author: ULYSSES GENE THIBODEAUX, Chief Judge.

text:
    Alwyn J. BOUTTE, Sr. v. FIREMAN’S FUND COUNTY MUTUAL INS. CO., et al.
    No. 06-34.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.

      Lawrence N. Curtis, Curtis & Lambert, Lafayette, LA, for Plaintiff/Appellant, Al-wyn J. Boutte, Sr.
    Michael Paul Bienvenu, Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Defendants/Appellees, Eva Bernal and Fireman’s Fund County Mutual Insurance Company.
    James Paul Doherty, Voorhies & Labbe’, Lafayette, LA, for Defendant/Ap-pellee, Eva Bernal.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   ULYSSES GENE THIBODEAUX, Chief Judge.

| plaintiff, Awyn J. Boutte, Sr., was injured and his guest passenger was killed when Boutte’s vehicle was hit from behind and burst into flames. Boutte sued the lessee, Eva Bernal, a Texas resident, and the insurer of the Ford van that hit him, Fireman’s Fund County Mutual Insurance Company (“Fireman’s Fund”). Boutte subsequently amended his petition to add the driver and the passenger of the van, both Texas residents. Both defendants filed motions for summary judgment, arguing that they had no liability because the driver of the van was not driving the van with Bernal’s permission, the driver was not an employee of Bernal at the time of the accident, and the driver was an excluded driver under Texas law. The trial court first granted the motion for summary judgment of Bernal in 2003, and in 2005 the trial court granted the motion for summary judgment of Fireman’s Fund. Boutte filed this appeal. For the following reasons, we reverse the judgments of the trial court. There are genuine issues of material fact which remain unresolved. Further, Louisiana, not Texas, law applies which invalidates the named-driver exclusion under this commercial automobile liability policy.

I.

ISSUES

We must decide:

(1) whether the appeal of the summary judgment in favor of Eva Bernal is properly before this court;
(2) whether the law of Louisiana or the law of Texas applies in determining insurance coverage in this case; and,
(3) whether the trial court erred in granting summary judgment in favor of Eva Bernal and Fireman’s Fund County Mutual Insurance Company.

_b.II-

FACTS AND PROCEDURAL HISTORY

On the afternoon of March 26, 2001, Alwyn J. Boutte, Sr., a sixty-year-old Louisiana resident, was driving a 1987 Dodge van on Interstate 10 near Lafayette. Boutte stopped behind a Mitsubishi that had stopped due to construction along the highway. While stopped, Boutte was rear-ended by a 1998 Ford van, and Boutte’s vehicle burst into flames. Boutte was injured, and his guest passenger was burned to death. The 1998 Ford van (hereinafter “the van”) was allegedly being driven by Texas resident Juan Lara who was traveling with Ruben Lara. At the time of the accident, the van was being leased by Eva Bernal, a twenty-three-year-old single mother of four from El Salvador.

Bernal had purchased commercial coverage on the van from Fireman’s Fund in Texas. The effective dates of the policy were October 9, 2000 through October 9, 2001, and the liability limit was $100,000.00. Bernal testified that she did not have a driver’s license at the time of the accident on March 26, 2001, because she could not read or write English. She testified that she had driven without a license in the past. However, she also testified that she had had a Texas driver’s license at one point.

Bernal further testified that, at the time of the accident on March 26, 2001, she had been in business with her brother, Jose Bernal, for about a month, installing and repairing floors and concrete. She testified that they needed help and had to hire people to help them. Then she testified that they hired people only to drive for them. Bernal testified that they had hired Juan Lara and Ruben Lara to drive for them because the Laras could read. However, she testified that she did not know whether they knew any English; she had heard them speak only Spanish.

|3On September 10, 2001, Boutte filed suit against Eva Bernal and Fireman’s Fund, alleging that Juan Lara was driving the van with the permission of Eva Bernal and while in the scope of his employment with Eva Bernal.

Eva Bernal filed a motion for summary judgment, attaching an expired work permit card, portions of her deposition, and the insurance policy which contained an endorsement excluding Juan Lara from coverage under the policy. In her motion for summary judgment, Eva Bernal asserted that Boutte’s theory of recovery against her was based upon respondeat superior, or the vicarious liability of an employer for an employee, and that Juan Lara did not work for her at the time of the accident. At one point in her deposition, Bernal stated that Juan Lara had worked for her for the last time about two weeks before the accident. At another point, she testified that Juan Lara was not her employee at the time of the accident and that he had not worked for her from the time he was taken off of her insurance. However, when he actually worked for her and when or whether he was removed from insurance coverage by Eva Bernal is not clear, as the record contains numerous instances of conflicting information and testimony.

Eva Bernal ostensibly kept no business records whatsoever. In her motion for summary judgment, Bernal stated, “A named driver exclusion removing Juan Lara from Eva Bernal’s automobile liability policy was signed by Bernal on October 30, 2000.” However, in her deposition, Bernal testified that she and her brother started the business of repairing and installing floors and pouring concrete to repair parking lots in 2001 about a month before the accident on March 26, 2001. She also testified that Juan Lara started working for her about a month before the accident and that he worked for her for about a month. Therefore, the business for which Bernal hired Juan Lara did not exist on October 30, 2000, at the time she alleges to have excluded him from coverage. Additionally, according to Bernal’s | testimony, Juan Lara did not work for her at the time she alleges to have signed the exclusion naming him as an excluded driver. As the record will reveal, the exclusion itself contains conflicting information and does not contain date information next to the signature line.

The record contains an endorsement wherein Bernal was notified that an additional premium of $624.00 would be added as a 33% surcharge “for drivers Juan Lara and Eva Bernal, due to age and driving record.” This endorsement was made effective retroactive to the effective date of the policy, October 9, 2000. However the date typed at the bottom of the form is January 3, 2001. We note again that the January 3, 2001 notification lists the driver, Juan Lara, whom Bernal testified that she hired a month before the accident on March 26, 2001. Yet, Juan Lara was the subject of a surcharge almost three months before the accident.

The named driver exclusion itself, which purports to exclude the driver Juan Lara, is a preprinted form with blanks filled in by hand. All names were handwritten. The top of the form showed an effective date of 10/30/00 that was handwritten, not typed. It contained a date stamp at the bottom bearing the following information on three lines, “Austin Mar 08 2001 Surplus.” Handwritten beneath the stamp with an arrow pointing to the stamp was the following, “Re-averaged surcharge eff. 2-8-01, due to receipt date of exclusion. (Back 30 days[) ].” Also handwritten on the form was the dollar amount of “$127.00” and the following information: “Endt # 5.” As previously indicated, there is no date line anywhere near the signature line for the insured to actually date the document that he or she is signing.

The record contains another endorsement made effective on February 8, 2001, which decreases the surcharge from 33% to 23% and indicates a return premium of $127.00 “due to receipt of signed exclusion for Juan Lara.” A typed line at the bottom of the form states as follows: “ENDT # 5/HWM 05-07-01.”

|fiThe policy contains yet another endorsement in the record indicating an additional premium and surcharge for driver Philipe Castro, “due to driving record.” It has an effective date of March 7, 2001, and contains the typed line “ENDT # 6/HWM 05-07-01.” All of the various endorsements and policy changes regarding the different drivers and different vehicles being covered appear to have effective dates and processing dates, rather than actual dates, and back-dating is evident as well. Therefore, it is impossible to ascertain actual dates with regard to when the changes were requested. However, all of the date information in the policy conflicts with the testimony in Eva Bernal’s deposition, which conflicts with itself, regarding when Juan Lara worked for Bernal.

Eva Bernal further testified in her deposition that she could not read, because she had never been to school, but that she could sign her name. The copy of her expired work permit card in the record contains what appears to be her signature. There, the name, EVA BERNAL, is scrawled in capital letters across the card beneath her typed name; it is hand printed, and the letters are unevenly spaced. Bernal at one point in her deposition answered with reference to the exclusion that, “Yes, I signed it.” However, the policy exclusion in the record did not contain a signature similar to the one printed in capital letters on the permit card; it did not contain any signature.

Rather, the exclusion contained a line with a large “X” that had been traced over several times. On the line next to the “X” were the handwritten cursive initials “EBE,” which were connected and written in script, not printed, and there were no spaces between the lettering. Since Ber-nal testified that she had never been married and that all five of her children had the last name of “Bernal,” it is not known why the initials ended in “E.” Moreover, it is significant that in her deposition, Ber-nal specifically testified that she never signed her name using her initials.

| fiBernal further testified that she talked to Miss Gutierrez, apparently the insurance agent sometimes referred to by Ber-nal as the notary, at the insurance company about removing Juan Lara after Miss Gutierrez informed her that he had many traffic violations, which would cause her coverage to go up. However, Bernal stated that she did not know whether Juan Lara was actually ever removed. Bernal also testified that she signed a document but, since she could not read, she did not know whether that document was adding or removing Juan Lara from her insurance. She further testified that, “I recall that I signed a document and another one that I gave to him.” When questioned about this other document, Bernal testified, “Well the notary called me and told me that it was for him to be able to pay all of the traffic violations [sic] tickets that he had.”

In her deposition, Bernal also indicated that she advised Juan Lara that he was not insured and was not to drive any vehicle owned or leased by her. She testified that she did not see Juan Lara or anyone with Ruben when Ruben picked up the van. Bernal testified that Ruben Lara wanted to borrow the vehicle “because there was an automobile he wanted to come look [sic] that he was interested in buying. He wanted to come see it. If I like it, well, I’ll bring it back, but he did not tell me that he was coming with someone else.” In response to the question about how Ruben planned to get the car back to Texas, she testified, “He was not bringing the money to buy it.” Bernal further testified that she did not do business in Louisiana and that neither Juan nor Ruben Lara was in the scope of his employment when the accident occurred. She testified that her brother Jose usually went out and got the customers for their business, using business cards and calling cards. When asked to show a card, she said that she did not have any.

