author: NESTOR L. CURRAULT, Justice Pro Tem.

text:
    STATE of Louisiana v. Charles Ray LATIN.
    No. 81-KA-2287.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Carey T. Schimpf, Dale G. Cox, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Jeanette G. Garrett, Richard C. Goorley and Timothy R. Fischer, Shreveport, for defendant-appellant.
   NESTOR L. CURRAULT, Justice Pro Tem.

The defendant, Charles Ray Latin, was charged by bill of information with simple burglary, a violation of Louisiana Revised Statute 14:62. After a jury trial which concluded in a guilty verdict, the defendant was sentenced to twelve years at hard labor. It is from this conviction and sentence that the defendant now appeals based on six assignments of error.

Factual Synopsis

On October 1, 1980, William O’Hern, an employee of Continental Floral Green, made a delivery of decorative greens to a florist shop in Shreveport, Louisiana. After making his delivery, Mr. O’Hern returned to his truck, an eighteen wheeler, and discovered Mr. Latin, the defendant, leaning into the cab of the vehicle. The defendant then threw the items he had removed from the truck at Mr. O’Hern’s head, and proceeded to run away. Mr. O’Hern gave chase but ended his pursuit when the defendant ran into a thicket. Within seconds, Mr. O’Hern again saw the defendant across the street from his truck motioning for a green and white Chrysler to pick him up on the other side of the thicket. Mr. O’Hern walked closer to the car and told the occupant, a co-defendant, “you better not steal from me” and walked back toward his own vehicle to call the police. A policeman at that time was approaching the scene from the opposite direction. Mr. O’Hern flagged him down, gave him an abbreviated version of the incident, pointed out the vehicle in which the defendants were now leaving the scene and gave the license number of the car. The police officer gave chase, never losing sight of the vehicle, and apprehended the defendants.

Assignment of Error No. 1

By this assignment, the defendant contends that the trial court erred in denying his motion to suppress his oral, unrecorded, inculpatory statement, alleging that such statement was the product of an unlawful arrest.

After the defendant was advised of his rights, Detective Franklin testified:

... he (the defendant) stated to me that he had gone up to this particular location to look for a job with another black male and he had gotten out of the car and had proceeded up to the building and I don’t recall whether he said he had gone in or not but on his way back he had noticed this particular truck, 18 wheeler and he had gone into the truck and taken a bag and some items that were within the truck and noticed that the driver or that there was a white male that began chasing him or was appearing there and began chasing him so he threw the items back at him and started running.. ..

The State argues that the officer had probable cause to effect a legal arrest. We agree.

Louisiana Code of Criminal Procedure Article 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when
(3)that peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.

A warrantless arrest must be based on the arresting officer’s reasonable belief that the person to be arrested has committed or is committing an offense. State v. Kenner, 384 So.2d 413 (La.1980).

“Reasonable cause which under Louisiana Code of Criminal Procedure Article. 213 is consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime; ‘probable cause’ may be judged by the probabilities and practical considerations of every day life on which average men, and particularly, average police officers, can be expected to act.” State v. Drew, 360 So.2d 500 (La.1978) cert. den. 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1978).

In the present case, the officer was stopped by a citizen who claimed he had been “ripped off” and identified the passenger of an automobile fleeing the scene as the perpetrator. The term “ripped off”, despite the defense assertion of vagueness, is of such common usage in the vernacular to denote a theft, that no misunderstanding is likely.

The factual circumstances of the victim’s complaint coupled with the apparent flight of the accused were sufficient to provide an articulable basis for a warrantless arrest. See State v. Williams, 349 So.2d 286 (La.1977).

Accordingly, the statement given was not the product of an unlawful arrest and was therefore correctly admitted into evidence.

The assignment lacks merit.

Assignment of Error No. 2

By this assignment of error, the defense asserts the trial court erred in not ordering the defendant to be furnished with copies of police reports.

During the testimony of Detective Franklin, he was questioned concerning the oral statement given by the defendant Latin. Although admitting that he testified at trial to a few more details than he had at the preliminary hearing, the officer stated that he was testifying from his memory rather than from a report, although the report would be helpful in refreshing his memory. However, the officer was never formally impeached by the defense pursuant to Louisiana Revised Statute 15:493.

The State is not required to produce police reports of a testifying officer unless

(1) the officer has physical possession of the report on the stand and testified from it. State v. Perkins, 310 So.2d 591 (La.1978); or

(2) the officer testified exclusively from his past recollection recorded even though the officer does not have physical possession of the report on the stand. State v. Tauzier, 397 So.2d 494 (La.1981); State v. Banks, 341 So.2d 394 (La.1976); and

(3) it is established that there is an inconsistency between the officer’s testimony at trial and his report. State v. Carter, 363 So.2d 893 (La.1978).

In this case, the testimony clearly indicates that Detective Franklin was relying on his memory refreshed by his report. He did not have physical possession of his report when he testified nor did defense counsel make any showing that the officer’s testimony differed from his report. Accordingly, the report was properly withheld from defense inspection.

This assignment lacks merit.

Assignment of Error No. 3

The defense urges by this assignment that the trial court erred in not granting a mistrial when the defendant could not recall the victim, Mr. O’Hern, to the stand to testify for the defense, as Mr. O’Hern had left the court after testifying for the State.

The record reflects that although a State subpoena was issued for the witness, it was not served. Mr. O’Hern came to the trial in response to a call by the District Attorney. A defense subpoena was not requested, nor did the defense indicate to the court at the close of Mr. O’Hem’s testimony that it desired the witness to be recalled.

The right of a defendant to compulsory process for obtaining witnesses in his behalf is embodied in both the federal and state constitution as well as the statutory law of this state. United States Constitution Amendment 6; Louisiana Constitution Article I, Section 16 (1974); Louisiana Code of Criminal Procedure Article 731. The right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Mizell, 341 So.2d 385 (La.1976); State v. Dennis, 250 La. 125, 194 So.2d 720 (1967).

Had defense counsel requested a subpoena for the witness at any time, or had the witness been under subpoena and not released by the trial court, this court would look more favorably upon defendant’s argument that compulsory process was denied.

The defense further argues in brief that the defendant was denied a fair trial because the absence of O’Hern precluded him from full cross-examination on the issue of identity.

The defendant has no absolute right to recall a witness to the stand for further cross-examination. Such is a matter within the sound discretion of the trial judge. State v. Banks, 362 So.2d 540 (La.1978); State v. Simmons, 340 So.2d 1357 (La.1976). It is arguable that the procedure would not have been permitted had the witness been present. Mr. O’Hern had been on the stand for over two hours. Much of the testimony had centered around the issue of identification. The victim’s testimony was certain as to the identity of the defendant as the perpetrator of the burglary. The apparent disparity between the victim and the police officer as to the location of the victim’s identification could be and was amply covered in the closing arguments. Any further testimony by Mr. O’Hern would have been cumulative.

Mistrial is a drastic remedy and, except in instances in which mistrial is mandatory, is warranted only when trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Sepulvado, 359 So.2d 137 appeal after remand, 367 So.2d 762 (La.1978). It is the opinion of the court, considering the factual circumstances and the testimony of the witnesses, that the defendant did not suffer prejudice such as to warrant a mistrial.

This assignment lacks merit.

Assignments of Error Nos. 4 and 5

The defense claimed the trial court erred when it refused to grant a mistrial due to the prosecutor’s alleged reference to the defendant’s failure to testify during the prosecutor’s rebuttal closing argument.

The court’s failure to grant a motion for new trial based upon the same argument is additionally cited. In brief, the defendant cites the objectionable portions of the argument as follows:

What burglars or what criminals have never had a pre-planned alibi. Two of them had an alibi. They had an excuse for why they were there. They don’t have to prove anything, but they sure can if they want to. Have you heard any kind of testimony about a job interview? It’s not our job to bring in everything, the whole world, too. We have to prove the crime and that’s all the evidence we have. It’s not our job to bring and prove to you that there was no job interview. There’s no testimony or any kind of evidence that he was sleeping or listening to the radio. It’s not your job to speculate to what they could have been doing. You heard the evidence. What else could they have been doing. That’s all you’ve got to ask.
But I will give you an explanation just in case you’re hung up with the problem of a prior knowledge. We’ve gone over it briefly. It doesn’t require an intent when he drove up there to do it, but it requires intent while it’s happening. No explanation has been given you, none available, not even going to say reasonable, there’s no explanation at all.
He had to see Mr. Carter go in that truck. He was right there. He had to have. There’s no other explanation, so he knows. And he had a pre-arranged reason for being there, both of them. There was two of them gave this story. Yeah, I was there job hunting. Did he get the job? Who knows.

After the jury was instructed and had retired to deliberate, the defense moved for a mistrial on the ground that the State’s argument improperly referred to the defendants’ failure to testify in their own defense. Louisiana Code of Criminal Procedure Article 770(3). The trial court denied the motion for the following reason:

Well, I think possibly an admonishment to the jury would have been in order had the objection been made contemporaneously which is the way those things are suppose (sic) to be done. Such an objection was not made at the time the remark was made and the jury obviously has been informed by everybody including the Court several times that the accused in any case are not required to testify. They don’t have any burden of proof and your request would be denied.

The failure to grant the mistrial motion forms the basis for assignment of error number four. The defendants filed a pro se motion for new trial wherein they sought a new trial because of the prejudice caused by the improper argument. The lower court denied that motion. Such ruling forms the basis for the fifth assignment of error.

Louisiana Code of Criminal Procedure Article 770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: (3) The failure of the defendant to testify in his own defense;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonishment be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

The State argues in brief that the remarks did not, directly or indirectly, refer to the failure of the defendant to testify in his own behalf, but rather taken in the context of the entire closing arguments were essentially references to the fact that the State’s case was unrefuted.

