text:
    STATE ex rel. Randy ARCENEAUX v. STATE of Louisiana.
    No. 2006-KH-0384.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Arceneaux, Randy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 314073; to the Court of Appeal, First Circuit, No. 2005 KW 1485.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Alonzo W. FORD v. STATE of Louisiana.
    No. 2006-KH-0385.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Ford, Alonzo W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 96-7172; to the Court of Appeal, Fifth Circuit, No. 05-KH-847.

Denied. Untimely, not cognizable on collateral review, and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172, cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Charles K. WALLACE v. STATE of Louisiana.
    No. 2006-KH-0386.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Wallace, Charles K; Plaintiff, Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court, Division D, No. 503,120; And Parish of St. Tammany, 22nd Judicial District Court, Division D, No. 194255.

Denied.


text:
    STATE ex rel. Quanton SHAW v. STATE of Louisiana.
    No. 2006-KH-0387.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Shaw, Quanton; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 253,184; to the Court of Appeal, Third Circuit, No. KH 05-00881.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Timothy JOSEPH Jr. v. STATE of Louisiana.
    No. 2006-KH-0389.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Joseph, Timothy Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. A, No. 90-251; to the Court of Appeal, Fifth Circuit, No. 05-KH-872.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Michael Wayne NEWSON v. STATE of Louisiana.
    No. 2006-KH-0403.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Newson, Michael Wayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 156,787; to the Court of Appeal, Second Circuit, No. 40714-KH.

Denied.


text:
    STATE ex rel. Robert PERKINS v. STATE of Louisiana.
    No. 2006-KH-0404.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Perkins, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 217,817; to the Court of Appeal, Second Circuit, No. 40835-KH.

Denied.


text:
    Donald Ray JOHNSON v. STATE of Louisiana.
    No. 2006-KH-0405.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Johnson, Donald Ray; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 347895; to the Court of Appeal, First Circuit, No. 2005 KW 1746.

Denied.


text:
    STATE ex rel. Michael J. FRANCOIS v. STATE of Louisiana.
    No. 2006-KH-0406.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Francois, Michael J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 95-140-603; to the Court of Appeal, First Circuit, No. 2005-KW-1890.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

WEIMER, J., recused.


text:
    STATE ex rel. Dermon L. RODRIGUEZ v. STATE of Louisiana.
    No. 2006-KH-0407.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Rodriguez, Dermon L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 02-3801; to the Court of Appeal, Fifth Circuit, No(s). 05-KH-195, 05-KH-350.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Paxton GRAYER v. STATE of Louisiana.
    No. 2006-KH-0409.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Grayer, Paxton; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Helena, 21st Judicial District Court Div. C, No. 9856; to the Court of Appeal, First Circuit, No. 2005 KW 1468.

Denied.


text:
    STATE ex rel. Jimmie J. MADDOX v. STATE of Louisiana.
    No. 2006-KH-0411.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Maddox, Jimmie J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Grant, 35th Judicial District Court Div. A, Nos. 02-872, 03-380; to the Court of Appeal, Third Circuit, No. KH 05-01398.

Denied.


text:
    STATE ex rel. Raymond ROSS v. STATE of Louisiana.
    No. 2006-KH-0415.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Ross, Raymond; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 283-127; to the Court of Appeal, First Circuit, No. 2005 KW 1942.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Scott C. COOLEY v. STATE of Louisiana.
    No. 2006-KH-0416.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Cooley, Scott C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR-67-2003; to the Court of Appeal, Third Circuit, No. KH 05-01071.

Denied. Non-cognizable and repetitive. La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Ramon L. ELLENDER v. STATE of Louisiana.
    Np. 2006-KH-0417.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Ellender, Ramon L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR 881 2000; to the Court of Appeal, Third Circuit, No. KH 05-00969.

Denied.


text:
    STATE ex rel. Bobby GARNER v. STATE of Louisiana.
    No. 2006-KH-0418.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Garner, Bobby; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, Nos. 110,375, 105,-520,105,742,105,363,105,962; to the Court of Appeal, First Circuit, No. 2005 KW 1831.

Denied.


text:
    STATE ex rel. Warren E. JOSEPH, Jr. v. STATE of Louisiana.
    No. 2006-KH-0431.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Joseph, Warren; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. C, No. 248207; to the Court of Appeal, First Circuit, No. 2005 KW 1989.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).

WEIMER, J., recused.


text:
    STATE ex rel. Glen WELCH v. STATE of Louisiana.
    No. 2006-KH-0432.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Welch, Glen; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 447-882; to the Court of Appeal, Fourth Circuit, No. 2004-KA-1842.

Denied.


text:
    STATE ex rel. Brian BERRY v. STATE of Louisiana.
    No. 2006-KH-0433.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Berry, Brian; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, Nos. 11-95-1111, 10-94-412; to the Court of Appeal, First Circuit, No. 2005 KW 1696.

Denied.


text:
    STATE of Louisiana v. Linda CALDWELL.
    No. 2006-KH-0767.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Caldwell, Linda; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 456000.

Denied. Moot.


text:
    STATE ex rel. Glen WELCH v. STATE of Louisiana.
    No. 2006-KH-0829.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Welch, Glen; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 447-882; to the Court of Appeal, Fourth Circuit, No. 2004-KA-1842.

Denied.


text:
    STATE ex rel. Benjamin HARRIS v. STATE of Louisiana.
    No. 2006-KH-1188.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Harris, Benjamin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judi-eial District Court Div. A, No. 98-1742; to the Court of Appeal, Third Circuit, No. KH 01-01155.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    Kevin PETERSON v. Venetia MICHAEL, Richard L. Stalder, Linda Ramsey, Ray Handon.
    No. 2006-CI-1403.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Peterson, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 37038.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Leonard EVERY v. STATE of Louisiana.
    No. 2006-KH-1544.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Every, Leonard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 247896; to the Court of Appeal, First Circuit, No. 2006 KW 0101.

Denied.

