author: GROSS, J. CONNER, J.,

text:
    SUNSHINE STATE INSURANCE COMPANY, Appellant, v. Christopher JONES, Debra Watson-Jones, Nicho Watson, Michele Baldasti, by and through her mother and legal guardian, Stacy Baldasti, and Kayla Mineo, by and through her mother and legal guardian, Cheryl Mineo, and Geico General Insurance Company, Appellees.
    No. 4D10-2723.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Steven G. Schwartz and David J. Pas-cuzzi of Schwartz & Horwitz, PLC, Boca Raton, for appellant.
    James K. Clark of Clark, Robb, Mason, Coulombe & Buschman, Miami, for appel-lee, Geico General Insurance Company.
   GROSS, J.

This declaratory judgment action pits Sunshine State Insurance Co., the issuer of a homeowner’s policy, against Geico General Insurance Co., the issuer of an automobile insurance policy. Their dispute involves which one is liable for indemnity and defense of claims against a person they both insured. That person, a passenger in a car, grabbed the steering wheel. When the driver tried to get her passenger to stop being annoying, she lost control of the car and it slammed into a concrete wall. The trial court determined that the passenger’s actions did not constitute “use” of the car, so that Sunshine State’s exclusion did not apply and it was responsible for indemnity and defense. We affirm.

The underlying lawsuit stems from an accident involving four teenagers and some horseplay. One Friday night, after a high school football game, Carley Moore was driving her parents’ Toyota Corolla to a friend’s house. In the front passenger seat was Nicho Watson, her boyfriend. Michele Baldasti and Kayla Mineo were in the backseat. Carley and Nicho were both seventeen; Michele and Kayla were a year younger.

During the drive, Nicho would reach over to beep the horn, as well as hold the steering wheel, to get a rise out of Carley. Even though Carley told Nicho to stop, he persisted. Keeping her left hand on the wheel, Carley tried to swat Nicho’s hand away with her right hand. Nicho grabbed the wheel more than five, and probably more than ten, times; while Nicho himself never made the car swerve, the ear swerved when Carley tried to swat Nicho away. As Carley was driving on an exit ramp, Nicho grabbed the wheel again; when Carley tried to push him away, she lost control of the car and its left side hit a concrete wall.

Through their parents, Michele and Kayla each filed a negligence suit against Carley and Nicho, also through their parents. Apparently, Carley settled Michele’s and Kayla’s claims against her, so that the action proceeded solely against Nicho. Sunshine State then filed a declaratory judgment action against Geico and others.

The aim of the declaratory judgment action was (1) to avoid liability for indemnity and the responsibility of providing a defense and (2) to pin those obligations on Geico. Sunshine State had issued a homeowner’s insurance policy to Nicho’s parents. Geico had issued an automobile insurance policy to Nicho and his mother, but denied both coverage and a defense.

Geico’s auto insurance policy stated in its “Section I — Liability Coverages,” that it would pay for the following:

Under Section I, we will pay damages which an insured becomes legally obligated to pay because of:
1. bodily injury, sustained by a person, and
2. damage to or destruction of property,
arising out of the ownership, maintenance or use of the owned auto or a non-owned auto. We will defend any suit for damages payable under the terms of this policy. We may investigate and settle any claim or suit.

(Emphasis in original.) With regard to a non-owned car, in describing the persons covered, the Geico policy also provided, in pertinent part:

Section I applies to the following with regard to a non-owned auto:
1. you and your relatives when driving the non-owned auto. Such use must be with the permission, or reasonably believed to be with the permission of the owner and within the scope of that permission.

(Emphasis in original.)

In Section II, Sunshine State’s homeowner’s policy provides for “COVERAGE E — Personal Liability.” That section generally obligates Sunshine State to indemnify and defend its insured “[i]f a claim is made or a suit is brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which this coverage applies.” However, Section II provides for the following motor vehicle exclusion, in pertinent part:

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to “bodily injury” or “property damage”:
f. Arising out of:
(1) The ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an “insured”[.]

Sunshine State argued that Nicho’s alleged negligence, characterized as horseplay, constituted the use of an automobile, bringing it within the coverage of Geico’s policy and within the auto use exclusion in Sunshine State’s. Accordingly, Sunshine State asserted that it did not have a duty to defend or a duty to indemnify Nicho, and moved for summary judgment. In its own motion for summary judgment, Geico argued that Nicho’s alleged negligence did not constitute use, so that the claim did not fall within its coverage.

Following a hearing on the cross-motions for summary judgment, the trial court issued a declaratory judgment in favor of Geico. Pointing to the facts, the court concluded that the claims at issue “did not arise out of Watson’s use of the motor vehicle,” and, also, that Nicho was not driving the non-owned auto. The court therefore found that Geico’s policy did not provide coverage for the accident, and that Sunshine State’s policy did, because Nicho’s conduct did not fall within its auto use exclusion.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citation omitted). Because it is a legal question, a trial court’s grant of summary judgment is reviewed de novo. Id. Similarly, an interpretation of an insurance contract is a legal question reviewed de novo. Arias v. Affirmative Ins. Co., 944 So.2d 1195, 1197 (Fla. 4th DCA 2006). Like other contracts, a court should only resort to rules of construction in interpreting an insurance contract when the language is ambiguous; otherwise, it should apply the plain and unambiguous meaning of the policy’s language. Id.

Florida courts have held that the critical language in the policies here at issue — “arising out of the ownership, maintenance, or use of an automobile” — is unambiguous. See Am. Sur. & Cas. Co. v. Lake Jackson Pizza, Inc., 788 So.2d 1096, 1099-1100 (Fla. 1st DCA 2001); Alligator Enters., Inc. v. Gen. Agent’s Ins. Co., 773 So.2d 94, 95 (Fla. 5th DCA 2000); Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 966 (Fla. 5th DCA 1996) (en banc); Cesarini v. Am. Druggist Ins. Co., 463 So.2d 451, 452 (Fla. 2d DCA 1985); Indiana Ins. Co. v. Winston, 377 So.2d 718, 719 (Fla. 4th DCA 1979); Nat’l Indem. Co. v. Corbo, 248 So.2d 238, 241 (Fla. 3d DCA 1971). The courts have consistently interpreted the language “arising out of’ to be “words of much broader significance than ‘caused by’, and have been said to mean ‘originating from’, ‘having its origin in’, ‘growing out of or ‘flowing from’, or in short, ‘incident to’ or ‘having connection with’ the use of the car.” See, e.g., St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117, 120 (Fla. 4th DCA 1973) (citing, inter alia, Corbo, 248 So.2d at 241).

This case turns on whether Nicho’s conduct constituted “use” of the Moore car; that is, whether it can be said the injuries arose from the use of the car. We hold that Nicho’s grabbing of the steering wheel to annoy his girlfriend was not “use of ... a non-owned auto” within the meaning of the Geico policy. Rather, Nicho was engaged in teenage horseplay. Under the facts of this case, horseplay was not an “activity involved in the utilization of the covered vehicle in the manner intended or contemplated by the insured.” Corbo, 248 So.2d at 240. Nothing in the record indicates that Nicho’s grasping of the steering wheel altered the direction of the car. Unlike the church-owned van used to transport church members, including children, to and from group activities in Heritage Mutual Insurance Co. v. State Farm Mutual Automobile Insurance Co., 657 So.2d 925 (Fla. 1st DCA 1995), the Moore car was a compact four-door sedan — a private passenger car. In Corbo, children’s horseplay was likely to occur; in this case, it was not. See id. at 927 (“[The van’s] purpose was to transport church members, including children.... [Children] quickly become rambunctious when confined in' a vehicle, and unlikely to sit quietly, with seat belts fastened. Such behavior would be even more likely after an outing....”).

A second reason that the auto policy does not provide coverage here arises from the wording of the policy. The Moores’ Toyota was a “non-owned auto” within the meaning of the auto policy Geico issued to Nicho’s mother. That policy would provide coverage if Nicho’s “driving” was “with the permission, or reasonably believed to be with the permission of the owner,” the Moores. It is not reasonable to believe that Nicho’s horseplay was in any way sanctioned by the Moores.

Thus, Nicho’s conduct fell outside of both the coverage provided in Geico’s auto policy and the exclusion in the Sunshine State homeowner’s policy. The circuit court correctly determined that it was the homeowner’s policy that provided coverage here.

This conclusion is supported by our decision in West American Insurance Co. v. Silverman, 378 So.2d 28 (Fla. 4th DCA 1979). As in the instant ease, Silverman involved a dispute between a passenger’s auto and homeowner’s insurers as to which company had the duty to provide the passenger a defense. Id. at 29. While the driver and passenger were in the car, the passenger “grabb[ed] the driver’s arm causing the car to go out of control resulting in [a] collision with the guard rail.” Id. The passenger was killed. Id. His estate sued the driver and the driver’s auto insurer; the driver counterclaimed, arguing the passenger caused the accident. Id. The passenger and the insurance companies fought over who was liable for defending against the driver’s counterclaim. Id. The trial court found that the duty to defend rested with the passenger’s homeowner’s insurer, which appealed the ruling to this court. Id.