In addition to the numerous instances of conflicting testimony above, in response to a question about when Juan last worked for her before the accident, |7Bernal stated, “Two weeks before and then I did not see him again. I don’t know where he is.” However, she later stated that the last time she saw Juan Lara was after the accident. She specifically stated, “When he had the accident, he came over to the house and said what happened.... That Ruben Lara had had an accident.” Bernal vacillated as to whether Juan told her about the accident on the day of, or the day after, the accident, and at one point she gave the specific date of March 29th. At one point, she seemed to be unsure whether Ruben was with Juan when Juan told her about the accident, yet later she was positive that they came together. She testified that the first time she learned of the accident Ruben was the one who told her. She also testified that after they told her about the accident, she never saw either of them again.

Bernal testified that she did not learn that Juan Lara was the driver until the insurance company informed her of the fact. She stated, “I only called the insurance company and that’s when I found out this man was driving.” When asked what day she had called the insurance company and had this conversation, Bernal stated, “I do not remember. They called me.” She then testified that she did not remember the date and guessed that it was fifteen days or a month after the accident, and she stated, “And I was not the one that called.” Bernal testified that she did not know whether Juan and Ruben Lara were related to each other or where they could be located. She testified that they hung out together. She denied that she had ever lived with either of them.

Bernal testified that she stopped installing floors with her brother Jose about two weeks after the accident. Therefore, the business was apparently in existence for about six weeks, since it began about a month before the accident and ended two weeks after the accident. Interestingly, Bernal also testified that Ruben Lara had been employed by her as a driver for about three months. There were other | ^vehicles insured under the subject policy, and Bernal testified that she and her brother had tried to start a previous home repair business but they could not start a company because they did not have a state license or social security numbers, even though Eva Bernal had been working in the United States since 1995. She testified that she had always been paid in cash and always paid her employees in cash. There were no affidavits, depositions or statements of any witnesses attached to Bernal’s motion for summary judgment. It referenced her response to an interrogatory, but did not attach the responses.

Boutte argued that Bernal’s motion for summary judgment was unsupported except for her own self-serving, conflicting testimony and that the party opposing the motion must have his allegations taken as true and must receive the benefit of the doubt when his assertions conflict with the movant. He pointed out the conflicts in Bernal’s own testimony and that there were genuine issues of material fact regarding the employment of Juan Lara. Boutte alleged that Bernal’s credibility was at issue and that the trial court was prohibited from making credibility determinations at the summary judgment level.

On August 22, 2003, the trial court signed a judgment granting the motion for summary judgment of Eva Bernal. The record does not contain written reasons for the judgment. The dismissal of Eva Ber-nal appears to have been based upon the named-driver exclusion and the deposition testimony of Eva Bernal alone wherein she denies the employment of Juan Lara and denies giving him permission to drive the covered automobile. The trial court marked through the paragraph in the judgment that sought to designate it as a final judgment.

Fireman’s Fund filed a motion for summary judgment asserting that no coverage existed under the policy issued to Eva Bernal. The motion referenced Exhibit C, an affidavit stating that only one policy was issued to Eva Bernal with | effective dates of October 9, 2000 to October 9, 2001. However the affidavit marked as Exhibit C, which purports to be that of the underwriter, is completely blank with regard to affiant and notary names and dates; it is not signed, not dated, and not notarized. Moreover, every reference in the motion to the affidavit contains a blank line where the affiant-underwriter’s name should be.

The motion for summary judgment points to language in the policy and states that Fireman’s Fund is liable only if an “insured” is legally condemned to pay damages for bodily injury and property damage caused directly by the insured or for which the insured is vicariously liable. Fireman’s Fund argued that the court had already determined that Eva Bernal was not vicariously liable and that the only remaining theory for coverage required that Juan Lara qualify as an insured. Fireman’s Fund then pointed to the named-driver exclusion in its policy and argued that the exclusion was enforceable under Texas law, which governed the insurance policy.

The motion for summary judgment of Fireman’s Fund relied solely on the exclusion and the deposition of Eva Bernal. It attached no depositions or affidavits or statements of witnesses or police officers in Louisiana, it attached no statement by the Fireman’s Fund agent in Texas or the neighbors or relatives of the defendants in Texas, and the record is completely void of any such supporting evidence. While the affidavit referenced as Exhibit C and purporting to be that of the Fireman’s Fund underwriter was blank, we were able to locate an unmarked affidavit received by the clerk of court on August 15, 2005, two months after Fireman’s Fund filed its motion for summary judgment on June 14, 2005. The affidavit was signed by Darin Freebern in Cook County Illinois, identifying the subject policy and stating that no other policy was issued to Eva Bernal by Fireman’s Fund “applicable to any | ^occurence on March 26, 2001.” However, the notary block, while signed, contains the following date information: “this 22 day of 2005 2005.”

On August 31, 2005, the trial court signed a judgment granting the motion for summary judgment filed by Fireman’s Fund and dismissed Boutte’s case. Boutte filed this timely appeal. Finding various issues of fact and law in this case, we reverse both summary judgments by the trial court.

III.

LAW AND DISCUSSION

Standard of Review

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, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1. The movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant meets this initial burden, the burden then shifts to plaintiff to present factual support adequate to establish that he will be able to satisfy the eviden-tiary burden at trial. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131, 137. Thereafter, if plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law. Id. This 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 (La.4/14/04), 870 So.2d 1002, 1006 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 751). Further, this court has defined a “material fact” to be one in which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

Champagne v. Ward, 03-3211, pp. 4-5 (La.1/19/05), 893 So.2d 773, 776-77.

“Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the Inmotion, under which coverage could be afforded.” Adams v. Thomason, 32,728, p. 4 (La.App. 2 Cir. 3/1/00), 753 So.2d 416, 420, writ denied, 00-1221 (La.6/16/00), 764 So.2d 965.

Whether the Dismissal of Eva Bernal is Properly Before the Court

The judgment appealed from dismissed Fireman’s Fund via final judgment signed on August 31, 2005. Prior to signing the final judgment, the trial court also signed a judgment on August 22, 2003, granting summary judgment in favor of Eva Bernal and dismissing her from the case. The court specifically declined to designate the judgment dismissing Bernal as a final judgment by marking out the paragraph inserted by her in the judgment for that purpose. Eva Ber-nal now contends that the interlocutory judgment dismissing her pursuant to her motion for summary judgment is not ap-pealable because that interlocutory ruling is not sufficiently related to the final judgment dismissing Fireman’s Fund. She further argues that her dismissal had no impact on Boutte’s cause of action against Fireman’s Fund. We disagree.

Pursuant to its written policy, Fireman’s Fund has argued that it is liable only for “sums an insured legally must pay as damages.” Therefore, under the theory of defense asserted by Fireman’s Fund, the dismissal of the insured, Eva Bernal, is directly related to the dismissal of Fireman’s Fund and does impact Boutte’s cause of action against Fireman’s Fund. The general principle is that when, an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of adverse interlocutory rulings prejudicial to him in addition to the review of the final judgment on appeal. Landry v. Leonard J. Chabert Med. Ctr., 02-1559 (La.App. 1 Cir. 5/14/03), 858 So.2d 454, writs denied, 03-1748, 03-1752 (La.10/17/03), 855 So.2d 761.

| ij.,Our courts have held that there are exceptions to this general rule, particularly where writs have been taken and decided and where the doctrine of law of the case applies. However, there is no evidence of a writ application on the dismissal of Eva Bernal, and we find no exception to the general rule in this case. Accordingly, we will review Boutte’s assignment of error regarding the dismissal of Eva Bernal in the interlocutory judgment of August 22, 20Ó3.

The Summary Judgment Dismissals of Eva Bernal and Fireman’s Fund

The Fireman’s Fund commercial policy issued to Eva Burnal defined its insureds under the heading of WHO IS AN INSURED as follows:

The following are insureds:
a. You for any covered auto.
b. Anyone else while using with your permission a covered auto you own, hire or borrow....
c. Anyone liable for the conduct of an insured described above....

Boutte’s petition alleged that Juan Lara was operating the 1998 Ford van with the permission of Eva Bernal and within the scope of his employment with Eva Bernal at the time of the accident. As previously indicated, Eva Bernal denied both allegations and moved for summary judgment, which was granted in August 2003. Based upon Bernal’s deposition testimony and her dismissal in 2003 and based upon the exclusion in the policy, Fireman’s Fund moved for summary judgment, which was granted in August 2005. Boutte asserts that it was error for the trial court to grant summary judgment because the defendants failed to carry their burden of demonstrating that there were no material issues of fact regarding the circumstances of Juan Lara’s and Ruben Lara’s trip to Louisiana and Juan Lara’s employment with Bernal at the time of the accident and because, under a choice-of-law analysis, the l1sexclusion relied upon in the policy is unenforceable. Boutte argues that Ber-nal’s only support for her assertions was her own conflicting, self-serving testimony. We agree.

Our jurisprudence provides that a motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Because the movant has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. “The party who defends against the motion for summary judgment must have his properly filed allegations taken as true and must receive the benefit of the doubt when his assertions conflict with those of the movant.” Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342, 345 (La.1991) (citations omitted).

