author: McDonald, j.

text:
    Emmett WORLEY v. TOWN OF BRUSLY.
    No. 2007 CA 0572.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.
    Writ Denied March 14, 2008.

      Marvin Gros, Donaldsonville, LA, for Plaintiff/Appellee, Emmett Worley.
    Christopher Moody, Hammond, LA, for Defendant/Appellant, Town of Brusly.
    Before GAIDRY, McDONALD and McClendon, jj.
   McDonald, j.

DThis case involves an elected official working for a town that purchased workers’ compensation for its elected officials. He was injured at work, then filed for indemnity benefits over two years later, after a second surgery and near the end of his term in office. The workers’ compensation judge found that his salary, to which he was entitled by statute despite his inability to work, amounted to “wages in lieu of compensation” to interrupt prescription on his workers’ compensation claim. We affirm.

PACTS

Mr. Emmett Worley, Police Chief of the Town of Brusly, filed a disputed claim for compensation on December 13, 2004, asserting that he was injured at work on August 1, 2002 while moving a filing cabinet.

The Town of Brusly filed an exception of prescription, asserting that after the accident, Mr. Worley continued to work as Chief of Police until he lost his campaign for re-election, with his term ending December 31, 2004. The Town of Brusly asserted that Mr. Worley’s claim for indemnity benefits was prescribed.

After a hearing, the workers’ compensation judge denied the exception of prescription. After trial on the merits, the workers’ compensation judge ruled in favor of Mr. Worley, finding that the Town of Brusly had paid Mr. Worley “wages in lieu of compensation,” and thus his claim had not prescribed. The workers’ compensation judge ordered that the Town of Brusly pay Mr. Worley temporary total disability (TTD) benefits in the amount of $398.00 per week commencing January 1, 2005, and continuing until further order of the workers’ compensation judge; attorneys’ fees in the amount of $10,000.00; penalties in the amount of $2,000.00; and ordered that the Town of Brusly pay all costs. The Town of Brusly filed a | amotion for new trial, which was denied. The Town of Brusly suspensively appealed the judgment and makes the following assignments of error:

1. The [workers’ compensation judge] erroneously held that the claimant’s right to indemnity benefits had not prescribed where the claimant continued to earn his salary after the accident and therefore his wages are not considered “wages in lieu of compensation.”
2. The [workers’ compensation judge] improperly held that the defendant-employer was not allowed to an offset of TTD benefits awarded to the plaintiff where plaintiff received disability benefits from a disability benefit plan funded in part by the employer.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the Town of Brusly argues that the accident occurred on August 1, 2002, and Mr. Wor-ley did not file a claim for indemnity benefits until December 13, 2004. Thus, the Town of Brusly contends the claim is prescribed on its face, and that Mr. Worley continued to earn his salary as Chief of Police after the accident, therefore, his wages cannot be considered “wages in lieu of compensation.”

The workers’ compensation judge made a factual determination that Mr. Worley received “wages in lieu of compensation,” after his accident, which determination is subject to a manifest error review. See Ortis v. Ortco Contractors Inc., 00-1460 (La.App. 1 Cir. 9/28/01), 809 So.2d 300, 302.

The La. Const. Art. 6, § 12, provides that the compensation of a local official shall not be reduced during the term for which he is elected. Further, La R.S. 33:404.1 provides in pertinent part:

The board of aldermen shall by ordinance fix the compensation of the may- or, aldermen, clerk, chief of police, and all other municipal officers. The board of aldermen may by ordinance increase or decrease their compensation and the compensation of any nonelected municipal officer and may increase the compensation of other elected officials. However, |4the board of aldermen shall not reduce the compensation of any elected official during the term for which he is elected.

Louisiana Revised Statutes 28:1209 provides:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have beén made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(8) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4)¡ Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. [Footnote omitted.]

Louisiana Revised Statutes 23:1209 A provides three prescriptive periods for the filing of compensation claims: (1) one year from the accident when the injury is immediately manifest; (2) one year from the last payment of compensation benefits (three years for supplemental earnings benefits); and (3) one year from the time the injury develops, but not more than two years from the accident, when the injury does not result at the time of or develop immediately after the accident. Daisey v. Time Warner, 98-2199, (La.App. 1 Cir. 11/5/99), 761 So.2d 564, 566-567.

Mr. Worley cannot claim benefits under the first prong because he did not file his claim for indemnity benefits within one year after the accident occurred. He was injured on August 1, 2002, and made a claim for indemnity benefits on December 13, 2004.

Under the second prong, for that prescriptive period to apply, he had to have already received indemnity benefits. The workers’ compensation | ¡judge found that he received wages “in lieu of compensation” after his injury determining that he had received indemnity benefits, and filed suit within a year of the last payment of benefits, thus his suit had not prescribed.

Under Louisiana law, prescriptive statutes are to be strictly construed against prescription and in favor of the claim that is said to be extinguished. Ortis, 809 So.2d at 302.

In Cheatham v. Morrison, Inc., 469 So.2d 1219, 1220 (La.App. 1 Cir.1985) this court found as follows:

“The basic test is whether the wages paid subsequent to the injury were actually earned. The mere fact that the duties before and after the accident were similar or dissimilar, heavier or fighter, is relevant but not determinative of the issue. And whether the wages were actually earned is determined by the facts and circumstances of each particular case.” Peck v. Orleans Levee Board, 353 So.2d 424, 426 (La.App. 4th Cir.1977); writ denied, 355 So.2d 259 (La.1978). Plaintiff admitted that although her doctor discharged her for light duty, she performed the same work as before and that she actually worked for the paycheck she received. Therefore, she did not receive wages in lieu of compensation.

