author: JOAN BERNARD ARMSTRONG, Chief Judge. TOBIAS, J.,

text:
    Annie Sobel GREENBLATT v. Lakeidra S. PAYNE.
    No. 2005-CA-0290.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2006.

      George J. Tate, George J. Tate, P.L.L.C., Abbeville, Counsel for Plaintiff/Appellant.
    Robert C. Lowe, David M. Prados, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS Jr. and Judge DAVID S. GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

LThe plaintiff, Annie Sobel Greenblatt, appeals from the trial court’s judgment granting exceptions of prescription and insufficiency of service of process filed on behalf of the defendants, Lakeidra S. Payne and the plaintiffs former husband, Michael D. Greenblatt. The defendants seek sanctions, alleging that the appeal is frivolous. For the reasons that follow, we affirm.

This matter arises from Petitions filed by Ms. Greenblatt on November 19, 2003 and December 23, 2003, in which she claims she was defamed by comments contained in a letter allegedly prepared by Mr. Greenblatt and signed on September 23, 1999 by Ms. Payne, a personal care attendant for the Greenblatts’ disabled daughter, Emily. Ms. Greenblatt further alleges that Mr. Greenblatt’s attorney gave this letter to the judge presiding over Emily’s interdiction proceedings in the 24th Judicial District Court in Jefferson Parish, during an informal status conference held in April 2000. According to Ms. Green-blatt’s Original and Supplemental Petitions, she attended this conference, but was not represented by counsel. She claims in her Petition that she asked to see the letter, but allegedly was denied the right to inspect the letter. There is no allegation that Ms. Greenblatt sought redress in the Jefferson Parish Court or by way of application for 12supervisory review to the Louisiana Court of Appeal, Fifth Circuit, to obtain the opportunity to see the contents of the letter. According to the Petition, the letter was not entered into evidence, nor was it made a part of the record. Ms. Greenblatt alleges in her Petitions that the letter’s contents were the basis for the Jefferson Parish court’s having found her to be unfit and for the termination of her visitation rights. Ms. Greenblatt alleges that she was not allowed to inspect the letter until she was granted standing to appear in the Jefferson court proceedings, made a formal discovery request, and threatened to move to compel discovery of the letter and for sanctions. Following the success of her discovery request, she was allowed to inspect the letter in July 2003, four months before she filed her original suit and five months before she filed her Supplemental Petition.

In their exceptions of prescription, the defendants maintained that Ms. Green-blatt’s Petition was prescribed on its face, arguing that paragraphs 4, 8, 10 and 17 admit that Ms. Greenblatt was present and aware when the allegedly libelous letter that gave rise to her damages was published to the Jefferson Parish judge at the April 2000 conference. Accordingly, because more than one year elapsed between the date of the conference and the date on which Ms. Greenblatt filed the initial Petition, the defendants contend that her action is prescribed pursuant to La.C.C. art. 3492.

The defendants also requested sanctions against Ms. Greenblatt and her attorney under La.C.C.P. art. 863, arguing that the Petitions were so ungrounded in fact or law that their only purpose was to harass the defendants.

In opposition to the exception of prescription, Ms. Greenblatt relied on the doctrine of contra non valentem agere nulla currit praescriptio to suspend the running of prescription during the period in which the action was not known or ^reasonable knowable to the plaintiff. Landry v. Blaise, Inc., 2002-0822 (La.App. 4 Cir. 10/23/02), 829 So.2d 661. Ms. Greenblatt alleges that she was prevented from learning the contents of the allegedly libelous statement and the identity of the person who made the statement until she was granted standing on May 5, 2003 to proceed with her action to seek Mr. Green-blatt’s removal as Emily’s curator. Not until then could she go forward with the discovery that led to the production of the letter. Therefore, she argues, her complaint was brought within a year of the time that she learned of the contents of the letter.

Contra non valentem embraces four possible scenarios: (1) where there is a legal cause preventing courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) when there is a condition coupled with the contract, if any, or connected with the proceeding that prevents the credit from suing or acting; (3) when the debtor or obligor did some act that effectually prevented the creditor or obligee from availing himself of his cause of action; and (4) when the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. See, Hendrick v. ABC Ins. Co., 00-2403, p. 10 (La.5/15/01), 787 So.2d 283, 290.

As applied to the instant case, it appears that Ms. Greenblatt’s claim of contra non valentem proceeds from the following facts she alleges in her Petitions:

“Petitioner was refused the right to inspect the letter until July, 2000.” (Paragraph 6 of the Original Petition)— an example of the third scenario;
“Petitioner was refused the right to inspect the letter at this informal conference, though she specifically asked to see it.” (Paragraph 6 of the Supplemental Petition) — an example of the third scenario;
“This inspection only came about as a result of petitioner retaining undersigned counsel, who initiated Informal discovery. This inspection was further hindered until undersigned counsel threatened to file a motion to compel with sanctions. This document was never entered into evidence, nor ever made part of the record.” (Paragraph 7 of the Supplemental Petition) — an example of the third and possibly the second scenarios.

Ms. Greenblatt does not allege any facts indicating the reason for the passage of time between April of 2000, when she learned of the adverse nature of the letter, and July 2003 when her discovery request was granted by Mr. Greenblatt’s counsel.

At the hearing in Civil District Court on the exceptions and request for sanctions, Ms. Greenblatt asked to call witnesses whom she had subpoenaed and who were present in court to testify. The trial court denied that request, but Ms. Greenblatt did not proffer their testimony or provide a synopsis of the facts to which the alleged witnesses would testify. Following oral argument, the trial court maintained the exceptions of prescription and insufficiency of service of process and denied the request for sanctions.

In written reasons for judgment, the trial court found that the allegations of Ms. Greenblatt’s Petitions established that Ms. Greenblatt “was present and aware of the ‘publication’ of the alleged libel in April 2000. At the point where the statement was made, plaintiff had knowledge of her damage.” The Petition was prescribed, according to the reasons for judgment, “because plaintiff admits at paragraph 4 of her Petition that she was present when the alleged libelous statements were made by her former husband Michael Greenblatt. She also admits in paragraph 7 that she was present at the April 2000 meeting when the alleged libelous statement was made.”

Paragraph 4 of the Original Petition alleges:

| BDuring an April, 2000 informal conference in the matter entitled “Interdiction of Emily Greenblatt,” Docket No. 538-686, Division “B” of the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, this libel was provided to Judge Wicker by Mr. Green-blatt, by delivering same to his attorney to turned it over to the judge.”

Paragraph 4 of the Supplemental Petition is identical in content, but adds the name of Mr. Greenblatt’s Attorney, David Prados, Esq., to the last phrase of the paragraph.

Paragraph 7 of the Original Petition alleges:

At this April 2000, (sic) meeting Mr. Greenblatt was present and represented by counsel, David Prados, Esq. Petitioner was unrepresented by counsel.

Paragraph 7 of the Supplemental Petition alleges:

This inspection only came about as a result of petitioner (sic) retaining undersigned counsel, who initiated formal discovery. This inspection was further hindered until undersigned counsel threatened to file a motion to compel with sanctions. This document was never entered into evidence, nor ever made part of the record.

It is clear from the plain language of the Original and Supplemental Petitions that the allegations contained in their respective Paragraphs 4 and 7, admit that Ms. Greenblatt learned that the letter contained information adverse to her interest at the time of the informal conference in the 24th Judicial District Court in Jefferson Parish. There is no indication that she took advantage of her opportunity to seek to learn the exact contents through the Jefferson Parish district court or by writ application to the Louisiana Court of Appeal Fifth Circuit. There is nothing to indicate that the defendants prevented Ms. Greenblatt from pursuing the issue | ^within the framework of the interdiction proceedings. Furthermore, there is no factual basis alleged to excuse the over three-year delay between the time Ms. Greenblatt knew of the adverse letter and the time she proceeded formally to obtain a copy of the letter. Clearly, she had the right in April of 2000 to file the instant suit, and to obtain a copy of the letter by use of discovery procedures. She knew in April of 2000 that the material contained in the letter was adverse to her interest, and she has not alleged any impediment existing from April 2000 to June of 2003 that would have prevented her from filing suit to recover her damages. Clearly, the publication occurred in April of 2000 and her damage occurred shortly after the informal conference when the trial court in Jefferson Parish rendered its adverse judgment in the interdiction proceedings.

