author: STOKER, Judge. DOMENGEAUX, Judge,

text:
    Raymond DURR, Et Al., Plaintiffs-Appellees, v. James BLUE, Et Al., Defendants-Appellants.
    No. 83-716.
    Court of Appeal of Louisiana, Third Circuit.
    July 17, 1984.

      Harrington & Harrington, C. Rodney Harrington, Natchitoches, for defendant-appellant.
    Sarah J. Campbell, Kisatchie Legal Service Corp., Natchitoches, for plaintiff-appel-lee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   STOKER, Judge.

The issues before us in this appeal concern the paternity of three minor children, the validity of an act of adoption by which defendants purported to adopt the three children, and the award of custody of the children to their alleged biological father. The trial court found that (1) Raymond Durr was the biological father of the three minor children, (2) the act of adoption by which James and Hazel Blue attempted to adopt the children was null and void, and (3) Raymond Durr is entitled to custody of the children. Defendants, James and Hazel Blue, appeal and we affirm.

FACTS

The three children who are the subjects of these actions are Sue Ann Durr, born August 21, 1972, Leslie Dianne Durr, born March 30, 1975, and Misty Raye Durr, born December 29, 1976. Each child’s birth certificate shows Raymond Durr as her father. The children’s mother is Donna Sue Ammons.

Ms. Ammons married Victor Anders on August 2, 1971, and lived with him only a short time. She met Raymond Durr in the early part of December of that same year, and they began living together as husband and wife. Ms. Ammons and Mr. Anders were not legally separated or divorced during the period she lived with Mr. Durr, which was from December of 1971 until January of 1977. During that time Mr. Durr and Ms. Ammons had brief separations; and when Mr. Durr was released from prison in December of 1976, after serving three months, they no longer lived together.

By documents dated July 11 and 12, 1977, Ms. Ammons and her legal husband, Victor Anders, transferred custody of the children to the Blues. One of the documents signed by Mr. Anders and Ms. Am-mons states in part:

“Victor Lee Anders is the legal father of said children because the marriage has never been judicially separated or divorced. However, Victor Lee Anders is not the actual father of said children.”

By documents dated November 8, 1978, Ms. Ammons stated that she wished to remove the children from the custody of the Blues and place them with Raymond Durr and his new wife, Doris. A portion of one of the documents reads as follows:

“Appearer [Ms. Ammons] does further, and by these presents, agree that RAYMOND DURR, who is the biological father of these children, and who has raised them from their birth, is and should be entitled to full custody and control of these children and Appearer does hereby consent and agree to their adoption by RAYMOND DURR and DORIS DURR at whatever time they choose.”

The Blues apparently refused to relinquish custody of the girls to the Durrs, and the Durrs filed a writ of habeas corpus seeking custody of the girls on December 12, 1978. The Blues reconvened seeking custody, and Ms. Ammons joined the suit as a party-plaintiff on January 17, 1979, asking that custody be given to Raymond Durr. On January 31, 1979, all parties asked that the matter be held in abeyance until April 1, 1979, in order to give them an opportunity to reach a settlement.

On December 18, 1979, Mr. Durr filed a motion seeking visitation privileges, and a hearing was set for January 25, 1980. On January 24, 1980, the Blues obtained a continuance of the matter on the basis that Hazel Blue had just undergone surgery and could not appear. In a separate proceeding before another trial judge, the Blues filed a petition for adoption of the children on January 24, 1980, the same day the continuance was sought in the suit before us here. An affidavit of consent was filed in the adoption case signed by Ms. Ammons and Mr. Anders. A final decree of adoption was rendered on March 26, 1980. It is not disputed that Mr. Durr had no notice of these adoption proceedings.

On December 18, 1981, Raymond and Doris Durr filed a petition for a rule to show cause why they should not have visitation privileges. In response, the Blues filed an exception of no right or no cause of action claiming that Victor Anders was the legal father of the girls and they had become the adoptive parents. The matter was again continued on motion of the Blues and on December 29, 1982, after obtaining new counsel, the Durrs filed a motion seeking to have the adoption declared null and again seeking custody of the girls. The Blues again filed an exception of no right of action making the same allegations. Judgment was rendered in favor of the Durrs, as previously stated, and this appeal followed:

The matters before us for determination are:

1. Whether or not Raymond Durr is the biological father of Sue Ann, Leslie, and Misty,
2. Whether or not the adoption proceeding by the Blues is valid, and
3. Whether the Durrs are entitled to custody.

PATERNITY

In support of their exception of no right or cause of action, the Blues assert that because of the presumption established in LSA-C.C. art. 184 Raymond Durr cannot sue for custody or attack the adoption. Article 184 provides:

“The husband of the mother is presumed to be the father of all children born or conceived during the marriage.”

It is not disputed that at the time of each child’s birth Ms. Ammons was still married to Victor Anders, although physically separated from him. However, Louisiana courts have recognized that there can be cases in which children may enjoy dual paternity rights. Warren v. Richard, 296 So.2d 813 (La.1974) and Succession of Mitchell, 323 So.2d 451 (La.1975). These cases involve children whose fathers were presumed to be the husbands of their mothers, but who were in fact the biological children of other men. In Warren, the Court recognized the right of a child to recover for the wrongful death of its biological father, and in Mitchell the Court recognized that children have rights to the succession of their biological father. In both cases, there had been no disavowal action by the husband of the mother who was presumed to be the legal father of the children, thus leaving a situation in which the children could possibly enjoy dual paternity rights. In regard to this problem, the Court in Warren made these comments:

“The argument is made that this result will accord more rights to this child than are ordinarily accorded the legitimate child — that she will be able to recover for the death of her biological father as well as for the death of Albert Gray, because the law deems her his legitimate offspring. However, this concept is not unique to our law. It is specifically provided that the adopted child, upon his adoption, is not divested of his right to inherit from his blood parents while at the same time he inherits from the adoptive parent. La.Civil Code art. 214.
“We are not unmindful of the problems a logical extension of these holdings may create, such as a child in these circumstances recovering from both fathers for support and maintenance, or, conversely, requiring the child to support both fathers in a proper case. La.Civil Code arts. 227, 229. But we are influenced in this decision by the constitutional principles announced by the United States Supreme Court to which we adhere.”

It can be seen from the above discussion that the presumption provided for in Article 184 has not been inflexibly construed so as to deny the rights of children whose fathers were in fact not the husbands of their mothers. Likewise, we do not believe that it should be construed so as to automatically deny the parental rights of a biological father, particularly in a case such as this where there is substantial proof of paternity, and there is no serious claim that the husband of the mother is the biological father of the children.

In an action to disavow, a husband who is presumed to be the father under Article 184 may succeed by proving by a preponderance of the evidence any facts which reasonably indicate that he is not the father. LSA-C.C. art. 187. This standard of proof was discussed in Ogea v. Ogea, 378 So.2d 984 (La.App. 3rd Cir.1979), writ denied, 379 So.2d 1104 (La.1980). This Court considered Articles 184 and 187 and determined that the presumed legal father could disavow only if he could present reliable scientific proof that he could not be the father, or prove that he lacked the opportunity to have intercourse with his wife at the probable time of conception. We do not think that such a strict standard should be applied to a man seeking to “avow” his biological children, but that he should be allowed to show that, more probably than not, he is the father. The failure of the presumed legal father to timely bring a disavowal action should not operate to deny the biological father his parental rights. Such a result would be a violation of the due process provisions of the United States and Louisiana Constitutions. (See our discussion of adoption, infra.)

Moreover, we should note by way of summary that the proof made by the biological father of his actual paternity does not operate to legally “bastardize” the children. They are legitimate in every legal sense because of the presumption provided by Article 184. There is no contest here between fathers. The contest is for custody only, and neither the legal father nor the mother (legal as well as biological) are claiming the custody. The “avowal” of paternity by plaintiff, Raymond Durr, does not operate as a disavowal on behalf of the legal father, Victor Anders. In the litigation represented by this lawsuit, Raymond Durr cannot become the legal father, and we know of no way he can become the legal father except through adoption procedures provided by law.

Counsel for the defendants expresses concern over the fact that (for purposes of this action) proof is allowed to show that the presumption of Article 184 is in fact not true. There was a day, perhaps, when the presumption foreclosed proof contrary to the presumption. Today we must take into account constitutional considerations, to say nothing of changing social outlook. If the fixed presumptions embodied in our Civil Code appear to be in the process of being undermined by constitutional considerations, we must nevertheless bow to higher authority on that point. If there is any inconsistency, which we do not concede, we deem it our duty to make required accommodations in favor of what has been determined to be constitutional rights of biological fathers. Hence, they have a right to prove their biological relationship to their children for certain purposes despite the apparent rigidity of Article 184.

The facts we have to consider on this issue are as follows: The evidence in this case shows that each child was given the name Durr at birth and each birth certificate named Raymond Durr as the father. Raymond Durr and Donna Am-mons lived together as husband and wife from early in December of 1971 until the end of 1976. Although there was some testimony that the two experienced brief separations, we are convinced that the practical effect of the relationship was that they lived together continuously. During that time Mr. Durr acted as a father to Sue Ann and Leslie. He never had an opportunity to act as such to Misty because he and Ms. Ammons parted company just after her birth. Each of the three girls is now receiving Social Security benefits on Mr. Durr’s account because he now has a disability.

