text:
    Lionel SMITH v. AETNA LIFE & CASUALTY CO., et al.
    No. 82 CA 0319.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied April 15, 1983.

      Frank A. Silvestri, New Orleans, for plaintiff and appellant.
    Alan A. Zaunbrecher, New Orleans, for defendant, Lewis Crane Rentals, appellee.
    George F. Riess, New Orleans, for defendant, Louisiana Power & Light Co., ap-pellee.
    Joseph A. Reilly, Jr., Houma, for defendant, Aetna Cas. and Intracoastal Truck Lines, appellees.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is a personal injury suit. Plaintiff, Lionel Smith, appeals the judgment of the trial court in favor of defendants, Lewis Crane Rentals, Inc. and Louisiana Power & Light Company.

Lionel Smith filed suit in the Civil District Court for the Parish of Orleans on December 18, 1978. The case was transferred to the Thirty-Second Judicial District Court for the Parish of Terrebonne. Original defendants were Lewis Crane Rentals, Inc., Louisiana Power & Light Company, Aetna Life & Casualty Co., Intracoastal Truck Lines, Inc., and Southern Pacific Transportation Company. Defendants Aet-na Life & Casualty Co., Intracoastal Truck Lines, Inc. and Southern Pacific Transportation Company were dismissed on motions for summary judgment, and these judgments are now final and not on appeal.

FACTS •

Lionel Smith was employed by Intracoas-tal Truck Lines as a pipe handler at the Intracoastal pipeyard in Amelia, Louisiana. Lewis Crane Rentals, Inc. was the owner of a crane rented by Intracoastal which was in use in the pipeyard on the date of the accident. Southern Pacific Transport Company allegedly owned the railroad cars in the yard the day of the accident. Louisiana Power & Light Company (LP&L) was installing poles in the yard.

Plaintiff Smith was unloading pipe from railway cars on the date of the accident. At all times, he was under the direct supervision of the Intraeoastal foreman, Russell Fontenot. Fontenot also had direct supervision over the crane rented from Lewis Crane Rentals, Inc. and the crane operator, Ronnie Lestage, an employee of Lewis Crane Rentals, Inc.

On the day of the accident, it became necessary to move a particular railway car to facilitate the installation of a pole by the LP&L crew. Fontenot, foreman of Intra-coastal, requested a switch engine located in the yard to move the railway car, but after some delay, he decided not to wait for the switch engine. Fontenot instructed his crew to use a sling to hook the railway car to the bumper of the crane and then directed Lestage to begin pulling the car. When the car had been pulled to the desired location, Fontenot signalled Smith to “chock” the wheels of the car. This is a method of stopping the movement of the railway car by throwing a board under its wheels. This rather unorthodox method of stopping a moving railway car had been used on prior occasions without accident. When Smith threw the board under the wheels of the car, the board snapped back, and one end hit him in the head and neck area, causing the injuries complained of.

The trial court found the following:

“Testimony at the time of the trial indicates that on the date of the accident the plaintiff was under the direct supervision of his employer, Intracoastal Truck Lines. He received no directions from either the Lewis Crane employee operating the crane or from any member of the Louisiana Power & Light crew. Testimony also indicates that the crane was operated in a slow and safe manner by the Lewis Crane employee and neither the testimony nor any other evidence submitted substantiates any allegation of negligence on the part of the Defendant, Lewis Crane Rentals, Inc. Therefore, the Defendant, Lewis Crane Rentals, Inc. cannot be construed to have breached any duty owed to the Plaintiff. No causation was shown whereby this Defendant is responsible for any damages which may have been sustained by the Plaintiff.
As regards the Defendant, Louisiana Power & Light Company, in the absence of any showing the Plaintiff received direction or supervision from the Louisiana Power & Light employees present at the time of the accident, it is impossible to conclude that the accident was the result of any negligence on their part.”

SPECIFICATIONS OF ERROR

1. The District Court erred when it failed to allow plaintiff to present argument and evidence of a tortious joint venture on the part of the defendants, Lewis Crane and LP&L with Intracoastal.

2. The District Court erred when it failed to find evidence of negligence on the part of the defendant Lewis Crane and that Lewis Crane had not breached a duty of safety which it owed the plaintiff.

3. The District Court erred when it failed to find LP&L owed the plaintiff a duty of safety, which it breached, simply because the plaintiff received no direct orders from any LP&L personnel.

4. The District Court erred when it failed to find Lewis Crane and/or LP&L were joint tortfeasors with Intracoastal in the cause of plaintiffs injuries.

SPECIFICATION OF ERROR NO. 1

Plaintiff argues that he should have been allowed to present argument and evidence that defendants were involved in a tortious joint venture with Intracoastal in the erection and pole “setting” activities which both surrounded and precipitated plaintiff’s accident and injuries. The plaintiff urges this court to find from the facts of this case that defendants Lewis Crane Rentals, Inc. and LP&L were engaged in a tortious joint venture with Intracoastal in the ultra-hazardous activity of erecting an 80 foot utility pole with an untrained, unsupervised mixture of work crews and no clear delineation of supervision over the crews.

Whatever the arrangement may have been regarding the installation of the poles, the movement of railway cars for whatever purpose within the pipeyard, was under the direct supervision of Intracoastal foreman, Russell Fontenot. Fontenot was indisputably in charge of the loading, unloading, movement of, and stopping the car and shared this authority with no one. Whether there was a joint venture arrangement for the installation of the poles is irrelevant and this assignment of error is without merit.

SPECIFICATION OF ERROR NO. 2

Plaintiff argues that the trial court erred in failing to find that Lewis Crane Rentals, Inc. was negligent and that Lewis Crane Rentals, Inc. breached a duty of safety owed to the plaintiff.

The trial judge found that Ronnie Les-tage, the Lewis Crane Rentals, Inc. employee, operated the crane in a slow and safe manner and that there was no evidence to substantiate any allegation of negligence on the part of Lewis Crane Rentals, Inc. He also found that there was no causation by which Lewis Crane was responsible for any damages sustained by the plaintiff.

In a suit for damages, Smith must prove by a preponderance of the evidence, that (1) the conduct of Ronnie Lestage (Lewis Crane employee) was a cause-in-fact of the accident; (2) there was a duty imposed upon Lestage under the circumstances of this case; (3) the risk of the particular injury which Smith suffered was within the scope of the protection of that duty; (4) Lestage breached that duty; and (5) the breach of duty required a response in damages. Jones v. Robbins, 289 So.2d 104 (La.1974); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (La.1972); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (La.1970); Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (La.1962); State Farm Mut. Ins. Co. v. South Cent. Bell, 343 So.2d 758 (La.App. 3d Cir.1977).

The threshold inquiry in the determination of liability is whether defendant’s action was a cause-in-fact of plaintiffs harm. Conduct, whether negligent or not, is a cause-in-fact if it is a substantial factor in bringing about that harm. A cause-in-fact is a necessary antecedent.

In the instant case, Smith was injured while attempting to stop the movement of the railway car. Had the railway car not been moving, Smith would not have been injured. The movement of the car by defendant’s employee, Ronnie Lestage, was a substantial factor in bringing about Smith’s harm. The movement was a necessary antecedent.

The inquiry into defendant’s liability does not end here, however. The ultimate question is whether the conduct complained of constituted a breach of a legal duty imposed to protect against the risk involved. Plaintiff strenuously argues that Lestage should have refused to allow the crane to be used to move a railway car because he knew or should have known that such was dangerous and that he violated a duty by allowing the crane to be used in that manner. The evidence is clear, however, that it was not Lestage’s duty to stop the movement of the railway car. Fontenot, as foreman for In-tracoastal, assumed the duty to stop the movement of the car and assigned this task to Smith. If Lestage had moved the car in a negligent manner, such as by using excessive speed or by jerking the car along, and if this negligent activity had been a cause-in-fact of Smith’s harm, then a different result would be reached. The risk that plaintiff would not perform his duty of throwing the board in the proper manner or that the board would snap back and injure plaintiff was not a risk encompassed by Lestage’s duty to carefully and safely move the car. We agree with the trial court that Lestage operated the crane safely and carefully and was not guilty of negligence and that he did not breach any duty owed to the plaintiff.

SPECIFICATION OF ERROR NO. 3

Plaintiff’s third argument is that the trial court erred in failing to find that LP&L owed plaintiff a duty of safety, which it breached, simply because plaintiff received no direct orders from LP&L personnel.

The trial judge found that the railway car in question had to be moved to facilitate the installation of a pole by LP&L. The record does not reveal any act or omission on the part of any employee of LP&L which related in any way to the movement of the railway car. The decision to move the car, the manner in which it was moved and stopped, was solely the responsibility of Fontenot, Intracoastal’s foreman.

Plaintiff complains of certain conduct of LP&L which may or may not be negligent, such as the failure to inquire concerning the training or experience of the Intracoastal crew in the installation of utility poles and the overlapping supervision over various activities of the different crews; however, none of the conduct complained of has any relation to the order to move the railway car or to plaintiff’s accident. There is simply no causal relationship between any activity or omission by LP&L and the accident.

SPECIFICATION OF ERROR NO. 4

Plaintiff argues that Lewis Crane Rentals, Inc. and LP&L are joint tort-feasors with Intracoastal. To be a joint tortfeasor, however, one must be found to be individually liable to the plaintiff. The trial court found, and we have affirmed its finding, that the defendants Lewis Crane Rentals, Inc. and LP&L are not liable to the plaintiff. They therefore cannot be jointly liable with Intracoastal. See Russo v. Aucoin, 7 So.2d 744 (La.App. 1st Cir.1942).

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    TOUCHDOWN REAL ESTATE, INC. v. Charles A. HOLTON, et al.
    No. 82 CA 0328.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.