Ms. Greenblatt contends that the trial court erred in granting the defendants’ exception of prescription without having allowed her the opportunity to introduce the testimony of witness whom she had subpoenaed and who were present at the hearing. Legal error occurs when the trial court applies incorrect principles, and is prejudicial when the error materially affects the outcome and deprives the party of substantial rights. Nolan v. Roofing Supply, Inc., 36,403, p. 13 (La.App. 2 Cir. 11/26/02), 833 So.2d 1026,1033-34. In that case, the court found reversible error in the trial court’s refusal to permit the parties to introduce evidence at the hearing on an exception of prescription. The Court noted that La.C.C.P. art. 931 provides that evidence may be introduced to support or to controvert the exception of prescription pleaded prior to trial. Nolan at p. 13, 833 So.2d at 1033.

Because the issue of prescription had been raised, and because prescription was evident on the face of the Petition, Ms. Greenblatt had the burden of proving that her claim had not prescribed. See, Landry v. Blaise, Inc., supra. However, Hgiven the fact that the allegations of the petition show clearly that the matter had prescribed, and there was no allegation that any of the four possible contra non valentem scenarios were present, Ms. Greenblatt’s subpoenaed witnesses could not prove suspension of the apparent prescription.

In light of our disposition of the foregoing assignment of error, the remaining argument concerning insufficiency of service of process is moot.

Although we have affirmed the trial court’s judgment, we find no basis for an award of sanctions for frivolous appeal.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

Concurring.

U respectfully concur.

A party to a lawsuit must specifically plead the peremptory exception of prescription; a court may not take cognizance that a case is prescribed on its own motion.' La. C.C.P.' art. 927 B. Thus the plaintiff/appellant was within her right to file the suit even though on its face the case may appear prescribed.

In the case at bar, the plaintifi/appellant has specifically pled that the doctrine of contra non valentem agree nulla currit praescriptio applies to suspend the libera-tive prescription. That doctrine embraces four possible scenarios: (1) when there is a legal cause that prevented courts, or their officers from taking cognizance of or acting on the plaintiffs action; (2) when there is a condition coupled with the contract or connected with the proceeding that prevent the creditor from suing or acting; (3) when the debtor himself did some act that effectually prevented the creditor from availing himself of his cause of action; and (4) when the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Hendrick v. ABC Ins. Co., 00-2403 (La.5/15/01), 787 So.2d 283, 289, citing Corsey v. State, Through Dept. of Corrections, 375 So.2d 1319, 1321-22 (La.1979).

| ¡/The plaintiff/appellant clearly knew in April 2000 of the existence of the purported libelous statement, although she did not know the specifics. Knowledge of the existence of a potentially libelous statement is sufficient as a matter of law to commence the running of the La. C.G. art. 3492 one-year liberative prescriptive period, obligating the “creditor” (the plaintiff/appellant) to investigate further the contents of the statement. The plain-fifi/appellant contends that she was prevented from learning the contents of the statement until she was granted standing on 5 May 2003 to proceed with her action to remove the defendant/appellee as Emily Greenblatt’s curator. The record before us does not clearly explain why she had to be granted standing to seek the removal of the defendant/appellee as curator in light of the specific provisions of La. R.S. 9:1025.

Unless stipulated by the parties to the suit that the matter will be tried on affidavits or stipulations of facts, a person has a right to have live witnesses testify at the trial of an exception of prescription. In the case at bar, the plaintifl/appellant wished to call live witnesses who were present in court, but the trial court did not permit it. We do not know from the record on appeal precisely what those witnesses would have said if permitted to testify and the plaintiff/appellant did not proffer their testimony. (It is theoretically possible that the plaintiffiappellant’s witnesses would give credible testimony that falls with in the second or third category of contra non valentem that suspended prescription.) But in the absence of a proffer of what the two witnesses would have said if permitted to testify, this court is required as a matter of law to affirm the trial court’s ruling, because the appellant has failed to show what evidence would be produced to show that the doctrine of contra non válentum applies. See La. C.E. art. 103 A(2).

      . Since this paragraph does not relate to the April 2000 conference, we infer that the trial court’s reasons for judgment addressed the allegations contained in paragraph 7 of the Original petition, and not those contained in paragraph 7 of the Supplemental petition.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Thomas J. HALVERSON, Sr. v. USAA CASUALTY INSURANCE COMPANY, et al.
    No. 2006-C-0069.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2006.

      Michael R. Sistrunk, C. Devin Fadaol, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, Counsel for USAA Casualty Insurance Company.
    Kathryn T. Wiedorn, Claudette L. Bien-venu, Pelleteri, Wiedorn & Cooper, L.L.C., New Orleans, Counsel for Lafayette Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge MAX N. TOBIAS Jr.)
   JOAN BERNARD ARMSTRONG, Chief Judge.

hOn the application of USAA Casualty Insurance Company (USAA), we grant certiorari in order to consider the validity of a judgment of the trial court granting Lafayette Insurance Company’s motion for summary judgment on the issue of ranking of UM insurance coverage. For the reasons that follow, we affirm the summary judgment.

On October 24, 2002, Thomas J. Halver-son, Sr. (plaintiff) was rear ended while driving a Chevrolet Tahoe, which was co-leased to him and his employer, E.J. Hal-verson & Associates, Inc.. Plaintiff sued the driver of the vehicle that hit him, settled for policy limits and filed this suit against USAA and Lafayette Insurance Company (Lafayette), both of whom provided UM coverage on the Tahoe. USAA provided $500,000.00 of coverage under an automobile insurance policy, while Lafayette provided $1,000,000.00 coverage pursuant to the “hired auto” clause of a commercial general insurance policy.

USAA and Lafayette filed cross-motions for summary judgment on the issue of ranking of the policies for purposes of Louisiana’s anti-stacking statute. La. R.S. 22:680(l)(c)(ii)(aa). USAA argued that under Louisiana jurisprudence, if 12there is more than one UM policy available on a non-owned vehicle in which the plaintiff is an occupant, then all of the available UM policies are primary. Lafayette, on the other hand, maintains that USAA’s policy is primary because it is an automobile liability policy, issued to the plaintiff, individually, and which names the plaintiff as an insured and specifically lists the Tahoe as a scheduled vehicle. Lafayette contends that USAA’s policy primes Lafayette’s policy, which is a policy of general commercial insurance and provides UM insurance to non-specified, non-owned vehicles and then only under an endorsement to that policy. Furthermore, Lafayette argues that because USAA is the primary insurer in this instance and it is an excess insurer, the policies are non-current, meaning that in order for Lafayette’s policy to take effect, USAA’s UM coverage must first be exhausted. Furthermore, Lafayette argues that the “other insurance” clause of its policy indicates its coverage is excess, not primary.

The trial court granted Lafayette’s motion finding that USAA provided primary UM coverage. We grant USAA’s writ application to consider its claim that the judgment was incorrect as to the ranking of UM coverages.

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Champagne v. Ward, 03-2311, p. 4 (La.1/19/05), 893 So.2d 773, 776. The mover bears the burden of Lproof. La. C.C.P. art. 966(C)(2). If the mover meets this initial burden, the burden then shifts to the other party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137. Thereafter, if the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. Id. The Supreme Court has recognized that a “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A “material fact” is one as to which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

In Petti v. Ordon, 2004-1659 (La.App. 4 Cir. 11/10/04), 888 So.2d 1064, writ denied, 04-2981 (La.2/25/05), 894 So.2d 1150, this Court noted:

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art. 2045.
An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Ins. Guar. Ass’n, 630 So.2d at 763 (collecting cases). Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Id.
Yet, if the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. La. C.C. art. 2046. When |4the language of an insurance policy is clear, courts lack the authority to change or alter its terms under the guise of interpretation. Louisiana Ins. Guar. Ass’n, 630 So.2d at 764.

