceding his qualification as a candidate he spent a single night at the Parkwood residence or had any belongings at the residence. Nor did the testimony of the Smith brothers establish such indicia of residence. Instead, as previously noted, one brother testified Pearson never resided there at all. Nor does it appear that Pearson ever paid one penny in rent at the residence, ever paid an electric bill, or made more than perhaps one payment on the water bill. The only tangible connection between Pearson and the Parkwood Street address was that he had mail sent there. However, even then, his cousin’s testimony was that Pearson either came to pick the mail up, or that the cousin took the mail to him. Pearson’s voter | ^registration and candidacy form, both giving the Parkwood Street address, are evidence of an intent to live there, but not of actual physical habitation.

Finally, we note that appellee assigned as error the trial court’s dismissal of his motion to dismiss. That motion was based on the argument that when this matter came on for hearing on September 1, 2006, the time delay set forth in La. R.S. 18:1409 had expired. Appellee asserts that these time limitations are mandatory and that there is no provision for any suspension of those delays for any reason. We disagree.

This is an unusual case in which all judges in the judicial district recused themselves, and an ad hoc judge had to be appointed by the Louisiana Supreme Court. We also note that Mr. Pearson himself, on August 28, 2006, requested and received a continuance from the trial court. At that time, counsel for the state had noted the expeditious nature of the election statute and suggested that Mr. Pearson waive any complaints as to delay that might arise; the trial court stated its belief that Mr. Pearson had waived that complaint by filing the motion for a continuance, and Mr. Pearson did not make any statement to the contrary.

We further note that appellee relies on the case of Mayeux v. Stephens, 96-1101 (La.App. 3d Cir.8/7/96), 678 So.2d 82, in which an appellate court held that a trial court’s failure to set a hearing within four days of filing a disqualification petition was chargeable to the plaintiff. However, in that case the plaintiff had filed a successful motion to vacate an initial judgment where no attorney had been appointed to represent the defendant. The appellate court stated that the motion was filed after plaintiff 1 n presumably was aware that the judge did not hold the first proceeding in a timely manner. The appellate court concluded that the plaintiff was involved in the fixing of at least the second hearing to the extent that he should be held responsible for the untimely fixing. The facts of the instant case are dissimilar; we find them much more similar to our decision in Scoggins v. Jones, 442 So.2d 1202, where a clerk of court failed to timely file the record in the appellate court in an election contest case. We held that the duty to timely file the record in the appellate court was that of the Clerk of Court for the District Court and the failure of that official to do so was not chargeable to the appellant. Furthermore, no prejudice to the defendant was shown because of the failure. The same reasoning applies in this case; accordingly, appellee’s argument on this point is rejected.

CONCLUSION

For the reasons set forth above, we hereby reverse the trial court’s decision and hold that Ricky Don Pearson is not qualified to seek the Office of Chief of Police of the Town of Arcadia. Costs are assessed to appellee.

REVERSED AND RENDERED.