In the present case, in support of her motion for summary judgment, Eva Bernal attached Boutte’s original petition, her own deposition testimony, her expired work permit, and the Fireman’s Fund insurance policy with the endorsement excluding Juan, A. Lara as a covered driver. As indicated in the factual section above, the deposition of Eva Bernal was riddled with discrepancies and self-conflicting testimony. She contradicted herself repeatedly. She argues that, while her testimony varied as to exactly when Juan Lara stopped working for her, she clearly testified that he was not working for her at the time of the accident. We found nothing clear about her testimony.

Because we are reviewing this case de novo, we are not bound by the trial court’s discretion. Without supporting testimony or business records or evidence of any kind, we find that numerous issues of material fact exist as to what the relationship was between Eva Bernal and Juan Lara and Ruben Lara; whether Eva |14Bernal was the employer of Juan Lara at the time of the accident; whether Juan and Ruben Lara’s trip to Louisiana was in any way connected to repairing homes or installing flooring here; and whether Eva Bernal otherwise gave Juan express or implied permission as a friend or acquaintance to drive the van at the time of the accident.

In fact, there are no police reports or copies of drivers’ licenses in the record at all to indicate who was driving the insured vehicle, who was licensed or not licensed and how many Louisiana violations occurred on the date of the accident. The only solid identification in the record is Boutte’s chauffeur’s license and his medical records. The testimony of Eva Bernal created more factual issues than it resolved. Moreover, as will be discussed below, Eva Bernal was not entitled to summary judgment as a matter of law. Because Fireman’s Fund relied solely on the testimony of Eva Bernal and the exclusion in the policy, our position regarding Fireman’s Fund is the same.

The Fireman’s Fund Exclusion and Choice-of-Law Analysis

Boutte argues that the trial court’s reliance on Texas law is misplaced and that the named-driver exclusion in the Fireman’s Fund policy is not enforceable because it violates the public policy of Louisiana.

The exclusion in the Fireman’s Fund policy indicates that it is a “Business Auto Coverage Form” and contains the following language:

You agree that none of the Insurance coverage afforded by this policy shall apply while Juan A Lara (The Excluded Driver) is operating a covered auto or any other motor vehicle. You further agree that this endorsement will also serve as a rejection of uninsured/under-insured motorists coverage and personal injury protection coverage while a covered auto or any other motor vehicle is operated by the excluded driver.

|1sBoutte argues that Louisiana’s public policy regarding liability insurance holds that liability policies are issued “for the benefit of all injured persons” pursuant to La.R.S. 22:655(D). He further argues that, in keeping with that public policy, La. R.S. 32:900(B)(2)(d) limits the circumstances under which coverage may be excluded in a commercial automobile liability policy such as the one at issue in this case.

Louisiana Revised Statutes 32:900 addresses named-driver exclusions in two instances, as follows:

La.R.S. 32:900(L)(1) provides in pertinent part as follows:
Notwithstanding the provisions of Paragraph (B)(2) of this Section, an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement.

(Emphasis added).

La.R.S. 32:900(B)(2)(d) provides:

An owner may exclude a named person as an insured under a commercial policy if the owner obtains and maintains in force another policy of motor vehicle insurance which provides coverage for the person so excluded which is equal to that coverage provided in the policy for which the person was excluded. The alternative coverage is required for both primary and excess insurance.

(Emphasis added).

In the present case, the policy is a commercial or business policy. Therefore the applicable statute addressing the exclusion is La.R.S. 32:900(B)(2)(d). Accordingly, under Louisiana law governing named-driver exclusions, the exclusion in the Fireman’s Fund policy issued in Texas would not be enforceable in Louisiana lifibecause no other coverage was maintained for Juan Lara, pursuant to the affidavit filed in evidence in August 2005. Based upon the elegir language in the two subsections above, the Louisiana legislature intended to specifically limit named-driver exclusions for the protection of persons injured on Louisiana highways. In individual policies, the named-driver exclusion is limited to members of the household. In commercial or business policies, the limitation is more severe where the intent is to ensure that excluded drivers are nevertheless covered in another policy of insurance. On the other hand, Texas law differs somewhat.

For example, Texas courts have held that the family member exclusion contravenes the public policy underlying the Texas Motor Vehicle Safety-Responsibility Act to protect all potential claimants from damages because it creates an inequity by stripping family members of coverage while allowing coverage for everyone else. Accordingly, the Texas courts have determined that the even broader named-driver exclusion, which focuses on the risk presented by any individual driver, does not create the same inequitable effects as the family member exclusion. See Zamora v. Dairyland County Mut. Ins. Co., 930 S.W.2d 739 (Tex.App. 13th Dist.1996). In so doing, Texas has actually increased allowable exclusions in individual policies. With regard to the commercial policy at issue herein, Fireman’s Fund argues that the exclusion is enforceable, and we are not aware of any statute in Texas providing otherwise.

The Louisiana Supreme Court in Champagne, 893 So.2d 773, concluded that the appropriate starting point in a multistate case is to conduct a choice-of-law analysis pursuant to La.Civ.Code arts. 3515 and 3537 to determine which state’s law applies to the interpretation of the policy. The choice-of-law articles provide as follows:

La.Civ.Code art. 3515
|17Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.
La.Civ.Code art. 3537. General rule
Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

Fireman’s Fund argues that under choice-of-law analysis in cases deciding insurance issues, e.g., Zuviceh v. Nationwide Ins. Co., 00-773 (La.App. 1 Cir. 5/11/01), 786 So.2d 340, writ denied, 01-2141 (La. 11/9/01), 801 So.2d 373, and its progeny, have applied the foreign state’s laws and not abrogated the insurance contract. Fireman’s Fund argues repeatedly that “the exact same factors at play in Zuviceh are present and overwhelmingly weigh in favor [of] not abrogating the Fireman’s Fund contract issued and delivered in Texas to Ms. Bernal.” We disagree. At the outset, we note that the injured plaintiff in Zuviceh was a resident of the |1sforeign state, not a resident of Louisiana where the accident occurred, and that the insurance issue in Zuviceh was the plaintiffs own UM policy provision.

More specifically, in Zuviceh, the plaintiff was a Mississippi resident involved in a head-on collision with a Louisiana resident in Slidell, Louisiana. At the time of the accident, Zuviceh had in force a UM insurance policy that was issued to her by Nationwide Insurance Company. The UM policy was negotiated and issued in Mississippi and covered Zuviceh’s vehicle, which was registered in Mississippi. Zuviceh petitioned the court for a judgment declaring which state’s law governed the interpretation of the UM policy, Mississippi or Louisiana. The trial court conducted a choice-of-law analysis and ruled that Mississippi law should apply. In making its ruling, the trial court determined that Mississippi law applied to interpret the terms of the Nationwide policy because Mississippi had a more substantial interest in the uniform application of its laws than Louisiana had in providing an insurance remedy to an out-of-state resident who sustained an injury while temporarily within Louisiana’s borders.

Fireman’s Fund also cites Dreisel v. Metropolitan Property & Cas. Insurance Co., 01-2705 (La.App. 1 Cir. 12/20/02), 836 So.2d 347, writ denied, 03-199 (La.3/28/03), 840 So.2d 575, which applied Massachusetts law. There, the plaintiff was a Massachusetts resident and guest passenger in a vehicle owned and operated by a Louisiana resident. At the time of the accident, Dreisel had in effect a UM policy issued to her by Metropolitan in Massachusetts, and the vehicle was registered in Massachusetts. Dreisel sought to collect under the Metropolitan UM policy. She was denied coverage based on a reduction clause in the policy providing for a dollar-for-dollar reduction in Metropolitan’s liability based on money that the insured collected from the tortfeasor. Metropolitan argued that it had no liability under the UM policy since the tortfeasor’s insurance company had already tendered 119to Dreisel the per person policy limit of $100,000, plus- $5,000 in medical payments, an amount which exceeded Dreisel’s $50,000 per person UM limit. As a result, Dreisel filed suit against Metropolitan in Louisiana.

The trial court applied Louisiana law and granted Dreisel’s partial motion for summary judgment. Metropolitan appealed the trial court’s ruling, maintaining that Massachusetts latv should be applied to a Massachusetts insurance contract that expressly provided that the policy would be governed by Massachusetts law. The first circuit reversed, finding that Louisiana’s uninsured motorist statutes do not automatically apply to foreign state policies, but rather a choice-of-law analysis must be employed to obtain the appropriate balancing of competing interests between states. The court cited articles 3515 and 3537 and stated that “[t]he objective is to identify the state whose policies would be most seriously impaired if its law were not applied to the issue at hand.” Dreisel, 836 So.2d at 350. In that case, the first circuit found that Massachusetts law applied to the issue at hand. In both Zuviceh and Dreisel, the injured plaintiffs were residents of the foreign state, seeking an interpretation of their own foreign policies.