This court further found in Ortis, 809 So.2d at 301:

Prescription is interrupted by the payment of wages in lieu of compensation when suit is filed within one year of final wage payment. Lester v. Rebel Crane and Service Company, 393 So.2d 674, 676 (La.1981). Wages in lieu of compensation are deemed applicable when services rendered by a disabled employee after an accident are not commensurate with the wages paid and the employee does not actually earn all of his pay. Cheatham v. Morrison, Inc., 469 So.2d 1219, 1220 (La.App. 1st Cir.1985). The underlying test is whether the wages paid after the accident were actually earned. Id; Peck v. Orleans Levee Board, 353 So.2d 424, 426 (La.App. 4th Cir.1977), writ denied, 355 So.2d 259 (La.1978). The burden of proof that prescription has not tolled lies with the claimant. Bledsoe v. Willowdale Country Club, 94-234 (La.App. 5 Cir. 9/27/94), 643 So.2d 1302, 1304.

In the Ortis case, the plaintiff was the sole owner, president, and salaried employee, as a managing salesman, of Ortco. This court compared his pre-accident and post-accident job performance, finding his services as a |fimanaging salesman were patently disproportionate to his wages, and determining that the workers’ compensation judge erred in her determination of a factual conclusion that the plaintiff, as an employee, received wages commensurate with his performance. This court reversed the decision of the workers’ compensation judge and found that the continuous receipt of the same sum of wages by Mr. Ortis interrupted the commencement of the prescriptive period until the payments by Ortco ceased.

In the present case, the workers’ compensation judge found in his reasons for judgment denying the exception of prescription as follows:

Claimant has proven a clear distinction as to the duties he was performing before August 1, 2002 and the duties that he was relegated to after the accident. Despite Mr. Worley not being able to perform his full duties after August 1, 2002, he continued to receive his full pay. That’s exactly what the wages in lieu of compensation interruption is all about. I understand that a distinction is trying to be drawn because this man was an elected official, but I’m not aware of any laws in the State of Louisiana that give elected officials any lesser rights than a private employee. In fact, if you look at most statutes, you’re going to find that most elected officials have additional rights.

I can’t see how the argument can hold true, that an elected official who is required by law to receive his full salary should not be able to take advantage of the wages in lieu of compensation interruption that is provided by law. The court doesn’t see that any type of specific agreement is required by employees or an employer to effectuate that kind of interruption.

The testimony of the claimant was un-contradicted, and in fact, corroborated by the Town Clerk of Brusly. The court finds that clearly the claimant has met his burden of proof in proving the interruption based on wages in lieu of compensation and the exception is denied.

Mr. Worley testified about his work following the accident and both surgeries in part as follows:

Q. Mr. Worley, let’s talk about prior to August 1, 2002. That was the date when the filing cabinet fell on you and you had your injury; is that correct?
A. Yes, sir.
|7Q. Let’s talk about before that. How long were you a Police Chief prior to that?
A. That was my second year.
Q. Tell the court, if you will, what were your daily functions as Police Chief; what did you do?
A. My day started at 7:30 or 8:00. I would go in and take my messages that I had from the night before. I would go over all the reports that were written the night before and go through those. I would set up appointments to meet with people, and then meet with them. There was just various office work and dealing with the public as they came in.
Q. Prior to August 1, 2002, did you actually participate in the arrest of individuals when need be?
A. Prior to, yes, sir.
Q. You actually did investigations, going out on the streets?
A. Yes.
Q. Did you actually work at night sometimes?
A. I was on call 24 hours. I was called out several times at 2:00 or 3:00 in the morning.
Q. Those were your daily functions until the accident on August 1, 2002?
A. Right.
Q. August 1, 2002 happens. You took off a few days after the incident, correct?
A. Yeah.
Q. Eventually you had surgery in March of 2003; is that correct?
A. I’m not sure it was March.
Q. May, May 2003. Let’s talk about from August 1, when you took off a few days and went back. Were you able to go back to your full duties after the incident with the filing cabinet?
A. No, sir.
Q. Let’s talk about what you could not do when you went back to work after August 1, 2002. Did you go in at the same time every morning after that time?
A. No, sir.
Q. What time did you go in then?
A. I normally went in about 10:00 or 10:30.
Q. How long did you end up staying at the office?
A. I would stay until noon and once my secretary had her lunch break, I would go back home.
Q. In comparison to what you did before, what is the difference in hours?
A. I averaged — before the accident, I would work eight, ten, or twelve hours a day.
Q. And after the accident?
A. After the accident I averaged two or three hours a day.
Q. After the August 1, 2002 accident, were you able to make any physical arrests on your own?
A. No, sir. I would have to have somebody do it for me.
Q. Did you go out at night and supervise any investigations or arrests after August 1, 2002?
A. No, sir.
IsQ. Why not?
A. I wasn’t able to.
Q. Okay. Basically, you delegated this to your assistants in the department; is that correct?
A. Correct.
Q. After you had your surgery in May 2003, you said that you stayed out close to three months; you didn’t go to the office at all?
A. Right. Actually, it was predicted as six months of recovery, but I think it was only four months.
Q. What type of surgery did you have?
A. Dr. Thad Broussard had gone in and drug back two of the discs that had bulged because of the accident. He trimmed them back and made a small groove to place the nerve that was suppose to go there and was hoping to put the nerve into the groove and have it stay there.
Q. You say you took off completely for approximately three months. You didn’t go in at all; is that correct?
A. That’s correct.
Q. After three months, tell the court what activities you did after that.
A. Again, it was like I said, sign payroll. If somebody wanted to see me, we’d set an appointment date or time and that was basically about it.
Q. You worked — you did some work from your house; is that correct?
A. Yeah. I had the police radio, telephone, and I had the two way.
Q. Your second surgery was November 2004; is that correct?
A. Correct.
Q. Did you get approval for that surgery right away? Was it recommended — how long was it recommended after the first surgery that you have the second surgery?
A. After the first surgery didn’t work and as it kept getting worse and worse, Dr. Broussard sent me to Dr. Pribil in New Orleans. He took X-rays and this sort of thing and came back and said it was going to have to be redone. What happened was the discs had actually deteriorated; they were no longer there.
Q. Did you[r] condition get progressively worse after that?
A. Definitely.
Q. Did you[r] activities curtail a little bit more after that?
A. Everything came to a standstill.
Q. It was your testimony earlier that when the election was held — when was the election?
A. September. The qualifying was in August and the election was in September.
Q. It’s your testimony that you did not actually campaign at all in that race, correct?
A. I never was able to get out of bed.
Q. Okay. Then in November of 2004 you had the surgery; is that correct?
A. That’s correct.
Q. And you didn’t go back to City Hall at all?
IflA- No.
Q. You received your regular check every two weeks that you normally got?
A. Yes, sir.