      Paul L. Billingsly, Luling, for plaintiff-appellant.
    Alfred W. Spiller, Ponchatoula, for the Holtons.
    Michael R. Tregle, Hammond, for the Givens.
    Before EDWARDS, WATKINS and SHORTESS, JJ.

       Edwards, J., is of the opinion a rehearing should be granted to allow plaintiff to collect attorney fees — I think the defendant failed to comply with the “terms of this office.”

   SHORTESS, Judge.

On July 3, 1980, Mr. and Mrs. Charles A. Holton, defendants and purchasers, executed an agreement to purchase a lot and two-story dwelling on Blood River Road, Springfield, Louisiana, for $43,400.00. Mr. and Mrs. Newton E. Givens, defendants and sellers, accepted the offer. The parties signed the agreement at the offices of Touchdown Real Estate, appellant, in the presence of Mary D. Wall, a real estate agent and appellant’s employee who had been instrumental in bringing the parties together. At the subsequent closing of the sale on August 4, 1980, a dispute arose between the Givens and the Holtons concerning an insurance escrow account, so the sale was not passed. A second and then a third closing were scheduled, but the sale was never consummated.

Appellant filed suit on September 5,1980, to collect its real estate commission provided in the contract, which was 10% of the purchase price, or $4,340.00. The Holtons filed a reconventional demand to recover the $3,000.00 deposit they had made. The trial judge awarded judgment in favor of both defendants, and granted the reconven-tional demand of the Holtons, ordering the return of their deposit. From this judgment, appellant perfected this suspensive appeal.

The purchase agreement, signed by both defendants, is a valid contract, and as such it provides the law between the parties. La.C.C. art. 1945. It contains the following language:

“Either party hereto who fails to comply with the terms of this offer, if accepted, is obligated to pay all fees and costs incurred in enforcing collection and damages. Purchaser agrees to pay Realtor’s commission in the event purchaser fails to perform under this contract.”

Penalty provisions in purchase agreements which provide contingent liability for a defaulting purchaser for the real estate commission are legally enforceable. Wendel v. Dixon Real Estate Company, 232 So.2d 791 (La.App. 4th Cir.1970), writ denied, 256 La. 249, 236 So.2d 29 (1970). A sale need not be consummated for the agent to earn his commission. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977).

Appellant argues that the Holtons are liable for its real estate commission, as the defaulting purchasers. In the alternative, appellant maintains that both defendants should be held responsible for its commission, as the failure of the sale was not due to any fault on its part.

The trial judge, in his written findings, stated:

“Having reviewed my notes, the pleadings, the stipulations entered into at hearing, the exhibits and the memorandum (sic) of counsel, it is the opinion of this Court that there was never a meeting of minds between the prospective purchaser and the prospective seller over the amount in the escrow account. This ' was an essential part of the agreement. The agreement form, which was prepared and furnished by the plaintiff[’s] agent, was ambiguous because the agent failed to complete that portion of the form by deleting one of the options as to the escrow account under paragraph one (d).”

The sole issue on appeal is whether the trial court correctly concluded that there was no meeting of the minds as to the escrow account and the completion of the sale, thereby relieving defendants of their obligation to pay appellant’s commission. Initially, we note that we have found no basis for holding the sellers liable to appellant, as the failure of the sale was in no way attributable to them. Therefore, we will direct our discussion to appellant’s claim against the purchasers, the Holtons.

At trial, the parties stipulated to the following facts:

1. Mr. and Mrs. Newton E. Givens executed a listing agreement with appellant dated April 24, 1980, authorizing appellant to solicit prospective purchasers for the two-story dwelling and lot owned by them.
2. The Holtons and Givens executed a purchase agreement at the offices of appellant, wherein the Givens agreed to sell and the Holtons agreed to buy said property.
3. Appellant was the only realtor involved.
4. Appellant was the “procuring cause” of their agreement to purchase.
5. The Holtons, the Givens, and Mary D. Wall met on August 4, 1980, to close the sale; however, a dispute arose regarding the transfer of the insurance escrow.
6. The parties agreed to reschedule the closing, at the request of the Hol-tons, in order to allow them opportunity to find their own homeowners insurance.
7. The Givens made formal written tender of title pursuant to the purchase agreement.
8. The closing was reset for August 22, 1980, and the Givens agreed and informed the Holtons, that they were willing to forfeit the escrow, in an effort to consummate the sale.
9. The Holtons failed to appear at the August 22 closing, and at the request of their counsel, the closing was rescheduled for September 3, 1980.
10.The Holtons again failed to appear and have refused all demands to perform under the purchase agreement.

Counsel for both sides agreed to submit the matter on these stipulations and on memo-randa, and they offered as evidence the deposition of Mrs. Holton and the pleadings.

The Holtons appeared at the original closing fully expecting to purchase the subject property, but a dispute arose over the escrow account. The Holtons had assumed that the sales price included the insurance escrow, while the Givens were expecting to be reimbursed for any unearned premiums. The agreement contained the following recital:

“1 (d) The insurance policies, if paid through escrow, and the escrow account held by the mortgagee (will be conveyed without further charge) (will be prorated).”

Neither the parties nor appellant’s representative, Mary Wall, crossed out the inapplicable provision of 1(d), thereby provoking the disagreement at the first closing.

Mrs. Holton’s deposition was entered into evidence, and it was stipulated that Mr. Holton’s testimony would be the same. It is clear from this deposition that the Hol-tons had full intentions of continuing with the sale, even after the initial disagreement as to the escrow. Mrs. Holton testified by deposition as follows:

“Q. Well, ma’am, you testified earlier that you’d agreed to go ahead with the closing, providing you could go out and get a satisfactory quote on insurance?
A. On insurance, yes. That’s what everybody had — they had ...
Q. All right. You all came to that . agreement on the day of the closing?
A. Yes, sir.
Q. Okay. You didn’t go through closing but at that point you and your husband agreed that you were going to go ahead with the sale but you wanted to go get some insurance somewhere else, if you could, cheaper?
A. Uh huh. Yes, sir.
Q. All right. And then later in the week, your husband, who had been transferred in his job to Houston, decided, well, having given it further tl ought, he didn’t want to do it after all?
A. Yes.

With respect to the second closing date, Mrs. Holton stated:

Q. And why was it that you and Mr. Holton did not go to that closing?
A. He informed whoever called from Touchdown Real Estate that he was not going through with the deal.
Q. And why is that, ma’am?
A. Because every — well, because of the insurance and then the broker told me I had to buy the house.
Q. Now, you had previously — you testified earlier that you agreed to resolve the insurance matter?
A. That was before I was told I had to buy the house.

And finally:

Q. So that the only reason that you did not purchase this property is that someone called you and told you you had to do it?
A. I called the broker and then he told me I had to buy it.
Q. And you decided that you weren’t going to do it?
A. In the first place, I did not like his tone of voice and in the second place, we would have been willing to go through with the deal had he not told me I had to buy it. [Emphasis ours]

It is- clear from this testimony that the Holtons agreed to finalize the sale, despite any ambiguity concerning the escrow. They simply wanted a chance to find cheaper insurance, and the Givens agreed to allow them to do so. Not only did the Hol-tons find cheaper insurance, but for the second closing, the Givens agreed to forfeit the escrow account in order to consummate the sale, and so informed the Holtons. Had the Holtons been in good faith in fulfilling their agreement to purchase the property, certainly any problems arising from the ambiguity in the purchase agreement had been resolved by subsequent events, and there was nothing left to prevent the completion of the sale.

Around the middle of August, Mr. Holton was informed by his employer that he would be transferred to Houston. He had heard rumors of this possibility even before this time, and this development obviously influenced the Holtons’ refusal to go through with the sale.

After careful review of the entire record, we conclude that the Holtons, as the defaulting purchasers, are liable to appellant for its commission, under the express terms of the contract. The amount of the commission provided in the purchase agreement was $4,340.00. Appellant is holding the Holtons’ deposit of $3,000.00 and may keep same. It is entitled to an additional $1,340.00. Accordingly, judgment is rendered in favor of Touchdown Real Estate, Inc., and against Mr. and Mrs. Charles A. Holton for $1,340.00.

All costs of this appeal are assessed to the Holtons, together with interest from date of judicial demand until paid.

REVERSED AND RENDERED.

      . The matter was submitted on a stipulation, together with documentary evidence. The manifest error rule, therefore, is inapplicable. Langford v. Calcasieu Parish Police Jury, 396 So.2d 956 (La.App.3rd Cir.1981); Farris v. Ducote, 293 So.2d 589 (La.App.3rd Cir.1974); writ refused, 295 So.2d 814 (La.1974); Allstate Insurance Company v. Shemwell, 142 So.2d 866 (La.App.2nd Cir.1962); Terrell v. American Automobile Insurance Company, 125 So.2d 189 (La.App.3rd Cir.1960).


text:
    Billie M. POSEY v. BOARD OF TRUSTEES, STATE EMPLOYEES GROUP BENEFITS PROGRAM, et al.
    No. 82 CA 0345.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied Feb. 23, 1983.
    Allen M. Posey, Jr., Baton Rouge, for plaintiff-appellant, Billie M. Posey.
    Tommy D. Teague, La. Dept, of Justice, Baton Rouge, for defendant-appellee Board of Trustees, State Employees Group Benefit Program, and CNA.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Billie M. Posey (plaintiff) appeals from an adverse decision of the trial court which dismissed her claim against the Board of Trustees, State Employees Group Benefits Program (defendant) for benefits allegedly due under a group health benefits program to which she belonged.

