text:
    Lester EDDINS v. B.I.C. CORPORATION and Home Indemnity Company.
    No. CA 1716.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    George R. Simno, III, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    Frank J. Achary, Metairie, for defendants-appellees.

      Before SCHOTT, LOBRANO and WARD, JJ.
   SCHOTT, Judge.

This is a worker’s compensation case in which plaintiff claims to be permanently and totally disabled and hence entitled to the benefits provided by LSA-R.S. 23:1221(2) of the compensation law. The trial court awarded a lump sum of $5,000 and assigned no reasons for judgment. Plaintiff has appealed seeking benefits for permanent and total disability, medical expenses and penalties and attorney fees.

Plaintiff was employed as a driver of refrigerated trucks by defendant, B.I.C. Corporation from December, 1980 until March, 1981. He sustained a back injury which led to a compensation settlement with defendants in December, 1981. In the present case plaintiff claims to be disabled from respiratory injury caused by ammonia inhalation on one of defendant’s refrigerated trucks in March, 1981.

Plaintiff testified as follows: One of the trucks he drove on a regular basis for the last few weeks of his employment had an ammonia leak. He smelled it while driving, whenever he opened the back of the truck, and especially when he entered the back of the truck at ten to fifteen delivery stops each day. The fumes caused dizziness, irritation of his eyes and sinuses, nausea and choking. He reported the leak to the mechanic, the truck was taken in for repairs, but the leak was not corrected. After he left his employment, he suffered with impaired breathing, shortness of breath, and headaches, but he didn't see a doctor about his problems because he had no money and didn’t relate the problem to his former employment. He finally did see Dr. Morton Brown, a specialist in pulmonary diseases, in January, 1982, on the advice of his attorney. Medication prescribed by Dr. Brown has given him some relief from his symptoms. But at the time of the trial in March, 1983, he was still suffering with shortness of breath, headaches, and impaired vision. He could not cut grass, climb stairs, or “walk fast or long.” He finally stopped smoking about nine months prior to trial. His testimony was corroborated in part by that of his wife..

Medical reports from Dr. Brown introduced by stipulation contain the following: Plaintiff came to him in January, 1982, complaining of difficulty with breathing, which commenced in March, 1981, when he inhaled ammonia fumes. Plaintiff has smoked one pack of cigarettes daily for many years. Testing indicated very severe obstructive ventillatory impairment. The doctor’s opinion was that in view of the history provided by plaintiff “it is most likely” that plaintiff’s exposure to the ammonia caused some “permanent damage to his bronchial system, causing very severe bronchiolitis and bronchitis.” The doctor’s first report concluded: “Although smoking can contribute in part, there is no doubt that the affects (sic) of ammonia inhalation of a significant concentration on the bronchial epithelium, can result in the derrange-ments (sic) that have been manifested by my studies in the office here on January 22, 1982.” On February 12 Dr. Brown found plaintiff with continued shortness of breath and wheezing and repeated his diagnosis of “severe obstruction of the small airways and moderate severe restrictive ventillatory impairment. On February 26, Dr. Brown conducted pulmonary function studies on plaintiff which demonstrated severe obstructive ventillatory impairment “but the degree of restriction is somewhat less.” Moderate improvement had resulted from the use of bronchodilators and possibly from other factors inherent in plaintiff’s condition of chronic bronchitis. At this time Dr. Brown told plaintiff he must stop smoking because this was an aggravating factor to the bronchitis. Dr. Brown stated that continuation of smoking would continue the inflammatory process. On April 13, 1982, Dr. Brown stated that plaintiff’s respiratory insufficiency and chronic lung disease left him totally and permanently disabled.

Defendants arranged for plaintiff to be examined by another specialist in pulmonary disease, Dr. Jay M. Shames, on September 3, 1982. His studies indicated that plaintiff had hyperinflation or excessive air trapped in his lungs which in turn indicated either pulmonary emphysema or chronic bronchitis. Both of these can be caused by smoking. Pulmonary function studies conducted on September 7 confirmed the diagnosis of obstructive lung disease in the form of bronchitis “and very likely pulmonary emphysema.” He thought it was “very unlikely” and “a very remote possibility” that ammonia inhalation could have caused plaintiffs condition. Instead he thought it resulted from cigarette smoking which plaintiff said he was still doing at the rate of a half-pack per day. He also thought plaintiffs condition might improve if he stopped smoking. As to disability, Dr. Shames thought plaintiff was disabled from doing any kind of work which would require great exertion. He was incapable of manual labor and climbing stairs, but he could drive an automobile or perform a desk job.

The principal difficulty with this case is the trial court’s award of a lump sum of $5,000. Plaintiff would have us amend the judgment to award benefits for permanent total disability under R.S. 23:1221(2) as written prior to amendment by Act 1, 1st Ex.Sess., 1983, but we are unable to do this on the basis of the record before us. The statute as then written provided as follows:

“(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

It was the trial court’s function to resolve the conflicts between Dr. Brown and Dr. Shames in the light of plaintiff’s testimony. Plaintiff’s smoking was a significant issue. He insisted that he had smoked only a half-pack of cigarettes per day and that he stopped about June of 1982'. Yet both doctors said he told them he smoked a full pack a day, and Dr. Shames said he was still smoking a half-pack daily in September, 1982. There are issues as to whether his condition was originally caused by smoking and even if not, whether it was significantly aggravated by smoking between March, 1981, and June or September, 1982, or even later. Furthermore, plaintiff’s condition prior to March, 1981, depends on his and his wife’s credibility.

In attempting to harmonize the judgment with the compensation act we have considered the possibility that the trial judge found plaintiff temporarily totally disabled and entitled as such to the benefits provided by R.S. 23:1221(1). He was earning about $150 per week so that the $5,000 was conceivably based upon two-thirds of that amount for 50 weeks. However, if the trial court concluded plaintiff was disabled when he left defendant’s employment and that disability was work related, all the medical evidence shows that such disability would be permanent. Furthermore, the $5,000 had to include almost $1,000 of medical expenses incurred by plaintiff at the time of the trial.

Even giving plaintiff every benefit of the doubt leaves in question the issue of whether plaintiff is entitled to permanent total disability benefits under R.S. 23:1221(2) or only partial disability benefits under R.S. 23:1221(3).

Plaintiff was entitled to an adjudication under the worker’s compensation law by being given a lump sum award which cannot be reconciled with the law or the facts. He was deprived of that right. On the other hand, the ultimate disposition of this case depends so heavily on an evaluation of plaintiff’s credibility and a reconciliation of conflicting medical testimony that it would be unfair and unjust to the defendants to assume that the trial court’s award represents an adjudication that plaintiff is totally and permanently disabled. This court should not be placed in the untenable position of performing the trial court’s function as the trier of fact. A remand under these circumstances is warranted by C.C.P. Art. 2164 which requires us to render a judgment “which is just, legal, and proper upon the record on appeal.”

Ordinarily, we would permit the trial- court on remand to consider the full spectrum of possibilities, including dismissal of plaintiff’s case, but the status of the record prevents this. Defendants neither appealed nor answered the appeal so that the award of $5,000 is res judicata. Plaintiff is entitled to this amount at least, if no more. As to plaintiffs claim for penalties and attorney fees, a resolution of this issue can likewise best be made by the trial court.

Accordingly, this case is remanded to the trial court so that a proper adjudication can be made as to what benefits under the worker’s compensation law plaintiff is entitled. In no event is plaintiff entitled to less than $5,000 with legal interest from date of judicial demand. All costs to date, including costs of this appeal, are assessed against defendants.

REMANDED.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Howard DOUGLAS v. Remig E. LATERRADE, Jr. and Dairyland Insurance Company.
    No. CA 0567.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Louis A. Gerdes, Jr., Gerdes & Yalteau, New Orleans, for plaintiff-appellant.
    Michael E. Wanek, Hulse, Nelson & Wanek, New Orleans, for defendant-appel-lee.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dated April 26, 1982 granting Dairyland Insurance Company’s exception of res judicata and dismissing plaintiff's suit. From that judgment which we affirm, plaintiff appeals.

Howard Douglas and Remig E. Later-rade were apparently involved in an automobile accident. Plaintiff Douglas filed a petition asserting a cause of action against Defendant Laterrade. Believing the defendant to be uninsured, plaintiff also sued his Uninsured Motorist carrier, Dairyland Insurance Company.

Plaintiff later filed an amended petition alleging that Laterrade was insured by Government Employees Insurance Company (GEICO) and adding GEICO as a defendant. Plaintiff additionally amended his suit against Dairyland from one of uninsured motorist to underinsured motorist.