WEIMER, J., recused.


text:
    Charles CARTER v. Burl CAIN, Warden, L.S.P., Dora Rabalais, Warden’s Designee, SGT. Seals, Security.
    No. 2006-CI-1574.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Carter, Charles; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 523,376; to the Court of Appeal, First Circuit, No. 2005 CA 0579.

Denied.


text:
    STATE ex rel. Clarence WINFREY v. STATE of Louisiana.
    No. 2006-KH-0366.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Winfrey, Clarence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, Nos. 77751, 77986; to the Court of Appeal, Third Circuit, No. KH 05-00850.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Thomas Ray JOHNSON.
    No. 2006-KH-0328.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Johnson, Thomas Ray; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 43,026; to the Court of Appeal, Second Circuit, No. 40536-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Preston G. DEMOUCHET, Sr. v. STATE of Louisiana.
    No. 2006-KH-0388.
    Supreme Court of Louisiana.
    Aug. 19, 2006.
   In re Demouchet, Preston G. Jr.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, Nos. 89,969, 124,139, 95-141810; to the Court of Appeal, First Circuit, No. 2005 KW 2030.

Denied. Time-barred and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; cf. La.C.Cr.P. art. 930.4(D).


author: MCDONALD, J. PARRO, J.,

text:
    Sylvia W. HAMILTON v. STATE of Louisiana, Through LOUISIANA STATE UNIVERSITY, Office of Risk Management.
    No. 2005 CA 0963.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.
    Opinion Granting Rehearing July 26, 2006.
    Sylvia W. Hamilton, Baton Rouge, Plaintiff/Appellant.
    Dominick M. Bianca, Raphael Juneau, Jr., Baton Rouge, Counsel for Plaintiff/Appellant Sylvia W. Hamilton.
    Charles C. Foti, Jr., Attorney General, Gary J. Beauchamp, Assistant Attorney General, Baton Rouge, Counsel for Defendant/Appellee State of Louisiana, Through Louisiana State University, Office of Risk Management.
    Before: PARRO, MCDONALD and HUGHES, JJ.
   MCDONALD, J.

| /This is an appeal of the dismissal of a workers’ compensation claim based on a finding that the employee’s claim for indemnity benefits had prescribed. For the following reasons, we reverse and remand for a hearing.

According to her disputed claim for compensation benefits, Sylvia Hamilton (Hamilton) was employed by Louisiana State University (LSU) on December 21, 2001, when she fell on newly waxed stairs and was injured. The claim form was filed December 19, 2003. Thereafter, LSU filed a peremptory exception raising the objection of prescription. In June 2004, Hamilton, a pro se litigant, and LSU appeared before a workers’ compensation judge (WCJ) for District 5 for the hearing on LSU’s exception.

Following argument on behalf of LSU, the WCJ asked Hamilton if she understood LSU’s position. Hamilton answered, “A little bit.” The WCJ then explained that “[bjasically the state’s position is that you filed your claim for weekly disability benefits too late” and inquired if Hamilton had any response to that. Hamilton replied in the affirmative, whereupon the WCJ asked her to please stand and “state your position,” but did not swear Hamilton in. Hamilton described the facts concerning the accident, her medical treatment and work history since the accident, and why she had not filed a claim prior to December 2003. According to Hamilton, she had been advised by human resources personnel that LSU would file the workers’ compensation claim, that all she needed to do was file the accident report and turn in a leave slip showing workers’ compensation when she missed work to go to the doctor, which she did.

Further, Hamilton stated that she worked in pain for two years, but had been advised by her doctor in November 2003 that she could not work 1¡¡any more. Hamilton also answered questions asked by the WCJ. Counsel for LSU did not question Hamilton. The WCJ found that the case had prescribed, the claimant had failed to prove any type of interruption or suspension, and dismissed the case. Hamilton timely filed this appeal.

LSU argues that the judgment of the WCJ should be upheld because Hamilton did not submit any evidence or sworn testimony that would indicate that prescription had been interrupted or had not yet commenced to run. Hamilton’s statement contained two grounds that could possible defeat the finding of prescription. However, the statement were not under oath, so arguably would not be “competent evidence” as required by La. R.S. 23:1317. See Hudson v. East Baton Rouge Parish School Board, 2002-0987 (La.App. 1st Cir.3/28/03), 844 So.2d 282.

Under the facts of this case, we conclude that the WCJ erred in not insuring that Hamilton’s testimony was sworn, and in effect, deprived her of an opportunity to present evidence at the hearing. See Peters v. Ruskin Mfg. 39,535 (La.App. 2nd Cir.4/6/05), 899 So.2d 780, 783. Therefore, the judgment dismissing Hamilton’s claim is reversed, and the matter is remanded for a new hearing at which Hamilton is to be given an opportunity to present evidence in opposition to the exception. This memorandum opinion is issued in compliance with Uniform Rules — Courts of Appeal Rule 2-16.1.B. Costs in the amount of $4,708.50 are assessed to Louisiana State University.

REVERSED AND REMANDED.

PARRO, J., dissents with reasons.

PARRO, J.,

dissenting.

L The defendant in this case filed a peremptory exception raising the objection of prescription as to the disputed claim filed by Sylvia Hamilton. If the facts alleged in a petition do not show that a claim has prescribed, the burden is on the party raising the objection of prescription to prove it. Conversely, if a claim is prescribed on the face of the pleadings, the burden is on the claimant to show that prescription has not tolled because of an interruption or a suspension of prescription. Boudreaux v. Angelo Iafrate Const., 03-2260 (La.App. 1st Cir.2/4/05), 895 So.2d 596, 598.

Here, the claimant’s disputed claim form (which serves as her petition), filed on December 19, 2003, sets forth allegations that Ms. Hamilton was injured December 21, 2001, while working at Louisiana State University, that she reported the accident to her department head, and that she was provided medical attention by a number of named physicians. She identified possible witnesses. On the face of her disputed claim form, her claim was prescribed; therefore, Ms. Hamilton had the burden of showing, at the hearing on this matter, that the running of prescription was suspended or interrupted in some manner. Jonise v. Bologna Brothers, 01-3230 (La.6/21/02), 820 So.2d 460, 464.

|aAt the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931. At the hearing on this matter, the workers’ compensation judge heard the argument of counsel for the State of Louisiana and then questioned Ms. Hamilton. Even under the relaxed evidentiary rules applicable in workers’ compensation proceedings, the argument of counsel and the unsworn testimony of a pro se litigant are not competent evidence. Hudson v. East Baton Rouge Parish School, 02-0987 (La.App. 1st Cir.3/28/03), 844 So.2d 282, 287. In the absence of any evidence supporting the possible application of the developing injury doctrine to this case, Ms. Hamilton failed to establish that her claim had not prescribed. Therefore, the trial court properly sustained the defendant’s exception raising the objection of prescription.