The facts are not contested. The pretrial order contains the following stipulations, which were entered into by the parties and read into the record at trial:

“A. Effective May 1,1980, plaintiff, Billie M. Posey, was covered by a policy of health insurance issued to her by defendant, Board of Trustees State Employees Group Benefits Program. The policy provisions of that health insurance policy are more fully set out in the State of Louisiana Employees Uniform Group Benefits Program Booklet, which will be introduced as an Exhibit at trial.
B. On April 29, 1980, plaintiff, Billie M. Posey, because of a problem with dys-menorrhea, consulted her physician, Dr. William C. Haile, M.D., who on that date conducted an examination of plaintiff and determined that she had a second degree uterine prolapse and second degree unterine (sic) retroversion.
C. That plaintiff was not referred to Dr. Haile by any other physician for treatment or diagnosis of the above described conditions nor did Dr. Haile refer plaintiff to any other physician on or before May 1, 1980, for treatment of the above described condition. Plaintiff consulted no other physicians for or concerning this condition.
D. On June 16,1980, Dr. Willaim (sic) C. Haile performed an abdominal hysterectomy on plaintiff at Woman’s Hospital, Baton Rouge, Louisiana.
E. If plaintiff’s condition of uterine prolapse and uterine retroversion for which she underwent surgery on June 16, 1980, is determined not to be a ‘pre-existing condition’ as that term is defined in plaintiff’s policy of insurance with defendant, then plaintiff is entitled to be paid by defendants the sum of Two Thousand One Hundred Sixty-seven and 57/100 ($2,167.57), that sum being the amount of eligible benefits payable by defendants. This does not take into account plaintiff’s claim for penalties pursuant to LA R.S. 22:657.
F. That on September 19, 1980, defendant wrote to Dr. William C. Haile seeking the following information concerning plaintiff’s abdominal hysterectomy of June 16, 1980:
1. When was this condition first diagnosed?
2. What was the first date of treatment and when was surgery recommended?
3. Was she referred to you by another physician? If so, please advise the name and address of the physicians.
4. In response to the questions propounded by defendant, Dr. Haile answered as follows:
a. When was this condition first diagnosed: April 29, 1980.
b. What was the first date of treatment and when was surgery recommended: FIRST DATE OF TREATMENT-DATE OF SURGERY 6/16/80, SURGERY RECOMMENDED: 4/29/80.
c. Was she referred to you by another physician: NO
G. The applicable pre-existing condition clause of the health insurance policy furnished by defendant and providing coverage for plaintiff is found on page B-5 of the State of Louisiana Employees Uniform Group Benefits Program Booklet, which clause provides as follows:
A physical injury or sickness will be considered a pre-existing condition if treatment was received or if drugs were prescribed or taken, during the 12-consecutive month period immediately preceding the effective date of coverage. No benefits will be payable for a pre-existing condition until the covered person has been a participant in the plan for 24 consecutive months.”

The issue is a legal one: Does the definition of the word “treatment,” as used in the pre-existing condition limitation of defendant’s benefit plan, include the “diagnosis” of an illness, when neither term is defined in defendant’s benefit plan? If “treatment” did not include “diagnosis” under the facts of this case, then an additional issue is whether defendant’s actions in denying plaintiffs claim were unjust and unreasonable under the provisions of La.R.S. 22:657, making it liable for statutory penalties and attorneys fees.

Karen Ann Link, defendant’s claims supervisor, testified that she made the decision to deny plaintiffs claim for the sole reason that Dr. William C. Haile had diagnosed the problem two days prior to the effective date of the benefit plan. Ms. Link’s definition of “treatment” included “diagnosis,” but she admitted that neither “treatment” nor “diagnosis” was defined in the benefit plan. Succinctly stated, defendant rejected plaintiff’s claim for health and insurance benefits solely upon its interpretation that the “treatment” of her condition included the “diagnosis” of that condition and thus concluded that the surgery she had on June 16, 1980, was for a pre-existing condition. This interpretation was made notwithstanding Dr. Haile’s opinion that “treatment” had a separate and distinct meaning from “diagnosis.”

Plaintiff calls our attention to several provisions in the benefit plan where the terms “diagnosis” and “treatment” are used conjunctively:

“HOSPITAL BENEFITS
“When accidental bodily injury or sickness requires the Covered Person to be confined within a hospital as a resident patient, such confinement commencing while this coverage is in force, the Program will pay the reasonable expense actually incurred for the following hospital services when consistent with the diagnosis and treatment of the condition for which hospitalization is required, but only when such services are furnished and charged for by said hospital and administered and used during such confinement.” (Emphasis added)

And,

“DIAGNOSTIC X-RAY AND LABORATORY BENEFITS
“When accidental bodily injury or sickness requires the Covered Person to incur expense for X-Ray or Laboratory Examination for diagnosis of a covered injury or sickness, or routine Pap Smear, and such person is not confined in a hospital as a resident patient at the time such expense is incurred, the Program will pay the reasonable expense actually incurred for X-Ray or Laboratory procedures made or recommended by a Physician while this coverage is in force as to such person, but not to exceed: (1) $75.00 for all such expenses incurred in connection with any one injury; or (2) $75.00 for all such expenses incurred in connection with all sicknesses during any one calendar year.” (Emphasis added)

Plaintiff argues that, inasmuch as the terms “treatment” and “diagnosis” are not specifically defined, the language of the benefit plan clearly contemplated that the terms would have separate and distinct meanings, and calls to our attention Article 1948 of the Louisiana Civil Code.

It is also well settled that any ambiguity in an insurance contract is to be construed against the insurer and in favor of the insured. Carney v. American Fire & Indem. Co., 371 So.2d 815 (La.1979). Plaintiff asserts that there was no ambiguity since the term “treatment” in its every day sense and as used in the benefit plan meant something other than “diagnosis,” and it did not include within its definition the “diagnosis” of an illness. Dr. Haile stated that in his opinion, “treatment” did not include “diagnosis.” If, however, this pre-existing condition provision of the benefit plan was susceptible to more than one interpretation, plaintiff says it was ambiguous. Dr. Haile also stated that “treatment” meant:

“... the correction of some condition, or the attempt to correct..

and that,

“... you can diagnose something and let’s say that the patient refused treatment or anything like that ... you can have a diagnosis and certainly have no treatment.”

Since “diagnosis” and “treatment” were used conjunctively elsewhere in the benefit plan, we find the most reasonable interpretation is that “treatment” did not include “diagnosis.” Also, we agree with plaintiff that at the very least the term “treatment” was ambiguous and required a construction which afforded coverage.

Defendant calls to our attention cases emanating from the Third Circuit for the proposition that treatment includes diagnosis, i.e., Foche v. Louisiana Health Services & Indent., 391 So.2d 17 (La.App. 3rd Cir.1980), writ refused, 396 So.2d 885 (La.1981); Lucito v. Louisiana Hospital Service, Inc., 392 So.2d 700 (La.App. 3rd Cir.1980); and Baque v. Pan-American Life Insurance Company, 313 So.2d 293 (La.App. 3rd Cir. 1975), writ refused, 318 So.2d 52 (La.1975). We have reviewed these cases, and all are inapposite on the facts. In these cases, the plaintiffs were attempting to get coverage under their health and accident policies for diagnostic tests. It was held that diagnostic tests may properly be regarded as treatment. In each case, it was found that the term “treatment” was ambiguous and did include diagnostic tests and studies. None of these cases found it expedient to define the term “treatment,” although in Baque, supra, the court stated:

“Although the Louisiana jurisprudence reveals no case defining ‘treatment’, we find applicable the following definition of that term by the courts of sister states: • ‘In common parlance and often in the law, treatment is the broad term covering all the steps taken to effect a cure of the injury or disease. It includes examination and diagnosis, as well as application of remedies, ...’” (Citations omitted) 313 So.2d at 297

Our review of the jurisprudence from other states, however, has uncovered a case directly on point, which is adverse to the language set forth above from Baque. In Mutual Life Insurance Company of New York v. Bishop, et al., 132 Ga.App. 816, 209 S.E.2d 223 (1974), remarkably similar to the case before us, the Georgia Court of Appeals was called upon to interpret a policy provision which excluded costs for medical care and treatment received within three months of the effective date of the policy. The plaintiff had made two visits to a physician and had undergone certain pre-opera-tive examinations prior to the effective date, which resulted in a diagnosis of a condition. Notwithstanding the limitation, the court held that the policy covered the costs of the operation which occurred after the effective date of the policy.

Our facts are clear. Plaintiff went to Dr. Haile on April 29, 1980. At that time, Dr. Haile, after conducting a complete physical examination, diagnosed her condition. He prescribed no drugs. He did not treat her. He made no diagnostic studies. Her benefit plan became effective on May 1, 1980. Her surgery was on June 16,1980. Defendant’s benefit plan did not exclude coverage for plaintiff’s medical and hospital expenses rendered after the effective date of the benefit plan.

Plaintiff also argues that defendant did not have a just and reasonable ground for failing to pay her expenses and, therefore, should be subjected to the statutory penalties and attorney fees as provided by La. R.S. 22:657.

The provisions of this statute are penal in nature and must be strictly construed. Killebrew v. Abbott Laboratories, 352 So.2d 332 (La.App. 4th Cir.1977), writ granted, 354 So.2d 205 (La.1978), affirmed, 359 So.2d 1275 (La.1978). These provisions may not be imposed unless the refusal to pay is clearly arbitrary and capricious. Gleason v. Bankers Life & Casualty Compa ny, 147 So.2d 86 (La.App. 2nd Cir.1962). The facts convince us that defendant was not dilatory in investigating this claim and did not place a strained or unreasonable interpretation upon the language of the benefit plan, especially when considering the Third Circuit cases previously mentioned which equate diagnostic tests to “treatment.” This case presented a matter of first impression. See Valladares v. Monarch Insurance Company, 282 So.2d 569 (La.App. 4th Cir.1973), writs refused, 284 So.2d 603, 604 (La.1973), where the court stated:

“Certainly in light of the fact that a bona fide dispute existed between the litigants and that this case presents a matter of first impression in our jurisprudence, defendant acted reasonably in refusing to pay this claim. While we disagree with the interpretation defendant placed on the policy we do not find defendant’s action violative of the above quoted statute. Songe v. Tennessee Life Insurance Company, La.App., 260 So.2d 149 (1972); Tingle v. Reserve Life Insurance Company, La.App., 260 So.2d 333 (1972).”