Ms. Ammons has stated in several notarized documents that Mr. Durr is the girls’ father. Sue Ann’s baby book filled out by Ms. Ammons shows Mr. Durr as her father and his parents as her paternal grandparents. Also entered into evidence are letters written by Ms. Ammons to Mr. Durr’s parents while she was in prison sometime between January of 1977 and January of 1979 which clearly indicate that Ms. Am-mons accepted Mr. Durr as the biological father of the children.

At trial, Ms. Ammons contradicted all of the above, claiming that she was pregnant by Mr. Anders with Sue Ann when she met Mr. Durr and hinting that she had sexual relations with other unnamed men who fathered Leslie and Misty. In contrast to this testimony, Ms. Ammons told an employee of the State Department of Health and Human Resources who filed a report in the adoption proceeding by the Blues that Sue Ann and Leslie were fathered by unnamed men and Misty was fathered by Mr. Durr.

Considering all of the above, we find that the trial court was correct in determining that Mr. Durr is the biological father of all three girls. The facts reasonably indicate that conclusion and we find no clear error by the trial court.

ADOPTION

The purported adoption by the Blues was sought and obtained during the pendency of the proceedings initiated by Mr. Durr for custody of the children. Defendants admit that the adoption proceeded to a final decree without any notice to Mr. Durr. In light of our determination that Mr. Durr is the biological father of the girls, the adoption proceeding conducted without notice to him must be found to have been a violation of his rights of due process guaranteed by the United States and Louisiana Constitutions.

In the recent case of Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the United States Supreme Court stated:

“When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,' Caban [v. Mohammed], 441 U.S. at [380] 392, 99 S.Ct. [1760], at 1768 [60 L.Ed.2d 297 (1979) ], his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he ‘act[s] as a father toward his children.’ Id., at 389, n. 7, 99 S.Ct., at 1766, n. 7.”

In Lehr the Court determined that the unwed father was not denied due process or equal protection when he did not receive notice of adoption proceedings. In reaching this conclusion the Court noted that the unwed father did not live with the mother or child after her birth, his name did not appear on the birth certificate, he had never provided financial support, and he had never offered to marry the mother. His first interest in the child came when she was more than two years old, at which time he filed a petition asking for a determination of paternity, an order of support, and reasonable visitation privileges. This petition was filed a month after adoption proceedings had been instituted by the mother and her new husband. The facts of this case are in marked contrast with those of Lehr.

The case before us here is comparable to that before the United States Supreme Court in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). In Caban an unwed father challenged a New York law permitting unwed mothers, but not unwed fathers, to block an adoption by withholding consent. The father in Ca-ban had lived with the mother and the children as a family unit for several years, had been named as the father on the birth certificates, and had given financial support to the children. The Court held that, because a substantial relationship had been established with the children, the father in Caban had been denied equal protection.

Mr. Durr lived several years with Ms. Ammons, Sue Ann and Leslie as a family unit. He contributed to their support to the best of his ability. Although he has not been given the opportunity to be a father to Misty, he has continually sought custody of all three girls and continues to support them through his Social Security disability benefits. He was clearly named the father of each child on the birth certificates and has never denied that paternity.

To allow the children to be adopted by third parties without notice to Mr. Durr would be an unconscionable violation of his right to due process, particularly when that action was taken during his efforts to obtain custody. For this reason alone, the adoption must be declared null.

Although we do not address other arguments made on behalf of Mr. Durr as to the ineffectiveness of the adoption, we observe that they all appear to have merit. The procedures for adoption are set out in LSA-R.S. 9:421 et seq. Some apparent irregularities in the procedure conducted here are a lack of voluntary surrender by both parents required by LSA-R.S. 9:422.3, lack of act of surrender by the parents named on the birth certificate required by LSA-R.S. 9:422.4, no strict compliance with the requirements of the act of surrender set out in LSA-R.S. 9:422.6, and no service of notice of the filing of the adoption petition on each living parent required by LSA-R.S. 9:425. The trial court which granted the adoption also violated the requirement of LSA-R.S. 9:432 that the children live with petitioners at least six months after granting of an interlocutory decree. No interlocutory decree was granted in this case. The final decree of adoption was rendered on March 26, 1980, two months and two days after the petition for adoption was filed.

We note further that Mr. Durr’s claim that the adoption should be declared null pursuant to LSA-C.C.P. art. 2004, because it was obtained by fraud or ill practices appears to have merit. The Blues were well aware of Mr. Durr’s claim of paternity and his attempts to obtain custody. In fact, their petition for adoption was filed on the same day they sought a continuance in the custody matter.

The trial court properly declared the adoption to be null and without effect.

CUSTODY

Having resolved the previous issues in favor of Mr. Durr, the matter of custody is rather simple. The dispute for custody in this matter is between a parent and non-parents. In such a dispute the parent has the paramount right to custody unless the parent is unfit, incapable of providing a home, or has forfeited his or her parental rights. Wood v. Beard, 290 So.2d 675 (La.1974) and Long v. Harris, 420 So.2d 1299 (La.App. 3rd Cir.1982).

There is evidence that Mr. Durr has a prior criminal history. In fact, he served the last three months of 1976 in jail for theft. The trial judge noted in his reasons for judgment that since that time Mr. Durr has stayed out of trouble and has been a good citizen. There was testimony that his new wife significantly influenced his good behavior. There is not sufficient evidence in the record to convince us that Mr. Durr should be found unfit.

Mr. Durr also established that he can provide a home for the children either at his mother’s home, where he and Doris were living at time of trial, or at a house trailer he still owns.

The facts of this case make it abundantly clear that Mr. Durr has not forfeited his parental rights. He acted as a father to the children for as long as he lived with their mother. Since that time he has made provisions for them through his Social Security benefits and has attempted to gain custody since 1978.

Under these circumstances the trial court was correct in awarding custody to Mr. Durr.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants-appellants.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns written reasons.

DOMENGEAUX, Judge,

dissenting.

The questions in this case involve the procedural requirements for an adoption proceeding, the standard for establishing paternity, and the applicable guidelines governing custody of children whose legitimacy is at issue. The majority of this panel agrees with the trial court’s determination that the previously rendered adoption decree violates the due process clause as it applies to the alleged father of the children, Raymond Durr. The majority affirms the decision of the trial court based upon its findings that Raymond Durr, ap-pellee, is the biological father of the three minor children; that the prior act of adoption by James and Hazel Blue, appellants, is null and void; and that Raymond Durr is entitled to custody of the children. The adoption proceedings conducted were lacking in some respects; however, I cannot agree with the ultimate disposition of the case concerning the adoption proceedings, or with the trial court’s judgment regarding paternity and custody of the children. I respectfully file this dissent to the majority’s opinion.

As a preliminary statement, I find that there were some irregularities to the adoption proceedings conducted. Petitioner cites La.R.S. 9:422.4 which sets forth the requirements of voluntary surrender for private adoption:

“The father and mother indicated on the certified copy of the child’s birth certificate provided in R.S. 9:422.2 must join in signing the authentic act of surrender of that child. If the father of the child is not indicated, the mother may sign the authentic act of surrender alone. Should the indicated parent or parents be under the age of eighteen at the time of signing of the act of surrender, the parents of the indicated parent or parents must also sign the act of surrender; if said parents are legally separated or divorced or one is deceased, in that case the parent with custody or the living parent must sign the act; if the surrendering parent or parents are under a guardianship, said guardian should sign the act.”

In this case, Raymond Durr, the father indicated on the certified copy of the children’s birth certificate, did not join in signing the authentic act of surrender. The petitioner also points out that the trial court ordered a final decree of adoption on behalf of Mr. and Mrs. Blue without ordering the prerequisite interlocutory decree in accordance with La.R.S. 9:429. Petitioner contends that these violations render the entire adoption a nullity.

The Second Circuit, in In re CDT, 415 So.2d 315 (La.App. 2nd Cir.1982), held that failure to comply with the required procedures effectively invalidates an adoption. The Court in CDT, supra, concluded that when a notarial act executed is so deficient it cannot serve as an authentic act of voluntary surrender. The court then listed several primary factors which were significant in reaching its decision. The notarial act contravened the express requirements of La.R.S. 9:422.6; the natural mother did not identify herself properly, nor did she state her marital status truthfully. It should be noted, though, that the case involved the attempted adoption of a newborn child who was the legal issue of a married couple. At the time of the child’s birth, the husband and wife had been physically separated for some time, although no legal separation or divorce had been finalized. It was conceded by all parties that the child was born after the husband and wife separated and that the husband was not the natural father. The husband executed an authentic act of surrender pursuant to La.R.S. 9:422.3, et seq., and consented to the adoption. The husband was considered the necessary party; the natural father was not granted any parental rights whatsoever.

However, it should be noted that such technical irregularities often are considered to constitute harmless error and do not per se render adoption decrees nullities. See In re Bourque, 245 So.2d 525 (La.App. 3rd Cir.1971). This court, in In re Simon, 406 So.2d 266 (La.App. 3rd Cir.1981), held that an interlocutory decree of adoption was properly granted by the trial court in favor of a maternal uncle, notwithstanding the deficiencies contained in the formal act of voluntary surrender. The court declared that the legislature, based upon policy considerations, did not intend to prohibit private adoptions, and further, that allowing the adoption was in the child’s best interest.

It is also essential to mention that such technical irregularities do not necessarily result in the subsequent denial of the application for adoption decree. In a closely related case, the First Circuit held that the consent of the natural father of an informally acknowledged illegitimate was not required for surrender and adoption. In In re Martin, 357 So.2d 893 (La.App. 1st Cir. 1978), the Court reviewed the findings of the trial court which stated:

“Finding that the- father’s name was listed on the birth certificate, evidently without objection on his part, that the natural parents were living together at the time of the child’s birth, that Mr. LeBouef had admitted the child to be his, the lower court held that the father’s consent was required and dismissed the petition for an interlocutory decree.”

