author: CARAWAY, J.

text:
    Judy CHAPMAN, Plaintiff-Appellant, v. Robert L. EBELING, Jr., M.D., Northeast Louisiana Radiation Oncology, L.L.C., and William D. Zollinger, M.D., Defendants-Appellees.
    No. 41,710-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      C. Bryan Racer, Monroe, for Appellant.
    Theus, Grisham, Davis & Leigh by Robert J. Bozeman, Monroe, for Appellees.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   CARAWAY, J.

|! Plaintiff/employee sued her former employer and his medical clinic for defamation after the former employer allegedly made unfavorable statements about plaintiffs work performance to a reference checker. Plaintiff also sought compensation payment for unused vacation time, based upon the employer’s policy of awarding four weeks’ annual paid vacation, and penalties and attorney fees for denying that wage benefit. Following a trial, the trial court denied all of plaintiffs claims and this appeal ensued. Finding no manifest error in the trial court’s ruling, we affirm.

Facts

For approximately three and one-half years, Judy Chapman (“Chapman”) was employed as the office and billing manager of Northeast Louisiana Radiation Oncology, L.L.C. (“the clinic”), the medical clinic of Robert Ebeling, Jr., M.D. (“Dr. Ebel-ing”). On February 16, 2000, Chapman gave Dr. Ebeling two-weeks’ written notice of her resignation. The following day, Chapman reported sick and stayed home. Because he believed Chapman would not return to work, Dr. Ebeling called Chapman and told her that there was no reason for her to come back. The clinic paid Chapman her wages for the entire month of February. On April 13, 2000, Chapman formally demanded severance pay and compensation for unused vacation time and overtime.

When she quit, Chapman’s 2000 vacation time was unused. The trial testimony confirmed that clinic employees received four weeks of annual paid vacation.

lain June 2000, Chapman obtained the services of an employment agency. When no offers were forthcoming, she learned that she had received poor work history references. Chapman suspected the clinic as the source and hired a professional reference checker. When the reference checker contacted Dr. Ebeling, he described Chapman as “a little emotionally unstable,” and also faulted her for not telling co-workers how to perform tasks, falling behind in her work, and giving abbreviated notice of her resignation. He also blamed Chapman for the high turnover rate of employees at his clinic.

In 2002, Chapman sued Dr. Ebeling and the clinic for compensation of wages and penalties and attorney fees for the wrongful denial of wages. Chapman also included a defamation claim.

After a bench trial, the trial court denied Chapman’s wage claims, finding she failed to show that a “stated vacation policy” existed entitling Chapman to four weeks vacation pay, and further, the court determined that Chapman was adequately paid for her 2000 vacation time. The court rejected Chapman’s defamation claim on the grounds of inadequate proof that Dr. Ebeling’s statements were either false or made with malicious intent. The trial court also viewed the statements as privileged. This appeal by Chapman ensued.

Discussion

I.

Chapman first asserts as error the trial court’s failure to award her $1,628.46 for two weeks of unpaid vacation time and penalties and attorney | afees under Louisiana wage law. In so arguing, she concedes that the additional payment of two weeks of wages for time she did not work in February approximates half of the annual vacation leave.

The following statutes govern Chapman’s entitlement to payment for accrued vacation time. In relevant part, La. R.S. 23:631 provides:

A.(l)(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of resignation, whichever occurs first.
D.(l) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
(2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.

Additionally, La. R.S. 23:634(A) provides:

No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

These statutes are designed to compel prompt payment of wages when an employee is discharged or resigns. Wyatt v. Avoyelles Parish School Bd., 01-3180 (La.12/4/02), 831 So.2d 906. They are penal in nature and must therefore be strictly construed and yield to equitable Jjdefenses. Boudreaux v. Hamilton Medical Group, Inc., 94-0879 (La.10/17/94), 644 So.2d 619, citing Mason v. Norton, 360 So.2d 178, 180 (La.1978).

Accrued vacation time is an “amount then due under the terms of employment” and constitutes wages under La. R.S. 23:631 which are due upon resignation by the employee. Wyatt, supra. Subsection (D) of La. R.S. 23:631 cannot be interpreted to allow forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy. Id. Where an employer has a clearly established policy that vacation time is not considered wages actually earned by an employee, the employee is not entitled to reimbursement for unused, accrued vacation time upon discharge or resignation. However, in the absence of a clear written policy establishing that vacation time granted by an employer to an employee is nothing more than a mere gratuity and not a wage, accrued but unused vacation time is a vested right for which an employee must be paid upon discharge or resignation. Wyatt, supra.

The employer-employee relationship is a contractual relationship. As such, an employer and employee may negotiate the terms of an employment contract and agree to any terms not prohibited by law or public policy. When the employer and employee are silent on the terms of the employment contract, the civil code provides the default rule of employment-at-will. Quebedeaux v. Dow Chemical Co., 01-2297 (La.6/21/02), 820 So.2d 542. Additionally, the foregoing statutes on wage payments supplement the employment relationship. Yet, absent a specific contract or agreement | ^establishing a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for discharge. Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2d Cir.1982).

Under Louisiana law, the formation of a valid and enforceable contract requires capacity, consent, a certain object, and lawful cause. The court must find there was a meeting of the minds of the parties to constitute the requirement of consent. Crowe v. Homesplus Manufactured Housing, Inc., 38,382 (La.App.2d Cir.6/21/04), 877 So.2d 156. The existence or nonexistence of a contract is a question of fact not to be disturbed unless clearly wrong. Id.

The evidence revealed no written policy concerning employees’ vacation pay. Nevertheless, Dr. Ebeling acknowledged a policy, as follows:

Q. You indicated she was going to get four weeks of paid vacation. Correct?
A. Yes.
Q. So each new calender year a new four weeks would become an entitlement of hers to take off. Right?
A. Yes.
Q. Did you have a policy within the office that when an employee’s employment ended that that employee would be paid for any unused vacation time?
A. No.

|ROn cross examination, Dr. Ebeling explained further regarding his employees’ vacation time:

Q. So as of January 1, Mrs. Chapman or some other employee, if they needed to and it could be worked out with the schedules of other people so that the work could be accomplished and it wasn’t a hindrance on the office, could take four consecutive weeks of vacation?
A. Theoretically, yes. No one had ever done that.
Q. So your employees are entitled to take their vacation time, assuming it can be scheduled, as of January 1 of each calendar year?
A. That was never specifically written anywhere. The general assumption was that you wouldn’t get to the first of the year and take off four weeks because that would disrupt the office. Showing up on January 1, I never assumed, entitled you to four weeks at that point. It was assumed it would be spread through the year.

In her testimony, Chapman acknowledged the allowance of four weeks paid vacation each year. Nevertheless, she indicated in the following exchange that the vacation policy of the clinic did not formally address her entitlement to unused annual vacation pay upon resignation from employment:

Q. Okay. So there was not any type of contract, either verbal or written between you and Dr. Ebeling, the clinic with regard to any specific amount of money that you might receive when your employment ended.
A. No.

The trial court considered the foregoing testimony for a determination of the facts regarding the parties’ understanding or “meeting of the minds” |7on the issue of vacation pay. It found no stated policy controlling vacation pay for the present situation.

From the above testimony, the clinic’s policy and practice of allowing its employees to schedule and receive four weeks of paid vacation each year during their employment was clear. With deference under manifest error review to the trial court’s factual determinations, we agree that the employees’ entitlement to unused annual vacation pay after their employment terminated was unclear and unexpressed in any written policy. Three possibilities for answering this quandary would be (i) payment upon resignation of four weeks’ annual vacation pay; (ii) payment of an accrued portion based on the pro rata amount of time employed during the year of termination; or (iii) no payment for unused annual vacation time not taken prior to resignation. Without a clear showing of either an employment agreement or policy specifying one of these preferences over another, the sup-pletive force of La. R.S. 23:631(D) is all that regulates the employee/ employer relationship when Chapman resigned. That statute awards vacation pay at termination based on the second option listed above.

Applying La. R.S. 23:631(D) here allows Chapman to claim a small portion of the annual vacation pay because she worked only the first six weeks of the year. On an accrual basis, she was therefore owed much less than half of the compensation for vacation which she received. Thus, there is no showing that the statutory allowance regarding vacation pay was violated, and we agree with the trial court’s factual finding that there was no employment policy between the parties otherwise providing a greater | ¡¡entitlement to vacation pay upon employee resignation. From these determinations, we affirm the trial- court’s ruling.

II.

The second assignment of error concerns the trial court’s denial of Chapman’s alleged defamation claim. Dr. Ebeling admitted his statements to Chapman’s reference checker, but the trial court found no defamation was proven.

Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129; Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, 715. A successful claimant in a defamation action must establish the following elements: (1) defamatory words; (2) publication; (3) falsity; (4) malice; and (5) injury. Hines v. Arkansas Louisiana Gas Co., 613 So.2d 646 (La.App. 2d Cir.1993), writ denied, 617 So.2d 932 (La.1993). If even one of the required elements of the tort is lacking, the cause of action fails. Costello, supra; Cooksey v. Stewart, 41,336 (La.App.2d Cir.8/23/06), 938 So.2d 1206; Kosmitis v. Bailey, 28,585 (La.App.2d Cir.12/20/96), 685 So.2d 1177. Chapman alleges that the statements made were defamatory per se. Words which expressly or implicitly accuse another of criminal conduct, or which by them very nature tend to injure one’s personal or professional reputation, are considered defamatory on their face, or defamatory per se. Bell v. Rogers, 29,757 (La.App. 2 Cir, 8/20/97), 698 So.2d 749; Elmer v. Coplin, 485 So.2d 171 (La.App. 2d Cir.1986), writ denied, 489 So.2d 246 (La.1986). When the plaintiff proves | spublication of words which are defamatory per se, the elements of falsity and malice are presumed, but may be rebutted by the defendant. Id.

Even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either (1) the statement was true, or (2) the statement was protected by a privilege, absolute or qualified. Costello, supra; Cooksey, supra. A conditional or qualified privilege is applicable if the communication is made in good faith on any subject matter in which the person communicating has an interest or in reference to which he has a duty to a person having a corresponding interest or duty. Aranyosi v. Delchamps, Inc., 98-1325 (La.App. 1st Cir.6/25/99), 739 So.2d 911, writ denied, 99-2199 (La.11/5/99), 750 So.2d 187. Good faith is defined as a statement made with reasonable grounds for believing its truth. Only when lack of such reasonable grounds is found can it be said that the person uttering the statement is actuated by malice or ill will. Ward v. Sears, Roebuck & Co., 339 So.2d 1255 (La.App. 1st Cir.1976); Aranyosi, supra.

Communications between a former employer and prospective employers of an employee enjoy a conditional or qualified privilege, and such a communication is not actionable when made in good faith for legitimate purposes. Butler v. Folger Coffee Co., 524 So.2d 206 (La.App. 4th Cir.1988); Alford v. Georgia-Pacific Corp., 331 So.2d 558 (La.App. 1st Cir.1976), writ denied, 334 So.2d 427 (La.1976).

Dr. Ebeling’s statements assessed Chapman’s professional weaknesses as he observed them. The doctor described her emotional | inconduct which occasionally disrupted the workplace using medical language. While such statements related to Chapman’s professional demeanor, the trial court correctly ruled that they did not rise to the level of being defamatory per se.

Moreover, the statements made by Dr. Ebeling to a prospective employer enjoy a qualified privilege. Butler, supra; Alford, supra. As such, these statements are not actionable if found to have been made in good faith for legitimate purposes. At trial, Dr. Ebeling testified that he believed his statements were confidential. Further, he testified that he made the statements with no intention of hurting Chapman. When questioned about characterizing Chapman’s slight emotional instability, Dr. Ebeling described an incident he observed which brought him to that conclusion. He also testified that he provided positive information about Chapman’s work performance during the conversation. The trial court determined Dr. Ebeling’s statements were made in good faith, based upon reasonable grounds for believing their truth. The trial court’s acceptance that Dr. Ebel-ing made the statements with no intention of hurting his former employee was a credibility determination which will not be disturbed on appeal. Accordingly, the denial of Chapman’s defamation claim is affirmed.

Conclusion

For the foregoing reasons, the judgment of the trial court rejecting the demands of Chapman is affirmed at her cost.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    James H. KELLY & Londa D. Kelly, Individually and As Natural Tutor of their Minor Children, Wade Kelly, Heath Kelly, and Chance Kelly, Plaintiffs-Appellants, v. CITY OF BOSSIER CITY, Defendant-Appellee.
    No. 41,705-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Seabaugh, Benson, Keene & Denny by J. Todd Benson, J. Ransdell Keene, Shreveport, for Appellants.
    Cook, Yancey, King & Galloway, by Kenneth Mascagni, Shreveport, for Appel-lee, City of Bossier City.
    Gregory S. Barkley, Assistant Attorney General, for Appellee, State of Louisiana, DOTD.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

hThe plaintiffs, James Kelly and Londa Kelly, individually and as natural tutor of their minor children, Wade Kelly, Heath Kelly, and Chance Kelly, appeal from a trial court decision granting a motion for summary judgment in favor of defendant, City of Bossier City. For the following reasons, we affirm.

Facts and Procedural Background

On March 23, 2001, James and Londa Kelly and their three children were involved in an automobile accident with Ella Hanna. James Kelly, who was driving northbound on the Arthur Ray Teague Parkway (“the Parkway”), collided with Mrs. Hanna as she drove across the northbound lane of the Parkway while attempting to turn onto the southbound lane from McDade Street (La. Highway 8105).

The Parkway, which is controlled by the City, is intersected by McDade Street, which is controlled by the Department of Transportation and Development (“DOTD”). This is a “T” intersection. At the time of the accident, traffic on McDade was controlled by two stop signs and a flashing red signal or stop light, and traffic on the Parkway was controlled by a flashing yellow signal or caution light.

Passengers in both vehicles required medical attention; however, Mrs. Kelly’s condition was much more severe. Mrs. Kelly had to be airlifted to the hospital, where she remained in the intensive care unit for a number of days awaiting surgery.

On January 15, 2002, plaintiffs filed the present suit alleging that the City is liable for damages arising out of breaches of its duty to protect | zdrivers on the Parkway. On December 5, 2005, the City filed a motion for summary judgment, contending that it did not have custody of the Parkway/McDade intersection and therefore could not be liable for any defects. The City also contended that there was no unreasonable risk of harm at the intersection, since sight distances exceeded the standards as set forth by the American Association of State Highways and Transportation Officials (“AASHTO”). In opposition to the niotion for summary judgment, plaintiffs contended that the City’s liability arose from its custody of the Parkway, not the DOTD’s custody of the intersection. More specifically, plaintiffs argued that the City could have: placed additional traffic control devices along the Parkway to warn motorists of the alleged danger presented by the Parkway/McDade intersection; lowered the speed limit along the Parkway; or closed the Parkway.

On March 27, 2006, the trial court granted the City’s motion for summary judgment and dismissed plaintiffs’ claims against the City. The trial court’s holding was partially based upon La. R.S. 32:235(C), which states that “no local municipal or parish authority shall place or maintain any traffic control device upon any state-maintained highway without having first obtained the written approval of the department.” From this adverse judgment, plaintiffs have appealed.

Discussion

The plaintiffs contend that the trial court erred in granting the defendant’s motion for summary judgment because the City had a duty to warn motorists on the Parkway of the dangerous intersection and to take | asteps to prevent accidents at that intersection. Plaintiffs also contend that there are genuine issues of material fact as to whether the City breached these duties. Lastly, plaintiffs contend that the trial court erred in relying upon improper summary judgment evidence. This last contention, however,, we pretermit discussing since we find that summary judgment is appropriate without relying on any of the disputed evidence.

A motion for summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Once the motion for summary judgment has been properly supported by the moving party, the inability of the non-moving party to bring forth evidence of a material factual dispute mandates the granting of the motion. Racine v. Moon’s Towing, 01-2837 (La.05/14/02), 817 So.2d 21; Robertson v. West Carroll Ambulance Service Dist., 39,331 (La.App.2d Cir.01/26/05), 892 So.2d 772, writ denied, 05-0460 (La.04/22/05), 899 So.2d 577. Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Id.; Traweek v. Jackson, 30,248 (La.App.2d Cir.02/25/98), 709 So.2d 867.

No person shall have a cause of action against a public entity for damages due to road defects, unless: (1) the thing that caused his damages was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant | ¿possessed actual or constructive notice of the defect and failed to take corrective actions to remedy the defect within a reasonable period of time; and (4) the defect was a cause in fact of the plaintiffs harm. La. R.S. 9:2800; Johnson v. City of Bastrop, 41,240 (La.App.2d Cir.08/01/06), 936 So.2d 292. The failure of plaintiff to establish any one of these criteria is fatal to his claim. Netecke v. State, Through DOTD, 98-1182 (La.10/19/99), 747 So.2d 489.

In the case sub judice, both parties agree that the Parkway/McDade intersection was not in the City’s custody. The intersection, which is the alleged defect, was controlled by the DOTD. Thus, custody being an essential element, it is evident that plaintiffs cannot carry their burden of proof on this element and defendant is entitled to summary judgment as a matter of law.

Plaintiffs, however, alternatively argue that the City did have custody of the Parkway and, thus, as a matter of law, had a duty to protect those motorists traveling on the Parkway. It is their contention that the City should have done more to warn or protect drivers from the inherent dangers posed by the approaching intersection, that is, that the City should have posted signs warning of the intersection, reduced the speed limit, or closed the Parkway. Plaintiffs posit that the accident in this case would not have occurred had such traffic or speed control signage been in place. They, however, do not produce any of evidence to support this contention. When considering only that evidence which is undisputed, it is clear that there was | fia traffic signal already in place. This signal, operating in flash mode, blinked yellow for cars traveling on the Parkway and red for those on McDade.

It has been well established that a flashing yellow light at an intersection is an indication to reasonable persons that the intersection is more dangerous than ordinary intersections. Salles v. State Farm, Mut. Auto. Ins. Co., 395 So.2d 942 (La.App. 2d Cir.1981), writ denied, 400 So.2d 903 (La.1981); Landrum v. New Amsterdam Casualty Co., 149 So.2d 182 (La.App. 3d Cir.1963). Furthermore, a flashing yellow light informs drivers that they should exercise a greater degree of care and vigilance when approaching the intersection. Id.