This court started by excerpting the relevant exclusion from the homeowner’s policy and relevant coverage from the auto policy, which are, in all material respects, the same as the provisions in this case. See id. at 30-31. It then framed the issue before it:

The crux of this case is whether the alleged grabbing of the driver’s arm by a passenger with a resulting accident may be said to create liability arising out of the use of an automobile. If so, then coverage may arguably be under an auto liability policy. On the other hand, if the grabbing of the driver’s arm by the passenger does not create liability arising out of the use of an automobile, then coverage and a duty to defend exists under the homeowner’s policy of the passenger. This is so since the automobile policy expressly includes coverage for the “use of an automobile,” and the homeowner’s policy expressly excludes coverage for injury arising from the “use of an automobile.” Clearly, these two standard policies are intended to be complementary and not overlapping. Of importance, then, is the distinction as to who was using the car; that is, the passenger or the driver under the alleged facts.

Id. at 31.

Ultimately, we held in Silverman “that the actions of the passenger in grabbing the arm of the driver are not such as give rise to liability arising out of the use of an automobile.” Id. at 32. Thus, “the policy exclusion within the homeowner’s policy was not applicable” and “[t]he passenger’s homeowner’s policy should thus provide the defense of the counterclaim.” Id. The grabbing of the wheel in this case is conduct similar to the grabbing of the driver’s arm in Silverman. Both actions interfered with the driver’s use and operation of the car; neither action was an attempt by the passenger to employ the car in a manner intended or contemplated by the insured or to exert control over the operation of the car.

Contrary to Sunshine State’s argument, the decision in Race v. Nationwide Mutual Fire Insurance Co., 542 So.2d 347, 347 (Fla.1989), did not abrogate Silverman. The issue in Race was whether an insured husband and wife could recover under their auto insurance policy’s uninsured motorist coverage “for injuries received from an uninsured motorist’s intentional assault at the scene of a prior automobile accident.” Id. at 347. The Court concluded that the term “arising out of the ownership, maintenance, or use” of a motor vehicle “as contained in a UM policy should be given the same interpretation as that language is construed in automobile liability policies.” Id. at 349. The Court held that there was no coverage under the UM policy, reasoning that the “most that can be said is that the driving of the uninsured motorist which caused the accident created an atmosphere of hostility between the parties. It had nothing to do with [the assault victim’s] injuries, which only came about several minutes later when [the uninsured motorist] thought [the victim] was reaching for a gun.” Id. at 351.

Race did not change the law in Florida; rather, it confirmed the standard already applied by the district courts in applying the phrase “arising out of the ownership, maintenance, or use of an auto.” See Allstate Ins. Co. v. Safer, 317 F.Supp.2d 1345, 1357 (M.D.Fla.2004) (observing that Race “did not overrule the majority standard set forth in earlier case law”). For example, both Race and Silverman cited with approval an earlier case out of this court, St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973), which set out that standard. See Race, 542 So.2d at 350 (quoting with approval Watson v. Watson, 326 So.2d 48, 49 (Fla. 2d DCA 1976) (citing Thomas)); Sil verman, 378 So.2d at 31 (discussing Thomas ). And, insofar as Race concerned the application of policy language to an intentional tort, it is of little help in analyzing the negligent horseplay in this case.

For these reasons, we affirm the summary final judgment of the circuit court.

POLEN, J., concurs.

CONNER, J., concurs specially with opinion.

CONNER, J.,

concurring specially.

I agree with the majority that Nicho’s horseplay could not be considered use of a non-owned car with permission, but I disagree with the majority that his horseplay did not constitute “use” of the car. In my view, his horseplay rose to a level to which it can be said he was co-driving the car with Carley.

An automobile is a transportation device used to travel from Point A to Point B by a combination of controlling a steering wheel, a gas pedal, and a brake. Although one normally thinks of a vehicle being driven by one driver at a time, any person who exerts physical control, either singularly or in combination, over the steering wheel, the gas pedal, or the brake pedal can be said to be involved in “driving” the vehicle, if the vehicle is moving at the time. Thus, if two people are physically controlling the steering wheel at the time the vehicle is moving, both are exerting control over the movement of the vehicle and should be considered as “driving” and “using” the vehicle in the context of what is insured by an automobile policy. I also contend my view of what is meant by “driving” and “use” of a vehicle is consistent with subsection 324.021(3), Florida Statutes (2007), which defines an operator of a motor vehicle under the financial responsibility law as “[ejvery person who is in actual physical control of a motor vehicle.”

My view of what constitutes driving also comes from dictionary definitions. One of the definitions of “driver” is “a person who steers and propels a vehicle.” Black’s Law Dictionary 533 (8th ed. 2004). Webster’s Ninth New Collegiate Dictionary defines the verb “drive” as “to operate the mechanism and controls and direct the course of.” Webster’s Ninth New Collegiate Dictionary 384 (1990 ed). Black’s Law Dictionary also defines “driving” as “of the act of directing the course of something, such as an automobile.... ” Black’s Law Dictionary 533 (8th ed. 2004).

The majority and the appellee place considerable reliance on our decision in West American v. Silverman, 378 So.2d 28 (Fla. 4th DCA 1979). The negligent conduct in Silverman was a passenger pulling on the arm of the driver while the driver was driving, causing the driver to lose control of the vehicle, which killed the passenger.

As the majority points out, in Silverman we said, “Of importance, then, is the distinction as to who was using the car; that is, the passenger or the driver under the alleged facts.” Id. at 31. The complaint in Silveman alleged “the Decedent, Bruce Silverman, grabbed hold of and pushed and/or pulled on the arms of the Counter-claimant wherein the Decedent, Bruce Sil-verman, took control of said vehicle causing said vehicle to go out of control and collide with a guardrail and overpass,” and “[t]he Decedent, Bruce Silverman, so negligently and carelessly took control of said vehicle that it was taken from the control of the Counterclaimant causing said vehicle to collide with a guardrail and overpass.” Id. at 30. We also said “[i]t is a close question” as to whether the homeowner’s policy or the automobile policy should provide a defense. Id. at 32. Immediately after stating “[i]t is a close question,” we launched into a public policy discussion as to which insurance policy should control, and stated, “We stress that the instant fact situation does not present a question as to an injured third party,” and suggested that if a third party had been hit, our ruling would be that the automobile policy would cover the situation. Id. However, because the situation in Silver-man “is more confined and limited to a consideration of the conduct between the driver and his passenger,” because there were issues of comparative negligence between the driver and the passenger, and because we felt there were “somewhat inconsistent precedents,” we concluded “the actions of the passenger in grabbing the arm of the driver are not such as to give rise to liability arising out of the use of an automobile” for purposes of which policy had to provide a defense. Id. Footnote 1 of the opinion made it clear that we did not decide which policy might ultimately be responsible for payment of the claim. Id. at 32 n. 1.

I submit it is important to note a point made in the concurring opinion in Silver-man by Associate Judge Baker. He pointed out that in affirming the trial judge, the appellate court was agreeing with the trial court’s construction of the language in the complaint that Silverman “took control” of the vehicle as “nothing more than, ‘The passenger negligently and carelessly caused the driver to lose control of the vehicle.’ ” Id. at 33 (Baker, Associate Judge, concurring). Judge Baker went on to point out:

The phrase, “took control”, in the context of the counterclaim, is not sufficient to establish an intentional, purposeful act by the passenger to exercise control over the vehicle, that is, to “use” the vehicle. If it were sufficient, the duty to defend on the counterclaim would be that of the passenger’s automobile liability carrier under the reasoning of Judge Beranek’s opinion.

Id.

A close reading of Silverman also suggests that both the driver and the passenger had been drinking prior to the crash. Although the facts of the case are not stated in detail in the opinion, it is likely the factual scenario in Silverman is that the intoxicated passenger was grabbing the intoxicated driver’s arm either as horseplay or to get the driver’s attention during a friendly discussion or an argument, without any intention to affect the steering of the vehicle. If that was the case, it is entirely logical to hold the homeowner’s policy should provide a defense. But as the concurring opinion points out, if the passenger was intending to control the steering of the vehicle by grabbing the driver’s arm, then the auto policy should provide the defense.

In this case, it appears the horseplay was intentionally directed to affect the steering of the vehicle. Although there is no evidence that Nicho’s grabbing of the steering wheel caused the vehicle to swerve, that makes no difference because his actions show he was intending to exert physical control over the steering of the vehicle, even if it was to have the vehicle continue on a straight path. Because his actions were intended to physically control the steering of the vehicle as it was transporting the occupants, I contend he was “using” and jointly “driving” the vehicle. Therefore, I believe the trial court erred in finding Nicho did not “use” or “drive” the vehicle in its Final Declaratory Judgment.

However, I would affirm the trial court because the language of the auto policy limits coverage for driving non-owned vehicles to situations in which the “use of ... a non-owned auto” (driving) is “with the permission of the owner and within the scope of that permission.” Appellee is correct that “[i]t seems difficult to understand how [Nicho’s] horseplay would constitute ‘driving the non-owned auto’ with ‘the permission, or reasonably believed to be with the permission of the owner and within the scope of that permission.’” As noted by the majority, courts have required that homeowner’s policies and auto policies be construed to leave no gap in coverage. Since Nicho’s “use” of the vehicle was not a “use of ... a non-owned auto” with permission as required by the auto policy, the trial court correctly determined the coverage should be under the homeowner’s policy.