The fact that Ms. Hamilton was representing herself at the hearing in this matter and possibly lacked knowledge of the procedural and substantive law applicable to her case is of no moment. Although a lay person representing himself or herself cannot be held to the same standards of skill and judgment that must be attributed to an attorney, he or she assumes responsibility for his or her own inadequacy and lack of knowledge of both procedural and substantive law. Hudson, 844 So.2d at 285 n. 2. Contrary to the majority’s holding, the law does not impose a duty on the workers’ compensation judge to “insure” that the statements made by Ms. Hamilton were made under oath. See Hudson, 844 So.2d at 287.

For these reasons, I respectfully dissent.

OPINION GRANTING REHEARING FOR LIMITED PURPOSE

| T This matter is before the court on a request for a rehearing filed on behalf of the employer on the sole issue of the costs assessed. We granted the rehearing on that issue alone. We have determined that the employer is correct and the costs originally assessed in this matter were assessed in error. The actual costs are $194.10 and the original opinion of this court is corrected to reflect this amount. All other aspects of the original opinion remain unchanged.


author: McDonald, j.

text:
    Lorraine AUTHEMENT v. CONSOLIDATED WATER WORKS DISTRICT # 1.
    No. 2005 CA 0877.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Harry E. Forst, New Orleans, Counsel for Plaintiff/Appellee Lorraine Authement.
    Gregory J. Schwab, Houma, Counsel for Defendant/Appellant Consolidated Water Works District # 1 Terrebonne Parish.
    Before: PARRO, McDONALD and HUGHES, JJ.
   McDonald, j.

| ¡>This is a disputed claim for workers’ compensation. The plaintiff, Lorraine Authement, worked at Consolidated Water Works District # 1 (CWWD) for seven years as a meter reader. This job included changing water meter transponders when needed. She had pre-existing back problems resulting from an automobile accident in the 1980s, a pulled muscle in 2001, and degenerative disc disease.

In November 2000 and March and April 2001, Dr. Brian Matherne, a physician in family practice, was treating Ms. Authement for her back pain. He prescribed anti-inñammatories and sent her to have an MRI on April 17, 2001. The MRI report indicated, “No frank disc herniation is seen and no significant encroachment upon the dural sac can be seen.” Dr. Larry Haydel, an orthopedic surgeon, treated her with a series of three epidural steroid injections for her back pain and she was put on light duty at CWWD. Ms. Authement received the last epidural steroid injection from Dr. Haydel on May 21, 2001.

The next day, May 22, 2001, she was changing a water meter transponder in front of Broadmoor Drugs in Houma, Louisiana, when she felt a pop in her back. She reported the incident to the CWWD safety supervisor, Ernest Robichaux, that afternoon.

Several doctors treated Ms. Authement over the next three months and she had a two-level lumbar disc excision and fusion performed on August 14, 2001, by Dr. Stuart Phillips, an orthopedic surgeon. During the surgery, it was discovered that Ms. Authement had a staph infection on one of her discs, which Dr. Phillips testified probably resulted from the steroid injections.

laCWWD disputed her claim of a work-related injury and denied Ms. Authement workers’ compensation indemnity benefits and medical expenses. She thereafter filed a disputed claim for workers’ compensation benefits. After a trial on the merits, the workers’ compensation judge ruled in favor of Ms. Authement, finding that she had an accident while in the course and scope of her employment with CWWD; that she suffered an aggravation of a pre-existing back condition, which combined with an infection to create her current medical condition; that she was entitled to workers’ compensation indemnity benefits at a rate of $274.68 per week; that she was entitled to the payment of all past medical treatment from May 22, 2001, to the date of the judgment, except for any treatment which could be specifically designated as treatment for the infection only; that the lumbar surgery performed in August 2001 was due to a combination of the infection and the aggravation of the preexisting condition, therefore, CWWD was to pay for the surgery; that Ms. Authement was entitled to all reasonable and necessary medical treatment required to treat her current medical condition; that Ms. Authement was temporarily and totally disabled; that the parties were to explore the necessity of a functional capacity evaluation and vocational rehabilitation efforts; that CWWD was assessed penalties in the amount of $1,000, as well as $4,000.00 in attorney fees; and that the judgment did not prevent CWWD from filing an intervention or third party demand for contribution or indemnification against any entity or person responsible for Ms. Authement’s pre-existing condition or the infection.

CWWD is appealing that judgment and makes the following assignments of error:

1. The [workers’ compensation judge] committed legal error in applying the incorrect legal standard of proof required of the claimant.
|42. The [workers’ compensation judge] committed legal error in applying the jurisprudentially created legal presumption that the incident sued upon was necessarily the cause of the disability of which the claimant complained.
3.The [workers’ compensation judge] erred in finding that the [claimant] carried her burden of proof that a compensable “accident” causing injury occurred.
4. The [workers’ compensation judge] erred in finding that the surgery which coincident[al]ly followed the date of the incident in question was caused by any specific injury caused by the incident in question.
5. The [workers’ compensation judge] erred in finding that the “disabling condition” was caused by the incident at issue.

STANDARD OF REVIEW

The standard of review in a workers’ compensation case is the manifest error — clearly wrong standard. See Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710. The workers’ compensation judge determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1112 (La.1990).

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, CWWD asserts that the workers’ compensation judge erred in finding that the claimant carried her burden of proof that a compensable “accident” causing injury occurred.

| ¡^Louisiana Revised Statute 23:1021(1) provides:

“Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive deterioration.

