text:
    Curtis DIAMOND v. PROGRESSIVE SECURITY INSURANCE COMPANY.
    No. 2005 CA 0820.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.

      Ike F. Hawkins, III, Baton Rouge, for Plaintiff — Appellant Curtis Diamond.
    Jason A. Bonaventure, Shelly D. Dick, Amanda G. Clark, Baton Rouge, for Defendant — Appellee Mississippi Insurance Guaranty Association.

      James Eric Johnson, Baton Rouge, for Defendant — Appellee Louisiana Insurance Guaranty Association.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WELCH, J.

|2In this appeal, Curtis Diamond appeals from a judgment dismissing his claims against the Louisiana Insurance Guaranty Association (LIGA) oh an exception of no right of action and against the Mississippi Insurance Guaranty 'Association (MIGA) on an exception of lack of personal jurisdiction. After a thorough review of the facts and applicable law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to his petition, Mr. Diamond, a resident of East Feliciana Parish, Louisiana, was involved in a vehicular accident in Jasper, Alabama, with an Alabama resident, while driving a truck for his employer, Howard Transportation, Inc. (Howard), a Mississippi corporation. Mr. Diamond filed suit in East Feliciana Parish against his personal insurer, Progressive Security Insurance Company (Progressive), seeking medical payments and uninsured/underin-sured motorist (UM) benefits, based on his allegation that the Alabama tortfeasor that hit him was underinsured. Mr. Diamond later added Howard’s insurer, Legion Insurance Company (Legion), as a defendant, again seeking UM benefits.

Mr. Diamond ultimately settled his claim against Progressive, and Progressive was dismissed from the suit. While Mr. Diamond’s claim against Legion was pending, a Pennsylvania court placed Legion in rehabilitation and eventually ordered its liquidation. Due to Legion’s insolvency, Mr. Diamond amended his petition to add LIGA and MIGA, alleging these defendants were solidarily liable with other defendants for his damages, because Legion was a qualified insurer in Louisiana and in Mississippi at the time of his . -accident in | ^Alabama.

MIGA filed an exception of lack of personal jurisdiction, claiming it was a Mississippi entity that had no contacts with Louisiana. LIGA filed exceptions of no right of action, improper venue, and/or lack of subject matter jurisdiction. LIGA argued Mr. Diamond did not have a right of action against Legion under the Louisiana Direct Action Statute, La. R.S. 22:655(B)(2), and, thus no action against LIGA, because the Legion policy was not delivered or written in Louisiana and the accident at issue occurred outside of Louisiana. After a hearing on the exceptions, the trial court signed a judgment granting MIGA’s exception of lack of personal jurisdiction; granting LIGA’s exception of no right of action, and dismissing Mr. Diamond’s claims against them without prejudice. Mr. Diamond appeals from the adverse judgment, contending the trial court erred in granting the exceptions and dismissing his claims.

EXCEPTION OF NO RIGHT OF ACTION

In his first assignment of error, Mr. Diamond argues the trial court erred in ^granting LIGA’s exception of no right of action. He contends the purpose of Louisiana’s UM statutory scheme is to promote full recovery for innocent automobile accident victims. He argues the UM statute applies to insurance policies covering vehicles “principally garaged” in Louisiana, and because the vehicle he was driving at the time of the accident was principally garaged in East Feliciana Parish, then the insurance covering it (i.e., Legion’s policy) should be deemed to be delivered or issued for delivery in the State of Louisiana. Based on this argument, Mr. Diamond appears to contend he has a direct action against Legion and thus against LIGA.

A defendant challenging a plaintiffs right to proceed under the Louisiana Direct Action Statute may do so by means of an exception of no right of action. Spomer v. Aggressor International, Inc., 2000-1646 (La.App. 1st Cir.9/28/01), 807 So.2d 267, 275, writ denied, 2001-2886 (La.1/25/02), 807 So.2d 250; Foltmer v. James, 2001-1510 (La.App. 4th Cir.9/12/01), 799 So.2d 545, 548, writ denied, 2001-2777 (La.1/4/02), 805 So.2d 213. To sue a liability insurer directly under the Louisiana Direct Action Statute, the accident or injury must have occurred in Louisiana or the policy must have been written or delivered in Louisiana. Esteve v. Allstate Insurance Company, 351 So.2d 117, 120 (La.1977); Spomer, 807 So.2d at 275. An insurance company that proves the requirements of the Direct Action Statute have not been fulfilled is entitled to dismissal of the claim against it on an exception of no right of action. Foltmer, 799 So.2d at 548. Further, LIGA may also raise the exception because it “shall have all rights, duties, and obligations of the insolvent insurer.” La. R.S. 22:1382(A)(2).

In this ease, it is undisputed that Mr. Diamond’s accident occurred in 1 ^Alabama. Further, the evidence in this case indicates Legion’s policy was neither written nor delivered in Louisiana. According to the Pennsylvania court order placing Legion in liquidation, Legion’s principal place of business is in Philadelphia County, Pennsylvania. The policy, introduced into the record by LIGA, lists Legion’s address in Philadelphia, Pennsylvania. The agent/broker listed on the policy is Barks-dale Bonding and Insurance, Inc. with an address in Jackson, Mississippi. And, according to Mississippi Secretary of State records introduced into the record by LIGA, Howard’s principal office address, as well as its registered agent’s address, is in Laurel, Mississippi. This evidence supports the conclusion that Legion’s policy was written and delivered outside of Louisiana.

On the other hand, Mr. Diamond has pointed to no contrary evidence demonstrating that Legion wrote or delivered Howard’s policy in Louisiana. Although he argues in brief that Legion’s policy should be “deemed” to have been delivered in Louisiana because Howard’s truck was “principally garaged” in East Feliciana Parish, Mr. Diamond cites no legal support for his argument nor are we able to find any. Further, even if Mr. Diamond’s argument had merit, his mere assertion in brief that Howard’s truck was “principally garaged” in East Feliciana Parish is insufficient to establish such as fact. A court of appeal has no authority to consider facts referred to in brief that are not in evidence. Watts v. Baldwin, 95-0260 (La.App. 1st Cir.10/6/95), 662 So.2d 519, 523 n. 1.

After a thorough review of the record, we conclude LIGA proved Mr. Diamond’s accident did not occur in Louisiana and that the Legion policy issued to Howard was neither written nor delivered in Louisiana. Thus, the trial court correctly granted LIGA’s exception of no right of action. This assignment of error has no merit.

EXCEPTION OF LACK OF PERSONAL JURISDICTION

In his second assignment of error, Mr. Diamond contends the trial court | fierred in granting MIGA’s exception of lack of personal jurisdiction. Mr. Diamond contends MIGA had sufficient contacts with the State of Louisiana, because it was aware that Legion was writing multi-state insurance policies and charging premiums based on coverage not solely provided in the State of Mississippi. Further, Mr. Diamond contends MIGA waived its right to object to personal jurisdiction by making a general appearance in this case.