The facts of this case show that after the accident, Mr. Worley missed three or four days of work, then returned to his job, working on a more limited basis for two or three hours a day. At that time, although his workday was limited, Mr. Worley was able to delegate duties and run his office.

Then, after his first surgery, in May of 2003, he did not return to work for approximately three months while he recovered. He stayed home, and did some work from his house, such as signing payroll checks. During this time period, we find he was paid “wages in lieu of compensation.”

However, he went back to work after this three-month recovery period. Thereafter his condition worsened, and he underwent a second surgery in November of 2004. Afterward, he was not able to get out of bed and did not return to City Hall at all. He continued to receive his paychecks through December 31, 2004. During this time period after the second surgery, we find he was paid “wages in lieu of compensation.”

Thus, between the November 2004 surgery and December 31, 2004, the end of his elected term, Mr. Worley received “wages in lieu of compensation” and the workers’ compensation judge did not manifestly err in finding that the claim for compensation, filed December 13, 2004, was timely, as Mr. Worley was being paid “wages in lieu of compensation” at that time.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, the Town of Brusly asserts that the workers’ compensation judge erred in not giving an offset of TTD benefits 11f)because Mr. Wor-ley received disability benefits from a disability benefit plan funded in part by the Town of Brusly. This issue was raised in the motion for new trial, which the workers’ compensation judge denied. The workers’ compensation judge found the fact that Mr. Worley was receiving disability retirement benefits, rather than regular retirement benefits, was evidence which the Town of Brusly could have discovered, with due diligence, before the trial. See La. C.C.P. art.l972(2). We find no abuse of discretion by the workers’ compensation judge in the decision to deny the motion for new trial.

Thus, the judgment of the workers’ compensation judge is affirmed, and costs are assessed against the Town of Brusly.

AFFIRMED.

McCLENDON, J., concurs with the result received by the majority.

      . While it is troubling that Mr. Worley stated at trial that he was receiving regular retirement benefits rather than disability retirement benefits, we still cannot say the workers’ compensation judge abused his discretion in finding that the Town of Brusly could have, with due diligence, discovered this fact prior to trial.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    Ivory W. JOHNSON v. HARMONY, L.L.C.
    No. 2005 CA 0994.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.
    Writ Denied March 14, 2008.

      Milton Osborne, Jr., Baton Rouge, LA, for Appellants, Ivory W. Johnson and Milton Osborne, Jr.
    Charles J. Duhe, Jr., Brent Michael Steier, Baton Rouge, LA, for Appellee, Harmony, L.L.C.
    Before PARRO, KUHN and DOWNING, JJ.
   KUHN, J.

| gClaimant-appellant, Ivory W. Johnson, and his attorney, Milton Osborne, Jr., appeal the ruling of the Office of Workers’ Compensation (OWC), awarding sanctions under La. C.C.P. art. 863 in favor of defendant-appellee, Harmony, L.L.C., after the grant of exceptions raising objections of res judicata and prescription. The grant of the exceptions was based on an OWC-approved settlement Johnson had entered into with third-party defendants in his tort claims | aarising out of the same operative facts that gave rise to his workers’ compensation claims. According to the plain language of the settlement, Johnson “discharged” Harmony, L.L.C. from, among other things, all “past, present or future indemnity benefits [and] medical expenses ... alleged to have been sustained ... while on the premises at Georgia Gulf Corporation” in connection with a chemical exposure in September 1996.

Appellants initially attempted to challenge the settlement. But the settlement, approved by an OWC-issued judgment on October 29, 1999, is no longer appealable since the delays for challenging it have lapsed. See La. C.C.P. art.2087. Therefore, the 1999 judgment has acquired the authority of the thing adjudged, and this court is without jurisdiction to alter it. See Brown v. Harmony, L.L.C., 05-0747, p. 4 (La.App. 1st Cir.3/24/06), 934 So.2d 99, 101.