Petti, at pp. 10-11, 888 So.2d at 1069-70 citing Magnon v. Collins, 98-2822, pp. 5-7 (La.7/7/99), 739 So.2d 191, 196.

With one exception, Louisiana’s anti-stacking statute prohibits insureds from combining or stacking UM benefits either interpolicy or intrapolicy. La. R.S. 22:1406(D) provides, in pertinent part:

(l)(c)(i) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
(ii) With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, the following priorities of recov-
ery under uninsured motorist coverage shall apply:
(aa) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(bb) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

Under the first paragraph of the statute, an insured with insurance available to him under more than one UM policy is limited to recovery under one policy and may not combine or stack the coverage provided under those policies. Under the second paragraph, an exception to the stacking prohibition is permitted if: (1) the | ¡Injured party is occupying' an automobile not owned by him; (2) the UM coverage on the vehicle in which the injured party was an occupant is primary; and (3) the primary UM coverage is exhausted due to the extent of damages. In that instance, the other uninsured motorist coverage available to the injured occupant is considered as excess insurance, under which the injured occupant may recover. Boullt v. State Farm Mut. Auto. Ins. Co., 99-0942, p. 7 (La.10/19/99), 752 So.2d 739, 743. Where no primary coverage exists on the vehicle occupied by the injured party, the exception to the stacking prohibition does not apply. Senegal v. Faul, 598 So.2d 686, 689 (La.App. 3 Cir., 1992).

USAA argues that the trial court’s ruling ignores Louisiana jurisprudence, which supports its argument that both of the insurance policies in this case provide primary coverage on a pro rata basis. USAA notes that primary coverage is the coverage that is applicable to the vehicle in which the person was injured. If, however, that vehicle has more than one UM policy on it, then for purposes of the statute, all such policies are primary, citing Pardue v. Dean, 515 So.2d 543 (La.App. 1 Cir.1987) and Capone v. King, 467 So.2d 574 (La.App. 5 Cir.1985). Neither Pardue nor Capone offers support for USAA’s argument.

In Pardue, the First Circuit concluded that where a plaintiff is injured while occupying an owned automobile, the anti-stacking statute does not prohibit recovery under more than one policy covering the involved vehicle. In Pardue, the plaintiff was injured while occupying an owned automobile upon which there was 1 fia policy of insurance providing UM coverage. The plaintiff alleged that the involved automobile was also covered under a business automobile policy issued to his employer. The court concluded that if plaintiff could prove that his automobile was also covered under the business policy, he could recover under both UM policies without violating the anti-stacking prohibition. In this case, unlike Pardue, there is no dispute as to coverage, only ranking as to primary versus excess. Additionally, Pardue did not involve a non-owned vehicle.

In Capone, the plaintiff, a guest passenger in the host vehicle, sustained injuries in an automobile accident caused by the fault of an uninsured motorist who struck the host vehicle. Because the tortfeasor was uninsured, the plaintiff filed suit against Allstate Insurance Company (Allstate), the host driver’s UM insurer, and Aetna Insurance Company (Aetna), the insurer of the host driver’s employer, because the host driver was en route to a work-related function. Allstate had UM coverage in the amount of $100,000.00, whereas Aetna provided UM coverage for the host driver’s vehicle in the amount of $500,000.00. Additionally, the host driver’s employer held $5 million dollars in UM coverage under an umbrella liability policy issued by Chicago Insurance Company (Chicago). Furthermore, the plaintiff was also insured by a policy issued to her employer by Hartford Accident and Indemnity Company (Hartford). The Fifth Circuit held that the three policies, (i.e., Allstate, Aetna, and Chicago) containing UM coverage for the host vehicle were primary under La. R.S. 22:1406 because each provided coverage for the vehicle the plaintiff was occupying at the time of the accident. The reviewing court further held that any attempt by these three insurers to seek contribution from Hartford would not be favored unless the plaintiffs damages exceeded the primary coverages on the vehicles involved in the subject accident. See La. R.S. |722:1406(D)(l)(c)(ii); Capone, 467 So.2d at 580. In Capone, the court essentially recognized Hartford’s status as an excess insurer by virtue of its umbrella policy and refused to place it on equal footing with the other insurers. However, because Capone does not contain an analysis of the respective insurance policies, it offers no insight into the Court’s basis for deciding that three of the insurers were primary carriers. Moreover, there is no way to determine how the trial court ranked the policies.

USAA next argues that when two policies provide UM coverage on a vehicle in which the plaintiff was an occupant, the proper method used to allocate the coverage between the two policies is to examine the respective “other insurance” clauses.

Under USAA’s “other insurance” clause, the policy reads:

If there is other applicable insurance for uninsured motorist coverage or underin-sured motorist coverage available under one or more policies or provisions of coverage:
* * *
B. Any insurance we provide with respect to a vehicle you do not own will be excess over any collectible insurance unless (emphasis supplied) that vehicle is:
1. A loaner vehicle; or
2. A temporary substitute vehicle or rental private passenger automobile on which you ... have not purchased other applicable insurance, (emphasis supplied).
C. If the coverage under this policy is provided
1. On a primary basis, we will pay only our share of the loss that must be paid under insurance providing coverage on a primary basis. Our share is the proportion that our limit of liability bears to the total of all applicable limits of liability for coverage provided on a primary basis.
2. On an excess basis, we will pay only our share of the loss that must be paid under insurance providing coverage on an excess basis. Our share is |Rthe proportion that our limit of liability bears to the total of all applicable limits of liability of coverage provided on an excess basis.

Lafayette maintains that Section B(2) of USAA’s policy mandates primary coverage because the plaintiff did not purchase other applicable insurance. USAA counters Lafayette’s position by arguing that the plaintiff did in fact purchase other insurance — the Lafayette policy. However, the “other insurance” provision of Lafayette’s policy reads:

The OTHER INSURANCE condition is replaced by the following:
a. This insurance shall be excess over any primary uninsured motorists insurance specifically covering the “hired auto” or “non-owned auto”, (emphasis supplied)
b. Whether or not there is collectible primary uninsured motorists insurance, the total limit available for recovery of damages from all uninsured motorists insurance coverages or policies written on an excess basis shall be the limit of the one such insurance coverage or policy having the highest limit. We will pay our pro rata share of that limit.

USAA argues that paragraph (b) of the Lafayette policy’s “other insurance” provision provides that Lafayette is to share UM coverage with USAA on a pro rata basis. However, paragraph (b) states only that if there is more than one excess policy, Lafayette will pay pro rata. Considering the verbiage of both policies, it appears USAA’s coverage is primary; that being so, there is only one excess policy, consequently paragraph (b) is not triggered.

Based upon the wording of the policies, the trial judge did not err in granting partial summary judgment in favor of Lafayette.

For the foregoing reasons, we affirm the judgment of the trial court.

WRIT GRANTED; SUMMARY JUDGMENT AFFIRMED.

JONES, J., concurs in the denial of the writ.

      . Plaintiff is the owner of E.J. Halverson & Associates, Inc.

      . There are three basic types of "other insurance” clauses: pro rata, excess and escape. A pro rata clause provides for a sharing of responsibility among the insurers. Excess clauses provide that the coverage of the policy will be excess over other valid and collectible insurance so that the insurer will have no obligation to pay until the first layer of "pri-maiy” coverage is exhausted. An escape clause provides that the coverage is applicable only if there is no other coverage available to the insured. See generally Shaffer v. Stewart Const. Co., Inc., 2003-0971 (La.App. 5 Cir. 1/13/04), 865 So.2d 213, writ den. 04-0420 (La.4/2/04), 869 So.2d 886.

      . La. R.S. 22:1406 was amended by 2003 La. Acts, No. 456, §§ 1 and 2, and was re-designated as La. R.S. 22:680 by § 3 of that act. Because the facts underlying this lawsuit occurred before that revision and re-designation, the former statutory provisions and designation are used herein.

