text:
    John H. ONSTOTT v. CERTIFIED CAPITAL CORPORATION and Robert S. Cunard, Jr.
    No. 2005 CA 2548.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Michael D. Ferachi, Jonathan G. Wilb-ourn, Baton Rouge, Counsel for Plaintiff/Appellant, John H. Onstott.
    Michael Patterson, Jamie Hurst Watts, Larry S. Bankston, Baton Rouge, Counsel for Defendants/Appellees, Certified Capital Corporation and Robert Cunard.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   CARTER, C.J.

| ?Plaintiff-AppelIant, John H. Onstott, appeals the trial court judgment sustaining the peremptory exception raising the objection of prescription, that was filed on behalf of defendants-appellees, Certified Capital Corporation (CCC) and Robert S. Cunard, Jr., and dismissing plaintiffs suit. For the following reasons, we reverse and remand.

Facts and Procedural History

In 1989, Onstott, CCC, and others joined to form Bobeo, Inc. Cunard is the president and majority shareholder of CCC, and CCC is the majority shareholder of Bobeo. Thereafter, the Board of Directors decided to liquidate Bobeo. In 1998, CCC sued Bobeo, Onstott, and others asserting various claims arising from the liquidation proceedings. On March 26, 1999, the parties entered into a settlement agreement in open court. As part of the agreement, Onstott relinquished his Bobeo stock certificates to CCC in exchange for a release of all claims asserted against Onstott in the litigation.

Subsequently, Bobeo and the other defendants moved to enforce, and CCC moved to nullify, the settlement agreement. The trial court denied the motion to nullify, ruling the settlement was enforceable; however, on appeal this court reversed, remanding the case to the trial court. Certified Capital Corporation v. Bobeo, Inc., 00-1022 (La.App. 1 Cir. 6/22/01), 800 So.2d 445 (unpublished). This court reasoned: “[W]e can only conclude that there was no meeting of the minds as to the rights and obligations of the parties under the terms of the agreement, and therefore, the purported settlement | ^agreement fails to meet the requirements of a valid and enforceable settlement agreement.” Certified Capital Corporation, 00-1022 at p. 7 (unpublished).

Despite this court’s determination that the settlement agreement was “unenforceable,” Onstott’s stock certificates have not been returned. On July 21, 2004, Onstott filed the present petition, asserting in part:

Onstott had been impoverished and Certified Capital Corporation has been unjustly enriched since Certified Capital Corporation has retained Onstott’s ownership interest in Bobeo, Inc. without giving Onstott anything in consideration.

Onstott characterizes his cause of action as quasi-contractual, wherein he seeks the return of the payment of thing not due. In the alternative, he contends that CCC and Cunard have been unjustly enriched.

In response, CCC and Cunard filed a peremptory exception raising the objections of prescription and no cause of action. CCC and Cunard argued that, despite Onstott’s allegations in his petition, he had in fact alleged a tort claim of conversion. Because Onstott’s petition was filed more than one year after this court’s judgment vacating the settlement agreement, CCC and Cunard maintained the tort action was prescribed.

The trial court found that Onstott’s petition states a cause of action in tort for conversion. So concluding, the trial court found the cause of action prescribed and entered judgment in favor of CCC and Cunard, dismissing Onstott’s suit with prejudice. Onstott now appeals.

Standard of Review and Burden of Proof

When evidence is introduced at the hearing on a peremptory exception raising the objection of prescription, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. \4Babineaux v. State ex rel. Department of Transportation and Development, 04-2649 (La.App. 1 Cir. 12/22/05), 927 So.2d 1121, 1128. But here, no evidence was introduced at the hearing on the exception, and the relevant facts are not in dispute. Therefore, the doctrine of manifest error does not apply to this court’s review of the trial court’s legal conclusion. Appellate review of questions of law is simply to determine whether the trial court was legally correct. Cangelosi v. Allstate Insurance Co., 96-0159 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375.

' [3-5] The party urging a peremptory exception raising prescription bears the burden of proof. Only if prescription is evident from the face of the pleadings will the plaintiff bear the burden of showing an action has not prescribed. See Johnson v. Hardy, 98-2282 (La.App. 1 Cir. 11/5/99), 756 So.2d 328, 331. In the absence of evidence, the objection of prescription must be decided upon the properly pleaded material allegations of fact alleged in the petition, and those alleged facts are accepted as true. Thomas v. State Employees Group Benefits Program, 05-0392 (La.App. 1 Cir. 3/24/06), 934 So.2d 753, 758. In reviewing a peremptory exception raising the objection of prescription, appellate courts strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Pratt v. Himel Marine, Inc., 01-1832 (La.App. 1 Cir. 6/21/02), 823 So.2d 394, 400, writs denied, 02-2128, 02-2025 (La.11/1/02), 828 So.2d 571, 572.

Discussion

The characterization of Onstott’s cause of action is crucial to the determination of whether his personal action is prescribed. CCC and Cunard characterize Onstott’s cause of action as a delictual action for the tort of |sconversion. Delictual actions are subject to a liberative prescription of one year, running from the day the injury or damage is sustained. LSA-C.C. art. 3492. Onstott, however, characterizes his cause of action as quasi-contractual. A claim for restitution of a payment not due is based on the doctrine of quasi-contract. Julien v. Wayne, 415 So.2d 540, 542 (La.App. 1 Cir.1982). Similarly, a claim for unjust enrichment is quasi-contractual. Gulfstream Services, Inc. v. Hot Energy Services, Inc., 04-1223 (La.App. 1 Cir. 3/24/05), 907 So.2d 96, 100, writ denied, 05-1064 (La.6/17/05), 904 So.2d 706. Unlike delictual actions, quasi-contractual actions are subject to a liberative prescription of ten years. LSA-C.C. art. 3499; Kilpatrick v. Kilpatrick, 27,241 (La.App. 2 Cir. 8/23/95), 660 So.2d 182, 186, writ denied, 95-2579 (La.12/15/95), 664 So.2d 444.

The allegations and prayer of the petition determine the true nature of the action and the applicable prescriptive period. A set of circumstances can give rise to more than one cause of action, and each of those causes has its own prescriptive period. Griffin v. BSFI Western E & P, Inc., 00-2122 (La.App. 1 Cir. 2/15/02), 812 So.2d 726, 733. Because our civil procedure is based on fact pleading (cf. LSA-C.C.P. arts. 854 and 891) courts must look to the facts alleged to discover what, if any, relief is available to the parties. More than one cause of action may be urged in the same petition, and these causes may be inconsistent or mutually exclusive. LSA-C.C.P. art. 892; Carter v. Benson Automotive Co., Inc., 94-261 and 94-158 (La.App. 5 Cir. 9/27/94), 643 So.2d 1314,1315-1316.

There is no dispute that any delictual action arising from the nullification of the settlement agreement is prescribed. However, if | fiOnstott’s petition sets forth a cause of action arising from a quasi-contractual obligation, his suit was timely filed. Onstott’s petition alleges:

8.
On March 26, 1999, Onstott and Certified Capital Corporation, through its president, Cunard, entered into a settlement agreement whereby Onstott agreed to relinquish his ownership interest in Bobeo, Inc. to Certified Capital Corporation in exchange for a release of all claims asserted against Onstott in the litigation. This settlement agreement was read into the record before Judge Robert Downing. Pursuant to the settlement agreement, Onstott conveyed his ownership interest in Bobeo, Inc. to Certified Capital Corporation.
9.
Subsequently, Certified Capital Corporation moved to nullify the settlement agreement. On January 10, 2000, Judge Downing of the 19th Judicial District Court denied Certified Capital Corporation’s motion. On March 8, 2000, Certified Capital Corporation appealed this Court’s ruling.
10.
On June 22, 2001, the First Circuit Court of Appeal for the State of Louisiana granted Certified Capital Corporation’s appeal, reversing the trial court’s ruling and vacating the settlement agreement.
11.
The suit filed by Certified Capital Corporation against Bobeo, Inc., On-stott, and Kern remains in litigation and no parties made defendants, including Onstott, have been dismissed or released and no claims against defendants, including Onstott, have been dismissed or released. Therefore Certified Capital Corporation has not released nor dismissed its claims against Onstott in respect of suit “Certified Capital Corporation vs. Bobeo, Inc., Henry G. Kern and John G. Onstott, Suit No. 449, 534, Div. A, Parish of East Baton Rouge, State of Louisiana ” as Certified Capital Corporation agreed to do pursuant to the March 26, 1999 settlement agreement.
12.
To date, Certified Capital Corporation has not returned to Onstott what On-stott gave in settlement, namely On-stott’s ownership interest in Bobeo, Inc. nor has Certified Capital Corporation compensated Onstott with any consideration for Onstott’s ownership interest in Bobeo, Inc. At the time of the settlement, the value of Onstott’s ownership interest was approximately $460,000.00. As a result, Onstott had been impoverished and Certified Capital Corporation has been unjustly enriched since Certified Capital Corporation has |7retained Onstott’s ownership interest in Bobeo, Inc. without giving Onstott anything in consideration.
12. [sic]
Because Onstott is entitled to be restored to the economic position he was in prior to entering into the settlement agreement which was vacated by the First Circuit Court of Appeal, and because Certified Capital Corporation has not returned to Onstott his ownership interest in Bobeo, Inc. nor compensated Onstott with any consideration, Onstott is now entitled to be compensated for the value of his ownership interest in Bobeo, Inc., which value is to be determined as of March 26, 1999, the date Onstott relinquished his interest to Certified Capital Corporation.