Appellants next urge that the OWC erred in failing to consider their challenge of the settlement as a good-faith argument precluding the imposition of sanctions. A trial court’s determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Stroscher v. Stroscher, 01-2769, p. 8 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 526.

At the hearing, the OWC judge expressly stated,

I can’t see why the claimants in these cases, number one, [pursued] their claims in [the OWC tribunal]; and number two, even if they didn’t have the settlement documents that they signed with their attorneys in the tort cases where they received rather large settlements, why they continued to pursue these cases even though action [was] Lbeing taken by Harmony [L.L.C.] to involuntarily dismiss the cases through exceptions of prescription and ... res judicata....
[T]hese claimants had benefit of counsel during [these cases].... Even if Mr. Osborne wasn’t involved when the [workers’ compensation] claims were filed, they could have gotten Mr. Osborne’s advice ... that these claims shouldn’t be pursued. They should be dismissed voluntarily, not just let them sit on the docket and make [Harmony L.L.C.] have to go through all the different motions to have them dismissed and go through all the different expenses when [it was] clear that there [was] no case based upon prescription, res judica-ta, [and] the settlement....
[The claimants] basically filed their 1008’s and let the cases go through the proceedings here without ever giving a good faith indication as to what they were seeking [or] giving any type of good faith arguments as to why their claims should remain pending.... (Footnote added.)

At the hearing, Osborne conceded that he realized that his client did not have the right to pursue the workers’ compensation claim against Harmony, L.L.C. prior to the hearing on the prescription and res judica-ta exceptions. Thus, a reasonable factual basis exists to support the imposition of sanctions, and the OWC was not manifestly erroneous in so doing.

Lastly, appellants contend that the award of $2,600.45 was excessive. The determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the abuse of discretion standard. Stroscher, 01-2769 at p. 8, 845 So.2d at 526. The OWC concluded that the amount of attorney’s fees that Harmony, L.L.C. incurred in defending the claim was appropriate. Admitted into evidence was an itemized bill detailing the work undertaken which amounted to $2,100.45, which was charged to Harmony, L.L.C. Testimonial evidence established that the legal fees had actually been paid. An additional $500 was awarded for the legal fees incurred by Harmony, L.L.C. in conjunction with the hearing on the sanctions. ] sBased on the documentary and testimonial evidence, the OWC did not abuse its discretion in awarding $2,600.45 in sanctions against claimant and his attorney.

For these reasons, the ruling of the OWC imposing sanctions against claimant, Ivory W. Johnson, and his attorney, Milton Osborne, Jr., is affirmed. This opinion is issued in compliance with La. U.R.C.A. Rule 2-16.1.B. Appeal costs are assessed against appellants.

AFFIRMED.

      . La. C.C.P. art. 863 provides:
      A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
      B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is wan-anted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
      C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
      D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.
      E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
      F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within' ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.

      . SeeLa. R.S. 23:1272.

      . The record establishes that several workers exposed to chemicals in September 1996 at the Georgia Gulf Corporation premises filed 1008 forms with the OWC naming Harmony, L.L.C. as a defendant subsequent to their respective settlements with third-party tortfea-sors. Apparently, in each case claimants had discharged all claims against Harmony, L.L.C. in the settlement, and each was represented by Osborne.


author: GUIDRY, J. WHIPPLE, J.,

text:
    Charlotte Paula CAMPBELL and William G. Campbell v. OLD REPUBLIC INSURANCE COMPANY, Triad Control Systems, Inc., G.W. Estelle, on behalf of Shane R. Estelle, and Geico Insurance Company.
    No. 2007 CA 0962.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.

      Sean D. Fagan, Chad A. Dudley, C. Locke Meredith, Baton Rouge, LA, for Plaintiffs/Appellants, Charlotte Paula Campbell and William G. Campbell.
    Richard. S. Thomas, Baton Rouge, LA, for Defendani/Appellee, State Farm Mutual Automobile Insurance Company.
    Glen Scott Love, Baton Rouge, LA, for Defendants/Appellees, Kevin and Michelle Estelle.
    Gregory E. Bodin, Baton Rouge, LA, for Defendant/Appellee, Old Republic Insurance Company and Triad Electric & Controls, Inc.
    Mark D. Boyer, Denharn Springs, LA, for Defendani/Appellee, G.W. Estelle.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

| ¡¡This is an appeal of a judgment granting the defendant’s, State Farm Mutual Automobile Insurance Company (State Farm), motion for summary judgment finding no genuine issue of material fact remained and that the State Farm Policy at issue did not provide coverage for the claims for damages made by the plaintiffs, Charlotte and William Campbell. After a thorough review of the record and the applicable law, we affirm.

This matter arises out of an automobile accident that occurred when Shane Estelle, a fifteen-year-old unlicensed driver, who had taken his grandfather’s Ford F150 company truck without permission, attempted to turn left without being able to see around an eighteen wheeler in front of him and collided with the Campbells’ vehicle. It is wholly undisputed that the accident was caused by the sole negligence of Shane Estelle. The truck Shane was driving was owned by Triad Control Systems, Inc., the employer of both his grandfather, G.W. Estelle, and his father, Kevin Estelle. At the time of the accident, Shane was living primarily with his grandparents during the school week and with his parents on the weekends, to facilitate his attendance at a school of their choice.