Fireman’s Fund also cites Norfolk Southern Corp. v. California Union Insurance Co., 02-369 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, writ denied, 03-2742 (La.12/19/03), 861 So.2d 579, which applied Virginia law. In Norfolk, the plaintiff was a Virginia corporation. Norfolk sought a declaration that it had coverage under several excess comprehensive general liability policies and sought indemnification for the costs of cleaning up various polluted sites around the United States, including three sites located in St. Tammany Parish, Louisiana. After citing the choice-of-law articles, La.Civ.Code arts. 3515 and 3537, the first circuit conducted a lengthy analysis demonstrative of the reasoning used in the other cited cases involving UM conflicts. In reviewing the relevant law of Virginia and Louisiana, the Norfolk court | ^found a genuine conflict between the laws of the two states concerning the issue of the effect of late notice to the insurance company. In determining that Virginia law should govern certain issues, the first circuit articulated as follows:

Virginiá clearly has the more significant contacts with the parties and the transactions at issue in this case. The London Insurers issued the insurance policies in favor of Southern Railway Company and Norfolk Southern Corporation. Southern Railway Company was organized under the laws of Virginia in 1894, and Norfolk Southern Corporation was incorporated in Virginia in 1982. Norfolk and Western Railway Company, which merged with Southern Railway to form Norfolk Southern Corporation, is also a Virginia corporation. All of these companies do business in Virginia. In addition, Norfolk’s main casualty and insurance claims offices are located in Virginia, and Norfolk provided notice of its claims regarding these insurance ■ policies from its offices in Virginia. The remaining plaintiffs are all subsidiaries or controlled companies of Norfolk Southern Corporation incorporated in various places throughout the United States. Although some of these parties conduct business in Louisiana, none is incorporated in Louisiana or has' its principal place of business in the state.
Moreover, Virginia was the site of the negotiation and delivery of many of the policies at issue here. Norfolk was represented in the negotiations concerning these policies by its brokers in Virginia, Missouri, and London. All of the policies were delivered to Norfolk in either Virginia or Washington, D.C. No negotiations took place in Louisiana, and no policies were delivered to Norfolk in Louisiana.
Virginia has a compelling interest in the regulation of its insurance industry and in the contractual obligations that are inherent parts thereof. The integrity of the contract is a substantial and real interest. The fact that Congress has allowed fifty states to have their own uniform system of regulations governing insurance strongly suggests that this is a legitimate public purpose. Zuviceh v. Nationwide Insurance Company, 00-0773, p. 7 (La.App. 1st Cir.5/11/01), 786 So.2d 340, 346, writ denied, 01-2141 (La.11/9/01), 801 So.2d 373.
In addition, we note that the circumstances of this case are entirely distinguishable from those of In re Combustion, Inc., 960 F.Supp. 1056 (W.D.La.1/15/97), on which Norfolk relies. That suit involved a class action by I several thousand individuals seeking damages for both personal injury and property damage arising out of the operations of a CERCLA Superfund hazardous waste site in Livingston Parish. The plaintiffs filed suit against numerous generators and transporters allegedly responsible for the contamination at the site and their insurers. The defendants also filed cross-claims against their insurers.
The court determined that the public policy of Louisiana and the circumstances of the case required that Louisiana law apply to all actions brought pursuant to the Direct Action Statute. In re Combustion, Inc., 960 F.Supp. at 1057. Specifically, the court focused on La.R.S. 30:2002, which declares the maintenance of a healthy and safe environment for the people of Louisiana “a matter of critical state concern.” In addition, the court considered certain circumstances of the case to be crucial to the analysis, including the direct effect the contamination had on Livingston Parish and its citizens. In re Combustion, Inc., 960 F.Supp. at 1068.
The case before this court, however, does not involve a direct action by injured Louisiana residents against the insurance companies. The only plaintiffs in this suit are the insureds themselves, and the court is only called on to decide issues concerning the interpretation of contracts between the parties to those contracts. We note that the In re Combustion, Inc. court itself distinguished cases such as this one involving a dispute only between insureds and insurers from those involving direct actions by injured parties. In re Combustion, Inc., 960 F.Supp. at 1070-1071.
Moreover, the insurance policies at issue here are comprehensive general liability policies intended to provide indemnity to Norfolk for liability arising out of the conduct of its business, regardless of the location of the risk. It is true that Norfolk’s losses at issue in these appeals occurred in Louisiana and that Louisiana has an interest in ensuring that its environmental sites are remediated; however, no private actions have been filed against Norfolk with respect to any of the Louisiana sites. There is no evidence that any Louisiana resident would be affected by a denial of coverage in this suit, since Norfolk is simply seeking reimbursement for costs it has already paid as response costs ordered by a governmental entity. There is also no evidence that any Louisiana resident has been injured by the contamination at the sites. Therefore, Louisiana’s interest in this case only arises because a Virginia corporation, along with certain of its subsidiaries and controlled companies, has filed suit in Louisiana seeking indemnity under insurance policies delivered | ^entirely outside of Louisiana (and primarily in Virginia) to recover payments it has already made as compensation for damage caused to property located in Louisiana. Such an interest is not sufficient to override the compelling interest Virginia has in regulating its insurance contracts. See Shell Oil Company v. Hollywood Marine, Inc., 97-106, 97-611, p. 8 (La.App. 5th Cir.10/15/97), 701 So.2d 1038, 1041.

Norfolk, 859 So.2d at 180-82 (emphasis added) (footnotes omitted).

Similarly, in Holcomb v. Universal Insurance Co., 93-1424 (La.App. 3 Cir. 6/1/94), 640 So.2d 718, writ denied, 94-1740 (La.10/7/94), 644 So.2d 643, a panel of this court applied Arkansas law to an interpretation of a policy issued and delivered in Arkansas after conducting a conflict-of-law analysis. There, the accident occurred in Louisiana, but the Louisiana residents involved had settled out of the suit. Accordingly, the panel articulated:

The action under consideration herein is likewise a matter of contract interpretation. The insurance policy herein was entered into between an Arkansas insurance company ... and an Arkansas resident/domiciliary ... to provide coverage on a vehicle registered, titled and garaged in Arkansas. That policy is being sued on by other Arkansas residents/do-miciliaries seeking coverage under that contract (policy) for damages they allegedly sustained. The only Louisiana contacts are the heretofore released tortfea-sor and the site of the accident. Neither is relevant to the issues to be decided herein. No Louisiana resident or company is a party to this action; and, inasmuch as a complete release has been executed in favor of all Louisiana parties, the outcome of this action will not affect any policy of or party in this state.
... In this case, although the accident occurred here and involved a Louisiana resident, the latter is totally unaffected by our decision. Were the circumstances otherwise, i.e., if a Louisiana resident were directly affected, this fact would not necessarily dictate the application of Louisiana law but would be pertinent to a determination of the choice of law to be applied.

Id. at 722 (emphasis added).

Lain Adams v. Thomason, 32,728 (La.App. 2 Cir. 3/1/00), 753 So.2d 416, writ denied, 00-1221 (La.6/16/00), 764 So.2d 965, the plaintiff was struck by a cotton trailer in Richland Parish, Louisiana, while he was leaning on a parked truck occupied and operated by a Wisconsin resident. The Wisconsin resident had in force a UM policy that was negotiated and issued to him in Wisconsin by State Farm. The plaintiff and his wife filed suit in Louisiana, seeking damages for his injuries. State Farm, the defendant’s insurer, was one of numerous named defendants. The trial court ruled that the State Farm UM policy provided coverage for the accident but applied Louisiana law to the State Farm policy. Other Louisiana residents were involved in and affected by the accident, and the insured was working in Louisiana at the time of the accident. Accordingly, the court articulated that:

Louisiana had compelling interests that superseded those of Wisconsin and would be adversely affected if Louisiana law were not applied. Louisiana has a substantial interest in regulating awards to victims injured on its highways and in protecting those persons from uninsured and underinsured motorists. Consequently, we find that Louisiana law is applicable to the State Farm policy.

Id. at 427.

As we- previously indicated, while not determinative, the residence of the injured plaintiff is pertinent and is a factor in determining choice-of-law issues. In the much-cited case of Champagne, the Louisiana Supreme Court found .that, under the facts of that case, Mississippi had a more substantial interest in the uniform.application of its laws governing insurance contracts than Louisiana had in providing an insurance remedy to an out-of-state resident who was injured while transitorily within the borders of Louisiana. Champagne, 893 So.2d at 773. Such is not the case here. In this case, the injured plaintiff, Boutte, was a resident of New Iberia, Louisiana. He was rear-ended in nearby Lafayette, and he clearly has expectations of protection from and by the laws of Louisiana.

|MIn Dunlap v. Hartford Insurance Co. of Midwest, 04-725, p. 6 (La.App. 1 Cir. 3/24/05), 907 So.2d 122, 125, where the plaintiff was a Louisiana resident who had been run off of the roadway by a phantom driver, the court found that, where the accident occurred in Louisiana, and all of the plaintiffs medical treatment related to the accident had been and probably would continue to be provided by doctors and hospitals in Louisiana, the plaintiff “would expect to be protected by its laws, including Louisiana’s strong public policy to promote full recovery for innocent accident victims.”

In the present case, Fireman’s Fund has argued that a determination of whether Texas or Louisiana law is applicable to the enforcement of the insurance contract is not dependent upon the relationship of the parties in this case to the insurance contract but to the relationship of the parties in the contract. That is to say, the injured parties not involved in the contract, whether they be plaintiffs or defendants, are not factors for consideration. If that were true, then there would be no balancing of competing interests; every contract between an insured and an insurer would simply be upheld under the laws of the foreign state, no matter how severe the injury done in Louisiana to a Louisiana resident and no matter how invasive and violative of Louisiana policy the foreign contract is. We strongly disagree with this contention that the choice of law must be based only upon the relationship of the parties contracting for the insurance. Jurisprudence has held that La.Civ.Code arts. 3515 and 3537 must be read together, as do the articles themselves. In Dunlap, the court articulated as follows:

Zurich contends the focus of the court’s analysis should be on the parties to the contract, Zurich and Iafrate, rather than the parties to the lawsuit or occurrence, which would include Dunlap. We disagree with this contention, noting first that Article 3515 instructs the court to examine the relationship of each state to the parties and the dispute, and Article 3537 invites analysis of the nature, type, and 12sPurpose of the contract, as well as the policies referred to in Article 3515.