On November 12, 1980, Howard Douglas signed a “Receipt and Release with Indemnity” settling his case for the amount of $4500.00. The document provides as follows:

“For and in consideration of payment to me by and on behalf of the parties released of the sum of FOUR THOUSAND FIVE HUNDRED AND AND 00/100 ($4,500.00) dollars, receipt of which is hereby acknowledged, I hereby release and forever discharge Remig E. Later-ade, Jr. and all those for whose acts and omissions any of said parties might be responsible, all persons who might be responsible for the acts and omissions of any of said parties, and their respective insurers, including Government Employees Insurance Company of and from any and all claims, demands, actions and causes of action for damages, compensation, medical payments, court costs, attorney’s fees, penalties, interest, expenses and loss of any and every kind whatever, whether or not of the kind enumerated, directly or indirectly sustained or suffered by me on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage which resulted or may result from a collision which occurred between vehicles driven by Howard Douglas and Remig E. Later-ade, Jr. at or near the intersection of North Claiborne Avenue and Tennessee St. in New Orleans, La. which event occurred on or about April 6, 1979 including, without limitation, all claims and demands made by me in the suit entitled “Howard Douglas v. Remig E. La-terade, Jr. and Government Employees Insurance Co.” Civil District Court for the Parish of Orleans, No. 80-4055, Division C.
I understand that the injuries and damages sustained by me may be permanent and progressive and that recovery therefrom may be uncertain and indefinite; and I understand and agree that in making this settlement and in giving this receipt and final and complete discharge and release, I am relying wholly upon my own judgment, belief and knowledge as to the nature, extent and duration of said injuries and damages, and upon the advice of my physician and my attorney, and I acknowledge that I have not been influenced in any manner in making this settlement and giving this release by any representations or statements whatever made by the parties hereby released, or by anyone representing them or any of them.
In further consideration of said payment I agree to defend, protect, indemnify and hold harmless each of the parties released from any and every claim or demand, loss and expense of every kind, which may ever be asserted by me for my account or by anyone else arising out of my own injuries and damages as set forth above; and each of the parties released shall be entitled to plead this obligation and this release in defense of any such claim.
I hereby authorize my attorney of record to dismiss with prejudice at my cost any suit or claim which I may have brought or which may have been brought in my behalf, arising out of the matters described above.
I have read this entire document and understand every thing herein contained; and I am satisfied in every respect to accept said sum of money with full knowledge that in so doing I am giving up all of the rights and claims that I have of may have against all persons in consequence of said accident, injuries and damage.
I understand and agree that the payment to me of the sum described above is not an admission of liability or negligence, that this release shall in no way be construed as a determination of the negligence or freedom from negligence of any of the persons involved, and that this release may in no way be construed to relieve me from any liability which I may have to any person, including those released hereunder, as a result of my acts or omissions in connection with the subject accident.
If there be more than one party executing this release, the use of the singular person throughout this release in reference to the parties executing same shall be construed to mean and shall refer to each and all of said parties. If there by only one named party in whose favor this release is executed, the use of the plural person throughout this release in reference to the parties released shall be construed to mean and shall refer to said named party, provided that all of the rights and claims of the party or parties executing this release shall be discharged and released hereby as against all persons named or unnamed in the absence of a special reservation of rights.” (emphasis added).

On December 1, 1980, a joint motion to dismiss was filed. The motion was signed by both counsel as follows:

“Submitted and notice of judgment waived
s/Louis A. Gerdes, Jr. LOUIS A. GERDES, JR. Attorney for Plaintiff
s/W. Paul Andersson W. PAUL ANDERSSON Attorney for Defendants”

The joint motion to dismiss provided as follows:

“On joint motion of counsel for the parties in the above entitled and numbered case, and on suggesting to the court that all matters of controversy between the parties subject of this action, including the principal demand, all third party demands and any other incidental demands at issue, have been compromised and settled, and that said action should accordingly be dismissed with prejudice as to all demands principal or incidental, each party to bear his own costs.” (emphasis added).

That motion was made a judgment of the court on December 1, 1980, further providing:

IT IS ORDERED BY THIS COURT that the above entitled and numbered cause be and it hereby is dismissed with prejudice as to plaintiffs and as to all other demands principal and incidental, each party to bear his own costs.” (emphasis added).

On March 19, 1982, Dairyland filed an exception of res judicata alleging that plaintiffs petition had been dismissed on December 1, 1980 and seeking that plaintiffs suit against it be dismissed.

Plaintiff failed to reserve his rights to proceed against Dairyland, his own UM insurer. It is apparent to this court that both the “Receipt and Release” and the Joint Motion to Dismiss repeatedly stated that all parties, all claims, and all actions were being dismissed and settled. Accordingly, Dairyland’s exception seeking to be dismissed — or more precisely seeking confirmation that it had already been dismissed by the December 1, 1980 judgment — was properly granted. •

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


text:
    Mrs. Florine JACKSON v. The WESTERN AND SOUTHERN LIFE INSURANCE COMPANY.
    No. CA 1351.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Louis A. Gerdes, Jr., Gerdes & Yalteau, New Orleans, for plaintiff-appellee.
    Raymond J. Salassi, Jr. and James P. Browning, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON, and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dated April 26, 1983, granting judgment in favor of Mrs. Florine Jackson and awarding her $5,000.00, with an 8% penalty from August 31, 1982 until paid, plus judicial interest and all costs. From that judgment which we affirm, defendant Western & Southern Life Insurance Company appeals.

On July 1, 1974, Mrs. Florine Jackson purchased a life insurance policy with a face amount of $2,000.00 issued by defendant, insuring her life and naming her children as beneficiaries. At that time she also purchased a life insurance policy insuring her minor children and naming herself as beneficiary, which policy was given the sales name “Family Children Security Protector” policy, (hereinafter FCSP policy).

The FCSP policy provided for several types of coverage (benefits):

1. Death
2. Loss of Sight or Limbs
3. Accidental Death
4. Death, Accidental Death or Loss of Sight/Limbs While a Fare-Paying Passenger on a Public Conveyance

The FCSP policy covered the child until his 25th birthday or the FCSP “Cease Date,” in this case 7/1/99. The FCSP policy also provided exclusions for suicide under the Accidental Death Benefits and under the Loss of Sight of Limbs Benefit, which ex-eluded “intentionally self-inflicted injury or self-inflicted injury while insane.” The trial judge apparently found that the FCSP policy did not provide a suicide exclusion under the Death Benefits provision. Lastly, the FCSP policy also provided an exchange clause:

“EXCHANGE While this agreement is in force an Insured Child may, upon written request and payment of the first premium within 31 days prior to the earlier of his 25th birthday and the Family Children Security Protector Cease Date, exchange the insurance on his life as of such date without evidence of insurability for any endowment or level premium limited payment life plan then issued by Western and Southern. The amount shall not be less than $1,000 nor more than five times the Life Insurance Amount. The premium rate will be that charged for the plan and amount at the then attained age of such child. No waiver of premium, accidental death, loss of sight or limbs or other additional benefit shall be included in the policy except with the consent of Western and Southern.” (emphasis supplied)

Kenneth Jackson’s FCSP policy expired on March 10, 1979, his 25th birthday. Pursuant to the exchange clause, Kenneth Jackson exchanged his FCSP policy for a new life insurance policy number 41242393 face amount $5,000.00 issued October 9, 1981. The new policy contained the following suicide exclusion:

“We will not pay any benefits if the Insured dies by suicide ... within two years from the policy date. If the policy is in force at that time, we will return the premiums you paid less any policy loan.”

While a death certificate is admissible to show only that a death occurred' and not to show the cause of death, all parties have agreed that Kenneth Jackson died by suicide on May 31, 1982.

Mrs. Florine Jackson made a claim against the policy and defendant issued a check to her in the amount of $4,509.00 and to the funeral parlor in the amount of $491.00. Mrs. Jackson negotiated the check, depositing it in a homestead account. Defendant then stopped payment on both checks and plaintiff brought this suit.

The trial judge granted judgment in favor of plaintiff and, on a denial of a motion for new trial, provided the following written reason for judgment:

“The ‘then issued’ limitation on the exchange clause is potestative and invalid.”

On appeal, defendant-appellant argues:

1. That the FCSP policy did contain a suicide exclusion, hence the policy issued to Keith Jackson for the face amount of $5,000.00 was not more restrictive than the FCSP policy.
2. The “then issue” clause is not a potestative condition.
3. The issue of compromise is not before the court.

Counsel for plaintiff raised the third argument that defendant’s issuance of the initial checks in response to plaintiff’s claim under the policy was evidence of a compromise. This issue is blatently erroneous as no denial of coverage was in exis-tance at the time the check was issued and no suit or demand in response to a denial was filed or made. While there is an interesting negotiable instrument question inherent in this fact situation, it deals with persons who are not party to this suit and the issue is not properly before this court. Accordingly, this issue .will not be further addressed.