      . These holdings — which lead to the same meaning whether the language appears in a coverage or an exclusion — are consistent with the principle that a homeowner’s policy "should be construed as leaving no gap in coverage between it and an automobile policy.” Farrer v. U.S. Fid. & Guar. Co., 809 So.2d 85, 94 (Fla. 4th DCA 2002). An auto policy “protects [the] insured for liability arising out of the use of that vehicle, while the [homeowner's policy] excludes coverage arising from the use of the vehicle.” Id. Thus, ”[t]he interpretation of the clauses should be complementary.” Id. at 95; see also 8A Couch on Insurance § 119:26 n.22 (3d. ed. 1997) ("Where a coverage clause in an automobile liability policy and an exclusionary clause in a homeowners’ policy employ identical language, they should be construed identically in order to avoid the possibility that some occurrence could escape coverage under both policies.”).

      . In the body of the opinion we specifically stated, “Whether such a legal obligation to pay is within the coverage of any particular policy is a question which may not yet be determined.” Id. at 32.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Vanessa SANTOS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D11-6548.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Vanessa Santos, pro se Appellant.
    A. Robert Whaley, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See generally Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998) (dismissing untimely appeal without prejudice to appellant’s right to petition agency for relief).

PADOVANO, THOMAS, and SWANSON, JJ., concur.


text:
    Lawon Gortez DALE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2544.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2012.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

VAN NORTWICK, THOMAS, and ROWE, JJ., concur.


author: MICHAEL E. KIRBY, Judge. MICHAEL E. KIRBY, Judge.

text:
    John J. HUNTER v. LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE on behalf of LOUISIANA HEALTH CARE SERVICES CENTER FOR UNIVERSITY HOSPITAL AT NEW ORLEANS, aka University Hospital.
    No. 2010-CA-1406.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 2011.
    Opinion on Rehearing Nov. 23, 2011.
    John J. Finckbeiner, Jr., Finckbeiner & Robin, New Orleans, LA, for Plaintiff/Appellant.

      James D. “Buddy” Caldwell, Attorney General, Sharry R. Scott, Assistant Attorney General, Louisiana Department of Justice, New Orleans, LA, for Defendant/Appellee, State of Louisiana, Board of Supervisors for University Hospital.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

11 Plaintiff, John J. Hunter, appeals a trial court judgment granting the declinatory exception of insufficiency of service of process asserted by the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College for the Louisiana State University Health Sciences Center, University Hospital (“LSUHSC”), dismissing without prejudice his claims against LSUHSC. For the reasons that follow, we affirm.

On November 17, 2008, plaintiff was allegedly injured while visiting University Hospital in New Orleans. According to plaintiff, he was traversing the front entrance ramp to the hospital and stopped to lean against the guardrail when, suddenly, it gave way, causing him to fall backwards onto a metal pole protruding from the ground below.

As a result of the accident, plaintiff filed a petition for damages on November 17, 2009, inadvertently naming the defendant as “Louisiana State University Agricultural and Mechanical College on behalf of Louisiana Health Care Services Center for University Hospital at New Orleans, AKA University | ^Hospital.” The plaintiff timely requested service on both “Attorney General James D. Caldwell, 1885 North 3rd Street, Baton Rouge, LA 70802” and “Louisiana State University Agricultural and Mechanical College on behalf of Louisiana Health Care Services Center for University Hospital at New Orleans, AKA University Hospital, 8550 United Plaza Blvd., Suite 400, Baton Rouge, LA 70809,” which was the incorrect agent for service of process. The attorney general was served with the suit on December 3, 2009, but LSUHSC was never served.

On March 17, 2010, LSUHSC filed an exception of insufficiency of service of process, arguing that plaintiff did not comply with La. R.S. 13:5107 and La. R.S. 39:1538(4) Specifically, LSUHSC argued that service was defective as it was not made on both the Attorney General’s office and the head of the LSU Board of Supervisors, as required by La. R.S. 13:5107(A). It argued that “Louisiana Health Care Services Center” was not an entity subject to suit and that plaintiff named the wrong agent for service of process for LSUHSC and University Hospital. LSUHSC prayed that the action be dismissed without prejudice pursuant to La. R.S. 13:5107(D) as a result of plaintiffs failure to request proper service on the LSU Board of Supervisors within ninety (90) days of commencing the action.

| o,Plaintiff opposed the exception, arguing that because he timely requested service on both the attorney general and the state agency, and the attorney general was, in fact, served, he satisfied the requirements of La. R.S. 13:5107. He argued that La. R.S. 39:1538 did not apply in this case because it does not provide for the dismissal of an action against the state for insufficient service of process. Plaintiff argued no legal authority exists for reading La. R.S. 39:1538 in pari materia with La. R.S. 13:5107(D) to obtain dismissal of an action against the state where service was timely requested and effected on the attorney general.

Following a contradictory hearing, the trial court granted the exception and dismissed the plaintiffs claims against LSUHSC without prejudice.

“Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.” La. C.C.P. art. 1201(A). Proper citation is the foundation of all actions. Igbinoghene v. St. Paul Travelers Insurance Company, 2011-0124, p. 2 (La.4/4/11), 58 So.3d 452, 453 (citing Naquin v. Titan Indemnity Co., 00-1585, p. 8 (La.2/21/01), 779 So.2d 704, 710).

The requirements of service of process and citation upon LSUHSC are found in La. R.S. 13:5107(A):

In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in | accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.

The requisite period in which service is to be made upon LSUHSC, as well as the penalty for the failure to do so, are provided in La. R.S. 13:5107(D):

(1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

La. C.C.P. art. 1672(C) requires dismissal without prejudice when “service has not been requested within the time prescribed by Article 1201(C) ... unless good cause is shown why service could not be requested, in which case the court Rinay order that service be effected within a specified time.” See Igbinoghene, supra, 2011-0124 at p. 2, 58 So.3d at 452.

Louisiana courts strictly construe the good cause requirement of La. C.C. P. art. 1672(C). Barnett v. Louisiana State University Medical Center-Shreveport, 2002-2576, p. 1 (La.2/7/03), 841 So.2d 725, 726. Consequently, plaintiffs are strictly held to the obligation of serving the correct agent for service of process. Id. Although “good cause” is not defined in La. C.C.P. art. 1672(C), courts have concluded that mere confusion regarding a party’s correct name or inadvertence on the part of plaintiffs counsel to request service is not a sufficient basis for good cause. See Norbert v. Loucks, 2001-1229, p. 3 (La.6/29/01), 791 So.2d 1283, 1285 (citations omitted).

La. R.S. 13:5107 explicitly provides that in any suit against the State of Louisiana or a state agency, such as LSUHSC, service and citation must be made on the attorney general and the department, board, commission or agency head, and service must be requested within ninety (90) days of commencement of the action. Here, it is undisputed that plaintiff timely requested service within ninety (90) days of filing his petition. And, although he correctly requested service on the attorney general, he failed to request service on the LSU Board of Supervisors, the correct agent for service of process for LSUHSC and University Hospital. “The requirement that service upon defendant be requested within the 90-day period should reasonably be read to require an accurate request of service upon the proper agent for defendant.” Barnett, supra, 2002-2576, p. 2 (La.2/7/03), 841 So.2d 725, 726. Given that plaintiff did not serve the LSU Board of Supervisors within 90 days of filing his petition, we find the trial court correctly granted LSUHSC’s exception of insufficiency of service of process.

| ñIn an attempt to show good cause why service on the proper agent was not requested timely and, thus, avoid the penalty of La. R.S. 13:5107(D), plaintiff asserts that in good faith he requested service on Louisiana State University Agricultural and Mechanical College on behalf of Louisiana Health Care Services Center for University Hospital at New Orleans, at 8550 United Plaza Blvd., Suite 400, Baton Rouge, LA 70809, and that the sheriff attempted service at that address but the entity that once occupied that address had moved and the sheriff failed to notify him that service could not be made at the designated address. He also points to the fact the office of risk management had notice of the suit.

’ Neither of these arguments is persuasive. Plaintiff could have discerned the proper agent and correct address with minimal effort by using the internet or public library. Also, the state’s actual knowledge of the suit does not obviate the need for service. See Igbinoghene, supra, 2011-0124 at p. 1, 58 So.3d at 452.

Accordingly, for the above reasons, the judgment of the trial court, dismissing without prejudice plaintiffs claims against the LSUHSC, is affirmed.

AFFIRMED

ON APPLICATION FOR REHEARING

MICHAEL E. KIRBY, Judge.

|, We grant rehearing to reconsider our original opinion in this case in light of the recent decisions by the Louisiana Supreme Court in Whitley v. State, Board of Supervisors of Louisiana State University Agricultural Mechanical College, on behalf of the Medical Center of Louisiana at New Orleans-University Campus, 11-0040 (La.7/1/11), 66 So.3d 470 and Burnett v. James Construction Group, 10-2608 (La.7/1/11), 66 So.3d 482.