In determining whether there is personal jurisdiction, we look to the long-arm statute of Louisiana, which provides that “a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.” La. R.S. 13:3201(B). The limits of the Louisiana long-arm statute and of constitutional due process are coextensive; the sole inquiry into jurisdiction over a nonresident is whether it comports with constitutional due process requirements. Peters v. Alpharetta Spa, L.L.C., 2004-0979 (La.App. 1st Cir.5/6/05), 915 So.2d 908, 910-911. For the exercise of personal jurisdiction over a nonresident defendant to comport with constitutional due process requirements, the defendant must have purposefully established certain “minimum contacts” with the forum state such that he could reasonably anticipate being haled into court there, and the exercise of personal jurisdiction must be such that it “does not offend traditional notions of fair play and substantial justice.” International Shoe Company v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Minimum contacts are established when the nonresident defendant “purposely avails itself of the privilege of conducting activities within the forum [s]tate.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Peters, 915 So.2d at 911. An appellate court conducts a de novo review of the legal issue of a Louisiana court’s personal jurisdiction over a nonresident. Peters, 915 So.2d at 910. However, the trial court’s factual findings underlying the decision are reviewed under the|7manifest error standard of review. Id.

The'Mississippi Insurance Guaranty Association Law was enacted to protect policy holders of certain kinds of insurance in the event of their insurer’s insolvency. Mississippi Insurance Guaranty Association v. Byars, 614 So.2d 959, 963 (Miss.1993). MIGA is a statutorily created, nonprofit, unincorporated legal entity whose duties include the assumption of an insolvent insurer’s duties and obligations. Miss.Code Ann. §§ 83-23-103, 111; Mississippi Insurance Guaranty Association, 614 So.2d at 964.

In support of its exception of lack of personal jurisdiction, MIGA submitted the affidavit of John Weeks, its Executive Director, who attested that MIGA is a Mississippi resident with its principal and only place of business in Ridgeland, Mississippi. According to Mr. Weeks, MIGA does not transact business in Louisiana; has no agent for service of process in Louisiana; owns no property nor receives any revenue from Louisiana; does not advertise in Louisiana and does not avail itself of Louisiana courts. Further, Mr. Weeks stated in his affidavit that MIGA “has no interest in resolving or enforcing issues related to the Louisiana Insurance Guaranty Association Laws which are designed to protect the insureds of Louisiana.”

In opposition to MIGA’s exception, Mr. Diamond submitted no evidence indicating that MIGA has the requisite minimum contacts with Louisiana such that it could reasonably anticipate being haled into court here. Without evidentiary support, he argues MIGA was aware that Legion was writing multi-state insurance policies and charging premiums for coverage in states other than Mississippi, presumably including Louisiana. However, Mr. Diamond fails to explain how this fact, even if accepted as true, establishes minimum contacts between MIGA and the State of Louisiana. In granting MIGA’s exception, the trial court apparently accepted the facts set forth in Mr. Weeks’ affidavit as true. In the absence of |scontrary evidence, we find no manifest error in the trial court’s acceptance of these facts; nor do we find legal error in its legal determination that it had no personal jurisdiction over MIGA. Cf. Guidry v. Cajun Rentals and Services, Inc., 563 So.2d 1335 (La.App. 3rd Cir.1990) (wherein the court of appeal affirmed the denial of. the Alabama Insurance Guaranty Association’s exception of lack of personal jurisdiction because AIGA failed to carry its evidentiary burden of proof to support its claim that it had no contacts with Louisiana).

Alternatively, Mr. Diamond argues MIGA waived its right to object to jurisdiction, because Legion’s counsel, who later acted as MIGA’s counsel, filed a motion to compel discovery before MIGA filed its exception of lack of personal jurisdiction. It is true that a party waives his objection to jurisdiction by failing to timely file a declinatory exception. La. C.C.P. art. 6(A)(3); Sam v. Feast, 2000-1163 (La.App. 1st Cir.3/28/01), 802 So.2d 680, 683. A party can waive an objection to jurisdiction by an appearance of record, such as filing a pleading, appearing at a hearing, or formally enrolling as counsel of record. Id. Even if we were to assume that the filing of a motion to compel constitutes an appearance, it was Legion that filed the motion to compel in this case, not MIGA. Contrary to any assertions by the appellant, Legion and MIGA are not solidary obligors; therefore, an appearance by Legion does not constitute an appearance by MIGA, even if the same attorney represented these parties. The record indicates that MIGA’s first action in this suit was the filing of the exception of lack of personal jurisdiction. Therefore, MIGA did not waive its objection to jurisdiction. This assignment of error has no merit.

^CONCLUSION

For the foregoing reasons, the trial court’s judgment granting the Louisiana Insurance Guaranty Association’s exception of no right of action; granting the Mississippi Insurance Guaranty Association’s exception of lack of personal jurisdiction; and dismissing Mr. Diamond’s claims against these defendants without prejudice, is affirmed. Costs of this appeal are assessed to Curtis Diamond.

AFFIRMED.

McClendon, J., concurs.

      . LIGA was created in 1970 by the enactment of the Insurance Guaranty Association Law, La. R.S. 22:1375 through 1394, to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment, and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer. La. R.S. 22:1375-76. Under the Act, when an insurer is determined to be insolvent, LIGA is deemed to be the insurer to the extent of its obligation on pre-insolvency covered claims and has all thé rights, duties, and obligations of the insolvent insurer as if that insurer had not become insolvent. La. R.S. 22:1382(A)(l)(a) and (A)(2). Alerion Bank v. Louisiana Insurance Guaranty Association, 1998-2897 (La.App. 1st Cir.2/18/00), 753 So.2d 369, 372. As discussed later in the opinion, MIGA is a similar entity in the State of Mississippi.

      . The record contains two judgments. The first judgment, signed December 10, 2004, grants MIGA’s exception of lack of personal jurisdiction and dismisses Mr. Diamond’s claims against MIGA. (r213) The second judgment, signed December 22, 2004, grants MIGA's exception and LIGA's exception of no right of action and dismisses Mr. Diamond's claims against both defendants. This second judgment states that "any Judgment signed in error since ... November 15, 2004 ... is hereby recalled and set aside." We note that in the absence of a motion for new trial, appeal, or a motion by the trial court with the agreement of the parties, a court cannot substantively amend a final judgment. Starnes v. Asplundh Tree Expert Company, 94-1647 (La. App. 1st Cir. 10/6/95), 670 So.2d 1242, 1246. In this case, the language in the second judgment setting aside the earlier-rendered judgment appears to be an attempt to make a substantive change to the first judgment in the absence of a timely motion for new trial, consent by the parties or a timely appeal. Thus, that provision in the second judgment is without legal effect, and the first judgment maintaining MIGA’s exception is still a valid judgment. Starnes, 670 So.2d 1246. However, in this case, the appellant appealed from both judgments rendered by the trial court; therefore, this error does not affect the issues before us or the ultimate outcome of the case.