State Farm was added as a defendant in the Campbells’ suit for damages as the automobile liability insurer of a Nissan 1996 King Cab pickup truck owned by Shane’s parents, Kevin and Michelle Estelle. State Farm’s motion for summary judgment was based on its policy language that requires a “non-owned vehicle” to be in the lawful possession of the person operating it in order for coverage to apply. State Farm asserted that the 2001 Ford F160 truck, by policy definition, was not a “non-owned vehicle,” and that the evidence established that it was not in the lawful possession of Shane when he was operating it at the time of the accident. The trial court, Rafter hearing evidence presented from both sides, agreed with both contentions and granted the summary judgment.

The State Farm policy issued to Kevin and Michelle Estelle introduced as evidence in the record provides in pertinent part:

Non-Owned Car — means a car not owned by, registered to or leased to:
1. You, your spouse;
4. An employer of you, your spouse or any relative.
* * *
A non-owned car must be a car in
the lawful possession of the person operating it.
(Bold in original; additional emphasis added).

With respect to the vehicle qualifying as a “non-owned” vehicle under the policy language, the trial court in oral reasons stated:

Now, the policy defines a non-owned car means one not owned by, registered or leased to you or your spouse, any relative, any other person residing in your household, or an employer of you, your spouse or any relative; and a non-owned car must be a car in the lawful possession of the person operating it, ... Both sides seem to concede in argument that this is a non-owned car; however, I’ve got a question whether or not it meets that definition since it was owned by the employer of the named insured, Kevin Estelle. But even assuming for the sake of argument this is a, quote, non-owned car ...

The transcripts of the arguments by counsel at the hearing before the trial court are not in the record before us; however, we note that in brief, State Farm continues to maintain that the Ford F150 truck was not a non-owned vehicle within the policy definition. To the extent that may still be an issue, we agree with the trial court’s conclusion. A straightforward application of the very clear language of the policy establishes that the ^vehicle, owned by the employer of the insured, in this case, Kevin Estelle, is not a “non-owned” vehicle within the scope of State Farm’s policy, and on that basis alone, coverage would not apply.

However, the record also fully supports the trial court’s findings. Even assuming for the sake of argument that the vehicle could qualify as a non-owned vehicle, that coverage still would not apply because the vehicle was not lawfully in the possession of the person operating it. First and foremost, the record conclusively establishes that Shane was fifteen at the time and was an unlicensed driver. On this basis alone, his possession and operation of the vehicle was not lawful. Furthermore, as also correctly found by the trial court, the record conclusively established that Shane was operating the vehicle knowingly without permission, adding to the unlawfulness of his possession. Specifically, we note the following uncon-tradicted testimony regarding whether Shane had permission, or even the belief that he had permission, which amply supports the trial court’s conclusion that the answer is a “resounding ... no.”

The grandfather, G.W. Estelle, testified, “nobody really drove that truck other than myself ... it just wasn’t any question about it.” He also stated that Shane “had asked me to drive the vehicle before and I wouldn’t let him,” and that “Shane knew he didn’t have permission to drive the vehicle.” According to G.W., “[he] knew better.” Linda Estelle, Shane’s grandmother often allowed him to drive her own personal vehicle, an Infinity SUV, with her, and on one or two occasions allowed him to drive it alone only on their one-street subdivision. However, she said he did not have permission to take the vehicle and “not one time did it cross [her] mind that he would ever take a vehicle without our knowledge.” When asked if she thought Shane might have believed he had permission, she replied, “Oh, Rno.” Shane’s mother, Michelle Estelle, testified that “[Shane] did not have permission” to drive the truck, and that “no one was allowed to drive that truck.” Even Shane himself flatly admitted that he did not have, and knew he did not have, permission to ever drive his grandfather’s truck. In fact, in relaying the incident to his parents and grandparents, Shane admitted that he sat in the truck for almost ten minutes debating on whether or not he should take it, as he knew he did not have permission and should not be driving it.

Plaintiffs’ contention on appeal that there is a genuine issue regarding whether Shane had permission, and that the trial court erroneously made credibility determinations in granting the summary judgment is wholly without merit. The only evidence offered to contradict State’s Farm showing that Shane did not have permission was the testimony of a friend of Shane, and of that friend’s mother, to the effect that they had seen Shane driving, alone, in his grandmother’s vehicle and possibly another vehicle, and they assumed he had permission. Even if taken as true, this testimony does nothing to create a genuine issue of material fact. Neither Shane’s friend nor her mother had any involvement whatsoever with whether Shane had permission to drive or not, and their assumptions that he did prove absolutely nothing and do not contradict State Farm’s conclusive evidence to the contrary.

Accordingly, the judgment of the trial court is affirmed. Plaintiffs are assessed all costs of this appeal.

AFFIRMED.

WHIPPLE, J., concurs, with reasons assigned.

WHIPPLE, J.,

Concurring.

11Although I agree with the majority’s ultimate finding that there was no coverage, I disagree in part with the reasoning therein. In my view, the coverage issue turns on the undisputed fact that the car was not in Shane’s lawful possession at the time of the accident. Thus, I concur in the conclusion that there was no coverage under the facts herein.


author: PARRO, J. DOWNING, J.,

text:
    Walter A. WILLIAMS v. Johnny CREED, Assistant Secretary, Office of Adult Services, Louisiana Department of Public Safety and Corrections, and Carla Maxwell, Records Analyst, Hunt Correctional Center.
    No. 2007 CA 0614.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.

      Walter A. Williams, Homer, LA, In Proper Person.
    William L. Kline, Baton Rouge, LA, for Defendants-Appellees, Johnny Creed, Carla Maxwell, and Louisiana Dept, of Public Safety and Corrections.
    Before PARRO, KUHN, and DOWNING, JJ.