282 So.2d at 573

Under these circumstances, we find that defendant’s actions were reasonable and neither arbitrary nor capricious and did not result in a violation of La.R.S. 22:657.

Accordingly, we hold that the benefit plan in question afforded plaintiff coverage for her claim and that the decision of the trial court must be reversed. There is judgment herein in favor of plaintiff and against defendant for the amount of the stipulated claim, which was $2,167.57, with legal interest from date of judicial demand until paid.

Costs, amounting to $378.89 are taxed to defendant.

REVERSED AND RENDERED.

      . CNA was cited as a defendant and answered the petition jointly with this defendant but was not dismissed in the signed judgment. The evidence indicated that CNA merely administered the State Employees Group Benefits Program.

      . Art. 1948. Reference to other words in same contract. When there is a doubt as to the true sense of the words of a contract, they may be explained by referring to other words or phrases used in making the same contract.


author: WATKINS, Judge.

text:
    Constance A. OTTO v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 82 CA 0356.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Thomas L. Giruad, New Orleans, for plaintiff, appellant.
    Edward Lobman, Metairie, for defendant, appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action brought by Mrs. Constance A. Otto against her uninsured motorist insurer, State Farm Mutual Automobile Insurance Company, to recover for personal injuries sustained when the 1975 Toyota automobile she was driving was allegedly struck from the rear and pushed into the opposite lane of traffic where she struck a 1975 International tractor trailer that was traveling toward her. Mrs. Otto’s car collided with the left or driver’s side of the tractor trailer. It was stipulated that in the event of her recovery against State Farm, her personal injuries exceeded the uninsured motorist limits of $100,000/$300,-000. There is no contention that the truck driver, Lipton J. Rivet, was negligent in any way. The trial court concluded that Mrs. Otto had failed to carry the burden of proving a known or unknown driver had struck her from the rear, and rendered judgment for State Farm, dismissing Mrs. Otto’s suit with prejudice. We do not find the trial court’s determination manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Mrs. Otto’s testimony is that she was proceeding in a westerly direction on U.S. 190, a two-lane highway, in St. Tammany Parish when she was tapped from the rear by a motor van or motor car. There were several vehicles ahead of her Toyota, and the line of vehicles had suddenly slowed down, causing the Toyota to receive the tap. After several seconds, the vehicle to the rear tapped her Toyota again, and pushed it into the eastbound lane of traffic. Mrs. Otto testified at this point she lost consciousness.

The truck driver, Rivet, testified by deposition that Mrs. Otto veered into the eastbound lane, in which he was traveling, as if attempting to pass a van and recreational vehicle ahead of her. It appeared to be obvious that there was not time to complete the passing maneuver. Rivet cut the truck sharply to the right and onto the shoulder, but the car struck the truck on the driver’s side, the force of the collision spinning the car around and causing severe damage to the front section of the car. Paul Polos, a passenger in the truck, likewise testified that Mrs. Otto attempted to pass when there was not sufficient time, and struck the truck on the driver’s side of the truck. Both Polos and Rivet agree that Mrs. Otto had her head down on the steering wheel immediately before the collision took place.

After Mrs. Otto’s ear collided with the truck, she was found to be semi-conscious, and had to be extricated from the Toyota. She was taken by ambulance to Slidell General Hospital, where she was placed in intensive care. A tracheotomy was performed on her, and the placement of a tube in her throat as well as her semi-comatose condition caused her to be unable to speak for approximately seven weeks. When she was able to speak, she described the accident as she described it in her testimony.

If indeed an unknown driver struck Mrs. Otto’s Toyota, it is stipulated that she is entitled to recover from State Farm under her uninsured motorist policy. However, we agree with the trial court that she failed to prove she was struck from the rear.

First, there were only minor dents in the rear of Mrs. Otto’s car, as the photographs taken immediately after the accident and introduced in evidence at the trial clearly demonstrate. There were already a few minor dents in the car before the accident, as Mrs. Otto’s son and daughter-in-law, Frank Moore and Barbara Moore, admitted. The car was spun around when the collision with the truck occurred, and the additional dents, which were still rather minor compared to the damage to the front, could have been caused by the collision with the truck. If Mrs. Otto’s car had indeed been struck from the rear with sufficient force to push the ear into the opposite lane of traffic, it would appear that damage to the rear of the Toyota would have been more extensive than the degree of damage depicted in the photographs. Furthermore, Mrs. Otto’s assertion that she fainted is unexplained. She introduced no medical testimony showing that she has a propensity to faint, and it is doubtful that a slight tap from the rear, which is all Mrs. Otto testified she received, would be sufficient to cause her to lose consciousness. Mrs. Otto introduced no eyewitness testimony other than her own that would tend to show she was tapped from the rear, and the witnesses who testified that they were present at the collision with the truck denied having seen any prior tapping or other accident involving the Toyota.

Mrs. Otto seeks to have the case remanded to permit the introduction of allegedly newly-discovered evidence in the form of a statement by Rivet given immediately after the accident in which he stated that Mrs. Otto veered into his lane of traffic, and struck the truck on the shoulder. This verbal assertion merely corroborates Rivet’s testimony in deposition. It is true that an arrow drawn by Rivet in a diagram shows Mrs. Otto’s path of travel to have been almost at a forty-five degree angle off the highway toward the truck. However, lay diagrams of accidents are often not entirely precise, and the verbal account of the accident given in the statement does not conflict with Rivet’s deposition. Furthermore, even if the diagram accurately depicts the accident, still the introduction of the statement into the record would not cure the basic defect in Mrs. Otto’s presentation of her case; her failure to prove that she was struck from the rear. Only if Mrs. Otto were struck in the rear would State Farm, her uninsured motorist insurer be liable.

Mrs. Otto has failed to prove by a preponderance of the evidence that she was struck from the rear by a vehicle, known or unknown. We cannot say that the trial court was clearly wrong or guilty of manifest error in concluding that she had not been struck from the rear but was attempting to pass. It is apparent that the manifest error rule applies. Canter v. Koehring Company, supra; Arceneaux v. Domingue, supra.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: WATKINS, Judge. SHORTESS, Judge,

text:
    Bobbie J. HART, et al. v. ALLSTATE INSURANCE COMPANY, et al.
    No. 82 CA 0341.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Granted April 15, 1983.

      Joseph H. Simpson and Charles M. Reid, Amite, for plaintiff-appellant.
    E. Kelleher Simon, Covington, for defendant-appellant Allstate.
    Willie B. Route, in pro. per.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

The plaintiff individually and as natural tutrix of her minor daughter brought this action to recover from Allstate Insurance Company, her uninsured motorist insurer, damages for personal injuries which she and her minor daughter sustained in an automobile accident. The plaintiff also sought statutory penalties and attorney’s fees under LSA-R.S. 22:658 for Allstate’s alleged failure to make payment of the claim under both the medical payments and uninsured motorists provisions of the policy within 60 days from receipt of satisfactory proofs of loss. The case was tried by jury and a verdict was returned against the defendant and in favor of the plaintiff in the amount of $1,000. for plaintiff’s injuries and $2,500. for injuries to plaintiff’s minor daughter plus legal interest from date of judicial demand. Penalties of 12% and attorney’s fees were also assessed.

Both parties appeal this judgment. We affirm in part and reverse in part.

The facts are essentially these:

On May 29, 1980, the plaintiff and her minor daughter, Carolyn, were passengers in a car owned by the plaintiff but driven by the plaintiff’s sister, who is not a party to this suit. The Hart vehicle was proceeding in an easterly direction on East Cherry Street in Amite, Louisiana, when a vehicle driven by Willie Route, proceeding in a westerly direction on East Cherry Street, began to weave from one lane of traffic to the other, and collided with the Hart vehicle. As a result of the collision, Mrs. Hart sustained injuries to her back and lower left leg, and her daughter Carolyn received a sharp blow to her mouth which lacerated the inner mouth, knocked out one of her teeth and caused sensitivity to nine other teeth which were loosened by the blow. Route, the driver of the other vehicle, was uninsured and driving while intoxicated. There was no doubt that Route was negligent. Soon after the accident Route was administered a blood level alcohol test and showed a .25 level of alcohol. At the trial the three occupants of the Hart vehicle and the officer who investigated the accident all testified that Route appeared intoxicated at the scene of the accident. He smelled of alcohol, his eyes were glassy, and his behavior was irrational. The automobile insurance policy in effect between Allstate and the plaintiff at the time of the accident provided uninsured motorist coverage in the amount of $5,000. for each person, $10,000. for each accident, and medical payments coverage up to $1,000. for each person.

The plaintiff was examined by her physician, x-rayed and was prescribed pain-relieving medication. Because of recurring pain, the plaintiff made return visits to the doctor.

The plaintiffs daughter was required to have stitches in her mouth, as well as extensive dental work to repair the tooth she lost. The daughter also had an x-ray taken of her upper lip to ascertain that there were no foreign objects lodged there. Altogether, the plaintiff and her daughter incurred substantial medical expenses.

The most difficult issue presented on appeal is the correctness of the award of penalties and attorney’s fees.

The only demand effectively made upon Allstate for payment under the policy was plaintiff’s demand for medical expenses incurred in the total amount of $838.68. The medical bills were transmitted to Allstate on August 25 and 29 of 1980. On September 2, 1980 Allstate forwarded medical authorization forms to plaintiff’s attorney for the apparent purpose of obtaining the physician’s report of treatment to corroborate the charges for treatment. These authorization forms were signed by plaintiff and returned to Allstate on September 4, 1980. The record does not indicate what action, if any, Allstate took upon receipt of the medical authorization forms, but on October 3, 1980 plaintiff sent to Allstate copies of the medical reports of the treating physicians together with the statement of Hood Memorial Hospital for $20.00 incurred by Carolyn Hart. At this point Allstate had received bills for medical expenses totaling $838.68 together with the supporting medical reports.