Dunlap, 907 So.2d at 124 (emphasis in original).

We will proceed accordingly. In the present case, Fireman’s Fund argues that the relevant facts require a finding that Texas law be applied in this case because the policy containing the named-driver exclusion was issued and delivered to Eva Bernal, who is a Texas resident; the insured vehicle is owned by a Texas resident, Modesto Paredes, and was leased to Bernal; the insured vehicle was licensed, registered and garaged in Texas; and the vehicle was allegedly being driven by a Texas resident, Juan Lara, and not a Louisiana resident. On the other hand, our de novo review of the record reveals the following:

The contacts with Louisiana are as follows:
Boutte was a sixty-year-old citizen of Louisiana at the time of the accident and has been a resident of New Iberia, Louisiana and Lafayette, Louisiana.
Boutte had a social security number, and he had a valid Louisiana chauffeur’s license that was not to expire until September 2005.
Boutte had also worked as a cook on offshore boats and was described by his Louisiana physicians as a quiet gentleman with a limp.
At the time of the accident, Boutte was in his vehicle in Lafayette, Louisiana, stopped behind another vehicle that had stopped for construction.
Boutte’s vehicle was owned, garaged and licensed in Louisiana.
Boutte’s vehicle was violently struck from behind in Louisiana, pushed into another vehicle, and burst into flames near his city of residence.
Boutte suffered the loss of his guest passenger in Louisiana.
| ¡¡fiBoutte suffered various injuries including injuries to his back, shoulder, and pelvis and was disabled and hospitalized in Louisiana.
Boutte was treated by physicians in New Iberia and Lafayette, Louisiana.
The investigating police officers are Louisiana residents.
The fire department and ambulances are Louisiana residents.
The coroner is a Louisiana resident.
The accident was in view of Louisiana residents and affected Louisiana residents.
Almost all of the witnesses are residents of Louisiana.
The medical experts are Louisiana owned.
Defendant driver was allegedly in Louisiana to avail himself of Louisiana’s prices on vehicles being sold in Louisiana.
Defendants in the accident are believed to have received medical treatment in Louisiana.
Defendant Fireman’s Fund has offices and does business in Louisiana.

In contrast to the numerous contacts of plaintiff and defendants with Louisiana as listed above, the contacts with Texas are minimal.

The contacts with Texas are as follows: Defendants Bernal and the Laras resided and worked in Houston, Texas.
Eva Bernal leased, insured, and garaged the subject vehicle in Texas.
Defendant Fireman’s Fund issued and delivered the insurance policy in Texas.
The driver of the Mitsubishi is believed to reside in Texas.

However, the negatives outweigh the positives with regard to the defendants’ contacts with Texas:

^Defendant Bernal was not a citizen of Texas or any other state.
Defendant Bernal has never incorporated a business in Texas.
Defendant Bernal never received or issued a check for wages in Texas.
Defendant Bernal kept no business records in Texas.
There is no evidence in the record of Texas licenses of any kind for any of the individual defendants in this case.
Defendant Eva Bernal did not obtain a social security number in Texas and testified to not having a social security number.
Defendant Bernal did not have a Texas driver’s license at the time of the accident or for the majority of the time she resided in Texas; and the record contains no evidence of one.
Defendant Bernal has no Texas identification in the record except possibly an expired work permit card possibly issued in Texas; the card is stamped “not valid for reentry to U.S.”
Defendant Bernal’s “business” at the time of the accident existed for about one month and no longer exists, having dissolved two weeks after the accident. Defendant Bernal did not own real property in Texas.
Defendant Bernal allegedly has no contact in Texas with the men who were driving her vehicle in Louisiana.

While it is true that Texas has an interest in enforcing and protecting the integrity of its contracts in Texas, Louisiana clearly has the more significant contacts with the parties and all of the transactions at issue in this case. In fact, Louisiana has numerous contacts with Fireman’s Fund, which has offices and agents and a very visible presence in Louisiana. Louisiana clearly has more compelling interests that supersede those of Texas and would be adversely affected if Louisiana law were not applied. Louisiana has a more substantial interest in regulating awards to Louisiana | ¡^citizens injured on Louisiana highways, than Texas has in this case in enforcing a temporary contract with a non-citizen of its state. Given the facts and circumstances of this case, the issues herein are a matter of critical state concern and Louisiana public policy.

The legislature has enunciated public policy concerning the purpose of liability insurance in La.R.S. 22:655(D) which provides, in pertinent part, that “all liability policies ... are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable; and, that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.” The purpose of the compulsory automobile liability insurance law is not to protect the owner or operator against liability but to provide compensation for persons injured by the operation of insured vehicles. Couch, Cyclopedia Of Insurance Law, Vol. 12A, § 45:682 (2d ed.1981); Cormier v. American Deposit Ins. Co., 95-865 (La.App. 3d Cir.12/6/95), 664 So.2d 807; Fields v. Western Preferred Casualty Co., 437 So.2d 344 (La.App. 2d Cir.), writ[s] denied, 440 So.2d [528,] 754 (La.1983).

Adams v. Thomas, 98-2003, 98-2005 (La.4/13/99), 729 So.2d 1041,1043.

It is also important to note that Fireman’s Fund anticipated contacts with Louisiana and other states where the language in its contract with Eva Bernal stated:

b. Out of State Coverage Extensions.
While a covered auto is away from the state where it is licensed we will:
(1) Increase the Limit of Insurance for Liability Coverage to meet the limit or limits specified by a compulsory or financial responsibility law in the jurisdiction where the covered auto is being used.

Fireman’s Fund writes insurance in numerous states, including Louisiana. By its own terms, it anticipated that the insured vehicle would be driven |2iiin other states and that the policy would be susceptible to enforcement in other states under the laws of other states. In Zuviceh, so heavily relied upon by Fireman’s Fund, the court articulated that an out-of-state coverage provision such as the one above is a significant factor that distinguishes the application of foreign law in Zuviceh from other cases wherein no such language exists. The court stated as follows:

In conducting our analysis, we are guided by our previous decision of Francis[ v. Travelers Insurance Co., 581 So.2d 1036, (La.App. 1 Cir.), units denied, 588 So.2d 1114, 1121 (La.1991) ]. However, we are mindful that Francis was decided before the enactment of LSA-C.C. arts. 3515 and 3537. Moreover, we find the fact that the policy at issue in Francis contained a provision regarding consideration of other states’ laws to be crucial to the finding that Louisiana’s law applied. As previously noted, Nationwide’s policy contains no such provision.

Zuviceh, 786 So.2d at 348 (emphasis added).

We also note that, even though Francis, as referenced above in Zuviceh, was decided before the choice-of-law analysis was codified in La.Civ.Code arts. 3515 and 3537, the first circuit in that case performed an “interest analysis” to determine whether Louisiana or Ohio law applied to a UM policy. In Francis, the plaintiffs were Louisiana residents who had been injured in Louisiana while they were guest passengers in a car owned and driven by Ohio residents. The owner of the car had an Ohio policy with a UM limitation on liability different from Louisiana’s but also had an out-of-state coverage provision similar to the one at issue herein. After conducting the “interest analysis” to determine the choice-of-law state, the court concluded as follows:

Initially, we note that the Motorists policy does not state that it shall be governed by Ohio law. On the contrary, the policy contains provisions relative to “out of state coverage,” wherein it states that if accidents occur in other states, the policy will be interpreted to provide at least the minimum amounts and types of coverage required by the laws of such other states.
IsnClearly, Ohio has an interest in the uninsured motorist coverage issue. However, Motorists simply could not have contemplated its insured driving only in Ohio and the policy being governed solely by Ohio law. In fact, the territorial provision of the policy includes all of the United States. The contracting parties were surely aware then that the law of any state, including Louisiana, might be applicable to a particular claim.
Louisiana, on the other hand, has a great interest in regulating awards to victims injured on its highways and in protecting its citizens from uninsured or underinsured motorists.
After weighing the interests of both states, we conclude the interest of Louisiana outweighs the interest of Ohio. As such, we hold Louisiana law is applicable in this case.

Francis, 581 So.2d at 1042.

Accordingly, we find that, as a matter of law, Louisiana law applies to the coverage in this ease and that the named-driver exclusion which is against Louisiana policy is invalid and does not apply to prohibit coverage.

Fireman’s Fund further argues that, even if its named-driver exclusion were found invalid, the policy can only be reformed to provide minimum coverage of $10,000/$20,000 pursuant to Marcus v. Hanover Insurance Co., 98-2040 (La.6/4/99), 740 So.2d 603. We disagree. In Marcus, the court determined that a business use exclusion contravened the purpose of the Louisiana Motor Vehicle Safety Responsibility Law and La.R.S. 22:655(D) and reformed the policy to provide the minimum coverage set forth in our compulsory financial responsibility laws, not the coverage amount set forth in the policy therein. In the present case, the named-driver exclusion contravenes Louisiana public policy to protect injured victims in La.R.S. 22:655(D) and contravenes La.R.S. 32:900(B)(2)(d), which specifically provides that coverage for the excluded driver in a commercial policy must be provided in another policy in an amount “equal to that coverage provided in the \mpolicy for which the person was excluded.” Accordingly, the Fireman’s Fund policy in this case will be reformed to provide coverage in the full amount stated in the policy.

IV.