The facts and procedural history that follow are taken from the original opinion with some revisions.

On November 17, 2008, plaintiff, John J. Hunter, was allegedly injured while visiting University Hospital in New Orleans. According to plaintiff, he was traversing the front entrance ramp to the hospital and stopped to lean against the guardrail when, suddenly, it gave way, causing him to fall backwards onto a metal pole protruding from the ground below.

As a result of the accident, plaintiff filed a petition for damages on November 17, 2009, incorrectly naming the defendant as “Louisiana State |2University Agricultural and Mechanical College on behalf of Louisiana Health Care Services Center for University Hospital at New Orleans, AKA University Hospital.” The plaintiff timely requested service on both “Attorney General James D. Caldwell, 1885 North 3rd Street, Baton Rouge, LA 70802” and “Louisiana State University Agricultural and Mechanical College on behalf of Louisiana Health Care Services Center for University Hospital at New Orleans, AKA University Hospital, 8550 United Plaza Blvd., Suite 400, Baton Rouge, LA 70809,” which was the incorrect agent for service of process. The Attorney General was served with the suit on December 3, 2009, but LSUHSC was never served.

On March 17, 2010, LSUHSC filed an exception of insufficiency of service of process, arguing that plaintiff did not comply with La. R.S. 13:5107 and La. R.S. 39:1538. Specifically, LSUHSC argued that service was defective as it was not made on both the Attorney General and the Chairman of the LSU Board of Supervisors, as required by La. R.S. 13:5107(A). It argued that “Louisiana Health Care Services Center” was not an entity subject to suit and that plaintiff named the wrong agent for service of process for LSUHSC. LSUHSC prayed that the action be dismissed without prejudice pursuant to La. R.S. 13:5107(D) as a result of plaintiffs failure to request proper service on the LSU Board of Supervisors within ninety (90) days of commencing the action.

|sPlaintiff opposed the exception, arguing that because he timely requested service on both the Attorney General and the alleged state agency, albeit the wrong one, and the Attorney General was, in fact, served, he satisfied the requirements of La. R.S. 13:5107. He argued that La. R.S. 39:1538 did not apply in this case because it does not provide for the dismissal of an action against the state for insufficient service of process.

Following a contradictory hearing, the trial court granted the exception and dismissed the plaintiffs claims against LSUHSC without prejudice.

In our original opinion, we found that Mr. Hunter’s request for service and citation upon the Attorney General within ninety (90) days from the commencement of the tort suit against the alleged state agency was not sufficient to satisfy the service requirements of LSA-R.S. 13:5107. We interpreted La. R.S. 13:5107 to require a plaintiff to request service and citation upon the Attorney General and the department, board, commission or agency head. Although Mr. Hunter had timely requested service and citation upon the Attorney General, he had not requested service and citation upon the Chairman of the LSU Board of Supervisors, the correct agent for service of process for the proper defendant, LSUHSC. In affirming the trial court’s grant of LSUHSC’s exception of insufficiency of service of process, we relied on the decision in Barnett v. Louisiana State University Medical Center-Shreveport, 2002-2576, p. 1 (La.2//703), 841 So.2d 725, 726, wherein the Supreme Court concluded, “[t]he requirement that service upon defendant be requested within the 90-day period |4should reasonably be read to require an accurate request of service upon the proper agent for defendant.” Id. at p. 2, 841 So.2d at 726.

Mr. Hunter timely filed an application for rehearing. Shortly thereafter, and before this court acted on the application, the Louisiana Supreme Court rendered the decisions in Whitley and Burnett, which clearly contradict our interpretation of La. R.S. 13:5107 in the original opinion.

In Whitley, the plaintiff filed a medical malpractice case against Louisiana State University Health Sciences Center-Medical Center of Louisiana at New Orleans-University Campus (“University”). At the time of filing, the plaintiff requested service of process only on the Chairman of the LSU Board of Supervisors. More than two years after the suit was filed, the Attorney General and the Office of Risk Management received a faxed copy of the citation and petition from Whitley’s counsel. University filed a declinatory exception of insufficiency of service of process, seeking dismissal of Whitley’s action based on her alleged failure to comply with the service requirements of La. R.S. 39:1538 and La. R.S. 13:5107.

At the time Whitley filed her petition and the trial court judgment was rendered, La. R.S. 13:5107 provided, in pertinent part:

A. In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending |supon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served. []
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

^Interpreting the language of La. R.S. 13:5107(A), the Supreme Court in Whitley determined that the single verb phrase, “may be obtained,” modified all of the phrases after it, including those appearing after the conjunctive “and.” Thus, the Court concluded that, from a grammatical standpoint, the statute should read that citation and service:

1. may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the law of this state, and
2. may be obtained by citation and service on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and
3. may be obtained by citation and service on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity if the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.

Whitley, 11-0040 at p. 10-11, 66 So.3d at 477. The Court further concluded that, “[p]roviding permission to request service on the [Attorney General] and the head of the agency does not impose a requirement that the plaintiffs request for service pertain to both.” Id. at p. 11, 66 So.3d at 477. The Court based its conclusion on the legislature’s use of the permissive term “may,” rather than the mandatory terms “shall” or “must.” Id.

The Supreme Court also noted that pursuant to La. R.S. 13:5107(D)(2), when service is not requested by the plaintiff within ninety (90) days of the commencement of the action, the action shall be dismissed, without prejudice, after a contradictory motion, as provided in La. C.C.P. art. 1672(C). When such a ^dismissal occurs, prescription is not interrupted as to the state defendants. La. R.S. 13:5107(D)(3). Considering this harsh consequence and the policy favoring maintaining actions, the Court concluded that, if the legislature’s word choice made La. R.S. 13:5107(A) susceptible to two possible constructions, the statute should be construed in a manner to maintain the claim. Id. at p. 12-13, 66 So.3d at 478. Accordingly, the Court determined that Whitley’s request for service of citation on University satisfied the requirements of La. R.S. 13:5107(A) and (D). Id. at p. 13, 66 So.3d at 479.

The Supreme Court then considered the provisions of La. R.S. 39:1538 to determine whether University was entitled to dismissal of Whitley’s claim pursuant to La. C.C.P. art. 1672(C) for failure to also serve the Attorney General and the Office of Risk Management as required by La. R.S. 39:1538(4), within ninety (90) days of the commencement of her action. See La. R.S. 13:5107(D). La. R.S. 39:1538 provides:

(1) Claims against the state or any of its agencies to recover damages in tort for money damages against the state or its agencies for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment under circumstances in which the state or such agency, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be specified in this Chapter. However, immunity for discretionary acts of executive, legislative, and judicial officers within the scope of their legally defined powers shall not be abridged.
(2) The state and its agencies shall be liable for claims in the same manner and to the same extent as a private individual under like circumstances.
(3) A judgment may be settled in accordance with R.S. 39:1535(B)(6).
ls(4) In all actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107. However, there shall be no direct action against the Self-insurance Fund and claimants, with or without a final judgment recognizing their claims, shall have no enforceable right to have such claims satisfied or paid from the Self-insurance Fund.

In Whitley, the Supreme Court noted that the legislature used the mandatory term “shall” in La. R.S. 39:1538(4), which required that service of process be effected on three entities/persons: (1) the department head, (2) the Attorney General, and (3) the Office of Risk Management. Whitley initially requested service only on the Chairman of the LSU Board of Supervisors, which the Court referred to as the “department head.” Therefore, University contended that Whitley’s action should have been dismissed because of her failure to request service on the Attorney General and the Office of Risk Management within ninety (90) days from the filing of the petition. Id. at p. 14, 66 So.3d at 479.

The Supreme Court noted that, while the language of La. R.S. 39:1538(4) clearly required that all three entities/persons be served, nothing in that statutory provision required that service be requested on them within the 90-day period immediately following the commencement of the action. Indeed, the Court noted that La. R.S. 39:1538(4) addressed “service” as opposed to “request for service” and concerned service of “process” as opposed to “service of citation.” The Court further noted that, unlike the provisions of La. R.S. 13:5107(D), La. R.S. 39:1538(4) did not mandate that service of citation be requested within ninety days of the filing of the petition or that the failure to do so warranted the dismissal of the action pursuant to La. C.C.P. art. 1672(C). Id. at p. 16, 66 So.3d at 480-81. The Court then emphasized that the Louisiana Code of Civil Procedure requirement for | ^service within ninety (90) days and the corresponding dismissal for failure to do so is limited to “named defendants.” ’ Id. at p. 17, 66 So.3d at 481, citing La. C.C.P. arts. 932(A), 1201(C), 1672(C). The Court concluded that the requirement of service and sanction of dismissal was not available because the Attorney General and Office of Risk Management were not defendants, and the department head in the matter was not a named defendant. Id. The Court expressly stated:

The purpose of LSA-R.S. 39:1538 is to provide notice to the [Attorney General], the [Office of Risk Management], and the department head that a tort action has been brought. This statute does not provide for dismissal for the failure to effectuate service. Although there is a reference in LSA-R.S. 39:1538(4) to LSA-R.S. 13:5107, based on the clear language, this is a reference to who must be served and not a reference to when service must occur or to a sanction for failure to timely serve.