The Kenneth Jackson policy issued for the face amount of $5,000.00 contained the following language:

“We will not pay any benefits if the Insured dies by suicide, while sane or insane, within two years from the policy date. If the policy is in force at that time, we will return the premiums you paid less any policy loan.” (emphasis supplied)

Because this policy was issued as a result of the exercise of the exchange clause in the FCSP policy, the $5,000.00 policy also contained the following additional language:

“This policy is issued under a right to exchange or option in another policy, number 7458651, or in a rider attached to it. This policy requires the insured to be in good health when the policy is received and the first premium is paid. We waive this requirement. This policy also provides that the incontestable period will start with this policy’s date. We will use an earlier date. That date will be the date of the other policy of the applicable rider or, if reinstated, the date of the last reinstatement.” (emphasis supplied)

Under the above language, we find that the “policy date” of the $5,000.00 policy is July 1, 1974, the date of the previous policy. Accordingly, Kenneth Jackson’s death by suicide, occurring on May 31,1982 was well beyond the “two years from the policy date” time period which thus ended on July 1, 1976. See also: R.S. 22:170(B)(3).

In Brady v. Fidelity Mutual Life Association, 13 Orl.App. 35 (1916), Judge Charles F. Claiborne as organ of the court stated:

“A clause in a policy making it incontestable after two years from its date will control an agreement in the application that death by suicide is not covered by the policy so that such death by suicide after the expiration of that period will not defeat liability on the policy.”
⅝ ⅝ ⅜! Sfc ⅝! ⅜
“The usual clause rendering the policy incontestable after it has been in force for a specified time excludes the defense of breach of condition by suicide, after the policy has thus become incontestable.” (AT 39).

The actual language of the FCSP policy is as follows:

“DEATH BENEFIT
Western and Southern will, subject to the terms and conditions of this agreement, pay the beneficiary the applicable Life Insurance Amount upon receipt of due proof that the death of an Insured Child occurred prior to the earlier of such child’s 25th birthday and the Family Children Security Protector Cease Date.
LOSS OF SIGHT OR LIMBS BENEFIT
Western and Southern will, subject to the terms and conditions of this agreement, pay the beneficiary the applicable Loss of Sight or Limbs Benefit ... No Loss of Sight or Limbs Benefit will be paid for any loss that results from (1) intentionally selfinflicted injury of self-inflicted injury while insane or (2) war, declared or undeclared, or any cause of act of war, whether or not such Insured Child is a member of any armed forces.
ACCIDENTAL DEATH BENEFIT
Western and Southern will, subject to the terms and conditions of this agreement, pay an Accidental Death Benefit ... EXCLUSIONS The Accidental death Benefit will not be payable if the death of an Insured Child or the injury causing death ...
(4) results from suicide, while sane or insane;
PUBLIC CONVEYANCE BENEFIT
IF A BENEFIT IS PA YABLE under the Accidental Death Benefit of Loss of Sight or Limbs Benefit as a result of accidental bodily injury sustained while an Insured Child was a fare-paying passenger in or upon a public conveyance operated by a licensed common carrier or taxicab service or an authorized passenger in or upon a school bus operated on an officially authorized scheduled trip, Western and Southern will pay a Public Conveyance Benefit equal to twice the amount payable under the Accidental Death Benefit or Loss of Sight or Limbs Benefit as a result of such accident.” (emphasis added).

It is apparent to this court that of the four types of benefits, both loss of sight/limbs and accidental death provide for specific suicide exclusions which would be binding upon the Public Conveyance Benefit, but no suicide exclusion was provided for Death Benefits.

We do not agree with the trial court’s finding that a potestative condition exists. We do, however, find that the issuance of a more restrictive policy with an exclusion that did not exist in the prior policy constituted, in light of the facts of this specific case, an error bearing on the “substantial quality” of the “object” under C.C. Article 1844 such that the more restrictive suicide exclusion clause in the second policy should be stricken. We further conclude that the trial judge acted properly in striking that clause.

Additionally, we find that under the policy date provision cited above, the policy date is July 1, 1974 such that Kenneth Jackson’s suicide occurring on May 31, 1982 was well beyond the two year limitation of the policy. This court is well aware that there exists a popular myth that “life insurance benefits are not payable in the event of death by suicide.” This myth is only partially true; life insurance benefits are payable where the death by suicide occurs after two years from the policy date and any more restrictive clause is invalid under our law, specifically R.S. 22:170(B)(3).

R.S. 22:170(B)(3) provides as follows:

“B. No policy of life insurance delivered or issued for delivery in this state shall contain any provision which excludes or restricts liability for death caused in a certain specified manner or occurring while the insured has a specified status, except the following provision, or provisions which in the opinion of the commissioner of insurance are substantially the same or more favorable to policyholders:
* * * * * *
(3) As a result of self-destruction while sane or insane within two years from the date of issue of the policy.”

Accordingly, we find that the court below committed no error and, for the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . Mrs. Jackson paid the thus outstanding funeral parlor bill, hence the award of $5,000.00 to her by the trial judge.


text:
    George L. HARTDEGEN, JR., Individually, and as Administrator of the Estate of His Minor Son, Troy M. Hartdegen v. Keith GREMILLION, Marie F. Gremillion, Octave Gremillion, Jr., Individually and as Administrator of the Estate of His Minor Son, Keith Gremillion, State Farm Mutual Automobile Insurance Company, State Farm Fire & Casualty Company and Horace Mann Insurance Company.
    No. CA 1535.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Ewell C. Potts, III, Tillery & Potts, Chal-mette, for plaintiff-appellant.
    W. Marvin Hall, Hailey, McNamara, Hall, Larmann & Papale, Metairie, for defendants-appellees.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dated August 22, 1983, granting a summary judgment in favor of defendant State Farm on the issue of potential coverage under the Gremillion’s homeowner’s policy. From that judgment which we reverse and remand, plaintiff appeals.

The standard for granting a motion for summary judgment is two-fold:

(1) whether there exists any genuine issues of material fact; and

(2) whether the mover is entitled to judgment as a matter of law.

Additionally, all reasonable doubts are resolved against the granting of the motion.

In the instant case, Troy M. Hartdegen, a minor guest passenger in the Gremillion vehicle, was injured in an automobile accident which occurred on August 13, 1982, while Keith Gremillion, a minor, was operating his parent’s car. The Hartdegens sued the Gremillions and their insurer, State Farm. The actions against State Farm are three-fold:

1. State Farm as auto insurer and under the auto policy (not on appeal).

2. State Farm as homeowner insurer and under the homeowner’s policy:

a) covering the actions of Keith Gremil-lion via the concept of the vicarious liability and strict liability attributable to his parents; and

b) covering the separate and independent acts of negligence committed by Octave and Marie Gremillion in the home premises.

The State Farm homeowners policy provides for the following exclusion:

“e. bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:
(1) an aircraft;
(2) a motor vehicle owned or operated by, or rented or loaned to any insured; or
(3) a watercraft ...” (underline added).

Additionally, the policy provides the following definition of “insured”:

“3. ‘insured’ means you and the following residents of your household:
a. your relatives;
b. any other person under the age of 21 who is in the care of any person named above.” ■ (underline added).

State Farm moved for summary judgment, on the homeowner’s policy, arguing that the motor vehicle exclusion cited above applies. Plaintiff argued that the exclusion does not apply because the minor was not an “insured” as cited in the exclusion and was not an “insured” under the policy definition because he was not a resident at the time of the accident. There is no evidence in the record indicating Keith Gremillion’s residence at the time of the accident, but it is clear to this court that if Keith Gremillion.was not a resident at the time of the accident, then he is not an insured under the exclusion, hence the exclusion does not apply and the homeowner’s policy is available for potential recovery. Accordingly there exists a genuine issue of material fact such that summary judgment was improperly granted.

In Dofflemyer v. Gilley, 395 So.2d 403 (App. 3rd, 1981) our brethern on the Third Circuit confronted the same situation:

“... the issue is whether Fred was a resident of his father’s household at the time of the accident.1 The exclusion applies if Fred was a resident of his father’s household. Thus, GEICO is liable if Fred was not a resident of his father’s household at the time of the accident. The evidence shows that Fred had lived with his parents until April 29, 1976, at which time he moved from his parents’ home to another address in Lake Charles. Neither Mr. Moore nor his wife knew exactly where their son was living after this time. The accident occurred on June 26, 1976.
According to their testimony, the only way his parents could communicate with Fred after he moved was at his place of employment. Fred did return home from time to time for a meal or to wash his clothes. But, Mr. Moore testified that his son removed all of his belongings with the exception of two dress suits, which he never wore. Moreover, certain documents introduced at trial, namely a 1975 traffic ticket, a 1975 accident report, a 1975 W-4 Form (Employee’s Withholdings Allowance Certificate), a 1976 W-2 Form (Wages and Tax Statement), a 1976 motel receipt, and an envelope with a 1976 postmark showed that Fred was using an address at 613 West Claude Street in Lake Charles, which was not his father’s address.
(3) A person’s residence is determined from the particular facts of each case. Ladner v. Andrews, 216 So.2d 365 (La. App. 3rd Cir.1968). Our Supreme Court in Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 (La.1965) was confronted with a similar problem. There, an unemancipated minor left his home in Arkansas to reside with his uncle in Louisiana, where he worked. He moved those clothes necessary for his work and visited his parents when he had time off. The court concluded that the minor had only temporarily left his parents’ home, and that he had not established a separate residence in Louisiana. More recently in Branam v. Traders & General Ins. Co., 344 So.2d 1073 (La. App. 3rd Cir.1977), a minor whose parents resided in Many, Louisiana,.entered college at Northwestern University in Natchitoches. The minor shared an apartment with a friend, where he kept all of his clothes and was self-supporting. He would visit his parents about once a month for the week end and would sometimes wash his clothes there. The court affirmed the trial court’s finding that the minor’s residence was in Natchitoches and not with his parents. See also Flannigan v. Valliant, 371 So.2d 349 (La. App. 4th Cir.1979), where a minor who had removed all his personal belongings from his father’s apartment, was self-supporting and chose voluntarily to leave home, was held not to be residing with his father. '-!
In this case, we conclude the jury was clearly wrong in finding that Fred’s residence was with his parents at the time of the accident. Unlike Taylor, Fred’s voluntary decision to leave his parents’ house was permanent, and he showed no intention of returning to or being dependent on his parents. Fred clearly was no longer a member of his father’s household., Thus, the exclusionary provision in the GEICO policy is inapplicable.”
"1. GEICO had previously moved for a summary judgment based on this issue. The trial court granted summary judgment in favor of GEICO, and defendant’s father, Frederick Moore, Sr., appealed. This court, without ruling on Fred’s actual residence, held summary judgment was improper and reversed. Dofflemyer v. Gilley, 360 So.2d 909 (La.App. 3rd Cir. 1978).’’ (At 405-406) (emphasis added).

Because we are reversing on the basis discussed above, this court’s discussion of plaintiff’s second theory of error is preter-mitted.

For the reasons discussed, the judgment of the district court is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.


text:
    Nicholas WILSON v. A-I INDUSTRIES, INC. and Fireman’s Fund Insurance Company.
    No. CA 1598.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Steven M. Koenig, Heisler & Wysocki, New Orleans, for plain tiff-appellant.
    Gerard M. Dillon, Dillon & Cambre, New Orleans, for defendants-appellees.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dated October 11,1983, granting defendants’ Motion for Summary Judgment. Prom that judgment which we vacate, annul, and set aside, plaintiff appeals.

The test for granting a motion for summary judgment is two-fold:

(1) whether there exist(s) any genuine issue(s) of material fact; and

(2) whether mover is entitled to judgment as a matter of law. Additionally, any reasonable doubts are resolved against the granting of the motion.

In the instant case, plaintiff alleges that he was injured on July 28, 1982 on the premises of A-l Industries, Inc. at 600 Peters Road, Harvey, Louisiana. At the time of the injury, plaintiff was employed by Weiser Security Services, Inc. Weiser was hired by A-l to provide security service to the Peters Road plant. A-l is a steel fabricator and erector company. A-l’s insurer is Fireman’s Fund Insurance Company.

A-l and Fireman’s Fund argue that A-l was the statutory employer of plaintiff under R.S. 23:1032; 23:1061, hence plaintiff cannot sue A-l as a third-party tortfeasor in tort, but rather is limited to Workmen’s Compensation relief, as statutory employers are immune from tort suits by their statutory employees.

R.S. 23:1032 provides as follows:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
The immunity from Civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee or such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

R.S. 23:1061 provides:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

When determining statutory employer/employee status under the “trade, business, or occupation” test the courts look to the factual circumstances surrounding the entire scope of the work contracted out, the specific task being performed at the time of the employee’s injury, where the specific task fits into a specific job, and how that job fits into the scope of the work as a whole.

A-l Industries is in the business of steel fabrications and steel erections. It is not in the security business. At one time, A-l had hired its own employees as security guards, but it abandoned that practice some 2 years before the accident now before us. Two months after the instant accident, A-l began hiring its own employees as security guards. However to para-phase the Louisiana Supreme Court in Lewis v. Exxon Corp., 417 So.2d 1292 (App. 1st, 1982), writ granted 422 So.2d 422 (La.1982); 441 So.2d 192, 199 (La.1983):

“Since (A-l) was not engaged in the trade, business, or occupation of (security) at the time of the accident, it was not a statutory employer of plaintiff who was engaged in such operations. Consequently, (A-l) is not protected by the exclusive remedy rule of the worker’s compensation statute. Plaintiff’s right to sue ex delicto, therefore, must be sustained.”

Defendants rely heavily upon Adams v. East Metals Corp., 363 So.2d 541 (La.App. 1st, 1978). East involved the grant of a summary judgment in a case involving a security guard. East has not been cited in a reported case since its rendition. Additionally, under the “law of the circuit” rule this First Circuit decision is not binding upon the Fourth Circuit court, but rather is persuasive only. Most importantly, however, it appears that East as well as its predecessor Gant v. Jackson Brewing Co., 112 So.2d 767 (La., Orl.App., 1959) along with the Gant minority line of jurisprudence, has been impliedly overruled by Lewis v. Exxon, above. Thus we conclude that the district court erred in granting summary judgment.

For the reasons discussed, the judgment of the district court is vacated, annulled, and set aside.

VACATED, ANNULLED, AND SET ASIDE.


author: BARRY, Judge.

text:
    Dennis I. OLBRYCH v. LOUISIANA STATE RACING COMMISSION.
    No. CA-1581.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Edward A. Armstrong, Jr., Jefferson, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for defendant-appellee.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   BARRY, Judge.

A horse trainer appeals his three year suspension by the state Racing Commission.

Dennis Olbrych complains that the stewards failed to comply with the Louisiana Administrative Procedure Act (LAPA) LSA-R.S. 49:951 (et seq.), in particular Section 955. He also contends he did not receive timely notice in order to hire an expert to testify at the Stewards’ or Commission’s hearing.

Mr. Olbrych was the trainer of Kinda Flashy which finished second in the fourth race on October 7, 1982 at Delta Downs. The post-race urine analysis tested positive for prohibited drugs: Methyl Phendiate (Ritalin), Mephentermine, and DMSO Metabolite. The three Stewards held a hearing on October 14. Mr. Olbrych was present and advised of his right to counsel which he waived. He also waived his right to have a split sample run. Mr. Olbrych stated he did not know how the drugs got into his horse but knew he was responsible. On October 18 the Stewards ruled he violated LAC 11-6:53.18, 53.19 and 54 of the Rules of Racing, suspended him, and redistributed the purse money. Mr. Olbrych did not appeal the ruling as allowed by R.S. 4:154(B); however, the Stewards referred the violation to the Racing Commission.

On October 26, 1982, Mrs. Olbrych signed for a certified letter addressed to her husband. The letter notified him of the Stewards' ruling, the date, time, and place of a hearing before the Commission, his right to counsel, the nature of the hearing, and the rules he allegedly violated.

The Commission met on November 4 and Mr. Olbrych appeared without counsel and was his only witness. He testified:

“I don’t know how the stuff got into the horse. He was left alone for about 10 to 15 minutes before his race... I don’t know how it got there. That’s the only thing I can say.”

He admitted a prior suspension in 1980 due to another drugged horse and said:

“I didn’t want to try to fight this because the lab showed it was there, and I don’t have any way to prove that I didn’t give it. But, surely, I wouldn’t give Ritalin again, because I was here back in 1980 for it.”

The Commission upheld the Stewards’ ruling, ordered Mr. Olbrych suspended for three years, and denied him track privileges during the suspension. The Commission’s decision was upheld by the district court.

LSA-R.S. 49:955 provides in pertinent part:

A. In an adjudication, all parties who do not waive their rights shall be afforded an opportunity for hearing after reasonable notice.
B. The notice shall include:
(1) A statement of the time, place, and nature of the hearing;
(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) A reference to the particular sections of the statutes and rules involved;
(4)A short and plain statement of the matters asserted.
* * sje * ⅜ *
C.Opportunity shall be afforded all parties to respond and present evidence on all issues of fact involved and argument on all issues of law and policy involved and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
⅛ ⅛ $ ‡ ⅛ $

The LAPA does not create a right to a hearing before any action can be taken. A “Section 955” hearing applies to an adjudication by a state agency. Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980). Section 951 of the Act defines the relevant terms:

(1) “Adjudication” means agency process for the formulation of a decision or order.
(2) “Agency” means each state board, commission, department, agency, officer, or other entity which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof, any political subdivision, as defined in Article VI, Section 44 of the Louisiana Constitution, and any board, commission, department, agency, officer, or other entity thereof, and the courts.
(3) “Decision” or “order” means the whole or any part of the final disposition (whether affirmative, negative, injunc-tive, or declaratory in form) of any agency, in any matter other than rulemaking, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing, and including non-revenue licensing, when the grant, denial, or renewal of a license is required by constitution or statute to be preceded by notice and opportunity for hearing.

The stewards are not an agency as defined in the act because they do not “make[] rules, regulations, or policy, or formulate[ ] or issue[ ] decisions or orders ...” The suspension by the stewards was not a “decision” or “order” since it was not a “disposition ... required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing...”