CONCLUSION

Based upon the foregoing, we reverse the judgments of the trial court which granted summary judgment to Eva Bernal and to Fireman’s Fund. Our de novo review of the record reveals that genuine issues of fact prohibit summary judgment in favor of Eva Bernal ad that Fireman’s Fund is not entitled to summary judgment as a matter of law. Accordingly, we reverse the summary judgment dismissals of Eva Bernal and Fireman’s Fund and remand the case for a trial on the merits in accordance with the coverage determinations made herein. All costs of this appeal are' assessed to the defendants in this case.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: AMY, Judge. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    Edward TRENT, Jr., et al. v. PPG INDUSTRIES, INC., et al.
    No. 05-989.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.

      Bradley Charles Myers, Charles S. McCowan, Jr., Glenn Michael Farnet, Kean, Miller, Hawthorne, D’armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Terrence D. McCay, Lake Charles, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Thomas M. Bergstedt, Felton Paul Leger, Brian W. Arabie, Bergstedt & Mount, Lake Charles, LA, for Defendant/Appellee, Olin Corporation.
    Tina Louise Wilson, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiffs/Appellants, Edward Trent, Jr., Individually and as Administrator of the Estate.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

Lin this consolidated personal injury dispute, the plaintiffs alleged that they were exposed to, and injured by, toxic chemicals on the defendants’ properties. The defendants filed motions for summary judgment, which the trial court granted. The plaintiffs appeal, asserting two assignments of error. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that Edward Trent, Angelo Honoré, Shannon Reed, Elbert Reed, and Darvin Ramirez (the plaintiffs) were employed by Ron Williams Construction Company (Ron Williams). Ron Williams and PPG Industries entered into a contract whereby Ron Williams would build a piperack to traverse the properties of PPG Industries (PPG), Lyondell Chemical Company (Lyondell) and Olin Corporation (Olin). The plaintiffs worked on the piperack project from December 1998 to January 1999. Construction of the piper-ack included digging holes in which to place the footings of the piperack.

The plaintiffs stated that while the holes were being dug, they noticed that the subsurface soils were discolored. According to the plaintiffs, strong, pungent odors emanated from the holes. Although the plaintiffs could not pinpoint the smell, they opined that it may have been ammonia. The plaintiffs’ job duties included digging holes in which to lay the cement footers for the piperack, helping clean off the auger used to drill holes as it came up out of the freshly dug soil, shoveling soil from around the sides of the holes, shoveling cement into the holes, and cleaning the area of excess soil.

The plaintiffs alleged that the odors made them ill. They experienced various symptoms, which included skin rashes, sinus troubles, burning nasal passages, nose bleeds, dizziness, and feeling sick to their stomachs. According to the plaintiffs, they | ^reported the odors and their symptoms to Ron Williams’ on-site supervisor, Lee Douget. Jamie Venable, Ron Williams’ Safety Coordinator, was also informed of the incident. The record reveals that Mr. Venable prepared memos, which documented the plaintiffs’ complaints and what further action was taken.

The plaintiffs subsequently filed this claim for negligence. Although several defendants were named, only Lyondell and Olin remain as the other defendants have been dismissed from the case. Lyondell filed a motion for summary judgment on the issue of breach of duty of care, which the trial court denied. Olin filed a motion for summary judgment arguing that it did not owe a duty to the plaintiffs; therefore, the plaintiffs could not prove that “Olin’s actions constitute^] a breach of the standard of care.” The trial court denied this motion.

Lyondell filed a new motion for summary judgment on the issue of causation, specifically whether the plaintiffs’ alleged injuries were caused by an alleged exposure and whether this exposure occurred on Lyondell property. In its motion, Olin argued that the plaintiffs failed to prove that Olin breached a duty owed to them and that they also failed to prove a causal relationship between any alleged exposure and their injuries. The trial court granted Lyondell and Olin’s motions for summary judgment. The plaintiffs appeal, designating the following as error:

1. The trial court erred in granting the defendants’ Motion for Summary Judgment by finding that because the plaintiffs had not been able to identify the chemical(s) to which they had been exposed, a causal connection could not be made between the exposure and plaintiffs’ injuries.
2. The trial court erred in failing to consider the applicability of the doctrine of res ipsa loquitor in this case.

^Discussion

Summary Judgment

The plaintiffs argue that Lyondell and Olin were negligent because they did not “test the soil under and around the area in which the plaintiffs would be working to assure that the area was clear of underground contaminants.” They claim that during the construction of the piperack across Lyondell and Olin properties, they were exposed to toxic chemicals, and they all suffered similar symptoms. The plaintiffs contend that it would have been difficult, if not impossible, to determine the chemicals to which they were exposed because the holes were filled with concrete after they were dug. The plaintiffs, therefore, argue that the trial court erred in granting the defendants’ motions for summary judgment “simply because the plaintiffs could not pinpoint the exact chemical to which they had been exposed.” They cite Housley v. Cerise, 579 So.2d 973 (La. 1991) in support of their argument.

“An appellate court will apply the de novo standard of review when reviewing a summary judgment and will use the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Lamoco, Inc. v. Hughes, 02-1498, p. 4 (La.App. 3 Cir. 7/9/03), 850 So.2d 67, 70, writ denied, 03-2603 (La.12/12/03), 860 So.2d 1156. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). A fact is material if it potentially insures or precludes recovery or determines the outcome of a legal dispute. Istre v. Meche, 05-303 (La.App. 3 Cir. 11/2/05), 916 So.2d 307.

Louisiana Code of Civil Procedure Article 966(C) provides in pertinent part:

|4(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Louisiana Code of Civil Procedure Article 967(B) provides:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegation or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

The record indicates that a hearing on Lyondell and din’s motions for summary judgment was held on January 6, 2005. During that hearing, Olin argued that pursuant to their right-of-way agreement with PPG, PPG “assumed the duty to protect and take care of worker safety.” Olin argued, in the alternative, that even if it owed a duty to the plaintiffs, there was no breach of that duty. The trial court denied the motion for summary judgment, stating:

I am going to deny the motion for summary judgment; but I am putting you on notice, Ms. Wilson [plaintiffs’ counsel], that another one is coming pretty soon where you are going to have to present some expert to say that there is some connection, that there is something out there.... And I am not going to let this case go to a jury or to anybody on the supposition that because I complained of something — it ain’t going there.

Lyondell also argued that it did not owe a duty to the plaintiffs, and if the trial court finds that there was a duty, Lyondell did not breach it. Although the trial court | Bdenied this motion, it reiterated that the plaintiffs would need to “produce anybody to document where the situation is[.]”

Lyondell and Olin subsequently filed new motions for summary judgment, and a hearing was held on April 19, 2005. Lyon-dell and Olin argued that the plaintiffs could not prove a number of essential elements of their negligence claim. They referenced the fact that the plaintiffs could not identify the chemicals to which they were allegedly exposed. Furthermore, the plaintiffs did not present any direct evidence that established a causal relationship between the plaintiffs’ alleged injuries and the work performed on the piperack project. In an effort to prove that their injuries were caused by a chemical exposure, the plaintiffs offered the opinion of their treating physician, Dr. Thomas Cal-lender, that they were “definitely exposed to something during that time.” The record does not indicate that Dr. Callender gave a deposition or submitted his opinion in affidavit form. We note, as the trial court did, that the plaintiffs’ medical records were not certified.

In granting Lyondell and din’s motion for summary judgment, the trial court stated:

What I have tried to encourage you [plaintiffs’ counsel] to do is to go get a soil testing company to dig a hole right next to a footing to see if there is something in that dirt.
hi think that you have that burden of proving that, that there is something in that dirt, because that’s your allegations, as we are digging up the hole, we get this stinky smell, the dirt is a different color. Something is wrong with the dirt. Okay?
Your clients are not experts. They can’t tell me the difference between sandy lommie [sic] soil, lommie [sic] soil and sandy soil — or clay or whatever it may be. Somebody has to tell me that they have looked at that dirt and it’s dirty dirt.
I am satisfied that plenty of time has gone by for something like that to happen, and I see nothing forthcoming. I think you have a burden of proving the causal relationship between something there; and you don’t have something there. So, for that basis, I am going to grant motions for summary [judgment] by both defendants.

After reviewing the record, we note that Lyondell and Olin presented evidence in support of their position that the area in which the plaintiffs were working was safe. According to Lyondell, before any work commenced on the piperack project, PPG contracted with Soil Testing Engineers, Inc. to conduct a geophysical analysis of the soils within the right-of-way for the project route. “[F]our soil borings to a depth of thirty feet were conducted on Olin and Lyondell property with no indication in the report of offensive odors, unusual soil conditions, or the presence of any ‘toxic or hazardous’ substances or materials.”

Lyondell also completed an excavation permit prior to construction of the piper-ack. According to Morgan French, Lyon-dell’s South Region Health, Safety and Environmental Manager, the purpose of the excavation permit is to “identify any hazards that might be out there that someone would run into while they are doing excavation.” In his deposition, Mr. French testified that this permit did not identify any hazards; thus, the work could proceed safely. In addition, Lyondell and Olin issued “safe work” permits each day. With regard to Lyondell’s safe work permits, Mr. French stated that a Lyondell employee and a Ron Williams representative would go out into the area where work was to be done that day and discuss “the potential 17hazards that they may encounter, what type of personal protective equipment may be appropriate for the job[,]” etc. None of Lyondell’s safe work permits indicated the presence of toxic chemicals or any other hazardous substances, din’s safe work permits did not indicate that drilling could not be safely performed in the right-of-way area or that there were toxic chemicals in the soil.