In light of the allegations and prayer in Onstott’s petition, we disagree with the characterization of his cause of action as delictual. Plaintiff clearly seeks relief under quasi-contractual theories of law. The statements quoted above allege the existence of a settlement agreement — a compromise — between the parties. A compromise is a bilateral contract. LSA-C.C. art. 3071; Collins v. Mike’s Trucking Co., Inc., 05-0238 (La.App. 1 Cir. 5/5/06), 934 So.2d 827, 832. The compromise instrument is governed by the same general rules of construction that are applicable to contracts. Ortego v. State, Department of Transportation and Development, 96-1322 (La.2/25/97), 689 So.2d 1358, 1363. Louisiana Civil Code article 2033 provides:

An absolutely null contract, or a relatively null contract that has been declared null by the court, is deemed never to have existed. The parties must be restored to the situation that existed before the contract was made. If it is impossible or impracticable to make restoration in kind, it may be made through an award of damages. (Emphasis supplied.)

As noted in comment (b) of the 1984 Revision Comments to LSA-C.C. art. 2033: “The restoration of the parties to the situation that existed before the contract that is called for by this Article includes restoration of fruits and revenues, as any unjust enrichment of the parties must be prevented.”

IsSimilarly, LSA-C.C. art. 2018 provides:

Upon dissolution of a contract, the parties shall be restored to the situation that existed before the contract was made. If restoration in kind is impossible or impracticable, the court may award damages.
If partial performance has been rendered and that performance is of value to the party seeking to dissolve the contract, the dissolution does not preclude recovery for that performance, whether in contract or quasi-contract. (Emphasis supplied.)

Articles 2033 and 2018 recognize the right of a party to a null or dissolved contract to be restored to the situation that existed prior to entering into the contract. To the extent restoration is impossible or impracticable, the court may award damages to prevent one of the parties from being unjustly enriched.

Articles 2033 and 2018 are consistent with LSA-C.C. arts. 2298-2305, which establish a cause of action against one who has been enriched without cause at the expense of another. Louisiana Civil Code article 2298 provides in pertinent part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

A person who has received a payment for a thing not owed to him is bound to restore it to the person from whom he received it. LSA-C.C. art. 2299. A thing is not owed when it is paid or delivered for the discharge of an obligation that does not exist. LSA-C.C. arts. 2300.

CCC and Cunard argue that Onstott cannot state a claim for unjust enrichment because he has another legal remedy available to him — a | ¡¡delictual action for conversion. We already have determined that Onstott’s cause of action is grounded in quasi-contract, not in tort. Moreover, more than one cause of action can be urged in the same petition, and these causes may be inconsistent or mutually exclusive. LSA-C.C.P. art. 892. We recognize that the remedy provided for in LSA-C.C. art. 2298, by its own terms, “is subsidiary and shall not be available if the law provides another remedy.” But the subsidiary nature of Article 2298 does not prohibit a plaintiff from asserting unjust enrichment as an alternative, albeit “mutually exclusive,” form of relief.

Onstott specifically alleged that he and CCC entered into a contract in the form of a settlement agreement. As part of the settlement agreement, Onstott voluntarily transferred his ownership interest in Bob-eo to CCC by surrendering his shares of Bobeo stock. The court of appeal effectively vacated the settlement. CCC has failed to return to Onstott that which On-stott gave in consideration of the settlement agreement. Accepting the alleged facts as true, Onstott has “been impoverished and Certified Capital Corporation has been unjustly enriched since Certified Capital Corporation has retained Onstott’s ownership interest in Bobeo, Inc. without giving Onstott anything in consideration.” Onstott prayed for damages, as well as all general and equitable relief. Onstott’s petition, alleging a quasi-contractual cause of action, is subject to a liberative prescription of ten years and was timely filed. LSA-C.C. art. 3499.

Conclusion

The trial court’s judgment is reversed. Onstott’s petition states a cause of action under quasi-contractual theories of law and was timely filed under LSA-C.C. art. 3499. This matter is remanded to district court for |infurther proceedings consistent with this court’s judgment. Costs of this appeal are to be paid by defendants-appel-lees, Certified Capital Corporation and Robert S. Cunard, Jr.

REVERSED AND REMANDED.

      . Certified Capital Corporation v. Bobeo, Inc., Henry G. Kern, and John G. Onstott, docket number 449,534, Nineteenth Judicial District Court, Parish of East Baton Rouge.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Edna J. HUGGINS v. GERRY LANE ENTERPRISES, INC. and ABC Insurance Company.
    No. 2005 CA 2665.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Writ Granted Feb. 2, 2007.

      Kirk A. Williams, Vincent J. DeSalvo, Baton Rouge, for Plaintiff/Appellant Edna J. Huggins.
    Thomas D. Fazio, McCollister, McCleary & Fazio, Baton Rouge, for Defendants/Third-Party Plaintiffs/Appellants Gerry Lane Enterprises, Inc. and Louisiana Insurance Guaranty Assoc.
    W. Shelby McKenzie, C. Michael Hart, Taylor, Porter, Brooks & Phillips L.L.P., Baton Rouge, for Third-Party Defendant/Appellee RLI Insurance Company.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

LEdna J. Huggins, Gerry Lane Enterprises, Inc. (Gerry Lane), and the Louisiana Insurance Guaranty Association (LIGA) appeal a judgment that granted a motion for summary judgment in favor of RLI Insurance Company (RLI) and dismissed their claims against it for injuries suffered by Huggins in an accident on the Gerry Lane premises, on the grounds that coverage under the RLI commercial umbrella liability policy did not drop down to replace underlying scheduled liability coverage formerly provided by Reliance Insurance Company (Reliance), which is now insolvent. For the following reasons, we affirm the judgment.

BACKGROUND

Huggins filed suit against Gerry Lane and its unnamed insurer for injuries she sustained in a fall on the premises of a Gerry Lane auto dealership in September 1999. At the time of her accident, Gerry Lane had coverage for such an occurrence under a $1 million liability insurance policy issued to it by Reliance; it also had a $10 million commercial umbrella liability policy from RLI to provide excess coverage. In October 2001, Reliance was declared insolvent, and an answer to Huggins’ petition was filed by Gerry Lane and LIGA. Gerry Lane and LIGA then filed a third-party demand against RLI. They alleged the RLI coverage dropped down to replace coverage for Huggins’ claim that would have been provided by Reliance, and to provide primary coverage ahead of the coverage that was statutorily required from LIGA for the insolvent insurer. Huggins then amended her petition to add RLI and LIGA as named defendants.

RLI answered the petition and filed a motion for summary judgment on the main and third-party demands, claiming coverage under its umbrella policy did not drop down and replace the underlying coverage of the Reliance policy. In the alternative, RLI asked for a summary judgment declaring that the only circumstance under which its policy would cover this occurrence would be if Huggins’ damages exceeded $1 million, |3in which case RLI would be liable only for the excess over that amount. Gerry Lane and LIGA opposed the motion and filed a cross-motion for summary judgment on these issues.

A certified copy of the RLI policy was submitted in connection with these motions. Under “Limits of Liability,” the policy stated:

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

Item 5 of the Declarations referred to an endorsement entitled “Schedule of Underlying Insurance,” which listed a $1 million liability policy issued by Reliance.

Another section of the RLI policy, “Financial Impairment,” addressed situations in which recovery from the underlying insurance provider is diminished or unavailable. That provision stated:

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

At the hearing on the motion, Huggins stipulated that her damages did not exceed $1 million. Based on the policy provisions, the court granted RLI’s motion, dismissing all claims against it, and denied the cross-motion filed by Gerry Lane and LIGA. Huggins, Gerry Lane, and LIGA have appealed.

4APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E); Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. When the issue, before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment must prove some provision applies to preclude coverage. See Gaylord Chem. Corp. v. ProPump, Inc., 98-2367 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 352.

Insurance Policy Interpretation

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. LSA-C.C. art.2045; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763. If the language in an insurance contract is clear and explicit, no further interpretation may be made in | ^search of the parties’ intent. LSA-C.C. art. 2046 The court should not strain to find ambiguity where none exists. Strickland v. State Farm Ins. Cos., 607 So.2d 769, 772 (La.App. 1st Cir.1992).

However, if there is ambiguity in an insurance policy, it must be resolved by construing the policy as a whole; one policy provision is not to be construed separately at the expense of disregarding other policy provisions. See LSA-C.C. art. 2050; Louisiana Ins. Guar. Ass’n, 630 So.2d at 763. 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). If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of coverage for the insured. See LSA-C.C. art. 2056; Louisiana Ins. Guar. Ass’n, 630 So.2d at 764. The determination of whether a contract is clear or ambiguous is a question of law. McMath Const. Co., Inc. v. Dupuy, 03-1413 (La.App. 1st Cir.il/17/04), 897 So.2d 677, 681, writ denied, 04-3085 (La.2/18/05), 896 So.2d 40.

Drop Down Coverage

Drop down coverage occurs when an insurance carrier of a higher level of coverage is obligated to provide the coverage that the carrier of the immediately underlying level of coverage has agreed to provide. Louisiana Ins. Guar. Ass’n, 630 So.2d at 760 n. 1. There are several Louisiana Supreme Court cases examining whether coverage under an umbrella policy drops down to take the place of coverage that would have been provided by an insolvent primary insurer. Ultimately, the resolution of this issue depends on the policy language in the excess policy. Id. at 762.