References made in closing argument that the State’s case stands uncontro-verted have been frequently upheld by this Court. See State v. Sims, 346 So.2d 664 (La.1977); State v. Reed, 284 So.2d 574 (La.1973). A statement that the State’s theory of the case remains unassailed encompasses the entire case presented by the defense and does not focus on the defendant’s failure to take the stand. However, when the defendant is the only person who can dispute the testimony, a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify. See State v. Perkins, 374 So.2d 1234, 1237 (La.1979).

Although we hold that the trial court’s reasoning in denying the motion for mistrial is incorrect, the ruling is not in error. See State v. Gaines, 347 So.2d 1153 (La.1977). The defendant or his co-defendant were not the only persons who could have explained their presence at the scene of the incident. If Mr. Latin did indeed have a job interview, the prospective employer could have testified, thereby rebutting the testimony elicited by the State. It is noted, however, that the prosecutor’s remarks are improvidentially worded and are perilously close to prohibited comment. In another case, such remarks could constitute reversible error.

For the foregoing reasons, this assignment lacks merit.

Assignment of Error No. 6

By this assignment of error, defendant contends that the judge imposed an excessive sentence in violation of Article I, Section 20 of the 1974 Louisiana Constitution. He also submits that the maximum sentence of twelve years was imposed as punishment for his exercise of his right to trial by jury.

Although the trial judge concedes there is a variance between the sentence offered during plea negotiations and that imposed after trial, the judge stated for the record that at the time of pre-trial conferences, he was unaware of a prior involuntary manslaughter conviction. In brief, the defense argues that the additional involuntary homicide conviction would not justify the increase from four to twelve years, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) as analogous. In Pearce, the United States Supreme Court held that the due process clause of the Fourteenth Amendment prohibits a sentencing judge from imposing a new trial, unless new, objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding is discovered. There is no merit to the defense contention that the defendant is being punished for proceeding to trial. Using the Pearce standard, cited by the defense in brief, new objective information concerning the defendant’s manslaughter conviction was obtained by the judge subsequent to both the plea negotiations and trial. We hold that the discovery of such information along with the opportunity of the trial judge to hear the evidence and judge the attitude and demeanor of the defendant justifies the sentence imposed.

The trial judge is given a wide discretion in the imposition of sentences within statutory limits and the sentences should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, 359 So.2d 137 appeal after remand, 367 So.2d 762 (La.1979).

The trial judge herein adequately complied with Louisiana Code of Criminal Procedure Article 894.1, naming the defendant’s extensive criminal record which included convictions for the following: illegal carrying of weapons, theft (2 counts), possession of marijuana, involuntary homicide and simple battery. He concluded that there was an undue risk that during any period of suspended sentence or probation, defendant would commit another crime. Further, the trial judge stated, “You certainly are in need of correctional treatment and any lesser sentence would take away from the seriousness of the crime.” He additionally stated for the record that all the factors outlined in Code of Criminal Procedure Article 894.1, not merely the three mentioned, had been considered in order to particularize the sentence to the defendant.

Carefully reviewing the trial judge’s reasons for sentencing, we conclude that he did not abuse his wide discretion in imposing the maximum penalty for the offense charged, particularly in view of the extensive conviction record of the defendant.

This assignment of error lacks merit.

DECREE

For the reasons assigned, the defendant’s conviction and sentence is affirmed.

       Judges Nestor L. Currault, Jr. and Fred S. Bowes of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as associate justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Watson.


source: Caselaw Access Project

author: WATSON, Justice. CALOGERO, Justice, DENNIS, Justice, BLANCHE, Justice MARCUS, Justice CALOGERO, Justice,

license: Public Domain

text:
    Phillip JACKSON v. CONTINENTAL CASUALTY COMPANY.
    No. 81-C-1759.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.
    Leo J. Berggreen, Baton Rouge, for plaintiff-applicant.
    Paul H. Spaht, of Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendant-respondent.
   WATSON, Justice.

ISSUE

Is a person who pays group insurance premiums for almost six years to insure the life of his “spouse” barred from collecting benefits for her death by the fact that their thirty-five year union was not a legal marriage?

FACTS

Plaintiff, Phillip Jackson, an illiterate Louisiana State University employee, was insured under a group policy with Continental Assurance Company. Beulah Jackson was enrolled for life insurance coverage as his spouse on September 8,1973. Premiums for that coverage were deducted from Jackson’s pay checks. After living with Phillip Jackson for thirty-five years, Beulah Jackson died on July 9, 1979. The two were never legally married, but Beulah Jackson was economically dependent on Phillip.

Continental Assurance Company contested liability because it was unaware the parties were not legally married until after Beulah’s death. The trial court dismissed plaintiff’s suit. The Court of Appeal affirmed because Beulah Jackson was not a “legal spouse” and therefore was ineligible for coverage. Jackson v. Continental Cas. Co., 402 So.2d 175 (La.App. 1 Cir. 1981). A writ was granted to review the judgment. 405 So.2d 532 (La.1981).

LAW

LSA-R.S. 22:176(2) requires that all group life insurance policies issued in the State of Louisiana have the following or an equivalent provision:

“(2) Incontestability: A provision that the validity of the policy shall not be contested, except for nonpayment of premiums, after it has been in force for two years from its date of issue and that no statement made by an individual insured under the policy relating to his insurability shall be used in contesting the validity of the insurance with respect to which such statement was made after such insurance has been in force prior to the contest for a period of two years during such individual’s lifetime nor unless it is contained in a written instrument signed by him.”

CONCLUSION

The Court of Appeal relied on Crawford v. Equitable Life Assurance Society of the United States, 56 Ill.2d 41, 305 N.E.2d 144 (1973), which held that a defense of ineligibility was not barred by an incontestability clause. Crawford reasoned that the question of eligibility for group coverage is not foreclosed because the insurer’s risk and premium is affected by whether the insured was, as represented, an employee. “[E]mployment or active or full-time employment may protect the insurer against adverse selection.” 305 N.E.2d at 150. Even on that point, the various jurisdictions “are not uniform in result.” 305 N.E.2d at 149. See, for example, Simpson v. Phoenix Mutual Life Insurance Co., 24 N.Y.2d 262, 299 N.Y.S.2d 835, 247 N.E.2d 655 (1969). The result in Crawford is also contrary to past Louisiana jurisprudence. See Michel v. Washington National Insurance Co., 315 So.2d 863 (La.App. 3 Cir. 1975); Allison v. Aetna Life Ins. Co., 158 So. 389 (La.App. 2 Cir. 1935); and Garrell v. Good Citizens Mut. Ben. Ass’n, 204 La. 871, 16 So.2d 463 (1943). Irrespective of its merits, Crawford’s rationale is inapplicable here. The adverse selection factor is not present. Eligibility can be contested only if allowing coverage extends the risk beyond that contemplated by the insurer when the policy was written. Continental’s exposure was not increased because the Jacksons’ thirty-five year union was not blessed by the sacrament of matrimony. Their unmarried state, a very technical point in this factual situation, was apparently insignificant to Phillip and Beulah Jackson. He listed her as his “spouse” for insurance purposes. One who is, for all practical purposes, a spouse should not be barred from recovery by an irrelevant legal status. “[A]n immaterial, technical breach of condition should not be the occasion for forfeiture.” 1979 Ill.Law Forum 817.

A dependent concubine or “common law wife” can recover workmen’s compensation benefits because the insurer should not “benefit by the windfall” of discovering that there was an illicit rather than licit relationship. Henderson v. Travelers Insurance Co., 354 So.2d 1031 at 1034 (La.1978). Similarly, Continental, who has been paid premiums for life insurance coverage on Beulah Jackson, should not benefit from the belated discovery that she maintained a marital relationship without a legal marriage. For purposes of group insurance, there is no reason to distinguish between a dependent concubine who is scheduled as the “spouse” in an insuring agreement and a legal spouse.

The incontestability provision bars the defense urged by Continental because Jackson’s policy had been in force over two years and the premiums had been paid. See Bernier v. Pacific Mut. Life Ins. Co. of California, 173 La. 1078, 139 So. 629 (1932).

For the foregoing reasons, the judgment of the trial and appellate courts herein are reversed and judgment is entered in favor of plaintiff, Phillip Jackson, for the benefits due under his policy with Continental Casualty Company for the death of Beulah Jackson.

REVERSED AND RENDERED.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons.

LEMMON, J., dissents.

BLANCHE and MARCUS, JJ., dissent and assign reasons.

CALOGERO, Justice,

concurring.

I respectfully concur being of the opinion that the insurer in this case was barred by the incontestability clause in the policy from disputing the status of Beulah Jackson at the time of her death. I believe, however, that the distinction between a legal spouse and a common law spouse is more than an “immaterial, technical breach of condition” and that such a distinction may allow an insurer to defend against liability under a dependant coverage policy provision if the insurer contests the designation within the time limits of the policy’s incontestability clause.

DENNIS, Justice,

concurring.

I respectfully concur.

The incontestability clause in the insurance contract is very broad and general. It says that:

“Coverage as to any Insured Employee shall be incontestable, except for nonpayment of premium after such coverage has been in force for two years from the Effective Date, and any statement made by any Insured Employee relating to his insurability under this policy shall not be used in contesting the validity of insurance with respect to which such statement was made unless it is contained in a written statement signed by the Insured Employee, nor shall such statement be used at all after the insurance has been in force prior to the contest for a period of two years during the lifetime of the Insured Employee.”

The ordinary rules of construction apply to the incontestable provisions. In the absence of any doubt as to the meaning of the contract, the intention of the parties must be ascertained from the instrument. Where there is any doubt or ambiguity, however, such must be resolved against the insurer and in favor of the insured or the beneficiary, in accordance with the usual rules of liberal construction to effectuate the contract. The words of the clauses themselves must be interpreted as an ordinary man would read them, and not in any strained or technical manner. See 1 A. Appleman, Insurance Law and Practice § 311 and cases cited.