Id. The Court then noted that since the sustaining of University’s objection regarding service of citation under La. R.S. 39:1538(4) would not be based on the lack of a timely request, that objection was cured by Whitley’s subsequent service of citation on the Attorney General and Office of Risk Management, and University was not entitled to the dismissal of Whitley’s action pursuant to La. C.C.P. art. 1672(C). Id. at p. 18, 66 So.3d at 481. Thus, the Court concluded that Whitley’s request for service initially on University through the Chairman of the LSU Board of Supervisors and subsequent service on the Attorney General and Office of Risk Management was sufficient to satisfy the service requirements of La. R.S. 13:5107 and La. R.S. 39:1538(4). Id. at p. 18, 66 So.3d at 482.

In the companion case, Burnett, supra, the plaintiff, Shawn Burnett, filed a tort action against several defendants, including the State of Louisiana, through the Department of Transportation and Development (“DOTD”), seeking to recover | indamages arising from an automobile accident. In his petition, Burnett timely requested service on the DOTD through the Attorney General.

DOTD filed a motion for involuntary dismissal and an exception of insufficiency of service of process based on the fact that Burnett had not also requested service on the secretary of DOTD, citing La. R.S. 13:5107(A). Based on Burnett’s lack of service on DOTD’s secretary, DOTD argued Burnett failed to request proper service within 90 days of the filing of his suit pursuant to La. R.S. 13:5107(D)(1), entitling DOTD to the dismissal of Burnett’s claims under La. R.S. 13:5107(D)(2).

The trial court denied DOTD’s motion to dismiss and overruled its exception of insufficiency of service of process. The First Circuit Court of Appeal granted DOTD’s application for supervisory writs and reversed the trial court’s judgment. It, too, cited the Supreme Court’s earlier decision in Barnett, supra, in concluding that in a suit against a state agency, La. R.S. 13:5107(A) required double service, i.e., service on the agency head and the Attorney General. Burnett, 2010-2608, pp. 3-4, 66 So.3d at 484-85, citing Burnett v. James Construction Group, 10-1275 (La.App. 1 Cir. 10/27/10) (unpublished writ action).

The Supreme Court granted Burnett’s application for a supervisory writ and for the reasons assigned in Whitley, supra, concluded that Burnett’s request for service on the Attorney General alone satisfied the service requirements of La. R.S. 13:5107(A). Id. at p. 4, 66 So.3d at 485.

The Court then considered whether Burnett’s failure to serve DOTD’s secretary required dismissal based on R.S. 39:1538(4). Reiterating its reasoning in |nWhitley that La. R.S. 39:1538 neither imposes a time constraint on the service required by La. R.S. 39:1538(4) nor provides for dismissal for the failure to effectuate service, the Court determined Burnett’s failure to request service on the department head and the Office of Risk Management within ninety (90) days of commencement of his action did not entitle DOTD to the dismissal of his claim against it pursuant to La. C.C.P. art. 1672(C). Id. at pp. 4-5, 66 So.3d at 485, citing Whitley, 11-0040, pp. 16-18, 66 So.3d at 480-82.

The Court found the First Circuit properly sustained DOTD’s declinatory exception of insufficiency of service of process due to Burnett’s failure to effect service on DOTD’s secretary and the Office of Risk Management. The Court concluded, however, that since the grounds for that objection, i.e. incomplete service, could be cured by Burnett requesting and obtaining service of process on DOTD’s secretary and the Office of Risk Management, the First Circuit erred in failing to allow him an opportunity to do so as required by La. C.C.P. art. 932(A). Id. at p. 5, 66 So.3d at 485, citing Whitley, 11-0040, p. 18, 66 So.3d at 481-82. Accordingly, the Court affirmed the First Circuit decision only insofar as it sustained DOTD’s exception of insufficiency of service or process, but amended and remanded so as to allow Burnett an opportunity to cure the defect in service. Id.

The distinction between the present case and the cases of Whitley and | isBurnett is that Mr. Hunter neither filed his petition against the correct defendant nor timely requested service on the proper agent for service of process for the correct defendant. Applying the reasoning in Whitley to this case, at the very least, Mr. Hunter had to file suit against the correct state agency or timely request service on the proper agent for service of process for the correct defendant. Since the Attorney General is not a defendant in Mr. Hunter’s suit, service upon him alone would have satisfied the service requirements of La. R.S. 13:5107(A) provided Mr. Hunter had named the correct state agency as the defendant, but he did not. In Burnett, timely service upon the Attorney General alone satisfied the service requirements of La. R.S. 13:5107(A) because Burnett had sued the DOTD, the correct state agency.

And in Whitley, service upon the agency head alone satisfied the service requirements of La. R.S. 13:5107(A) because Whitley had timely requested service on the proper agent for service (the Chairman of the LSU Board of Supervisors) for the correct defendant, LSUHSC. Here, the record indicates Mr. Hunter filed his petition on November 17, 2009, naming the wrong defendant and requesting service on an improper agent for service of process for LSUHSC. On December 9, 2009, the East Baton Rouge Sheriffs office attempted service at the address given by Mr. Hunter, but was unsuccessful. At that point, Mr. Hunter was still well within the 90-day period to request service and could have amended his petition to name the correct defendant and/or to request service on the proper agent for service for the correct defendant, but he never did so.

In an attempt to show good cause why service on the proper agent was not requested timely and, thus, avoid the penalty of La. R.S. 13:5107(D), plaintiff asserts that in good faith he requested service on Louisiana State University | ^Agricultural and Mechanical College on behalf of Louisiana Health Care Services Center for University Hospital at New Orleans, at 8550 United Plaza Blvd., Suite 400, Baton Rouge, LA 70809, and that the sheriff attempted service at that address but the entity that once occupied that address had moved and the sheriff failed to notify him that service could not be made at the designated address. He also points to the fact the Office of Risk Management had notice of the suit.

Neither of these arguments is persuasive. Plaintiff could have discerned the proper agent and correct address with minimal effort by using the internet or public library. Also, the state’s actual knowledge of the suit does not obviate the need for service. See Igbinoghene, 2011-0124 at p. 1, 58 So.3d at 452.

Accordingly, for the above reasons, the judgment of the trial court, dismissing without prejudice plaintiffs claims against the LSUHSC, is affirmed.

AFFIRMED

      . The proper defendant for plaintiff’s action is State of Louisiana through the Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College through Louisiana State University Health Sciences Center, University Hospital.

      . The correct agent for service of process for LSUHSC and University Hospital is the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU Board of Supervisors”), 3810 W. Lakeshore Drive, Baton Rouge, LA 70808. See La. R.S. 17:3215.

      .La. R.S. 39:1538(4) provides, in pertinent part: "In actions brought pursuant to this Section (Claims against the state), process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107....”

      . The parties acknowledge in the briefs that, at one time, the LSUHSC and the LSU Board of Supervisors were both located at the address plaintiff gave for service. The LSU Board of Supervisors, however, had moved to its new location on West Lakeshore Drive in Baton Rouge three years before plaintiff filed his suit.

      . The record contains a copy of a letter that the State of Louisiana, Division of Administration, Office of Risk Management sent to plaintiff’s counsel, indicating it had received a copy of the plaintiff's suit and was requesting a thirty (30) day extension to prepare the appropriate pleadings.

      . The correct defendant for plaintiff's action is State of Louisiana through the Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College through Louisiana State University Health Sciences Center, Medical Center of Louisiana at New Orleans-University Hospital (“LSUHSC”). See La. R.S. 17:3215 and La. R.S. 17:1519.2.

      . The correct agent for service of process for LSUHSC is the Chairman of the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU Board of Supervisors”). See La. R.S. 17:3215.

      . In Whitley, the Supreme Court referred to the defendant LSUHSC as "University.”

      . The version of the statute applicable in Whitley was the same version applicable in the instant case. Paragraph (D)(2) has been amended since by Acts 2010, No. 55, § 1.

      . After the 2010 amendment, Subsection (D)(2) provided:
      If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, upon whom service was not requested within the period required by Paragraph (1) of this Subsection.

      . Burnett v. James Construction Group, 10-2608 (La.2/11/11), 56 So.3d 991.

      . La. C.C.P. art. 932(A) provides:
      When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court; if the court finds, on sustaining the objection that service of citation on the defendant was not requested timely, it may either dismiss the action as to that defendant without prejudice or, on the additional finding that service could not have been timely requested, or that service be effected within a specified time.

      . The parties acknowledge in the briefs that, at one time, the LSUHSC and the LSU Board of Supervisors were both located at the address plaintiff gave for service. The LSU Board of Supervisors, however, had moved to its new location on West Lakeshore Drive in Baton Rouge three years before plaintiff filed his suit.