The stewards’ power to suspend is in R.S. 4:172(M) which provides:

The stewards may suspend for no greater period than the duration of the meeting plus ten days, or they may impose a fine not exceeding $200. All such suspensions and fines must be reported to the commission. If the punishment so imposed is not in the opinion of the stewards sufficient, they shall so report to the commission.

Since the disposition by the stewards does not result in a “decision” or “order”, it is not an adjudication and Section 955 does not come into play. Delta Bank and Trust Co., supra; see also Louisiana Administrative Procedure Act, Robert Force and Lawrence Griffith, 42 La.L.Rev. 1227 (1982).

Section 961 C of the Act provides:

C. No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

Section 961 C is also inapplicable to the Stewards.

However, the stewards must comply with the Commission’s Rules of Racing:

6:53.17 When a report as described in Section 53.15 is received from the State chemist, the stewards shall conduct an investigation and a hearing. There shall be no ruling and the stable shall remain in good standing pending a ruling by the stewards. However, the horse allegedly to have been administered any such chemical substance or material shall not enter in a race during the investigation and hearing.
6:53.15 When a report is received from the State chemist reflecting in his expert opinion that the chemical analysis of blood, saliva, urine, or other samples taken from a horse indicate the presence of a forbidden narcotic, stimulant, depressant, or analgesic, local anesthetic or drugs of any description, not permitted by LAC 11-6:54, this shall be taken as prima facie evidence that such has been administered to the horse. Such shall also be taken as prima facie evidence that the owner, and/or trainer, and/or groom has been negligent in handling of the horse.
6:53.19 Should the chemical analysis of any sample of the blood, saliva, urine, or other excretions of body fluids of any horse so analyzed contain any narcotic, stimulant, depressant, local anesthetic, analgesic, or drugs of any description, not permitted by LAC 11-6.54, the trainer of the horse may, after a hearing of the stewards, be suspended or ruled off, if the stewards conclude that the drug contained in the sample could have produced analgesia in, stimulated, or depressed the horse, or could have masked or screened a drug, not permitted by LAC 11-6.54, that could have produced analgesia in, stimulated or depressed the horse. The stable foreman, groom, and any other person shown to have had the care or attendance of the horse may be suspended, or ruled off. The owner or owners of a horse so found to have received such administration shall be denied, or shall promptly return, any portion of the purse or sweepstakes and any trophy in such race, and the same shall be distributed as in the case of a disqualification.

Thus, a hearing is mandatory after a violation and before a suspension. Since the hearing involves a property right, i.e., the trainer’s license, the alleged offender must receive adequate and timely notice, be advised the nature of the alleged offense, and the right to be present and represented. All of these basic rights were afforded to Mr. Olbrych.

By virtue of LSA-R.S. 4:154 the Racing Commission’s “hearings, practice and procedure, and rule making procedure are as provided in the Administrative Procedure Act...” The requirements of Sections 955 and 961 C were met by the Commission. Mr. Olbrych received timely, proper notice and had the opportunity to present evidence. He again waived his right to an attorney. It is clear that he made no effort to challenge the findings of the state chemist and admitted he had no defense to the charge.

According to Mr. Olbrych’s application for his owner/trainer’s license, he read and agreed to abide by the rules and regulations of the Racing Commission. LAC 11-6:53.15 says that a positive report from the state chemist is prima facie evidence that a drug had been administered to the horse and the trainer has been negligent. Mr. Olbrych presented nothing to rebut the evidence. The trainer is responsible and the absolute insurer of his horse’s condition regardless of acts of third parties.

We are completely satisfied that Mr. Ol-brych’s rights were protected by the stewards and the Commission. This matter is affirmed at appellant’s cost.

AFFIRMED.

      . 6:53.18 The trainer and/or assistant trainer shall be responsible for and be the absolute insurer of the condition of the horses he enters regardless of acts of third parties. Trainers and/or assistant trainers are presumed to know the rules of the Commission.
      6:53.19 Should the chemical analysis of any sample of the blood, saliva, urine, or other excretions of body fluids of any horse so analyzed contain any narcotic, stimulant, depressant, local anesthetic, analgesic, or drugs of any description, not permitted by LAC 11-6:54, the trainer of the horse may, after a hearing of the stewards, be suspended or ruled off, if the stewards conclude that the drug contained in the sample could have produced analgesia in, stimulated, or depressed the horse, or could have masked or screened a drug, not permitted by LAC 11-6:54, that could have produced analgesia in, stimulated or depressed the horse. The stable foreman, groom, and any other person shown to have had the care or attendance of the horse may be suspended, or ruled off. The owner or owners of a horse so found to have received such administration shall be denied, or shall promptly return, any portion of the purse or sweepstakes and any trophy in such race, and the same shall be distributed as in the case of a disqualification.
      6:54 lists permitted medications.


text:
    Diann James MASON v. Albert Lee MASON, III.
    No. CA-1616.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      W. Donald Cashio, New Orleans, for plaintiff-appellant.
    J. Terrell Heath, New Orleans, for defendant-appellee.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   BARRY, Judge.

In this legal separation the wife appeals the fault determination and seeks continuation of alimony pendente lite.

Diann Mason sued A1 Mason for divorce alleging adultery; he reconvened for a separation on mental and physical cruelty. The wife amended her petition, alternatively seeking a separation on mental cruelty. Several months prior to trial the wife was awarded custody of their minor child with support of $250 per month and $400 per month alimony.

After trial the court granted the husband a separation and rejected the wife’s petition specifically finding her at fault and the husband free from fault. The trial court continued the child support payments and stated: “[T]he wife, having been found with fault, is not entitled- to alimony.”

Diann testified that A1 frequently was away from home for days without notice or justification; that he constantly provoked arguments; and that he was having an affair. Her private investigators said A1 spent 2 or 3 hours one evening in his apartment with a woman and a few minutes on another occasion. Al and the woman admitted visiting a few times, but denied any relationship. He denied leaving home for long periods except while working offshore.

A1 claimed his wife went to singles’ bars five or six nights a week and often stayed out all night. Three neighbors testified that on two occasions while A1 was working the parties’ 3-year old child was found crying outside the house at 5:00 and 7:00 a.m. and Diann was not home. Both times Diann got home later in the morning and was “all dressed up.” The neighbors also saw various male visitors at the house while A1 was working.

Diann’s therapist, with whom she “discussed relationships that she had during the marriage,” conceded she mentioned extramarital relationships to him. The wife said that “Mostly all of the guys in the 7th [N.O.P.D.] district” went by her house to check up on her when her husband was away.

A1 testified his wife caused financial problems by purchasing expensive jewelry, cosmetics, etc., even after they claimed bankruptcy. Diann admitted spending several thousand dollars on a Rolex watch, diamond necklace and earrings. She attributed their financial straits to Al’s gambling offshore, but the amounts appear to be minimal.

The parties separated after Diann shot A1 in the head. Diann testified the shooting occurred after she saw her husband’s car by a bar; she went in and saw A1 kissing and hugging another woman. She said when A1 got home later he tried to run over her in another car and “That’s why I shot him. I was protecting my own life.” A1 denied being with a woman in the bar and testified he was asleep when Diann got home and threatened to shoot him. She went outside and shot at his car as he was packing to go offshore. He fled the house and was backing out of the driveway when Diann fired one shot through the windshield and another shot which grazed his head.

We agree that Diann was at fault in causing the separation. Her admission that she shot her husband and the convincing testimony regarding her night life and neglect of marital responsibilities amply supports the finding of cruel treatment. It is clear there was no resumption of the marital relationship after the shooting and no intent by either spouse to resolve their differences and continue the marriage. Miller v. Miller, 398 So.2d 1162 (La.App. 2d Cir.1981); Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir.1976).

This Court also finds no abuse of discretion in the rejection of Diann’s petition for divorce based on adultery. The testimony of the two investigators was conflicting, including whether the alleged correspondent spent the night at Al’s apartment or left a few minutes after he arrived home. The totality of the testimony merely showed Al and the woman spent several hours in his apartment on one or two evenings. In domestic litigation fact findings of a trial judge, based on evaluations of ■ credibility of conflicting witnesses, are entitled to particularly great weight. Allemand v. Allemand, 415 So.2d 463 (La.App. 1st Cir.1982).

The trial court properly held that Diann is not entitled to “pension” alimony since she is at fault. LSA-C.C. Art. 160; Couvillon v. Couvillon, 427 So.2d 91 (La. App. 4th Cir.1983).

However, the court did not resolve alimony pendente lite. Approximately four months before trial a hearing was held on the wife’s rule for child support and alimony pendente lite. The husband testified he earns slightly over $30,000 per year. The wife testified she has not been employed full-time since January, 1981 and has been earning about $400 a month from temporary jobs. She listed expenses of $1942.19 per month. Diann was awarded $250 per month child support and alimony pendente lite of $400 per month. A1 moved for a new hearing which was denied one month later after another hearing. The husband could have taken an appeal, Traylor v. Traylor, 337 So.2d 922 (La.App. 3d Cir. 1976), but did not.