Applying the ordinary rules of construction, under the policy’s incontestable clause, coverage based on the statement of an insured employee cannot be questioned after the employee has purchased the insurance and made timely payments of premiums for two years. Some incontestability clauses provided by insurance policies and statutes only bar attacks on the validity of the insurance contract after the expiration of a period of time. However the policy clause in this case is much broader and renders indisputable the coverage issued on the basis of an insured employee’s statement after expiration of the prescribed period. There are, of course, other reasonable interpretations of the policy clause more favorable to the insurance company, but we should adhere to the precept of requiring a liberal construction of the insurance contract in favor of the insured or beneficiary and place responsibility for the clarity of the contract upon the insurer who drafted it. La.C.C. art. 1957; Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953).

The narrower statutory incontestable clause, La.R.S. 22:176(2), which bars contests as to the validity of the policy, is not applicable in this case. The statute provides that an insurer may substitute an incontestable clause more favorable to the policyholder with the commissioner’s approval. Id. The members of the emloyee group or their trustees are deemed to be the policyholder, La.R.S. 22:175(A), and the broader policy incontestable clause is more favorable to them. The policy clause has been approved by the commissioner. Accordingly, it governs this case.

The insurance code does not prohibit a group insurer from agreeing to an incontestable clause which prevents the dispute of a beneficiary’s marital status after a period of two years. La.R.S. 22:175 merely provides that group life insurance, under certain circumstances, “may ... be extended to insure the spouse and minor children of the insured . .. [and] [c]hildren of an insured who are full time students and who are under the age of twenty-four * * The code does not make clear whether this is a permissive or a mandatory provision, or, if the latter, whether unauthorized group insurance is absolutely void even as to an innocent insured or merely subjects the insurer to some type of regulatory sanction. In any event, none of these questions are relevant to this case. Even if La.R.S. 22:175 is a mandatory provision, it does nothing more than prevent an insurer from intentionally covering risks beyond the scope of the statute. It does not purport to prevent an insurer from inadvertently insuring such risks due to the expiration of the incontestability period.

The incontestable clauses are enforced with particularity because of the desirable purpose which they have. It is their purpose to put a checkmate on litigation; to prevent, after the lapse of a certain period of time, an expensive resort to the courts— expensive both from the point of view of the litigants and that of the citizens of the state. 1 A. Appleman, § 311 p. 311.

Because coverage is incontestable under the policy and the insured employee’s statement, it is unnecessary to discuss an interesting state constitutional question suggested by this case: Would a public employee group insurance policy which absolutely prohibits coverage of “common law” spouses, arbitrarily, capriciously or unreasonably discriminate against persons because of their culture? See La.Const.1974, Art. 1, § 3.

BLANCHE, Justice

(dissenting).

Hard facts make bad law.

In the instant case, plaintiff urges that the incontestability provision contained in our insurance code, R.S. 22:176(2), precluded Continental’s right to challenge the extension of coverage of his common law spouse. The insurer, on the other hand, contends that Beulah Jackson was not eligible for coverage because of the restrictions found in the group policy as well as the statutory limitations of R.S. 22:175(B)(7), which provides:

Insurance under any group life insurance policy except those policies issued pursuant to Paragraph (3) of Subsection A of the Section, may, if seventy-five percent of the then insured employees or members who have eligible dependents elect, be extended to insure the spouse and minor children of the insured in amounts in accordance with the plan which precludes individual selection by the employees or members or by the employer or trustee and which may not exceed fifty percent of the amount of insurance on the life of the insured employee. Children of an insured who are full time students and who are under the age of twenty-four may be included as eligible dependents.

Both the trial and appellate courts were of the opinion that, because the deceased was never within the penumbra of the policy or statutory provisions, the policy never took effect with respect to her. R.S. 22:175(B)(7).

Contrary to the holding of the majority, this writer concludes that the statutory limitations imposed by R.S. 22:175(B)(7) prohibit the extension of coverage under a group life policy to a common law spouse. Being well aware of Jackson’s position, and sympathizing with his plight, the majority of this Court has chosen to ignore the express language of R.S. 22:175(B)(7), which clearly evidences a legislative mandate to limit the availability of group insurance to the insured employee’s “spouse” and certain children.

Statutory rules may be either imperative or suppletive. Based on public policy considerations, an imperative rule applies without regard to the intentions of the parties concerned, whereas a suppletive rule applies only if those affected have not excluded its application. C.C. arts. 11 and 12; E. L. Burns Co., Inc. v. Cashio, 302 So.2d 297 (La.1974); Badon’s Employment, Inc. v. Smith, 359 So.2d 1284 (La.1978); see also R. David, French Law: Its Structure, Sources and Methodology (1960 Ed., M. Kindred transí. 1972).

By allowing coverage under a group policy to include a spouse, minor children or children who are full-time students and under the age of 24, the legislature manifested a desire to limit the availability of group insurance to those who are legally related dependents of the insured employee. This restriction enables the insurer to provide coverage to the insurable class at great-savings because the insurer has less cost and less risk in selling, underwriting and administering the policy. Rail and Sfikas, “Group Insurance — Is the Incontestability Clause a Bootstrap Which Enlarges Coverage, 5 The Forum 51 (1969); see also Gregg, Group Life Insurance (3rd Ed. 1962).

The first saving in group life cases is in the selling expense. The sale of one policy covering a large number of lives will not entail the selling expense inherent in the sale of a corresponding number of individual policies. The policyholder benefits from this because it can make available to employees, union members, or whoever constitutes the group, low cost insurance.
Underwriting expense is minimized by the fact that a true, homogeneous group furnishes its own cross section of risk, which makes unnecessary the examination of the individual risks comprising the group. Any rule of law, from whatever source, which places on the insurer the necessity of having to underwrite individual risks, departs from the essential plan underlying group insurance. Unless this is resisted vigorously, the proved economies of group life insurance will be squandered.
The third great saving in group cases is in the self-administration of the plan by the policyholder (usually the employer). A rule of law which precludes reliance by the insurer on the trustworthiness of self-administration, and thus requires the insurer’s excessive participation in administration of the group policy is disadvantageous. The Forum, supra, at 56.

The limitations of availability contained in the subject group policy, which parallel the provisions of R.S. 22:175(B)(7), insure that the selling, underwriting and administration advantages which are characteristic of group policies, are amply safeguarded. To conclude that the insurable class under group policies is broader than that expressed by the legislature would preclude the existence of these unique features of group contracts.

By allowing recovery in the instant case, this Court has sanctioned unauthorized extensions of coverage which would permit insured employees to seek insurance on the lives of any individual, regardless of a legally protected interest in that person. Such “wagering contracts” on insurance risks are clearly contrary to public policy.

In the present case, Beulah Jackson was plaintiff’s common law spouse. As noted by the court of appeal:

Louisiana does not recognize the ‘common law marriage.’ LSA-C.C. art. 88; Liberty Mutual Ins. Co. v. Caesar, 345 So.2d 64 (La.App. 3 Cir. 1977), writ denied, 347 So.2d 1118 (La.1977). Hence, Beulah Jackson was not the ‘legal spouse’ of Phillip Jackson. The lower court, following Harris v. Lumbermen’s Mutual Cas. Co. of Chicago, 48 So.2d 728 (La.App. 1 Cir. 1950), held that a ‘spouse’ means ‘one’s wife or husband’. We agree. Inasmuch as Beulah Jackson was never the ‘legal spouse’ of Phillip Jackson, she was not eligible for coverage under the subject group life insurance policy.

Though the deceased was, at all times, financially dependent upon plaintiff, the legislative decision to limit the availability of group insurance only to those individuals legally related to the insured employee cannot be ignored. See Gill v. General American Life Ins. Co., 434 F.2d 1057 (8th Cir. 1970). Thus, even if the Jacksons’ unmarried state was “apparently insignificant” to them, it is clear that an individual’s legal status was of major concern to the legislature and not, as the majority concludes, “a very technical point”. Because the attempt to include Beulah Jackson under the group policy went beyond the legislatively designated perimeter of availability, it was completely null and had no legal effect. C. L. Burns v. Cashio, supra; Badon’s Employment, Inc. v. Smith, supra. Consequently, Louisiana’s statutory incontestability provision, R.S. 22:176(2) is inapplicable to the present situation and Continental is not precluded from challenging coverage of Beulah Jackson under the group policy.

Further, the majority’s reliance on Bernier v. Pacific Mut. Life Ins. Co. of California is misplaced. Bernier dealt with an individual, rather than a group, life insurance policy. More important, because the Bernier decision arose nearly 15 years before our insurance code was enacted, this Court’s holding rested solely upon the incontestability clause in the policy. Accordingly, this writer is of the opinion that Bernier is inapplicable to the resolution of the present dispute.

Because I believe that the holding of the lower courts was correct, I respectfully dissent.

MARCUS, Justice

(dissenting).

I am of the opinion that the judgment of the court of appeal is correct. Accordingly, I respectfully dissent.

CALOGERO, Justice,

concurring in denial of rehearing.

“Coverage as to any insured employee shall be incontestable” after two years, construed liberally to effectuate this contract, in favor of the insured and against the insurer/confector of the contract, surely was meant to bar a contest as to coverage of the dependent insured designated by the insured employee.

      . Crawford and Simpson are analyzed in Vol. 1979 of the University of Illinois Law Forum at 809.


author: DENNIS, Justice.

text:
    Sam GIALLANZA, Captain Sam V. Gardner, Captain E. B. Hendrix and Warren A. Maher, Individually and as Industry Commissioners of the Crescent River Port Pilots Fee Commission v. LOUISIANA PUBLIC SERVICE COMMISSION and Captain Charles E. F. Arnoult, Captain E. G. Bach, III, Captain Mark Delesdernier, Jr. and Captain R. E. Ducros, Pilot Commissioners of the Crescent River Port Pilots Fee Commission, Intervenors.
    Nos. 81-C-1844, 81-CA-2395.
    Supreme Court of Louisiana.
    April 5, 1982.