In order for a claimant to be entitled to recover workers’ compensation benefits, she must prove, by a preponderance of the evidence, that a work-related event occurred and that an injury was sustained. A claimant’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt on the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged her burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Winfield v. Jiffy Lube, 2001-0341 (La.App. 1 Cir. 3/28/01), 813 So.2d 428, 431.

Ms. Authement testified that she was changing a water meter transponder when she felt a pop in her back and that she had to stop working because of the pain. She reported the incident to the CWWD safety supervisor that afternoon and later filled out an accident report. She reported the incident to a co-worker, Patricia Earls, the afternoon it happened and Ms. Earls testified that Ms. Authement appeared to be in pain as she walked to her car. Further, the day after the incident, Ms. Authement went to see Dr. Brian Guidry complaining of back pain.

The workers’ compensation judge found Ms. Authement to be a credible witness and found that the testimony of other witnesses and the | ^medical records corroborated her version of events. After a thorough review of the record, we cannot say that the workers’ compensation judge committed manifest error in finding that a compensable accident causing injury occurred.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, FOUR AND FIVE

These assignments of error assert that the workers’ compensation judge committed legal error in applying the wrong burden of proof, committed legal error in applying a legal presumption that the incident sued upon necessarily caused the disability, manifestly erred in finding the surgery that coincidentally followed the injury in question was caused by the specific injury from the incident in question, and manifestly erred in finding that the disabling condition was caused by the incident at issue.

After establishing that an accident occurred on the job and that he sustained an injury, the claimant must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. Roberts v. Thibodaux Healthcare Center, 2005-0774, p. 11 (La.App. 1 Cir. 3/24/06), 934 So.2d 84, 92.

When an employee suffered from a pre-existing medical condition, he or she may still prevail if he or she proves that the accident aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. The employee is entitled to a presumption that the injury at work either aggravated, accelerated or combined with a pre-existing injury to produce his disability if he or she can prove that before the accident the disabling symptoms had not manifested, but that beginning with the accident they manifested and there is either medical or circumstantial evidence indicating a reasonable possibility of |7causation. Gary v. H.B. Zachary Co., Inc., (La.App. 3 Cir. 2/02/94), 631 So.2d 671, 677. Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce his disability. Roberts, 2005-0774, p. 12, 934 So.2d at 93.

A thorough reading of the workers’ compensation judge’s 11-page written reasons for judgment show that she applied proper evidentiary standards and that she found that the claimant met her burden of proof. Clearly, the workers’ compensation judge found that the testimony of Ms. Authement’s treating physician, Dr. Phillips, linking the surgery to the accident was persuasive. Dr. Phillips testified as follows:

Q. Assuming her history to be correct, do you have an opinion as to whether the work injury that she described in the document — whether that work injury aggravated, accelerated or combined with her disease, her cervical spondylolisthesis or infirmity to produce the disability that she has today?
A. Yeah. That is my opinion. The patient had a preexisting problem and was aggravated by the superimposed trauma.

After being questioned about the infection and its contribution to the need for surgery, Dr. Phillips testified further:

Q. Doctor, I’m sorry, but I guess I have to be absolutely sure. I don’t — let me read the law so that I — do you have an opinion whether the work injury that she described to you aggravated, accelerated or combined with any disease or infirmity including any infection to produce the disability for which she has today?
A. Sure. And I think I said it 30 times and 31 won’t matter. But I think it was an aggravated circumstance, that this was preexisting and was aggravated.

| /While CWWD disputes Dr. Phillips’ testimony linking causation of the surgery and the disability to the accident, they offer no countervailing testimony by another expert. While they pick out portions of Dr. Phillips’ testimony that point to the staph infection as a cause of the worsening condition which led to the surgery, his final word on the subject was that the work injury aggravated the pre-existing back problems which included the infection.

Although this court might have decided the case differently, the workers’ compensation judge determined that the accident caused the need for surgery and caused the disability, and based on the treating physician’s testimony and other evidence in the record, we cannot say the workers’ compensation judge was manifestly erroneous or committed legal error in this determination.

DECREE

After a thorough review of the record, we find no manifest error of fact and no legal error and we affirm the judgment of the workers’ compensation judge. Costs are assessed against CWWD.

AFFIRMED.


author: WELCH, J. McCLENDON, J.,

text:
    B & G CRANE SERVICE, L.L.C. v. Shannon DUVIC, Bryan Vige, and Turner Bros. Crane & Rigging, Inc.
    No. 2005 CA 1798.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.
    Rehearing Denied June 30, 2006.

      Thomas P. Hubert, Joseph F. Lavigne, New Orleans, Ryan E. Johnson, Baton Rouge, for Plaintiff — Appellant B <& G Crane Service, L.L.C.
    Charles L. Patín, Jr., Todd A. Rossi, Baton Rouge, for Defendant — Appellee Turner Brothers Crane & Rigging, L.L.C.
    MacAllynn J. Achee, Baton Rouge, for Defendant — Appellee Bryan Vige.
    Richard M. Upton, Baton Rouge, for Defendant — Appellee Shannon Duvic.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WELCH, J.

12After a thorough review of the record and the applicable law, we find the trial court abused its discretion in denying the plaintiffs Motion for Preliminary Injunction. The trial court’s conclusion that there was nothing to enjoin, since the evidence established that the Attorney General’s office had seized the misappropriated computer disks and files is clearly unsupported by the record. Our review of the record and applicable law leads to the inescapable conclusion that the plaintiff, B & G Crane Service, Inc. (B & G), is entitled to a preliminary injunction pursuant to Louisiana’s Unfair Trade Practices and Consumer Protection Law (LUTPL), La. R.S. 51:1401 et seq. and Louisiana’s Unfair Trade Secrets Act, La. R.S. 51:1431 et seq., for the reasons detailed below.