Alimony pendente lite was not an issue at trial on the merits. While there was a modicum of testimony regarding the parties’ employment status and expenditures, that evidence concerned the issue of fault. There was no new evidence indicating a change in the parties’ financial circumstances since alimony pendente lite was set four months earlier. The legal separation judgment continues the prior child support and custody, but omits reference to alimony pendente lite. Fault is not a bar to alimony pendente lite. LSA-C.C. Art. 148; Levine v. Levine, 373 So.2d 1380 (La.App. 1st Cir.1979). Thus, the trial court, having found the wife at fault, merely stated the eventual consequence of that determination in the event of divorce.

The husband cites several cases supporting the trial court’s discretion in setting alimony pendente lite and argues that, “The court obviously made the factual determination that [the wife] ... was not without sufficient income so as to entitle her to alimony pendente lite.” There is no indication that the trial court considered that question or made such a determination.

A judgment awarding alimony pendente lite remains in effect until it is judicially modified or terminated or until divorce. We therefore find the judgment of February 9,1983 awarding Diann Mason $400 per month alimony pendente lite still in effect and the trial court’s judgment of June 3, 1983 is hereby amended to so provide.

Each party to pay their own costs.

AMENDED AND AFFIRMED.

      . The therapist testified, “She has never discussed something that I could characterize as an extramarital — Well, I'm sorry, I’ll have to take that back.”


text:
    Vickie CRISP v. SOUTHERN SILK SCREEN, INC. and Zurich Insurance Company.
    No. CA-1766.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Clyde A. Ramirez, I. David Warner, III, Patricia D. Miskewicz, New Orleans, for plaintiff-appellant.
    René A. Pastorek, Windhorst, Pastorek & Gaudry, Gretna, for defendant-appellee.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   BARRY, Judge.

A compensation claimant seeking total and permanent benefits appeals an award granting only 11 additional days.

On July 16, 1982, shortly after 24 year old Vickie Crisp was employed by Southern Silk Screen, Inc. as a printer, she injured her back. The defendant insurer discontinued compensation on September 2, 1982. The trial judge awarded additional compensation through September 13, 1982 plus penalties and $350.00 attorney’s fees.

Plaintiff contends the trial judge erred by not giving greater weight to her treating physicians’ testimony over defendants’ doctors. She asserts her testimony was uncontradicted and all of the evidence established her total and permanent disability under the odd-lot classification. Lattin v. HICA Corp., 395 So.2d 690 (La.1981).

Immediately after the accident plaintiff was taken to Mercy Hospital and x-rayed, examined, given a shot, 2 prescriptions, and released. Five days later Dr. W.F. Ploger, an orthopedic surgeon, examined her at the request of the employer. She complained of back pain which worsened upon sitting and standing and was given a prescription for pain. Dr. Ploger had no positive or objective findings and felt her symptoms were relatively mild and she could resume work within 5 days.

One week post-accident plaintiff consulted Dr. Nick Accardo, orthopedist, who saw her three additional times over the next four weeks. On the initial examination Dr. Accardo noted loss of motion in all directions. There was objective evidence of moderate paravertibral muscle spasm in the lumbar area. The straight leg raising tests were positive and the lumbar curvature was not normal. Dr. Accardo diagnosed her condition as “acute lumbosacral syndrome” and determined conservative treatment (diathermy, cortisone injections, pain medication and warm baths) was appropriate.

The next three exams were about the same except that plaintiff complained of increasing pain. Dr. Accardo continued to detect objective muscle spasm and on the last visit, August 18, referred her to a neurosurgeon, Dr. Raeburn Llewellyn. Dr. Accardo felt plaintiff might have a ruptured disc and said she could not return to work.

Dr. Llewellyn saw plaintiff on September 8, 1982 and she related complaints of low back and left leg pain with numbness. He found tenderness on the left side, objective muscle spasm affecting the muscle mass, limited motion on bending backwards, and decreased sensation in the left calf and foot. The doctor said she could not return to work and further evaluation was necessary.

Dr. Llewellyn saw plaintiff on February 16, April 13, and June 1, 1983 and did not record objective muscle spasm, but believed it was present. It was his opinion she had not improved and he was concerned there was disc injury. On June 1 he felt she should not return to work until she had a CAT scan and an EMG. Dr. Llewellyn was shown a negative CAT scan and EMG run on August 16, 1983 and stated: “These two tests essentially satisfy my concern ... her complaints and findings can be accepted medically as being those of residual and muscle ligament strains of her low back.” However, he said plaintiff could not have returned to work as of June 1, 1983 when he last saw her. On cross-examination he agreed a sprain diagnosis is generally made by an orthopedist, not a neurosurgeon, but he would not defer to an orthopedist on the need for physical therapy.

At the request of the employer, Dr. Richard Levy, neurosuregon, saw plaintiff on September 13, 1982 and reported the same complaints as the other physicians. ■ He detected no objective findings and noted subjective tenderness in the lumbar spine area. He stated there was no evidence of neurological disease and no reason plaintiff could not return to work. On August 8, 1983, Dr. Levy said her complaints were the same, but there were no objective findings and only subjective tenderness in the lower back. He ran a CAT scan and had a colleague, Dr. Boston, perform an EMG and- both tests were normal. He stated his impression was the same as in September, 1982: no clinical or lab evidence of a disc problem. He stated plaintiff could return to work and no further testing was warranted. On cross-examination he had no opinion as to whether she could return to work due to muscle or ligament problems, but noted on neither exam had he detected any muscle spasm.

Dr. Carl Culicchia, neurosurgeon, saw plaintiff on October 6, 1982 (3 months post-injury) at the request of the insurer. He stated the straight leg raising test was positive, but there was no evidence of neurological problems and felt plaintiff could resume full work activity. He thought she should remain under observation and if problems developed neurological testing would be in order. Dr. Culicchia said if spasm had been present he would not have suggested plaintiff return to work.

Plaintiff, stated she had daily headaches and once or twice a week pain and numbness in the lower back and legs. She testified that one week after the accident she attempted to return to work but left because of severe pain. Calvin Gerbitz, her roommate, corroborated plaintiffs testimony.

A compensation claimant who alleges disability due to substantial or appreciable pain must establish that condition to a reasonable certainty and by a fair preponderance of the evidence. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). A claimant is not disabled solely because of some residual pain or discomfort. Pain is disabling only if it is substantial. Culp v. Belden Corp., 432 So.2d 847 (La.1983). Whether a claimant has met this burden is a question of fact based on the totality of the lay and medical evidence. The trial court’s resolution has great weight and will not be disturbed absent manifest error.

Plaintiff urges we give greater weight to the testimony of the treating physicians, Drs. Accardo and Llewellyn. We note that Dr. Accardo last saw plaintiff on August 18, 1982 and the court found her disabled as of September 13, 1982. Dr. Llewellyn examined plaintiff four times over a nine month period, not the close attention normally given if he was her “treating” physician. There is no evidence of treatment by Dr. Llewellyn.

Generally, the treating physician’s opinion is accorded greater weight, but the trial judge must evaluate all the witnesses, lay and medical. Thereafter, he may accept or reject an opinion expressed by any of the medical experts depending upon how impressed he is with the expert’s qualifications, credibility and testimony. Irvine v. Sentry Ins. Co., 415 So.2d 467 (La.App. 1st Cir.1982).

Plaintiff’s alleged disability is the inability to work due to substantial pain. Degree of pain is a factual determination which depends to a great extent on the trial judge’s evaluation of plaintiff’s credibility. The trial judge considered testimony of six physicians as well as plaintiff and Mr. Ger-bitz. He rejected plaintiff’s testimony, thereby rejecting the opinion of Dr. Llewellyn which was based largely upon plaintiff’s subjective complaints, and basically accepted the testimony of Drs. Levy and Culicchia. While we may have reached a different result, considering the record as a whole, the evidence is sufficient to support the trial court’s much discretion that any disabling condition was resolved by September 13, 1982.

The record does not contain any evidence that further medical expenses were incurred.

Accordingly, no further penalties or attorney’s fees are due and the judgment of the district court is affirmed.

AFFIRMED.


author: KLEES, Judge.

text:
    STATE of Louisiana v. Donald WELCHER.
    No. KA-1156.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of La.
    Dwight Doskey, Chris Christofferson, Orleans Indigent Defender Program, New Orleans, for defendant-appellant Donald Welcher.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   KLEES, Judge.

The defendant, Donald Welcher, was charged by bill of information with armed robbery in violation of R.S. 14:64. The defendant was arraigned on November 8, 1982, and proceeded to trial by jury on March 21, 1983. The defendant was found guilty on March 22, 1983, and was subsequently sentenced to serve “fifteen years at hard labor in the Department of Corrections, without benefit of pardon, parole, or commutation of sentence.” From this conviction and sentence, the defendant appeals.