Plaintiffs argue that, as a matter of law, the City, had a duty to do more to protect motorists traveling on the Parkway. This argument, however, does not take into account the fact that there was already a flashing yellow light and flashing red light controlling the intersection; the City pointed this out in support of its motion for summary judgment. Once the City supported its motion with this evidence, the burden shifted to plaintiffs to bring forth evidence showing that there was a genuine issue of material fact as to whether the City had a duty to do more. Plaintiffs not only failed to bring forth evidence demonstrating that the Parkway/McDade intersection was so unreasonably dangerous that additional traffic devices or |fisignage were warranted, they also failed to produce any evidence of a material factual dispute.

Accordingly, because plaintiffs failed to produce any factual support, as required by La. C.C.P. art 966, establishing that they would be able to satisfy their eviden-tiary burden of proof at trial, the trial court correctly found that there was no genuine issue of material fact. Therefore, summary judgment was properly granted in favor of the City of Bossier City.

Conclusion

For the reasons stated above, we affirm the trial court ruling granting summary judgment in favor of the defendant, City of Bossier City. Costs of this appeal are assessed to the plaintiffs.

      . Plaintiffs contend that, at least in part, all evidence, except for the affidavit of Officer Brian Griffith, is improper summary judgment evidence. Since we find that no genuine issue of material fact exists without the evidence, we need not make a determination as to its admissibility.


author: GASKINS, J.

text:
    ESTATE OF Margaret LOVELESS, Deceased, Thru the Administrator, Tim LOVELESS, et al., Plaintiffs-Appellants v. Jesse Hunter GAY and HCA Health Services of Louisiana dba North Monroe Medical Center, Defendants-Appellees.
    No. 41,575-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Hayes, Harkey, Smith & Caseio, L.L.P. by C. Joseph Roberts, III, Monroe, for Plaintiffs-Appellants.
    John B. Hoychick, Rayville, for Defendant-Appellee, Jesse Hunter Gay.
    Ungarino & Eckert L.L.C. by Brian D. Smith, Christopher B. Joffrion, Shreveport, J. Michael Nash, for Defendant-Ap-pellee, HCA Health Services of Louisiana, Inc. dba North Monroe Medical Center.
    Before STEWART, GASKINS and LOLLEY, JJ.
   GASKINS, J.

_!_jThe plaintiffs, the heirs and the estate of Margaret Loveless, appeal a grant of summary judgment in favor of the defendant, North Monroe Medical Center (NMMC). For the reasons set forth below, we affirm.

FACTS

In October 2004, Mrs. Loveless was a patient at NMMC undergoing rehabilitation following hip replacement surgery. On the evening of October 16, 2004, a 1969 Ford pickup truck operated by Jesse Hunter Gay left a curved portion of Old Sterlington Road adjacent to NMMC, crossed a ditch, a parking lot, and a curb. The vehicle crashed through the wall of Mrs. Loveless’ hospital room, striking her and causing fatal injuries. The plaintiffs allege that Mr. Gay was intoxicated at the time of the accident.

In September 2005, the plaintiffs filed suit against Mr. Gay and NMMC, alleging both negligence and strict liability claims against NMMC. The strict liability claims under La. C.C. art. 2317.1 were based on the argument that the medical center was geographically located at a site unreasonably susceptible to such accidents and that the medical center was not designed or constructed to protect occupants from this danger. The plaintiffs also alleged that NMMC knew or should have known of the vice, defect or ruin of the physical structure and had experienced similar events in the past.

NMMC denied the plaintiffs’ allegations, and subsequently filed a motion for summary judgment. NMMC argued in its motion for summary judgment that the question before the court was one of duty; NMMC phrased the issue as follows:

|a[T]he court must decide if there is foreseeability in law of an injury to a person inside a building by being struck by a motor vehicle operated by an intoxicated driver who left the roadway, traveling more than three hundred feet, out of control, crossing a ditch, striking a tree, crossing a curb, a parking lot, another curb, striking a light pole, and then striking the side of a building.

NMMC argued that such a scenario was not “foreseeable in law,” and that the hospital had no duty to protect Mrs. Loveless from the actions of Jesse Gay.

In support of the motion for summary judgment, NMMC attached the deposition of Officer Jeffrey L. Sanders of the Monroe Police Department who investigated the accident. Officer Sanders’ deposition testimony essentially corroborated the factual statements in NMMC’s motion for summary judgment concerning the manner in which the accident occurred and Mr. Gay’s apparent intoxication. Several photographs of the accident scene, an offense report, and a crime lab report on Mr. Gay’s blood alcohol level were attached to Officer Sanders’ deposition testimony.

The plaintiffs filed an opposition to the motion for summary judgment, making arguments concerning both the procedural posture of the case and the substantive issues. As to the procedural posture, the plaintiffs stated that they had obtained a police report showing a prior similar incident in which a vehicle had left the roadway and struck the hospital in July 1996. The report was attached to the plaintiffs’ opposition to the motion for summary judgment. The plaintiffs argued that, despite NMMC’s denial regarding prior incidents, the information obtained from the Monroe police department confirmed that the accident involving Mrs. Loveless was not the |sfirst instance in which a vehicle failed to negotiate the curve by the hospital and collided with NMMC’s building.

Because discovery was not complete, the plaintiffs urged that summary judgment was premature. They attached the affidavit of Tim Loveless, the administrator of Mrs. Loveless’ estate, stating that investigation and discovery were ongoing and that he desired his counsel to fully investigate the prior incident to determine whether NMMC took appropriate action to remove patients from “the plausible trajectory path of vehicles that fail to negotiate the Old Sterlington Road curve or, alternatively remove patients from the risk area of the hospital facility.” The plaintiffs stated that discovery was only beginning in the case, that there had been no requests to set the matter for trial, and that there were no established discovery deadlines.

NMMC responded with a motion to strike the administrator’s affidavit, as well as a police report from July 1996 concerning the other alleged incident. NMMC attacked the affidavit because it was not based on personal knowledge; NMMC also attacked the police report which it characterized as “hearsay within hearsay.”

The minutes of court from March 29, 2006, indicate that on that date the motion for summary judgment was taken up and argued, the court granted the motion to strike the police report, and granted summary judgment in favor of NMMC. However, the minutes also specify that the parties declined to have the proceeding recorded by a court reporter. Thus, a transcript of the summary judgment hearing is not part of the record on Rappeal. Furthermore, while the court’s written judgment on the motion for summary judgment indicates that the court considered the pleadings, evidence and argument of counsel, the judgment does not indicate any part of the court’s reasoning, and there are no written reasons for judgment.

The plaintiffs appealed the trial court judgment, arguing that the trial court erred in granting summary judgment in favor of NMMC, particularly where discovery was not complete. They also argue that the trial court erred in striking the police report indicating a similar prior accident at NMMC.

POLICE REPORT

We reject the plaintiffs’ argument that the trial court erred in striking the police report concerning another accident in 1996. On motions for summary judgment, supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967. Personal knowledge means something which a witness actually saw or heard, as distinguished from something a witness learned from some other person or source. Shelter Insurance Company v. Broan-Nutone, LLC & CBC, Inc., 39,625 (La.App.2d Cir.5/11/05), 902 So.2d 1146, writ denied, 2005-1483 (La.12/16/05), 917 So.2d 1112. A police report does not comply with La. C.C.P. art. 967 requiring that supporting and opposing affidavits shall be made on personal knowledge. Chariot v. Alabama Great Southern Railroad Company, 1998-0895 (La.App. 4th Cir.6/24/98), 716 So.2d 906, writ denied, 1998-2007 (La.10/30/98), 728 So.2d 387. The plaintiffs failed to |sprovide an affidavit or deposition testimony of the police officer who authored the report or other witnesses, in support of their opposition to the motion for summary judgment. Accordingly, the trial court did not err in striking the police report.

DISCOVERY

The trial court was not premature in granting summary judgment even though the plaintiffs argued that discovery was ongoing. Under La. C.C.P. art. 966, a motion for summary judgment is appropriate only after “adequate discovery.” However, it is not an abuse of the trial court’s wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. It is within the trial court’s discretion to render a summary judgment or require further discovery. Petch v. Humble, 41,301 (La.App.2d Cir.8/23/06), 939 So.2d 499.

If it appears from affidavits of a party opposing a motion for summary judgment that, for reasons stated in the opposition, the party cannot present by affidavit facts essential to justify its opposition, the court may refuse the application for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. La. C.C.P. art. 967(C).

The plaintiffs argue that a reasonable and substantial basis existed to decline summary judgment under La. C.C.P. art. 967(C) in order to permit them reasonable latitude to conduct discovery to include the issue of IfiNMMC’s knowledge of prior similar accidents and knowledge of the particular danger that resulted in Mrs. Loveless’ death.

The pleadings show that the plaintiffs were aware when they filed suit that a similar incident had occurred. The plaintiffs did not ask for a continuance to conduct further discovery. The record shows that the plaintiffs had adequate time to properly develop and attempt to support their contention that NMMC was aware of a prior accident. The trial court acted within its wide discretion in proceeding with the motion for summary judgment.