Martin, supra, at 894.

The Court then examined the applicable law and concluded that the natural father’s consent was not required and therefore did not constitute an impediment to the adoption proceeding. The Court reversed the trial court and explained its reasoning as follows:

“Although the natural father’s name was given on the birth certificate, there is no contention that he signed it. The lower court alludes to the fact that he did not contest his name being entered. However, we believe this to be insufficient; the code speaks in terms of the acknowledgment being made in the ‘registering of the birth’. It is difficult to equate the entering of the name plus the failure to protest under circumstances not made clear with an acknowledgment. See Allen v. Anderson, 55 So.2d 596 (Orl., La.App.1951).”

Martin, supra, at 894.

The fact that others placed the name of the father in the birth records of the child is not sufficient to constitute an acknowledgment under La.C.C. Art. 203. In re Wildeboer, 406 So.2d 687 (La.App. 2nd Cir. 1981).

Furthermore, this Court has decided in Boudreaux v. Matt, 370 So.2d 139 (La.App. 3rd Cir. 1979), that strong legal consequences flow from the presumption of legitimacy established by La.C.C. Art. 184. Any evidence provided by the mother which would effectively deprive her child of its legitimate status has been deemed inadmissible to challenge the legal presumption.

This Court elaborated upon the legal implications of La.C.C. Art. 184:
“It is well settled in Louisiana that a mother’s testimony or admission which would have the effect of making her child illegitimate cannot overcome the legal presumption provided by LSA-C.C. Art. 184 that the husband of the mother is the father of the children conceived during the marriage, and such testimony and admissions must be disregarded. Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (La.1952); Trahan v. Trahan, 142 So.2d 571 (La.App. 3 Cir.1962); and Hodges v. Hodges, 348 So.2d 1284 (La.App. 4 Cir.1977).
The only admissible evidence which indicated the plaintiff may have been the father of Melvin Daniel was his own testimony. He said that he and the defendant had intimate relations during the time that Melvin was conceived, that he took the defendant to the hospital for the birth and that she and her legal husband, Oscar Lee Daniel, separated shortly thereafter. However, plaintiff acknowledged that defendant and Mr. Daniel lived together in an apartment all during the year before the birth occurred.
In his reasons for judgment the trial judge said: ‘1) I find that Melvin Daniel was conceived and born during the existence of the marriage of the defendant, Rosie Lee (Edwards) Matt to Oscar Lee Daniel. There being no evidence to show that the child was ever disavowed by Oscar Lee Daniel, the husband of the wife is, under our law, presumed to be the father of the child, and consequently, plaintiff in rule has no right to claim any of the rights given by law regarding parent and child. While it is conceivable that plaintiff in rule could be the biological father, it is equally conceivable that he is not the biological father, and I find that Mr. Boudreaux has not proved himself to be the biological father of Melvin Jay Daniel.’
Thus, the district judge not only found that the proof presented by the plaintiff was insufficient to overcome the strong presumption provided by Article 184 of our civil code, that the husband of the mother is the father of all children conceived during the marriage, but also that the plaintiff failed to establish it was more probable than not that he was responsible for the child’s conception, the burden of proof ordinarily required to establish an issue of fact. We agree with his findings of fact and conclusions.
The record does not reflect that Oscar Lee Daniel has taken any steps toward disavowal of the paternity of Melvin Daniel. Since the evidence in this case has failed to establish that the child is actually the illegitimate son of Leonce Boudreaux, we do not believe that he has been subjected to any discrimination by reason of his birth or LSA-C.C. Art. 184. Consequently, it is unnecessary for us to consider the constitutional issue raised by the plaintiff in this connection. Cor pus Christi Parish Credit Union v. Martin, 358 So.2d 295 (La.1978).”

Boudreaux, supra, at 140-141.

Therefore, the information on the birth certificates of each child provided by the natural mother making them in effect ille-gitimates, cannot be considered for the purpose of proving paternity, or for establishing a claim for any of the rights given by law regarding parent and child.

In the instant case, it is my opinion that the trial court applied the wrong standard for establishing paternity of the three children. The rationale in Martin, supra, is based upon the degree of difficulty present in paternal identification. In Fontenot v. Thierry, 422 So.2d 586 (La.App. 3rd Cir. 1982), writ denied, 427 So.2d 868 (La.1983), this Court recognized the problems inherent in paternity and filiation proceedings and the resultant abuses created by the multiple paternity jurisprudence. See Spaht and Shaw, Strongest Presumption Challenged: Speculations on Warren v. Richard and Succession of Mitchell, 37 La. L.Rev. 59 (1976).

In the instant case, as in Fontenot v. Thierry, supra, there existed at the time of filing suit no legal bar precluding a person from attempting to prove the biological parent-child link. Nevertheless, the burden of proof is stringent and difficult to overcome. In a thorough review of the record, I find that Mr. Durr’s paternity cannot be proven with any degree of legal certainty. The record is devoid of sufficient evidence that Mr. Durr is the natural father. See IMC Exploration Company and the Petroleum Corporation of Delaware v. Foster Henderson, 419 So.2d 490 (La.App. 2nd Cir.1982), writ denied, 423 So.2d 1149, 1150 (La.1982), reconsideration denied, 427 So.2d 866 (La.1983), which outlines the sufficient basis to determine the paternity claim by a preponderance of the evidence.

“‘Preponderance of the evidence’ clearly means ‘evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not’ Braud v. Kinchen, 310 So.2d 657 (La.App. 1st Cir.1975). Here proof that something is possible is of little probative value as to an ultimate issue of fact unless it is established with reasonable certainty that all other alternatives are impossible. Lutheran Church of the Good Shepherd of Baton Rouge v. Canfield, 233 So.2d 331 (La.App. 1st Cir. 1970).” (Emphasis theirs).

IMC Exploration Company v. Henderson, supra, at 495.

The majority has determined that Mr. Durr made a substantial proof of paternity by a preponderance of the evidence, i.e., any facts which reasonably indicate that he is the father of the girls; it derives this standard from the one stated in La.C.C. Art. 187, the action en desaveu:

“The husband can disavow paternity of a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father.”

However, I have interpreted the preponderance of the evidence standard in disavowing actions in Ogea v. Ogea, 378 So.2d 984 (La.App. 3rd Cir.1979), writ denied, 379 So.2d 1104 (La.1980), and arrived at a different conclusion:

“This indicates to us that the intent of the Legislature is such that a mere preponderance of the evidence by the husband would not be sufficient to disavow a child, but that his preponderance must be in connection with the type of facts illustrated in the Official Revision Comments or type of facts of the same general nature or calibre. Any other conclusion would defeat the Legislative will and would make it possible for a husband or wife or both to cause a child to be disavowed at their whim and fancy. Although, under the new Act, the presumption of paternity may not be conclusive, it nevertheless remains strong and viable.”

Ogea, supra, at 989-990.

I believe that Mr. Durr has not proven adequately his paternity of the three children. If the majority recognizes such a cause of action to avow paternity, then I think that the standard of proof should remain the same as the one for disavowal, particularly when the attempt to establish paternity must overcome the strongest presumption in our Code, i.e., that the husband of the mother is presumed to be the father of all children born or conceived during the marriage. La.C.C. Art. 184. According to my reasons, therefore, Mr. Durr’s approval of the adoption would be unnecessary since he has not definitively established his paternity.

It should be emphasized that all three children already enjoy legitimate filiation. Their mother, Donna Sue Ammons Anders, married in 1971, and although she lived with her husband for only a short period of time before cohabitating with Raymond Durr, no action for judicial separation or divorce has ever been filed by Mr. Anders. In fact, Mr. Anders executed a notarial act recognizing all three children as legal issue of his marriage with their mother. Although Mr. Anders did admit in the act of surrender that he was not the natural father of the girls, his acknowledgment of their legitimacy and the presumption established by La.C.C. Art. 184 seems to me to preclude an alleged biological father from claiming a contradictory filiation or paternity. Rather than a disavowal action, Mr. Anders actually affirmed the girls’ legitimate status as provided by La.C.C. Art. 184. La.C.C. Art. 209, even before its amendment in 1981, would have barred an action by Mr. Durr to establish paternity. The language of the Article provides that the proceeding must be instituted by the child attempting to prove filiation, or on the child’s behalf, or by the child’s heirs. It is apparent that the class is restricted. Mr. Durr cannot avail himself of the methods of acknowledgment set forth in La.C.C. Art. 203 because that Code provision applies only to illegitimate children. Under La.C.C. Art. 186 Mr. Durr’s only course of action consisted of rebutting the presumption created by La.C.C. Art. 184. This he did not do. The majority has, in effect, judicially enacted an action for avowal, granting alleged unwed fathers a claim to establish paternity. I do not believe that this is the intent of the Legislature nor is it a logical interpretation of Louisiana or Federal jurisprudence.

For example, a new ruling by the U.S. Supreme Court, Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1984), held that a father who never established a custodial, personal, or financial relationship with his child did not have an absolute right to notice and a hearing before the child, born out of wedlock, could be adopted. The Court ruled that the mere existence of a biological link does not merit special protection of a neglected relationship. Essentially, the decision ended the exaggerated concern for the unwed father, and narrowed the application of the Court’s landmark decision in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). The Court denied both due process and equal protection claims because of the putative father’s failure to establish a responsible parental relationship with the child.