FACTS

Rose Richardson testified that she was the victim of an armed robbery in either September or October of 1982 — the exact date she could not remember.

However, she did remember the defendant, Donald Welcher, calling for her brother, Michael. In response to his calling, she opened her apartment door and informed the defendant that Michael was not there. The defendant inquired whether Michael could sell him some marijuana and the victim told him to return later. She testified that at that point, as she was closing the door, the defendant stuck his foot in the door, pulled a gun on victim testified that he tied her using the cord of a hair-dryer and took some “pins” (jewelry), twenty-five dollars, a watch, and a gold pendant. After the defendant departed, she escaped from the apartment and used a neighbor’s (Audrey Laughlin) phone to call the police. Subsequent to this, she identified the defendant out of a photographic lineup.

Audrey Laughlin also testified that the victim used her phone on the day of the robbery to call the police, that she recognized the defendant as the person who was calling for Michael, and she noticed a “burgundy and dark blue ear” parked outside— one similar to the burgundy vehicle in which the defendant was later arrested.

At the time of the arrest, the defendant was wearing the pendant taken during the robbery. The victim identified the pendant as her property.

Sheila Wood testified as a defense witness. She related that the pendant in question was given to her by some friends, and she, in turn, gave it to the defendant.

Errors Patent

Having reviewed the record, we notice that the trial court imposed an illegal sentence. The minutes read that the defendant was sentenced to serve “fifteen years at hard labor in the Department of Corrections without benefit of pardon, parole, or commutation of sentence.”

The applicable sentence provision reads:

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

The sentence is not in accordance with law in that it is “unlawfully lenient” in some respects, and unlawfully more severe in others.

Although this Court has addressed this problem in recent cases, State v. McCoy, 450 So.2d 690 (La.App.1984), handed down May 10, 1984 Court. By an en banc vote this Court has agreed to follow the holdings of State v. Telsee, 425 So.2d 1251 (La.1983), until such time as our Supreme Court expressly overrules that decision.

Accordingly, we find patent error and we amend the sentence so that this sentence should be served “without the benefit of probation, parole or suspension of sentence.” R.S. 14:64(B).

Sufficiency of Evidence

Having reviewed the record, we find that the evidence is sufficient to sustain the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La. 1982).

For the reasons assigned, the defendant’s conviction is affirmed, the sentence is amended to provide that the defendant shall serve fifteen (15) years at hard labor in the custody of the Louisiana Department of Corrections, without the benefit of probation, parole or suspension of sentence, and as amended the sentence is affirmed.

CONVICTION AFFIRMED SENTENCE AMENDED AND AS AMENDED, IS AFFIRMED.

      . State v. Lee, 445 So.2d 54 (La.App. 4th Cir. 1984) and State v. Barber, 445 So.2d 463 (La. App. 4th Cir.1984) both handed down on January 12, 1984, presented the opposing views of different panels of this Court. The Barber panel followed State v. Napoli, 437 So.2d 868 (La.1983), while the Lee panel followed Tehee, supra.

      . In State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983) our brothers of the First Circuit decided to follow the Tehee jurisprudence. As of this writing, that case has been submitted to the Supreme Court for decision.


author: LOBRANO, Judge.

text:
    Alvin SIDER v. LOUISIANA STATE RACING COMMISSION.
    No. CA-1540.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen. and Attorney for the Louisiana State Racing Commission, New Orleans, for appellee.
    Arthur S. Mann, III, Tucker & Schone-kas, New Orleans, for appellant.
    Before SCHOTT, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

Alvin Sider, appellant (hereinafter referred to as Sider) appeals a decision of the lower court which upheld his suspension by the Louisiana State Racing Commission (hereinafter referred to as Commission). He raises two issues on appeal. First, he argues that the proceedings conducted by the stewards must comply with the provisions of the Louisiana Administrative Procedure Act (La.R.S. 49:951 et seq.). Second, he argues that he was denied a continuance of the hearing before the Commission which denial prevented his adequately preparing a defense to the stewards’ charges.

Sider was the trainer of two horses, “Ruff Admiral” and “My Last Story”, whose urine samples were found to contain the drug, Apomorphine, a central nervous stimulant. “My Last Story” finished first in the ninth race on October 28, 1981 at Jefferson Downs. “Ruff Admiral” ran in the second race on November 4,1981 at the same track, but went unplaced. On November 28, 1981 the stewards conducted a hearing, and on December 4, 1981 issued Rulings 83 and 84 whereby Sider was found to have violated rule LAC 11-6:53.14 of the Rules of Racing. Accordingly he was suspended from and denied the privileges at all tracks under the jurisdiction of the Commission.

Sider filed a suspensive appeal of that ruling to the Commission on December 4, 1981. The Commission refused to suspend the stewards’ ruling, but did conduct a hearing on December 11, 1981 whereby they affirmed the stewards’ findings and upheld their rulings. Sider was suspended for 5 years on each ruling, the suspensions, however to run concurrently.

STEWARDS’ HEARING

Although Sider was present and represented by counsel at the time the stewards conducted their inquiry, he argues to this Court that he was denied notice of the hearing, that there was no transcript made of same, and, in general, that the procedures set forth in La.R.S. 49:951, et seq. the Louisiana Administrative Procedure Act, were not complied with.

La.R.S. 4:154 subjects the Commission to the Administrative Procedure Act, as it provides:

“A. Except as otherwise provided by this Section, the Commission’s hearings, practice, and procedure and rule making procedure are as provided in Title 49, Chapter 13, administrative procedure act, R.S. 49:951, et seq.
B. A final appeal, in the case of any person penalized, or disciplined by the stewards may be taken to the commission.
C. Such an appeal must be filed in writing at the office of the commission within five days of the date of said penalty or imposition of said discipline.
D. Such an appeal must be signed by the person making it and must set forth his reason therefor.
E. An appeal from the decision of the stewards to the commission shall not affect such decision until the appeal has been acted upon by the commission.
F. The commission must grant a hearing within ten days of the receipt of this appeal, and must render a decision within forty-eight hours following the conclusion of the appeal hearing. Any continuance of a hearing must be reasonable in duration and for just cause.”

The Commission is given the authority pursuant to La.R.S. 4:148 to promulgate such rules, regulations and conditions as are necessary “... for the holding, conducting and operating of all race tracks, race meets and races held in this state, and for the conduct of the racing industry of this state...” In furtherance of their duties the Commission is given the authority to appoint stewards at the various tracks around the state during the race meetings. La.R.S. 4:147. In general stewards are charged with the responsibility of enforcing the rules and regulations of the Commission. See, LAC 11-6.5, 5.6. In a sense, they are the “policemen” of the Commission.

The Louisiana Administrative Procedure Act provides for certain procedural safeguards in the case of an adjudication. La.R.S. 49:955. An adjudication is defined as an “... agency process for the formulation of a decision or order.” La.R.S. 49:951. A decision or order means:

“... the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of an agency, in any matter other than rule making, required by constitution or statute to be determined on the record, after notice and opportunity for an agency hearing, and including non-revenue licensing when the grant, denial or renewal of a license is required by constitution or statute to be preceded by notice and opportunity for hearing.” La.R.S. 49:951(3).

We hold that the actions of the stewards do not fall within the meaning of the definition of “adjudication” so as to require application of the Administrative Procedure Act. See, Hagood v. Pickering, 385 So.2d 405 (La.App. 1st Cir.1980). The actions of the stewards are not a final decision of a State agency but merely the first step in the process to final adjudication. However, an aggrieved party’s procedural due process rights are certainly protected by the provisions of La.R.S. ⅛:15⅛, supra, and particularly those provisions which deal with the time frame between appeal date, hearing date and decision date. Furthermore the Rules of Racing, despite La.R.S. 4:154(E) to the contrary, provides that any person penalized by the actions of the stewards may apply to the Commission for a suspensive appeal. LAC 11-6:52.

FAILURE TO GRANT A CONTINUANCE

Sider argues that he moved for a continuance the morning of the hearing on the grounds that he did not have, adequate time to prepare his defense, and further that he had just learned that there may be some residue of the urine samples taken and he wanted to run his own tests.

A reading of the testimony convinces this Court that the Commission was correct in its ruling denying the continuance. First, it is clear that there was insufficient urine obtained in either case to preserve a so-called “split sample”. Sider argues that even so, there may have been sufficient quantity remaining to allow oth-' er tests to be conducted which may be beneficial to his defense. He also argues that he did not have sufficient time to prepare a defense. Sider was notified of the December 11th hearing on December 5, 1981. He did not advise his attorney of the hearing until December 8, 1981.