SUMMARY JUDGMENT

We find that the trial court did not err in granting summary judgment in favor of NMMC. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Durmon v. Billings, 38,514 (La.App.2d Cir.5/12/04), 873 So.2d 872, writ denied, 2004-1805 (La.10/29/04), 885 So.2d 588. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is enti-tied to judgment as a matter of law. La. C.C.P. art. 966(B).

|7The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the non-moving party to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966(C)(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21; Hardy v. Bowie, 1998-2821 (La.9/8/99), 744 So.2d 606. Once the burden has shifted, the opponent must produce factual support to avert the summary judgment. If the opponent fails to produce such evidence, summary judgment is mandated. La. C.C.P. art. 966(C)(2); Racine v. Moon’s Towing, supra; Garsee v. Bowie, 37,444 (La.App.2d Cir.8/20/03), 852 So.2d 1156; Durmon v. Billings, supra.

Appellate courts review summary judgments de novo, sing the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 2001-1136 (La.11/28/01), 800 So.2d 783.

The plaintiffs state that their lawsuit is grounded in both general negligence and strict liability, the latter dealing with the location of NMMC’s facility adjacent to a curve in the roadway, the design of the facility in light of its location, and the existence of an unreasonably dangerous defect in the facility, along with failure to discover and repair it despite prior warning. Upon the facts presented, we find the plaintiffs’ claims sound more in negligence than in strict liability. We note that the | ¿provisions of La. C.C. art. 2817.1 effectively turn such strict liability claims into negligence claims. See Reitzell v. Pecanland Mall Associates, Ltd., 37,524 (La.App.2d Cir.8/20/03), 852 So.2d 1229; Solito v. Horseshoe Entertainment, 36,667 (La.App.2d Cir.12/18/02), 834 So.2d 610.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. The court may consider various moral, social, and economic factors, including the fairness of imposing liability; the economic impact on the defendant and similarly situated parties; the need for an incentive to prevent future harm; the nature of the defendant’s activity; the potential for an unmanageable flow of litigation; the historical development of precedent; and the direction in which society and its institutions are evolving. Posecai v. Wal-Mart Stores, Inc., 1999-1222 (La.11/30/99), 752 So.2d 762.

A hospital has a duty to exercise reasonable care to protect those who enter its premises. This duty extends to keeping the premises safe from unreasonable risks of harm and to adequately warn potential victims of the existence of the danger. Choyce v. Sisters of the Incarnate Word, 25,958 (La.App.2d Cir.8/19/94), 642 So.2d 287, writ denied, 1994-2510 (La.12/9/94), 647 So.2d 1119. A hospital is not an insurer of a patient’s safety and is not required to guard against or take measures to avert a situation that a reasonable person would not anticipate as likely to happen under the given circumstances. Lichti v. Schumpert Medical Center, 32,620 (La.App.2d Cir.1/26/00), 750 So.2d 419, writ denied, 2000-0623 (La.4/20/00), 760 So.2d 349.

In deciding whether a duty has been violated, the trier of fact must decide whether the defendant’s conduct conforms to the standard of a reasonable man under like circumstances; various factors considered in the “reasonable man” analysis include the likelihood of harm, the gravity of harm, the burden of prevention, and the social utility of the defendant’s conduct. Meany v. Meany, 1994-0251 (La.7/5/94), 639 So.2d 229. Simply stated, an unreasonable risk of harm is one that a reasonable man would take steps to prevent or eliminate.

The Louisiana Supreme Court had adopted a duty-risk analysis to determine whether liability exists under the particular facts presented. Under this analysis, the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Under the duty-risk analysis, all four inquiries must be affirmatively answered for a plaintiff to recover. Posecai v. Wal-Mart Stores, Inc., supra. See also Meany v. Meany, supra.

In the present case, NMMC did not breach its duty to exercise reasonable care to keep the premises safe from unreasonable risks of harm. This accident was not a situation that a reasonable person would anticipate as likely to happen under the given circumstances. The likelihood that a vehicle would leave the roadway and travel several hundred feet across a Imparking lot and other obstacles and crash into a patient’s room was not foreseeable. We find that the accident in this case was unforeseeable even considering the alleged prior accident in 1996. If the police report had been considered, it is not clear that the accident occurred at the same point on the hospital building. There was no showing that the prior accident was a circumstance likely to recur. The likelihood of such an accident is too attenuated to warrant preventative measures. To guard against such an unlikely circumstance would require the hospital to become the insurer of the safety of its patients. Further, the plaintiff submitted no evidence that the wall of the hospital was insufficient to withstand ordinary forces that might be expected to be exerted against it. In light of the number of barriers that Mr. Gay traveled through before crashing into the hospital building, it is hard to envision what fortification the hospital could have employed to prevent this accident.

Many businesses are located adjacent to roadways, including roadways that have curves in them. While the possibility always exists that a motorist could leave the roadway and crash into a business, the chances of such an occurrence ordinarily are so remote that a business seldom will be required to take preventive measures against the possibility of such an occurrence. There was no evidence in the instant case either that the placement of the hospital was defective in any way, or that NMMC would l^not have been justified in concluding that the alleged first incident was a freak accident highly unlikely to recur.

CONCLUSION

For the reasons set forth above, we find that summary judgment was properly granted in favor of NMMC, and we hereby affirm that judgment. Costs are assessed to the plaintiffs.

AFFIRMED.

      . Even were we to consider the police report of the prior accident, the diagram of that accident does not support the plaintiffs' argument that the vehicle traveled the trajectory path of a vehicle failing to negotiate a curve. Instead, the diagram shows the vehicle simply veered off the road.

      . See Mims v. Bradford, 503 So.2d 1083 (La.App. 2d Cir.1987), writ denied, 504 So.2d 556 (La.1987); Mayeur v. Time Saver, Inc., 484 So.2d 192 (La.App. 4th Cir.1986), writs denied, 486 So.2d 751, 753 (La.1986); Millet on Behalf of Millet v. Knockum, 503 So.2d 51 (La.App. 5th Cir.1987), writ denied, 503 So.2d 1008 (La.1987). See and compare Parish v. L.M. Daigle Oil Company, Inc., 1998-1716 (La.App. 3d Cir.6/23/99), 742 So.2d 18.

      . While not foreseeable in the instant case, circumstances could arise where factors such as the position of a roadway, the placement of a business, the speed limit, and prior accidents could impose a duty upon the building owner to take preventative measures.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Jared Jermaine GIPSON, Appellant.
    No. 41,549-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Louisiana Appellate Project by Peggy J. Sullivan, Indigent Defender Board by Mary L. Harried, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and SEXTON (Pro Tempore), JJ.
   STEWART, J.

11 Jared Jermaine Gipson seeks review of his sentence for Armed Robbery with a Firearm, a violation of La. R.S. 14:64 and La. R.S. 14:64.3. The court imposed a sentence of 20 years at hard labor without benefit of probation parole or suspension of sentence in addition to a consecutive 5 years at hard labor without benefits under the enhancement statute, La. R.S. 14:64.3. A timely motion for reconsideration of sentence was denied. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

On June 14, 2005, the defendant entered Blalock’s Professional Beauty College with his face covered, wearing a red hooded shirt. The defendant brandished a gun and told everyone to get on the ground. He then pulled out a garbage bag and then ordered one of the college’s instructors to assist him in collecting purses. After the first instructor refused to assist him, another instructor was chosen to place items in the bag. This instructor gathered a few purses and then placed any other items she could find in the bag before the defendant realized what she was doing and took the bag.

At some point, the defendant took $15.00 from a student instructor then ordered him to the back of the building. As the defendant attempted to make his getaway with the bag containing the purses and other items, he was tripped by a college employee. The defendant fell into a wall and was forced to the ground by the student instructor. The student instructor took the gun, and the defendant yelled that the gun was not loaded. Once the defendant was on the ground, many of the students and employees beat him with several items including curling irons, hair dryers, pieces of board, and [2a chair leg. During the melee the defendant fought to escape the college and in doing so he pushed and hit those who attempted to detain him. The defendant took several swings at one of the students, who was pushed into a wall and suffered a fractured tailbone during the struggle.

Once police arrived, the defendant was pulled from the crowd and handcuffed. The defendant required medical treatment for his injuries and was transported to a hospital. When interviewed in the hospital, the defendant told a detective that a couple of girls told him the school would “be an easy lick,” referring to an easy robbery. The defendant reported he had obtained a gun from somewhere near the school and went in to rob the school, but the situation turned bad really fast.

After a bench trial, the defendant was found guilty of armed robbery with a firearm. The defendant was sentenced to 20 years at hard labor without benefit of probation, parole, or suspension of sentence for the armed robbery and a consecutive 5 years without benefit of probation, parole, or suspension of sentence for the firearm enhancement. A multiple offender bill filed by the state was dismissed after the victims expressed their concern that the sentence the defendant could possibly receive would be excessive.

DISCUSSION

Excessive Sentence

When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. ^Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

In this case, the trial court considered the defendant’s previous conviction for simple robbery and the fact that the defendant’s probation for that offense had been revoked because of positive drug screens. The defendant also received a misdemean- or theft conviction while on probation. The trial court noted it considered the fact that the instant crime was a very violent, brazen felony offense committed against numerous young ladies. The court stated that the fact that the gun was not loaded was of no consequence in this matter.