LSA-R.S. 22:658 provides that insurers must pay claims such as these with which we are concerned within sixty days after receipt of satisfactory proofs of loss from the insured. The statute clearly covers claims for medical payments under an automobile insurance policy. Steadman v. Pearl Assurance Co., 134 So.2d 884 (La.1961), and Guillory v. New York Fire and Marine Insurance Co., 201 So.2d 366 (La.App. 3d Cir.1967).

The Allstate insurance policy under Part II provided coverage for medical payments to the limits of $1,000. for each person. Since there was no dispute as to the claim for medical payments and as the amount did not exceed the policy limits, Allstate was required to pay within 60 days or suffer the sanctions imposed by R.S. 22:658. We find that the 60 day period could not have begun before October 3, 1980, the date on which plaintiff sent Allstate the medical reports and final medical bill. It was on the date of receipt of these documents that the insured is considered to have submitted “satisfactory proof of loss” as required by the statute. Allstate’s payment to plaintiff of this claim for medical payments on November 18, 1980 fell within the 60 day period. The jury’s finding that Allstate was arbitrary and capricious in failing to pay the medical expenses within 60 days is, therefore, manifestly erroneous, and must be reversed.

Allstate contends that the trial court erred in its award of penalties and attorney’s fees under the uninsured motorist coverage of its policy, for two reasons. First, that the record contains no evidence in support of plaintiff’s cause of action for penalties and attorney’s fees and, therefore, it was error to charge the jury in this regard. And, secondly, even if there had been evidence introduced, the provisions of LSA-R.S. 22:658 are not applicable to uninsured motorist coverage of an automobile insurance policy.

The instruction to the jury with regard to penalties and attorney’s fees under uninsured motorist coverage was not correct in that it indicated that penalties may be awarded only if the principal award for damages was greater than the $10,000. policy limit. This was clearly incorrect because if R.S. 22:658 is applicable, penalties may be awarded regardless of whether the award is in the amount of the full policy limits. However, the quoted instruction obviously did not prejudice the jury as they returned an award for less than the full policy limits, and yet awarded penalties.

A charge to the jury, even if it is a correct statement of the law, must be based on evidence adduced in the case in order for the jury to consider its application to facts of the case and arrive at the conclusion permitted in the charge. Guerra v. Young Construction Company, 165 So.2d 882 (La.App. 4th Cir.1964). Jackson v. West Jefferson General Hospital, 245 So.2d 724 (La.App. 4th Cir.1971). The record in this case contains no evidence which would tend to prove plaintiff’s claim for penalties and attorney’s fees under the uninsured motorist coverage of the policy. In the absence of any such evidence it was error for the trial court to instruct the jury on the issue or claim for penalties and attorney’s fees under the uninsured motorist coverage, and we, therefore, reverse that portion of the judgment.

In view of our finding that there is no evidence in this case which would prove or tend to prove that Allstate refused to consider or respond to a reasonable offer to settle, and was, therefore, clearly not arbitrary or capricious, it is unnecessary for us to decide whether the provisions of LSA-R.S. 22:658 are applicable to uninsured motorist claims. See Launey v. Thomas, 379 So.2d 27 (La.App. 3d Cir.1979), writ refused 381 So.2d 1233 (La.1979).

The plaintiff has appealed the jury award, contending that it was unreasonably low. We do not agree. Plaintiff suffered a minor injury. The record shows that the injury was not serious enough to cause her to miss a day of work. The plaintiff’s minor daughter did suffer a sharp blow to the mouth. She lost one tooth and, as a result, had to have dental work performed. Because of the lacerations in her inner mouth she also required stitches. Before we can disturb ah award made by the trial court the record must clearly reveal that the trier of fact abused its discretion in making the award. Coco v. Winston Industries, 341 So.2d 332 (La.1977). We cannot say that an award of $1,000. to the plaintiff and $2,500. to the daughter is so low or so high as to constitute an abuse of discretion. For the foregoing reasons, we affirm the award of $3,500. to plaintiff for general damages plus interest from the date of judicial demand. The award of penalties and attorney’s fees is reversed and set aside.

All costs of this appeal are taxed one-half to the plaintiff and one-half to the defendant.

AFFIRMED IN PART, REVERSED IN PART.

SHORTESS, J., concurs with reasons.

SHORTESS, Judge,

concurring.

I respectfully concur in the result in this case, because I do not feel that the sixty-day period in R.S. 22:658 began to run only after Allstate received plaintiff’s medical reports. By demanding payment, submitting medical bills, and apprising Allstate of the facts surrounding the accident, plaintiff attempted to comply with her duty to provide the insurer with “satisfactory proof of loss.” See Riverland Oil Mill v. Underwriters for Lloyd’s, 368 So.2d 156 (La.App. 2nd Cir.1979), writ refused, 369 So.2d 1365 (La.1979). Plaintiff had a further duty under the policy to furnish Allstate with authorization to receive medical information, which she complied with on September 4, 1980, by returning the form sent by Allstate on September 2,1980, requesting the authorization. At this point, the sixty-day period began to run. However, in addition to proving the lapse of sixty days, the insured must show that the insurer was not arbitrary and capricious in its failure to pay. Allstate did not receive the medical reports verifying plaintiff’s claim until October 3, 1980. Therefore, I agree that Allstate was not arbitrary and capricious in withholding payment until November 18, 1980. The jury’s verdict on this issue was manifestly erroneous.

I respectfully concur.

      . At the conclusion of the trial, the trial court instructed the jury with regard to penalties as follows:
      “If you find that the insured’s claim under this coverage was clearly worth the full amount of the uninsured motorist coverage and that the refusal of the insurer to pay the amount of its uninsured motorist coverage to the plaintiff was unreasonable and without justifiable cause, then you may so indicate in your answer to the special interrogatory on this issue and the Court will assess the penalty of 12% on the amount of this claim.”


author: PER CURIAM.

text:
    Charles V. SHILLINGFORD v. Van E. HOLMES, et al. In re Van E. HOLMES, et al.
    No. C 0254.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 3, 1983.
    Rehearing Denied Feb. 24, 1983.

      Sharon K. Hunter, Asst. City Atty., New Orleans, for relator.
    D. Douglas Howard, Jr., New Orleans, for respondent.
    Before BARRY, CIACCIO and LOBRA-NO, JJ.
   PER CURIAM.

In this writ application relator, the City of New Orleans, complains the trial court erred in overruling its exceptions of prescription and no cause of action. We agree. While such orders are interlocutory judgments over which this Court does not ordinarily exercise its supervisory jurisdiction, writs should, nonetheless, be granted when it is clear that the plaintiff cannot prevail on the merits; such action is dictated by considerations of efficient judicial administration and fundamental fairness to litigants. Mangin v. Auter, 360 So.2d 577 (La.App.1978). The instant petition, on its face, provides no basis upon which this plaintiff can prevail, as the claim has clearly prescribed.

Plaintiff contends he was injured on January 29, 1978 by defendant Van Holmes, then a New Orleans policeman. Plaintiff filed a timely civil rights action under 42 U.S.C. § 1983 in federal court against Van Holmes individually and as a Police Officer of the City of New Orleans, and was awarded damages of $10,000 by judgment rendered on March 17, 1981. On June 7, 1982, plaintiff filed the instant suit in Civil District Court for the Parish of Orleans against Van Holmes and the City of New Orleans, seeking $50,000 for pain and suffering, humiliation, property damage and medical expenses. This suit alleges the City is liable for such damages under respondent superi- or. The petition further alleges the federal judgment remains unsatisfied, despite the City’s alleged policy of paying such judgments against its employees.

If plaintiff’s petition is viewed as a tort action, for which the City’s liability would be predicated on respondeat superior under LSA-C.C. arts. 2315 and 2320, his cause of action has prescribed under the one-year prescription of LSA-C.C. art. 3536 for offenses and quasi-offenses. The only way to interrupt prescription would have been under a theory of joint tortfeasorship, under LSA-C.C. art. 2097 regarding solida-ry obligors.

Even if the City were deemed a joint tortfeasor with Van Holmes and the § 1983 suit against Holmes were considered the same cause of action as the State Court tort suit, so as to interrupt prescription on the state suit, the prescriptive period would have begun to run again on March 17,1981, the date of the Federal court judgment, which was more than a year before the instant action was filed on June 7, 1982. Plaintiff’s tort action against the City has therefore prescribed.

The State court petition could conceivably be viewed as a § 1983 against the city. This construction would be strained, as the alleged basis for the City’s liability is respondeat superior and the damages itemized and prayed for are $50,000 for pain and suffering, humiliation, property damages and medical expenses, not the $10,000 awarded against Van Holmes in the Federal court suit. However, even if the State court petition were deemed a § 1983 suit against the City, and prescription had been interrupted by the Federal court case, prescription would still have run again before the state suit was filed. Additionally, we note that the State court petition fails to state a § 1983 cause of action against the City, because a municipality cannot be held liable under respondeat superior in a § 1983 suit. Monell v. Dept. of Social Services of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As there is no allegation of a governmental policy or authorization for conduct such as Van Holmes’, the instant petition does not state a cause of action against the City under § 1983.

A third possible view of the petition is that it attempts to state a cause of action against the City for payment of the unsatisfied federal court judgment against Van Holmes. We find, however, that the allegation that the City has a policy of paying judgments rendered against its employees does not assert any legal obligation of the City to do so, and the petition therefore fails to state a cause of action against the City.