In two cases decided the same day, Kelly v. Weil, 563 So.2d 221 (La.1990), and Robichaux v. Randolph, 563 So.2d 226 (La. 1990), the supreme court examined situations in which the relevant provisions of the umbrella policies were virtually identical. The court used the Kelly case to summarize the law on this issue. In doing so, it identified three basic types of excess policies, depending on the policy language. The first category consists of “policies that distinctly facilitate dropping down” if-the | fiunderlying insurer is insolvent. Such policies state that the limit of the excess coverage is dependent on the “collectibility” or “recoverability” of the primary limits. Because the insolvency of the underlying carrier prevents the primary limits from being collectible or recoverable, coverage does drop down and is provided by the umbrella excess policy. See Kelly, 563 So.2d at 222. A second category consists of policies in which the language is properly understood not to facilitate a drop down of the excess insurance. In these policies, excess coverage is not dependent on recov-erability or collectibility of the underlying scheduled policy amounts, but on whether the risk is “covered” under an underlying policy. The court pointed out that the term “covered” does not convey the same meaning as “collectible,” but rather “refers to policies owned by the insured that include the risk in question regardless of those policies’ collectibility.” Id. at 225. Therefore, policies in this category clearly do not provide for a drop down if there is another policy providing coverage for the occurrence. Id. at 222. The third category consists of policies in which the insured’s “retained limit” is defined as the greater of the “applicable limits of the scheduled underlying policies, and the applicable limits of any other insurance collectible by the insured.” Id. The umbrella policy at issue in the Kelly case used such language. The court reviewed other cases interpreting such provisions, compared this provision to other sections of the umbrella policy, and concluded that the words “collectible by the insured” in the second clause applied only to “other insurance” and not to “scheduled underlying policies.” Id. at 223. Therefore, under the policy at issue in Kelly, coverage provided by the umbrella policy would not drop down upon the event of the insolvency of the underlying scheduled insurer, and the only damages that could be imposed on the umbrella insurer were those in excess of the stated policy limits of the scheduled underlying policy. Id. at 226.

The Robichaux case addressed the same issue and reached the same conclusion concerning another umbrella policy falling within the third category of cases described in Kelly. Robichaux, 563 So.2d at 228. Regarding the policy at issue in Ro-bichaux, the supreme court took particular notice of an additional provision providing specifically for the event of insolvency of the underlying insurer. That provision stated that in the event there was no recovery available to the insured as a result of the bankruptcy or |7insolvency of the underlying insurer, the coverage under the umbrella policy would apply only in excess of the applicable limit of liability specified in the underlying policy or policies. The court commented that this provision made the result in Robichaux “even more compelling than in Kelly,” because:

It is evident that the parties to this insurance policy intended and, indeed specifically provided, that [the umbrella coverage] would not drop down in the event of the underlying insurer’s insolvency.

Id. at 227-28.

The supreme court revisited the issue in Louisiana Ins. Guar. Ass’n, 630 So.2d 759 (the LIGA case). The court began its analysis by trying to fit the excess policy in that case into the appropriate Kelly category, using the limits of liability section, since these provisions define the scope of coverage. Id. at 762. However, the language of that section did not fit neatly into any of the Kelly categories, so the court examined the policy using the basic precepts of contractual interpretation, as set out in the Louisiana Civil Code and applicable jurisprudence. Id. at 762-63. The policy clearly stated in many of its provisions that it provided “excess” coverage only, and thus fell within the general rule that policies clearly stating they are excess are not required to provide drop down coverage. Id. at 769. The exception to that rule exists only when the policy language creates a “genuine ambiguity” as to the scope of coverage, such as clauses indicating coverage will be provided over underlying “collectible” or “recoverable” insurance, as in the first category of Kelly cases. Id. at 770. The court indicated its conclusions were buttressed by jurisprudence holding that:

[Ajbsent a specific requirement or undertaking in the excess policy to step down in the event of the primary insurer’s insolvency, an excess insurer’s coverage should not be construed as stepping down.

Id. at 772.

The supreme court ultimately found in the LIGA case that although the disposi-tive language of the policy at issue was not the plainest, the policy unambiguously precluded drop down coverage. Id. at 772. It reached this conclusion despite “the conspicuous absence in the policy of any provision addressing the problem created by the primary insurer’s ... insolvency.” Id. at 764. The court noted that until recently, “the problem created by an insolvent primary insurer was rarely addressed in lathe policy,” in which case the argument could be made that the failure to include such a provision created an ambiguity that could serve as the basis for finding drop down coverage. Id. at 768. In a footnote, the court observed that current policies now often expressly include anti drop down provisions declaring that excess coverage will not be triggered because of the primary insurer’s insolvency, and as a result, one commentator has suggested that “the issue may become moot.” Id. at 768 n. 18. The court also noted that some courts have described policies containing anti drop down provisions like those in the Robichaux case as a fourth category, in addition to the three Kelly categories. Id. at 762 n. 4.

ANALYSIS

The argument made by the appellants in this case is that, in addition to the precepts outlined in the above-described trio of supreme court cases, this court should be guided by a decision from the second circuit, Freeman v. Philan, 37,684, 37,685 & 37,687 (La.App. 2nd Cir.10/9/03), 859 So.2d 821, writs denied, 03-3098, OS-3213 & 03-3385 (La.2/6/04), 865 So.2d 723, 728 & 735, which is directly on point. There the court examined a virtually identical RLI policy in a situation involving the insolvency of the underlying scheduled insurer, Reliance, and concluded the RLI policy provided coverage for the plaintiffs damages. The Freeman court stated:

Under the language of the RLI policy, RLI would be responsible for the loss in excess of the retained limit. The retained limit ... is zero. Therefore, under ... the limits of liability section for the RLI policy, RLI would be responsible for the ultimate net loss in excess of zero, which would cover the claim of [the plaintiff].

Id. at 824. The court also said that in order to avoid drop down coverage, “RLI could have listed the retained limit as the amount of the underlying insurance carrier[,] as did the insurer in Kelly ....” Id. Referring to the Kelly categories, the court said:

In the third category, the supreme court [in Kelly ] held that whether the excess policy drops down depends upon the definition of “retained limit” and whether or not the “retained limit” creates any ambiguity in the contract of insurance. Because the retained limit in this case is clearly “0,” it is clear that the RLI policy is not a true excess carrier, but that it has posited itself as a primary obligor on a claim against Reliance,

laId. Looking at the “Limits of Liability” provisions of the RLI policy, the court found that subpart (A)(1) was clearly applicable, because the accident was covered by the underlying scheduled insurance policy issued by Reliance, that subpart (A)(2) was inapplicable, and that subpart (A)(3) was “directly applicable because RLI’s liability begins when its retained limit is exhausted. Here that limit is $0, so coverage begins at dollar one.” Id. at 825. The court found that the policy language was “not sufficiently limited to create mutually exclusive categories of coverage,” and further explained that:

[T]he Financial Impairment exclusion provision of the RLI policy does not apply in this case because liability attaches at the retained limit of zero and is not contingent on the insolvency of the underlying carrier.

Id. Therefore, the court concluded, the policy was not a true excess policy, and in fact, provided primary coverage for the plaintiffs damages. Id.

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

As we see it, the initial flaw in the Freeman case is that the court ignored a basic tenet of grammatical construction, and as a result, reached a conclusion contrary to the clear wording of the RLI policy. The three subparts of the “Limits of Liability” section of the policy are separated by the word “or.” The word “or” is defined as “[a] disjunctive particle used to express an alternative or to give a choice of one among two or more lathings.” Black’s Law Dictionary 987 (5th ed.1979) (emphasis added). This definition accords with a basic principle of Louisiana law regarding the interpretation of statutes found in LSA-R.S. 1:9, which provides:

Unless it is otherwise clearly indicated by the context, whenever the term “or” is used in the Revised Statutes, it is used in the disjunctive and does not mean “and/or.”

See Moss v. State, 05-1963 (La.4/4/06), 925 So.2d 1185, 1197. Although the matter before us involves the interpretation of a contract, rather than a statute, we see no reason to abandon the correct grammatical construction of this common word on that account. In fact, the supreme court applied this rule in its interpretation of an endorsement to an insurance policy, stating:

We find that interpreting the endorsement in [the manner adopted by the lower court] misinterprets the word “or” between the two provisions as though “or” meant “and.” The word “or” is a clear, unambiguous term and its use between the two provisions made alternative events. The two provisions are separated by the disjunctive “or,” not the conjoining “and.”

Blackburn v. National Union Fire Ins. Co. of Pittsburgh, 00-2668 (La.4/3/01), 784 So.2d 637, 642. The court stated that the endorsement was not ambiguous because of the use of the disjunctive “or” in the policy, and that by this use, the endorsement clearly created two distinct situations under which liability coverage would be reduced. Id. at 643.

Giving the word “or” its appropriate meaning in examining the RLI policy in this case, we note that the “Limits of Liability” section describes three distinct factual situations under which coverage would be provided and the limits of coverage under each of these situations, as follows: (1) “for occurrences covered by scheduled underlying insurance,” RLI would pay the excess over the applicable limits of the scheduled policy, and any unscheduled underlying insurance that also provided coverage; or (2) “for occurrences covered by unscheduled underlying insurance and by this policy only,” i.e., for occurrences not covered by scheduled underlying insurance, RLI would pay the excess over the greater of the retained limit or the unscheduled underlying insurance; or (3) “for occurrences covered by this policy only,” i.e., not covered by any scheduled or unscheduled underlying insurance, RLI would pay the excess over the retained limit, which is shown on the Declarations page as $0.