      . In Boullt, the Louisiana Supreme Court allowed recovery by each of two divorced parents under their respective policies for the wrongful death of their daughter, holding that such recovery did not violate the state’s anti-stacking statute. The Boullt court viewed recovery under both policies not as stacking, but as separate recoveries for individual insureds under separate policies covering the same accident. "The question of 'stacking' only arises once it is determined that the person seeking to cumulate benefits on two or more uninsured motorist coverages is an insured under the terms of those policies." Boullt, 99-0942 at p. 7, 752 So.2d at 743, quoting Seaton v. Kelly, 339 So.2d 731, 735 (La.1976).

      . See footnote 2, infra.


author: LEON A. CANNIZZARO, Jr., Judge.

text:
    Garrett GRIGGS and Stephen Livaudais v. HARRAH’S CASINO, Jazz Casino Corporation and IGT, Incorporated.
    No. 2005-CA-0321.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2006.

      Jacques F. Bezou, the Bezou Law Firm, Covington, Counsel for Plaintiff/Appellee, Garrett Griggs.
    Lloyd N. Frischhertz, Jr., Frischhertz and Associates, New Orleans, Counsel for PlaintiffAppellee, Stephen Livaudais.
    Ira J. Rosenzweig, Stacy :R. Palowsky, Adams, Hoefer, Holwadel & Eldridge, L.LC., New Orleans, Counsel for Defendant/Appellant, IGT, Inc.
    (Court Composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, Jr., Judge ROLAND L. BELSOME).
   LEON A. CANNIZZARO, Jr., Judge.

hThis case involves a dispute over whether the plaintiffs, Garrett Griggs and Stephen Livaudais, won a slot machine jackpot. IGT, Inc., one of the original defendants in the case, is now appealing the trial court’s decision in favor of the plaintiffs.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

At approximately 12:30 a.m., the plaintiffs went to Harrah’s Casino in New Orleans and gambled in the casino for several hours. As they were leaving the casino between approximately 8:00 and 8:30 a.m., they decided to play some games on a Wheel of Fortune progressive slot machine. Mr. Griggs and Mr. Livaudais each contributed one half of the $40.00 that was inserted into the machine when they began playing. Mr. Livaudais played two rounds on the machine but did not win anything. Mr. Griggs then began to play.

| PMr~ Livaudais and Mr. Griggs testified that when they played the rounds on the machine that they did not win, the machine was operating normally. There were three reels on the slot machine, and if a jackpot was won, all three reels would line up on the payline showing the words “Wheel of Fortune.” The reels did not line up, however, until the round in question in this lawsuit was played.

According to the testimony of both Mr. Griggs and Mr. Livaudais, when Mr. Griggs played that round, he pushed the spin button on the machine to begin a new round of play, and all three reels on the machine started spinning normally making several complete rotations. Then, according to their testimony, the first reel stopped, and the Wheel of Fortune symbol on that reel lined up on the machine’s payline. Next, the second reel stopped, and the Wheel of Fortune symbol on that reel lined up on the machine’s payline. Finally, the third reel stopped, and the Wheel of Fortune symbol on that reel lined up on the machine’s payline. Mr. Livaudais testified that when the symbols were lined up on the payline, blue and white lights on the machine came on, and he heard the machine emit a different sound from the one that he had been hearing. Mr. Livaudais, who was not familiar with the Wheel of Fortune television show theme song, said that he did not recall hearing the machine play a theme song. Mr. Griggs testified, however, that he did hear the theme song.

Mr. Livaudais and Mr. Griggs testified that they knew that they had won a jackpot, but neither of them knew that they had won the progressive jackpot. They also said that they began to celebrate their win.

Mr. Livaudais testified that the three reels on the Wheel of Fortune slot machine were stationary with the three Wheel of Fortune symbols remaining on the payline for twenty to thirty seconds. Mr. Livaudais further stated that shortly |,-¡after the three reels showing the Wheel of Fortune symbol stopped on the payline and the blue and white lights came on, a Harrah’s employee arrived at the slot machine and opened it. He said that when the machine was opened, the three reels started spinning in a slow, jerking motion and the blue light went off. Mr. Griggs recalled that after the machine showed that a jackpot had been won, a slot machine technician “stuck his card in the top of the machine,” something that Mr. Griggs recognized as normal procedure. Then the technician inserted a key in the side of the machine to open its door. Mr. Griggs “did not feel he [the technician] needed to be there messing with the machine until the appropriate people were there,” and he attempted to prevent the technician from doing anything further with the machine.

Two eyewitnesses to the alleged winning of the jackpot testified at the trial. The two eyewitnesses were Ronnie Westley and Adolph M. Ringen.

Mr. Westley described himself as a “lurker” at the casino. He explained that as a lurker he tried different machines trying to get a “hit.” He would watch a person playing a machine to determine how it was “playing,” and when the person left the machine, Mr. Westley would try his luck on the machine.

Mr. Westley testified that while he was watching Mr. Griggs play the Wheel of Fortune slot machine, “their machine hit.” Mr. Westley said that he saw the three Wheel of Fortune symbols line up on the payline, and he saw white and blue lights start to flash. He estimated that the symbols remained evenly aligned on the pay-line for ten to twenty seconds. Mr. West-ley did not remember whether he heard any difference in the sounds emitted by the slot machine after the three reels lined up with the Wheel of Fortune symbols on the payline.

|4Mr. Westley further testified that a “tech” inserted a key into the side of the slot machine and was “unlocking the machine.” When that happened, he observed that the blue light was no longer on. He also said that the technician stated that the machine had malfunctioned, and Mr. West-ley related that the “tumbling” was then “hesitating, going around and stopping.” Mr. Westley additionally testified that he had won jackpots before and that, therefore, he knew how a slot machine indicated that a jackpot had been won. He stated that he was “[o]ne hundred percent” positive that he saw a jackpot being won on the Wheel of Fortune machine played by Mr. Griggs.

Mr. Westley said that he had not known the plaintiffs prior to the time that they won the jackpot on the slot machine. He also admitted that he initially did not want to help Mr. Griggs, because he thought Mr. Griggs was being ill mannered. When Mr. Griggs ultimately “came down to earth,” however, Mr. Westley decided to give a statement when casino personnel said that because the slot machine had malfunctioned, a jackpot had not been won.

The second eyewitness to the events in question was Mr. Ringen. He testified that he goes to casinos “[q]uite regularly” and has won “some significant jackpots.” Mr. Ringen also testified that he was playing at the dice tables in Harrah’s casino when Mr. Livaudais and Mr. Griggs were at the Wheel of Fortune slot machine. Mr. Ringen had been playing at that same machine earlier, and he was watching the plaintiffs play, because “I was looking over there to see if they, per chance, might win something; which, you know, as a gambler, you’re always, you know, ‘That jackpot could have been mine.’ ” Mr. Ringen said that the dice table was located diagonally across from the slot machine.

| sMr. Ringen testified that he observed the plaintiffs at the slot machine “in between rolls or in between other people rolling the dice.” He related that he had “kind of turned away, and all of a sudden you hear a scream.” He said that he knew a jackpot had been won. He looked at the machine where the elation was occurring, and “sure enough, there were the three Wheel of Fortune emblems on the silver payline that indicates that they had won the progressive jackpot.” Mr. Ringen explained that when he was looking at the machine, he “was focusing on the payline.” When Mr. Ringen was asked at the trial whether he had heard any particular sounds signifying that a jackpot had been won, he said that he did not remember any sounds.but that he was hard of hearing and was not wearing his hearing aid at the casino. Mr. Ringen also said that a blue light and a white light came on while the Wheel of Fortune symbols were aligned on the payline of the slot machine, but on cross-examination, Mr. Ringen at one point seemed unable to say with absolute certainty that he saw the white and blue lights on the machine flashing.

Mr. Ringen testified that “[t]he wheels were frozen on the jackpot position on the payline for a length of time, and then all of a sudden, they started to roll.” He said that he had witnessed tilts in slot machines before but that what was occurring on the Wheel of Fortune machine “was very irregular as far as a tilt that I’ve ever witnessed.” Although Mr. Ringen could not say how long the three Wheel of Fortune symbols remained aligned on the pay-line, he did say that “it was enough time to witness it.”