These corresponding constitutional issues were originally raised in Warren v. Richard, 296 So.2d 813 (La.1974). There, the Louisiana Supreme Court, adhering to the constitutional principles announced by the United States Supreme Court in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), and cases cited therein, accorded dual paternity rights to a child for the wrongful death of her biological father. The Court explained the underlying rationale of these decisions:

“[I]t is the biological relationship and dependency which is determinative of the child’s rights in these cases and not the classification into which the child is placed by the statutory law of the State.”

Warren v. Richard, supra, at 817.

However, the Court clearly limited its opinion to upholding the validity of the child’s claim under La.C.C. Art. 2315. The primary focus in these cases concerns expanding the rights of such children and prohibiting a State from invidiously discriminating against them, i.e., denying them substantial benefits according to their status. See Malek v. Yekani-Fard, 422 So.2d 1151 (La.1982).

In Succession of Mitchell, 323 So.2d 451 (La.1975), the Louisiana Supreme Court held that children presumed to be the legitimate children of the husband of the mother (under La.C.C. Art. 184) could be legitimated (under La.C.C. Art. 198) by the subsequent marriage of the mother to their biological father. Again, this holding demonstrates that the Courts frequently establish a father-child bond in order to protect children from the stigma of illegitimacy.

Recent Louisiana Circuit cases have allowed the establishment of paternity despite the mother’s marital status. Succession of Levy, 428 So.2d 904 (La.App. 1st Cir.1983); Fontenot v. Thierry, 422 So.2d 586 (La.App. 3rd Cir.1982), writ denied, 427 So.2d 868 (La.1983); IMC Exploration Company v. Henderson, 419 So.2d 490 (La.App. 2nd Cir.1982), writ denied, 423 So.2d 1149, 1150 (La.1982).

I respectfully suggest that these cases erroneously follow Warren v. Richard, supra, and its progeny for the proposition that in proving filiation, the mother’s marital status is irrelevant. It is my position that under La.C.C. Art. 209, the law would not allow the establishment of the children’s paternity. See State of Louisiana (DHHR, In re: Phillip Johnson) v. Jefferson, 448 So.2d 907 (La.App. 3rd Cir.1984), my concurring opinion.

Supporting this position, recently, in a thorough and well-reasoned opinion, the First Circuit discussed the jurisprudential trend allowing an individual to establish his or her true parentage. In Griffin v. Succession of Branch, 452 So.2d 344 (La.App. 1st Cir.1984), En Banc (Docket No. 83CA0446), the Court reviewed the legislative changes regarding La.C.C. Art. 209. The Court then reconsidered its decision in the Succession of Levy, supra, and concluded that it had rendered too broad a statutory reading of La.C.C. Art. 209; accordingly, the Court overruled its previous holding in Levy because of direct conflict with legislative intent. The Court found that the 1981 enactment of Act 720 signifies that a child entitled to legitimate filiation may not institute a proceeding to establish filiation to another man. The Griffin court stated:

“To now permit and encourage legitimate children to bastardize themselves ... would contradict public policy and the ‘good order’ envisioned in the Civil Code.” (Emphasis theirs.)

Assuming arguendo that the trial judge’s findings are not manifestly erroneous, and Mr. Durr is presumed to be the natural father of the girls, failure to give notice of the adoption proceeding to Mr. Durr is not a denial of due process. The Supreme Court’s decision in Lehr v. Robertson, supra, substantiates this finding. The majority distinguishes the Lehr decision from the case sub judice based upon the particular facts of each. I too notice several distinguishing facts in the Lehr case, especially the situation that both the mother and presumed natural father were not married at the time the child was born, and that the mother subsequently married the party seeking to adopt the child. The Supreme Court noted that the natural mother never conceded that the claimant was the child’s biological father, but for the purpose of the analysis the Court assumed that he was the natural father. Otherwise, the circumstances parallel the ones in the case before us, and I find that the Lehr case is fully applicable with regard to the due process and equal protection issues.

The Lehr Court determined that the natural father never had any significant custodial, personal, or financial relationship with the child and did not seek to establish a legal tie until several years after her birth. In discussing the due process protection afforded to the natural parent who has only an inchoate relationship with the child, the Court relied upon its previous decision in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1979).

“ ‘Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the best interests of the child.’ 434 U.S., at 255, 98 S.Ct., at 555.”

The Court denied the putative father relief in Quilloin. The Court in Lehr held that the putative father’s inchoate interests were adequately protected and that no violation of the putative father’s constitutional rights had occurred. The Lehr Court continued in its analysis of the parent-child relationship. It noted that the existence or non-existence of a substantial relationship between parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child. In this ease, I find that Mr. Durr has never developed an actual relationship with the children, nor has he shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the children.

In my review of the record, I find that Raymond Durr maintained only a sporadic relationship with the mother of the children. The mother testified that she had sexual intercourse with other men during this period. Further testimony adduced at trial revealed that Mr. Durr did not substantially contribute to the children’s support until after his release from prison and when he became entitled to receive social security benefits due to a disability incurred: the payments totalled $198.00 a month for all three children. Bear in mind that the children’s ages at that time were 1, 2½, and 5, and that Mr. Durr made no attempt to contribute to their support or establish a parental relationship with them. Mrs. Anders’ father also testified that he had helped to support the children. By the time Mr. Durr named the children as beneficiaries, their mother had already placed them with her great aunt and uncle, Mr. and Mrs. Blue. Mr. and Mrs. Blue obtained custody of the children in early 1977. Subsequently, Mrs. Anders was sentenced to serve a prison term in Texas; Mr. Durr did not attempt to obtain custody of the children until December 27, 1978. The children’s ages were then 2, 3½, and 6. During the custody proceedings Mr. and Mrs. Durr were allowed to have temporary visitation rights with the children. Upon their return to the Blues, Mrs. Blue testified that the children had been unsupervised, not adequately cared for, and were suffering from head lice infestation. Throughout this period, Mr. and Mrs. Blue cared for all three girls physically, financially, and emotionally. They provided for the children and educated them. It is my opinion that Mr. and Mrs. Blue are entitled to adopt the three girls. The mere existence of a biological link does not merit full constitutional protection on behalf of Mr. Durr. Lehr v. Robertson, 463 U.S. at _, _, 103 S.Ct. at 2993, 2996, 77 L.Ed.2d at 626, 629; Quilloin v. Walcott, 434 U.S. at 256, 98 S.Ct. at 555, 54 L.Ed.2d at 520. See Collins v. Division of Foster Care, Jefferson Parish, Family Division, 377 So.2d 1266 (La.App. 4th Cir.1979).

As to the custody issue and eventual adoption, the best interests of the child prevails. Adoption of Latiolais, 384 So.2d 377 (La.1980); In re Simon, 406 So.2d 266 (La.App. 3rd Cir.1981). These three children have been raised by the Blues in an environment of love and affection. Their welfare would be adversely affected if the family life is disrupted by a change of custody. In re Bourque, 245 So.2d 525 (La.App. 3rd Cir.1971). I find that the trial judge’s award of custody to the Durrs is clearly wrong.

I would propose to reverse the decision of the trial court as to the finding of paternity. I would also reverse the decision of the trial court as to the award of custody issue, particularly because these three children have been in the Blues’ continuous custody for approximately 8 years. I would remand the case to correct the deficiencies associated with the 1980 adoption decree, since it is evident that the best interests of the children would be served by allowing them to remain with the Blues as their adoptive legal parents.

For these reasons, I respectfully dissent.

      . Mr. Durr’s first attempt to do something for the children was after he became totally disabled from an altercation in which he was cue-stick whipped resulting in some brain damage. The social security benefits for the children cost him nothing.


source: Caselaw Access Project

author: DOUCET, Judge. YELVERTON, Judge,

license: Public Domain

text:
    Robert G. NIDA, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellee.
    No. 83-765.
    Court of Appeal of Louisiana, Third Circuit.
    July 17, 1984.
    Writ Denied Oct. 26, 1984.

      Robert G. Nida, pro se.
    Dee D. Drell of Gold, Little, Simon, Wiems & Bruser, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   DOUCET, Judge.

The issue presented in this appeal is whether plaintiffs insurance covered damage to his home caused by the condition of the soil beneath the foundation where the policy issued by defendant insurance company insured against loss caused by “collapse” but excluded losses resulting directly or indirectly from “earth movement”. From an adverse judgment, plaintiff appeals.

The trial judge assigned written reasons for judgment which we incorporate herein-below:

“This is a suit for benefits under a homeowner’s insurance policy. The plaintiff, Robert G. Nida, is the owner of the home in question. The defendant, State Farm Fire and Casualty Company, is the homeowner’s insurer. The stipulated facts show that the concrete slab foundation of plaintiff’s home cracked due to movement up and down of the earth underneath. The earth movement was caused by the shrinkage during dry weather and the expansion during wet weather of the “Moreland Clay” soil on which the house was built. Plaintiff contends the damage to his home, which consists of the cracked foundation, cracking of exterior and interior walls, doors sticking, wallpaper buckling, etc. are covered by his policy. The defendant contends the damages sustained are excluded by the provisions of the policy.

“There is no dispute as to the facts. They were stipulated, including the fact that the costs to repair the damages to plaintiff’s home is $16,500.00. The issue is whether the loss is covered under the policy, and if so, whether State Farm’s refusal to pay was arbitrary, capricious or without probable cause so as to entitle plaintiff to penalties and attorney’s fees.