The trial court also considered the defendant’s family background, the defendant’s upbringing in a church environment, and the individuals who had been role models in the defendant’s life, and several letters written on behalf of the defendant. The court was cognizant of the defendant’s remorse, his drug addiction, and the victims’ viewpoint and/or recommendations for sentencing.

CONCLUSION

On this record, we do not find constitutional error. The sentence of less than half of the defendant’s potential minimal exposure under a multiple offender bill is lawful and is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in |4the imposition of this sentence.

The sentence is affirmed.

AFFIRMED.


author: DREW, J.

text:
    Ronnie McWILLIAMS, Plaintiff-Appellee, v. Troy COURTNEY, Defendant-Appellant.
    No. 41,725-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      The Bernoudy Law Firm, by Angela Michelle Smith, for Appellant.
    Edward Charles Jacobs, Springhill, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

|!Troy Courtney seeks reversal of the trial court’s judgment awarding $1,270.00 in general damages and $500.00 in attorney fees and costs to Ronnie McWilliams. For the following reasons, the judgment of the trial court is affirmed.

FACTS

In November 2001, Ronnie McWilliams and Troy Courtney entered into an oral agreement under which McWilliams leased a wood splitter and trailer to Courtney so that Courtney could cut, haul, and sell firewood. The splitter and trailer remained in Courtney’s possession for four to five months. In June 2003, McWil-liams, through his attorney, presented Courtney with a demand letter for $1,500.00. Courtney refused to pay the bill.

On June 22, 2004, after making amicable demand, McWilliams filed a suit on open account for $1,500.00 plus attorney fees and costs against Courtney. In his answer to the petition, Courtney denied that he owed the debt on the basis that the parties’ agreement only called upon Courtney to cut firewood for McWilliams, which Courtney alleged that he had done. His answer further claimed that he had four witnesses to the agreement.

The matter came for trial on March 23, 2006. McWilliams testified that he and Courtney had entered into the rental agreement at McWilliams’ place of business, the Porterville Country Store. According to McWilliams, Courtney agreed to pay $40.00 per day for use of the wood splitter and $30.00 per day for use of the trailer. He testified that over the next several | ^months he kept track of the days on which his equipment was being used by driving past Courtney’s house. If the equipment was in use, he would charge Courtney for it, but if it was sitting idle, he would not charge Courtney for it. As to Courtney’s claim that McWilliams had been provided four cords of firewood in return for the use of the equipment, McWilliams testified that Courtney had only delivered a load of unmarketable limbs to his house.

Without any objection from Courtney, who was not represented by counsel at the time, McWilliams introduced a copy of the ledger notes where he kept track of the use of his equipment. The notes reflect a total amount due and owing of $1,470.00. However, in his testimony, McWilliams admitted that the starting balance of $200.00 did not reflect accurate record keeping but merely an estimate of what he “figured” Courtney owed when he began to keep track of his equipment’s use. Also offered and admitted into evidence without objection was a copy of the demand letter sent to Courtney by McWilliams’ attorney.

The court then heard testimony from Kenneth Coleman, who was with Courtney on the day the arrangement between the parties was made. Coleman indicated that he only heard McWilliams offer to make Courtney a “deal,” but he did not hear anything regarding the terms of that deal. He confirmed that he had been with Courtney when he made deliveries of two cords of firewood to both McWilliams’ home and the home of McWilliams’ son. There was no testimony as to when these deliveries took place.

laCourtney testified that the original agreement was proposed by McWilliams and that the only request McWilliams had made in return for Courtney’s use of the equipment was that he provide McWil-liams and McWilliams’ son each with two cords of firewood. Courtney testified that he cut and delivered the wood as agreed and that there was never any discussion regarding the payment of money for the rental of the equipment. On cross-examination, he asserted the sales price for a cord of firewood was $225.00. When asked the whereabouts of the four witnesses to the agreement identified in his answer, he indicated that Coleman was one of them, two others were in prison, and the fourth was in Houston.

After hearing the testimony, the trial court rendered judgment awarding McWil-liams $1,270.00 on the open account, and $500.00 in attorney fees and court costs. The court stated that it did not believe Courtney’s testimony as to the nature of the agreement and therefore awarded McWilliams the amount reflected on the invoice minus the $200.00 estimated balance. A judgment to that effect was signed on June 30, 2006. The instant appeal followed.

DISCUSSION

On appeal, Courtney makes two assignments of error. First, he contends that the trial court erred in allowing hearsay into evidence in the form of McWilliams’ ledger notes regarding the dates that his equipment was in use by Courtney. Second, Courtney argues that the trial court was manifestly erroneous in concluding that the terms of the agreement between the parties were those testified to by McWilliams.

\ ¡Evidentiary Issue Regarding McWil-liams’ Ledger Notes

At trial, a party must make a timely objection to evidence that the party considers inadmissible and must state the specific ground for the objection. La. C.E. art. 103 A(l); La. C.C.P. art. 1635. Failure to contemporaneously object constitutes a waiver of the right to complain on appeal. See Bryant v. Newman, 39,437 (La.App.2d Cir.4/20/05), 900 So.2d 343; and Zellinger v. Amalgamated Clothing, 28,127 (La.App.2d Cir.4/3/96), 683 So.2d 726. Furthermore, the reasons for the objection must be brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. See Jeansonne v. Bosworth, 601 So.2d 739 (La.App. 1st Cir.1992), writ not considered, 614 So.2d 75 (La.1993). An appellate court will therefore not consider a ground for objection different from the grounds raised at trial. Tutorship of Price v. Standard Life Ins. Co., 569 So.2d 261 (La.App. 2d Cir.1990), writs denied, 572 So.2d 91, 92 (La.1991).

Courtney did not raise the objection of hearsay, now raised on appeal, when the ledger notes were introduced. If Courtney could be deemed to have voiced any opposition to the notes, it was on the basis that its contents were not accurate. Courtney’s failure to contemporaneously object to the admission of the exhibit during trial on the basis of hearsay constitutes a waiver of his right to complain on appeal that admission of the exhibit was prejudicial error. This assignment of error is without merit.

1 kErroneous Finding of Fact

Courtney argues that the factual inconsistencies in the evidence support a finding that the trial court manifestly erred in rendering judgment in favor of McWil-liams. Specifically, Courtney cites the discrepancy in the amount claimed by McWil-liams and the amount ultimately awarded, the lack of an explanation as to why McWilliams and his son were provided firewood, and the lack of specificity as to the terms of the contract.

Whether or not an oral contract has been confected between the parties is a finding of fact and, as such, is subject to the manifest error standard of review. An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Dept. of Transp. and Development., 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

| (¡McWilliams testified that the parties had agreed to the rental of his wood splitter and trailer for $40.00 per day and $30.00 per day, respectively. He further testified as to how he tracked the use of his equipment by noting the days it was not sitting idle at Courtney’s property. McWilliams explained that the reason he did not charge for the rental on those days was because if he had wanted to use the equipment, it was available to him. He also testified that the beginning balance of $200.00 on his ledger was strictly an estimate and not a reflection of actual knowledge as to Courtney’s use of the equipment. This evidence not only explains the alleged discrepancy between the amount awarded and the amount originally claimed, but supports the trial court’s finding that McWilliams was owed $1,270.00 for the rental of his equipment.

Courtney’s argument that the agreement testified to by McWilliams fails to explain why Courtney delivered four cords of firewood to McWilliams and his son is also without merit. Courtney’s argument assumes that the trial court believed that such deliveries had been made. We see no indication of such a finding in the record. McWilliams admitted to receiving only one pickup truckload of what he considered to be unmarketable wood. Furthermore, even if such a finding had been made, Courtney’s suggestion that it constitutes irrebuttable evidence of the nature of the agreement is unconvincing. Courtney’s actions in this regard could have been motivated by gratuity or conscience since he was in possession of McWilliams’ wood splitter during the winter months. That the record does not evidence what other motive there might have been is of no moment. 17McWiIliams did not acknowledge that the delivery of four cords of firewood was made. Accordingly, he was not likely to offer an explanation for an event he did not acknowledge ever occurred in the first place.

Lastly, Courtney’s complaint as to the lack of specificity in the contract also fails. A lease is a synallagmatic contract by which one party, the lessor, binds himself to give the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay. La. C.C. art. 2668. The essential elements of a lease are the thing, the price (rent), and consent of the parties. Southern Treats, Inc. v. Titan Properties, L.L.C., 40,873 (La.App.2d Cir.4/19/06), 927 So.2d 677, writ denied, 2006-1170 (La.9/15/06), 936 So.2d 1271. The form of a lease may be written or verbal. La. C.C. art. 2681; Southern Treats, supra.

Courtney’s complaints as to the absence of a term, payment arrangements, and a proper method of accounting for his use are inapposite. Courtney has not cited and we are not aware of any authority supporting the proposition that a lease agreement must contain specifics as to the accounting method to be used or as to the manner in which payment will be made. Courtney offered no evidence to contradict the assertion that he was using McWil-liams’ equipment on the days alleged. Accordingly, he will not now be heard on appeal to complain that McWilliams’ method for determining it was unreliable.