IfiMr. Ringen testified that “within ten minutes,” a slot machine technician “came and they opened the machine and took out what ... they call the board or the chip ... and they removed that.” Mr. Ringen further said that he went over to Mr. Livaudais and Mr. Griggs to ask them whether they had wagered “the three coins or ... one coin or two coins.” They would have been eligible to win the progressive jackpot only if they had wagered the maximum bet of three coins. Because the reels had begun to roll after all three of the Wheel of Fortune symbols had stopped on the payline, he wondered if the rolling occurred, because the maximum bet had not been wagered.

Mr. Ringen testified further that he had not seen Mr. Livaudais or Mr. Griggs do anything to the machine, such as moving it, kicking it, or hitting it, that could cause a tilt. Mr. Griggs also testified that neither he nor Mr. Livaudais had done anything that could cause the machine to tilt, including putting slugs in the machine. Mr. Griggs said that he was not using the arm of the slot machine to play the machine, which can sometimes cause an inadvertent tilt to occur. Instead, he used the button on the machine to play.

Mr. Griggs and Mr. Livaudais testified regarding the events that occurred after the plaintiffs appeared to have won the jackpot on the Wheel of Fortune slot machine and the technician had opened the machine. The technician and another man who worked for the casino left the area, and two other men, who were wearing suits, approached. Louisiana State Police Department officers were with the two men wearing the suits. Mr. Livaudais testified that the casino representatives told Mr. Griggs and him that the Wheel of Fortune slot machine had malfunctioned, and they were asked to “sign a piece of paper and leave the casino.” He also said that they were threatened with arrest if they did not leave. |7Mr. Griggs described the piece of paper mentioned by Mr. Li-vaudais as a disputed claim form. When Mr. Livaudais realized that the jackpot win was being disputed by the casino representatives, he telephoned his uncle, Lloyd N. Frischhertz, Jr., who is the attorney representing Mr. Livaudais in this case, for advice.

Thomas Livaudais, Mr. Livaudais’ father, testified regarding the events that occurred after his son called Mr. Frisch-hertz. Mr. Thomas Livaudais had spent the night at Mr. Frischhertz’s home, and when Mr. Livaudais called, Mr. Thomas Livaudais answered the telephone. He said that his son was “frantic” and “pretty hysterical” and wanted only to speak with Mr. Frischhertz. Before Mr. Frischhertz came to the telephone, Mr. Livaudais told his father that he had “hit the jackpot at Harrah’s Casino and they won’t give us our money.”

Mr. Thomas Livaudais testified that he and Mr. Frischhertz both went to the casino where they saw “maybe thirty people from Harrah’s Casino and a few State Police and some other officials all standing around -” Some of the Harrah’s officials told Mr. Thomas Livaudais and Mr. Frischhertz what had occurred. Mr. Thomas Livaudais related that Mr. Frisch-hertz told the officials not to touch the Wheel of Fortune slot machine, because he was going to obtain a court order regarding what should be done with the machine.

At the trial, several witnesses testified regarding how a slot machine works and the method used to verify that a jackpot has been won on a slot machine. Ali Saf-fari, Senior Vice President of Firmware and Operating Systems at IGT, testified that he had worked for IGT for almost eighteen years. He had degrees in accounting and management, information systems and computer science, and electrical engineering. He explained that gaming machines are heavily regulated by the states and must meet strict standards of quality so that the machines are |srandom, are fair to the players, and comply with the applicable state law requirements for gaming machines.

Mr. Saffari explained that a jackpot from a slot machine is determined through the process of random number generation, which means that a computerized system that has been programmed to select numbers at random determines whether a jackpot is won. Based on the random number selected, each reel on a slot machine stops at a particular location that corresponds to a number selected at random by a computer. It is these randomly generated numbers that determine whether or not a jackpot has been won. If a malfunction occurs and the random numbers are not selected by the computer, there can be no jackpot. Therefore, to verify whether or not a jackpot has been won, an independent gaming laboratory may be used to confirm the jackpot by analyzing the computer microprocessor from the slot machine where the jackpot was allegedly won.

Mr. Saffari testified that in the instant case the slot machine computer detected a problem with the third reel on the Wheel of Fortune machine. He stated that because a problem was detected, the slot machine then indicated that a tilt had occurred, and no random numbers were generated by the computer. Without the generation of random numbers, a jackpot cannot be won.

Mr. Saffari said that when a jackpot is won, there are certain things that happen to indicate that it has been won. He confirmed that when a jackpot is won, the three Wheel of Fortune reels stop on the payline and remain there for at least ten or twenty seconds and a white light and a blue light are illuminated.

|9IGT also called Michael Jensen as a witness at the trial. Mr. Jensen was the national operations manager for the mega jackpots department at IGT. He explained that the Wheel of Fortune slot machine involved in the instant case was owned by IGT and that IGT was solely responsible for paying any progressive jackpots won on that machine.

Mr. Jensen testified that when a jackpot is won on a Wheel of Fortune slot machine, the Wheel of Fortune theme song plays continuously, the bells on the machine ring, and the “candle” on the top of the machine flashes. The candle has two sections, the top of which contains a white light and the bottom of which contains either a blue, red, or orange light. When a jackpot is hit, both sections of the candle flash very fast and very frequently. In the case of a tilt, however, only the top portion of the candle, the white light, flashes. Mr. Jensen further stated that the reels remain frozen in place after a jackpot has been won until the game has been reset after the jackpot is verified.

Lieutenant George Dean, who had been a gaming officer in the Louisiana State Police Department for twelve years, testified regarding casino operations. He said that the state police department oversees casino operations. He also explained the meaning of the phrase “malfunction voids all pays and plays” that was located on the Wheel of Fortune slot machine at issue in this case. He said that if a slot’machine malfunctions, the game is not complete. Therefore, there is no play, and if there is no game, there can be no payout. Additionally, Lieutenant Dean said that casinos are not required to maintain constant surveillance of slot- machines, although such surveillance is required for gaming tables.

Lieutenant Dean further testified regarding the procedures followed by the state police when a large jackpot has allegedly been won in a casino. He said that hnthe casino slot technicians notify the slot managers. The managers are actually on the floor of the casino supervising its operations. The managers then notify the security personnel and the surveillance personnel at the casino. The surveillance personnel are required to “zoom a camera into the location of the machine” when a jackpot is won on a slot machine. Lieutenant Dean testified that he had not, however, seen a film of the slot machine taken with a zoom lens in connection with the jackpot allegedly won by the plaintiffs.

Pursuant to state law, the state police oversee the activities involved in determining whether a jackpot has, in fact, been won. Lieutenant Dean confirmed that police personnel under his command conducted an investigation in the instant casé. As a result of the investigation, it was determined that a jackpot had not been won. Gaming Laboratories International, commonly known by the acronym GLI, was consulted in connection with the investigation. GLI is an independent testing laboratory for gaming equipment, and it is used by government gaming regulators worldwide to test equipment for compliance with applicable laws. GLI tested the microprocessor from the slot machine in the instant case and concluded that there had been no random number generation by the microprocessor.

Lieutenant Dean confirmed that in the instant case the technician’s insertion of a card into the Wheel of Fortune slot machine, the opening of the machine with a key, and the removal of the machine’s computer component after the jackpot was allegedly won were all required to be filmed pursuant to state regulations. He admitted, however, that he had not seen such a film.

Charles Johnson, who was the slot supervisor at Harrah’s when the alleged jackpot was won, testified at the trial that tilts are normally cleared by opening a slot machine, correcting the problem that caused the tilt, and closing the machine. InThe machine is then put back in service. After a Harrah’s slot technician summoned Mr. Johnson regarding the Wheel of Fortune slot machine on which the plaintiffs allegedly won the progressive jackpot, Mr. Johnson observed that the reels on the machine were spinning, that a light was flashing, but that the Wheel of Fortune theme song was not playing. He testified that what he observed indicated that a malfunction had occurred. He said that when a jackpot is won, the reels on the machine stop and lock in place, the white and blue lights flash simultaneously, and the Wheel of Fortune theme song plays continuously. He also said that in the case of some types of reel tilts, both the white light and the blue light on the machine flash.