      Gregory J. Avery, New Orleans, for relator.
    Frederick R. Tulley and Tom F. Phillips, Taylor, Porter, Brooks & Phillips, Baton Rouge, and Edward S. Bagley, Terriberry, Carroll, Yancey & Farrell, New Orleans, for plaintiff-appellee and for respondents.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellee and respondents.
    Joseph W. Nelkin, New Orleans, for in-tervenors-appellant and for relator.
   DENNIS, Justice.

This is a river port pilot rate case. The questions presented are: (1) whether the Public Service Commission, in the absence of an agreement between the pilots and the steamship industry, may exercise its regulatory authority in fixing pilotage fees; (2) whether the Public Service Commission’s order sets forth findings of fact and a statement of reasons from which a court can determine that there is a reasonable basis for the pilotage fees fixed.

In June, 1979 the Louisiana Public Service Commission was called upon by the industry and pilot commissioners of the Crescent River Port Pilot Fee Commission to revise rates and charges for services rendered by the river port pilots. After conducting hearings and receiving evidence, the Public Service Commission issued an order on August 4, 1980 by which it: (1) determined that twenty additional river port pilots are necessary to adequately serve shipping in the Mississippi River, the Mississippi River Gulf outlet and the Port of New Orleans; (2) ordered the Crescent River Port Pilots Association to expeditiously commission twenty additional river port pilots; and (3) adopted a new schedule setting fees for the services rendered by the river port pilots.

Dissatisfied with this result the industry commissioners of the Crescent River Port Pilots Fee Commission petitioned the Nineteenth Judicial District Court to reverse and set aside the Public Service Commission’s order. The pilot commissioners intervened seeking an amendment of the order to increase the fees allowed and the number of new pilots to be added.

The district court interpreted the Public Service Commission order to mean that twenty new pilots are authorized and mandated and that the additional funds realized from the new fee schedule are to be used to pay each pilot the same amount a pilot was making before the order. The court approved the Commission’s finding that twenty additional pilots are necessary to adequately serve the area between Pilottown and New Orleans. However, the court modified the effective date of the new fees in order to prevent a windfall to the veteran pilots. It provided that only one-twentieth of the new rate shall become .effective upon the commissioning of each new pilot. Also, it found that the Commission’s order arbitrarily allowed the pilots double compensation for boat service and reduced this amount accordingly.

The pilot commissioners of the Crescent River Port Pilots Fee Commission appealed to this court from the district court decision. The commissioners also applied for a writ of certiorari, which we granted and consolidated with the appeal.

The Role of the Public Service Commission in Pilot Fee Regulation

The Governor is authorized to appoint and commission river port pilots certified as qualified by the Board of River Port Pilot Commissioners for the Port of New Orleans. La.R.S. 34:992, 993. Commissioned river port pilots have the exclusive right to pilot vessels between Pilottown and New Orleans, within the Port of New Orleans, and on other inland waterway routes connecting with the port. La.R.S. 34:996. The pilots are authorized to organize by forming a river port pilots association. La.R.S. 34:995. See Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1946); Brechtel v. Board of Examiners of Bar Pilots, 230 F.Supp. 18 (E.D.La.1964); Hendrix v. Louisiana Public Service Commission, 262 La. 420, 263 So.2d 343 (La.1972); A. Parks, The Law of Tug, Tow and Pilotage, 513-519 (1971).

Originally, pilots’ fees were regulated directly by statute. La.R.S. 34:997-999. In 1968, however, the legislature established pilot fee commissions composed of four members of the pilots’ association and four members of the steamship industry. La. R.S. 34:1121. The pilot fee commissions have authority to fix “reasonable and just ... fees for pilotage services to ships and vessels, giving due regard to the length, draft and tonnage of the vessels .. ., the difficulty and inconvenience of the particular service and the skill required to render it, the supply of and demand for pilotage services, the public interest in maintaining efficient, economical and reliable pilotage service and other factors relevant to the determination of reasonable and just rates . La.R.S. 34:1122.

In the event that the pilot and industry commissioners are unable to resolve any dispute as to pilotage rates or any other legitimate business, the question may be referred to the Louisiana Public Service Commission by commissioners representing either pilots or industry. La.R.S. 34:1121. If the question of reasonable and just pilot-age fees or any other matter is so referred, the decision of the Public Service Commission shall constitute the decision of the pilot-age commission. Id.

Under this court’s previous interpretation of this statutory scheme, the Public Service Commission’s regulatory authority is invoked when the question of reasonable and just pilot fees or other matters are referred to it. Hendrix v. Louisiana Public Service Commission, 262 La. 420, 263 So.2d 343 (1972). Accordingly, in a case appealed directly from the district court, we held that pilot fees fixed by the Public Service Commission in default of an agreement by a majority of the pilot fee commission should be affirmed by the courts unless they are found to be arbitrary, capricious, or without support by evidence in the record. Id. 263 So.2d at 350.

The industry commissioners challenge our construction of the legislative aim. They argue that the statute only empowers the Public Service Commission to act as a tiebreaker in the event that a majority of the pilot fee commission is unable to agree upon rates. Accordingly, they contend that the Public Service Commission is not authorized to regulate pilot fees but must restrict itself to voting yes or no on fee schedules or other questions referred. Consequently, they urge, judicial review of the Public Service Commission’s decision in this capacity is not governed by the constitutional and statutory rules applicable to review of its actions as a regulatory authority.

In support of their arguments, the industry commissioners point to statutory provisions requiring the Public Service Commission to “serve as a member of each pilot fee commission in the event that the pilot and industry commissioners are unable to resolve any dispute as to pilotage rates,” La. R.S. 34:1121, and authorizing suits before “courts of competent jurisdiction” to contest the validity of any decision of the pilot fee commission. La.R.S. 34:1127. They contend these provisions indicate a legislative design under which the Public Service Commission acts as one member of the pilot fee commission and the fees fixed by the pilot fee commission are amenable to review by general judicial procedures.

Reexamination of the statute, however, convinces us that our original conclusion in Hendrix v. Louisiana Public Service Commission, supra, was correct. The legislative aim was to provide the Public Service Commission with additional regulatory authority and not merely to make it the functionary of a statutory board. The statute emphatically dictates that, if a question is referred to it, “[t]he decision of the Public Service Commission shall constitute the decision of the pilotage commission.” La.R.S. 34:1121. The Public Service Commission is authorized to decide any “legitimate business of the [pilot fee] commission” referred to it, La.R.S. 34:1121, which may include the fixing of “reasonable and just pilotage fees.” La.R.S. 34:1122. Its charter does not restrict it to voting yea or nay upon the fee schedules which may be submitted to it by one interest group or another represented on the pilot fee commission. To so hobble the Commission would prevent it from using its own expertise and exercising its independent judgment as to just and reasonable rates charged for an important public service. That the legislative aim was to relegate the Commission to such a minor role in a vital area of public service regulation is unlikely in view of its position as a constitutional regulatory authority and its historic dominance of rate-making in Louisiana. .

Furthermore, if the statute did not delegate regulatory authority to the Public Service Commission or call upon the courts to review its actions as a ratemaking body, several bizarre results would follow. An attempt by the Commission to adopt a rate schedule different from that upon which the industry and pilot commissioners had reached a tie vote would result in a failure of the pilot fee commission to take any action which could be reviewed. The courts would be forced to dismiss or remand any case appealed in which the Commission failed to cast a simple yes or no, tie-breaker vote. In any case, the administrative record made before the Public Service Commission could have little significance on judicial review since it could support only one out of nine votes on the pilot fee commission. We do not understand even the industry commissioners to argue for these strange consequences. They wish to have the case fall outside the Public Service Commission’s jurisdiction in order to avoid a direct review of the district court’s judgment by this court, but they either overlook or ignore the many other implications of their argument.

Article 4, § 21(B) of the 1974 Louisiana Constitution provides that the Public Service Commission shall regulate common carriers and public utilities “and have such other regulatory authority as provided by law.” For the reasons assigned, we conclude that the statutory scheme under consideration, La.R.S. 34:1121-1127, provides “other regulatory authority” to the Public Service Commission in cases in which the regular members of a pilot fee commission are unable to agree upon reasonable and just pilotage fees or any other legitimate business of the pilot fee commission. In essence, the statute provides that, in the absence of bargained pilot fees, the Public Service Commission shall regulate rates. Accordingly, appeals from actions by the Public Service Commission in regulating pilot fees are governed by Article 4, § 21(E) of the constitution, which provides that an appeal may be taken from any action by the Commission to the district court in its domicile and that a direct appeal from any judgment of the district court shall be allowed to the supreme court.

Our conclusions are consistent with the judicial review section of the pilot fee commission statute. La.R.S. 34:1127 provides that “[proceedings may be brought before courts of competent jurisdiction under state law for the purpose of contesting the validity of any decision of the [pilot fee] commission hereunder.” This section provides a rule of judicial review for a case in which the pilot fee commission decides a question by a majority vote without referring it to the Public Service Commission. Since the Public Service Commission is not empowered to serve as a member of the pilot fee commission merely for the purpose of casting its vote, but is authorized to exercise its own regulatory authority to fix rates in cases referred to it, appeals from its actions in regulating pilot fees are not governed by La.R.S. 34:1127 but by Article 4, § 21(E) of the constitution.