“The facts show that the home was built in the city of Alexandria in 1972. Nida purchased the home in 1979 for a price of $46,500.00. Since Nida’s purchase, the home has been insured by defendant under a homeowner’s policy.

“On October 19, 1982, plaintiff filed a claim with defendant stating that the concrete slab of the building had cracked and that the unequal settlement of the structure had cracked the exterior and interior walls to such an extent as to materially impair basic structural intregrity (sic) of the building. Plaintiff stated these problems were associated with the fact that the house was built on a highly plastic clay soil which expands and contracts during wet and dry periods, thereby placing great stress on the foundation.

“Following receipt of plaintiff’s October 19, 1982 demand, the defendant insurer employed Mr. Philip Beard, a consulting engineer, to determine the extent and the cause of the damage to plaintiff’s home. In his report dated November 19, 1982, Mr. Beard states the following:

‘SOIL STRUCTURE: According to the U.S. Department of Agriculture, Soil Conservation Service, the soil type under and around residence is probably More-land. A general location map and list of soil properties of each of the soil types is included herein courtesy of the U.S. Department of Agriculture.
‘DISCUSSION: D.l Soil Mechanics: The type clay under residence as indicated by subsurface investigation is a highly ‘active’ soil. This means that soil is subject to volume changes caused from fluctuations in the natural in-place moisture content. Evaporative loss of soil moisture during dry seasons when average rainfall is low will result in swelling. Alternate shrink/swell conditions, or extreme shrinkage or swelling acting differentially can cause serious problems to a foundation system if the foundation or sub-grade is not prepared to inhibit or absorb the resulting movement. Large trees in close proximity to foundation can seriously aggravate and/or accelerate shrinkage under perimeter beams due to transpiration.
‘Desiccation shrinkage can occur in active clays or poorly compacted fills from 5 to 10 feet especially under the aggravated action of tree roots. Depending on the soil characteristics, this could result in long term differential settlement of 3 to 6 inches. The best foundation system in active clays either isolates the structure from the soil movement or minimizes the soil moisture loss/gain to an acceptable depth, usually 5 feet or greater. ‘D.1.1 All cracking noted herein in exterior walls and interior finishes appears to be the result of differential settlement caused from soil desiccation and shrink/swell under perimeter of foundation.
‘CONCLUSION: Cracking and settlement noted herein is the result of active soil shrinkage under the foundation system. The structure can be expected to continue to experience differential settlement from desiccation and/or shrink/swell.
‘RECOMMENDATIONS: The north exterior wall of carport has rotated outward due to severe footing rotation. Immediate shoring or underpinning should be performed to preclude a potentially dangerous condition. A sudden severe impact to the subject wall could possibly cause the brick veneer to collapse.’

In his deposition, Mr. Beard explained how the foundation should have been constructed on this type of soil:

‘Q. All right. Now, if the soil had been properly prepared at the time of the original construction, what would have been done to avoid this situation at this time? ‘A. There are two options that are generally exercised for this type of soil. Option No. 1 requires the actual digging out of at least 4 or 5 feet of the very bad soil and wasting it and then replacing it with a very stable soil that’s not subject to shrink-swell. The Option No. 2 requires the beefing up of the foundation. By that, I mean very deep, heavily reinforced exterior concrete beams. It becomes a matter of economics as to which option is generally exercised.’

“The insurance policy at issue provides in pertinent part:

‘SECTION I — EXCLUSIONS

We do not cover loss resulting directly or indirectly from: 2. Earth Movement. * *’

“In support of his argument that the above quoted exclusion does not apply in the present case, plaintiff sites (sic) Anderson v. Indiana Lumbermen’s Mutual Insurance Company, 127 So.2d 304 (La.App. 2nd Cir.1961), writ denied (sic). In that case the trial court sustained an exception of no cause of action where the plaintiff alleged that the concrete slab foundation of his home cracked as a result of the expansion and contraction during wet and dry periods of the clay soil beneath. The policy excluded ‘loss caused directly or indirectly by earthquake, or other earth movements except land slides (sic);’ The Court of Appeal reversed, applying the doctrine of ‘ejusdem generis’, which states that where general words follow an ennumeration (sic) of specific terms, the general words must be construed as meaning the same general kind or class as those included within the specific terms. Under this rule, the Court of Appeal held that the general term “other earth movements” must be construed as meaning the same general kind or class of occurrances (sic) as the specific term “earthquake”, and that the expansion and contraction of the clay soil during alternating wet and dry seasons was not of the same general kind or class as an earthquake. The Court concluded the loss was not excluded.

“In the present case, the plaintiff has cited several cases from other jurisdictions which have applied the doctrine of ‘ejusdem generis’ to similar policy provisions.

“In the present case the rule of ‘ejusdem generis’ can have no application. Although the words ‘earth movement’ are general, there are no words of specific meaning with which they must be construed to limit their meaning to a particular kind or class of incident.

“In the present case, the uncontradicted evidence shows that the cause of plaintiff’s loss was earth movement, that is the rise and fall of the earth underneath plaintiff’s home due to the expansion and contraction of the clay soil in alternating wet and dry seasons. The foundation of the home was not constructed to withstand this movement of the earth which occurs in this area of Rapides Parish. It was simply a defect in the construction of the foundation.

“Having found that coverage was excluded under the provision of the policy which excludes ‘earth movement’, it is unnecessary for the Court to discuss the other issues discussed by counsel respectively in their briefs. Of course, it also necessarily follows that the defendants are not liable for penalties and attorney’s fees.”

From that judgment plaintiff has appealed, assigning as error the trial court’s finding that the “earth movement” exclusion in the policy excluded coverage of plaintiff’s loss. Alternatively, plaintiff claims coverage under other provisions of the policy.

As noted by both parties, the jurisprudence is divided as to the meaning ascribed to both the term “collapse” and “earth movement”. See — e.g.—Anno., Insurance Coverage — “Collapse of Building”, 71 ALR 3d 1072; and Anno., Insurance— Earth Movement or Earthquake, 44 ALR 3d 1316. The policy herein insures for all risks of physical loss to the property except for loss caused by certain described risks including “deterioration; inherent vice; latent defect; settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors, roofs, or ceilings.”

Although settling is not defined in the policy, it does state that “collapse” does not include settling, cracking, shrinking, bulging or expansion.” In addition, there is the aforementioned clause excluding losses resulting directly or indirectly from earth movement.

For many years the standard form of fire insurance contained a clause providing that if the insured building or any part thereof should fall, except as a result of fire, all insurance on the building should immediately cease. In approximately 1954, insurers began issuing “all risk” (not all loss) policies and extended coverage endorsements providing for loss caused by “collapse” of the insured building. Two lines of cases developed therefrom, the first view being that “collapse” is an unambiguous term which denotes a falling in, loss of shape, or reduction to flattened form or rubble and therefore there was no coverage under the policy unless that happened. The second view, a more liberal view, adopted the view that there could be a “collapse” even though there has been no falling, tumbling down, or near total destruction if the settling, cracking, bulging, or breaking of the insured building or any part thereof was in such a manner as to materially impair its basic structure or substantial integrity. Under this latter view, the courts held that the insurance coverage did apply although there was no total falling down of the building or any part thereof. Thereafter, insurers amended their policies so as to exclude from “collapse” coverage losses caused by the settling, cracking, shrinking, bulging or expansion of buildings or any part thereof. Anno., Insurance Coverage — “Collapse” of Building, supra.

As is illustrated in the courts of Kansas, this second revision of the policy language caused some turnaround in the liberal view. Initially, the Supreme Court of Kansas in the case of Jenkins v. United States Fire Insurance Company, 185 Kan. 665, 347 P.2d 417 (1959), under the earlier collapse policy language with no restrictions or definitions, had taken the liberal view, that if the building was materially impaired in its basic structure or substantial integrity, it had collapsed. The court noted, inter alia, that while the “collapse” clause was susceptible of more than one construction, the clause was properly to be interpreted as loss brought about by unusual and extraordinary circumstances which the parties could not normally expect or foresee on the date of “settling” and other defects. After the policy language was changed to exclude loss from settling, cracking, shrinkage, building or expansion, the Supreme Court of Kansas in Krug v. Millers Mutual Insurance Association, 209 Ka. 111, 495 P.2d 949 (1972) wherein loss was caused by water leakage, distinguished the Jenkins case on the grounds that “collapse” was not qualified in any way in the original case whereas it was qualified in the policy language of the Krug case. Id. The court therein specifically noted that the insured could not recover under the policy where, inter alia, settling, bulging, or expansion was excluded. The court rejected plaintiffs contention that the exclusionary phrases referred only to normal settling and phrasing.

The leading Louisiana case in connection with construction of “collapse” and “earth movement” is the case of Anderson v. Indiana Lumbermens Mutual Insurance Company, 127 So.2d 304 (La.App.2d 1961), which was decided under the earlier policy provisions which provided coverage for collapse but without defining or restricting the coverage at all and excluding coverage “caused directly or indirectly by earthquakes or other earth movements, except landslides.” In Anderson, the plaintiffs loss was also due to clay soil swelling. The court gave a liberal interpretation to the word “collapse” and with reference to the exclusion applied the maxim “ejusdem gen-eris” to restrict the interpretation of “other earth movement” where the same clause included exclusion of loss by “earthquake”.