      . Mr. Diamond relies on former La. R.S. 22:1406(D)(l)(a). Section D of La. R.S. 22:1406 was amended by 2003 La. Acts, No. 456, §§ 1 and 2 and redesignated as La. R.S. 22:680 by § 3 of the same act.

      . Legion is not the tortfeasor's insurance company. The plaintiff seeks uninsured motorist benefits from Legion, and subsequently from MIGA. Hence, his clam against Legion, based solely on contractual liability, does not give rise to a solidary obligation where the general appearance by one obligor would be sufficient to confer jurisdiction over the other.


source: Caselaw Access Project

author: CARTER, C.J. DOWNING, J.,

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. US AGENCIES, L.L.C. US Agencies Casualty Insurance Company v. State Farm Mutual Automobile Insurance Company.
    No. 2005 CA 0728, 2005 CA 0729.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.
    Writ Denied June 16, 2006.

      Darrell J. Loup, Baton Rouge, Counsel for Plaintiff/Appellee, State Farm Mutual Automobile Insurance Company.
    Donald R. Smith, Baton Rouge, Counsel for Defendant/Appellant, U.S. Agencies Casualty Insurance Company.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   CARTER, C.J.

1 ?This appeal involves opposing claims by two insurers, State Farm Mutual Automobile Insurance Company (State Farm) and U.S. Agencies Casualty Insurance Company (U.S. Agencies), pertaining to the ranking of their respective insurance policies. The trial court rendered summary judgment, finding the U.S. Agencies policies provided primary coverage. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts in these consolidated cases are undisputed. Both cases find their geneses in accidents wherein drivers, insured by U.S. Agencies, negligently caused collisions while they were temporarily driving vehicles borrowed from State Farm insureds, because their own vehicles were being repaired.

State Farm contends that, pursuant to LSA-R.S. 22:681, the U.S. Agencies policies must provide primary coverage for these incidents. Specifically, that statute requires the extension of an individual’s insurance coverage to his use of a “temporary substitute vehicle” and mandates that such coverage be primary. Conversely, U.S. Agencies argues that LSA-R.S. 22:681 only requires the extension of coverage to “temporary substitute vehicles as defined in the applicable insurance policy.” Since its policies at issue herein do not define the term “temporary substitute vehicle,” U.S. Agencies claims that LSA-R.S. 22:681 is not applicable. According to U.S. Agencies, any such vehicles are treated under its policies as “non-owned |sautos,” and in accordance with its policies, coverage for such non-owned vehicles is to excess, not primary.

The parties subsequently filed cross motions for summary judgment in support of their respective contentions. Concluding that the U.S. Agencies policies provided primary coverage, the trial court denied U.S. Agencies’ motion for summary judgment and granted summary judgment in favor of State Farm. This appeal by U.S. Agencies followed.

DISCUSSION

As previously stated, the operative facts herein are undisputed. The sole issue before this court is whether LSA-R.S. 22:681 mandates that the U.S. Agencies policies provide primary coverage. The interpretation of a statute is a question of law that may be decided by summary judgment. Appellate courts review summary judgments de novo, under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Levy v. Vincent, 01-0277 (La.App. 3 Cir. 7/18/01), 796 So.2d 34, 36. A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966 B.

The statute at issue, LSA-R.S. 22:681, provides in pertinent part:

Every approved insurance company. . .shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental private passenger automobiles any and all such insurance coverage in effect in the original policy or policies.... Such insurance shall be primary.

| legislation is the solemn expression of the legislative will; therefore, the interpretation of a statute primarily involves the search for the legislature’s intent. LSA-C.C. art. 2; Denham Springs Economic Development Dist. v. All Taxpayers, Property Owners, 04-1674 (La.2/4/05), 894 So.2d 325, 330. The interpretation of a statute begins with the language of the statute itself. Denham Springs, 894 So.2d at 330. Louisiana Civil Code article 9 instructs that when a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written. LSA-C.C. art. 9; Denham Springs, 894 So.2d at 330.

However, when the language of a statute is' susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Safeway Insurance Co. of Louisiana v. State Farm Mutual Automobile Insurance Co., 36,853 (La.App. 2 Cir. 3/5/03), 839 So.2d 1022, 1025. When a statute is ambiguous or when its literal construction produces an absurd or unreasonable result, the letter must give way to the spirit of the law and the statute construed to produce a reasonable result. Fontenot v. Chevron U.S.A. Inc., 95-1425 (La.7/2/96), 676 So.2d 557, 562.

US Agencies contends that LSA-R.S. 22:681 is controlling if, and only if, an insurer chooses to use and define the term “temporary substitute vehicle.” If an insurer chooses to not define the term, U.S. Agencies maintains the statute does not apply. Until March 2002, U.S. Agencies’ policies defined the term “temporary substitute vehicle.” However, revisions to its policies deleted such a definition. US Agencies contends its decision to delete the definition exempts it from the provisions of LSA-R.S. 22:681. We disagree.

|fiThe provisions of LSA-R.S. 22:681 are clearly mandatory. See LSA-R.S. 1:3. To assume the mandatory language of LSA-R.S. 22:681 is applicable only if an insurance policy chooses to define the term “temporary substitute vehicle,” leads to an absurd result. Such a literal interpretation renders LSA-R.S. 22:681 permissive rather than mandatory. We find it incredulous that the legislature would make a provision mandatory and, at the same time, allow insurers to avoid its application by simply refusing to include a definition in their policies. A statute should not be construed so as to produce an absurd result. Rather, a statute must be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it. SWAT 21 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294, 302.

To aid in interpreting an ambiguous statute, courts may look to legislative history to discern the legislature’s intent. Safeway, 839 So.2d at 1025. Commentary at legislative committee meetings and journals of the houses of the state legislature are helpful to courts in determining the purpose and true legislative intent behind a law. A court may take judicial notice of these records and journals, where preserved, as they are a matter of public record. Louisiana Public Facilities Authority v. All Taxpayers, 03-2738 (La.App. 1 Cir. 12/23/03), 868 So.2d 124, 131, writ denied, 04-0213 (La.3/11/04), 869 So.2d 801.

We have consulted the minutes and audio-recording of the House Commerce Committee meeting, as well as the minutes of the Senate Commerce Committee meeting, wherein the proposed legislation was debated. It is clear that the legislative intent behind LSA-R.S. 22:681 was to require the extension of all insurance coverage an individual possesses on |fihis own vehicle to the use of a rental vehicle or a temporary substitute vehicle.