FACTUAL SUMMARY

B & G is in the business of providing crane rentals for construction jobs. Defendant, Turner Bros. Crane and Rigging, Inc. (Turner Bros.) also provides crane rentals for construction jobs and is a direct competitor of B & G. Defendant, Shannon Duvic, is a former employee of B & G. He began his employment with B <& G in 1995 and terminated it on November 9, 2004, one day before starting employment with Turner Bros. While Duvic was employed with B & G, B & G paid for his education at LSU until he received an engineering degree. He continued his employment there as an engineer until he resigned in 2004. Duvic’s responsibilities included placing bids to certain customers on behalf of B & G in order to secure crane rentals for construction jobs.

On November 16, 2004, two former Turner Bros, employees, Jill and Rickie 1 sGobert provided sworn affidavits detailing misconduct by Duvic in collusion with Turner Bros, and its general manager, Bryan Vige, whereby B & G’s confidential bid/quote information, auto-cad drawings and other confidential files were misappropriated and used by Turner Bros, to competitively bid against B & G.

Based on those affidavits, the Louisiana State Attorney General was contacted and subsequently obtained and executed a search warrant for Turner Bros.’ Prairie-ville office. Subject to the warrant, certain items, detailed later herein, were seized. After an investigation, the Attorney General concluded the items and information seized belonged to B <& G and had been misappropriated by Duvic. According to the trial court’s written reasons for judgment, a bill of information charging Duvic with theft of over $500 and one count of offenses against intellectual property was filed; apparently, that matter is still pending.

Two days after the execution of the search warrant by the Attorney General at Turner Bros.’ office in Prairieville, B & G filed this suit seeking monetary damages, a temporary restraining order, a preliminary and permanent injunction and declaratory relief. The trial court issued a TRO, but later denied the plaintiffs Motion for a Preliminary Injunction, finding there was “nothing to enjoin” and dissolved the temporary restraining order. The trial court also granted the defendants’ Motion to Strike Plaintiffs claim for treble damages. This appeal by B & G follows.

APPLICABLE LAW

Unfair methods of competition and unfair or deceptive acts in the conduct of any trade or commerce are unlawful in Louisiana. La. R.S. 51:1405. Injunctive relief is an available remedy for actual or threatened misappropriation of a trade | ¿secret. La. R.S. 5L1432. Trade secret is defined as “information ... that (a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” La. R.S. 51:1431(4). Misappropriation is defined as the “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means” or the “disclosure or use of a trade secret of another without express or implied consent” by a person who uses improper means of acquiring the trade secret information. La. R.S. 51:1431(2). Finally, a breach of fiduciary duty claim based on the misappropriation of confidential information, although not technically a trade secret, is also recognized as grounds for injunctive relief under Louisiana’s Unfair Trade Practices Act. La. R.S. 51:1405(A); Defcon, Inc. v. Webb, 28,898 (La.App. 2nd Cir.1/22/97), 687 So.2d 639, 643.

Therefore, the threshold inquiry is whether the information sought to be enjoined is indeed a legally protected trade secret; the second element is whether an express or implied contractual or confidential relationship existed between the parties which obligated the party receiving the secret information not to disclose it; and finally, whether the party receiving the secret information wrongfully disclosed the information to the injury of the plaintiff. Pontchartrain Medical Labs, Inc. v. Roche Biomedical Laboratories, Inc., 95-2260 (La.App. 1st Cir.6/28/96), 677 So.2d 1086, 1090. The elements of a breach of fiduciary duty claim premised on a breach of confidence are similar, except the information need not be a “trade secret.” A plaintiff in that case must prove (1) possession by the plaintiff of knowledge or information which is not generally known, (2) communication of | ¡¿his knowledge or information by the plaintiff to the defendant under an express or implied agreement limiting its use or disclosure by the defendant, and (3) use or disclosure by the defendant of the information to the injury of the plaintiff. Engineered Mechanical Services, Inc. v. Langlois, 464 So.2d 329, 334 (La.App. 1st Cir.1984), writ denied, 467 So.2d 531 (La.1985).

The trial court made no express findings regarding whether the information was either trade secret information or information otherwise cloaked with the requisite confidentiality to prohibit its disclosure; the court simply found there was nothing to enjoin. We have reviewed the entire record .and find that the evidence abundantly supports the conclusion that the information at issue in this case can be properly categorized as “trade secret” information. Additionally, the evidence established the information was also confidential by nature and content; efforts were made by the plaintiff to maintain and protect its confidentiality; the confidential nature of the information was expressly known to Duvic; and, Duvic had been expressly prohibited from disclosing the information to anyone, specifically the defendants for whom he was going to work.

As noted by the trial court in its written reasons for judgment, the information at issue “includes, but is not limited to, a computer disk, copies of hundreds of rolodex cards belonging to B & G, the memory chip out of the Nextel telephone which belongs to B & G and which Duvic used to download all of the phone numbers from the memory - chip, B & G’s auto-cad drawings, and confidential bidding and pricing information.” The following evidence in the record supports a finding that the information at issue was confidential and subject to protection by law.

The affidavit of Xavier Grilletta, CEO of B & G, provides that the general practice in the construction industry is that contractor’s bids are submitted under Rseal and not disclosed to other contractors bidding on the project, and are submitted with the expectation that they will remain private and closed. He also detailed the process of compiling information that is gathered and considered in submitting a bid and attested that it is generally known in the industry that a contractor’s bid/ quote information is very valuable, and if disclosed, would give a competitor a substantial advantage in the bidding process. He described this information as “akin to having a football team’s entire playbook before a game begins, as opposed to knowing isolated plays that a team may run.” Plaintiff corroborated this testimony with the affidavit of Rickie D. Gobert, an employee in the construction industry for over twenty years, who also stated that it is general knowledge in the industry that a company’s pricing and cost structures in preparing bids is confidential and proprietary in nature and cannot be ascertained through public sources. He attested that he was employed for Turner Bros, and he regularly overheard Shannon Duvic discussing B & G’s confidential bid information with Turner Bros.’s sales manager, Bryan Vige. He also stated that prior to being employed by Turner Bros., Duvic visited Turner’s Prairieville office on a “regular basis.” These attestations were uncontradicted.

Grilletta also attested to the precautions B & G took to limit access to the information even within B & G. A firewall was installed on the company’s computer network server, which allowed access to the bidding information only to employees involved in the bidding process. Additionally, B & G sales people, including specifically Duvic, were personally advised that the information was confidential and should not be disclosed to anyone outside of the B & G bidding process. Again, these attestations were uncontradicted.