In Contrary to the Freeman court’s finding that the RLI policy language is “not sufficiently limited to create mutually exclusive categories of coverage,” we find the policy is very clear and does describe alternative, mutually exclusive, factual situations. In this case, the first provision applies, because this occurrence was “covered by scheduled underlying insurance.” Neither of the two alternative subparts is applicable. There was no unscheduled underlying insurance, such as special events coverage, that provided coverage for this occurrence, so the second subpart does not apply. Finally, this was not an occurrence “covered by this policy only,” because the occurrence was “covered by” an underlying scheduled policy; therefore, the third subpart does not apply, and RLI does not have to pay the excess over the retained limit of $0.

The Freeman court interpreted the RLI policy as providing primary coverage under subpart 3 of its policy. That interpretation ignored the language of that sub-part — “for occurrences covered by this policy only” — which by its use of the word “only” to modify “this policy,” unambiguously provides that the circumstance under which RLI’s policy would pay the excess over the retained limit of $0 would be if there were no other policies covering the occurrence. This might happen if there was a scheduled underlying policy that did not cover the particular occurrence or claim due to some policy exclusion, and no other insurance was available to cover the loss. In such a case, the occurrence would be covered by the RLI policy only, and subpart 3 would apply.

Appellants contend that when the underlying scheduled insurer became insolvent, the RLI policy became the “only” policy covering the occurrence, and for this reason also, subpart 3 was applicable. However, this argument would completely eliminate the distinction so carefully drawn by the supreme court in Kelly between a policy stating that excess coverage is dependent on “collectible” or “recoverable” underlying coverage, and a policy like RLI’s, which does not use that language, but instead is dependent on “coverage” by the underlying policy.

Applying the Kelly analysis, the RLI policy fits into the category of cases in which excess coverage is not based on “collectibility” or “recovery” of underlying insurance, either scheduled or unscheduled. There are three alternative situations described in the |12RLI policy, and the excess coverage is clearly stated for each of those situations. Once it is found that one of those situations exists, then the limits stated as pertaining to that situation are the applicable limits, and the other situations are not considered. The situation applicable to this case is the one in which “coverage” for this type of risk or occurrence is provided by scheduled underlying insurance, and the RLI coverage is for the excess of the liability limits of that scheduled insurance. Therefore, the RLI policy language is not ambiguous and is properly understood not to facilitate a drop down of the excess insurance.

By mischaracterizing the RLI policy as “not a true excess policy,” but one providing primary coverage for the plaintiffs damages, the Freeman decision evaded the supreme court’s recognition in the Robi-chaux and LIGA cases of the efficacy of anti drop down provisions in excess policies. In both of those cases, the supreme court noted that such provisions provide a clear reflection of the intent of the parties that the policy was not intended to drop down and provide coverage when scheduled or unscheduled insurance covered the occurrence, but became uncollectible due to insolvency of the underlying insurance provider. The financial impairment provision of the RLI policy describes in easily understandable language the precise factual situation presented in this case, and makes it very clear that “[u]nder no circumstances shall [RLI] be required to drop down and replace the limits of liability of a financially impaired insurer.” Read in pari materia with the other provisions of the RLI policy, this section expresses the intent of the parties that the RLI policy is a “true excess policy” and was not intended to drop down to provide coverage for an underlying insolvent insurer.

CONCLUSION

For the foregoing reasons, the judgment dismissing all claims against RLI Insurance Company is affirmed. All costs of this appeal, in the amount of $507.64, are assessed to Edna J. Huggins, Gerry Lane Enterprises, Inc., and the Louisiana Insurance Guaranty Association.

AFFIRMED.

      . All parties agree that Reliance was the underlying scheduled liability insurer for Gerry Lane on the date of Huggins' accident, that the Reliance policy limits were $1 million, and that Reliance was declared insolvent in the Commonwealth of Pennsylvania on October 3, 2001. Its insolvency triggered LIGA’s statutory responsibility under LSA-R.S. 22:1382(A)(l)(a) for claims made by or against Reliance's insureds.

      . For ease in reading the quoted portions of the policy, we have omitted the bold typeface used for words that are defined terms in the policy.

      . Of course, while such jurisprudence may be instructive and even persuasive, this court is not bound by the decision of another appellate court. Orillion v. Allstate Ins. Co., 9-1131 (La.App. 1st Cir.2/14/97), 690 So.2d 846, 849, writ denied, 97-0664 (La.4/25/97), 692 So.2d 1092; Graves v. Businelle Towing Corp., 95-1999 (La.App. 1st Cir.4/30/96), 673 So.2d 311, 315.

      . For a case from this court with a similar result under similar factual circumstances, but different policy language, see Bonin v. Coumoyer-Buick-Pontiac-GMC, Inc., 05-0171 (La.App. 1st Cir.12/22/05), 922 So.2d 608,
        writ denied, 06-0654 (La.5/26/06), 930 So.2d 29.


author: McClendon, j.

text:
    Matthew D. GRAVES v. AUTOMATED COMMERCIAL FUELING CORPORATION.
    No. 2005 CA 2561.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Marvin E. Owen, Baton Rouge, Counsel for Plaintiff/Appellee Matthew D. Graves.

      David L. Guerry, Jennifer J. Vosburg, Jamie Hurst Watts, Baton Rouge, Counsel for DefendanVAppellant Automated Commercial Fueling Corporation.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

|2The defendant, Automated Commercial Fueling Corporation, d/b/a Fuelman of Baton Rouge (Fuelman), appeals the trial court’s judgment in favor of the plaintiff, Matthew D. Graves, awarding him commissions, penalty wages, and attorney fees. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Fuelman is in the business of providing commercial customers with fuel access accounts and related vehicle tracking and information services. This information is received through access cards that Fuel-man provides to commercial vehicle fleets. Fuelman offered Graves a position as a sales representative on July 3, 2000. Graves accepted the offer, signing the letter of employment on July 6, 2000. In addition to a base salary, Graves was paid on a commission basis, which was described in his letter of employment as: 20% of the gross profit for all new accounts; commission period for those accounts will be for sixteen (16) weeks. Graves signed a Sales Representative Employment Agreement and was also provided a Fuelman Employee Handbook.

After nearly a year, Graves was terminated by Fuelman on June 29, 2001. At the time of his termination, new accounts opened by Graves were still within the 16-week commission period. Fuelman took the position that because Graves was no longer servicing the accounts, he was not entitled to the commissions. Subsequently, Graves demanded payment of the unpaid commissions, Fuelman failed to remit payment, and Graves filed suit seeking the unpaid commissions, as well as penalty wages and attorney fees.

|sOn July 1, 2005, a bench trial was held on the merits. The parties stipulated that the amount of commissions at issue was $4,813.79. In written reasons issued on August 16, 2005, the trial court concluded that the commissions were earned and awarded Graves $4,813.79 for the claimed commissions, penalty wages in the amount of $15,399.90, and attorney fees in the amount of $8,750.00, together with legal interest and costs. Judgment was signed on August 23, 2005. Thereafter, Fuelman filed a motion for new trial, which was denied by the trial court. Fuelman now appeals, asserting the trial court erred in finding that the unpaid commissions were earned by Graves, and in awarding penalty wages. Graves has answered the appeal seeking additional attorney fees for the appeal.

STANDARD OF REVIEW

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). For an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given great deference by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).4 Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Cleary v. LEC Unwired, L.L.C., 00-2532, pp. 3-4 (La.App. 1 Cir. 12/28/01), 804 So.2d 916, 919.

DISCUSSION

At the beginning of the trial in this matter, the parties agreed to several stipulations of fact. Among the stipulations, it was agreed that Fuelman never provided Graves with a written statement of any sort indicating that commissions during the 16-week commission period applied only to sales representatives actively employed by Fuelman or that the commissions would be forfeited if the employee left employment with Fuelman. The parties further stipulated that there were no written policies of Fuelman during Graves’ employment that related to future commissions during the 16-week period after termination; that there were no written documents, policy statement, employee handbook, or other documents of Fuelman during Graves’ employment that indicated any requirement that sales representatives had to continue to work with customers to maintain or service an account after an account sale had been made; and that there was no written documentation by Fuelman to support a claim that Graves knew that commissions would not be paid to him after termination.

In this appeal, Fuelman initially asserts that the trial court erred in interpreting this Court’s decision in Cleary to require a written commission policy. Fuelman is incorrect. The trial court in this matter simply recognized that in the Cleary case, a written policy as to commissions existed, that Mr. Cleary was told about the policy, and that the policy was available for Mr. Cleary’s review. Thus, according to the commission Impolicy in place, Mr. Cleary was not entitled to commissions after his separation from employment. The Cleary case is clearly distinguishable from the present case on its facts.

Fuelman also asserts, however, that the commissions at issue were never earned. Graves testified at trial, as did two former sales representatives of Fuelman, Kelley Lambert and Penny Lavespere. Graves testified that, as a sales representative, it was his job to find new customers for Fuelman, get their credit approval, deliver their fuel access cards, and give them basic instructions on how to use them. At that point, they were considered new customer accounts. Graves further testified that once the account was installed and up and running, sales representatives were given thirty days to choose when to move the account into what was called the “commission bucket” to begin computing the 16-week commission period. Graves testified that he was not required to follow up with his customers once the account was installed, but that he had the discretion to follow up within the first thirty days of the account to handle any problems so the customer would use the account to its maximum potential and pump more fuel, which would maximize his commission. Graves testified that it was his understanding that once the account was installed, he earned his commission on that account.

Lambert and Lavespere also testified that once a new customer was installed and began pumping, no further work was required of them to begin drawing commissions. They stated that they made calls on their customers after the accounts were established, not as a requirement of their job, but to maximize their commissions. Further, all three witnesses testified that the customer service department of Fuelman would follow the account, because the sales representatives were told to go out and make new sales. Lambert | (¡and Lavespere also testified that they were hot told about, nor did they receive, any documentation regarding commissions upon separation from employment.