Subsequently, in Samuel v. Sewerage and Water Board of New Orleans, 181 So.2d 243, 12 ALR 2d 611, 16 ALR 2d 393, (La.App. 4th Cir.1965), writ ref. 182 So.2d 660 (1966) the court considered the plaintiffs claim for coverage under a policy which had been revised from the language of the policy in Anderson and which contained the restriction against coverage for losses resulting from settling, cracking, shrinkage or expansion of pavements, foundations, walls, floors, or ceilings. The court in Samuels distinguished Anderson in the following manner:

“The whole tenor of the evidence adduced herein leads us to the inevitable opinion that the damage incurred by the plaintiffs residence did not constitute a collapse, but is a loss occasioned by settling, cracking or expansion of pavements, foundations, walls, floors, or ceilings in conformity with the policy exclusion. It should be pointed out that the organ for the Court of Appeal in the Anderson case relied upon the rationale emanating from Jenkins v. United States Fire Insurance Company, which incidentally expressed the minority view, as authority for its opinion that a building had collapsed within the meaning of the policy of the settling, falling, cracking, bulging or breaking of the insured building or any part thereof materially impaired the basic structure or substantial integrity of the building. However, the policy involved in the Anderson and Jenkins eases did not contain the specific exclusion which appears in this plaintiffs policy. Thus, to this very significant extent, these eases do not militate against the conclusion reached herein.” (footnotes omitted)

Considering the policy before us, it is clear we need not make a determination as to whether or not the plaintiffs home has sustained a “collapse” per se, rather the issue is whether plaintiffs loss was caused by inherent vice; latent defects; settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings or earth movement and whether the policy is clear in excluding such losses.

The term “earth movement” is not defined in the policy, therefore “it must be interpreted in its ordinary sense as used and understood by laymen, rather than by technicians and scientists.” Schmieder v. State Farm Fire & Casualty Company, 339 So.2d 390, 392 (La.App. 1st Cir.1976), writ den. 341 So.2d 895 (La.1977).

Any ambiguity in an instrument is resolved against the draftsman. Pique v. Saia, 450 So.2d 654 (La.1984) La.C.C. arts. 1957, 1958; Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981); Benton Casing Service, Inc. v. Avemco, Ins., 379 So.2d 225 (La.1979); Credeur v. Luke, 368 So.2d 1030 (La.1979). This canon of construction is particularly applicable when interpreting an exclusion in a comprehensive insurance policy. Petrol Industries, Inc. v. Gearhart-Owen Industries, Inc., 424 So.2d 1059 (La.App. 2nd Cir.1982). Nevertheless, a policy of insurance, like other legal contracts, becomes the law between the parties and the words of the contract are to be understood in the common and usual signification. Vidrine v. Southern Farm Bureau Casualty Ins. Co., 247 So.2d 660 (La.App. 3rd Cir.1971); Oncale v. Aetna Casualty & Surety Co., 417 So.2d 471 (La.App. 1st Cir.1982).

In Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 477 P.2d 966 (1970), a provision excluding coverage “for loss caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, landslide, mud flow, earth sinking, rising or shifting”, was held to preclude recovery for the collapse of a building, which occurred when the supporting soil under and around the foundation gave way and it sank into a pre-existing cavern or shaft area of a mining operation. The court opined that the exclusionary clause was not ambiguous, since the term “earth movement” taken in its plain, ordinary, and popular sense means any movement of the earth, whether it be up, down, or sideways, the words “earthquake, landslide, mudflow”, and the term “earth sinking, rising or shifting”, all referring to verticle or horizontal movements of earth or soil.

In Wisconsin Builders, Inc. v. General Insurance Company of America, 65 Wis.2d 91, 221 N.W.2d 832 (1974), the Supreme Court of Wisconsin stated: “The majority of the courts which have considered this particular exclusion have found it to be ambiguous and apply the doctrine of ejusdem generis to limit the definition of ‘earth movement’.” However, the clause in Wisconsin Builders excluded “earth movement, including but not limited to earthquake, volcanic eruption, landslide, mudflow, earth sinking, earth rising or shifting...” thus application of the rule of “ejusdem generis” was proper. Accord: Government Employees Ins. Co. v. De-James, 256 Md. 717, 261 A.2d 747 (1970); Barash v. Ins. Co. of North America, 114 Misc.2d 325, 451 N.Y.S.2d 603 (1982).

We agree with the trial judge that the rule of “ejusdem generis” is inapplicable as applied to the term “earth movement” and, furthermore, that the term is free from ambiguity.

Appellant’s alternate contention for coverage is the alleged ambiguity in the “settling” and “latent defect” exclusions.

The term “settling” is not defined in the policy. Appellant suggests we adopt the definition employed in Barash v. Insurance Company of North America, supra, wherein the homeowners sued pursuant to their “all risk” policy for damage caused to their home when unsuitable fill material underlying their home deteriorated, creating a void which precipitated the collapse of the basement slab. The insurance company resisted the claim, invoking a policy exclusion for damage “caused by settling, shrinking, or expansion in foundations, walls, floors or ceilings.” In Barash, the court noted, “For the defendant to derive any benefit from the exclusionary clause, it was obliged to show that (1) it would be unreasonable for the average man reading the policy to give it the construction urged by the plaintiff, and (2) that its own construction was the only one that fairly could be placed on the policy.” The court further held that the term “settling”, construed in its ordinary and popular sense, has a “general meaning of a gradual sinking of a building.” As applied to houses, settling has a different connotation, that of a building initially coming to rest after construction. The court held that “the implication given to the average insurance buyer is that what is excluded is the normal, gradual re-adjustment of the building materials when it occurs in foundations, walls, floors or ceilings” distinguishing between settling “of foundations” and settling “in foundations”.

However, as noted at 71 A.L.R.3d 1100, “property insurance policies extending coverage to direct loss caused by ‘collapse’ of the insured building but excluding loss from settling, cracking, bulging, and the like, have generally been held not to encompass damage to walls, ceilings, and foundations which have in fact settled, cracked, or bulged.”

In LaSalle Nat. Bank v. American Ins. Co., 14 Ill.App.3d 1027, 303 N.E.2d 770 (1973), the court reversed a judgment for the insured in an action to recover for loss and damage to a one-story commercial building, on the ground that the damage had resulted from “settling”, which was excluded from coverage, and not from a “collapse”. The court’s ruling for the insurer was primarily based on: (1) the uncontested results of soil borings, which revealed that the middle layers of the building’s supporting ground were soft and very moisture-laden, so that, in terms of soil mechanics, the building had an unstable base, and (2) the testimony of an expert in soil mechanics and foundation engineering that based on the test results and his personal examination of the premises, the damage was, in his opinion, caused by a settling of the ground level resulting from a consolidation of the middle layers of the supporting ground. Accord: Krug v. Miller’s Mut. Ins. Assoc., supra; Williams v. State Farm Fire and Cas. Co., 514 S.W.2d 856, 71 A.L.R.3rd 1065 (Mo.App.1974); Graffeo v. U.S. Fidelity and Guaranty Co., 20 A.D.2d 643, 246 N.Y.S.2d 258 (1964).

Sabella v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889 (1963) involved an action under an “all physical loss” policy which specifically excluded coverage for loss by “settling”, among other things, “unless loss by collapse ensues,” and damage resulted from leakage from a ruptured sewerline into soil which had been insufficiently compacted by the builder, causing the house to settle to such uneven elevations that its foundation and walls cracked, its floors became no longer level, and certain of its windows and doors could no longer be opened or closed. The court noted that the policy excluded with sufficient clarity all loss by settling, whether gradual or rapid, unless collapse of the dwelling ensued, and that since the house remained usable and continued to be occupied, it could not be said that any “collapse” had occurred.

Philip Beard testified that the term “differential settlement” which he applied to the conditions at plaintiff’s residence is distinguishable from ordinary settlement which occurs in almost all homes, and which can result in some minor cosmetic cracking. Beard's testimony indicates that the house has not experienced a gradual sinking, but rather sustained and continues to sustain a situation where the structure in fact rises and recedes. While Barash is only persuasive authority, we find it distinguishable from the present case as there has been no “collapse” as the term is commonly employed, and, furthermore, we find no ambiguity in the term “settlement” as applied to the facts herein. From our consideration of the authorities, we think that the language in question is neither ambiguous nor unclear. The policy specifically defined “collapse” as not including “settling”.

State Farm in the trial court further claimed that the damage to appellant’s home was caused by a “latent defect” re-suiting from an improperly designed foundation. Plaintiff maintains that these terms are themselves technical in nature, and in light of the lack of definition within the policy, must be said to be ambiguous.

The term “latent defect” was defined in Walker v. Travelers Indemnity Company, 289 So.2d 864 (La.App. 4th Cir.1974) as follows:

“A latent defect is a hidden defect and generally involves the material out of which the thing is constructed.” Ross v. Tynes, et al., 14 So.2d 80, 83 (Orl.La.App. 1943).
This definition was later applied in Schon v. James, 28 So.2d 531 (Orl.La.App.1946), and since has been sanctioned by other cases in the jurisprudence of Louisiana, none of which involved a marine loss. Our examination of the jurisprudence of other states and federal cases dealing with maritime law reveals that our definition of latent defect that has its origin in Ross v. Tynes, et al., supra, is incomplete.

A latent defect is defined in Black’s Law Dictionary, 4th Ed., as a defect which a reasonably careful inspection would not reveal or a defect that could not have been discovered by any known or customary test.