      . The office of Commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. LSA-R.S. 13:713(C)(5).

   PARRO, J.

12WaIter A. Williams, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a judgment that affirmed DPSC’s decision in an administrative remedy procedure and dismissed his petition for judicial review of that decision. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Williams filed a petition for judicial review of the final agency decision of DPSC in Administrative Remedy Procedure No. HCC 2000-0883, in which he challenged DPSC’s denial of his “good time” eligibility. According to the transcript of proceedings in Orleans Parish Criminal District Court, Docket No. 261-128, Williams pled guilty to two counts of attempted aggravated rape and, pursuant to a plea agreement, was sentenced to twenty-five years on each count, to run consécutively. The offenses occurred on July 16, 1977, and July 29, 1977; he entered his guilty pleas and was sentenced on December 16, 1977. The transcript of the sentencing hearing reveals that before Williams entered his guilty pleas, the court stated:

I’ve taken part in the plea bargain by indicating the sentence I’m going to give to you or impose upon [you] as a result of the entering of these pleas of guilty. So, the plea bargain is that you are going to plead guilty to attempted aggravated rape as to count one, and your sentence is going to be twenty-five years in the State Penitentiary. You are also to plead guilty as to count two of the Bill of Indictment and your sentence will be twenty-five years in the State Penitentiary, to run consecutive to the sentence imposed.
Now, these sentences are not going to be increased although the State may in fact file a multiple charge against you.

Pursuant to LSA-R.S. 15:529.1, the state did charge him with being a multiple offender as to the second count. Williams also admitted the allegation of the multiple offender charge, so his original sentence on count two was vacated and a new sentence was entered, requiring him to serve twenty-five years in the custody of DPSC, consecutive to the sentence imposed on the first count. The court did not stipulate that the sentence on the multiple offender conviction was to be served without good time.

|sWilliams was remanded to the custody of DPSC and began serving his sentence at Angola. While at Angola, he received a Master Prison Record with a time computation worksheet that showed his release date as November 11, 2003. This computation included good time credit for time served on both counts, pursuant to the provisions of LSA-R.S. 15:571.3 that were in effect when his offenses were committed. In October 1999, Williams was transferred to Hunt Correctional Center, where he was eventually given a revised Master Prison Record showing his release date as December 27, 2015. When he questioned the record analyst about the change, he was informed that the prior computation was incorrect and that, as of his sentencing date as a multiple offender, he was not entitled to good time credit on the multiple offender conviction under LSA-R.S. 15:571.3(C).

Williams filed for administrative relief in May 2000, pursued the administrative remedy procedure with DPSC through all the required steps, and was denied relief at each level. His petition for judicial review of that decision was filed January 16, 2001. The Commissioner held a hearing on his complaint and prepared a recommendation for the district court judge, in which he concluded the DPSC decision was correct and Williams’ petition for judicial relief should be dismissed. Williams timely filed a traversal of the Commissioner’s report. The district court judge adopted the Commissioner’s report and recommendation and dismissed Williams’ petition in a judgment dated June 7, 2006. This appeal followed, in which Williams contends that the application to him of the amended version of LSA-R.S. 15:571.3 violates the ex post facto clauses of the constitutions of Louisiana and the United States.

APPLICABLE LAW

Louisiana Revised Statute 15:1171 grants authority to the DPSC to adopt administrative remedy procedures in compliance with federal law to receive, hear, and dispose of all offender complaints and grievances. The statute further provides that such complaints and grievances include actions pertaining to time computations, such 14as computations of good time. The administrative remedy procedure is to provide the exclusive remedy to the offender for complaints governed thereby. See Madison v. Ward, 00-2842 (La.App. 1st Cir.7/3/02), 825 So.2d 1245, 1251-52 (en banc). Accordingly, a prisoner alleging an error in computation of good time must pursue his claim through the administrative remedy procedure, with appellate review first at the district court and then with this court. Madison, 825 So.2d at 1255; see also Owens v. Stalder, 06-1120 (La.App. 1st Cir.6/8/07), 965 So.2d 886, 888.

Louisiana Revised Statute 15:1177 provides for judicial review of an adverse decision by the DPSC. On review of the agency’s decision, the district court functions as an appellate court. Its review is to be confined to the record and is limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. LSA-R.S. 15:1177(A)(5). The court may affirm the decision of the agency, remand the case for further proceedings, or order that additional evidence be taken. LSA-R.S. 15:1177(A)(8). The court may reverse or modify the administrative decision only if substantial rights of the appellant 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 statutory authority of the agency; (3) made upon unlawful procedure; (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 on the whole record. LSA-R.S. 15:1177(A)(9).

On review of the district court’s judgment under LSA-R.S. 15:1177, 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. McCoy v. Stalder, 99-1747 (La. App. 1st Cir.9/22/00), 770 So.2d 447, 450-51.

Article I, § 10 of the United States Constitution and Article I, § 23 of the Louisiana Constitution prohibit applying criminal laws ex post facto. Traditionally, Louisiana courts have held that in order for a criminal or penal law to fall within this prohibition, the law had to be passed after the date of the offense, relate to that offense or its punishment, and alter the situation of the accused to his disadvantage. State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, 743-44, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). However, the Louisiana Supreme Court narrowed the focus of ex post facto analysis in Louisiana in the Olivieri case. While the court recognized that, in previous ex post facto analysis, Louisiana jurisprudence had broadly focused on whether the change in a law operated to the disadvantage of an accused, the Olivieri court adopted the current federal approach to ex post facto analysis, which focuses on whether any change in the law altered the definition of criminal conduct or increased the penalty by which the crime was punishable. Olivieri, 779 So.2d at 743—44; State v. Smith, 794 So.2d 41, 45 (La.App. 5th Cir.5/30/01), writ denied, 01-1921 (La.6/7/02), 817 So.2d 1145.