Accordingly, it is ordered that the judgment overruling defendant’s exceptions of prescription and no cause of action be reversed, judgment is hereby rendered dismissing this suit at plaintiff’s costs. This writ is made peremptory.

MADE PEREMPTORY.

ON PETITION FOR REHEARING

Plaintiff’s attention is directed to Monell v. Dept. of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), cited in our original opinion, which establishes that a municipality cannot be held liable under respondeat superior in a § 1983 suit.

Plaintiff’s reliance on Foster v. Hampton, 381 So.2d 789 (La.1980) is misplaced, as Foster dealt with the solidary liability of an employer with his tortfeasor-employee in an LSA-C.C. Art. 2315 action, not a federal § 1983 suit.

Furthermore, even if prescription had been interrupted by the federal court suit, it is hornbook law that prescription recommences after judgment in the prior suit becomes final. As we stated in Derbofen v. T.L. James & Co., Inc., 274 So.2d 734, at 738 (La.App. 4th Cir.1973):

A suit which interrupts prescription ... prevents prescription from running until that suit’s final determination at which time the full prescriptive period begins to run anew. McCoy v. Arkansas Natural Gas Co., 184 La. 101, 165 So. 632; Woodcock v. Baldwin, 110 La. 270, 34 So. 440; Federal Ins. Co. v. T.L. James & Co., La.App., 69 So.2d 636; Spring v. Barr, 9 La.App. 732, 120 So. 156.

The petition for rehearing is denied.


author: COVINGTON, Judge.

text:
    Eugene DETTE v. COVINGTON MOTORS, INC., et al.
    No. 82 CA 0504.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.
    Rehearing Denied Feb. 17, 1983.
    Stephen M. Pizzo, New Orleans, for plaintiff, appellant.
    James J. Danna, Metairie, for defendants, appellees.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

Plaintiff, Eugene Dette, appeals from a summary judgment in favor of defendants, Covington Motors, Inc. (Motors) and Liberty Mutual Insurance Company (Liberty Mutual).

The accident which gives rise to this litigation allegedly occurred on July 14, 1980, when Robin Dette, who was driving a motorcycle in a southerly direction on Pontchartrain Drive in Slidell, Louisiana, became involved in an accident with Helen Winston, who had pulled out of a parking lot adjacent to Val’s Meat Market. It is alleged that Winston exited from the lot in an easterly direction, attempting to make a turn to the north, directly in front of and in the path of the motorcycle. As a result of the accident Robin contends that he sustained injuries, including a severe injury to his neck and back, various fractures, and contusions and abrasions of a substantial portion of his body, resulting in some scarring.

Eugene Dette, individually and as the administrator of the estate of his minor son, Robin filed a suit for damages, against defendants, Covington Motors, Inc., its liability insurer, Liberty Mutual Insurance Company, Helen Winston, her insurer, Allstate Insurance Company, and Employers Insurance Company of Wausau, Dette’s insurer. Plaintiff sought to recover damages in the amount of $850,000 against the defendants for injuries to his son. Motors and Liberty Mutual filed a third-party demand against Winston and her insurer, Allstate.

After the accident Dette made a demand upon Liberty based on its coverage of Motors’ vehicles involved in accidents. Liberty paid, under its policy, the sum of $6,880.60 to Dette. Liberty and Motors then moved for summary judgment, based on an endorsement in the garage insurance policy that he had been issued by Liberty, under which (they argue) the policy limits have been exhausted. The trial court granted the motion without giving written or oral reasons therefor. Dette has appealed the judgment. We reverse and remand.

Motors and its insurer argue that the automobile driven by Winston at the time of the accident was loaned to her by Motors; that under the terms of the garage policy issued to Motors, specifically, the endorsement entitled “Limited Coverage for Certain Insurance,” Winston was a garage customer so that the financial responsibility limits of $5,000 per person, $10,000 per accident for bodily injury are applicable, and that Liberty Mutual has already paid, on behalf of Motors, more than its financial responsibility limit.

A reading of the pleadings, the insurance policy and the affidavits convinces us that the trial judge committed manifest error in sustaining defendants’ motion. The case is not in a posture for a summary judgment. There remain unanswered questions of fact, material to the liability and coverage of Liberty Mutual and the liability of Motors.

The affidavits submitted by the defendants attempt to negate any connection between them and liability for the accident, except that Winston, as a garage customer, was involved in the accident while driving Motors’ car which had been loaned to her; however, the affidavits do not address all of the facts and issues involved in the lawsuit. Lang v. Dairyland Insurance Company, 368 So.2d 203 (La.App. 1st Cir.1979).

At the time of the hearing on the motion for summary judgment, Liberty Mutual had denied in its answer that it was liable for the negligence of Winston, asserted Robin’s contributory negligence, and denied coverage of Motors (other than a restricted coverage under its garage policy). Such defenses obviously involve questions of both fact and law, and are also sufficient to militate against a summary judgment. Lumbermens Mutual Casualty Company v. Robichaux, 259 So.2d 87 (La.App. 4th Cir.1972).

Therefore, a trial on the issues of liability and coverage will be necessary, as well as any other pertinent issue that may develop at the trial on the merits. From our observation, summary judgments are sparingly granted. The purpose of the summary judgment procedural device is to dispose expeditiously of cases involving issues of law and/or uncontested issues of fact. The mover for summary judgment has a heavy burden of proving that there is no genuine issue of material fact. Fly v. Hand, 376 So.2d 1016 (La.App. 1st Cir.1979). In determining the genuineness of the issues, the courts are not permitted to consider the merits of the fact at issue, the credibility of witnesses, or whether or not the party alleging the fact will be able to sustain the burden of proving it. The courts have repeatedly held that a motion for summary judgment is not a substitute for a trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973); Batson Lumber Co., Inc. v. Yates, 319 So.2d 853 (La.App. 1st Cir.1975). Under LSA-C.C.P. art. 966, it is only where there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law that the motion for summary judgment can be granted. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

Appellant argues that it is premature for any determination to be made as to which parties, if any, should be let out of this suit. He suggests that the court needs more facts before it can make such a determination. At the time of the hearing the parties involved had not been furnished a copy of the Allstate policy, which is not in the record. There is or may be a question as to primary or excess coverage of this policy, or as to the validity and effect of the so-called “escape clause.”

Louisiana jurisprudence has determined that in such circumstances “excess” and “escape clauses” are considered mutually repugnant and consequently ineffective. The result of this is to prorate the loss between the two insurers. State Farm Mutual Automobile Insurance Company v. Travelers Insurance Company, 184 So.2d 750 (La.App. 3rd Cir.1966). This situation is a possibility in the present suit. In any event, a determination cannot be made until the court has additional facts before it. More specifically, the coverage, terms and responsibility of all the policies that may be involved must be in evidence before the court. See Graves v. Traders and General Insurance Company, 200 So.2d 67 (La.App. 1st Cir.1967), modified in part, 252 La. 709, 214 So.2d 116 (1968). The absence of these facts and information leaves some question of material facts that also precludes the granting of a summary judgment. Malbrough v. American Fidelity Fire Insurance Company, 374 So.2d 146 (La.App. 1st Cir.1979).

For the foregoing reasons, we reverse the trial court’s judgment and remand the case for further proceedings not inconsistent with the views expressed herein. The defendants-appellees are cast for all costs of this appeal; all other costs are to await the final determination of the action.

REVERSED AND REMANDED.


author: LANIER, Judge.

text:
    Charles BUCHANAN, et ux. v. TANGIPAHOA PARISH POLICE JURY, et al.
    No. 82 CA 0342.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      Curtis M. Baham, Jr., Hammond, Ernest Lee Caulfield, Anthony Glorioso, New Orleans, for plaintiffs-appellants.
    France Watts, III, Franklinton, for defendant-appellee Tangipahoa Parish Police Jury and Travelers.
    Gail Sheffield, Amite, Louis M. Phillips, Baton Rouge, for defendant-appellee Tangi-pahoa Parish Police Jury.
    Charles M. Reid, Amite, for defendant-appellee Wilbur Creel and Dan Hawkins.

      Before COVINGTON, LANIER and ALFORD, JJ.
   LANIER, Judge.

This is a suit in tort by Charles J. Buchanan and his wife, Amie L. Buchanan, against the Tangipahoa Parish Police Jury (Police Jury) and its insurer, the Travelers Insurance Company (Travelers), for damages allegedly caused when a bridge owned and maintained by the Police Jury partially collapsed while Mrs. Buchanan was attempting to cross it in her car. The Police Jury filed an answer to the plaintiffs’ petition asserting the affirmative defenses of contributory negligence and assumption of risk. Travelers answered separately and denied coverage on the basis of policy exclusions. In the alternative, Travelers asserted the affirmative defenses of contributory negligence and assumption of risk. In a supplemental and amending petition, the Buchanans added Wilbert Creel, in his capacity as road foreman for the Police Jury, and Dan Hawkins, in his capacity as road and bridge supervisor for the Police Jury, as party defendants to these proceedings. Creel and Hawkins answered and asserted the affirmative defenses of contributory negligence and assumption of risk.’ Hawkins also asserted that he was not an employee of the Police Jury at the time of the accident. The trial judge determined that Amie L. Buchanan was contributorily negligence and dismissed the petition. This de-volutive appeal followed.