Defendant’s witnesses at trial were Lauri Decell, the former comptroller of Fuel-man, and Troy Sullivan, Fuelman’s former president. The trial court found that De-cell was not a credible witness. With regard to earning a commission, Sullivan testified that commissions were based on an employee’s continued service of an account for the 16-week period. He stated that the sales representative was expected and required to call on that account. Sullivan acknowledged, however, that a sales representative was entitled to his commission when the account was moved into the commission bucket. As to Fuelman’s position that only active employees were entitled to commissions, Sullivan acknowledged that there was no written policy but stated he believed that there was “a clear understanding that if you were no longer working, you were no longer earning your commissions.” He stated that it had always been the position of Fuelman to not pay commissions after separation from employment and that the policy was well known.

We have thoroughly reviewed the entire record in this matter and find that a reasonable basis exists for the trial court’s finding that Graves was entitled to the earned commissions at the time of his termination. The testimony as to whether a commission plan existed and was known by the employees of Fuelman was conflicting. The trial court’s findings were based in large part on credibility determinations. The trial court obviously found Graves and his witnesses more credible than Fuel-man’s. Further, Graves presented evidence that he was never told of any policy by Fuelman regarding forfeiture of commissions upon separation from employment, and 17Fuelman could produce no evidence that Graves was actually told of any policy. With regard to when commissions were earned, the evidence shows that a sales representative’s efforts were made before the new customer began to pump fuel. The employee completed the work required of him to earn a commission when the account was installed and pumping began. It was at this point that he could decide when to move the account into the commission bucket. Furthermore, once in the commission bucket, the customer service department would handle the account. After considering the evidence in its entirety, we find no manifest error in the trial court’s conclusion that the commissions at issue were earned at the time of Graves’ termination.

Fuelman also assigns as error the trial court’s award of penalty wages. Louisiana Revised Statute 23:631 imposes a duty on the employer, upon discharge or resignation of an employee, to pay the employee the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge. LSA-R.S. 23:631. The penalties for noncomplianee with this statute are found in LSA-R.S. 23:632, which provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a | ¡¡well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Louisiana Revised Statute 23:632 is penal in nature and therefore must be strictly construed. This statute is designed to compel prompt payment of wages upon an employee’s discharge or resignation. Pokey v. Five L Investments, Inc., 96-0018, p. 5 (La.App. 1 Cir. 9/27/96), 681 So.2d 489, 492. To recover penalty wages, the claimant must show that (1) wages were due and owing; (2) demand for payment was made where the employee was customarily paid; and (3) the employer did not pay upon demand. Miller v. Heidi’s Inc. of Baton Rouge, 01-0627, p. 4 (La.App. 1 Cir. 5/10/02), 818 So.2d 959, 963. Equitable defenses are available, and penalty wages are not to be absolutely imposed. Generally, when there is a good faith question of whether the employer actually owes past due wages, resistance to payment will not trigger penalty wages. However, when the employer is arbitrary, sets out procedural pitfalls for the employee, or is merely negligent in failing to pay past due wages, penalty wages will be assessed. Pace v. Parker Drilling Co. and Subsidiaries, 382 So.2d 988, 990-91 (La.App. 1 Cir.), writ denied, 383 So.2d 1016 (La.1980). Further, when the failure to pay wages due according to the statute is attributable to neglect or improper pay procedure, the equitable defense is not available. McCaskill v. Deviney Construction Company, 323 So.2d 178, 181 (La.App. 3 Cir.1975), writ denied, 325 So.2d 615 (La.1976). A trial court’s findings of fact with regard to whether the plaintiff is entitled to penalty wages cannot be reversed on appeal in the absence of manifest error. Pokey, 96-0018 at p. 5, 681 So.2d at 492.

| aFueIman contends that the trial court erred in awarding penalty wages to Graves without making a determination that Fuelman did not have a good faith question as to whether the commissions were due. While the trial court made no specific finding as to a lack of good faith, it clearly determined that the commissions were earned and that no written policy existed regarding commissions after termination. Thus, in awarding penalty wages, the trial court must have determined that Fuelman’s failure to pay was attributable to an improper payment procedure; therefore, Fuelman had no equitable defense. After a thorough review of the record, we find no manifest error in the trial court’s award of penalty wages.

Finally, Graves seeks an increase in the statutorily-authorized attorney fees for work performed by his counsel on this appeal. An increase in attorney fees is usually awarded when a party appeals, obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel. Cade v. Safety Council of Louisiana Capital Area, 03-0430, p. 7 (La.App. 1 Cir. 12/31/03), 868 So.2d 744, 748; Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736, 740 (La.App. 1 Cir.), writ denied, 553 So.2d 466 (La.1989). Based on these factors, we award Graves the additional sum of $1,800.00 in attorney fees for the appeal.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed. Fuelman is ordered to pay Graves additional attorney fees in the amount of $1,800.00 for this appeal. Costs of the appeal are also assessed against Fuelman.

AFFIRMED AND ORDER RENDERED.

GUIDRY, J., concurs.

      . When commission sales are at issue, the inquiry focuses on what work associated with the sale remained at the time of termination; where only collection of the fee is outstanding, and collection is beyond the employee's control, the commission is earned. Patterson v. Alexander & Hamilton, Inc., 02-1230 (La.App. 1 Cir. 4/2/03), 844 So.2d 412.

      . Fuelman did not appeal the award of attorney fees by the trial court.

      . A 2001 amendment changed the three-day period to fifteen days.

      . We note that following the termination of Graves, Fuelman implemented a written policy regarding earned commissions following separation from employment.


author: WHIPPLE, J.

text:
    Pam Rabalais Wife of/and Jerry M. RABALAIS, Sr. v. ST. TAMMANY PARISH SCHOOL BOARD and Littleton Risk Services, Inc. Pam Rabalais Wife of/and Jerry M. Rabalais, Sr. v. Jeremy Williamson, XYZ Insurance Company, Terry Branch, National Automotive Insurance Company and Progressive Security Insurance Company.
    No. 2006 CA 0045, 2006 CA 0046.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Writ Denied Jan. 26, 2007.

      Tom W. Thornhill, Chadwick W. Coll-ings, Slidell, Harry P. Pastuszek, Jr., Patrice W. Oppenheim, Mandeville, Counsel for Plaintiffs/Appellants, Pam Rabalais, wife of/and Jerry M. Rabalais, Sr. Counsel for Defendant/Appellee, St. Tammany Parish School Board.
    Renee Clark McGinty, John E. Faherty, Jr., Metairie, Counsel for Defendant/Ap-pellee, Progressive Security Insurance Co.
    R. Vaughn Cimini, Gary T. Breedlove, Metairie, Counsel for Defendants/Appel-lees, Terry Branch, Jeremy Williamson, and National Automotive Insurance Co.
    Gus A. Fritchie, III, Alan D. Dabdoub, New Orleans, Counsel for Defendants/Ap-pellees, St. Tammany Parish School Board and Coregis Insurance Co.
    Keith M. Borne, Lafayette, Counsel for Defendant/Appellee, Safeway Insurance Co. of Louisiana.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

| ^Plaintiff, Pam Rabalais Gordon, appeals from an amended judgment of the trial court granting a motion for directed verdict dismissing plaintiffs tort claims against defendants, the St. Tammany Parish School Board (“the School Board”) and its insurer, Coregis Insurance Company (“Coregis”); denying plaintiffs motion for mistrial as to her tort claim against defendants; and granting plaintiffs motion for mistrial as to her claim against Coregis regarding medical payments coverage under its policy at issue. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from an accident' that occurred when plaintiff was working as a volunteer with the Whispering Forest Elementary School Parent Teacher Association (“the PTA”) on the morning of February 27, 1997. On the evening before, plaintiff received a phone call from a “room-mom” requesting that she deliver the prizes for the school Fun Fest, a PTA fund-raising event, at school the following morning. While working in the rain to unload prizes from her husband’s truck, plaintiff slipped and hit her head on the curb. As a result of the accident, plaintiff required immediate and ongoing medical treatment for her injuries and incurred certain medical expenses. Although plaintiff had worked as a substitute teacher for the school prior to the accident, plaintiff was not working as a substitute teacher on the day of the accident at issue herein.

Plaintiff filed the instant tort suit against the School Board and its insurer, Coregis, alleging that the School Board was negligent in: failing to properly maintain school property; failing to properly supervise the school ^activity; failing to provide adequate support for persons, such as plaintiff, moving material in to the school; failing to warn plaintiff of hidden defects on school property; and in misrepresenting to plaintiff that her volunteer activities were covered under the school’s umbrella policy.

Trial of this matter was held before a jury on September 27, 2004 through October 1, 2004. At the conclusion of plaintiffs case, the defendants moved for a directed verdict on the issue of liability.

On October 1, 2004, outside of the presence of the jury, the trial court heard argument on the motion for directed verdict. At the conclusion of argument, the trial court, relying on first circuit jurisprudence, determined that because issues of liability of a political subdivision are tried to the judge, and not the jury, the trial court would rule on any claims of liability alleged against the School Board. The trial court then rendered oral reasons, finding that plaintiff failed to prove that any duty was owed to plaintiff by the School Board or that any duty was breached. Accordingly, the trial court granted defendants’ motion for directed verdict on the issue of liability.

The trial court then allowed plaintiff to re-open her case as to the outstanding issues for the jury specific to her remaining claims against Coregis, i.e., whether plaintiff was afforded medical payment coverage under the Coregis policy, the amount of that coverage, and the amount of | ¡^penalties, if any owed under the policy. In response to the trial court’s ruling, plaintiff moved for a mistrial. The trial court granted plaintiffs motion for mistrial as to these remaining issues, denied the motion for mistrial as to its challenge of the court’s grant of directed verdict on liability, and released the jury from service.