Plea bargaining is the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s plea of guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than the sentence possible for the graver charge. State v. Canada, 01-2674 (La.App. 1st Cir.5/10/02), 838 So.2d 784, 788. However, the sentencing function is exclusively within the province of the trial court’s authority and, even if the parties agree to a specific sentence, a court that has not agreed to abide by any such agreement retains the discretion to reject such an agreement. State v. Hen-nis, 98-0664 (La.App. 1st Cir.2/19/99), 734 So.2d 16, 18, writ denied, 99-0806 (La.7/2/99), 747 So.2d 16. Nevertheless, where the plea agreement calls for a legal sentence and the trial court agrees, the trial court is bound by the terms of the agreement. See State v. Anthony, 99-0107 (La.App. 4th Cir.4/7/99), 735 So.2d 746, 750-51, writ denied, 99-1360 (La.6/25/99), 746 So.2d 606; State v. Terrebonne, 01-2632 (La.App. 1st Cir.6/21/02), 822 So.2d 149, 152.

DISCUSSION

In this appeal, Williams urges this court to overturn the judgment, because at the time he committed his offenses, the provisions allowing him good time under LSA-R.S. 15:571.3 stated that a person convicted as a multiple offender after September 15, 1975, could, on order of the court, be denied the benefit of diminution of sentence | (¡for good behavior. Williams points out that when he was sentenced, the court did not order that he was to be denied good time on the multiple offender conviction. Therefore, he contends that not only his sentence on count one, but also his sentence on count two, should be computed with time off for good behavior. The statute was amended in 1977 to provide that multiple offenders convicted and sentenced after September 9,1977, shall in no case be entitled to diminution of sentence for good behavior. Williams contends that although he was sentenced after September 9, 1977, the application of this amendment to him violates the ex post facto clauses of the constitutions of Louisiana and the United States. Williams also claims that Louisiana courts interpreting the application of LSA-R.S. 15:571 in similar situations have concluded that the version of the good time statute in effect when the crimes were committed must be applied to the computation of the sentence, even if the sentence was actually imposed after September 9,1977.

Having reviewed the cited jurisprudence, we note that all the cases cited by Williams — as well as many other cases— unequivocally support his argument. However, none of these cases were decided after the Olivieri court narrowed the principles to be used in an ex post facto analysis. Moreover, our research has revealed no reported cases applying the Olivieri ex post facto analysis to the issue before this court, namely, whether the application of a version of LSA-R.S. 15:571.3 that was amended after commission of the offense, but before conviction of the offense, and which removed the eligibility for early release that was available to the defendant through good time at the time the offense was committed, violates the prohibition against a change in the law that increases the penalty by which the crime is punishable. Therefore, this is a res nova issue for this court.

The first case in which the Louisiana Supreme Court addressed this issue was | State v. Curtis, 363 So.2d 1375 (La.1978). In that case, the defendant had committed armed robbery in February 1975, at which time LSA-R.S. 15:571.3(B) provided that persons sentenced on an armed robbery conviction and other felonies could be afforded the benefit of good time credits. That statute was amended in 1975 to state that a person convicted as a multiple offender after September 15, 1975, could be denied good time credits on order of the court. Curtis was convicted in April 1976 and sentenced in May 1976; the court ordered that his sentence as a multiple offender was to be served without diminution of sentence. Curtis, 363 So.2d at 1379. Curtis claimed that the statute denying him the opportunity to earn diminution for good behavior was passed by the legislature after commission of the crime for which he was sentenced and that application of the statute to him constituted a prohibited ex post facto application. Curtis, 363 So.2d at 1378-79. After an extensive analysis of the historical application of the ex post facto clauses, the supreme court held that applying the amended version of LSA-R.S. 15:571.3 in sentencing Curtis for a crime committed before the effective date of the amendment violated the ex post facto clauses of the United States and Louisiana Constitutions, because it operated as a “material disadvantage to the defendant.” In so doing, the court cited Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), in which the United States Supreme Court had stated:

The Constitution forbids the application of any punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. ... We need not inquire whether this is technically an increase in the punishment annexed to the crime.... It is plainly to the substantial disadvantage of petitioners....

Curtis, 363 So.2d at 1381 (citations omitted). Thus, the court found that if “release eligibility” is made impossible or more difficult by application of a statute amended after commission of the offense, such application violated the ex post facto prohibition by applying “a new punitive measure to a crime already consummated to the detriment or material disadvantage of the wrongdoer_” Curtis, 363 So.2d at 1382-83 (citations omitted).