The minutes and the audio-recording of the House Commerce Committee meeting held on June 7, 1989, reflect that Representative Stelly presented House Bill No. 1042 (subsequently enacted as 1989 La. Acts No. 438) to provide for the extension of an individual’s insurance coverage to his use of a temporary substitute vehicle. Committee chairman, Representative En-sminger, questioned whether the language “temporary substitute vehicle” should be replaced with the term “rental vehicles” because it was the extension of coverage to “rental vehicles” that Representative Stelly was attempting to address. However, this suggested substitution was rejected, and all committee members ultimately approved an amendment to add the term “rental vehicles” after “temporary substitute vehicles.” Thus, the proposed legislation would require the extension of coverage to both “rental vehicles” and non-rented “temporary substitute vehicles.”

Based on our examination of the aforementioned legislative sources, we conclude that it was not the intention of thé legislature to allow an insurer to merely opt out of the mandates of LSA-R.S. 22:681 by not including the definition of “temporary substitute vehicles” in its policies. US Agencies has complied with the’ mandates of LSA-R.S. 22:681 by subsuming the definition of “temporary substitute vehicle” within its definition of “non-owned auto.” Any policy provision providing that such coverage by U.S. Agencies is excess and not primary clearly conflicts with LSA-R.S. 22:681. It is well settled that policy language must yield to conflicting statutory law. Safeway, 839 So.2d at 1025. Hence, we find the trial court’s determination that the U.S. Agencies’ policies provide primary coverage in these consolidated cases to be legally correct.

| .DECREE

For the foregoing reasons, the judgment appealed from is affirmed. Appellant, U.S. Agencies Casualty Insurance Company, is cast with all costs of this appeal.

AFFIRMED.

DOWNING, J., concurs and assigns reasons.

DOWNING, J.,

concurring.

Li agree with the majority opinion. I concur to emphasize that this case is significant and will have a major impact as it changes the long-standing practice in the insurance industry. Under La. R.S. 22:681, in an accident where a driver of a temporary substitute vehicle is at fault, the primary liability insurance of the vehicle owner is now secondary.

      . The first suit involved a motor vehicle accident between Aaron Stevens and John Finch. Mr. Stevens, a U.S. Agencies insured, was alleged to be solely at fault in causing the accident. At the time of the accident, Mr. Stevens was operating a vehicle owned by Allison Riley, with her permission, because his vehicle was temporarily out of service while repairs were being made. State Farm insured Allison Riley. Following its payment of Mr. Finch's claim, State Farm filed suit against U.S. Agencies seeking repayment, arguing that pursuant to LSA-R.S. 22:681 the U.S. Agencies policy was required to provide primary coverage for the incident.
      Several months later, U.S. Agencies filed a separate suit seeking a judgment declaring that its policy did not provide primary coverage for a factually similar accident. Again, U.S. Agencies and State Farm disputed the applicability of LSA-R.S. 22:681. The two cases were subsequently consolidated because they turned on a common issue of law.

      . This provision originally was enacted as LSA-R.S. 22:1406 F by 1989 La. Acts No. •438, § 1, then amended by 1997 La. Acts No. 951, § 1. Without amendment, it was redesig-nated as LSA-R.S. 22:681 by 2003 La. Acts No. 456, § 3.


author: DOWNING, J. GAIDRY, J.,

text:
    In the Matter of the SUCCESSION OF WILLIE RICHARDSON.
    No. 2005 CA 0552.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.

      Howard P. Elliott, Jr., Baton Rouge, Counsel for PlaintiffiAppellant Mary A. Molden Richardson.
    Marvin E. Owen, Baton Rouge, Counsel for Defendants/Appellees Henry Leon Richardson, Donald Ray Richardson and Patricia Ann Richardson.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

1 .Widow of the decedent, Willie Richardson, appeals following an adverse ruling by the trial court declaring that her husband’s will was null and void because the lack of an attestation clause did not meet the requirements of LSA-C.C. art. 1577(2). Decedent’s three surviving children from a prior marriage brought an action against the widow seeking to annul the probated testament. For the following reasons, we reluctantly affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Willie Richardson executed a document on May 15, 2003 purporting to be a notarial testament in which he left all of his possessions, community and separate, to his spouse Mary A. Molden Richardson. He died of cancer two weeks later at age seventy-two. His succession was opened, his testament was probated, and a judgment of possession was signed August 11, 2003 putting his widow in possession of all of his property.

Henry Leon Richardson, Donald Ray Richardson, and Patricia Ann Richardson are Willie Richardson’s three natural children. On August 10, 2004, they moved to re-open the succession and to annul the will on the grounds that the will was not valid as to form, since it did not contain the attestation clause required by LSA-C.C. art. 1577.

The trial court found that the purported testament was not in substantial compliance with LSA-C.C. art. 1577(2) as the document had no declaration by the attorney/notary public and the witnesses attesting that the testator had signed the will in their presence or that they had signed in each other’s presence. Mrs. Richardson appealed, maintaining that the will was in substantial compliance with LSA-C.C. art. 1577 and that the witnesses ^should have been allowed to testify as to the circumstances surrounding the execution of the will.

DISCUSSION

Louisiana Civil Code article 1577 provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this _day of_,_”

The document executed by decedent concludes as follows:

IN WITNESS WHEREOF, I have signed my last will and testament in the presence of the undersigned witnesses and before a Notary.
Baton Rouge, Louisiana this 15th day of May 2003
(signed)
Willie Richardson, (Testator)
WITNESSES:
_(signed)_(signed)
_(signed)

NOTARY PUBLIC

In Succession of Morgan, 257 La. 380, 242 So.2d 551, 552 (1970), the court explained that statutory wills are not founded on the civilian law but rather on common law principles which have as their original source the English Statute of Frauds of 1677. The primary purpose of our statute authorizing this type of will is to afford a simplified means of making a testament |4whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult. Id. at 553. It further stated, “[i]n construing an attestation clause we will not require strict, technical, and pedantic compliance in form or in language.”

However, the law regarding the lack of the witness and notary attestation clause is very clear. We concluded in the Succession of Brown, 458 So.2d 140 (La.App. 1 Cir.1984), a case on all fours with the present case, that all of the formal requisites for confection of a notarial testament must be observed, under penalty of nullity. Although its form is not sacrosanct, there must be an attestation clause, or clause of declaration signed by the witnesses and the notary. Id. at 142.

Here there is no attestation clause or declaration by the notary and witnesses, reciting that the notary and witnesses signed their names on May 15, 2003, in the presence of the testator and each other. As we concluded in Succession of Brown, 458 So.2d at 143, the attestation clause itself, being non-existent, is not in substantial compliance with the article and this substantial defect is fatal to the validity of the will.

Mrs. Richardson argues that the defect in this testament could be remedied by having the witnesses and the notary appear before the court and testify that they .witnessed the signing, that the decedent signed without fraud or duress, and that they signed the document in the presence of each other. While this does seem to be a rational approach, there appears to be no provision for this rational approach in our law. In the Succession of English, 508 So.2d 631, 633 (La.App. 2 Cir.1987), the court concluded that an affidavit used to probate the will cannot “cure” the total lack of an attestation clause. It further stated that such an interpretation would render [¿meaningless the mandatory requirements of the statute and do violence to the jurisprudentially recognized purpose of the attestation clause. Id.