      . The record contains a copy of a letter that the State of Louisiana, Division of Administration, Office of Risk Management sent to plaintiff’s counsel, indicating it had received a copy of the plaintiff's suit and was requesting a thirty (30) day extension to prepare the appropriate pleadings.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Patrick A. WADE.
    No. 10-KA-997.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for PlaintiffAppellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

12Defendant, Patrick Wade, was charged by bill of information with one count of armed robbery, in violation of LSA-R.S. 14:64. He pled not guilty at arraignment. At the conclusion of trial on May 12, 2010, a jury found defendant guilty as charged.

On June 17, 2010, the trial court sentenced defendant to 99 years in the Department of Corrections, to be served without benefit of parole, probation or suspension of sentence. The State filed a multiple offender bill of information immediately thereafter. On August 9, 2010, the trial court found defendant to be a fourth felony offender, vacated defendant’s original sentence, and re-sentenced him to life in prison at hard labor, without benefit of parole, probation or suspension of sentence.

FACTS

Is At trial, Christine Delatorre testified that on April 15, 2009, she was working at Barry’s Flooring on Veterans Boulevard in Metairie when a man walked into the store carrying a floral “fake looking” Gucci bag. At the time, Mrs. Delatorre was seven months pregnant. Mrs. Delatorre greeted the man, but the man ignored her. She testified that the man walked toward her and when he was approximately three feet from her, he took a gun out of the bag and pointed it at her.

The man then demanded money from Mrs. Delatorre. Mrs. Delatorre informed the man that the store did not have any money or a cash register. The man became irate, lunged at Mrs. Delatorre, and knocked her to the ground. She began to scream. Mrs. Delatorre’s attacker wrapped his right arm around her head in a headlock and tried to put his other hand on her mouth to cover her screams. The man struck Mrs. Delatorre several times in the face when she would not stop screaming. According to Mrs. Delatorre, he told her that he would kill her if she did not stop screaming.

Eventually, the perpetrator allowed Mrs. Delatorre to get to her feet. She emptied out a bank envelope with some change in it, and she gave the man the cash contents of her purse (approximately ten dollars), as well as her wedding rings. The man then ripped a telephone cord out of the back of a telephone, tied her hands behind her back, and tied her feet to the same cord. As a result of the attack, Mrs. Delatorre suffered three lacerations to her lip and a piece of cartilage broken in her nose. She was also hospitalized for two days to monitor her pregnancy.

On June 2, 2009, the police presented Mrs. Delatorre with a photographic lineup. She positively identified defendant from the photographic lineup as the man who had attacked her on April 15, 2009. She also positively identified defendant in open court at trial.

14Sergeant Rodney Naumane of the Jefferson Parish Sheriffs Office testified that on April 15, 2009, he responded to a call at Barry’s Flooring. Sergeant Naumane testified that he lifted fingerprints and palm prints from a telephone in the back office of Barry’s Flooring and from the front door. According to Sergeant Naumane, a black cord was lying in the middle of the floor in the back office near the telephone.

Aischa Prudhomme testified that she is a latent print examiner for the Jefferson Parish Crime Laboratory. Ms. Prud-homme was subsequently accepted as an expert in latent fingerprint analysis. Ms. Prudhomme testified that she was able to identify an inner digital left palm print from the back office telephone of Barry’s Flooring as coming from defendant’s hand.

Rochelle Polito testified that she is an insurance agent at Geico. On April 15, 2009, she was working at her office, which is next door to Barry’s Flooring. At approximately 11:00 a.m., Ms. Polito heard a loud “commotion” and then “screaming” through the wall shared by Barry’s Flooring and the Geico office. Ms. Polito heard Mrs. Delatorre make a muffled scream and then say, “Why are you doing this to me, what do you want from me?”

Ms. Polito testified that she and a woman interviewing for a position with Geico ran next door. According to Ms. Polito, she saw a man running from the store and she “seen [sic] him turn and look back, quickly.” Ms. Polito further indicated that she “pretty much took a picture of his face in my mind, knowing something was wrong.” Ms. Polito watched the man run to a nearby Arby’s parking lot, enter an older model maroon-colored vehicle, and drive away. Ms. Polito then entered Barry’s Flooring and found Mrs. Delatorre tied up, and on the floor. Ms. Polito positively identified defendant in open court as the man she saw |sflee Barry’s Flooring that day. She also identified defendant from the same photographic lineup presented to Mrs. Delatorre.

Sergeant David Mascaro testified that he executed an arrest warrant and a search warrant at 8005 Lake Villa Drive, Apartment F. Defendant’s wife answered the door. Sergeant Mascaro observed defendant exit a bedroom and subsequently took him into custody. Pursuant to the search warrant, Sergeant Mascaro recovered the laptop computer Mrs. Delatorre used at Barry’s Flooring.

Detective Brett Beavers testified that he interviewed Mrs. Delatorre and other witnesses to the robbery. Eventually, he developed defendant as a suspect in this matter after receiving information from the Jefferson Parish Crime Laboratory. He showed a photographic lineup to Mrs. Delatorre, who positively identified defendant as the man who robbed her. Detective Beavers also participated in the execution of the search warrant and the arrest warrant at 3005 Lake Villa Drive. Defendant subsequently gave a recorded statement to Detective Beavers, which was played for the jury.

In the statement, defendant indicated that he has a problem with heroin and that on April 15, 2009, he was “sick” and needed some money to buy heroin. Defendant stated that he went to his mother’s house in Gretna, saw this “little toy gun little lighter thing,” and decided he was going to rob somebody with it. He noticed that there were no cars in the Barry’s Flooring parking lot and decided to rob that store. After seeing a woman, defendant pulled out the “gun,” which promptly fell apart. According to defendant, he then put the “gun” into a fake Louis Vuitton bag and grabbed the woman, who began screaming. Defendant indicated that he told the woman that he was not going to hurt her and that he just wanted money. The woman gave him 11 dollars and he grabbed several rings that he saw on a table. At that point, defendant indicated that he tied the woman up Lwith a phone cord, and ran to the back of the Arb/s where he had parked. He then went and bought a bag of heroin in New Orleans.

Dareelle MacKyeon testified that she was an employee of Cash America Pawn in Algiers on April 15, 2009. Ms. MacKyeon testified that at 12:10 p.m. on April 15, 2009, a person identifying himself as “Patrick Wade” pawned a three-piece white gold wedding ring set for $120.

LAW AND DISCUSSION

In his first assignment of error, defendant contends that the evidence presented by the State was insufficient to convict him of armed robbery. He asserts that, in order to convict him of armed robbery, the State had to prove at trial that he committed a robbery while armed with a dangerous weapon. LSA-R.S. 14:64(A). However, he claims that the “gun” in question was actually nothing more than a novelty lighter in the shape of a gun, as he made clear in his recorded statement to the police. Defendant contends that the evidence would only support a conviction for first degree robbery, which is the taking of something of value from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. LSA-R.S. 14:64.1(A).

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Scott, 06-134, p. 12 (La.App. 5 Cir. 7/25/06), 939 So.2d 462, 470, writ denied, 06-2133 (La.3/30/07), 953 So.2d 61. Under the Jackson standard, a 17review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

Evidence may be either direct or circumstantial. State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004).

To support a conviction for armed robbery, the State must prove beyond a reasonable doubt that there was a taking of anything of value from the person of another by use of force or intimidation while armed with a dangerous weapon. State v. Thomas, 08-813, p. 6 (La.App. 5 Cir. 4/28/09), 13 So.3d 603, 606, writ denied, 09-1294 (La.4/5/10), 31 So.3d 361. LSA-R.S. 14:2(A)(3) defines a “dangerous weapon” as “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

In the present case, the testimony was sufficient to prove each element of the crime of armed robbery. Mrs. Delatorre’s testimony established that defendant entered her place of employment and robbed her -with a firearm. Defendant claims that he robbed Mrs. Delatorre with a toy gun that “fell apart.” However, Mrs. Dela-torre testified that although she did not own a gun, she had seen them before and there was no doubt in her mind that defendant robbed her with a real gun.

|sThe record shows that the jury was given the definition of first degree robbery during the jury instructions and that first degree robbery was a responsive verdict that the jury was permitted to return. However, the jury apparently did not believe that defendant used a toy gun to rob Mrs. Delatorre. Rather, the jury apparently credited Mrs. Delatorre’s testimony that a real firearm was used and thus, the jury returned a verdict of guilty of armed robbery. As stated above, in the absence of internal contradiction or irreconcilable conflict, one witness’ testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. Robinson, 02-1869, 874 So.2d at 79.

Based on the evidence in the record before us, along with the applicable law, we find that the evidence was sufficient to support defendant’s armed robbery conviction. Accordingly, this assignment of error is without merit.

In his second assignment of error, defendant contends that his sentence of life in prison, without benefit of probation, parole, or suspension of sentence, is excessive. He claims that pursuant to the multiple offender adjudication, the trial court imposed the “maximum available” sentence, which was not warranted under the facts of this case.

The trial court found defendant to be a fourth felony offender. Pursuant to LSA-R.S. 15:529.1, the life sentence at hard labor that defendant received was a mandatory sentence, not the “maximum available” sentence as suggested by defendant.