Finally, Mr. Johnson confirmed that a reel tilt code for the third reel of the machine was recorded and reported on Harrah’s monitor at 8:32:30 a.m. and that the IGT monitoring report of the reel tilt reflected that it occurred at 8:29:47 a.m. A Harrah’s surveillance videotape, however, showed that the lights on the machine started flashing at 8:23 a.m. Mr. Johnson could not explain why a reel tilt was not recorded until almost ten and seven minutes, respectively, after the casino’s videotape showed that the lights had begun to flash.

James Edward Oatman, the GLI engineer who personally performed the forensic evaluation of the Wheel of Fortune slot machine to determine what occurred when the jackpot was allegedly won by the plaintiffs, testified at the trial. Mr. Oatman was qualified as an expert in slot machine operation, programming, and forensic evaluation. Based on his forensic evaluation, Mr. Oatman determined that the Wheel of Fortune machine on which the plaintiffs allegedly won a jackpot l^had malfunctioned before any random number generation had occurred. Therefore, the plaintiffs could not have won the progressive jackpot that they claimed to have won.

A film was made of Mr. Oatman as he performed the forensic testing. Although a replica of the slot machine was used in the tests he performed, he used the original data from the actual microprocessor that was removed from the Wheel of Fortune slot machine at Harrah’s. Mr. Oat-man testified that the data from the microprocessor definitively showed that the third reel of the slot machine had tilted as shown by the code fifty-three that was displayed. That code is displayed only when a tilt occurs in connection with the third reel. Mr. Oatman said that when the reels were spinning prior to the generation of the random numbers for the game being played, a problem with the third reel was discovered by the machine. The machine was programmed not to select random numbers until the tilt was cleared. Thus, Mr. Oatman concluded that there had been no random number generation, and no jackpot could have been won.

Mr. Oatman was asked at the trial about a statement that he made on the videotape of the forensic evaluation to the effect that “the outcome was lost.” Mr. Oatman confirmed that he misspoke when he said that. He further asserted that no data from the machine was lost. Additionally, he said that if a jackpot had been won, and then a tilt had occurred after the jackpot had been won, the win would have remained in the memory of the computer in the slot machine. Mr. Oatman also testified that he “absolutely” did not believe that the three Wheel of Fortune symbols had been stationary on the payline for twenty seconds. He did admit, however, that if, in fact, a surveillance tape had clearly shown that this had occurred, he would question his data.

The deposition of Orval Todd Rich, the plaintiffs’ expert witness, was read at the trial. He was accepted by the trial court judge as an expert in slot machines, “specifically progressive slot machines with regard to the manner in which they operate and run to completion and display an outcome.” In his deposition, Mr. Rich testified that he had been in military service and that when he left the service, he had the equivalent of a bachelor’s degree in electronics and hydraulics and robotics. His first job in the gaming industry was with GLI, which he said was the “foremost independent laboratory as far as the testing of gaming equipment in the world.” Mr. Rich testified that while he was employed by GLI, he tested over a million slot machines, assisted in opening over fifty casinos, and trained certain gaming personnel but not slot technicians. He also assisted the engineers when IGT installed its first progressive slot machines in Louisiana.

Mr. Rich further testified that he had tested progressive slot machines with respect to all aspects of the machines’ play to verify that the machines were functioning properly. He had also been the lead field agent for Harrah’s temporary casino in New Orleans, and in that capacity, he had been required to verify that the casino met state regulations in connection with the progressive slot machines at that location.

Mr. Rich admitted in his deposition testimony that he had neither inspected nor tested the Wheel of Fortune slot machine involved in the instant case or its microprocessor. He also stated that he had not reviewed the computer program that operated the Wheel of Fortune machine, and he further admitted that he did not know how to program a computer.

In forming an opinion regarding the events that occurred when the plaintiffs allegedly won the progressive jackpot on the Wheel of Fortune slot machine, Mr. 1 uRich reviewed a number of items, including the surveillance videotape of the plaintiffs playing the slot machine, affidavits of eyewitnesses, the applicable state gaming regulations, and reports from the state police department and from GLI. Mr. Rich testified that after reviewing these items, he relied on the eyewitness accounts of the events that occurred to form an opinion that the Wheel of Fórjame slot machine played by the plaintiffs was properly operating when random number generation occurred and that the plaintiffs legitimately won the progressive jackpot on that machine.

Mr. Rich further opined that the random numbers that were .generated in connection with the winning jackpot were stored in the temporary memory of the slot machine’s computer and that the temporary memory was “lost or corrupted at the time of the slot machine being powered off and powered on.” He further testified in his deposition that “you would lose present play values by turning off the machine and turning it back on.” Mr. Rich said that in the case of a reel tilt, one would “simply clear the rear [sic] tilt usually done by a key switch on the side of the machine.” The machine would not be turned off to do that. If a reel tilt on a slot machine cannot be cleared with the key switch and there is a question regarding the winning of a jackpot on that machine, according to Mr. Rich’s testimony, the appropriate procedure would be “to shut the machine off and before repowering it send the boards in question to GLI and allow them to look at it on their equipment there.”

Another witness at the trial was James Maida, the president and chief executive officer of GLI. Mr. Maida, who held a degree in engineering and computer science as well as a law degree, was accepted as an expert in slot machine operations, programming, and the flow sequence of program and analysis.

|1fiMr. Maida testified that GLI’s conclusion, after testing the processor from the Wheel of Fortune slot machine at issue in this case, was that a reel tilt involving the third reel on the machine had occurred during the initial revolution of the reels. He further stated that no random numbers were ever generated and that the game was never started. Thus, because of the tilt, no game was played, and no jackpot was won.

Mr. Maida strongly disagreed with Mr. Rich’s position that any values were lost from the Wheel of Fortune machine’s temporary memory. Mr. Maida acknowledged that he had heard Mr. Oatman say on the videotape of the forensic testing conducted by GLI that the game was lost. Mr. Mai-da testified, however, that Mr. Oatman had simply misspoken. Mr. Maida further testified that although the reels on the slot machine could have come to a complete stop as a result of the reel tilt, they “would not have stayed there ten seconds.”

In the instant case Harrah’s Casino, Jazz Casino Corporation, and IGT were sued by the plaintiffs, but the only defendant remaining at the time of the trial was IGT. There were two trials in the instant case. The first trial ended in a mistrial, because the jury was unable to reach a verdict. The second trial ended in a verdict in favor of the plaintiffs with ten out of the twelve jurors finding in favor of Mr. Livaudais and Mr. Griggs.

The trial court judge originally rendered a judgment in favor of the plaintiffs awarding them $1,357,692.36 plus interest from the date of judicial demand until paid plus the costs of the proceedings. IGT filed a motion for a new trial on the grounds that the evidence at the trial had conclusively shown that the jackpot allegedly won by the plaintiffs was payable in twenty annual installments rather than in a single lump sum. Additionally, taxes would have to be withheld from the h ¿winnings, and the original judgment did not reflect that. The trial court granted the motion for a new trial, and an order was issued amending the judgment to provide that the jackpot “shall be paid to the plaintiffs in the same manner as if the jackpot had been won and verified on July 9, 2000 with legal interest from the date of judicial demand.” IGT also filed a motion for a judgment notwithstanding the verdict, but that motion was denied by the trial court. The instant appeal is from the original judgment, as it was amended by the order.

STANDARD OF REVIEW

Findings of Fact

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court stated that it is well settled that an appellate court may set aside a factual finding of a trial court or a jury only where the finding was based on a “manifest error” or was “clearly wrong”. Id. at 844. Further, where there is conflict in the testimony, a trial court’s or a jury’s reasonable evaluations of credibility and reasonable inference of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court or jury. Id. Finally, where there are two permissible views of the evidence, the trial court’s or jury’s choice between them cannot be manifestly erroneous or clearly wrong. Id. See also Harvey v. Cole, 00-1849, p. 3 (La.App. 4 Cir. 1/23/02), 808 So.2d 771, 776.