It appears, however, that the rule defeats its own purpose when the testator’s intent could be implemented or supplanted based on the testimony of apparently available witnesses. The testimony of those witnesses seems imperative to a just and proper resolution of this matter, especially when considering the statement by our Supreme Court in Succession of Morgan, 242 So.2d at 552. In Succession of Morgan, the court stated that the main purpose of authorizing a notarial will is to afford a simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult.

However, the law very clearly and directly precludes additional evidence on this issue. Therefore, we are forced to conclude that the trial court did not err in setting aside the judgment of possession or in ruling that the will was null and void due to it lack of an attestation clause. We further conclude that, unfair as it seems, there is no procedure that would allow the witnesses to testify as to the validity of the will. Thus, Mrs. Richardson’s assignments of error are without merit.

Accordingly, we reluctantly affirm the judgment of the trial court. We strongly suggest that the legislature revisit this issue so that a testator’s intent may not be thwarted by technical, but curable, omissions.

DECREE

For the above stated reasons, we affirm the judgment of the trial court. The costs of this appeal are assessed to appellant Mrs. Mary Molden Richardson.

AFFIRMED.

GAIDRY, J., concurs with reasons.

GAIDRY, J.,

concurring.

11 While I agree with the result expressed in the majority opinion, I write separately to state that I do not join in the majority opinion’s expressed reluctance in reaching the result required by our positive law. Louisiana Civil Code article 1573 unequivocally provides: “The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” This provision, through its direct antecedents, has been the law of Louisiana since it joined the federal union in 1812, and before. The principle expressed does not admit of relative nullity, curable by parol evidence. If there is any area of our civil law in which the goal of certainty of result has particular significance, it is that of successions. This case does not present a situation not contemplated by our legislature or a gap in our law. The role of the judiciary is to interpret the law, the solemn expression of legislative will. I will simply state that the applicable principle has served the citizens of Louisiana well for over 200 years, and I decline to advocate any change to it based upon subjective considerations of rationality and “unfairness.” For these reasons, I respectfully concur.

      . LSA-R.S. 35:12 also requires that the notary shall insert the names of the parties in full, together with the mailing addresses, under their respective signatures.


author: GAIDRY, J.

text:
    Kae Francis THOMAS v. STATE EMPLOYEES GROUP BENEFITS PROGRAM.
    No. 2005 CA 0392.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.

      Richard L. Fewell, Jr., Robert T. Knight, West Monroe, Counsel for Plaintiff/Appellant Kae Francis Thomas.
    Pamela Bartfay Rice, Baton Rouge, Counsel for Defendant/Appellee State Employees Group Benefits Program.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   GAIDRY, J.

| .The plaintiff-appellant, Kae Francis Thomas, appeals a judgment of the 19th Judicial District Court sustaining the peremptory exception of prescription of the defendant-appellee, the Louisiana Division of Administration, Office of Group Benefits (OGB), and dismissing her petition with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff, an employee of the Ouachita Parish School Board, filed a petition for damages against OGB, her group health and hospitalization plan, on May 17, 2004. She alleged that she was diagnosed as having mammary hypertrophy, for which bilateral breast reduction surgery was recommended by her physician. She further alleged that on November 30, 1999, her physician mailed medical records and photographs to OGB to document the medical necessity of the recommended procedure. The photographs depicted plaintiff nude from the waist up. According to plaintiff, the records and photographs were “signed for” by a representative of OGB on December 8, 1999. Plaintiff further claimed that upon contacting OGB by telephone in mid-December, she learned that OGB had lost the photographs, and that the photographs remained lost through the time her petition was filed.

Plaintiff alleged that OGB was negligent in losing and failing to recover the photographs, and that it intentionally or negligently caused her emotional distress. She further contended that OGB is liable to her for damages under both a “continuing tort theory” and a “contract theory.” The |sonIy factual basis stated for the latter theory of recovery was “the premise that the relationship between [plaintiff] and [OGB] was that of an insurance contract or agreement.”

On July 6, 2004, OGB filed a peremptory exception of prescription, objecting to plaintiffs petition on the grounds that her alleged cause of action was prescribed. The exception was originally fixed for hearing on September 20, 2004, but the hearing was continued to November 8, 2004. No evidence was introduced on behalf of either party at the hearing. At the conclusion of the hearing, the trial court ruled in favor of OGB. Its judgment sustaining the exception and dismissing plaintiffs petition and cause of action with prejudice was signed on December 9, 2004.

Plaintiff now appeals, contending that the trial court erred in failing to find her allegations sufficiently stated both a continuing tort and a cause of action based in contract and in dismissing her petition.

ANALYSIS

All personal actions, including actions to enforce contractual obligations, are generally subject to a liberative prescription of ten years, unless otherwise provided. La. C.C. art. 3499. Delictual actions are subject to a liberative prescription of one year, running from the day injury or damage is sustained. La. C.C. art. 3492. As plaintiffs petition was filed some four- and-a-half years after the time she learned of the photographs’ loss, the proper characterization of the nature of her cause of action is crucial to the determination of the issues before us.

In the case of Leger v. Spurlock, 589 So.2d 40 (La.App. 1st Cir.1991), the plaintiff, a police officer, sued a physician for breach of confidentiality, alleging that the physician violated the physician-patient privilege by discussing his chemical dependency treatment with a district |4attorney, with the result that the plaintiff was fired and had criminal charges brought against him. The defendant physician responded to the suit with a dilatory exception of prematurity, arguing that the claim was required to be presented to a medical review panel under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. The plaintiff contended that because his cause of action was based on implied contract and intentional tort, it fell outside the definition of malpractice. Athough we agreed with the plaintiffs dual characterization of his cause of action, we nevertheless held that the Medical Malpractice Act applied, since the cause of action for breach of contract was encompassed within the statutory definition of malpractice. Id. at 43. In so doing, we observed that a physician’s unauthorized divulgence of confidence constituted “the breach of an implied condition of the contract that arises when a physician is employed in his professional capacity by a patient,” an implied condition having its basis in the venerable Hippocratic Oath. Id.

In the case of a health care insurer, however, no corresponding implied condition of confidentiality can be read into its contract with its insured by virtue of its intrinsic nature or longstanding custom or tradition. A contractual duty on the part of an insurer to maintain the confidentiality of its insured’s medical records might arise independently of any duty under the general tort law, if the insurer expressly assumes such an obligation under the terms of the insurance contract. See, e.g., Robley v. Blue Cross/Blue Shield of Mississippi, 2003-CA-02209-COA, pp. 3-4 (Miss.App.6/21/05), 935 So.2d 1021, 1023, 2005 WL 1500300. But plaintiff has neither shown nor argued how the terms of the contract in question established such a contractual duty on OGB’s part. In this appeal, she simply asserts that because her relationship with OGB is contractual, and because the photographs were sent in order to substantiate her claim for benefits under the insurance contract, the duty allegedly breached is contractual. We disagree.