As to the absence of a lease term, the law clearly provides that for a lease agreement wherein the parties have failed to agree as to the duration of the term, the duration is supplied by law. See La. C.C. art. 2678. In the case Rof the lease of movables, the term is day to day, unless the rent is fixed by longer or shorter periods. La. C.C. art. 2680. Accordingly, we find no manifest error in the trial court’s findings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is hereby AFFIRMED. The costs of this appeal are to be borne by appellant.

      . A local constable, Deputy Fig Newton, recovered the equipment on behalf of McWil-liams.


text:
    Bilbo Spencer DARK, Plaintiff-Appellant, v. Benjamin F. MARSHALL, IV, Defendant-Appellee.
    No. 41,711-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      The Bezou Law Firm by Jacques F. Bezou, Covington, for Appellant.
    Allen & Gooch Counsel by Troy Allen Broussard, Lafayette, for Appellee.
    Before GASKINS, CARAWAY and SEXTON (pro tempore), JJ.
   CARAWAY, J.

11 Appellant sued her former attorney seeking damages for professional negligence arising from his alleged failure to timely include her excess/ umbrella automobile insurer into a tort action filed on her behalf. The insurer was later brought into the action by a second attorney and raised the defense of prescription. Appellant contends the defendant’s omission ultimately reduced her recovery right against the excess carrier. The trial court granted defendant’s motion for summary judgment, prompting this appeal. Since we find that appellant’s claim against the excess insurer did not prescribe before its inclusion in the prior suit, we affirm.

Facts

The defendant, Benjamin F. Marshall, IV (“Marshall”), is the former attorney of appellant, Bilbo Spencer Dark (“Dark”). The attorney/client relationship began after Dark was seriously injured in an automobile accident in Monroe on May 15, 2000. Marshall filed a petition against the tortfeasor, Jason McKenzie (“McKenzie”), and his insurer on April 4, 2001. About six months later, on September 27, 2001, the first amended petition added Dark’s uninsured/underinsured motorist (U/M) insurer, Assurance Corporation of America (“Assurance”). Dark also had U/M coverage under an umbrella liability policy issued by Maryland Insurance Company (“Maryland”), yet Maryland was not added as a defendant with Assurance. The umbrella policy covered excess U/M claims; Marshall’s failure to include Maryland as a defendant ultimately became the basis for this malpractice claim.

li>On December 21, 2001, Dark entered a settlement, receipt and release with McKenzie and his insurer for the $25,000 policy limit, reserving her claim against Assurance. A judgment dismissing the former defendants with prejudice was signed on January 4, 2002.

On October 24, 2002, Marshall represented Dark in an unsuccessful mediation with Assurance for payment of benefits under her primary U/M coverage. Thereafter, Dark sought and obtained new counsel, and this attorney filed a third amended petition bringing Maryland into the original tort suit on October 6, 2003. Maryland defended the suit with a peremptory exception of prescription, urging that the two-year prescriptive period allowed under La. R.S. 9:5629 for suing the U/M carrier had elapsed.

In 2005, Dark settled with Assurance and Maryland for $250,000 in exchange for a receipt and release of claims, but reserved her rights against Marshall. The prescription exception was never disposed of by the trial court before Maryland’s dismissal from the suit.

This malpractice action was instituted against Marshall, and Dark now appeals Marshall’s dismissal by summary judgment.

Discussion

The applicable law regarding summary judgment and legal malpractice was explained by this court in Whittington v. Kelly, 40,386 (La.App.2d Cir.12/14/05), 917 So.2d 688:

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2). The motion should be granted 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. La. C.C.P. art. 966 B. Appellate review of the grant or denial of a summary judgments is de novo. To establish a claim for legal malpractice, a plaintiff must prove: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence. Failure to prove one of these elements is fatal to the claim. A plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim.

In this case, Marshall argues that he was not negligent because the U/M claim against Maryland never prescribed. Additionally, Marshall asserts that by Dark’s later settlement, she relinquished her chance of recovering U/M benefits from Maryland and should be estopped from claiming a loss by his alleged negligence. We agree with Marshall’s assertion that no actionable negligence occurred because the claim against Maryland did not prescribe. We will therefore pretermit review of the asserted estoppel and the effect of Dark’s settlement with Maryland.

The prescription applicable to Dark’s U/M claim against Maryland is the two-year prescriptive period set forth in La. R.S. 9:5629 which provides:

Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.

By effect of law and the terms of the insuring agreement, both the U/M carrier and the tortfeasor are obligated for the same thing and are therefore solidary obli-gors. Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982); Woodfield v. Bowman, 1998 WL 382139 (E.D.La.7/9/98). 14An interruption of prescription against one solidary obligor is effective against all other solidary obligors. La. C.C. arts. 1799, 3503; Greenfield v. Lykes Bros. Steamship Co., 02-1377 (La.App. 1st Cir.5/9/03), 848 So.2d 30; Potts v. Estate of Guidry, 04-1386 (La.App. 3d Cir.3/9/05), 897 So.2d 913, writ denied, 05-874 (La.5/13/05), 902 So.2d 1032.

From this authority, the dispute over the prescription affecting the claim against Maryland rests on the rule of Civil Code Article 3463 and the effect of the dismissal of the suit against the original tortfeasor, McKenzie, who was a solidary obligor with Maryland. Civil Code Article 3463 provides as follows:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.

From the general rule of the first sentence of Article 3463, the initial filing of the suit against McKenzie within one year of the accident interrupted both the one-year prescription running on the tort claim against McKenzie and the special two-year prescription applicable to Maryland, as a solidary obligor. Marshall acknowledges that when the compromise settlement was reached between Dark and the tortfeasor and the suit was dismissed in January 2002, this interruption ended. Nevertheless, according to Marshall, the suit filed in October 2003 against Maryland interrupted prescription a second time before the two-year prescriptive period tolled.

|sTo the contrary, Dark argues that the interruption of prescription caused by the initial suit against McKenzie is considered as never having occurred because of the settlement and dismissal of that action. According to Dark, the judgment dismissing McKenzie was a “voluntary” dismissal. Thus, the second sentence of Article 3463 indicates that interruption of prescription is deemed to never have occurred. Since Maryland was brought into the action well over two years after,the accident, recovery from the excess insurer according to Dark was affected by Marshall’s professional negligence.

Both parties discuss the Louisiana Supreme Court’s significant ruling in Hebert v. Cournoyer Oldsmobile-Cadillac GMC, Inc., 419 So.2d 878 (La.1982), and the amendment to the language of Article 3463 brought about by that ruling. The case concerned a dismissal of a suit without prejudice and considered, as between the parties to the first suit, the effect of such dismissal on the interruption of prescription raised in a second suit against the same defendant. The court interpreted the phrase, “voluntarily dismisses,” as used in prior Article 3519 of the Civil Code. That former article is the source provision for the second sentence of Article 3463. The court noted that the language of voluntary dismissal was only added to former Article 3519 in 1960, when the Code of Civil Procedure was enacted. In the Code of Civil Procedure, the first sentence of Article 1671 addresses from a procedural standpoint a unilateral and voluntary dismissal Rof a suit. Using La. C.C.P. art. 1671 as a guide to discern the meaning of the dismissal language of former Article 3519, the court ruled that “only before the defendants’ general appearance does the plaintiff have the unqualified right to voluntarily dismiss.” Id. at 881. This distinction made in Hebert was overruled by a 1999 amendment to Article 3463. Now under the amended article, any dismissal without prejudice, “either before the defendant has made an appearance of record or thereafter,” may be considered a voluntary dismissal for purposes of Article 3463 so as to negate the interruption of prescription that otherwise occurs during the pendency of the action.

In contrast to the setting in Hebert v. Coumoyer, the voluntariness of a plaintiffs action resulting in dismissal of the suit with prejudice (the present setting) is never a vital or relevant measure concerning prescription between the parties to the suit as clearly shown by Article 1673 of the Code of Civil Procedure. That article provides that dismissal with prejudice has the effect of a final judgment and bars another suit between the parties on the same cause of action. Thus, as recognized in revision comment (b) to Civil Code Article 3463, “if the suit is dismissed with prejudice, the interruption of prescription is immaterial because of res judicata.” That observation is correct as between the parties to the suit. Nevertheless, prescription and its interruption remain material under the general principle of Article 3463 regarding a second suit against a different solidary obligor, but likewise the voluntariness of the prior dismissal with prejudice has no meaningful application to such dismissal.

17Unlike Hebert v. Cournoyer, another Hebert case decided by the Louisiana Supreme Court addressed a prescription claim in a dismissal setting identical to the case at hand. Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986) (hereinafter “Doctors Hospital ”). The dismissal of the suit against the first tortfeasor in Doctors Hospital was the result of a 1982 settlement agreement, yet the judgment of dismissal with prejudice was entered belatedly almost two years later, in 1984. The second tortfeasor was sued 19 months after the settlement and more than eight years after the accident. After the judgment of dismissal of the first tortfeasor with prejudice, the second tortfeasor raised prescription, and in defense, the plaintiff claimed interruption of prescription under Article 3463. The issue, as addressed by the Louisiana Supreme Court, rested entirely on the general principle of the first sentence of Article 3463 and the choice for when the time for the running of prescription recommences after settlement with the first tortfeasor. The court held that an interruption arising from the pendency of a suit against the first tortfeasor ends only at the time of the judgment of dismissal, not on the date of actual settlement. The significant implication of the Doctors Hospital’s ruling is that it would not have been necessary if a dismissal with prejudice triggered the application of the second sentence of Article 3463. Instead, the dismissal of the first tortfeasor with prejudice because of the settlement was clearly not a voluntary dismissal which negated the interruption of prescription caused by the initial action.