If the trial court or a jury has based its findings of fact on a determination regarding the credibility of the witnesses, the manifest error or clearly wrong standard of review requires even greater deference to the findings of the trier of fact. Rosell, 549 So.2d at 844. This is because only the finder of fact can be aware |17of the variations in the demeanor and tone of voice of the witnesses that bear so heavily on the listener’s understanding of and belief in what is said. Id.

In LeBlanc v. Stevenson, 00-0157, p. 3 (La.10/17/00), 770 So.2d 766, 770, however, the Louisiana Supreme Court stated that “[ajlthough the appellate court must accord deference to the trial court, it is cognizant of our constitutional duty to review facts, not to decide if it, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support.” A trial court’s factual finding may not be reversed unless (1) the record reflects that a reasonable factual basis for the findings does not exist, or (2) the record establishes that the findings are clearly wrong or manifestly erroneous. Id.

Where the findings of the trier of fact are manifestly erroneous or clearly wrong, or where the correct law has not been applied in reaching those findings, the Rosell case instructs the appellate courts as follows:

Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits.

549 So.2d at 844, n. 2.

Errors of Law

With respect to issues of law, the appellate court is required to determine whether the trial court’s decisions are legally correct. Glass v. Alton Ochsner Medical Foundation, 02-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405. See also Sander v. Brousseau, 00-0098, p. 4 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 711. Where a decision of a court is based on an erroneous application of law rather than a valid exercise of discretion, the trial court’s decision is not entitled to 11Sdeference from the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-72 (La.1983).

DISCUSSION

IGT has raised five assignments of error. We will examine each of them using the applicable standards of review.

Assignment of Error A: The jury and the trial court erred as a matter of law in determining that the plaintiffs met the legal requirements for a jackpot.

Assignment of Error B: The jury and the trial court ignored the evidence and manifestly erred in concluding that the plaintiffs won a jackpot.

Because these two assignments of error are interrelated, we will discuss them together. The issue raised by both assignments is whether the jury’s determination that the plaintiffs won the progressive jackpot on the Wheel of Fortune slot machine is supported by the law and the evidence.

IGT asserts that because the outcome of a game played on a slot machine is determined by the generation of random numbers by a computer that is located inside the slot machine, eyewitness evidence is a legally insufficient basis for determining whether or not a jackpot has been won on a slot machine. IGT further asserts that because the sufficiency of the evidence in a case is a question of law, the manifest error standard of review is inapplicable in the instant case.

The Louisiana Gaming Control Law, La. R.S. 27:1 et seq., established the Louisiana Gaming Control Board, which is responsible for regulating all gaming activities and operations in the state. La. R.S. 27:15. The Louisiana Gaming Control Board is mandated by La. R.S. 27:24 to promulgate all rules and regulations necessary to carry out the provisions of the Louisiana Gaming Control Law. Pursuant to that mandate and in accordance with the Louisiana |1flAdministrative Procedure Act, La. R.S. 49:950 et seq., the board has promulgated the required regulations.

The regulations provide that all electronic gaming devices “shall be electronic in design and operation and shall be controlled by a microprocessor or micro-controller or the equivalent.” 42 LAC IX:4203(A)(1). See also 42 LAC IX:4329(A)(1). The regulations further provide that a random selection process must be used to determine the outcome of each play of a game. 42 LAC IX:4203(A)(3), 42 LAC IX:4329(A)(3). Additionally, the devices must be able to continue a game without any loss of data if a power failure occurs. 42 LAC IX:4203(A)(9), 42 LAC IX:4329(A)(9). The regulations also state that electronic gaming devices shall display an accurate representation of the outcome of each game by using either (a) rotating wheels, (b) video monitoring, or (c) any other type of display mechanism that accurately depicts the game’s outcome. 42 LAC IX:4209(A)(2)(e)(viii). Finally, the regulations require rules of play to be displayed on all electronic gaming devices. 42 LAC IX:4203(A)(5), 42 LAC IX:4329(A)(5). The phrase “any malfunction voids all plays and pays” was conspicuously displayed on the Wheel of Fortune slot machine at issue in this case.

None of these regulations are in dispute. Both the plaintiffs and IGT agree that before a jackpot can be won, there must be random number generation by a microprocessor housed within the Wheel of Fortune slot machine. The parties similarly agree that if a malfunction in the Wheel of Fortune slot machine occurs, the game is void and no jackpot can be won.

The parties disagree, however, on the type of proof that is required to show that a jackpot has been won. The proof offered by IGT consisted of forensic tests conducted on the microprocessor that was housed in the Wheel of Fortune slot l¡,nmachine played by the plaintiffs. The tests were designed to determine whether random number generation had occurred on the slot machine to produce a winning combination. The proof offered by the plaintiffs consisted of eyewitness testimony that the slot machine played by the plaintiffs performed in the same manner that a slot machine performs when a jackpot is won. According to eyewitness testimony, the reels, the use of which is one of the three permissible methods for displaying an accurate representation of a game outcome as required by 42 LAC IX:4209(A)(2)(e)(viii), all stopped and remained stationary on the machine’s payline for approximately twenty seconds. Other evidence consisted of the eyewitness testimony that the other indicia of a jackpot win were also displayed by the Wheel of Fortune machine played by the plaintiffs. The eyewitnesses testified that the indicia of a jackpot win on the Wheel of Fortune machine ceased only when a slot technician opened the machine.

In the instant case, we find that there is sufficient evidence to support the jury’s finding of fact that a jackpot was, in fact, won by the plaintiffs. Four people testified that they saw the indicia of a jackpot win. They described in detail what they saw, and their descriptions of what they observed matched the descriptions given by IGT’s witnesses of how the Wheel of Fortune slot machine visually and aurally indicates that a jackpot has been won. The jury could well have concluded that the outward manifestation of a jackpot win was evidence that the computer inside the Wheel of Fortune slot machine had caused the win to occur through its random number generation. We also note that Mr. Oatman, the engineer who conducted the forensic testing of the microprocessor from the Wheel of Fortune slot machine at GLI, admitted that if, in fact, a surveillance videotape had clearly 1^ shown that the three Wheel of Fortune symbols had remained aligned and in position on the pay-line for twenty seconds, he would question his forensic data.

IGT’s position that a winning combination for a jackpot must be the result of computerized random number generation is legally correct. Had the forensic testing of the Wheel of Fortune’s microprocessor shown that random number generation had occurred, there would have been no dispute that the jackpot in this case was won. Both the forensic evidence and the eyewitness testimony would have matched. Although there was forensic evidence that a jackpot win did not occur, there was the testimony of four eyewitnesses that a win did occur.

IGT contends that its forensic evidence is conclusive regarding whether or not a jackpot was won. Nevertheless, even IGT’s witnesses admitted that nothing is infallible. Additionally, the plaintiffs expert, Mr. Rich, explained that there are ways that the data from the game in which the plaintiffs allegedly won the progressive jackpot could have been lost prior to the delivery of the computer’s microprocessor to the GLI testing laboratory. He testified that when the power to a slot machine is turned off and then turned on again, it is possible to lose the data of the game that was last played. Also, Mr. Oatman, who performed the forensic testing, admitted that on the videotape of the forensic testing, he said at one point that the data had been lost. Although he claimed that he misspoke when he said that, the jury could have determined that he did not misspeak and that the data of the winning game had been lost.

The jury weighed the evidence and concluded that the evidence presented by the plaintiffs had more probative value than the evidence presented by IGT. The jury may have also made credibility determinations regarding the veracity of the testimony of the witnesses. Thus, we cannot say that the jury’s decision was |2aclearly wrong or manifestly erroneous. Therefore, even if we disagree with the jury, we cannot substitute our judgment for the factual determination made by the jury. See Rosell, 549 So.2d at 844.