The nature of the duty breached determines whether the action is in tort or in contract. Roger v. Dufrene, 613 So.2d 947, 948 (La.1993). The classic distinction between damages ex contractu and damages ex delicto is that the former flow from the breach of a special obligation contractually assumed by the obligor, whereas the latter flow from the violation of a general duty owed to all persons. Trinity Universal Insurance Company v. Horton, 33,157, p. 2 (La.App. 2nd Cir.4/5/00), 756 So.2d 637, 638, citing Harrison v. Gore, 27,254, p. 8 (La.App. 2nd Cir.8/23/95), 660 So.2d 563, 568, writ denied, 95-2347 (La.12/8/95), 664 So.2d 426. Even when tortfeasor and victim are bound by a contract, courts usually apply the delictual prescription to actions that are actually grounded in tort. Id. The mere fact that the circumstances arose in the context of a contractual relationship does not make the cause of action contractual. The courts are not bound to accept a plaintiffs characterization of the nature of his cause of action if unsupported by factual allegations. See United Gas Pipe Line Company v. Cargill, Inc., 612 So.2d 783, 786 (La.App. 1st Cir.1992).

We of course accept the proposition that a cause of action may exist against an insurer who intentionally or negligently discloses an insured’s confidential medical records. Such a cause of action, however, does not derive from any implied condition of the insurance contract or policy, as | ¿would be the case in a physician-patient relationship. Rather, it derives from the general duty to act reasonably to avoid injury to others, imposed by La. C.C. arts. 2315 and 2316. Such duty encompasses the duty to avoid unnecessary and unreasonable invasion of the privacy of another, a fundamental right recognized under the Fourth Amendment of the United States Constitution.

Article 1, § 5 of the Louisiana Constitution expressly sets forth the constitutional right of every person to be “secure in his person, property, communications, houses, papers, and effects against unreasonable ... invasions of privacy.” Since 1905, Louisiana has expressly recognized a civil cause of action for invasion of privacy. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388-89 (La.1979). The right to privacy has been defined in Louisiana as “the right to be let alone” and “the right to an inviolate personality.” Id. at 1388. A violation of such right by another may be actionable in tort. Id. at 1388-89. An actionable invasion of privacy occurs only when the defendant’s conduct is unreasonable and seriously interferes with the plaintiffs privacy interest. Id. at 1389. Here,- plaintiff has sufficiently alleged facts supporting a delictual cause of action for invasion of privacy. See Doe v. Smith, 05-0653, pp. 4-5 (La.App. 4th Cir.7/13/05), 913 So.2d 140, 143.

On the face of her petition, plaintiffs cause of action, sounding in tort, has prescribed. When a cause of action is prescribed on its face, the burden is upon the plaintiff to show that the running of prescription was |7suspended or interrupted in some manner. Jonise v. Bologna Brothers, 01-3230, p. 6 (La.6/21/02), 820 So.2d 460, 464. Thus, the burden of proof shifted to Ms. Thomas to establish that her claim was not prescribed. At the hearing on the exception, however, plaintiff offered no proof of the existence of the alleged contractual duty undertaken by OGB, and no evidence of interruption of prescription by virtue of a continuing tort.

At the hearing -of a peremptory exception (except one raising the objection of no cause of action), “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931. (Our emphasis.) Generally, in the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and those alleged facts are accepted as true. Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1st Cir.), writ denied, 584 So.2d 1169 (La.1991). But the latter principle applies only to properly-pleaded material allegations of fact, as opposed to allegations deficient in material detail, conclusory factual allegations, or allegations of law. Kirby v. Field, 04-1898, p. 6 (La.App. 1st Cir.9/23/05), 923 So.2d 131, 135.

In her petition, plaintiff alleged that OGB was “liable in negligence” to her for losing and failing to recover the photographs, and that its negligence constituted a continuing tort “since the photographs are still lost to this day and have never been returned.” She further alleged that she has suffered emotional distress and mental anguish in not knowing who has possession of the photographs and who has been allowed to view them. On appeal, plaintiff continues to define OGB’s continuing tort as its ongoing failure “to find the photographs which it lost.” Plaintiff has not suggested |sthe existence of any other act or omission committed by OGB since the initial loss of the photographs.

We must agree with OGB that plaintiff has neither alleged nor proven the existence of a continuing tort for purposes of determining the issue of prescription. In order to allege a continuing tort, a plaintiff must allege both continuous action and continuous damage. Abrams v. Herbert, 590 So.2d 1291, 1294 (La.App. 1st Cir.1991). If the “operating cause” of the damage is discontinuous in nature, even if the damage is continuous, the continuing tort theory is inapplicable, and “prescription runs from the date that knowledge of such damage was apparent or should have been apparent to the injured party.” Crump v. Sabine River Authority, 98-2326, p. 7 (La.6/29/99), 737 So.2d 720, 726.

Here, plaintiff has alleged continuous damage, but not a continuous or repetitive operating cause of such damage. But for the initial loss of the photographs, there would be no purported duty on the part of OGB to locate them; any duty to locate them would stem from its obligation under La. C.C. art. 2815 to repair damages caused by the wrongful act of losing them. See Crump, 98-2326 at p. 11, 737 So.2d at 729. In other words, if the photographs were not lost to begin with, any duty to recover them would simply not exist, and the failure to recover them would obviously not constitute a separate tort. It is not the failure to find the photographs, standing alone, that is the legal cause of plaintiffs claimed continuing damages, but the loss of the photographs. “[T]he breach of the duty to right a wrong and make the plaintiff whole simply cannot be a continuing wrong | nwhich suspends the running of prescription, as that is the purpose of any lawsuit and the obligation of every tortfea-sor.” IdL

Louisiana Code of Civil Procedure Article 934 provides as follows:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

In the context of an objection of prescription, the jurisprudence has interpreted the foregoing provision to mean that where a plaintiffs cause of action is prescribed on its face, and the plaintiff has the opportunity but fails to offer any evidence at the hearing of a peremptory exception that his claim was filed timely, he has failed to adequately establish that amendment of his petition might remove the grounds of the objection. Comardelle v. Jeandron Chevrolet, Inc., 449 So.2d 601, 605 (La.App. 1st Cir.), writ denied, 456 So.2d 1015 (La.1984). See also Whitnell v. Menville, 540 So.2d 304, 309 (La.1989); Mitchell v. Terrebonne Parish School Board, 02-1021, p. 6 (La.App. 1st Cir.4/2/03), 843 So.2d 531, 534, writ denied, 03-2275 (La.11/26/03), 860 So.2d 1135. Not only did plaintiff fail to offer any factual evidence of a continuing tort or an express contractual duty at the hearing, she has since failed to assert or even suggest the existence of facts sufficient to support a contractual basis for her cause of action against OGB, as opposed to a delictual basis. Accordingly, the judgment sustaining the exception was correct and plaintiff was not entitled to an opportunity to amend her petition under La. C.C.P. art. 934.