In summary, the dismissal of a suit with prejudice after both parties to the action have settled the dispute cannot be characterized as a voluntary Land unqualified dismissal by the plaintiff alone. In Doctors Hospital, the court observed that proof of a valid settlement to the trial court will support either “litigant’s effort to dismiss a then pending lawsuit with prejudice.” Hebert v. Doctors Memorial Hospital, supra at p. 720. The court recognized both the plaintiffs and the defendant’s right to seek dismissal after settlement. Thus, it cannot be said that such dismissal after settlement results unilaterally from plaintiffs voluntary election, which then negates the prior interruption of prescription pursuant to the second sentence of Article 3463. Reaching the same conclusion, the First Circuit in Pierce v. Foster Wheeler Constructors, Inc., 04-0333 (La.App. 1st Cir.2/16/05), 906 So.2d 605, 610, writ denied, 05-0567 (La.4/29/05), 901 So.2d 1071, also rejected the characterization that a plaintiff alone voluntarily dismisses the action by virtue of settlement since both parties “resolved it by transaction or compromise.”

Conclusion

For the above reasons, we find that Dark maintained a viable claim for recovery against her excess U/M carrier, Maryland, and therefore suffered no loss by Marshall’s representation as her attorney. The judgment of the trial court is affirmed. Costs of the appeal are assessed to appellant.

AFFIRMED.

      . Former La. C.C. art. 3519 provided: "If the plaintiff in this case, after having made his demand, abandons, voluntarily dismisses, or fails to prosecute it at the trial, the interruption is considered as never having happened."


author: WILLIAMS, J.

text:
    Robert RIDDLE and Lisa Riddle, Plaintiff-Appellee, v. FORTIS INSURANCE COMPANY, Defendant-Appellant.
    No. 41,695-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Kevin W. Trahan, for Appellant.
    Gregory Scott Moore, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   WILLIAMS, J.

| fortis Insurance Company (“Fortis”), seeks reversal of the trial court’s ruling granting summary judgment in favor of Robert and Lisa Riddle. The trial court found that the health insurance policy issued by Fortis did not exclude coverage for a condition suffered by Lisa Riddle following the delivery of her son. For the reasons that follow, the judgment of the trial court is hereby affirmed.

FACTS

On December 29, 2003, Lisa Riddle gave birth to her son, Dylan Riddle, at North Monroe Hospital in Monroe, Louisiana. After Dylan’s delivery, Mrs. Riddle suffered significant postpartum hemorrhaging which led to the development of disseminated intravascular coagulopathy (hereinafter referred to as “DIC”). As a result of this condition, Mrs. Riddle underwent an emergency hysterectomy and required treatment for several days in the intensive care unit followed by several days on the postpartum unit.

At the time of the delivery and ensuing complications, Robert and Lisa Riddle were covered by a major medical health insurance policy issued by Fortis for a one-year term beginning on April 13, 2003. Since the Riddles had not purchased the optional maternity coverage, the policy did not provide coverage for expenses generally associated with childbirth. Accordingly, the Riddles paid the expenses associated with the pregnancy and the delivery of the child. However, believing that the policy provided coverage for the charges associated with treatment of the complications which followed the childbirth, the Riddles filed a claim with Fortis seeking | ^coverage for the medical expenses arising from Mrs. Riddle’s development of and treatment for DIC.

Fortis denied the claim. The Riddles subsequently filed the instant lawsuit claiming coverage under the policy and seeking damages for double the amount of the denied claim. Fortis answered the petition by denying that coverage under its policy extended to the treatment rendered to Mrs. Riddle because it was rendered to treat complications arising as a result of her pregnancy. The Riddles and Fortis filed cross-motions for summary judgment on the issue of coverage.

The evidence submitted to the trial court on the cross-motions for summary judgment consisted of the deposition testimony of Dr. Tonya Sheppard, the affidavit and deposition testimony of Dr. Terry Tugwell, the affidavit of Dr. R. Joseph Fernandez, the affidavit of Dr. Charlotte A. Heiden-reich and a copy of the Fortis’ policy under which coverage was to be determined.

The “Covered Medical Services” portion of the policy provides in pertinent part:

Covered Medical Services include only Covered Charges for the services and supplies listed in this policy.

Hospital Services include:

• daily room and board up to the semiprivate room rate;
|3« confinement in a critical care unit; and
• all other Inpatient or Outpatient treatment provided by a Hospital or Ambulatory Surgical Center, including charges for dental treatment rendered in a Hospital when the mental or physical condition of an Insured requires that such dental care be provided in a Hospital setting.
* * *
Health Care Practitioner Services including surgery and anesthesia.

However, that section of the policy also includes the following exclusionary language:

Limited coverage for specific conditions of pregnancy includes only spontaneous miscarriage, ectopic pregnancy, Medically Necessary caesarean section, gestational diabetes mellitus, and medical conditions whose diagnoses are distinct from pregnancy but are adversely affected by pregnancy.

Dr. Tonya Sheppard, an obstetrician/gynecologist, was the physician who treated Mrs. Riddle during the pregnancy, delivery and ensuing complications. In her deposition, Dr. Sheppard testified that Mrs. Riddle had a fairly complication-free pregnancy and delivery. Dr. Sheppard testified that following Dylan’s birth, Mrs. Riddle was administered medication to help the uterus “clamp down” or contract to prevent heavy bleeding, which is a typical treatment after the delivery of a child. Nevertheless, Mrs. Riddle experienced excessive bleeding in the hours following the delivery.

Mrs. Riddle was unresponsive to the administration of additional medications and other minimally invasive procedures intended to control |4the bleeding. Consequently, Dr. Sheppard ordered blood tests to assess Mrs. Riddle’s blood clotting factors. After reviewing the results of the blood tests, Dr. Sheppard concluded that Mrs. Riddle was suffering from DIC, a complication which prevents the blood from properly clotting and which can be associated with any acute blood loss. In Mrs. Riddle’s case, the acute source of the bleeding was the uterus caused by the vaginal delivery of the child just hours earlier. Dr. Sheppard testified that she performed the emergency hysterectomy because treatment of DIC generally requires the elimination of the source of the bleeding.

With regard to the issue before this court, Dr. Sheppard testified that in the absence of the pregnancy and delivery, Mrs. Riddle would probably not have developed DIC. However, she also stated that Mrs. Riddle’s DIC was a medical condition whose diagnosis was distinct from her pregnancy, but which was adversely affected thereby.

Dr. Tugwell, a board certified specialist in the area of obstetrics and gynecology, assisted in treating Mrs. Riddle during the emergency hysterectomy. His affidavit and deposition testimony reaffirmed Dr. Sheppard’s assertion that Mrs. Riddle’s development of DIC was triggered by her pregnancy and delivery and would, most likely, not have occurred absent the pregnancy and delivery. Dr. Tugwell also corroborated Dr. Sheppard’s statement that DIC was a medical condition whose diagnosis was distinct from her pregnancy but was adversely affected by her pregnancy.

In support of its motion for summary judgment, Fortis submitted the |ñaffidavit of Dr. Charlotte A. Heidenreich, a board certified internist employed by Fortis as Medical Director, in which she attested to having examined Mrs. Riddle’s medical records. Dr. Heidenreich expressed the opinion that Mrs. Riddle’s development of DIC was “directly caused by her pregnancy” and that it was not a condition distinct from her pregnancy.

Fortis also submitted the affidavit of Dr. R. Joseph Fernandez, a board certified obstetrician/gynecologist, who described DIC as “a disorder or malfunction of the clotting process within the body.” In his affidavit, Dr. Fernandez asserted that DIC is not a distinct clinical entity and is always associated with another condition. He further attested that after examining Mrs. Riddle’s medical records, it was his conclusion that she suffered from DIC and that it resulted from her pregnancy. In conclusion, Dr. Fernandez opined that the treatment for Mrs. Riddle’s DIC would not be covered under the Fortis policy because it was not a “distinct condition separate from pregnancy but rather a condition caused by her pregnancy.”

Following a hearing, the trial court signed a judgment finding that the policy exclusion relied on by Fortis did not operate to exclude coverage of the Riddles’ claim. However, the judgment specifically stated that the ruling pertained only to the applicability of the exclusion argued and not whether the policy actually extended coverage. Subject to this condition, the trial court granted summary judgment in favor of the Riddles and denied Fortis’ motion for summary judgment. Upon Fortis’ request for clarification, the trial court issued an amending judgment, granting summary judgment in favor of the Riddles, finding coverage for Mrs. Riddle’s DIC ^existed under the terms and conditions of the policy. The instant appeal followed.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.04/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions and shall be rendered 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. LSA-C.C.P. art. 966.

The mover has the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover must only 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. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. LSA-C.C.P. art. 966(C)(2).