Judicial Review of the Public Service Commission’s Rate Order

In regulating fees for the public service of river pilotage it is evident that the Public Service Commission necessarily must follow a procedure similar to that which it employs in regulating the rates of a public utility. The Public Service Commission, when acting in place of the pilot fee commission, is charged with the responsibility of fixing and establishing “reasonable and just pilot-age fees.” La.R.S. 34:1122. The primary purpose of its rate making process is to set pilotage fees at such a level that the pilots’ revenues will be sufficient to permit them to both pay their legitimate operating expenses and to provide them compensation for their services and investment adequate to maintain efficient, economical and reliable pilotage service, giving due regard to the length, draft and tonnage of the vessels to be piloted, the difficulty and inconvenience of the particular service and the skill required to render it, the supply and demand for pilotage services, and other factors relevant to reasonable and just rate-making. La.R.S. 34:1122; see A. Parks, Law of Tug, Tow and Pilotage, 516-519 (1975). When this level is achieved the pilots’ revenues may be said to produce a fair rate of return, and rates which produce such a return are reasonable and just. Cf. So. Cent. Bell Tel. v. La. Public Service Comm’n, 352 So.2d 964 (La.1977); Jones, Judicial Determination of Public Utility Rates: A Critique, 54 B.U.L.Rev. 873 (1974); J. Bonbright, Principles of Public Utility Rates, 147-283 (1961); 1 A. Priest, Principles of Public Utility Regulation, 45-226 (1969).

In reviewing this rate making process the inquiry of the judiciary is generally confined to a determination of whether the Public Service Commission acted unreasonably or arbitrarily in establishing fees for pilotage services. Hendrix v. Louisiana Public Service Commission, supra; cf. So. Cent. Bell Tel. Co. v. Louisiana Public Service Commission, supra; Priest, supra at 436. As the United States Supreme Court, in assessing the Federal Power Commission’s performance of its statutory duty to fix “just and reasonable” rates, observed:

“If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important. Moreover, the Commission’s order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order under the Act carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences. * * * ” Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 288, 88 L.Ed. 333 (1944); So. Cent. Bell Tel. v. La. Public Service Com’n, 352 So.2d at 968.

Nevertheless, for purposes of judicial review, and in order to assure that the Commission has acted reasonably and in accordance with law, in a contested case involving complex issues, the agency is required to make basic findings supported by evidence and ultimate findings which flow rationally from the basic findings; and it must articulate a rational connection between the facts found and the rates fixed. Baton Rouge Waterworks v. Louisiana Public Service Commission, 342 So.2d 609 (La.1977); cf. Bowman Transportation Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974); Capital Transit Co. v. Public Utilities Commission, 213 F.2d 176, 187 (D.C.Cir.1954) (separate opinion by Stephens, C. J.), cert. denied 348 U.S. 816, 75 S.Ct. 25, 99 L.Ed. 643 (1954); 3 K. Davis, Administrative Law Treatise, 124, 130 (2d ed. 1978). For instance, a rate order establishing a pilot fee schedule should include findings supported by evidence of basic facts such as the pilots’ total revenues, expenses and investments during the test year; the pilots’ average annual earnings during the test year; the pilots’ estimated revenues, expenses, investments and average earnings for future years; the pilots’ work schedules and working conditions; the supply and demand for pilotage services; and any other basic facts affecting the maintenance of efficient, economical and reliable pilotage service. The order should include findings of ultimate facts, flowing from the basic findings, as to the fair average annual compensation for a pilot operating under similar working conditions and the rates necessary to produce such a return after subtracting legitimate expenses and a fair return on any capital investment of the pilots. Finally, the order should articulate reasons showing that there is a rational relationship between the rates fixed, the ultimate facts inferred, and the basic facts found and supported by evidence. A statement of reasons must be adequate to enable the court to determine whether the agency’s decision was reached for an impermissible reason or for no reason at all. For this essential purpose, although detailed findings of fact are not required, the statement of reasons should inform the court and the complaining party of both the grounds of decision and the essential facts upon which the agency’s inferences are based. Cf., Dunlop v. Bachowski, 421 U.S. 560, 571-572, 95 S.Ct. 1851, 1859-60, 44 L.Ed.2d 377 (1975); K. Davis, supra, p. 125.

In cases presenting only simple issues for judicial review, where the findings and reasons for the Commission’s action are necessarily implied by the record, and where our study of a brief administrative record readily yields sufficient evidence to support the administrative determination, we have refused to remand for the formality of having the agency make explicit its finding which was already self evident. Baton Rouge Waterworks v. Louisiana Public Service Commission, supra; see Central Louisiana Electric Co., Inc. v. Louisiana Public Service Commission, 370 So.2d 497 (La.1979). We will remand for the purpose of having the Commission make findings and state reasons, however, when we are unable to review the agency determination without them. As the United States Supreme Court has said, “while we may not supply a reasoned basis for the agency’s action that the agency has not given .. . we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation Inc. v. Arkansas-Best Freight, Inc., supra, 419 U.S. 281, 285-86, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974); See 3 K. Davis, Administrative Law Treatise, p. 130.

The Public Service Commission’s rate order merely sets forth its conclusions as to the increased rates which should be charged and the number of new pilots which should be commissioned. It does not contain any finding as to revenues, expenses or average annual earnings of pilots. Nor does it include any statement of reasons. The commission’s schedule of fees suggests that it did not accept the findings of basic facts urged by either party. The pilot commissioners presented evidence which tended to support larger increases in pilot fees and more additional pilots, whereas the industry commissioners’ evidence could have provided a basis for a reduction in pilotage fees. The Commission must have made different basic findings than those urged by the parties, or else it must have drawn different inferences for different reasons from the basic facts.

This is not a simple case in which the findings and.reasons for the Commission’s action are necessarily implied by the record. The Public Service Commission’s schedule of pilot fees sets forth over 60 different charges for pilotage, docking or undocking, shifting, trial trip, compass adjusting and calibrating R.D.F., detention and discharge, and transportation. Without findings of fact by the agency as to the frequency of each charge during the test year we are unable to determine the gross revenues which the fees are expected to yield. Without findings of fact as to the expenses and investment necessary to perform the services for which the fees are imposed we cannot calculate the net annual return to the pilots. In the absence of these basic findings and further ultimate findings and reasons, we cannot tell whether the Public Service Commission’s apparent conclusion that the fee schedule will produce a return which is adequate, and not deficient or excessive, is reasonable.

The industry commissioners, in an effort to carry their heavy burden of making a convincing showing that the Public Service Commission’s rate order is unjust and unreasonable in its consequences, present two arguments: That the pilot fee schedule is patently excessive as shown by the evidence proffered in the district court that one pilot had annual earnings in excess of $110,000 under the old fee schedule; and that the fee schedule is based upon a double reimbursement of boat expenses to the pilots. While the industry commissioners have not at this time persuaded us that the Commission’s fee schedule is unjust and unreasonable in its consequences, we are persuaded that in order to obtain the judicial review to which the industry commissioners are entitled, the Commission must provide some additional reasons for the agency decision. See Camp v. Pitts, 411 U.S. 138, 139, 93 S.Ct. 1241, 1242, 36 L.Ed.2d 106 (1973); Maine v. Kreps, 563 F.2d 1043 (1st Cir. 1977).

Decree

We conclude that the administrative record is inadequate for this court to decide either way on whether the Public Service Commission’s action was arbitrary, capricious or without support by evidence in the record. Nevertheless, because the circumstances of this case require continued effectiveness of the rate order and expeditious termination of the litigation, we will not remand the case but instead order the Public Service Commission to file in this court within thirty days a statement of the grounds of its decision and the essential facts upon which its inferences are based. Cf. Maine v. Kreps, 563 F.2d 1043 (1st Cir. 1977).

PUBLIC SERVICE COMMISSION ORDERED TO FILE FINDINGS AND REASONS.

APPENDIX

FOOTNOTE NO. 4

PILOTAGE

Pilotage between Pilottown and New Orleans or Light 98 on the Mississippi River Gulf Outlet and New Orleans and all Intermediate Points, or vice versa, per foot deepest Freshwater draft. $ 10.50

Minimum Pilotage (15 feet). 158.50

From Pilottown to Quarantine Anchorage, or between Quarantine Anchorage and Pilot-town, Weather delays and/or Government regulations excluded:

1) Vessels requiring up to 9 hours-regular pilotage fee.

PILOTAGE

2) Vessels requiring in excess of 9 hours but less than 12 hours-regular pilotage fee plus one-half pilotage fee, the one-half pilotage not to exceed the $140.25 minimum.

3) Vessels requiring in excess of 12 hours-two pilotage fees.

Pilotage service shall be considered completed when a Vessel arrives at the point without orders.

TONNAGE

Greater deadweight Tonnage for vessels of at least 21,000 DWT . . $ 34.00

Each 1,000 DWT in excess of 21,000 DWT, to at least 60,000 DWT, increments of. 4.15

Each 1,000 DWT in excess of 60,-000 DWT, increments of . 5.00

DISTANCE CHARGE

Each vessel piloted 80 miles or more, a distance surcharge based on the greater deadweight tonnage listed in Lloyd’s Register. (a) Vessels under 21,000 deadweight tons . $ 65.00

(b) Vessels 21,000 deadweight tons to 60,000 deadweight tons . 165.00

(c) Vessels over 60,000 deadweight tons. 265.00

DOCKING OR UNDOCKING

Docking and undocking vessels an additional fee based on the vessel’s overall length listed in Lloyd’s Register, as follows: Under 300 feet . $ O ic ^ H

300 feet and under 600 feet .. O o © CO

600 feet and over. O o © ^

Vessels shall not be charged docking and undocking fees whenever a shifting fee is earned.