On February 28, 2005, the trial court issued an amended judgment granting defendants’ motion for directed verdict; denying plaintiffs motion for mistrial regarding the trial court’s handling of her liability claims against defendants; and granting plaintiffs motion for mistrial as to her claims against Coregis regarding medical payment coverage under the Core-gis policy.

Plaintiff appeals, assigning the following as error:

1. The trial court committed an error of law in granting the Motion for Directed Verdict as to the third-party liability claims against the School Board and Coregis.
2. The trial court also committed an error of law in granting a “limited mistrial” as to the plaintiffs first-party claims against Coregis.
3. The trial court’s denial of a jury trial violated plaintiffs constitutional rights of due process and equal protection.

I «ASSIGNMENT OF ERROR NUMBER ONE

(Dismissal of Liability Claims)

Plaintiff first claims that the trial court erred as a matter of law in granting the defendants’ motion for a directed verdict and thereby dismissing plaintiffs liability claims against the School Board and Core-gis in its capacity as liability insurer.

Louisiana Code of Civil Procedure article 1810, which governs directed verdicts, provides as follows:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

A trial judge has much discretion in determining whether or not to grant a motion for directed verdict. Wright v. Bennett, 2004-1944 (La.App. 1st Cir.9/28/05), 924 So.2d 178, 187. Generally, a motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Pratt v. Himel Marine, Inc., 2001-1832 (La.App. 1st Cir.6/21/02), 823 So.2d 394, 406, -writs denied, 2002-2025, 2002-2128 (La.11/01/02), 828 So.2d 571, 572. And, if there is substantial evidence opposed to the motion, i.e., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. Pratt, 823 So.2d at 406.

| yHowever, in cases that are tried by a judge, a plaintiff bears the burden of establishing his claim by a preponderance of the evidence. See Bryan v. Vamado, 394 So.2d 1321,1324 (La.App. 1st Cir.1981) and Allen v. State, Department of Health and Human Resources, 456 So.2d 679, 682 (La.App. 5th Cir.1984). Because the motion for directed verdict on plaintiffs claims of liability against the School Board were ultimately tried by the judge herein, the motion for directed verdict was treated as a motion for involuntary dismissal, for which the trial court correctly applied the “preponderance of the evidence” standard.

On appeal, the standard of review for legal sufficiency of the evidence challenges, such as those presented by motions for directed verdicts, is de novo. Hall v. Folger Coffee Company, 2003-1734 (La.4/14/04), 874 So.2d 90, 99. The propriety of a directed verdict must be evaluated in light of the substantive law underpinning the plaintiffs claims.

Plaintiff claims her injuries were sustained as a result of the School Board’s negligence. In order to determine whether to impose liability under the general negligence principles of LSA-C.C. art. 2315, we look to the duty-risk analysis adopted by Louisiana courts. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) that the defendant’s | ^substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) that the plaintiff was damaged (the damages element). Boland v. West Feliciana Parish Police Jury, 2003-1297 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 815, writ denied, 2004-2286 (La.11/24/04), 888 So.2d 231. Plaintiffs failure to prove any element of the duty/risk analysis results in a determination of no liability. See Cusimano v. Wal-Mart Stores, Inc., 2004-0248 (La.App. 1st Cir.2/11/05), 906 So.2d 484, 486-487.

On appeal, plaintiff argues that the School Board was negligent in failing to have a plan for the .off-loading process and in failing to designate someone to direct the operation. In granting the motion for directed verdict, the trial court found that the School Board owed no duty to plaintiff, reasoning as follows:

[T]he Court finds that the plaintiff has not carried her burden of proving that there was a duty owed by the School Board which was breached. That pre-admits [sic] the question of whether or not in fact there is a causation issue which does create an interesting question for the Court. Clearly, the testimony of Ms. Rabalais Gordon during the trial was that at the time of the accident she had placed two bags on the ground and was climbing out of the closed pickup truck gate, had her left foot on the ground surface, her right foot on the bumper, and her left foot slipped, causing her to fall. One of the things that struck the Court is that with or without assistance, someone had to get in that truck. Someone had to put those bags on the ground and someone would have been subjected to that same risk. And that’s not an unreasonable risk of harm. So the Court will grant the Directed Verdict on the issue of liability.

The threshold question in any duty-risk analysis is whether the defendant owed a duty to the plaintiff. Whether a duty is owed is a question of law. Bezel v. Original Library Joe’s, Inc., 2001-1586 (La.App. 1st Cirjll/08/02),9 838 So.2d 796, 800. Simply put, the inquiry is whether a plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his or her claim. Bo-land, 878 So.2d at 815.

On de novo review, we likewise find that given the underlying facts, plaintiff faded to establish that the School Board owed (or breached) a duty to plaintiff. A thorough review of the record and the evidence contained therein shows that plaintiff was at the school on the morning of the accident serving in her capacity as a PTA volunteer. Plaintiff was not working within the course and scope of her employment as a substitute teacher. Plaintiff conceded that no one from the school required her to be there that morning; that she was merely contacted by a “room-mom” the night before and asked to deliver the prizes that morning; that upon her arrival at school that morning, she determined where to unload and parked where she saw fit; that she asked no one from the school for assistance, other than to point out to Ms. Gwen DiGiovanni, a secretary in the school office, that she could not hold the door open and hold the bag of prizes at the same time; and that she employed the “process” that she thought best fit her intention to unload the bags from the back of her pick-up truck.

Further, Ms. Kay Fortenberry, the principal of Whispering Forest Elementary School, testified that although she did not recall seeing plaintiff come into the office that morning and was not aware that plaintiff was unloading fund-raiser prizes for the PTA Fun Fest from her vehicle, if plaintiff had requested assistance in unloading the prizes from the office, she or any of the secretaries had the authority to summon a custodian to assist and would have readily done so. Ms. Fortenberry further testified that unlike employees of the school, volunteers are not under her direct supervision. Ms. DiGiovanni testified that she recalled plaintiff calling her Imon the morning of the accident and telling her that she was on her way to school that morning with the prizes for the Fun Fest. Plaintiff asked where she should put the prizes and Ms. DiGiovanni recommended that she put them in the workroom. Ms. DiGiovanni did not recall whether she or plaintiff propped the door to the workroom open so plaintiff would not have to have someone unlock and open it each time she entered, and further did not recall plaintiff asking for assistance in unloading the prizes.

While plaintiff argues that the School Board failed to have “a plan” and to designate someone “as being in charge and directing the operation,” plaintiff has failed to set forth any statutory or jurisprudential authority that imposes a duty on a School Board to regulate, schedule or supervise the method or manner by which parent volunteers should unload fund-raising prizes for a PTA fund-raising event. Moreover, plaintiff failed to show that the risk of unloading bags of prizes from her truck in the rain, as posed to her, was attributable to any action, policy or lack thereof of the School Board or that she was subjected to any particular or special unreasonable risk as a result of her activities, other than those facing any person who undertook to unload in the rain in the manner chosen by plaintiff. Thus, we find the motion for directed verdict dismissing plaintiffs liability claims against the School Board was properly granted in this case.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

(Granting Mistrial As to Med Pay Claims)

Plaintiff next contends that the trial court erred in granting a mistrial as to her liability claims against Coregis.

The court, on its own motion, or on the motion of any party, after hearing, may grant a mistrial. LSA-C.C.P. art. 1631 C. Generally, mistrials In are properly granted because of some fundamental failure in the proceeding. Hunter v. State, LSU Medical School, 2005-0311 (La.App. 1st Cir.3/29/06), 934 So.2d 760, 763. A motion for mistrial in a civil case should be granted under the following circumstances: (1) when, before the trial ends and the judgment is rendered, the trial judge determines that it is impossible to reach a proper judgment because of some error or irregularity; and (2) where no other remedy would provide relief to the moving party. Barnes v. Thames, 578 So.2d 1155, 1161 (La.App. 1st Cir.), writs denied, 577 So.2d 1009 (La.1991). Because a mistrial results in the discharge of one jury and the impaneling of another to try the case anew, it is a drastic remedy. Hunter, 934 So.2d at 763. The trial judge is vested with broad discretion to grant a motion for mistrial where no other remedy would afford relief or where circumstances indicate that justice may not be done if the trial continues. This court should not disturb the trial court’s determination unless there was an abuse of discretion. Barnes, 578 So.2d at 1161.

After the trial court granted defendants’ motion for directed verdict on the issue of liability, counsel for plaintiff requested a mistrial, stating:

[Counsel for Plaintiff]:

Your honor, in connection with this matter, there have been certain motions, practice, and procedural aspects of the case have obviously been developed to a point where the Court feels as if it must change directions in the order of witnesses and the scope of presentation of those witnesses, and the topics that would be presented by those witnesses to the jury accordingly. It is with regret that I must move for a mistrial in this matter because of potential prejudice to the plaintiffs case in view of the change and direction of the case.

In granting the mistrial, the trial court stated:

[T]he rationale behind the granting of a mistrial is that once it became apparent to the Court that the issues to be resolved by the jury were those relative to the insurance coverage and limits of liability and statutory penalties devolving therefrom, it became very apparent that from the moment of opening statements through the conclusion of the presentation of | ^evidence last evening, that the paths chosen by both the plaintiffs and the defense would have been considerable [sic] different, the approaches would have been considerably different. The jury has been of the belief, based upon the manner in which the trial has been presented, that they would have been deciding all issues in connection with the case. The Court felt that a fair trial could not be given to either side under those circumstances.