In the recent case of Delahoussaye v. La. State Racing Commission, 446 So.2d 490 (La.App. 4th Cir.1984) this Court opined that the legislative intent of the ten (10) day provision of La.R.S. 4:154(F) was to provide for a swift resolution of an aggrieved party’s rights, especially in view of the fact that he has no guaranteed sus-pensive appeal from the stewards’ rulings. We stated in that case that the failure of the Commission to act within a reasonable time violated the legislative intent. However, as we stated in Delahoussaye, supra, we do not intend to imply that a eontinu-anee should never be permitted. Each case must be determined on its own facts. We hold that the Commission did not abuse its discretion in denying the continuance under the facts of this case, nor were Sider’s due process rights violated in any way. He was well aware of the charges against him even before he received the official hearing notice of the Commission. Accordingly we affirm the trial court’s ruling.

AFFIRMED.

      . This rule is sometimes referred to as the "medication rule” which prohibits the use of certain medications and/or drugs which are designed to stimulate and/or alter a horse's performance.

      . See LAC 11-6:53.35, et seq., for an explanation of the methods and procedures used in testing the urine or blood samples.


text:
    Deborah M. CORDIER v. CHUBB INSURANCE COMPANY, et al.
    Nos. CA-1525, CA-1526.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      John A. Cvejanovich, Law Offices of James J. Morse, New Orleans, for defendant/appellee, The Travelers Indemnity Co.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendants/appellants, Federal Insurance Co. and Mission National Insurance Co.
    Before SCHOTT, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

The sole issue presented by this appeal is whether an exclusionary clause, stipulated to apply to a corporate lessee of a motor vehicle, applies to that corporation’s employee operating that vehicle in the course and scope of his employment.

The facts which are not in dispute are as follows. On May 25, 1982 an automobile being operated by Deborah Cordier, with her minor daughter Jennifer, as a passenger, was stopped at a traffic light in the City of New Orleans. The automobile was struck from the rear by a truck being operated by Mr. Lorenzo Platenburg, a delivery man for F. Strauss & Son, Inc. (hereinafter Strauss). The Cordier vehicle was propelled into another truck and Mrs. Cor-dier was severely injured and her daughter, Jennifer, was killed. Mr. Platenburg was in the course and scope of his employment, making a delivery from Strauss’s warehouse to downtown New Orleans. The truck which he was driving had been leased by Strauss from Lend Lease, a division of National Car Rental System, Inc. (National). It was stipulated that the sole cause of the collision was the negligence of Platen-burg and that Strauss was vicariously liable.

Strauss had leased the truck for a period of five years pursuant to a written lease agreement with Lend Lease. That lease agreement required Strauss to provide liability insurance coverage of $250,000.00 per person and $500,000.00 per occurrence, combined single limits of $500,000.00 in liability coverage, and to indemnify and hold harmless National from any claim of liabilities due to the use or operation of the leased vehicle. Strauss complied with the terms by securing the coverage from Federal Insurance Co. (Federal) and named National as an additional insured and loss payee.

An excess policy in the amount of $10,-000,000.00 was issued by Mission National Insurance Company (Mission) to Strauss. The Travelers Indemnity Company (Travelers) issued a primary policy of liability insurance to National covering its division, Lend Lease, with limits of $100,000.00 per person and $300,000.00 per occurrence and an excess policy with limits of $1,000,-000.00.

Prior to trial on the merits, the Cordiers settled their claim for $600,000.00, which sum was paid entirely by Federal and Mission. Travelers refused to contribute to the settlement, contending that under the policies between it and National, Strauss was not an insured.

The trial court held that the policy responsibility was that of Federal and Mission, thus exonerating Travelers.

Federal and Mission admit Strauss and its employee Platenburg are insureds under their liability policy. Additionally they admit that Strauss is not an insured under the Travelers policy, but claim that Strauss’ employee, Platenburg, the driver of the truck, is an insured and thus Travelers is liable for contribution.

The Travelers’ policy defines “who is insured” in part as follows:

“2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow except: (here there follow three exceptions which do not apply under the facts of this case.)
3. Anyone liable for the conduct of an insured described above is an insured, but only to the extent of that liability...”

The policy, however, contains an exclusion which reads as follows:

"1. Liability insurance provided by this policy for a covered auto which you have leased or rented to another person or organization under an agreement under which that person or organization has agreed to provide primary insurance for that auto, does not apply to that person or organization.”

The sole issue for our determination is whether or not the term “organization” in the above clause includes Platenburg, an employee of said organization. We hold that it does, and therefore the exclusionary clause applies. The term “organization” as used in the above clause must necessarily include that organization’s employees, as to hold otherwise would render the clause useless. It is obvious that the organization or corporation (Strauss) cannot operate a vehicle itself, and can only act through its employees. Any liability Strauss incurs through the operation of the leased vehicles would be vicarious. To exclude Strauss and not its employees would lead to an absurd interpretation of the policy.

“Courts must give legal effect to the provisions of an insurance policy according to the true intent of the parties, which is determined by the wording of the policy when its provisions are clear and unambiguous and do not lead to absurd consequences.” Schmieder v. State Farm Fire and Cas. Co., 339 So.2d 390, 392 (La.App. 4th Cir.1976), writs ref. 341 So.2d 895.
“Such a contract is not to be given a strained, forced or unreasonable interpretation, but a fair, reasonable and sensible construction, compatible with the apparent object and plain intention of the parties as expressed in the words of the agreement.” Ory v. Louisiana & Southern Life Ins. Co., 352 So.2d 308, 310 (La.App. 4th Cir.1977).

We agree with the trial judge that it would be absurd to allow Strauss’ employee to be covered by Traveler’s policy, and to exclude Strauss. That clearly was not' the intent of the parties. Therefore the judgment of the lower court is affirmed.

AFFIRMED.


author: WARD, Judge. SCHOTT, Judge,

text:
    Claudette Cassou LAY v. The UNIVERSITY OF NEW ORLEANS LAKEFRONT, Through the STATE of Louisiana.
    No. CA-1443.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Harold M. Wheelahan, III, Randy J. Un-gar, New Orleans, for plaintiff-appellee, Claudette Cassou Lay.
    Mary H. Thompson, Felix R. Weill, Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant-appellant, The University of New Orleans-Lakefront.
    Before SCHOTT, WARD and BYRNES, JJ.
   WARD, Judge.

Claudette Cassou Lay filed a lawsuit against The University of New Orleans Lakefront and the State of Louisiana, claiming damages for personal injuries she received while attending a play at the UNO Theatre. Because the suit was filed seventeen months after the accident, the University pleaded the exception of prescription of one year. The Trial Judge sustained the exception and dismissed the lawsuit. Ms. Lay has appealed that decision. We affirm.

From the record before this Court, it appears that neither party presented evidence at the hearing on the exception. Hence, there is no factual basis for a finding that prescription did not run on Ms. Lay’s claim. As did the Trial Judge, we see only the petition filed on December 17, 1982 for personal injuries caused by an incident on July 16, 1981, an amended petition alleging diagnosis after August 5, 1982, and Ms. Lay’s affidavit supporting the allegations of the amended petition.

“Where, however, the action is brought more than one year subsequent to the commission of the tort, the burden in said instances falls upon plaintiff to show both his lack of knowledge as to his injuries and also circumstances which establish that his damages were not sustained until some time postdating the commission of the tort sued upon.” Lucas v. Commercial Union Insurance Co., 198 So.2d 560, 565 (La.App. 1st Cir.1967). Ms. Lay has failed in her burden of proof. There are unproved allegations, but no evidence, that Ms. Lay was unaware of the relationship between the accident at UNO and her jaw problems until more than one year after the accident. Absent some evidence in support of these allegations, the only conclusion which can be reached from the evidence in the record is that prescription began to run on July 16, 1981 and consequently, the exception of prescription must be sustained on a suit filed December 17, 1982.

AFFIRMED.

SCHOTT, J., concurs with reasons.

SCHOTT, Judge,

concurring:

Accepting as true the allegations of plaintiff’s original and supplemental and amending petitions as well as her affidavit, her claim has prescribed. Plaintiff knew she was injured from the beginning and was being treated for toothache. The fact that she did not learn the full extent of her injuries until more than a year after the accident did not have the effect of extending the prescription date. Christian v. Daniell Battery Manufacturing Co. Inc., 279 So.2d 214 (La.App. 2nd Cir.1973), Hunter v. Sisters of Charity of Incarnate Word, 236 So.2d 565 (La.App. 1st Cir.1970).

In Lucas v. Commercial Union Insurance Company, 198 So.2d 560 (La.App. 1st Cir.1967) the court held that prescription did not begin to run on the date of the tort where there was absolutely no manifestation of injury to plaintiff or awareness by plaintiff of any injury until five days after the tort. This was so because the cause of action itself did not arise until plaintiffs injuries became manifest and known. However, since plaintiff in the instant case knew she was hurt from the time of the accident the following from the Lucas case applies to her situation:

“Even though the full extent of the damage or loss may not be immediately ascertainable, nevertheless, if the aggrieved party is aware of claim resulting from the tortuous conduct, the entire claim, including that for damages not then determinable, prescribes in one year from the date of commission of the wrong.” 198 So.2d at 563.

The trial judge correctly sustained the exception of prescription.