I. FACTS

For several days prior to January 14, 1977, heavy rains fell in the area of the Wilmer community in the Parish of Tangi-pahoa, Louisiana. This rainfall caused flooding conditions along Big Creek and its branches. On January 14, 1977, Amie L. Buchanan was operating a 1970 Cadillac automobile owned by her and her husband in a northerly direction on Jackson Road in the vicinity of the Wilmer community. The Jackson Road is a narrow gravel country road. As Mrs. Buchanan approached a branch of Big Creek, she observed that the bridge over the stream and its approaches were partially flooded. The bridge was constructed of creosoted pilings and wooden decking and was owned and maintained by the Police Jury. Flood waters from the stream were passing over the roadway on both sides of the bridge. The bridge was elevated in the middle and the middle portion was out of the water. Both sides of the bridge were covered by flood waters. Mrs. Buchanan knew that this bridge was flooded several times a year and had observed several vehicles traveling in the direction of the bridge that day. Mrs. Buchanan attempted to cross the bridge. When her vehicle reached the center of the bridge, the center span partially collapsed and dropped two or three feet submerging the front end of the vehicle. Mrs. Buchanan attempted to open the door of the car to escape, but was unable to do so. She crawled out of the window of the car onto its roof. She got onto the trunk of the vehicle and jumped to the bank of the stream to safety. She then walked to the home of her sister-in-law, a short distance away.

II. CONTRIBUTORY NEGLIGENCE — LA.C.C. ART. 2315

Contributory negligence is an affirmative defense to a negligence tort action under La.C.C. art. 2315 and the party relying upon it has the burden of proving it. Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which a plaintiff must conform for his own protection is that of a reasonable man under like circumstances. Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence. The alleged victim is required only to use reasonable precautions, and his conduct in this regard is not negligent if, by a commonsense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances. Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978); Smolin-ski v. Taulli, 276 So.2d 286 (La.1973). In particular, a motorist has the right to assume that a highway on which he is traveling is clear and free from hidden defects. However, when a motorist knows that there is a dangerous defect or hazard in a roadway ahead which should be avoided for his own safety, he can no longer assume that the highway is safe for his travel. Sepulva-do v. State, Department of Highways, 395 So.2d 858 (La.App. 2nd Cir.1981); Morrow v. State, 377 So.2d 430 (La.App. 2nd Cir. 1979); Coker v. Illinois Central Railroad Company, 267 So.2d 781 (La.App. 2nd Cir. 1972), writ refused 263 La. 628, 268 So.2d 679 (1972).

The photographs filed in evidence show that flood waters in the stream were swirling across the roadway and the bridge on both sides of the bridge’s elevated center. The evidence shows that the force of the flood put substantial stress on the bridge structure. Just prior to the accident, Wilbert Creel, the road foreman for the Police Jury, had inspected the bridge and determined that a hazardous situation existed and was in the process of securing warning barricades (after taking a coffee break) when the accident occurred. Mrs. Buchanan had an alternate route available to her to return to her home over a concrete bridge. This would have eliminated the hazard of attempting to cross a small wooden bridge under flooding conditions. Nevertheless, Mrs. Buchanan elected to attempt to cross the Jackson Road Bridge in the face of an obviously hazardous situation. In view of these facts, the trial judge was correct in determining that Mrs. Buchanan was eontributorily negligent. Ar-eeneaux v. Domingue, 365 So.2d 1330 (La. 1978).

III. VICTIM FAULT — LA.C.C. ART. 2317

A majority of the Louisiana Supreme Court has interpreted Article 2317 of the Civil Code to hold an owner or custodian of a thing strictly liable for damages caused by a thing in his custody. The elements of proof for a plaintiff in an Article 2317 case are: (1) the thing which caused the damage was in the care and custody of the defendant; (2) the thing had a vice or defect that created an unreasonable risk of injury to another; and, (3) the injury was caused by the defect. Defenses available to a defendant in an Article 2317 claim are (1) victim fault; (2) fault of a third person; or (3) damage caused by an irresistible force. Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980); Loescher v. Parr, 324 So.2d 441 (La.1975); Dye v. Kean’s, 412 So.2d 116 (La.App. 1st Cir.1982), writ denied 413 So.2d 506 (La. 1982).

Does the defense of “victim fault” in strict liability cases include the concept of contributory negligence? The answer to this question requires an analysis of the civilian doctrine of “fault” in Louisiana law. Articles 2315 through 2324 of the Civil Code comprise the code’s entire chapter of legal principles regulating offenses and quasi-offenses. Loescher v. Parr, supra. Responsibility for damages may be based on absolute, strict or negligent liability theories. Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982). The policy considerations for each of these theories of liability are different.

Liability for ultrahazardous activities is absolute. The policy reasons for this are set forth in Kent v. Gulf States Utilities Company, supra, 498, as follows:

“... There are some activities in which the risk may be altogether reasonable and still high enough that the party ought not undertake the activity without assuming the consequences. Such activities include pile driving, storage of toxic gas, blasting with explosives, crop dusting with airplanes, and the like, in which the activity can cause injury to others, even when conducted with the greatest prudence and care. 2 F. Harper and F. James, The Law of Torts, § 14.4 (1956); W. Prosser, The Law of Torts § 78 (4th ed. 1971). “For these particular activities, Louisiana courts have imposed an absolute liability (as contrasted to the strict liability previously discussed), which virtually makes the enterpriser an insurer. The enter-priser, whether or not negligent in any respect, causes the damage, and the injured party recovers simply by proving damage and causation.
“In these cases of absolute liability (or liability without proof of negligence or other fault), liability is imposed as a matter of policy when harm results from the risks inherent in the nature of the activity. The steps taken by the enterpriser to protect others from the inherent risks of the activity are not relevant to the determination of liability.”

(Footnote Omitted).

(Underscoring Added).

In Langlois v. Allied Chemical Corporation, 258 La. 1067,.249 So.2d 133 (1971), an absolute liability or no fault case, the Louisiana Supreme Court held that the doctrine of assumption of risk was available as a defense but that contributory negligence was not.

The policy reasons for the strict liability theory of recovery (fault under La.C.C. arts. 2317, 2318, 2320, 2321 and 2322) are set forth in Loescher v. Parr, supra, 446, as follows:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others. “The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.”

In a strict liability situation where both parties are free from negligence, the burden of the loss is placed on the person legally responsible for the person or thing which causes the loss. Should this same rule be applicable where the negligence of the victim is a cause of the loss?

In Kent, supra, the court observed that the only difference between the strict liability and negligence theories of recovery was the element of the defendant’s scienter. Under the negligence rule, it must be shown that defendants either knew or should have known of the risk, whereas under strict liability the claimant is relieved only of proving that the defendant knew or should have known of the risk. In either case, the claimant must still prove an unreasonable risk of harm that resulted in damage. While the basis for determining the existence of the duty is different between strict liability and negligence, the duty which arises is the same. Kent v. Gulf States Utilities Company, supra, 497-498.

Because the ultimate duty which arises under either the strict liability or negligence theory is the same, there is no rational policy basis for precluding contributory negligence as a defense to one and not the other. The conduct of the claimant should be analysed the same in either situation. In Dorry v. LaFleur, 399 So.2d 559, 560 (La. 1980), a strict liability case under La.C.C. art. 2322 for a defective roof, a plurality of the Louisiana Supreme Court observed as follows:

“Where a plaintiff’s negligence contributes to his own damages, there is no reason to ignore his fault in every case simply because the defendant’s liability is based on some legal fault other than negligence. Quite to the contrary, the plaintiff’s negligence should carry more, not less, consequence when the defendant is strictly liable, but less culpable than the plaintiff.”

This position is supported by the excellent reasoning found in Carpenter v. State Farm Fire and Casualty Company, 411 So.2d 1206, 1210 (La.App. 4th Cir.1982), writ denied 415 So.2d 951 (La.1982):

“Until recently, it has been held invariably that contributory negligence is no defense to strict liability. Langlois v. Allied Chemical Corp., Inc., 258 La. 1067, 249 So.2d 133 (1971). But this rule is borrowed largely from the common law as applied in other states. There, strict liability is imposed because social policy requires that those who profit by engaging in ultrahazardous or abnormally dangerous activities, and those who create such conditions, or those engaged in the manufacture of products, must pay their way.
“As Prosser states:
‘The courts have tended to lay stress upon the fact that the defendant is acting for his own purposes, and is seeking a benefit or a profit of his own from such activities, and that he is in a better position to administer the unusual risk by passing it on to the public than is the innocent victim.’ Prosser, Law of Torts, 4th Ed., (1971), p. 495. “Again, it is this social policy, rather than logic, which traditionally prevents courts from recognizing contributory negligence as a defense. The illogic of this principle, as Prosser puts it, is that ‘the fault of the plaintiff will relieve the defendant of liability when he is negligent, but not when he is innocent.’ Id. at 522.
“The Louisiana Civil Code sometimes imposes strict liability for conduct which would not necessarily warrant the imposition of strict liability under the common law tradition. Where this is the case, there can be no basis for applying the social policy, borrowed from the common law, which prohibits contributory negligence as a defense.”

(Emphasis Added).

In Sullivan v. Gulf States Utilities Company, 382 So.2d 184, 189-190 (La.App. 1st Cir.1980), writ denied 384 So.2d 447 (La. 1980), a case involving a defective concrete foundation pier under Article 2317, this court observed as follows:

“It would be ironic in this case for the defendant to be able to escape liability in a negligence action because of the plaintiff’s contributory negligence, yet be held liable under a strict liability theory when the plaintiff has been equally at fault in bringing about the harm. We think the policy reasons underlying Loescher v. Parr point away from such an ironic result. Loescher was based on the proposition that, out of two innocent parties, the • owner or guardian of a thing should pay for any damage caused by that thing. We do not have two innocent parties in this case, as the word innocent is understood in strict liability law. For purposes of this case, we think the measure of conduct necessary to achieve the appellation ‘contributory negligence’ is the same measure necessary to amount to ‘victim fault’ under Article 2317.”