A latent defect is a defect which is not apparent and which would not be discoverable upon reasonable inspection. Zillah Transportation Co. v. Aetna Insurance Co., 175 Minn. 398, 221 N.W. 529 (1928); Reisman v. New Hampshire Fire Insurance Company, 312 F.2d 17 (5th Cir.1963).
Latent defect means a defect not manifest, but hidden or concealed and not visible or apparent; a defect hidden from knowledge as well as from sight, and specifically a defect which reasonable inspection will not reveal. Glens Fall Ins. Co. v. Long, 195 Va. 177, 77 S.E.2d 457 (1953). See also Reliance Insurance Company v. Brickenkamp, 147 So.2d 200 (Fla.App.1963); Watson v. Providence Washington Ins. Co., 106 F.Supp. 244, appeal dismissed, 4 Cir., 201 F.2d 736.

The court in Walker went on to conclude that a proper definition of latent defect is “a defect that is hidden or concealed from knowledge as well as from sight and which a reasonable customary inspection would not reveal.” id. at 870. We find that the vice in the construction of the foundation falls within this definition and such a construction is reasonable as concerns both parties. As noted by the trial judge, in reflecting on the testimony of Mr. Beard, “the foundation of the home was not constructed to withstand this movement of the earth which occurs in this area...” The defendant-insurer simply was not a guarantor of the constructor’s building performance.

In conclusion, we note that the policy in Anderson addressed “earth movement” and “landslides” in the same clause. Accordingly the court properly applied the rule of “ejusdem generis”.

As the basic cause of plaintiff’s loss was the improper preparation of the foundation upon which the plaintiff’s house was built, and the proximate cause of plaintiff's loss was the earth movement and settling resulting in the damage of which the plaintiff complains, and the policy is free from ambiguity, the trial judge properly dismissed plaintiff’s demands.

Accordingly, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

YELVERTON, J., concurs and assigns written reasons.

YELVERTON, Judge,

concurring.

I concur in the result because the weight of authority, including our own Samuel v. Sewerage & Water Board of New Orleans, 181 So.2d 243 (La.App. 4th Cir.1965), writ refused 183 So.2d 651, supports the view that this was a loss occasioned by settling and therefore it is excluded by the clear policy terms.

I do not agree that the term “earth movement” clearly includes the periodic contraction and swelling of soil. The term ought to be restricted at least to cases where there has been a relocation of earth, which is what “movement” implies. The earth under the appellant’s house has not moved. It is still in the same place. The term can reasonably be interpreted not to include swelling and contraction of soil. Because it appears in an exclusion clause, it should be given this liberal interpretation.

The writer also has trouble with the idea that the nature of Westmoreland clay constitutes a “latent defect” as that term is used in the policy, as another cause excepted from coverage.


author: GUIDRY, Judge.

text:
    Hulin GAUTHIER, Jr., Plaintiff-Appellant-Appellee, v. INDIANA LUMBERMEN’S MUTUAL INSURANCE COMPANY OF INDIANA, et al., Defendants-Appellees-Appellants.
    No. 83-855.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 1984.

      John T. Bennett, Marksville, for plaintiff-appellant-appellee.
    Bolen & Erwin, Ltd., James A. Bolen, Jr., Alexandria, defendants-appellees-appel-lants.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Plaintiff, Hulin Gauthier, Jr., filed this suit against his former employer, E.E. Ra-balais and Son, Inc. (hereafter Rabalais), and its workers compensation carrier, Indiana Lumbermen’s Mutual Insurance Company of Indiana (hereafter Indiana Lumbermen’s), seeking worker’s compensation benefits for total and permanent disability, penalties and attorney’s fees. After trial on the merits, the trial judge rendered judgment in favor of plaintiff, awarding benefits for the scheduled loss of a finger under La.R.S. 23:1221(4)(c), at the rate of $140.00 per week for 20 weeks, with credit for all sums previously paid in weekly benefits and dismissing plaintiffs claims for penalties and attorney’s fees. Both plaintiff and defendant have appealed.

FACTS

On March 5, 1982, plaintiff sustained a puncture wound to the tip of the middle finger of his left hand while working for Rabalais. Shortly thereafter, plaintiff developed a severe infection in the tip of that finger for which he was treated by Dr. Vanda L. Davidson. On March 13,1982, he was hospitalized for 10 days, at which time intravenous antibiotics and whirlpool treatments were administered. On April 26, 1982, Dr. Davidson released plaintiff to return to work. He received worker’s compensation benefits of $183.00 per week from March 5, 1982 until April 26, 1982 from Indiana Lumbermen’s.

Mr. Gauthier returned to work for Raba-lais in May of 1982, but was laid off on November 5, 1982 because of lack of work. Just prior to the time that plaintiff was laid off, his finger once again swelled and became tender. He was seen by Dr. Donald E. Hines on October 25, 1982. This time the infection involved the bone of the finger as well as the soft tissue. On November 3, 1982, Dr. Hines removed the distal end of the phalanx, a portion of the bone of the tip of the left middle finger. He was last seen by Dr. Hines on November 24, 1982, who opined that he would probably be able to return to work on December 1, 1982. Mr. Gauthier did not return to Dr. Hines, but instead returned to the care of Dr. Davidson, who saw him on December 6, 1982. He was still being treated by Dr. Davidson at the date of trial in March, 1983. Dr. Davidson opined that plaintiff would have been able to return to work on January 3, 1983, if he had had a position to return to. Plaintiff filed this suit for compensation benefits on December 8, 1982. Thereafter on December 8, 1982, plaintiff was paid additional worker’s compensation benefits of $183.00 per week from November 8, 1982 through December 5, 1982. Plaintiff was also seen by Dr. Terry Alan Cromwell on February 8, 1983 for evaluation.

In written reasons for judgment, the trial judge stated his findings as follows:

“It is the finding of this court that plaintiff has suffered a constructive total anatomical loss of the middle finger of the left hand and may indeed require surgical removal of part or all of the affected finger. However, plaintiff has not proven that he has suffered an injury producing either temporary total disability, permanent total disability, or partial disability. Thus, plaintiffs case comes within the purview of the scheduled benefits of LSA-R.S. 23:1221(4)(c) as there is not sufficient evidence to support a finding of any further disability in addition to the constructive total anatomical loss of the left middle finger.”

Plaintiff appeals asserting that he is entitled to benefits for permanent total disability by reason of his inability to work except in substantial pain. In the alternative, he asserts that he is entitled to scheduled benefits for a proportionate loss of use or function of his hand under La.R.S. 23:1221(4)(e) or for serious impairment benefits as provided in La.R.S. 23:1221(4)(p). Additionally, plaintiff reasserts his demand for the penalties and attorney’s fees denied by the trial judge.

On appeal, defendant asserts that the proper measure for compensation in this matter is found in La.R.S. 23:1221(4)(c)(o) for the proportionate loss of use or function of a finger, which amount has been fully paid.

PROPER MEASURE OF COMPENSATION

Total or Partial Disability

We find no error in the trial judge’s failure to award benefits for permanent total disability or for partial disability. A worker who is unable to return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). A worker is partially disabled when he cannot perform the duties required by his former employment but can still do other work. Scott v. Sears, Roebuck & Company, 406 So.2d 701 (La.App. 2d Cir. 1981).

In the instant case, the record clearly demonstrates that the only pain which plaintiff presently suffers, as a result of the accident, is intermittent, transient and minimal. Although plaintiff suffers from a residual sensitivity to cold and trauma in the injured finger, this sensitivity is not disabling. Trauma in the form of a blow or bump to the finger merely causes a momentary sharp pain similar to an electrical shock and does not hinder plaintiff from performing the duties required by his former employment. The intolerance to cold weather can be compensated for by the use of a glove during cold weather. All of the medical evidence is to the effect that plaintiff is presently able to perform the duties required by his former employment. Plaintiff, himself, testified that he felt that he was able to do the work and perform the same duties for Rabalais as before the injury. Based on the above facts, we hold that the trial court did not err in failing to find Mr. Gauthier totally and permanently disabled or partially disabled. However, we find that the trial court clearly erred in failing to find plaintiff to be entitled to benefits for temporary total disability. The uncontroverted evidence is to the effect that plaintiff was unable to return to work after the accident until April 26, 1982 and that a subsequent re-occurrence of the infection also prevented plaintiff from working. We find that this second period of temporary total disability extended beyond December 5, 1982, until January 3, 1983. Dr. Hines’ release of the plaintiff to return to work as of December 1,1982 was equivocal. He merely opined after examining plaintiff on November 24, 1982 that plaintiff would probably be able to return to work on December 1, 1982. However, instead of returning to Dr. Hines, plaintiff returned to Dr. Davidson on December 6, 1982, who determined that plaintiff was unable to return to work until January 3, 1983.

At the time of the injury, plaintiff was earning an average weekly wage of $280.00. On that basis, Indiana Lumbermen’s paid maximum benefits at the rate of $183.00 per week for temporary total disability from March 5, 1982 through April 26, 1982 and again from November 8, 1982 through December 5, 1982. Plaintiff is entitled to receive benefits at the rate of $183.00 per week for his second period of temporary total disability from December 6, 1982 through January 2, 1983.

SCHEDULE LOSS

The trial judge awarded plaintiff scheduled benefits for the total anatomical loss of the left middle finger. Plaintiff asserts that he is entitled to scheduled benefits for a proportionate loss of use or function of his hand; and defendant urges that the award should be limited to a proportionate loss of use or function of the finger.