DOCKING OR UNDOCKING

Docking vessels, head-down, an additional. $ 36.25

Undocking vessels from a head-down position, an additional . . . 36.25

Docking vessels stern first in Chalmette slip, an additional . . . 36.25

SHIFTING

1 Shifting from within the Industrial Canal between River side of Florida Avenue Bridge to the Locks on ships going to Sea. $ 75.00

2 Shifting within the Industrial Canal between Locks and Florida Avenue Bridge .. . 75.00

3 Shifting within the Industrial Canal between Lake side of Florida Avenue Bridge to Lake Pontchartrain, or vice-versa. 75.00

4 Shifting from Industrial Canal Locks to beyond Florida Avenue Bridge, or vice-versa . 95.00

5 Shifting from Quarantine Anchorage, General Anchorage, or City Front, into Industrial Canal, not beyond River side of Florida Avenue Bridge, or vice-versa . 127.00

6 Shifting from Quarantine Anchorage, General Anchorage, or City Docks to beyond Florida Avenue Bridge, or vice-versa . 140.00

7 From within the Industrial Canal to Michoud, either direction . 95.00

8 Harvey Canal Bridge to any wharf in Canal, back to Hero’s Cut, or vice-versa . . 75.00

9 Algiers extension to Hero’s Cut, or vice-versa. 75.00

10 Shifting within the Harvey Canal, or Algiers extension Area, either direction .... 75.00

11 Quarantine Anchorage, General Anchorage, or City Front into Harvey Canal, or vice-versa. 118.00

SHIFTING

12 Quarantine Anchorage, General Anchorage, or City Front, to Harvey Canal, River side of Hero’s Cut, via Algiers extension, or vice-versa. 140.00

13 Shifting from Anchorages, off of docks, below Meraux, to and including Poverty Point, or vice-versa . 95.00

14 Shifting from Anchorage, off of docks, below Poverty Point to and including Venice, or vice-versa . 115.00

15 Miscellaneous Fees, All shifts within the HARBOR OF NEW ORLEANS (Southport to Meraux) .... 92.00

Dead Ships to be charged a double shifting fee.

TRIAL TRIP, COMPASS ADJUSTING AND CALIBRATING R.D.F.

16 Trial trip, within harbor, time limit three (3) hours. $ 88.50

Thereafter, per hour. 15.50

17 Trial trip, outside harbor, and return to New Orleans each wav. Minimum. 161.50

18 Calibrating R D F. 75.00

19 Compass Adjusting. 75.00

20 Calibrating Radio Direction Finder and Compass adjusting, in sequence. 110.50

21 For return of vessel to any wharf after calibrating Radio Direction Finder, or Compass adjusting, or both, regular shifting fee shall apply.

22 For Vessels departing from any City Front Wharf, with orders to anchor at Quarantine Anchorage or General Anchorage, after Radio Direction Finder or Compass adjusting, a regular shifting fee from point of departure shall apply.

DETENTION AND DISCHARGE

23 In the event a pilot is detained more than one hour for any cause except weather or awaiting berths, a detention charge shall apply and be paid per hour, or fraction thereof, including payment for the first hour up to and including the fourth hour . $ 15.50

DETENTION AND DISCHARGE

24 In the event a pilot is detained more than four hours , for any cause except weather or awaiting berth, the detention charge for each hour, or fraction thereof, after the fourth hour shall be. 34.50

25 Discharge from within the Port of New Orleans . 30.75

26 Discharge from without the Port of New Orleans . 43.00

27 Whenever a vessel has to stand by or anchor more than 20 minutes off berth because berth is occupied, detention shall be charged for each hour or fraction thereof, from arrival off berth . 15.50

28 If delayed beyond two hours the prescribed shifting fee shall be charged in lieu of detention, for each hour, or fraction thereof, beyond the third hour, detention charge 15.50

29 For each hour, or fraction thereof, beyond the fourth hour, detention charge .... 34.50

TRANSPORTATION

For proceeding to and from:

INDUSTRIAL CANAL:

30 Turning Basin, including Galvez St., Florida Ave. and Cement Plant Wharves. $ o iq 05

31 Pendleton, Delta and Higgins . o in 05

32 Seabrook . o p c4

33 Michoud. o oo co

DOWN RIVER:

East Bank:

34 Chalmette Slips. $ 9.50

35 Standard Oil, Meraux, Ten-neco . 9.50

TRANSPORTATION

36 Braithwaite . 22.00

37 Port Nickel. 26.50

38 Davant . 43.75

West Bank:

39 Navy Ammunition Dump, Yeast Plant, Seatrain and Concord Explosive Anchorage, Oak Point, Oak-ville . 27.50

40 Myrtle Grove, Alliance . .. 35.75

41 Port Sulphur . 39.75

42 Ostrica. 43.75

43 Venice . 58.00

UP RIVER:

East Bank:

44 Southport . 12.00

West Bank:

45 Harvey River Front Docks 12.00

46 Harvey Canal. 12.00

47 Algiers Canal. 12.75

48 Marrero, Perry Street, Gulf Gretna, S. P. Gretna .... O o

49 Westwego. O o

Rates to apply to Transportation for Pilots either to or from the above points.

50 Whenever it is necessary for a Pilot to use Boat Service, to board or leave a vessel, the cost thereof shall be paid by the vessel.

When pilot services are timely offered and refused, said vessel shall pay such charge. These pilotage charges shall bear as a lien upon the vessel subject thereto.

Said river port pilots shall also be entitled to enter into agreements with the masters or owners of ships and vessels for special services and the hire of boats and equipments, and the like, at such rates for such sums as may be agreed between them.

Vessels of one hundred tons or under, lawfully engaged in coast-wise trade of the United States shall not be required to take a pilot, unless the master of such vessel demands pilot service.

      . Pending the appeal, the difference between the pilotage rates before the order and the rates in effect after the order have been deposited in an escrow account established by the district court. Giallanza v. Louisiana Public Service Commission, 389 So.2d 1127 (La.1980).

      . The district court concluded that the Public Service Commission found that the pilots should earn $85,047.00. We are unable to understand upon what basis the district court made this conclusion. The record is devoid of any statement by the Commission that the pilots should earn this amount. Moreover, we are unable to determine from the voluminous record that the Commission necessarily made such a finding.

      . The parties stipulated that, if called to testify in the district court proceeding, Louis S. Quinn, Executive Secretary of the Louisiana Public Service Commission, would testify in accordance with his affidavit and attached documents which were filed into the record. From Mr. Quinn’s affidavit and attached document we gather that the commission found the following facts: On June 7, 1979 the industry commissioners petitioned the Louisiana Public Service Commission to enter into proceedings to resolve an issue between themselves and the pilot commissioners. The industry commissioners in their petition claimed that the Crescent River Port Pilots’ average earnings for 1979 was $80,-272.00 per pilot. They contend this is well above the $66,463.00 per pilot figure awarded by the Nineteenth Judicial District Court in a previous case. The industry commissioners proposed to eliminate the surcharge on vessels piloted 80 miles or more. The industry commissioners also contended that even without the surcharge the pilots would average $71,-712.00 annually.
      The pilot members of the fee commission responded by filing their own certification requesting an increase in pilotage rates and the number of pilots to be funded. The pilots requested an increase in pilotage charges over a two year period, 1980 and 1981. For the year 1980 the pilots requested an increase in annual gross revenues of $2,148,100.00. This amount was to be generated by:
      a) Increasing draft charges by 18.7% amounting to $ 969,785
      b) Increasing tonnage charges by 11.2% amounting to 354,796
      c) Increasing docking and undock-ing charges by 29.8% amounting to 41,336
      d) Increasing harbor moves charges by 20.8% amounting to 41,415
      e) Increasing transportation charges by 20.8% amounting to 31,788
      f) Increasing distance charges by 52.3% amounting to 694,897
      The proposed increase in distance charges is to fund 7 new pilots
      g) Increasing other charges by 20.8% amounting to 14,083
      Total requested increase for year 1980 $ 2,148,100
      The pilots projected, with the increased annual growth revenues of $2,148,100, the net distributable income to pilots would be $1,906,-540.00. This net distributable income of $1,906,540.00 added to the net distributable income for the test year of $6,917,162.00 would result in a net distributable income for prospective year 1980 of $8,823,702.00. If no pilots were added, the present 82 pilots would average $107,606.00. With the addition of seven new pilots, as proposed by the pilot commissioners, in 1980 the total number of pilots would be 89, with an average income for each pilot of $99,143.00. Average income per pilot for the test year September 1, 1978 through August 31, 1979 was $85,047.00. The $99,-143.00 projected average income per pilot for year 1980 reflects a 16.6% increase over the test year figure. For the year 1981 the pilots requested an increase in annual gross revenues of $1,442,792.00 over prospective year 1980. They propose that this amount be generated by:
      a) Trended increase in draft charges over prospective year 1980 of 85,448
      b) Trended increase in tonnage charges over prospective year 1980 of 163,054
      c) Trended decrease in docking and undocking charges under prospective year 1980 of (17,763)
      d) Trended decrease in harbor moves charges under prospective year 1980 of (12,047)
      e) Increasing distance charges by 60.9% over prospective year 1980 changes amounting to 1,224,100
      The proposed increase in distance charges is to fund an additional 28 new pilots.
      Total requested increase for year 1981 over prospective year 1980 $ 1,442,792
      The pilots projected, with the increased gross annual revenues of $1,442,792 the net distributable income to the pilots would be $1,289,-034.00.
      The distributable income of $1,289,034.00 added to the net distributable income of the prospective year 1980 of $8,823,702.00 results in a new distributable income for prospective year 1981 of $10,112,736.00. With the addition of 28 new pilots in 1981, as proposed by the pilots’ commissioners, the total number of pilots would be 117, with an average income for each pilot of $86,434.00. Average income per pilot for the test year September 1, 1978 through August 31, 1979 was $85,047.00. The $86,434.00 projected average income per pilot for year 1981 reflects a 1.6% increase over the test year figure.

      . See appendix.

      . The other arguments raised by the industry commissioners are clearly without merit. The Public Service Commission has the authority to establish any pilotage fees, including new categories of charges, as long as they are reasonable, and just, and otherwise in accordance with La.R.S. 34:1122. Although the Public Service Commission may not order the Governor to commission new pilots, it may fix rates contingent upon the creation of new pilot positions if they are necessary, and we construe the rate order in this case as expressing such an intention.
      The pilot commissioners’ contentions that the district court erred in modifying the Public Service Commission’s order may have merit. However, an evaluation of these arguments should await the filing of the findings and reasons of the Public Service Commission.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Travis Eugene BARKLEY and Joey Lum Barnes.
    No. 81-KA-2176.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied July 2, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
    Charles Gary Blaize, and Warren J. Dai-gle, Jr., Houma, of Indigent Defender Bd., for defendants-appellants.
   LEMMON, Justice.