Later cases, all of them citing Curtis or applying the “disadvantage to the defendant” factor, reached a similar conclusion. See, e.g., State ex rel. Goiner v. Dees, 366 So.2d 1353 (La.1978); State ex rel. Bickman v. Dees, 367 So.2d 283 (La.1978); State v. Rolen, 95-0347 (La.9/15/95), 662 So.2d 446; State v. Delaughter, 29,974 (La.App. 2nd Cir.12/10/97), 703 So.2d 1364, writ denied, 98-0018 (La.5/1/98), 805 So.2d 201; George v. Baker, 99-0234 (La.App. 1st Cir.11/5/99), 746 So.2d 783; and Payton v. Cooper, 05-0127 (La.App. 1st Cir.2/10/06), 928 So.2d 605, writ denied, 06-2008 (La.5/4/07), 956 So.2d 616. In fact, after this jurisprudence had become firmly established, many decisions in similar situations did not even refer to the specific ex post facto principles involved, but simply followed the pattern originally established in the Curtis case. See, e.g., State v. Benwoir, 365 So.2d 1106 (La.1978); State v. Siegel, 376 So.2d 492 (La.1979); State v. Singleton, 96-2380 (La.2/7/97), 688 So.2d 486; State v. Arceneaux, 97-197 (La.App. 3rd Cir.6/4/97), 695 So.2d 1148, writ denied, 97-1807 (La.1/9/98), 705 So.2d 1096; and State v. Francis, 97-0201 (La.App. 1st Cir.2/20/98), 709 So.2d 834, writs denied, 98-1054 (La.5/8/98), 719 So.2d 57, and 98-0887 (La.9/4/98), 723 So.2d 961.

Having reviewed the cases cited by Williams, as well as many other cases applying an ex post facto analysis to situations involving the numerous amendments to the good time statute, we conclude that this line of cases does not comply with the narrower Olivieri criteria. After Olivieri, the only relevant issues regarding a legislative change are “whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable.” Olivieri, 779 So.2d at 744. In other words, in a post-sentence context, once a sentence has been imposed on a defendant, any change in the law that later occurs cannot be applied to that defendant to increase that sentence or penalty. Anything other than or less than this is not protected by the ex post facto clauses in the United States and Louisiana Constitutions.

In the matter before us, the definition of the criminal conduct committed by Williams was not changed by the amendment to the good time statute that occurred after he committed that crime. The only question, therefore, is whether that change could be applied to Williams in such a way that it increased the penalty by which his crime as a multiple offender was punishable. The district court imposed on him a | ¡¡sentence or penalty of twenty-five years for the second count of attempted aggravated rape. The court advised that, pursuant to the plea agreement, the sentence would not be increased, even if the state filed a multiple offender charge against Williams. After Williams was charged as a multiple offender, the original sentence on the second count was vacated, and a new sentence was imposed, based on the multiple offender adjudication. That sentence was also twenty-five years. There was no increase in the penalty imposed on him. Rather, the change in the good-time statute simply removed the opportunity to take advantage of provisions for early release.

For the foregoing reasons, we conclude that under the Olivieri analysis, there was no application of an ex post facto law to Williams. Therefore, the decisions of the district court and DPSC on this issue were correct.

CONCLUSION

We affirm the judgment of the district court, which dismissed Williams’ suit and rendered judgment in favor of DPSC and against Williams. Total costs of this appeal are assessed against Williams.

AFFIRMED.

DOWNING, J., dissents and assigns reasons.

DOWNING, J.,

dissenting.

11 Respectfully, I dissent. In this case the judge could have eliminated good time. He did not. We should not.

      . Diminution of sentence for good behavior, as provided in LSA-R.S. 15:571.3, is commonly referred to as "good time.”

      . In connection with the multiple offender charge, Williams admitted he had a previous conviction of attempted simple burglary, for which he had been sentenced to one year at hard labor.

      . See 1975 La. Acts, No. 727, § 1.

      . According to the response of the records analyst in the record, he was being given good time on his sentence on count one.

        .See 1977 La. Acts, No. 633, § 1.

      . Although this case was decided after the Olivieri decision, it did not address the precise issue before this court. In Payton, the effect of the changed statute defining a 1978 Florida robbery conviction as a "crime of violence” did not affect the penalty imposed for that earlier conviction. The impact of that classification applied only to his 1996 offense, which was committed after the crime of robbery was defined as a "crime of violence.” Therefore, because the relevant offense in an ex post facto analysis is the current crime, not the predicate crime, it was not a prohibited ex post facto application of the law. Payton, 928 So.2d at 607-08.

      . In Olivieri, the Louisiana Supreme Court cited California Dept. of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), in which the United States Supreme Court had stated that “the focus of the ex post facto inquiry is not whether a legislative change produces some ambiguous sort of 'disadvantage/ nor, as the dissent seems to suggest, on whether an amendment affects a prisoner's opportunity to take advantage of provisions for early release’ ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable.” Olivieri, 779 So.2d at 743 (emphasis added).

      . Williams did not raise an issue regarding enforcement of his plea bargain. However, we have considered whether the multiple offender adjudication resulted in the imposition of a punishment in excess of what he had agreed to when he admitted the allegations underlying the multiple offender count. The district court judge participated in the plea bargain process and agreed that Williams’ penalty on count two would not be enhanced or increased if a multiple offender bill were filed against him on that count. Such an agreement is binding. See Terrebonne, 822 So.2d at 152; State ex rel. Allen v. State, 00-0220 (La.5/11/01), 792 So.2d 1. We have concluded that the withdrawal of Williams’ eligibility for early release did not enhance or increase his penalty, which remained the same after the multiple offender adjudication as it was under the original conviction on count two. Therefore, there was no breach of the plea bargain in this case.

      . Although Williams named two other persons employed in various capacities by DPSC, his claims against them all involve the calculation of his good time, which is ultimately the responsibility of DPSC. By our action in this case, those allegations are moot.