Dr. Davidson and Dr. Cromwell agreed that although plaintiff was able to perform the duties of his employment, he had suffered a 25% impairment or anatomical disability of the middle left finger. Although both physicians extrapolated this finding to a 5% impairment of the left hand, their testimony fails to relate the injury to the hand as a whole in any manner other than that the finger forms a component part of the hand. Plaintiff’s award was therefore properly limited to the finger. Nash v. Knoblock, 381 So.2d 404 (La.1980).

We also find merit to defendant’s contention that the award should have been made pursuant to La.R.S. 23:1221(4)(o) for a percentage impairment of the finger. There is no evidence in the record to support the award by the trial judge for the total anatomical loss of use of the finger. The record indicates that plaintiff has a 25% impairment of the left middle finger. Since this case falls within the provisions of La.R.S. 23:1221(4)(o), we also find no merit in plaintiff’s argument that he is entitled to compensation pursuant to La.R.S. 23:1221(4)(p).

Under the scheduled losses, although plaintiff would be entitled to 25% of $183.00 for a period of 20 weeks, this compensation allowance is subject to deductions for payments for temporary total disability. La.R.S. 23:1223. Therefore, plaintiff is not entitled to any award for the scheduled loss for the reason that his award for temporary total disability is greater than the amount due under the scheduled loss. Parks v. Louisiana Health Care Ass’n, 436 So.2d 693 (La.App. 3rd Cir.1983), writ denied, 441 So.2d 1220 (La.1983).

PENALTIES AND ATTORNEY’S FEES

Mr. Gauthier received compensation benefits for temporary total disability from the time of injury until April 26, 1982. Indiana Lumbermen’s terminated compensation benefits to plaintiff on April 26,1982 based upon Dr. Davidson’s medical report of that date, releasing plaintiff to return to work. Plaintiff thereafter returned to the full duties of his job. Therefore, plaintiff’s benefits were properly discontinued at that time. The subsequent re-occurrence of the infection, which again rendered plaintiff temporarily disabled, occurred coincidentally at a time when plaintiff was out of work. Written demand for reinstatement of benefits retroactive to the date they were discontinued was made on November 8, 1982 and this suit was filed on December 8, 1982. That same day, i.e., December 8, 1982, Indiana Lumbermen’s sent drafts for all accrued compensation benefits. Under these circumstances, payment was made within 60 days after receipt of notice and, at any rate, the delay in reinstating benefits as a result of the re-occurrence was not arbitrary or capricious. Therefore, plaintiff is not entitled to penalties and attorney’s fees. La.R.S. 23:1201.2. Although we have determined that the second period of temporary total disability extended beyond December 5,1982, and that plaintiff is entitled to temporary total disability for the period extending through January 2, 1983, these benefits had not accrued at the time this suit was filed in which plaintiff was claiming a right to permanent total disability, permanent partial disability or scheduled loss benefits. For these reasons, we find that plaintiff has failed to prove any entitlement to penalties and attorney's fees.

DECREE

For the reasons assigned, the judgment of the trial court is amended to award plaintiff, Hulin Gauthier, Jr., compensation benefits for temporary total disability at the rate of $183.00 per week from March 5, 1982 through April 26, 1982 and from November 8, 1982 through January 2, 1983, with interest thereon from due date until paid with credit for all sums previously paid in weekly benefits. The judgment is affirmed in all other respects. Costs on appeal are assessed one-half (V2) to plaintiff and one-half (V2) to defendants.

AMENDED AND AFFIRMED.


author: GULOTTA, Judge.

text:
    Maurice SPENCER v. UNITED STATES FIDELITY AND GUARANTY COMPANY and New Orleans Saints, Inc. and New Orleans Saints, a Partnership Composed of John Mecom, Jr., and Others Qualified to be Doing Business in the State of Louisiana.
    No. CA-1966.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      Barker, Boudreaux, Lamy, Gardner & Foley, Lawrence A. Arcell, New Orleans, for appellee.
    Wiedemann & Fransen, Allain F. Hardin, New Orleans, for appellants.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   GULOTTA, Judge.

In this worker’s compensation suit by a former professional football player, defendants — New Orleans Saints, Inc. and its insurer — appeal from a judgment denying an exception of prescription. Because we con-elude defendants have failed to show irreparable injury from this interlocutory judgment, we dismiss their appeal.

According to the petition, Maurice Spencer was employed as a professional football player for the New Orleans Saints in August, 1977, when he injured his neck. Despite surgery, Spencer played football the entire 1978 season. In September, 1979, plaintiff reinjured his neck and was released by the Saints.

Spencer alleges that the injuries sustained between 1977 and November, 1979, caused a “partial and permanent disability” terminating his playing career and entitling him to worker’s compensation benefits. He further alleges that he had received “partial payments” from the Saints as “compensation for his injury” and these payments were terminated in November, 1979.

The basis of defendant’s prescription exception is that plaintiff’s suit, filed on September 18, 1981, was untimely because it had not been brought within one year from the date of the September, 1979, injury, or from the final payment made in November, 1979 for his temporary-total disability.

On the other hand, plaintiff claims that the payments received from his employer while on “injured reserve” constituted payments in lieu of compensation for a “partial permanent” disability, which provides for a three year prescriptive period from the last payment.

At the outset, we note that defendants are appealing from the denial of an exception of prescription, an interlocutory judgment that does not determine the merits of the case. LSA-C.C.P. Art. 1841; Edwards v. Lousteau Auto Sales, Inc., 424 So.2d 460 (La.App. 5th Cir.1982); State, Department of Highways v. Ott, 277 So.2d 767 (La.App. 1st Cir.1973). An appeal may be taken only from an interlocutory judgment that may cause irreparable injury. LSA-C.C.P. Art. 2083; Short v. Criminal Sheriffs Office, 407 So.2d 786 (La.App. 4th Cir.1981). The standard for determining irreparable injury is whether any error in the judgment may be corrected as a practical matter in an appeal following a determination of the merits of the case. Updegraff v. Parish of St. Bernard, 433 So.2d 863 (La.App. 4th Cir.1983); Jacobs v. Jacobs, 365 So.2d 25 (La.App. 4th Cir.1978).

In the instant case, no allegation or showing has been made of irreparable injury. Martines v. Martines, 375 So.2d 768 (La.App. 4th Cir.1979); Standard Co. of New Orleans, Inc. v. Elliott Const. Co. Inc., 398 So.2d 558 (La.App. 1st Cir.1980). Furthermore, merely requiring the parties to undergo a trial on the merits does not constitute irreparable harm. Updegraff v. Parish of St. Barnard, supra; Cheramie v. Vegas, 413 So.2d 1343 (La.App. 1st Cir. 1982). Accordingly, we conclude the appeal must be dismissed.

In so holding, we are aware that an appellate court may exercise its supervisory jurisdiction to review a trial court’s denial of a preemptory exception where the overruling of the exception is arguably incorrect, there is no factual dispute to be resolved, and a reversal will terminate the unnecessary litigation. Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981); Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir.1978). Nonetheless, the instant case does not fall into that category.

To avail himself of the three year prescriptive period under LSA-R.S. 23:1209, plaintiff must have received payments in lieu of compensation for “partial” disability. The test for determining if wages were paid in lieu of compensation is whether they were actually earned by the employee. Relevant (but not conclusive) in that determination is the similarity or degree of difficulty of services performed before and after the accident. See Matthews v. New Orleans Public Service, 349 So.2d 408 (La.App. 4th Cir.1977), writ denied, 351 So.2d 170 (La.1977). Once it is determined that compensation payments have been made, they are presumed to be for partial disability (with the resulting application of a three year prescriptive period), unless the parties have “agreed” that the payments were for “total” dis-ability. See Youngblood v. Belden Concrete Products, 349 So.2d 439 (La.App. 4th Cir.1977), writ denied 351 So.2d 177 (La.1977); Miller v. Belden Corp., 386 So.2d 974 (La.App. 3rd Cir.1980), writ denied 389 So.2d 1126 (La.1980). In denying defendants’ exception of prescription in the instant case, the trial judge apparently resolved these factual and legal issues in plaintiff’s favor, concluding that Spencer had in fact received payments in lieu of compensation for a partial disability.

In the present posture of the appeal, however, we are unable to review the trial court’s conclusions. Although medical depositions in the record disclose the circumstances of plaintiff’s injuries and' the medical nature of what appears to be a partial disability, we do not have before us copies of plaintiff’s deposition and a player’s contract referred to in defendants’ brief. This deposition and documentary evidence, presumably available to the trial judge when the matter was heard in the trial court, is crucial in determining whether the “injured reserve” payments to Spencer were issued in lieu of compensation and whether the parties understood them to be for total or partial disability. Under these circumstances, in the absence of a complete record, we are unable to consider the issues addressed by the trial judge, even if the appeal were converted to a writ application.

Accordingly, absent a showing of irreparable harm from this interlocutory judgment, we are compelled to dismiss the appeal and to remand the matter to the trial court for further proceedings. Appeal dismissed.

APPEAL DISMISSED.

      . Plaintiffs petition further avers that after release by the Saints he was claimed on waivers by the Atlanta Falcons professional football team two weeks later, but was unable to pass their physical. He then retired from professional football.

      . LSA-R.S. 23:1209, as amended by Act 583 of 1975, applies to plaintiffs claim. This version of the statute provides for a one year prescriptive period for workers’ compensation claims from the date of the accident or last payment of benefits, but a three year prescriptive period from the time of the last payment of benefits "in cases of partial disability”. The 1983 amendments to the statute do not apply to this suit filed in 1981.