Numerous cases have now equated contributory negligence with victim fault in strict liability situations (especially under La.C.C. art. 2317). Carpenter v. State Farm Fire and Casualty Company, supra; Darbonne v. State Farm Mutual Automobile Insurance Co., 408 So.2d 300 (La.App. 3rd Cir.1981); LeBlanc v. State, Louisiana Department of Highways, 405 So.2d 635 (La.App. 3rd Cir. 1981), writ granted 409 So.2d 657 (La.1982); Edwards v. State, Department of Transportation & Development, 403 So.2d 109 (La. App. 3rd Cir.1981), writ denied 407 So.2d 733 (La.1981); Jackson v. Tri-State Elevator Company, Inc., 401 So.2d 538 (La.App. 3rd Cir.1981); Wilkinson v. Hartford Accident & Indemnity Co., 400 So.2d 705 (La. App. 3rd Cir.1981), reversed on other grounds 411 So.2d 22 (La.1982); Godwin v. Government Employees Insurance Company, 394 So.2d 751 (La.App. 3rd Cir.1981); Sullivan v. Gulf States Utilities Company, supra; Hebert v. Maryland Casualty Company, 366 So.2d 1044 (La.App. 1st Cir.1978), writ denied 369 So.2d 708 (La.1979); Entre-via v. Hood, 413 So.2d 954 (La.App. 1st Cir.1982); Flair v. Board of Commissioners of Orleans Levee Board, 411 So.2d 614 (La. App. 4th Cir.1982); Stewart v. Sam Wallace Industrial Company, 409 So.2d 335 (La.App. 1st Cir.1981), writ denied 413 So.2d 497 (La. 1982). Contra: Rodrigue v. Dixilyn Corporation, 620 F.2d 537 (5th Cir.1980), cert, denied 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981).

In Langlois, supra, 249 So.2d 140, the court found that the defense of contributory negligence presupposed original negligence and that where negligence was not an ingredient of “fault”, contributory negligence was not a defense. The Louisiana concept of “fault” encompasses both strict and negligent liability cases. Loescher v. Parr, supra. It is not theoretically inconsistent under Louisiana law to hold that the “fault” of contributory negligence is a bar to recovery where the claim is based on “fault” as defined under the strict liability theory. As pointed out in Kent, while the basis for determining the existence of a duty is different between strict and negligent liability, the duty which ultimately arises is the same. Where both parties are free from negligence, the strict liability theory places the burden of the loss on the person legally responsible for the person or thing which causes the loss. However, where the conduct of the claimant has contributed to the loss, such conduct should be judged the same in strict and negligent liability cases because the duty on the defendant is the same in both cases. Such a rule makes it prudent for a claimant to take reasonable steps to provide for his own safety in either situation and would not reward him for failing to do so. With the advent of comparative negligence (perhaps comparative “fault” would be a better term), the harsh effect of the “all or nothing” contributory negligence rule will be substantially tempered.

The operation and maintenance of a small wooden bridge on a gravel country road in Tangipahoa Parish in the instant case was neither ultrahazardous nor abnormally dangerous. The Police Jury did not manufacture products for sale or realize a profit from the operation of the bridge. Under the particular facts and circumstances of this case, there is no valid policy reason to bar the defendants from asserting the affirmative defense of contributory negligence. The contributory negligence of Mrs. Buchanan defeats her claim under this theory of recovery.

IV. CONCLUSION

For the foregoing reasons, the decision of the trial court is correct and is affirmed at the appellants’ costs.

AFFIRMED.

      . Travelers filed a motion for summary judgment based on the policy exclusions which was heard and taken under advisement, but was not ruled upon prior to the trial on the merits.

      . The plaintiffs did not allege strict liability under La.C.C. art. 2317 in either their petition or supplemental and amending petition. However, this theory of recovery was asserted in the pretrial order filed in accordance with Rule 11 of the Court Rules of the Twenty-First Judicial District Court (West’s, Louisiana Rules of Court, p. 510 [1982]) and in the post trial briefs of the parties filed in the trial court.

      . Thus, the “fault” concept of assumption of risk was applied in a “no-fault” theory of recovery case.

      . See, for example, La.C.C. art. 2323 as amended by Act 431 of 1979 and La.C.C.P. art. 1811(B):
      Art. 2323.
      “When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.”
      (Emphasis Added).
      Art. 1811(B).

      “B. In cases to recover damages for injury, death or loss, the court shall submit to the jury special written questions inquiring as to:
      1.Whether a party from whom damages are claimed, or the person for whom such party is legally responsible, was at fault, and, if so:
      (a) Whether such fault was a proximate cause of the damages, and, if so:
      (b) The degree of such fault, expressed in percentage;
      2. If appropriate, whether another involved person, other than the person suffering injury, death or loss, was at fault, and, if so:
      (a) Whether such fault was a proximate cause of the damages, and, if so:
      (b) The degree of such fault, expressed in percentage;
      3. If appropriate, whether there was negligence attributable to any party claiming damages, and, if so:
      (a) Whether such negligence was a proximate cause of the damages, and, if so:
      (b) The degree of such negligence, expressed in percentage; and
      4. The total amount of damages sustained as a result of the injury, death or loss, expressed in dollars.

        “The court shall then enter judgment in conformity with the jury’s answers to these special questions and according to applicable law.”
      (Emphasis Added).


author: CUTRER, Judge.

text:
    LOUISIANA BOARD OF TRUSTEES Thru McNEESE STATE UNIVERSITY, Plaintiff-Appellant, v. Barbara Nell BRUNO, Defendant-Appellee.
    No. 82-451.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    William J. Guste, Atty. Gen. through David G. Sanders, Baton Rouge, for plaintiff-appellant.
    Barbara Nell Bruno, in pro. per.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

The issue on appeal is whether the Louisiana Board of Trustees, through McNeese State University, can obtain personal jurisdiction over an absentee, through the “Long Arm” statute, to collect a debt arising from a student loan made to the absentee when she was a student at McNeese State University in Lake Charles, Louisiana.

Barbara Bruno, while attending McNeese State University (University) during 1970-1971, applied for and obtained a student loan from the University for a total sum of $550.00. Barbara executed a note in favor of the University, dated June 3,1970, which reflects advances being made during the years of 1970 and 1971 totaling $550.00, bearing interest at the annual rate of 3% beginning December 3, 1974. Barbara made payments totaling $97.50, leaving a balance due of $486.45 plus interest.

On May 29, 1979, the Louisiana Board of Trustees, through McNeese State University, brought suit for the balance due plus interest. Barbara, being a resident of the State of Texas, was served by certified mail at an address in Houston, Texas, on June 27, 1979, according to the provisions of our “Long Arm” statute, LSA-R.S. 13:3201. No answer or other pleadings were filed on behalf of Barbara. On May 8, 1980, a preliminary default was entered by the Board of Trustees and the case was presented for confirmation of default on March 29, 1982. Introduced into evidence were the note, an affidavit of G. Desmond Jones, Financial Director of the University, and an affidavit of Elaine Prudhomme, Coordinator of the Collection Section, Civil Division of the Louisiana Department of Justice.

The affidavits reflect the existence of the student loan, payments made by Barbara and the balance due and owing. Barbara attended the University from June 1970 until December 20,1971. The first quarterly payment was due October 1, 1972. Barbara made installment payments totaling $97.50 leaving the balance due of $486.45 plus interest.

The trial court rendered judgment dismissing the Board of Trustees’ suit without prejudice. In his reasons for judgment the trial judge stated as follows:

“Suit is based on an evidence of indebtedness in the nature of a promissory note executed by defendant for student loans while attending McNeese State University during the years 1970 and 1971. Counsel for plaintiff urges that this was ‘doing business’ in the State of Louisiana and consequently jurisdiction is conferred upon this court by virtue of the ‘Long Arm' statute above cited.
“The court determines that an act of obtaining a loan is not necessarily a ‘business’ transaction. The long arm statute was not intended to attempt to circumvent the requirements for due process of law....”

The Board of Trustees appeals. We reverse.

The issue is whether the student loan, made by Barbara Bruno, was a ‘business transaction in this State’ so as to make Barbara amenable to the jurisdiction of the Calcasieu Parish district court under the “Long Arm” statute, LSA-R.S. 13:3201, which provides, in part, as follows:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;”

The ruling of the trial court was erroneous in view of this court’s recent decision in Heinberg v. Poole, 413 So.2d 271 (La.App. 3rd Cir.1982). In Heinberg, the defendant was a resident of Texas. He consummated a personal loan from his daughter in Alexandria, Louisiana, in the amount of $4,000.00. The daughter brought suit against her absentee father for the indebtedness and served him under the provisions of the “Long Arm” statute. The defendant filed an exception of lack of personal jurisdiction which was sustained by the trial court. In reversing the trial court this court held as follows:

“The allegations of the petition clearly reflect that the $4,000.00 loan transaction took place in Alexandria, Rapides Parish, Louisiana. When the defendant effectuated this $4,000.00 loan transaction, such activity amounted to a ‘transaction of business’ in that parish according to the provisions of LSA-R.S. 18:3201(a). Under these circumstances the trial court had jurisdiction over the defendant in this cause of action.. ..”

The promissory note in this case was executed by Barbara Bruno in Lake Charles, Louisiana, for advances made to her while she was a student at the University. Such loan is the “transaction of business” in Cal-casieu Parish, State of Louisiana, making Barbara Bruno amenable to the jurisdiction of the district court under the provisions of LSA-R.S. 13:3201(a). The trial court of Calcasieu Parish had jurisdiction over Barbara Bruno in this cause of action. The trial court’s ruling in this regard will be reversed.

For these reasons, the judgment of the trial court is reversed and set aside. Judgment is rendered in favor of the Louisiana Board of Trustees, through McNeese State University, and against Barbara Bruno for the sum of $486.45 plus three percent (3%) interest per annum thereon, beginning December 3, 1974, until paid. All costs of the trial court and for this appeal are assessed to defendant-appellee.

REVERSED AND RENDERED.

      . Fourteenth Judicial District of the State of Louisiana.