Plaintiff now complains that the trial court erred in granting her motion for mistrial as to her med pay claims against Coregis. We first observe that plaintiff is estopped from complaining on appeal of the very relief that she requested from the trial court. See Credit Recoveries, Inc. v. Crow, 37,913 (La.App. 2nd Cir.12/17/03), 862 So.2d 1146, 1152. Moreover, while plaintiff framed this complaint as an assignment of error in brief, she failed to brief the issue on appeal. While we are empowered to consider this assignment of error as abandoned, see Uniform Rules— Courts of Appeal, Rule 2-12.4, we nonetheless find no abuse of the trial court’s discretion in granting the mistrial.

This assignment also lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

(Denial of Jury Trial as Unconstitutional)

In plaintiffs final assignment on appeal, she contends that the denial of a jury trial herein was in violation of the constitutional guarantees of due process and equal protection. Plaintiff argues that the trial court’s actions of initially granting a jury trial, then determining that the trial court would decide all issues of liability, effectively denied plaintiff “a fair trial.”

We note that plaintiffs case-in-chief was heard by a jury. The trial court then granted defendant’s motion for directed verdict (or motion for involuntary dismissal) as to the School Board’s liability for plaintiffs injuries. Although the trial court granted the motion for directed verdict applying the preponderance of the evidence standard, on review, we find that |13under either standard, (ie., if tried to a jury, a directed verdict is appropriate if the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict and if tried before a judge, the burden is a preponderance of the evidence) the trial court correctly dismissed plaintiffs liability claims against the School Board.

Accordingly, the issue of plaintiffs entitlement to “completion of a jury trial” is mooted by the dismissal of plaintiffs liability claims. Moreover, we note that the trial court allowed plaintiff to re-open her case as to her remaining claims against Coregis to present these to the jury. Notably, in response, the plaintiff moved for a mistrial as discussed in the previous assignment.

Considering these circumstances, we find no merit to this assignment.

CONCLUSION

For the above and foregoing reasons, the February 28, 2005 judgment of the trial court is affirmed. Given the underlying procedural events of this case. Costs of this appeal in the amount of $ 8,943.50 are assessed one-half to the Appellant, Pam Rabalais and one-half to the Appellee, the St. Tammany Parish School Board and its insurer, Coregis Insurance Company.

AFFIRMED.

      . Since the institution of this suit, Pam Raba-lais’ husband, Jerry, died and she has remarried. Thus, she is referred to throughout these proceedings as "plaintiff.”

      . Plaintiff initially filed a disputed claim for compensation with the Office of Workers' Compensation, asserting that she was an employee of the School Board. The workers' compensation judge found that plaintiff was working in her capacity as a PTA volunteer at the time of the accident, and not as an employee of the School Board. Thus, the workers' compensation judge dismissed her claim. Finding no error, on April 2, 2004, this court rendered an opinion affirming the decision of the workers' compensation judge. See Gordon v. St. Tammany Parish School Board, 2003-1035 (La.App. 1st Cir.4/02/04), 879 So.2d 171.

      . The trial court relied on Dean v. Terrebonne Parish Police Jury, 510 So.2d 82 (La.App. 1st Cir.1987), Duplantis v. United States Fidelity & Guaranty Insurance Corporation, 342 So.2d 1142 (La.App. 1st Cir.1977), and Thornton v. Moran, 348 So.2d 79 (La.App. 1st Cir.1977), writs denied, 350 So.2d 897, 898, 900 (La.1977), for the proposition that issues of liability of a political subdivision are triable to a judge, not the jury.

      .A judgment was originally signed by the trial court on November 4, 2004. After a filing of a motion for new trial, the trial court issued the instant amended judgment before us on appeal, wherein it revised the decretal language concerning the grant of mistrial and preserved plaintiff’s remaining claims against Coregis.

      . Upon examination, we find that although there are remaining claims against Coregis, the judgment of February 25, 2005 is a partial final judgment pursuant to LSA-C.C.P. art. 19 15A inasmuch as it fully dismisses plaintiff’s liability claims against the School Board.

      . These cases relied on the former version of LSA-C.C.P. art. 1810B, which governed motions for directed verdicts in judge-tried cases. By Acts 1983, No. 534, § 8, Section B of LSA-C.C.P. art. 1810 was moved to LSA-C.C.P. art. 1672, which governs involuntary dismissals. See Acts 1983, No. 534, § 8, Comment (b).

      . Under both the former LSA-C.C.P. art. 1810B and LSA-C.C.P. art. 1672, a plaintiff has the burden of establishing his claim by a preponderance of the evidence. See Bryan, 394 So.2d at 1324 and State Farm Mutual Automobile Insurance Company v. Ford Motor Company, 2004-1311 (La.App. 1st Cir.6/15/05), 925 So.2d 1, 5.

      . Plaintiffs claims of premises liability against the School Board, as pled in her initial and first amending petition, were apparently abandoned at trial and on appeal.


author: DOWNING, J.

text:
    PHOENIX LIFE INSURANCE COMPANY v. ESTATE OF Sylvia Kennedy GRAVES and Estate of Emory L. Graves.
    No. 2006 CA 0040.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Nan Roberts Eitel, Washington, D.C., Virginia W. Gundlaeh, New Orleans, Counsel for Plaintiff/Appellee Phoenix Life Insurance Company.
    Raymond C. Burkart, Jr., Covington, Counsel for Defendants/Appellants Christy and Ann Grace, Executrixes of/and the Succession of Emory L. Graves, Sr.
    Thomas E. Schafer, III, New Orleans, Counsel for Defendant/Appellee Julie Kennedy-Fagan, Individually and as Executrix of the Succession of Sylvia Antonia Acosta-Graves.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

pin this appeal, the Estate of Emory Graves contends that the trial court erred in finding that Phoenix Life Insurance Company (Phoenix) did not violate La. R.S. 22:1220(B)(5) when it failed to pay the proceeds of a life insurance policy within the allotted sixty-day period after receiving satisfactory proof of loss.

Sylvia Graves was the designated beneficiary in her husband, Emory Graves’, policy. The policy provided that if Sylvia predeceased Emory, the beneficiary then became Emory’s estate. Emory shot and killed his seriously 01 wife, then killed himself. The policy provided that if Sylvia predeceased Emory, Emory’s estate was entitled to the proceeds. However, under Louisiana law (La. R.S. 22:613 D), a person responsible for the death of an insured may not collect under the policy. Both the Estate of Emory Graves and the Estate of Sylvia Graves submitted claims for the insurance proceeds. Consequently, Phoenix deposited the money into the court registry and filed a concursus proceeding asking the court to resolve the competing claims.

The trial court originally decided that Emory’s estate was precluded from collecting under the policy. However, when the matter came before this court on a writ application, we concluded that the appellee failed to prove its entitlement to the summary judgment because the policy was not introduced at trial (2003 CW 1743).

In the meantime, this court resolved the issue of whose estate should receive the insurance proceeds when it ruled on another appeal filed by the same defendants against another insurer. See Jackson Nat. Life Ins. Co. v. Kennedy-Fagan, 03-0054 (La.App. 1 Cir. 2/6/04), 873 So.2d 44. In Jackson it was decided that pursuant to the policy, the death benefits were |3not community property and that Emory Graves’ children were entitled to the proceeds. Jackson, 03-0054 at 10, 873 So.2d at 51. Based on the Jackson decision, the recipients of Emory Graves’ estate made a demand on Phoenix to dismiss the concur-sus proceeding and to the pay them the proceeds. The recipients of Sylvia Graves’ estate immediately filed for summary judgment claiming that this instant case distinguishable from the Jackson case. The Estate of Emory Graves filed a motion an opposing motion for summary judgment contending that Jackson was controlling. It also asked that penalties be assessed against Phoenix pursuant to La. R.S. 22:1220(B)(5), for failing to pay the claim timely. At the hearing on the cross-motions for summary judgment, the trial court agreed that Jackson resolved the matter and awarded the proceeds to the Estate of Emory Graves.

Subsequently, Phoenix filed a motion for summary judgment asking the court to dismiss the claim for penalties that was still pending. The trial court granted the motion; judgment was signed and appellants appealed.

Louisiana Revised Statute 22:1220(B)(5) provides that the insurer breaches its duty to adjust claims fairly and properly when it fails to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss when such failure is arbitrary, capricious, or without probable cause. This statute is penal in nature it must be strictly construed. Theriot v. Midland Risk Ins. Co., 95-2895, p. 4 (La.5/20/97), 694 So.2d 184, 186. Here, Phoenix was faced with competing claims from the two estates as to which was the rightful beneficiary entitled to receive Emory Graves’ life insurance proceeds. At the time it ruled in favor of Phoenix, the trial court stated that the obvious competing claims made this was one of the most serious issues it had ever dealt with.

UAfter reviewing the record, we conclude that the trial court did not err in concluding that Phoenix did not arbitrarily and capriciously refuse to pay the insurance proceeds within the statutory period.

The district court judgment is affirmed by memorandum disposition in accordance with Uniform Rules — Courts of Appeal Rule 2-16.1 B. The cost of this appeal is assessed against the appellant, Estate of Emory Graves.

AFFIRMED.


author: McDonald, j.

text:
    Henry LEE v. TWIN BROTHERS MARINE CORPORATION.
    No. 2006 CA 0017.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Gregory S. Unger, Metairie, Counsel for Plaintiff/Appellant Henry Lee.
    Tracy P. Curtis, Lafayette, Counsel for Defendant/Appellee Twin Brothers Marine Corporation.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   McDonald, j.