LSA-R.S. 15:529.1 states, in pertinent part:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this .state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
|9(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence, (emphasis added)

In this case, the fourth felony and one of the prior felonies (first degree robbery) are defined as crimes of violence under LSA-R.S. 14:2(B). The penalty for another of defendant’s prior convictions (distribution of cocaine) pursuant to LSA-R.S. 40:967(B)(4)(b) is imprisonment of two to thirty years at hard labor, the first two years to be served without benefit of parole, probation, or suspension of sentence, and a possible fine of not more than fifty thousand dollars. Thus, “the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B) ... or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more.” Accordingly, the life sentence, at hard labor was a mandatory one, not the “maximum available” sentence.

The Habitual Offender Law has consistently been held to be constitutional and therefore, the minimum sentences the statute imposes upon multiple offenders are presumed constitutional, and should be accorded great deference by the judiciary. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 675. However, a court may determine that a punishment mandated by LSA-R.S. 15:529.1 is excessive, if the trial judge finds that the sentence makes no measurable contribution to the acceptable goals of punishment or that the sentence amounts to | innothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Dorthey, 623 So.2d 1276, 1280-1281 (La.1993). This power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Ponsell, 33,543, p. 10 (La.App. 2d Cir. 8/23/00), 766 So.2d 678, 685, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490.

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, 343, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).

In this case, defendant has not shown that he is exceptional; that is, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Counsel for defendant concedes that defendant has “a less than exemplary record” and that “his crime of conviction is shocking, given the relative vulnerability of his victim.” Nonetheless, defendant contends that his sentence is excessive because he “has received a life sentence for a crime in which no one was killed nor did anyone suffer any lasting or permanent harm” and that “this non-fatal criminal episode by a ‘drug sick’ offender must be recognized for the unconstitutionally excessive and pitiless infliction of torture that it is.”

Defendant physically attacked and struck Mrs. Delatorre, who was seven months pregnant. Mrs. Delatorre testified that she was afraid that she had lost her [1Tbaby and that she is still in counseling. Defendant’s past criminal record includes violent crimes and distribution of cocaine, a crime punishable by up to 30 years at hard labor.

Considering the entire record before us, we find that defendant’s sentence is not excessive, and this assignment of error has no merit.

In his third and final assignment of error, defendant contends that the trial court erred in charging the jury that a less than unanimous verdict was sufficient to convict him of armed robbery. It appears that defendant is contesting the jury instruction which reads “ten of [the jurors] must agree to reach a verdict.” Defendant contends that a non-unanimous verdict is a violation of due process.

At the outset, it is noted that there is no evidence in the record to show whether a non-unanimous jury convicted defendant. Counsel for defendant did not request that the jury be polled, and there are no juror slips in the record or in evidence. It stands to reason that defendant cannot complain of a non-unanimous conviction if he was convicted by a unanimous jury.

Furthermore, defendant did not object to the jury instructions at trial. In order to seek appellate review of an alleged trial court error, a party must make a contemporaneous objection at trial, and he must state the grounds for the objection. LSA-C.Cr.P. art. 841; State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294. Thus, defendant is not entitled to have this issue reviewed and considered by this Court.

Nevertheless, even if we consider defendant’s argument, it has no merit.

LSA-C.Cr.P. art. 782 provides in pertinent part:

A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor 112shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.

(Emphasis added.)

The Louisiana Supreme Court has previously discussed and affirmed the constitutionality of LSA-C.Cr.P. art. 782. In State v. Jones, 381 So.2d 416, 418 (La.1980), the Court ruled that LSA-C.Cr.P. art. 782 did not violate the Sixth and Fourteenth Amendments. Later, in State v. Simmons, 414 So.2d 705, 707 (La.1982), the Court found that LSA-C.Cr.P. art. 782 did not violate either the Fifth or Fourteenth Amendments. In State v. Bertrand, 08-2215, p. 5 (La.3/17/09), 6 So.3d 738, 741, the Court again affirmed the statute’s constitutionality.

This Court has followed the Louisiana Supreme Court’s jurisprudence on many occasions. See, for example, State v. Raymond, 08-1204 (La.App. 5 Cir. 4/28/09), 13 So.3d 577, 592, writ denied, 09-1205 (La.2/5/10), 27 So.3d 296.

The issue in this assignment of error has been raised countless times in Louisiana. Time and time again, the courts of this state have rejected the argument. Accordingly, we find that this assignment of error has no merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). No errors requiring corrective action were noted.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED


author: HIGGINBOTHAM, J.

text:
    Anthony ROMANO and Melissa Romano v. John Patrick ALTENTALER and ABC Insurance Company.
    No. 2011 CA 0303.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      Larry E. Demmons, Ross M. Molina, New Orleans, LA, for Plaintiffs-lst Appellants, Anthony and Melissa Romano.
    Richard W. Watts, Franklinton, LA, for Defendant-2nd Appellant, John Patrick Altentaler.
    Andrew L. Plauché, Jr., New Orleans, LA, for Defendant-Appellee, Louisiana Farm Bureau Mutual Ins. Co.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

^Plaintiffs, Anthony Romano and his wife Melissa Romano, filed suit for damages against defendant, John Patrick Al-tentaler, and his homeowner’s insurer, Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau). The trial court rendered summary judgment dismissing the Romanos’ claims against Farm Bureau, on the basis of an intentional act exclusion in the homeowner’s policy. The Romanos and Altentaler filed separate appeals, each asserting there are genuine issues of material fact concerning the applicability of the exclusion. For the following reasons, we affirm the trial court’s judgment.

FACTS

Anthony Romano is a detective in the Washington Parish Sheriffs Department. On September 9, 2007, Romano responded to a domestic dispute call emanating from John Patrick Altentaler’s house. According to Romano, when he and another deputy, Nick Dikes, entered the house, they discovered that Altentaler was in the bathroom taking a shower. They demanded that Altentaler exit the bathroom. When Altentaler opened the bathroom door, he was wearing boxer shorts and was dripping wet. As Romano and Dikes attempted to interrogate him, Altentaler became angry and began shouting for the deputies to leave his house. At some point, Alten-taler grabbed and/or pushed Romano’s arm in an effort either to make him leave or to get away. Romano reacted by pepper spraying Altentaler. The scuffle immediately escalated, and everyone slipped and fell onto the wet floor on top of Romano. Romano suffered an injury to his right shoulder that required several surgical procedures to repair. Romano filed suit for damages against Altentaler and Farm Bureau.

|sFarm Bureau filed a motion for summary judgment asserting that the homeowner’s policy did not provide coverage for bodily injury resulting from intentional acts. Farm Bureau contended that the expected and/or unexpected damages sustained by Romano arose out of the altercation that resulted from Altentaler’s intentional actions. Romano and Altentaler opposed the motion for summary judgment, arguing that a factual dispute existed as to exactly how Romano’s injury occurred and what caused the injury. Exhibits offered by the parties included a copy of the Farm Bureau policy, as well as the depositions of Romano and Alten-taler, and a certified copy of the court minutes pertaining to Altentaler’s guilty plea to charges of resisting a police officer, battery of a police officer, and public intimidation. The trial court granted summary judgment in favor of Farm Bureau, finding that Altentaler clearly intended to push or shove Romano, which resulted in an altercation, the fall, and the injury to Romano. Essentially, the trial court concluded that Altentaler’s intentional act of pushing, shoving, and/or grabbing Romano was sufficient to trigger Farm Bureau’s policy exclusion.

LAW

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Yokum v. 615 Bourbon Street, L.L.C., 07-1785 (La.2/26/08), 977 So.2d 859, 876. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. Simmons v. Weiymann, 05-1128 (La.App. 1st Cir.8/23/06), 943 So.2d 423, 425. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312.

Summary judgment is usually not appropriate for claims based on subjective facts of motive, intent, good faith, knowledge, and malice. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1006. However, an exception is recognized when no genuine issue of material fact exists concerning the relevant intent, and the only issue to he decided is the ultimate conclusion to be drawn from the uncontested material facts. See Jones, 870 So.2d at 1006 & 1010-11.

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La.Code Civ. P. art. 966(C)(2); Jones, 870 So.2d at 1006. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a genuine issue of material fact remains. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Id. Furthermore, a case may be appropriate for summary judgment even when there are differing versions of the events, if the differences are not material. See Menson v. Taylor, 99-0300 (La.App. 1st Cir.4/17/00), 764 So.2d 1079, 1082-1083.

| r, ANALYSIS

The homeowner’s policy exclusion on which Farm Bureau relies in this case provides, in pertinent part:

SECTION II — EXCLUSIONS
1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
a. resulting from intentional acts or directions by you or any insured. The expected or unexpected results of these acts or directions are not covered. (Emphasis added.)

Farm Bureau had the burden of proving the applicability of the exclusionary clause in its homeowner’s policy. See Tunstall v. Stierwald, 01-1765 (La.2/26/02), 809 So.2d 916, 921; See also Kling v. Collins, 407 So.2d 478, 480 (La.App. 1st Cir.1981). It must therefore prove that the bodily injury sustained by Romano was the expected or unexpected result of Altentaler’s intentional act or direction.