111.1) i 1CRIlE

The judgment of the trial court, sustaining the peremptory exception of prescription and dismissing the petition and cause of action of the plaintiff-appellant, Kae Francis Thomas, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.

      . In the petition, defendant was identified by its former statutory designation of the State Employees Group Benefits Program. It was redesignated under its current name by Acts 2001, No. 1178. See La. R.S. 42:801, et seq.

      . Presumably, the documents were sent by certified or registered mail, or by another form of mail requiring signed delivery confirmation. In her petition and in her brief to this court, plaintiff contends that the mailing was by certified mail.

      . See Hammonds v. Aetna Casualty & Surety Company, 243 F.Supp. 793, 801 (N.D.Ohio 1965). The classical version of the Hippocratic Oath contains the following promise of discretion on the physician's part: “What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.’’ The modem version, composed in 1964 by Dr. Louis Lasagna of Tufts University School of Medicine, provides: “I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know.”

      . See Itzkovitch v. Whitaker, 115 La. 479, 482, 39 So. 499, 500 (La. 1905). The right was implicitly recognized in Louisiana as early as 1811. See Denis v. Leclerc, 1 Mart. (O.S.) 297 (1811).

      . Apart from their inherently personal subject matter, the photographs’ character as medical records clearly support plaintiff’s asserted privacy interest. See La. R.S. 13:3715.1 and 13:3734; La. R.S. 44:12; La. C.E. art. 510(A)(8)(b). See also the Health Insurance and Accountability Act of 1996, Pub.L. 104-191, 110 Stat.1936; 42 U.S.C. § 1320d-2; and 45 C.F.R. §§ 160.300, et seq.

      . We distinguish the present factual situation from one in which confidential medical records or private, personal photographs are repetitively exhibited or published by an unauthorized possessor.


author: GUIDRY, J.

text:
    Ericka & Jamal HUNTER, Both Individually & on Behalf of Jamal Hunter, II v. STATE of Louisiana, Through the LSU MEDICAL SCHOOL & Earl K. Long Memorial Hospital.
    No. 2005 CA 0311.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.

      Sumpter B. Davis, III, Baton Rouge, Counsel for Plaintiffs/Appellants Ericka & Jamal Hunter, individually and on behalf of Jamal Hunter, II.
    Carey R. Holliday, Baton Rouge, Counsel for Defendants/Appellees State of Louisiana, through LSU Medical School & Earl K. Long Memorial Hospital.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

Ijn this medical malpractice action, plaintiffs, Ericka and Jamal Hunter, Sr., individually and on behalf of their minor child, Jamal Hunter, II, appeal the trial court’s judgment dismissing their claim with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 15, 1994, Jamal Hunter, II was born at Earl K. Long Medical Center (EKL). During the delivery, a shoulder dystocia was encountered, whereupon Jamal’s left shoulder became lodged against his mother’s pelvis. Following three maneuvers performed by the second year resident in charge of the delivery, Dr. Louise Collins, Jamal was born. Following his birth, it was discovered that Jamal’s left arm was limp, a condition that was subsequently diagnosed as Erb’s Palsy.

Thereafter, Ericka and Jamal Hunter, Sr., individually and on behalf of Jamal Hunter, II, brought an action against the State of Louisiana, through the Louisiana State University Medical School and EKL, alleging that the defendants deviated from the standard of care during the delivery of Jamal. . Particularly, plaintiffs asserted there was inadequate supervision of Dr. Collins and that Dr. Collins used excessive traction to resolve the shoulder dystocia. Following a jury trial, a unanimous verdict was returned, finding that plaintiffs did not prove by a preponderance of the evidence that the care or treatment provided EKL and/or Dr. Collins fell below the applicable standard of care. Thereafter, the trial court rendered judgment in accordance with the jury’s verdict in favor of the defendants and dismissed plaintiffs’ claims with prejudice. The trial court also subsequently denied plaintiffs’ motion for judgment notwithstanding the verdict (JNOV) and alternatively, their motion for new trial. The plaintiffs now appeal from these judgments.

^DISCUSSION

Admission of Evidence

In their' first assignment of error, the plaintiffs contend that the trial court erred in admitting medical evidence related to the birth of Ericka Hunter’s third child, which occurred after the birth at issue in the instant case, but refusing to admit evidence related to the medical malpractice action filed in relation to that third birth. Generally, all relevant evidence is admissible. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to a determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. However, relevant evidence may be excluded if, among other things, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. La. C.E. art. 403. Whether evidence is relevant is within the discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a clear abuse of his discretion. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La.App. 1st Cir.3/11/94), 634 So.2d 466, 476-477, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094.

During the argument on the motion in limine, the trial court specifically found that medical records from the birth of plaintiffs’ third child, as well as those from the birth of plaintiffs’ first child, were relevant because issues had been raised regarding knowledge of Ericka Hunter’s medical condition and prescription. Further, the trial court specifically determined that any relevance of evidence of the medical malpractice action in relation to the third birth, which action was filed and resolved in Washington, would be substantially outweighed by the danger of unfair prejudice. According to the trial court, the jury could be led to believe that because there was malpractice in the third birth, there was malpractice in the birth at issue, despite the fact that different facts and situations were involved. Based on our preview of the record, we find no abuse of the trial court’s discretion in admitting evidence of the third child’s birth, but refusing to admit evidence of the malpractice action.

Mistrial

The plaintiffs next contend that the trial court erred in failing to order a mistrial when, during its cross-examination of Ericka Hunter, defense counsel implied that Jamal Hunter, Sr. was a convicted felon. The court on its own motion, or on the motion of any party, after hearing, may grant a mistrial. La. C.C.P. art. 1631(C). Generally, mistrials are properly granted because of some fundamental failure in the proceeding. 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.), twits denied, 577 So.2d 1009 (La.1991). Motions for mistrial should also be granted upon proof of prejudicial misconduct occurring during a jury trial, which cannot be cured by admonition or instruction. 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. 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.

During cross-examination of Ericka Hunter, defense counsel asked a series of questions regarding her relationship with her husbancj during her second pregnancy. In particular, defense counsel asked her if she was' “aware that [Jamal Hunter, Sr.] was convicted of a felony while you were down here and it was a ^domestic dispute.” Following the question, plaintiffs’ counsel asked to approach the bench and stated “this is bordering on a mistrial.” A bench conference was held, whereupon the trial court decided to admonish the jury to disregard the question. Thereafter, the jury was instructed to disregard the question and the question was ordered stricken from the record.