Lyondell and Olin have pointed out that there is an absence of factual support for one or more elements essential to the plaintiffs’ claim, i.e., the plaintiffs will not be able to prove that Olin and Lyondell breached any duty that may have been owed to them, what chemicals they were allegedly exposed to, or a causal link between the injuries alleged and the work performed on the piperack project. Therefore, the plaintiffs were required to “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” La. Code Civ.P. art. 966.

The plaintiffs’ deposition excerpts indicate that they smelled strong, pungent odors emanating from the holes that had been dug. They testified that the fumes were ammonia-like in nature. We note that Darren Swisher, Lyondell’s Safety Manager, drove along a roadway near the piperack project and smelled what “appeared to be ammonia.” He approached the plaintiffs, and they commented on the smell. Mr. Swisher proceeded as follows:

I then went and obtained ammonia tubes and ‘sniffed’ in the holes as well as about 1' [foot] above the holes. I was picking up high readings inside the hole, but when I sniffed 1' away from the hole I was not picking up any hazardous levels (well below the OSHA PEL).

Although the plaintiffs may have been exposed to ammonia, they have not presented any evidence indicating that the extent of any such exposure was a breach |sof either defendants’ duty owed to them or that it was of such a level so as to cause the injuries they complained of. As previously mentioned, Lyondell and din’s safe work permits did not indicate the presence of any hazardous substances. The plaintiffs further failed to produce any soil samples which prove that the soils in which they were digging were contaminated by toxic chemicals. Neither have the plaintiffs presented any certified reports from physicians confirming that their injuries resulted from exposure to toxic substances. Furthermore, the plaintiffs lack documentation that their injuries were caused by chemical exposure specifically located on the property of either defendant. The plaintiffs simply allege that they were exposed to chemicals along the piperack route. Even if we were to assume that the plaintiffs were exposed to chemicals on the property of both defendants, perhaps the exposure on only one was sufficient so as to cause the complained of injury.

We conclude that the plaintiffs have not met their burden with regard to breach or causation. Therefore, we affirm the trial court’s granting of the motion for summary judgment in favor of Lyondell and Olin.

Res ipsa loquitur

The plaintiffs argue that the trial court erred in faihng to consider the applicability of the doctrine of res ipsa loquitur in this case. They contend that “enough circumstantial evidence exists to create a genuine issue of material fact as-to the cause of the plaintiffs’ injuries that would preclude the granting of summary judgment on this issue.”

“[R]es ipsa loquitor permits a factfinder to examine the circumstances surrounding an incident and infer negligence on the defendant’s part.” Perkins v. Wurster Oil Corp., 04-692, pp. 4r-5 (La.App. 3 Cir. 11/10/04), 886 So.2d 1229, 1233, writ denied, 04-3011 (La.2/18/05), 896 So.2d 35. “The doctrine merely assists the |flplaintiff in presenting a prima facie case of negligence when direct evidence is not available.” Cangelosi v. Our Lady of the Lake Reg. Med. Ctr., 564 So.2d 654, 665 (La.1989). “[R]es ipsa loquitur is applied after all of the evidence has been presented.” Id. at 666.

We find that the doctrine of res ipsa loquitor is inapplicable here. While ultimately no direct evidence may be available in this case, the plaintiffs have failed to prove that it does not exist or that it has been destroyed. Rather, they appear simply to have not found any direct evidence. In response to the trial court’s question as to whether an expert tested the soil on Olin and/or Lyondell property, plaintiffs’ counsel stated:

That wasn’t done at the time. We were told by Ron Williams that the footings we [sic] filled with concrete so we couldn’t get in there. I understand that we could have gotten to them; and, unfortunately, that wasn’t done at the time the claim was made. And it hasn’t been done.

We note that as of April 19, 2005, the date of the hearing on the summary judgment motions, the plaintiffs had approximately six years in which to test the soil in the areas where the work was performed. Although the holes were subsequently filled with concrete, the record does not contain any testimony indicating that it would be fruitless to perform testing due to circumstances surrounding the site/sites or due to lapse of time. Accordingly, we find that the plaintiffs’ failure to obtain direct evidence does not warrant application of the res ipsa loquitur doctrine.

This assignment has no merit.

DECREE

For the foregoing reasons, the judgment of trial court granting Lyondell and din’s motions for summary judgment is hereby affirmed. All costs of these proceedings are assessed equally against the plaintiffs, Edward Trent, Angelo Honoré, Shannon Reed, Elbert Reed, and Darvin Ramirez.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

hThe doctrine of res ipsa loquitur is, in my opinion, applicable. The Trent Plaintiffs all allege that strong, pungent odors emanated from the holes where the footings of the piperacks were placed. Some of the men described it as an ammonia-type smell. All of the Trent Plaintiffs were required, as part of their job duties, to assist in the digging of the holes and filling them up with cement. Specifically, they were required to dig holes in which to lay the cement footers for the piperack, help clean off the augur used to drill holes as it came up out of the freshly dug soil, shovel soil from around the sides of the holes, shovel cement into the holes, and then clean the area of excess soil. While there were up to two dozen other men working on the piperack construction project, only the five Trent Plaintiffs were required to come in such close contact with these holes and the soil pulled out of them.

All five men claim that whatever they were smelling made them sick. Reported symptoms included: skin rashes, sinus troubles, burning nasal passages, nose bleeds, dizziness, and feeling sick to their stomachs. One of the Trent Plaintiffs described the smell as unbearable. All five of the Trent Plaintiffs claim that they | gcomplained about, and reported, the odors and their symptoms to Ron Williams’s on-site supervisor, Lee Douget. There are also memos in the record from Ron Williams’s Safety Coordinator, Jamie Venable, which document the men’s complaints.

At some point during the drilling of the holes for the piperack’s cement footings, Lyondell’s Safety Manager, Darren Swisher, drove past the construction project in a golf cart. He recalled the event in an email that is attached to the deposition of Lyondell’s South Region Health, Safety, and Environmental Manager, Morgan French.

Mr. Swisher remembers driving along a roadway near the piperack project, and smelling what seemed like ammonia. He went up to the Ron Williams’s crew, and they made comments to him about the smell as well. He then took air samples inside the already dug holes. The air samples were taken at different depths, starting inside the holes and working up to one foot above the holes. He states that he was picking up high readings of ammonia inside the holes, and lower readings above the holes. He states that the levels of ammonia at a height of one foot above the holes did not meet or exceed the Occupational Safety and Health Administration’s exposure limits, but he did recommend to Lee Douget that he supply the workers with respirators. Jamie Venable verifies that this event took place in one of the memos in the files of Ron Williams Construction.

The Trent Plaintiffs have filed a negligence claim against Lyondell and Olin. Under Louisiana law, in order for the plaintiffs to prevail on a negligence claim they must prove all five elements of the “duty-risk” analysis. Long v. State ex rel Dep’t of Transp. and Dev., 04-485, p. 21 (La.6/29/05), 916 So.2d 87, 101 (citation omitted). The five elements of the duty-risk analysis are:

(1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) |sproof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).

Id. (citations omitted).

Lyondell and Olin submitted the motion for summary judgment arguing that the Trent Plaintiffs could not prove a number of essential elements of their negligence claim. They argue that the Trent Plaintiffs have presented no direct evidence to show a causal link between the injuries alleged and the work performed on the piperack project. There is no direct evidence in the record of soil samples confirming toxic contamination of the soils the men were digging in; there are no certified reports from physicians confirming that the injuries suffered are due to exposure to toxic substance; and, there is no direct evidence to show that the injuries occurred on the days the men were digging at the site of the digging.

The legal doctrine of res ipsa loquitur allows “an inference of negligence to arise from the common experience of the factfin-der that such accidents normally do not occur in the absence of negligence.” Can gelosi v. Our Lady of the Lake Reg'l Med. Ctr., 564 So.2d 654, 660 (La.1989) (citation omitted). Our law permits a court to apply this doctrine in negligence cases, when appropriate. La.Civ.Code art. 2317.1. “The doctrine applies only when the facts of the controversy ‘suggest negligence of the defendant, rather than some other factor, as the most plausible explanation of the accident.’ ” Id., quoting Montgomery v. Opelousas Gen. Hosp., 540 So.2d 312 (La.1989).

Under res ipsa loquitur, a plaintiff can make a prima facie case of negligence against the defendant using circumstantial evidence if it shows that the |4type of injury sustained would not have occurred in the absence of negligence. Cangelosi, 564 So.2d at 665. Circumstantial evidence is defined as, “ ‘evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred.’ W. PAGE KEETON, ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 39, at 242 (5th ed. 1984).” Lawson v. Mitsubishi Motor Sales of America, Inc., 04-839, p. 4 (La.App. 3 Cir. 12/29/04), 896 So.2d 149, 154, writ granted, 05-257 (La.4/29/05), 901 So.2d 1044. Res ipsa loquitur allows the plaintiff to use only circumstantial evidence to prove negligence on the part of the defendant by a preponderance of the evidence, which is the burden of proof required to prove negligence. Cangelosi, 564 So.2d at 665. The trier of fact determines the applicability of the doctrine by applying the facts and circumstantial evidence to the three-part res ispa loquitur analysis.

For res ipsa loquitur to apply, “the injury must be of the type which does not ordinarily occur in the absence of negligence” .... In addition to establishing that the injury suffered does not normally occur in the absence of negligence, a plaintiff must show that the negligence of someone other than the defendant is not a more probable cause of the injury and that the negligence was within defendant’s duty to the plaintiff. A showing that the injury causing instrumentality was under the defendant’s control is generally sufficient to demonstrate that the defendant’s negligence was within the scope of his duty to the plaintiff.