IGT also asserts in its assignment of error that the law prohibits the payment of a jackpot when a slot machine has malfunctioned. In the instant case, however, the plaintiffs do not disagree that a malfunction or reel tilt occurred in the Wheel of Fortune machine. They are simply claiming that the malfunction occurred after the completion of the game in which they allegedly won the progressive jackpot. The bet is wagered when the game is played, and when the game is completed, the result is final. A machine malfunction that occurs subsequent to a jackpot being legitimately won does not invalidate the jackpot. The phrase “any malfunction voids all plays and pays” that was displayed on the Wheel of Fortune slot machine clearly does not apply to a play that has been completed or to a jackpot that has already been won prior to the malfunction.

We do not find that the trial court or the jury erred as a matter of law in determining that the plaintiffs won the jackpot. These assignments of error are without merit.

Assignment of Error C: The trial court erred in accepting Todd Rich as an expert and allowing him to testify on behalf of the plaintiffs.

In this assignment of error, IGT argues that Mr. Rich was unqualified to act as an expert witness. IGT asserts that because Mr. Rich neither examined the Wheel of Fortune slot machine on which the progressive jackpot was allegedly won by the plaintiffs nor the data extracted from the machine’s microprocessor, he simply advocated a particular factual finding based on the same evidence that was presented to the jury.

|asLa. C.E. art. 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of any opinion or otherwise.” In Cheairs v. State of Louisiana, through the Department of Transportation and Development, 03-0680, p. 6 (La.12/3/03), 861 So.2d 536, 541, the Louisiana Supreme Court stated that “[a] district court’s decision to qualify an expert will not be overturned absent an abuse of discretion.” Additionally, the Supreme Court in Cheairs also stated that “[gjenerally, the fact that a witness does not have a college degree does not disqualify him from testifying as an expert if the witness has sufficient experience.” 03-0680, p. 8, 861 So.2d at 542.

Although Mr. Rich did not have a college degree, as did several of the witnesses for IGT, he testified that he had received equivalent training while he was in military service. Additionally, he had worked for GLI where he said that he tested slot machines, assisted in opening casinos, and trained gaming personnel. Mr. Rich also testified that he had tested progressive slot machines with respect to all aspects of the machines’ play to make certain that the machines were functioning properly. He had also been the lead field agent for Harrah’s temporary casino in New Orleans, and in that position he was required to assure that the casino complied with state regulations in connection with progressive slot machines.

Mr. Rich was qualified as an expert primarily with regard to the manner in which progressive slot machines “operate and run to completion and display an outcome.” Based on Mr. Rich’s experience and training, we cannot say that the trial court judge abused her discretion in accepting Mr. Rich as such an expert. 124Although Mr. Rich admitted that he could not independently determine whether the Wheel of Fortune machine validly selected a winning combination of numbers by random number generation, he did testify regarding how progressive slot machines function and how game data is stored and retrieved from a slot machine.

The jury was free to accept or reject Mr. Rich’s testimony, but the trial court judge was properly acting within her discretion when she accepted Mr. Rich as an expert witness. This assignment of error is without merit.

Assignment of Error D: The trial court erred when it excluded evidence of Garrett Griggs’ criminal historg.

La. C.E. art. 609 sets forth the rules pursuant to which evidence of a criminal record may be introduced in a civil case for the purpose of attacking the credibility of a witness. The general rule is that no evidence of the details of a crime of which a witness was convicted may be introduced into evidence. It is, however, permissible to introduce “evidence of the name of the crime of which he was convicted and the date of the conviction,” provided that the crime meets certain requirements. Pursuant to article 609 evidence of the conviction may be introduced if the crime:

(1) Was punishable by death or imprisonment in excess of six months under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party; or
(2) Involved dishonesty or false statement, regardless of the punishment.

La. C.E. art. 609(A)(1)—(2). Further, evidence of a criminal conviction cannot be admitted into evidence if more than ten years have elapsed since the conviction. La. C.E. art. 609(B).

12fiWe have reviewed the proffered evidence of Mr. Griggs’ criminal convictions. Within the ten-year time limitation for the introduction of evidence on Mr. Griggs’ criminal convictions, he was convicted of possession of marijuana in violation of La. R.S. 40:966 D, of committing simple criminal damage to property valued at less than $500 in violation of La. R.S. 14:56, and of the unlawful use of a driver’s license in violation of La. R.S. 32:414.1. Additionally, he was convicted of simple assault and of simple battery. None of the crimes of which Mr. Griggs was convicted was punishable by imprisonment in excess of six months, and none involved dishonesty or false statement. Therefore, under the rules of evidence set forth in La. C.E. art. 609, the convictions were not admissible.

IGT also asserts that Mr. Griggs’ attorney stated in his closing argument that Mr. Griggs was “no criminal” and implied that Mr. Griggs had no criminal record. IGT further complains that the trial court judge refused to give a curative instruction asking the jury to disregard any comment made by Mr. Griggs’ attorney concerning Mr. Griggs’ criminal record. Although Mr. Griggs’ attorney was clearly wrong in making the statements he did, we find that the trial court judge’s failure to give the jury a curative instruction was harmless error.

We find that the evidence regarding Mr. Griggs’ criminal convictions that was proffered by IGT was not admissible evidence. This assignment of error is without merit.

| Assignment of Error E: The trial court erred in refusing to allow the jurg to see a demonstration video prepared bg IGT.

IGT contends that it should have been allowed to introduce into evidence a videotape of a Wheel of Fortune slot machine “nearly identical to the one at issue.” The videotape, according to IGT’s argument, would have demonstrated to the jury how the Wheel of Fortune slot machine operates when various types of malfunctions occur and how the machine indicates that a jackpot has been won.

La. C.E. art. 401 provides that “Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 402 provides that except as otherwise provided by the state and federal constitutions, the Louisiana Code of Evidence, or other laws, “[a]ll relevant evidence is admissible.” La. C.E. art. 402 also provides that “[ejvidence which is not relevant is not admissible.” La. C.E. art. 403 permits otherwise relevant evidence to be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

The provisions of article 403 give the trial court judge wide latitude in determining when relevant evidence should be excluded. In Jones v. Peyton Place, Inc., 95-0574, pp. 11-12 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 763, this Court stated that “[a] trial court’s ruling on such evidentiary issues will not be disturbed unless a clear abuse of discretion is shown.” In the instant case, we cannot say that the trial court judge clearly abused her discretion in deciding to exclude the videotaped evidence.

| ayWe have reviewed the proffered videotape, and it shows what occurs visually and aurally when various types of reel tilts are simulated and when a jackpot win is simulated. With respect to the simulated malfunctions, only one of the tilts involving the third reel was relevant in the instant case. Additionally, the reel tilt was simulated, and it was not simulated on the Wheel of Fortune slot machine on which the plaintiffs allegedly won the progressive jackpot. Finally, in the videotape there was a substantial amount of time spent on reel tilts that were not relevant in the instant case.

We do not find that the trial court judge abused her discretion in refusing to permit the videotape to be introduced into evidence. Even if the trial court erred in not permitting the videotape to be shown to the jury, the error would have been harmless. This assignment of error is without merit.

CONCLUSION

We find that the trial court jury’s decision in this case was not manifestly erroneous or clearly wrong and that any error committed by the trial court judge was harmless error. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

      . A progressive slot machine is a machine that is linked by computer to similar slot machines in other casinos. Each linked slot machine contributes money from that machine to a single jackpot, which is called a progressive jackpot. The progressive jackpot is much larger than any jackpot a single slot machine could pay. Often the manufacturer of the progressive slot machines is the owner of the machines and is responsible for paying the progressive jackpots that are won. In the instant case, IGT manufactured and owned the Wheel of Fortune slot machine and was responsible for paying any progressive jackpots won on that machine.

      . A tilt is a malfunction in a slot machine.

      . A microprocessor is the controlling unit of a computer. The microprocessor contains the silicon computer chip that is the "brain” of the computer.

      . At the time of the trial, Mr. Oatman was employed by another company.

      . La. R.S. 40:966 D was recodified after Mr. Griggs’ conviction, and that statute is now codified as La. R.S. 40:966 E. The penalty for a first conviction of possession of marijuana is a fine of $500.00, imprisonment for not more than six months, or both, whereas the penalties for subsequent convictions are greater. Because the proffer does not indicate otherwise, we must assume that Mr. Griggs' conviction for possession of marijuana was his first.