Defendants Barkley and Barnes have appealed from convictions of forcible rape and simple rape and sentences at hard labor of 40 and 15 years respectively. The principal issue is whether the trial court erred in denying defendants’ motion to sever their trials.

I.

Donna Emmell, the victim, and her boyfriend, Steve Archer, hitchhiked into Hou-ma. After eating a meal they earned by washing dishes, they walked outside the restaurant and met Barkley, who invited them to smoke marijuana. In the course of conversation while smoking marijuana, Barkley invited them to spend the night at Nolan Naquin’s trailer in Chauvin.

The trio then drank several beers at various bars before meeting Naquin and going to the trailer at about 8:30 p. m. Barnes joined them later for seafood and more beer. During the evening the police called at the trailer in response to a complaint about loud stereo music, and after their departure Barkley exhibited a shotgun and proclaimed that he had always wanted to kill a cop.

Several hours later Naquin whispered to Miss Emmell that Barkley and Barnes “want to get over on you” and told her that nothing would happen if she and Archer stayed in the back bedroom. The couple followed Naquin’s advice and retired. Barkley burst into the room and took some shotgun shells off the dresser, but left immediately.

A short time later Barkley entered the room again and pointed a shotgun at Miss Emmell, telling her to go into the next room and take her clothes off because “Nolan wants you to give him what he wants”. When Miss Emmell went into the next room, Naquin told her to remain there while he talked to Barkley and Barnes, hoping they would fall asleep.

Later Barkley entered the room and told Miss Emmell he was going to blow Archer’s head off if she did not go to bed with him. Fearful for Archer’s safety, she complied with Barkley’s demand. After the act Barkley said “I can’t believe I made you do this.” Barkley then went to the living room, where Miss Emmell heard him say something about dropping bodies in the bayou.

Barnes then entered the room and told Miss Emmell he wasn’t crazy like the others, but was going to force her to have sex anyway. Even more frightened by this time, Miss Emmell again submitted to sexual intercourse. Barnes later said “I hope you can forgive me for this.”

Naquin advised Miss Emmell and Archer to leave, and he drove them back to Houma, where Archer called the police. Both defendants were subsequently arrested.

II.

Before trial Barnes filed a motion for severance, asserting that he could not obtain a fair trial if tried jointly with Barkley. He also alleged that he desired to call Barkley to testify on his behalf, but that a joint trial would conflict with Barkley’s right against self-incrimination.

On the date scheduled for trial, both defendants argued that their trials should be severed. Barkley argued that his right to compulsory process was being denied, in that he could not call Barnes to testify since Barnes could not be forced to testify at his own trial. Barnes argued similar grounds in support of his motion.

The trial court denied the motion to sever, and the case proceeded to trial. At the end of the evidence, but before closing arguments, defendants reurged their motion to sever. The trial judge conducted a hearing, at which Barkley called Barnes to the witness stand solely for purposes of this motion. Barnes testified: He had heard the testimony presented in court, and he had been apprised of the elements of forcible rape by his attorney. He had not planned to testify in this trial, because the testimony would open him up to cross-examination by the state, but he would take the stand if there was a separate trial. He possessed information favorable to Barkley, specifically that Barkley had never used the alleged shotgun and that he and Barkley both had sexual intercourse with Miss Em-mell, with her consent.

When Barnes completed his testimony on the motion, Barkley took the stand and supported Barnes’ version of the facts. He also testified that he never saw Barnes with a gun and never saw him threaten Miss Emmell.

Both defendants admitted that they had never told this story before, even though they had been given ample opportunity to do so. At the conclusion of this evidence, the trial judge once again denied the motions, commenting that the testimony was incredible.

On appeal, defendants contend that the denial of the motion to sever was an abuse of discretion, because of the exculpatory nature of each codefendant’s testimony. They contend that the denial of the motion eliminated all possibility of each defendant’s calling the only witness who could testify on his behalf and therefore denied each the constitutional right to a fair trial.

C.Cr.P. Art. 704 provides that jointly charged defendants shall be tried jointly, unless the state elects to try them separately or the court, after a contradictory hearing, is satisfied that justice requires a severance. Whether “justice requires a severance” must be determined by the facts of each case. State v. Thibodeaux, 315 So.2d 769 (La.1975). However, the mere allegation that the defenses will be antagonistic is not sufficient to require a severance. State v. Thibodeaux, above.

Here, defendants do not base their arguments on antagonistic defenses. Rather, each claims the other can present exculpatory evidence. Denial of a severance may be an abuse of discretion if the defendant establishes that the co-defendant would testify at a separate trial and would present exculpatory evidence. See State v. Turner, 365 So.2d 1352, 1354 (La.1978), citing C.Cr.P. Art. 704, Official Revision Comment (c)(2); 8 Moore’s Federal Practice § 14.04(4) 2d ed. 1981); 1 C. Wright, Federal Practice and Procedure: Criminal § 225 (1965).

In the present case, however, as in Turner, each defendant failed to establish (despite the testimony at the hearing on the motion to sever) the probability that the other would in fact testify at .a separate trial and present exculpatory evidence. The proposed testimony by Barnes — that both defendants had consensual intercourse with the victim — would have been a highly self-incriminating statement on Barnes’ part at Barkley’s trial, and the trial judge properly regarded as highly unlikely Barnes’ declaration, that he would not invoke his constitutional privilege in a separate trial.

Furthermore, the exculpatory evidence in this case (in which one defendant in order to testify at the trial of the other must place himself at the scene of the alleged crime and must admit several of the elements of the offense charged against him) is vastly different from exculpatory testimony such as, for example, that he and the codefendant were together in Texas at the time of the alleged crime. Denial of the opportunity to call a codefendant as the sole alibi witness may well be sufficiently prejudicial to establish an abuse of discretion in denying a severance of trial. But we cannot say that the trial judge erred in concluding that one defendant would not likely have incriminated himself at a separate trial in order to establish the other’s innocence or that the denial of the motion to sever in this case was so prejudicial as to constitute an abuse of discretion.

Ill

Defendant Barkley contends, by a supplemental pro se assignment, that the trial court erred in imposing a sentence in excess of that discussed in plea bargain negotiations.

There is no record concerning defendant’s allegations, which he contends occurred in the trial judge’s chambers. Defendant alleges, however, that before the jury was chosen, he rejected an offer to plead guilty to forcible rape and receive a sentence of 15 years; that a second plea bargain of 12 years was offered during the lunch recess on the day of trial; and that after the state rested its case, the judge reasserted his offer of a 12-year sentence. Furthermore, Barkley alleges, codefendant Barnes, throughout these negotiations, was first offered 10 years and then eight years for forcible rape. Both defendants rejected these plea bargain offers and asserted their right to stand trial before the jury.

Defendant Barkley further alleges that his attorney told him that if they did not take the deal and were convicted, the judge was going to sentence them to the maximum amount of time, but that the defendants still refused to plead guilty. After conviction the trial judge sentenced Barkley to 40 years at hard labor and Barnes to 15 years at hard labor.

Defendant’s argument is that the trial judge punished him for standing trial by imposing a greater sentence than was offered in the plea bargain negotiation after the judge had heard all of the evidence. However, the primary sentencing considerations include not only the circumstances of the particular offense, but also the individual circumstances concerning the particular offender.

This offender was a convicted felon with a lengthy criminal record, including convictions or arrests for robbery, battery, forgery, several counts of armed robbery, kidnapping, burglary and contributing to the delinquency of a juvenile. The trial judge considered these factors in sentencing, which perhaps did not become known to him until after the plea bargain offer. Moreover, Barkley does not even contend that the sentence is constitutionally excessive or unjustified in light of his record, and a trial judge’s preconviction offer of a lenient sentence should not be viewed as setting a limit for the justifiable sentence after conviction. State v. Frank, 344 So.2d 1039 (La.1977). Finally, the merits of Barkley’s contention that he was penalized for exercising his constitutional right to stand trial cannot be determined by direct appeal based on this record, but may be raised by other appropriate procedures.

The convictions and sentence are affirmed.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nestor L. Currault, Jr. of the 24th Judicial District Court participated in this decision as Associate Justices ad hoc, joined by Associate Justices Calogero, Dennis, Blanche and Lem-mon.

      . The remaining assignments of error involve only settled principles of law and are treated in an unpublished appendix attached to this opinion.


author: BLANCHE, Justice. DENNIS, Justice,

text:
    Lucius DOUCET, D.D.S. v. DENTAL HEALTH PLANS MANAGEMENT CORPORATION and Guaranty Income Life Insurance Company.
    No. 81-C-2268.
    Supreme Court of Louisiana.
    April 5, 1982.

      Charles Emile Bruneau, Jr., Christenber-ry & Bruneau, Ltd., New Orleans, Dale R. Baringer, Bryan, Schaneville & Baringer, Baton Rouge, for relator.
    Patrick C. Morrow, James P. Ryan, Morrow & Morrow, Opelousas, for respondents.
   BLANCHE, Justice.

Plaintiff dentist, Lucius Doucet, brought suit in the parish of his domicile against defendant Dental Health Plans Management Corporation, alleging that it had breached its contract to pay him fees for dental services he provided to the insureds of its related corporation, Guaranty Income Life Insurance Company, under a dental health plan. In the same suit plaintiff joined as defendant Guaranty Income Life Insurance Company, alleging that, as the underwriter of the dental health plan, it was also responsible to him for payment of his claim.

Defendant, Dental Health, filed a dilatory exception of prematurity on the ground that the contract sued upon requires plaintiff’s claim to be submitted to arbitration. Both defendants filed declinatory exceptions of venue, contending that the suit should have been filed in the parishes where the defendant’s registered offices are located. The trial court overruled all exceptions, and the court of appeal denied writs.