Grilletta also detailed the extensive auto-cad library maintained by B & G and the lengthy process through which they hired engineers to create the drawings from |7scratch and to “re-block” manufacturer’s drawings in formats useful to B & G. The B & G auto-cad software is licensed and access is limited to authorized employees, one of which was Duvic. B & G’s auto-cad drawings, one of which was attached as an exhibit, are marked “CONFIDENTIAL AND FOR REFERENCE ONLY.” Hence, he attested that the customized drawings had great economic value to B & G and would be of enormous benefit if wrongfully disclosed to competitors. Turner Bros, attempted to contradict this testimony, but our review of those affidavits leads to the conclusion that this evidence was insufficient to overcome the showing of confidentiality of B & G’s custom auto-cad library.

Finally, Grilletta stated that he had reviewed the information seized from Turner Bros.’s Prairieville office and that it included computer disks containing all of B & G’s confidential bid/quote information, as well as auto-cad drawings, which indicated they had been downloaded by Duvic at B & G’s office after hours — one was at 9:00 p.m., the other at 12:30 a.m. Grilletta even reviewed some of his own personal files containing confidential and proprietary information, which Duvic was prohibited from accessing and which were protected by a firewall to prevent such unauthorized access. Therefore, Duvic had to obtain Grilletta’s password and use it without authorization to have been in possession of those files. This testimony was corroborated by that of Brad Truby, B & G’s computer systems administrator, who attested to the limited access to the confidential files and the breach of that access by Duvic in obtaining Grilletta’s personal files. Again, this testimony was uncontra-dicted.

In summary, the uncontradicted evidence established that, while under the employ of B & G, Duvic, in collusion with Vige and Turner Bros., wrongfully misappropriated B & G’s confidential pricing and bid/quote information and autocad drawings by downloading from B & G’s computers without authorization, ^terminated his employment with B & G and immediately, employed by Turner Bros., began unlawfully using that information to compete with B & G in attempt to win bids.

The uncontradicted evidence also established that the Attorney General’s investigators seized at least some of the misappropriated information in response to a search warrant executed at Turner Bros.’s Prairieville office. Subsequently, as reflected in the trial court’s written reasons for judgment, the Attorney General charged Duvic with one count of theft over $500 and one count of offenses against intellectual property.

Notably, our review of the record also reveals the very significant and complete absence of evidence, by affidavit, pleading or otherwise by the defendants denying any of the foregoing. Notwithstanding the plaintiffs clear evidence that the defendants wrongfully possessed and used the misappropriated information, and without denying continued possession, the defendants assert that the plaintiff is not entitled to injunctive relief simply because it failed to prove that any of the defendants remained in possession of the misappropriated information subsequent to the execution of the Attorney General’s search warrant; therefore, there is no “present need” for injunctive relief.

We believe that the need for continued injunctive relief is clear from the record, notwithstanding the absence of any direct evidence that the defendants are presently in possession of the information. The record establishes that the defendants knowingly and willingly engaged in criminal, unethical and 13unscrupulous acts in attempts to use B & G’s confidential trade information and bid competitively against it. Given the foregoing, and the fact that the conduct continued until the defendants were “caught red-handed,” to the extent that the trial court believed the defendants’ attorney’s assertions that the defendants’ no longer possess the information, such a credibility determination in favor of the defendants is an abuse of discretion under the circumstances presented. Not only was the evidence regarding the current computer content at Turner Bros.’s Prai-rieville office inconclusive, it also wholly fails to foreclose the possibility that the disks could have been downloaded to computers at other locations. Moreover, it is a matter of common knowledge and simple logic that the information which the defendants admit (after being caught) possessing, could have easily been reproduced and maintained by various methods: it could have been downloaded onto computers at other Turner Bros, locations or it could have been printed and photocopied and kept in files at locations other than Turner Bros.’s Prairieville office. It could even have been handwritten and kept simply anywhere. The evidence of defendants’ past conduct certainly supports any of these or even other possibilities.

Given the unique circumstances of this case and the evidence presented, we find that even without direct evidence that the defendants continue to possess the actual computer disks and information seized by the Attorney General, the plaintiff has sufficiently established the requisite need for and entitlement to a preliminary injunction. See Engineered Mechanical Services, Inc. v. Langlois, 464 So.2d 329 (La.App. 1st Cir.1984), writ denied, 467 So.2d 531 (La.1985); Konecranes, Inc. v. Robaina, 2000 WL 41208 (E.D.La.). Accordingly, the trial court abused its discretion in denying the plaintiffs request for such and in dissolving the temporary restraining order, and that portion of the judgment is reversed. This |inmatter is hereby remanded to the trial court for the entry of a preliminary injunction and further proceedings consistent herewith.

MOTION TO STRIKE TREBLE DAMAGES CLAIM

However, we find no error in the trial court’s granting the defendants’ Motion to Strike Claim for Treble Damages. Although treble damages are awardable under Louisiana’s Unfair Trade Practices and Consumer Protection Law (LUTPL), La. R.S. 51:1409(A), the claim is defeated unless plaintiff can prove that they properly served the Director of Governor’s Consumer Protection Division or the Attorney General, and that the defendants were given the requisite notice that any continued use and/or disclosure of the allegedly misappropriated information would subject them to a claim for treble damages. B & G does not deny that it failed to serve the Director or the Attorney General with a copy of its petition as required by the statute, but argues instead that it did not think it had to, since the defendants were already on “notice” by the Attorney General’s issuance and execution of the search warrant in conjunction with its criminal investigation of the matter. However, the notice required under § 1409(A) is issued under civil, not criminal, jurisdiction, and serves the specific purpose of a “cease and desist” notice to the defendants that they may be subject civilly to a treble damage claim. This is not the same notice the defendants in this case had. Moreover, the award of treble damages is punitive in nature and must be strictly construed. Therefore, since the plaintiff has been unable to prove the issuance of the requisite notice to the defendants mandated by statute, the trial court did not err in granting the defendants’ motion to strike the claim for treble damages.