From our review of the record, we find no abuse of discretion by the trial court in admonishing the jury to disregard defense counsel’s questions, as opposed to granting a mistrial. The granting of a motion for mistrial is a severe remedy that should be reserved for the most egregious and prejudicial conduct, which would constitute a failure in the proceedings. Tadlock v. Taylor, 02-0712, p. 16 (La.App. 4th Cir.9/24/03), 857 So.2d 20, 32, writ denied, 03-3265 (La.3/12/04), 869 So.2d 819. Plaintiffs argue “the jury already [did] not like Ericka Hunter” and the defense, in asking this question, continued to present Ericka Hunter in the worse possible light. In this case, we find no error in the trial court’s determination that the statements by defense counsel, while improper, do not rise to the level of egregious and prejudicial conduct outlined above. As such, we find the trial court did not abuse its discretion in deciding to instruct the jury to disregard defense counsel’s questions regarding Jamal Hunter, Sr. as opposed to granting a mistrial.

Motion for JNOV and Motion for New Trial

Finally, plaintiffs contend that the trial court erred in denying their motion for JNOV and alternatively, their motion for new trial. A JNOV should be granted only if the trial court, after considering the evidence in the light most favorable to the party opposed to the motion, finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on that issue. Broussard v. Stack, 95-2508, p. 14 (La.App. 1st Cir.9/27/96), 680 So.2d 771, 779-780. If there is substantial evidence opposed to the motion that is of such quality and weight that reasonable and fair-minded men in | fithe exercise of impartial judgment might reach different conclusions, the motion should be denied. Davis v. Wal-Mart Stores, Inc., 00-0445, p. 4 (La.11/28/00), 774 So.2d 84, 89. In making this determination, the court should not weigh the evidence, pass on the credibility of witnesses, or substitute its judgment of the facts for that of the jury. Broussard, 95-2508 at p. 15, 680 So.2d at 780. The standard to be applied by the appellate courts in reviewing the denial of a JNOV is whether the trial court’s findings in rendering the JNOV were manifestly erroneous. Broussard, 95-2508 at p. 15, 680 So.2d at 780.

However, the motion for a new trial requires a less stringent test than for a JNOV, as such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Davis, 00-0445 at p. 10, 774 So.2d at 93. In considering a motion for new trial, the trial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions and may evaluate the credibility of the witnesses to determine if the jury has erred in giving too much credence to an unreliable witness. Broussard, 95-2508 at p. 16, 680 So.2d at 781. The trial court’s discretion in ruling on a motion for new trial is great, and its decision will not be disturbed on appeal absent an abuse of that discretion. However, the fact that a determination on a motion for new trial involves judicial discretion does not imply that the trial court can freely interfere with any verdict with which it disagrees. Fact-finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Davis, 00-0445 at p. 10, 774 So.2d at 93.

|7In the instant case, plaintiffs had the burden of proving by a preponderance of the evidence the applicable standard of care, that EKL and/or Dr. Collins breached the standard of care, and that the substandard care caused an injury that Jamal would not otherwise have suffered. See Dumont v. Maaliki, 99-1850, p. 4 (La.App. 1st Cir.9/22/00), 769 So.2d 1230, 1232. The majority of plaintiffs’ argument in support of their motion for JNOV and motion for new trial, both in the trial court and on appeal, asserts that the jury determined the case not based on the primary negligence of EKL and/or Dr. Collins, but on the comparative fault of Ericka Hunter. According to the plaintiffs, the jury completely disregarded the evidence showing a breach of the standard of care by EKL and/or Dr. Collins and therefore, its motion for JNOV and motion for new trial should have been granted.

The first question on the jury verdict form reads: “Did the plaintiff prove by a preponderance of the evidence that the care or treatment provided by Earl K. Long Regional Medical Center and/or Dr. Louise Collins fell [sic] below the applicable standard of care in the delivery of Jamal Hunter, II?” The jury responded “NO” to this first question and returned the verdict to the trial judge, never reaching the third or fourth questions dealing with the issue of comparative fault of Ericka Hunter.

Further, plaintiffs’ expert in this case, Dr. Francois Blaudeau, stated that the standard of care in shoulder dystocia cases is that once the dystocia is diagnosed, no downward traction should be applied. Dr. Blaudeau further opined that in this case, Dr. Collins applied too much downward traction on the fetal head while the shoulder was impacted, which resulted in the injury to Jamal. However, the medical records upon which Dr. Blaudeau relied merely state that downward traction was applied; they do not specify the degree of traction used by Dr. Collins.

Defendants’ experts, contrarily, testified that the standard of care was to apply gentle traction after the dystocia was diagnosed in order to try and release |sthe impacted shoulder. Further, Dr. Collins testified that she did not use excessive traction, but rather, that she used gentle traction. The experts agreed that Dr. Collins followed accepted procedures and utilized accepted maneuvers in attempting to resolve the dystocia. Additionally, all experts, including Dr. Blaudeau, agreed that brachial plexus injuries can result from other causes besides using too much traction, including maternal force, and can occur in útero, following a cesarean section, or from other unknown causes. Finally, defense experts stated that even if the doctor does everything right during the delivery, brachial plexus injuries can still occur.

Additionally, in regard to plaintiffs’ assertion that there was inadequate supervision of Dr. Collins during Jamal’s delivery, the defense experts stated at trial that a second year resident was well-trained and capable of delivering a severe shoulder dystocia. The experts also testified, including Dr. Collins, that it was standard procedure to call an upper level resident or attending physician when a shoulder dys-tocia was encountered. However, Janet Brignac, a registered nurse, and Dr. Joseph Miller, Professor of Obstetrics and Gynecology at LSU Health Sciences Center in New Orleans, testified that after a call is made, the resident continues to deliver the baby and does not just, wait for assistance. There was a discrepancy in the testimony as to how long the delivery could proceed once the dystocia had been diagnosed before the baby went into distress due to a lack of oxygen. However, all experts agreed that a dystocia was an emergency situation that had to be resolved rather quickly. Both Ms. Brignac and Dr. Collins testified that a call was made for assistance in this case; however, Dr. Collins also stated that Jamal was delivered two minutes after the shoulder dystocia was diagnosed.

Clearly, the jury was presented with conflicting expert testimony and made a credibility determination. See Fox v. Fox, 97-1914, p. 2 (La.App. 1st Cir.11/6/98), 727 So.2d 514, 516, writ denied, 99-0265 (La.3/19/99), 740 So.2d 119. |flFrom our review of the record, the jury had ample evidence upon which to determine that the plaintiffs failed to prove that EKL and/or Dr. Collins breached the standard of care in the delivery of Jamal, and its verdict is supportable by a fair interpretation of that evidence. As such, we find no error or abuse of discretion in the trial court’s denial of plaintiffs’ motion for JNOV and motion for new trial.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, finding in favor of defendants and dismissing plaintiffs’ claims with prejudice. All costs of this appeal are to be borne by appellants, Ericka and Jamal Hunter, Sr.

AFFIRMED.