Denial of the exception of prematurity was premised upon the trial court’s conclusion that the contract between plaintiff and Dental Health is a contract of insurance. Classification of the contract at issue as an insurance contract renders the arbitration provisions of that contract unenforceable under R.S. 22:629. See Macaluso v. Watson, 171 So.2d 755 (La.App. 4th Cir. 1965), appeal after remand, 188 So.2d 178 (La.App. 4th Cir. 1966). We cannot agree that the contract sued upon is a contract of insurance and, accordingly, we reverse.

The contract between the plaintiff dentist and Dental Health Plans Management Corporation, titled “Dental Professional Service Agreement”, is primarily an agreement by the plaintiff to provide dental services to the insureds under a dental health insurance policy. A very small part of the remuneration received by the plaintiff in return for these services is in the form of a Key Man insurance agreement, the cost of which is borne by the defendant. That insurance agreement is attached and designated as a supplement to the Dental Professional Service Agreement. However, provision for this insurance agreement and its attachment to the contract sued upon does not transform that contract into one of insurance.

The plaintiff’s suit is not based upon his status as an insured under a contract of insurance. Plaintiff seeks to recover fees due to him for services rendered pursuant to a professional service agreement. That contract provides that any dispute arising out of the agreement or its breach shall be submitted to arbitration. As the professional service agreement cannot be classified as a contract of insurance, its arbitration provisions are fully enforceable. Plaintiff instituted this suit in the district court without first submitting his claim to arbitration. His suit should, therefore, have been dismissed upon the exception of no right of action raised by defendant, Dental Health.

Our holding that the contract sued upon is not a contract of insurance also mandates reversal of the trial court’s ruling on the exception of improper venue. The general venue rule requires that an action against a domestic corporation, or a domestic insurer, shall be brought in the parish where its registered office is located. C.C.P. art. 42(2). Plaintiff filed suit in his own domicile, however, relying upon the exceptions provided by C.C.P. art. 76. That article provides that an action to recover benefits under a life, health and accident, or other type of insurance policy may be brought in the parish where the beneficiary is domiciled. These exceptions are clearly inapplicable to the plaintiff’s suit for damages caused by the breach of a professional services agreement.

Because the suit does not come under any exception to the general venue rule, it is governed by Article 42 of the Code of Civil Procedure, and plaintiff’s suit should have been filed in the parish or parishes where defendant’s registered offices are located. See Herring v. National Reserve Life Insurance Company, 104 So.2d 264 (La.App. 1st Cir. 1958).

For the foregoing reasons, the trial court judgment overruling the exceptions of no right of action and improper venue is reversed.

DENNIS, J., concurs in part and dissents in part with reasons.

WATSON, J., dissents.

DENNIS, Justice,

concurring in part and dissenting in part.

I respectfully concur in part and dissent in part.

Except to note that “a very small part” of the contract between the plaintiff dentist and Dental Health is in the form of an insurance agreement, the majority opinion fails to furnish any explanation of why this is not an insurance contract, viz., a contract whereby one undertakes to indemnify another or pay a specified amount upon determinable contingencies. La.R.S. 22:5. I believe that the contract sued upon is an insurance contract and that its arbitration clause cannot be enforced to deprive the courts of jurisdiction. La.R.S. 22:629, in pertinent part, provides:

A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation or agreement:
* * * * * *
(2) Depriving the courts of this state of the jurisdiction of action against the insurer ....
******
B. Any such condition, stipulation or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provision of the contract.

The contract between the plaintiff dentist and Dental Health Plans Management Corporation is primarily an agreement by the plaintiff to provide dental services to insureds under Guaranty Income Life Insurance Company’s dental insurance policy for remuneration. Additionally, however, as further remuneration, the corporation agreed to provide death benefits covering the life of the plaintiff dentist payable to his beneficiary or designee. La.R.S. 22:5 defines insurance as a contract whereby one undertakes to indemnify another or pay a specified amount upon determinable contingencies. See Francis v. Texas & Pacific Railway Employees Hospital Association, 148 So.2d 118 (La.App.3d Cir. 1963). Accordingly, the corporation having agreed to pay specific benefits in the event of the dentist’s death, the contract at issue is an insurance contract under the terms of La. R.S. 22:629 and the arbitration clause contained therein is void and unenforceable. See Macaluso v. Watson, 171 So.2d 755 (La.App. 4th Cir. 1965), appeal after remand, 188 So.2d 178 (La.App. 4th Cir. 1966).

I agree, however, that the trial court’s decision overruling the exception of venue should be reversed. The general venue rule requires that an action against a domestic corporation, or a domestic insurer, shall be brought in the parish where its registered office is located. La.C.C.P. art. 42(2). Plaintiff filed suit in his own domicile, however, relying on the exceptions provided by La.C.C.P. art. 76. The action was brought in a court of improper venue because the suit does not fall within any of the exceptions.

La.C.C.P. art. 76 provides:

An action on a life insurance policy may be brought in the parish where the deceased died, the parish where he was domiciled, or the parish where any beneficiary is domiciled.
An action on a health and accident insurance policy may be brought in the parish where the insured is domiciled or in the parish where the accident or illness occurred.
An action on any other type of insurance policy may be brought in the parish where the loss occurred or the insured is domiciled.

The allegations and prayer of plaintiff’s petition are for the recovery of money due under a contract whereby the defendants are obliged to pay him fees for dental services he has provided to insureds. He does not allege a cause of action to recover insurance benefits based on the death of a person covered by a life insurance policy or because of an accident or illness covered by health and accident insurance. He does not allege a cause of action for loss covered by any other type of insurance policy. His petition does not contain any allegation from which it may be inferred that it is a suit based upon his status as an insured. Because the suit does not come under any exception to the general venue rule, it is governed by Article 42 of the Code of Civil Procedure, and plaintiff’s suit should be filed in the parish or parishes where defendants’ registered offices are located. See Herring v. National Reserve Life Insurance Co., 104 So.2d 264 (La.App. 1st Cir. 1958).

This court should affirm the trial court judgment insofar as it overruled the exception of prematurity and reverse the part of its decree which overruled the exception of improper venue. The exception of improper venue should be sustained, and the case should be remanded to the trial court for it to determine, pursuant to La.C.C.P. art. 121, whether to dismiss the action or in the interest of justice to transfer it to a court of proper venue.

Accordingly, I respectfully concur in part and dissent in part.

      . The exception was improperly denominated as an exception of no right of action. See Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La.1978).

      . R.S. 22:629, in pertinent part, provides:
      A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation or agreement:
      * * * # # *
      B. Depriving the courts of this state of the jurisdiction of action against the insurer...


author: PER CURIAM.

text:
    STATE of Louisiana v. Mark LEJEUNE.
    No. 81-KA-1922.
    Supreme Court of Louisiana.
    April 16, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., M. Gregory Ar-nette, Jr., Dist. Atty., James Stainback, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Donald Mayeux, of Guillory, McGee & Mayeux, Eunice, for defendant-appellant.
   PER CURIAM.

On November 25, 1980 defendant Mark Lejeune was charged in separate bills of information with five counts of theft, in violation of La.R.S. 14:67. The basis of the charges was a series of unauthorized entries into privately owned vehicles located in the parking lot of the Elton School in Elton, Louisiana on the evening of October 31, 1980. At his arraignment on March 17, 1981, defendant pleaded guilty to all charges and received concurrent terms of two years’ imprisonment at hard labor on each count. He now appeals these sentences to this Court, complaining that they are excessive, La.Const.1974, Art. 1, § 20, and inadequately supported by the trial court’s statement of sentencing reasons, La. C.Cr.P. Art. 894.1. Finding merit in this contention, we vacate the sentence imposed and remand for resentencing.

At the time of these offenses, Lejeune was a nineteen-year-old with no prior adult or juvenile criminal record beyond minor traffic offenses. He had a consistent work history and a favorable community reputation. Defendant had made restitution to all victims of his crimes. Despite this apparent evidence of mitigation, the trial court emphasized only “the seriousness of this defendant’s crime;” adding that the defendant “is going to the penitentiary because we must stop this in this parish.” There is little other discussion of the basis for sentence apart from references to the pain and suffering brought upon victims of such crimes and the families of the perpetrators.

Our Court’s review must analyze the defendant’s sentence to determine if the trial court has abused its discretion in imposing the sentence. State v. Bing, 410 So.2d 227 (La.1982); State v. McDermitt, 406 So.2d 195 (La.1981); State v. Bourgeois, 406 So.2d 550 (La.1981). Moreover, this Court determined in State v. Cox, 369 So.2d 118, 121 (La.1979), that it “. . . may vacate a sentence and remand for resentencing, when the reasons for an apparently severe sentence in relation to a particular offender and the actual offense committed do not appear in the record.” See also, State v. Russell, 397 So.2d 1319, 1325 (La.1981). In the present case, the serious nature of defendant’s conduct, for which he was given a penitentiary sentence, must be considered along with any mitigating factors presented. While the trial court need not articulate every aggravating and mitigating circumstance enumerated under La.C.Cr.P. Art. 894.1, the record must reflect that it adequately considered those guidelines in particularizing the sentence to the accused. State v. Grey, 408 So.2d 1239 (La.1982); State v. Franks, 373 So.2d 1307 (La.1979). Absent such consideration, we lack appropriate criteria by which to measure whether this sentence is excessive under our state constitution. State v. Smith, 389 So.2d 1262 (La.1980); State v. Dye, 384 So.2d 420 (La.1980); State v. Kenner, 384 So.2d 413 (La.1980).

In the instant case the trial court has failed to explain properly its sentencing considerations and the factual basis therefor. Accordingly, we affirm defendant’s conviction, but vacate the sentence imposed and remand the case for resentencing in accordance with law.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.

LEMMON, J., dissents.