For the foregoing reasons, the portion of the May 12, 2005 judgment of the trial court denying the plaintiffs Motion for Preliminary Injunction is reversed; the portion of the judgment of the trial court granting the defendants’ Motion to Strike Inthe claim for treble damages is affirmed; and this matter is remanded for the issuance of a preliminary injunction and further proceedings consistent herewith. Costs of this appeal are assessed to the defendants.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED WITH INSTRUCTIONS.

McCLENDON, J., agrees in part and dissents in part and assigns reasons.

McCLENDON, J.,

agrees in part and dissents in part.

| ^though I agree with the majority reversing that portion of the trial court’s judgment regarding injunctive relief, I disagree with the majority’s affirmance of that portion of the judgment granting the motion to strike treble damages. Under the facts of this case, I am of the opinion that the better procedure regarding treble damages or punitive damages is set forth by Justice Lemmon in his concurring opinion in Ciecierski v. Avondale Shipyards, Inc., 574 So.2d 1256 (La.1991), wherein he stated:

The issue of the right to recover punitive damages, as one of several items of damages demanded in the petition, generally should not be raised by an exception of no cause of action (or by motion to strike), because a pretrial ruling on the issue frequently results in piecemeal appeals and unwarranted delays (as occurred in this case). The preferable procedure would have been for the trial court [to] overrule the exception and later, at the trial on the merits, to exclude evidence of punitive damages, allowing [plaintiff] to present the evidence by means of a proffer so that in any subsequent appeal all issues could be presented at one time. (Citation and footnote omitted.)

Therefore, I respectfully dissent in part.

      .Also named as a defendant was Bryan Vige. Vige and Duvic have invoked the Fifth Amendment protection against self-incrimination throughout this litigation, having refused to be deposed and not filing any response pleadings. However, both of these defendants have appeared as appellees in this appeal, and have filed motions to adopt co-appellees brief, which were granted by this court.

      . Turner Bros, filed an answer to the appeal seeking damages for the dissolution of the temporary restraining order. However, given our conclusion in this appeal that the trial court erred in denying the plaintiff's motion for a preliminary injunction, defendants' answer is moot.

      . The existence of trade secrets is also recognized in La. C.C.P. art. 1426(7).

      . The specific items seized were:
      HP Compaq DX2000MT SN:MXD4110921 Bag of 6 various CDs in jewel cases 171 floppy disks and 2 CD-Rs in Fellowes floppy case
      Box of Mise, files pertaining to B & G Crane
      Large Box of Mise, files and binders pertaining to B & G Crane Box of Mise, files pertaining to B & G Crane
      One CD-R and one floppy disk found in suspect[']s computer


author: McClendon, j. WHIPPLE, J.,

text:
    Michael HAYDEL, Individually and o/b/o Jeremy Haydel v. STATE FARM INSURANCE CO., Evanston Insurance Co., the Sanctuary Homeowners Association, Inc. and ABC Insurance Co.
    No. 2005 CA 1400.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Robert B. Evans, III, William B. Gordon, III, Cesar R. Burgos, Kathleen C. Gasparian, New Orleans, Counsel for Plaintiffs/Appellants Michael Haydel, Individually and on behalf of Jeremy Haydel.
    Craig R. Nelson, New Orleans, Counsel for Defendant/Appellee Evanston Insurance Company.
    Adrianne L. Baumgartner, Kathleen Simon, Covington, Counsel for Defendant/Appellee State Farm Mutual Automobile Insurance Company.
    David I. Bordelon, Matthew J. Ungari-no, Albert D. Giraud, Metairie, Counsel for Defendant/Appellee The Sanctuary Homeowners Association, Inc.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McClendon, j.

| aThis is an appeal of a summary judgment rendered in favor of an insurer based on a finding that an insured’s son was not primarily residing in the father’s household, and thus, was not an insured under the terms of the policy. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On January 31, 2003, fifteen-year-old Jeremy Haydel was a passenger in a vehicle driven by his friend, James Gilmore. Gilmore lost control of the vehicle causing it to slide into a concrete culvert. Tragically, Jeremy died as a result of the injuries he sustained in the accident. Jeremy’s parents, who were not married to one another, eventually settled with Gilmore’s insurer. Jeremy’s father, Michael Haydel (Dr. Haydel), then sought recovery under his own uninsured/underinsured motorist (UM) policy issued by State Farm Mutual Automobile Insurance Company (State Farm), and under his umbrella policy issued by Evanston Insurance Company (Evanston).

In August 2003, Dr. Haydel filed suit against several defendants, including State Farm, alleging that it had refused to honor his claim made under the UM policy. State Farm subsequently filed a motion for summary judgment asserting that no coverage existed under the policy. Among the arguments posited in support of its contention, State Farm maintained that Jeremy was not “primarily” residing in Dr. Haydel’s household at the time of the accident as required by the policy provisions. In conjunction with its motion for summary judgment, State Farm submitted the policy of insurance, the deposition testimony of Jeremy’s mother, Jeanne Rovira, the deposition testimony of Dr. Haydel, and the consent judgment entered into by Dr. Haydel and Ms. Rovira in 1987.

| Jn opposing the motion for summary judgment, Dr. Haydel submitted his deposition testimony, Ms. Rovira’s deposition testimony, and the 1987 consent judgment. Dr. Haydel maintained that a person may have more than one residence and that Jeremy resided not only with his mother, but also with his father. Therefore, Jeremy was covered under the UM policy. In addition, Dr. Haydel asserted that the unconditional tender made by State Farm before suit was filed acted as a waiver of the right to litigate the coverage issue.

After a hearing, the trial court concluded that Jeremy did not meet the policy requirements for coverage, and granted summary judgment in favor of State Farm. Dr. Haydel’s claims against State Farm were dismissed. From that judgment, Dr. Haydel appeals.

APPLICABLE LAW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Department Store, 2002-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 2003-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). An issue is “genuine” if reasonable persons could disagree. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A fact is “material” when its existence or nonexistence may be essential to |Kthe plaintiffs cause of action under the applicable substantive theory of recovery. Any doubt as to a dispute regarding.a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id.