12Claimant/appeIIant appeals the decision in a workers’ compensation hearing sustaining an exception raising the objection of res judicata and dismissing his claims. For the following reasons, we affirm.

Claimant/appellant, Henry Lee (Lee), was working for Twin Brothers Marine Corporation (Twin Brothers) when he injured his right knee on January 6, 2000. Dr. Andre Cenac, Lee’s treating physician, performed orthoscopic surgery on both of Lee’s knees and released him to return to work in October 2000. Lee returned to work on October 11, 2000, and worked until March 16, 2001.

In September 2001, Lee filed a disputed claim for compensation alleging that benefits were terminated on October 10, 2000, that Twin Brothers refused to pay for medical treatment and prescriptions and refused to authorize proper medical treatment. The matter was scheduled for trial, but was continued on two occasions to give Lee additional time to obtain the deposition of Dr. Cenac and other orthopedic surgeons who may have assisted in Lee’s surgery.

Prior to trial the parties stipulated to the following: 1) the claimant, Henry D. Lee, hurt his right knee at work on January 6, 2000; 2) the claimant had seen Dr. Andre Cenac for left knee complaints related to an accident the claimant had at home earlier; 3) Dr. Cenac performed or-thoscopic surgery on both knees at the same time, and approved the claimant to return to work at medium duty from October 11, 2000 to March 16, 2001 for which he was paid full wages; 4) the claimant’s hypertension and low back complaints were unrelated to work; and 5) temporary total disability benefits were paid from January 14, 2000 to October 10, 2000 at $377.63 a week.

I :-iThe trial was held on September 18, 2002. On October 9, 2002, judgment was rendered finding that Lee was not entitled to temporary total disability benefits from March 17, 2001 to the time of trial and that Twin Brothers reasonably controverted the workers’ compensation claim. No appeal was taken from that judgment.

In January 2003, Lee, represented by different counsel, filed another disputed claim for compensation form 1008, claiming entitlement to compensation for medical treatment of “knee replacement,” as recommended by Dr. Cenac, and penalties, attorney’s fees, and costs. The workers’ compensation judge sustained Twin Brothers’ exception raising the objection of res judicata and dismissed Lee’s claims with prejudice at his cost. Lee appealed that judgment. This court reversed and remanded because the record in the previous litigation was not in the appeal record and therefore, there was no evidence to support the workers’ compensation judge’s findings. Subsequently, Twin Brothers filed the exception raising the objection of res judicata, which was granted by the workers’ compensation judge. Thereafter, this appeal was timely filed.

Louisiana Revised Statute 13:4231 sets forth the factors for a court to apply in determining whether a subsequent claim is barred by res judicata and provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of 14the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The purpose of res judicata is to promote judicial efficiency and final resolution of disputes by preventing needless relitigation. Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079. The burden of proof is upon the pleader to establish the essential facts to sustain the plea of res judicata. Diamond B Const Co. v. Dept. of Trans & Dev., 02-0573, p. 8 (La.App. 1st Cir.2/14/03), 845 So.2d 429, 435. The doctrine of res judicata is stricti juris and should be rejected when doubt exists as to whether a party’s substantive rights have actually been previously addressed and finally resolved. Domingue ex rel. Domingue v. Allied Discount Tire and Brake, Inc., 2002-1338, p. 5 (La.App. 1st Cir.5/9/03), 849 So.2d 690, 695, writ denied, 2003-1605 (La.10/3/03), 855 So.2d 320. A final judgment has the authority of a thing adjudged only as to those issues presented in the pleadings and conclusively adjudicated by the court. Ins. Associates, Inc. v. Francis Camel Const. Inc., 95-1955, p. 3 (La.App. 1st Cir.5/10/96), 673 So.2d 687, 689. Identification of issues actually litigated shall be determined not solely from the pleadings but also by examining the entire record in the first suit. Ebey v. Harvill, 26,373, p. 3 (La.App. 2nd Cir.12/7/94), 647 So.2d 461, 464.

Our examination of the transcript of the original trial on the merits held in September 2002, confirms that the issue of Lee’s entitlement to a right knee replacement was litigated. We find no error in the judgment sustaining Twin Brothers’ exception of res judicata. Therefore, the judgment of the workers’ compensation judge is affirmed, and this opinion | fiis issued in accordance with Uniform Rules— Courts of Appeal, Rule 2-16.2 A(6). Costs of this appeal are assessed to Henry Lee.

AFFIRMED.

      . Lee v. Twin Brothers Marine Corp., 2003-2034 (La.App. 1st Cir.9/17/04), 897 So.2d 35.


author: MCDONALD, J. WHIPPLE, J.

text:
    Lawrence D. TALBERT v. G.A.T. AIRLINE GROUND SUPPORT, INC.
    No. 2005 CA 2215.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Ralph Brewer, Baton Rouge, Counsel for the Plaintiff/Appellant Lawrence D. Talbert.

      B. Scott Cowart, Baton Rouge, Counsel for the Defendant/Appellee G.A.T. Airline Ground Support, Inc.
    Before: CARTER, C.J., WHIPPLE and MCDONALD, JJ.
   MCDONALD, J.

_JjTMs is an appeal from the Office of Workers’ Compensation Administration. Lawrence D. Talbert filed a disputed claim for compensation against his employer, G.A.T. Airline Ground Support, Inc. (G.A.T.). On May 4, 2004, the parties entered into a consent judgment that found Mr. Talbert temporarily, totally disabled and provided for indemnity payments by G.A.T. to Mr. Talbert, along with other, related matters.

In April 2005, Mr. Talbert filed a motion to accelerate benefits, in accordance with La. R.S. 23:1333, asserting that G.A.T. had failed to pay six or more successive weekly indemnity payments. After a hearing, the workers’ compensation judge found that the consent judgment provided that G.A.T. would continue to pay benefits as long as benefits were compensable under the Louisiana Workers’ Compensation Act and that G.A.T. had proven that Mr. Talbert was no longer temporarily, totally disabled. Thus, the workers’ compensation judge denied the motion to accelerate benefits. Mr. Talbert appealed that judgment.

After a thorough review, we find that the record does not demonstrate that the workers’ compensation judge was clearly wrong or manifestly erroneous in its judgment. Accordingly, finding no error, we affirm the judgment in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1.B. Costs are assessed against appellant, Lawrence D. Talbert.

AFFIRMED.

WHIPPLE, J., concurs for reasons assigned.

CARTER, J., concurs for reasons assigned by WHIPPLE, J.

WHIPPLE, J.

Concurring.

_JjThe majority affirms the workers’ compensation judge’s refusal to accelerate benefits pursuant to LSA-R.S. 23:1333 under a judgment awarding claimant TTDs as long as benefits were compensable, where the employer established that the claimant was no longer temporarily, totally disabled. While I find the better course would be to require that a payor defendant/employer file a request for modification once a judgment has been rendered or entered, under the applicable jurisprudence, the result reached by the majority is correct.

In Dixon v. King, 178 La. 1,150 So. 385, 386 (1933), the Louisiana Supreme Court interpreted section 33 of the Workers’ Compensation statute (now LSA-R.S. 23:1333) and determined that where the judgment itself provides for weekly disability benefits payable only during the period of disability and where, in fact, the claimant’s disability has come to an end, the acceleration statute does not authorize a judgment making the whole amount of benefits which would have been payable executory. The court further stated that considering that the acceleration statute is in the nature of a penalty, it should be strictly construed. Dixon, 150 So. at 386.

Thereafter, in Lytell v. Strickland Transportation Company, Inc., 373 So.2d 138, 142 (La.1979), the supreme court discussed its holding in Dixon. The court noted that in Dixon, the employer had improperly ceased paying compensation without filing proceedings to modify the judgment. Nonetheless, the court restated the holding of Dixon that “the employer is not liable for the full mandatory penalties, if at the time the penalty is invoked to make the remaining weeks of the | adisability judgment become executory and immediately due, the employer proves that the employee is no longer disabled.” Lytell, 373 So.2d at 142 (emphasis added).

Again in Duncan v. State, Department of Transportation and Development, 615 So.2d 305, 311 (La.1993), the supreme court stated that “in order for defendant to avoid a judgment against him for the maximum number of weekly payments, it was necessary for it to establish that plaintiff’s entitlement had already terminated or would terminate at a future determinable date earlier than the maximum recovery period.” (Emphasis added).

Accordingly, I agree with affirming the workers’ compensation judge’s refusal to accelerate payments where the judge ultimately determined that the employer proved that claimant was no longer disabled.

With regard to the Third Circuit case of Lewis v. Cornerstone Village, Inc., 2002-1162 (La.App. 3rd Cir.5/21/03), 846 So.2d 970, 972-973, the court therein did impose penalties and attorney’s fees pursuant to LSA-R.S. 23:1201(G) where the LWCC terminated benefits without first seeking a modification of the compensation judgment pursuant to LSA-R.S. 23:1310.8. The Third Circuit held that the appropriate inquiry was not whether the claimant was still incapable of returning to work, but was whether the LWCC had terminated benefits without seeking a modification of the prior award. Lewis, 2002-1162, 846 So.2d at 972. While this holding seems at odds with the holdings in Dixon, Lytell, and Duncan, I note that the Third Circuit was interpreting a different penalty statute (LSA-R.S. 23:1201, not the acceleration statute, LSA-R.S. 23:1333). Additionally, to the extent that Lewis is at odds with these other cases, we are bound by Dixon, Lytell and Duncan, in that they are the pronouncements of the supreme court.

Thus, I respectfully concur in the result.