As a contract between the parties, an insurance policy should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 1793 — 0911 (La.1/14/94), 630 So.2d 759. When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms. On the other hand, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy. Broadmoor Anderson v. National Union Fire Ins. Co. of Louisiana, 40,096 (La.App.2d Cir.9/28/05), 912 So.2d 400, writ denied, 2005-2462 (La.3/24/06), 925 So.2d 1239.

If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and the agreement must be enforced as written. See LSA-C.C. art.2046; Magnon v. Collins, 1998-2822 (La.7/7/99), 739 So.2d 191. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Ins. Guar. Ass’n, supra. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. LSA-C.C. art. 2048. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. Louisiana Ins. Guar. Ass’n, supra.

In the instant case, Fortis contends a genuine issue of material fact exists with regard to whether its policy exclusion precluded coverage for the treatment of DIC. According to Fortis, the evidence before the trial court clearly established that Mrs. Riddle’s development of DIC was caused by | Rher pregnancy.

It is undisputed by any of the evidence that Mrs. Riddle’s development of DIC was a direct result of her pregnancy with and delivery of her infant son, Dylan Riddle. Neither the defendant’s experts, nor Mrs. Riddle’s own treating physicians dispute that fact. The question posed by the policy language, however, is whether Mrs. Riddle’s DIC was “a condition whose [diagnosis is] distinct from pregnancy but [is] adversely affected by pregnancy.” Fortis suggests that because the condition was caused by the pregnancy and would not have occurred absent the pregnancy, that it cannot be distinct therefrom.

We disagree. Fortis’ interpretation ignores the provision’s introductory phrase which states that “Limited coverage for specific conditions of pregnancy includes.... ” Accordingly, it is axiomatic that any of the conditions to which coverage are being extended thereunder are going to have arisen as a result of a pregnancy.

Both of Mrs. Riddle’s treating physicians unequivocally testified, although in a conclusory fashion, that DIC is a medical condition whose diagnosis is distinct from pregnancy. Fortis’ experts, on the other hand, testified that Mrs. Riddle’s DIC was not distinct from her pregnancy because it was caused by her pregnancy. The issue, therefore, is whether these opinions are in direct contradiction thereby creating a genuine issue of material fact, or whether they can both be accurate and form the basis for a proper interpretation of the policy exclusion.

The term “diagnosis” was defined by Dr. Tugwell in his affidavit as | a“a concise technical description of a taxonomic entity giving its distinguishing characteristics.” The Attorney’s DictionaRY of Medicine and WORD Finder, J.E. Schmidt, M.D. (2001) defines “diagnosis” as “the determination of what Mnd of disease a patient is suffering from and the verdict decided upon.” Therefore, in order for the diagnosis of a medical condition to be distinct from pregnancy, the determination of the condition being suffered by the patient must only be susceptible of differentiation from pregnancy. This susceptibility of differentiation, however, is not a requirement that it be unrelated to the pregnancy. This is evident from the fact that all of the conditions for which coverage is extended under the subject policy provision are anticipated to arise during pregnancy and reflect an intent to provide coverage for serious complications which may arise during a pregnancy. While there is no dispute that Mrs. Riddle’s DIC was brought on by the pregnancy and delivery, there is also no dispute that DIC is a complication which can occur outside of pregnancy. This makes its diagnosis distinct from pregnancy though, in the present case, adversely affected by pregnancy.

We find inapposite the parties’ discussion of whether postpartum DIC is distinguished from DIC as it arises in other circumstances in the generally accepted coding manual known as ICD-9. We do not find the facts regarding the coding to be conclusive on the question of whether the diagnosis of postpartum DIC is distinct from pregnancy, nor if they were, why they would be controlling in the interpretation of this insurance policy. The expert opinions given in the present case are not inconsistent with a |infinding that Mrs. Riddle was diagnosed with a postpartum complication distinct from her pregnancy. The acknowledgment by the coding manual that DIC can arise as a postpartum complication does nothing to detract from our conclusion in that regard.

CONCLUSION

Accordingly, we hereby affirm the trial court’s summary judgment in favor of Robert and Lisa Riddles, finding coverage under Fortis’ health insurance policy for treatment of Mrs. Riddle’s DIC, and the trial court’s denial of Fortis’ motion for summary judgment. The costs of this appeal are to be borne by appellant.

AFFIRMED.

      . While Fortis also submitted a copy of what it alleges to be portions of a widely accepted medical text authored by Dr. Steven L. Clark, Dr. David B. Covan, Mr. Gary B.V. Hawkins, and Dr. Jeffrey P. Phelan, entitled "Critical Care Obstetrics,” it does not constitute competent summary judgment evidence, i.e., affidavits, pleadings, depositions, answers to interrogatories, and admissions on file. LSA-C.C.P. art. 966(B).


text:
    STATE of Louisiana, Appellee, v. Lorenzo WHEELER, Appellant.
    No. 41,673-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Paula Corley Marx, Mary Constance Hanes, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, R. Nicolas Anderson, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

|! Following a jury trial, the defendant, Lorenzo Wheeler, was convicted of possession of marijuana with intent to distribute. The trial court sentenced him to serve seven years at hard labor. The defendant appeals, urging excessive sentence and ineffective assistance of counsel. We affirm.

FACTS

On the night of February 28, 2002, Officer Scott Brooks of the West Monroe Police Department (WMPD) observed the defendant’s vehicle traveling east on 1-20 without a license plate light. During the ensuing traffic stop, the defendant produced a Louisiana identification card but no driver’s license. The officer determined that the defendant’s license was suspended. Ultimately Officer Brooks wrote him two tickets — no license plate light and driving with a suspended driver’s license.

Another WMPD officer, Jason Kukal, arrived on the scene during the traffic stop. Both officers noted the defendant’s extremely nervous demeanor. They requested his consent to search his vehicle; he agreed. The officers discovered four one-pound bags of marijuana concealed in a large garbage bag under a pile of laundry. Laboratory analysis determined that the substance in the bags was marijuana.

The defendant was charged with possession of marijuana with intent to distribute. A unanimous jury convicted him as charged. The trial court sentenced him to seven years at hard labor. No motion to reconsider sentence was filed.

The defendant appealed.

J^EXCESSIVE SENTENCE

In his first assignment of error, the defendant argues that the sentence of seven years at hard labor imposed by the trial court was excessive.

Law

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the individual, the important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993);3 State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

Discussion

At the sentencing hearing, the defendant gave a lengthy explanation of his role in transporting the drugs. He blamed his emotional distress arising from problems with his girlfriend.

The trial court considered many factors in imposing sentence. Among them were the defendant’s prior criminal record, which included a 1997 conviction for simple possession of marijuana and a 1999 conviction for possession of marijuana, second offense, for which he was sentenced to three years at hard labor. He also had a history of battery arrests involving altercations with the mother of one of his two children; he pled guilty to one battery charge. The court noted that the defendant was associating with people involved with marijuana even though he was on parole at the time of the offense. (His parole period expired on the date of his arrest for the 14current offense.) He was dishonorably discharged from the U.S. Navy. At the time of his arrest for the instant offense, he was unemployed. In mitigation, the court noted that the defendant was not well educated.

The trial court found that there was an undue risk of the defendant committing another crime if granted probation. It also held that the defendant was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of the crime. The court disbelieved the defendant’s claim that he did not know the quantity of the drugs he was transporting.

The trial court fully articulated the reasons for imposing sentence. It evaluated and considered both aggravating and mitigating factors. Given the defendant’s history of drug offenses, we cannot say that the defendant’s sentence shocks the sense of justice. The defendant’s sentence is not constitutionally excessive.

This assignment of error lacks merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

The defendant argues that defense counsel was ineffective because he failed to file a motion to reconsider sentence. The defendant contends that if such a motion had been filed, the trial court would have realized that its sentence was too harsh.

Law

As a general rule, claims of ineffective assistance of counsel are more properly raised by application for post conviction relief in the trial court where a full evidentiary hearing may be conducted if warranted. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. When the record is sufficient, as it is here, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,-394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

The mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A basis for ineffective assistance of counsel may only be found if a defendant can “show a reasonable probability that but for counsel’s error, his sentence would have been different.” State v. Allen, 03-1205 (La.App. 5th Cir.2/23/04), 868 So.2d 877. See also State v. White, 2003-1535 (La.App. 3d Cir.4/28/04), 872 So.2d 588; State v. Bertrand, 2004-1496 (La.App. 4th Cir.12/15/04), 891 So.2d 752; State v. Felder, 2000-2887 (La.App. 1st Cir.9/28/01), 809 So.2d 360, writ denied, 2001-3027 (La.10/25/02), 827 So.2d 1173; State v. Louis, 32,347 (La.App.2d Cir.10/27/99), 744 So.2d 694.

Discussion

Considering the discussion regarding the defendant’s sentence contained herein, it is clear that the defendant has failed to prove that, but for trial counsel’s failure to file a motion to reconsider sentence, the sentence would have been different. State v. Allen, supra. The record shows that the sentencing factors set forth in La. C. Cr. P. art. 894.1 were | (¡extensively considered, and the defendant’s sentence was tailored to both the offense and the offender.

This assignment is meritless.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.