POLICY INTERPRETATION

An insurance policy is a contract between the parties and should be construed using the general rules of contractual interpretation. The extent of coverage provided by a policy is determined by the parties’ intent, as reflected by the words of the policy. LSA-C.C. art. 2045; LSA-C.C. art. 2046; Frost v. David, 95-0839, p. 4 (La.App. 1 Cir. 5/10/96), 673 So.2d 340, 343. Words and phrases used in an insurance policy must be given their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. LSA-C.C. art. 2047; Edwards v. Daugherty, 2003-2103, 2003-2104, p. 11 (La.10/1/04), 883 So.2d 932, 940-41. Insurance policies should be construed to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). However, an insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Edwards, 2003-2103 at p. 11, 883 So.2d at 941. If the policy wording is clear and unambiguous, the insurance contract must be enforced as written. Edwards, 2003-2103 at p. 12, 883 So.2d at 941.

The determination of whether a policy is ambiguous is a question of law. Gibbens v. Whiteside, 2004-1222, p. 5 (La.App. 1 Cir. 5/6/05), 915 So.2d 866, 869, writ denied, 2005-1525 (La.12/16/05), 917 So.2d 1116; Edwards, 2003-2103 at pp. 12-13, 883 So.2d at 941. However, the actual facts supporting the physical aspect of where a person lives are necessary tov | fimake a determination regarding whether coverage exists under an insurance policy. See Alpaugh v. Continential Insurance Company, 2001-0101, pp. 4-5 (La.6/29/01), 791 So.2d 71, 73-74 (per curiam).

The UM policy at issue herein provided coverage to a “relative.” The policy defined the term “Relative” as “a person related to you or your spouse by blood, marriage or adoption who resides primarily with you.” Thus, in order for coverage to exist, there must be a finding that Jeremy was “primarily” residing with his father, Dr. Haydel. On appeal, Dr. Haydel argues that the trial court erred in concluding that Jeremy was not a resident-relative of his household and submits that, at the very least, a question of fact exists as to the amount of time Jeremy lived at his home.

We find no ambiguity in the policy language in the present case. Through exhibits, including Dr. Haydel’s own testimony, State Farm established that no genuine issue of material fact existed as to where Jeremy “primarily” resided. Dr. Haydel agreed that Jeremy not only resided with his mother for “most” of the school year, but also that overall Jeremy spent about “70 percent” of his time in his mother’s household. This was confirmed by Jeremy’s mother’s testimony, who also testified that she had sole custody of Jeremy under the 1987 consent decree. Therefore, under the clear language of the policy, we find that Jeremy was not a “relative” covered by State Farm’s policy.

WAIVER

As to the argument that State Farm’s unconditional tender waived its right to litigate coverage, we disagree. Generally,

[t]he qualitative effect of defendant’s unconditional tender is that it served to protect defendant’s interests under [LSA-R.S. 22:658]. The tender served to place defendant in such a position as to avoid penalties and attorney’s fees if, after trial, it is ultimately proven that coverage under the policy existed. |7The tender thus provided defendant with protection from liability exposure for penalties and attorney’s fee’ at the conclusion of the case. (Footnote omitted.)

Clark v. State Farm Mutual Automobile Insurance, 2000-3010, p. 21 (La.5/15/01), 785 So.2d 779, 792 (issue before the court was abandonment, and not specifically the viability of coverage, but the statement speaks to the purpose and operation of the statute); see State Farm Mutual Automobile Insurance Company v. Azhar, 620 So.2d 1158, 1159 (La.1993).

The legislative scheme encourages the insurer to make a good faith payment to an injured insured despite future or ongoing litigation. See State Farm Mutual Automobile Insurance Company, 620 So.2d at 1159. Although an unconditional tender is not recoverable, the insurer is expected to pay amounts reasonably due within thirty days of the submission of a satisfactory proof of claim. State Farm Mutual Automobile Insurance Company, 620 So.2d at 1159-60; LSA-R.S. 22:658 A(1).

State Farm’s unconditional tender was made in April of 2003, before the filing of Dr. Haydel’s suit in August of 2003, and before formal discovery commenced. At that time, State Farm did not have the benefit of the information gleaned from the extensive questioning of Jeremy’s parents at their depositions. Nothing in this particular tender stated or inferred that State Farm was waiving the issue of the coverage under Dr. Haydel’s UM policy, or doing anything other than making a good faith tender to avoid fees and penalties under LSA-R.S. 22:658. To hold that such an unconditional tender acts as an automatic waiver of the insurer’s right to litigate coverage questions raised by a subsequent informal investigation, or by formal discovery during the litigation process, would significantly discourage pre-suit payments and effectively block the desired legislative goal. For these reasons, we find no merit in the waiver argument.

| sTherefore, we affirm the summary judgment of the trial court dismissing Dr. Haydel’s claims against State Farm. The costs of the appeal are assessed to plaintiff-appellant, Dr. Michael Haydel.

AFFIRMED.

WHIPPLE, J., dissents and assigns reasons. Further the case presents no “res nova” issue or other criteria justifying publication under the Uniform Rules.

WHIPPLE, J.,

dissenting.

LI respectfully disagree with the majority’s conclusion that no fact issues remain regarding the minor’s primary residence. As the plaintiff correctly notes, the concept of residency is different from that of domicile. Indeed, a person may have several or multiple “residences.” This is particularly so in modern times, where the physical and legal custody of children are very often shared by their parents, while residing in separate residences. And, as noted in the jurisprudence, the determination of a person’s “residence” is inherently fact-intensive. Given the conflicting testimony herein, I find material fact issues remain, which preclude summary judgment.

Moreover, I also do not find that Clark v. State Farm Mutual Automobile Insurance, 2000-3010, (La.5/15/01), 785 So.2d 779 supports the majority’s statements regarding the effect of an unconditional tender vis-á-vis an insurer’s right to litigate coverage.

Thus, I dissent and would remand for further proceedings to resolve the disputed material fact issues remaining herein.