Perkins v. Wurster Oil Corp., 04-692, p. 5 (La.App. 3 Cir. 11/10/04), 886 So.2d 1229, 1233, writ denied, 04-3011 (La.2/18/05), 896 So.2d 35. (Citations omitted).

Without hard data to prove the existence of chemicals in the soils in which they were digging, the Trent Plaintiffs urge us to apply the circumstantial evidence in the record to the three-part res ipsa loquitur analysis.

First, are these the kinds of injuries that would not occur in the absence of negligence? Noxious fumes do not usually emanate from the ground in the ^absence of negligence on the part of someone. People are not usually injured from fumes coming up out of the ground they just dug unless someone has been negligent. Common sense tells us that soil does not normally smell of ammonia, let alone a smell strong enough to make people sick and lure the safety supervisor over to explore the source of the odor in the absence of negligence.

Common sense also informs the conclusion that ammonia is an irritant when inhaled, or when it comes in contact with the skin — anyone cleaning up after a hurricane can attest to that fact. The Material Safety Data Sheet (MSDS) for ammonia lists some of the potential health effects that can be experienced when it is inhaled: burning sensation, coughing, wheezing, shortness of breath, headache, nausea, and vomiting. Contact with the skin can cause pain, skin redness, and irritation. These are some of the same symptoms reported by the Trent Plaintiffs after noticing the smell of ammonia coming from the holes they were digging on the Lyondell and Olin property.

Therefore, I conclude, as we did in Perkins where a man spontaneously burst into flames while putting gasoline in his car, that performing a mundane task such as digging in soil should not ordinarily cause respiratory injuries due to the inhalation of fumes and odors emanating from that soil without someone being negligent.

That brings me to the second step in the res ipsa loquitur analysis, i.e., did the Trent Plaintiffs sufficiently exclude their own, or any other third parties’ responsibility for the accident? The third circuit summarized the Louisiana Supreme Court’s guidance on this issue in our decision in Perkins, that “unless the ‘facts and inferences point so strongly and overwhelmingly’ in Defendants’ favor, the finder of Ififact should determine whether or not the res ipsa inference is proper.” Perkins, 886 So.2d at 1234, citing Cangelosi, 564 So.2d at 666-67.

Lyondell’s Morgan French stated in his deposition that Lyondell did indeed use ammonia as part of their industrial processes. A reasonable person could presume that ammonia might be present on Lyondell’s premises. There are three waste-dump landfills surrounding the area in which the Trent Plaintiffs were digging. One of the landfills was only 50-100 feet away from the piperack project. There was a report of contaminated soil leaking from this landfill about ten years prior (1988) to the start of the piperack project. There was also a report of contaminated groundwater detected down-gradient from this same landfill in 1992. There is no testimony or evidence in the record to indicate that the Trent Plaintiffs nor any other third party put ammonia in the soils, or that they injured themselves. Therefore, the facts and circumstantial evidence in this matter do not overwhelmingly favor Lyondell and Olin.

Lastly, is the negligence of Lyondell and Olin within the scope of their duty to the Trent Plaintiffs? The land on whieh these injuries allegedly occurred was within the exclusive control of Lyondell and Olin. Following our reasoning in Perkins, the fact that the instrumentality which caused the alleged injury was in the exclusive control of Lyondell and Olin indicates that their purported negligence was within the scope of their duty to the Trent Plaintiffs.

Without having to make any credibility determinations, evaluating testimony, or weighing evidence, based 17on the facts and the circumstantial evidence in the record I conclude that the three elements of a res ipsa loquitur analysis are present in this case. Therefore, under these specific facts and circumstances, based on all of the evidence found in the record and not solely on the allegations of the Trent Plaintiffs, the doctrine of res ipsa loquitur applies to this case.

Since res ipsa loquitur applies to the facts of this case, there is now a presumption that Lyondell and Olin were negligent. Based on that presumption, the burden of production shifts back to Lyondell and Olin to produce evidence from which a reasonable trier of fact could conclude that they were not negligent. Perkins, 886 So.2d 1229. Summary judgment would not be appropriate in this case since the application of res ipsa loquitur supplies genuine issues of material fact: the presumption of negligence on the part of these two defendants.

For the foregoing reasons, I dissent.

      . We note that in order to prevail on their negligence claim, the plaintiffs must prove all five elements of the ‘'duty-risk” analysis. In Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440, p. 7 (La.3/23/01), 782 So.2d 606, 611 (citations omitted), the supreme court stated:
      The determination of liability under the duty/risk analysis usually requires proof of five separate elements: (1) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).

      . The plaintiffs' medical records are not in the record but simply attached to their brief.

      . We note that on Olin's safe work permits, one of the items listed is "Excavation Permit Required” and there is a block to check for "Yes” or "No.” On several of these permits, the box next to this designation is checked "Yes”. When asked what this meant, James Brown, Olin’s Director of Environmental Mediation, explained: "It could mean one of two things. I’m not sure if the Lake Charles plant procedure called for a separate excavation permit or whether this Contractor Safe Work Permit served as the excavation permit.”


author: AMY, Judge.

text:
    Edward TRENT, Jr., et al. v. PPG INDUSTRIES, INC., et al.
    No. 05-990.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.
    Bradley Charles Myers, Charles S. McCowan, Jr., Glenn Michael Farnet, Kean, Miller, Hawthorne, D’armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Terrence D. McCay, Lake Charles, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Thomas M. Bergstedt, Felton Paul Leger, Brian W. Arabie, Bergstedt & Mount, Lake Charles, LA, for Defendant/Appellee, Olin Corporation.
    Tina Louise Wilson, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiffs/Appellants Edward Trent, Jr., Individually and as Administrator of the Estate.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

For the reasons discussed in the consolidated case of Edward Trent, Jr., et al. v. PPG Industries, et al., 05-989 (La.App. 3 Cir. 5/10/06), 930 So.2d 324, 2006 WL 1236147, the judgment of the trial court is affirmed. All costs of these proceedings are assessed equally against the plaintiffs, Edward Trent, Angelo Honoré, Shannon Reed, Elbert Reed, and Darvin Ramirez.

AFFIRMED.


text:
    Edward TRENT, Jr., et al. v. PPG INDUSTRIES, INC., et al.
    No. 05-991.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.
    Bradley Charles Myers, Charles S. McCowan, Jr., Glenn Michael Farnet, Kean, Miller, Hawthorne, D’armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Terrence D. McCay, Lake Charles, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Thomas M. Bergstedt, Felton Paul Leger, Brian W. Arabie, Bergstedt & Mount, Lake Charles, LA, for Defendant/Appellee, Olin Corporation.
    Tina Louise Wilson, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiffs/Appellants, Edward Trent, Jr., Individually and as Administrator of the Estate.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

For the reasons discussed in the consolidated case of Edward Trent, Jr., et al. v. PPG Industries, et al., 05-989 (La.App. 3 Cir. 5/10/06), 930 So.2d 324, 2006 WL 1236147, the judgment of the trial court is affirmed. All costs of these proceedings are assessed equally against the plaintiffs, Edward Trent, Angelo Honore, Shannon Reed, Elbert Reed, and Darvin Ramirez.

AFFIRMED.


text:
    Edward TRENT, Jr., et al. v. PPG INDUSTRIES, INC., et al.
    No. 05-992.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.
    Bradley Charles Myers, Charles S. MeCowan, Jr., Glenn Michael Farnet, Kean, Miller, Hawthorne, D’armond, MeCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Terrence D. McCay, Lake Charles, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Thomas M. Bergstedt, Felton Paul Leger, Brian W. Arabie, Bergstedt & Mount, Lake Charles, LA, for Defendant/Appellee, Olin Corporation.
    Tina Louise Wilson, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiffs/Appellants, Edward Trent, Jr., Individually and as Administrator of the Estate.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

For the reasons discussed in the consolidated case of Edward Trent, Jr., et al. v. PPG Industries, et al., 05-989 (La.App. 3 Cir. 5/10/06), 930 So.2d 324, 2006 WL 1236147, the judgment of the trial court is affirmed. All costs of these proceedings are assessed equally against the plaintiffs, Edward Trent, Angelo Honoré, Shannon Reed, Elbert Reed, and Darvin Ramirez.

AFFIRMED.


text:
    Edward TRENT, Jr., et al. v. PPG INDUSTRIES, INC., et al.
    No. 05-993.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.

      Bradley Charles Myers, Charles S. McCowan, Jr., Glenn Michael Farnet, Kean, Miller, Hawthorne, D’armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Terrence D. McCay, Lake Charles, LA, for Defendant/Appellee, Lyondell Chemical Company.
    Thomas M. Bergstedt, Felton Paul Leger, Brian W. Arabie, Bergstedt & Mount, Lake Charles, LA, for Defendant/Appellee, Olin Corporation.
    Tina Louise Wilson, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiffs/Appellants, Edward Trent, Jr., Individually and as Administrator of the Estate.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

For the reasons discussed in the consolidated case of Edward Trent, Jr., et al. v. PPG Industries, et al., 05-989 (La.App. 3 Cir. 5/10/06), 930 So.2d 324, 2006 WL 1236147, the judgment of the trial court is affirmed. All costs of these proceedings are assessed equally against the plaintiffs, Edward Trent, Angelo Honoré, Shannon Reed, Elbert Reed, and Darvin Ramirez.

AFFIRMED.