Our review of the record reveals that Farm Bureau has made a prima facie showing that: (1) Altentaler intentionally pushed and/or grabbed Romano in an attempt to move the officers out of his home and/or to get away, and (2) the bodily injury sustained by Romano was the “unexpected” result of Altentaler’s intentional act. Accordingly, the burden shifted to Romano and/or Altentaler to present evidence demonstrating that genuine [(¡issues of material fact remained. We conclude that they have failed to meet this burden.

It is apparent to this court that whether Altentaler intended to actually harm or injure Romano is not a genuine issue of material fact because the exclusionary clause clearly and unambiguously states that the expected or unexpected re-suit of the intentional act is not covered by the policy. The plain intent of this language is to exclude coverage for intentional acts of an insured, even when the results of such acts may be unexpected. See Canterberry v. Chamblee, 41,940 (La. App.2d Cir.2/28/07), 953 So.2d 900, 904 (examining the same exclusionary clause language). Thus, it is irrelevant that Alten-taler may not have intended to actually injure Romano, and regardless of which version of the events leading to Romano’s injury is accepted, Farm Bureau is entitled to judgment as a matter of law. See Menson, 764 So.2d at 1084, and Richard v. Brasseaux, 10-409 (La.App. 3d Cir.11/3/10) 50 So.3d 282, 289, writ denied, 10-2673 (La.1/28/11), 56 So.3d 959. The act of pushing and/or grabbing Romano and instigating a physical altercation with the police officers in an attempt to move them out of the house and/or to get away was certainly intentional — a fact that was not denied by Altentaler. The result of the intentional act, expected or not, 17was that Romano was injured. Therefore, the exclusionary clause clearly applies, and the trial court correctly granted summary judgment in favor of Farm Bureau.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal are to be paid equally by plaintiffs, Anthony and Melissa Romano, and defendant, John Patrick Altentaler,

AFFIRMED.

PARRO, J., concurs.

      . Farm Bureau submitted Romano’s and Al-tentaler’s deposition testimony in support of its motion for summary judgment. Romano testified that Altentaler’s touch to his arm "was intentional" and Altentaler knew what he was doing. Romano also testified that Altentaler was attempting to "get away," and in his intentional attempt to get away, the two officers and Altentaler immediately fell, and that was when Romano was injured. Alten-taler testified that he was intoxicated just hours before the incident and he had absolutely no memory of the scuffle, the fall, or Romano's injury. But Altentaler acknowledged that he physically struggled with both officers immediately upon opening the bathroom door and that he failed to comply with their commands.

      . We distinguish the cases relied on by Romano and Altentaler, most notably Pique v. Saia, 450 So.2d 654, 655 (La.1984), and Bilbo, 698 So.2d at 694-695. Those cases involved completely different exclusionary clauses that focused on whether the injury was intended or expected from the standpoint of the insured, rather than whether the actual act that led to the injury was intended. See McCrea v. Mariche, 08-0074, pp. 3-4 (La.App. 1st Cir.6/6/08) (unpublished), 986 So.2d 256 (table), and Canterberry, 953 So.2d at 904.

      .The record reflects that Altentaler ultimately pled guilty to second degree battery of a police officer after the incident. A guilty plea is an admission against interest that is relevant, but not conclusive, and admissible to prove fault in a civil action involving the same subject matter. See Shephard on Behalf of Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308, 1319; American Medical Enterprises, Inc. v. Audubon Ins. Co., 05-2006 (La. App. 1st Cir.6/8/07), 964 So.2d 1022, 1029, writ denied, 07-1405 (La.10/26/07), 966 So.2d 575; and Harris v. Dunn, 45,619 (La.App.2d Cir.9/22/10), 48 So.3d 367, 372. Thus, Alten-taler’s guilty plea may be considered evidence in determining intent, although it alone is not proof that he acted intentionally. See Harris, 48 So.3d at 372-373. All the surrounding circumstances must be examined to determine a person’s intent. Id., 48 So.3d at 373. Romano and Altentaler have not put forth any evidence to suggest that they can prove that Altentaler’s acknowledged physical contact with Romano was accidental. Accordingly, we conclude that Farm Bureau is entitled to summary judgment.


author: McDonald, j.

text:
    Earnest W. McCALLISTER v. SUNLAND FABRICATORS and FARA.
    No. 2011 CA 0322.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      Michael L. Hebert, Baton Rouge, LA, for Plaintiff/Appellant Earnest W. McCal-lister.
    John J. Rabalais, Heather W. Blackburn, Janice B. Unland, Gabriel E.F. Thompson, Covington, LA, for Defendant/Appellee Sunland Fabricators.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   McDonald, j.

| j,This is an appeal of a workers’ compensation case. Earnest W. McCallister, a pipefitter, filed a disputed claim for compensation on April 7, 2008, against his employer, Sunland Fabricators. Mr. McCallister asserted that he had slipped on a pipe and hurt his back on May 5, 2007. He asked for wage benefits, medical treatment (an MRI diagnostic study), and interest, penalties, attorney fees, expert fees, and costs. Sunland. Fabricators filed an answer denying his claims and raising affirmative defenses.

At the start of the trial on the merits, the parties stipulated that Mr. McCallister was injured in the course and scope of his employment with Sunland Fabricators on May 5, 2007; that his average weekly wage was $1,044.00 and his corresponding temporary total disability rate was $478.00; that temporary total disability was paid from October 18, 2007, to December 26, 2007; that Mr. McCallister continued to work from the date of the accident until October 15, 2007; that all medical bills had been paid except for an MRI study for which there was a Veterans Administration lien; that Dr. Isaza was Mr. McCallister’s choice of orthopedic surgeon; and that FARA was a third-party administrator and not a workers’ compensation carrier.

After the trial on the merits, the workers compensation judge took the case under advisement. Thereafter, the workers compensation judge ruled, finding that Sunland Fabricators owed the Veterans Administration reimbursement for the expense of an MRI, that Sunland Fabricators owed Mr. McCallister supplemental earnings benefits in the amount of $12,238.27 for December 26, 2007, through July 23, 2008, plus legal interest due on each installment as it came due until paid, that Mr. McCallister violated La. R.S. 23:1208 during his deposition on July 23, 2008, by deliberately misrepresenting facts to obtain workers’ compensation | .^benefits, and thus, that his entitlement to workers’ compensation benefits as of July 24, 2008, was forfeited. Mr. McCallister appealed that judgment.

On appeal, Mr. McCallister asserts that 1) the workers compensation judge erred in finding he committed fraud for the purpose of obtaining workers’ compensation benefits, as any deception (which he denies) was for the purpose of receiving treatment from the Veterans Administration hospital, thus the workers compensation judge erred in imposing La. R.S. 23:1208 sanctions; 2) benefits are due to him from July 24, 2008 forward, including penalties and attorney fees; 3) the workers compensation judge failed to award penalties and attorney fees for the benefits found to be due; and, 4) he is entitled to attorney fees for the appeal.

In a workers’ compensation case, the appellate court’s review of factual findings is governed by the manifest error-elearly wrong standard. A workers’ compensation judge’s determinations as to whether claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations which will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Clausen v. D.A.G.G. Construction, 01-0077, p. 3-4 (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, 1202, writ denied, 02-0824 (La.5/24/02), 816 So.2d 851.

Louisiana Revised Statutes 23:1208 requires: (1) a false statement or representation, (2) made willfully and deliberately, and (3) made for the purpose of obtaining workers’ compensation benefits. This broadly-worded statute encompasses such statements made to anyone, including the employer, physicians or insurer. All three requirements must be met before a claimant can be penalized. Short v. Gaylord Chemical Corp., 98-0606, p. 10 (La. App. I Cir. 4/1/99), 731 So.2d 493, 499.

|4In her reasons for judgment, the workers compensation judge found as follows:

However, when he gave his deposition on July 23, 2008, he did deliberately misrepresent facts for the purpose of obtaining benefits. I am of the opinion that he lied about the information that he provided to the Veterans Administration in February of '08. It was his statement that he told the VA that workers’] comp wouldn’t pay for his MRI and he needed the MRI and that the nurse at the VA made up a story and put it in the documents so that he could get the MRI. I do not believe that. Therefore, he has forfeited all rights to any further benefits as of July 24, which is the next day, which would begin 2008 forward.

Mr. McCallister’s statement at the deposition was directly contradicted by the trial testimony of Kimberly LeBlanc, the medical case manager associated with his workers’ compensation claim. She testified at trial that Mr. McCallister told her that he had told the nurse at the Veterans Administration to say that he’d had a re-injury so that they would do the MRI. After a thorough review of the record, we cannot say that the workers compensation judge committed manifest error in finding that Mr. McCallister lied in his deposition.

Regarding Mr. McCallister’s argument that the workers compensation judge erred in failing to award penalties and attorney fees for the benefits found to be due, we find no manifest error in the workers compensation judge finding that the claim for benefits was reasonably controverted, such that penalties and attorney fees were not warranted, in accordance with La. R.S. 23:1201 F(2).

Thus, for the foregoing reasons, the judgment of the workers compensation judge is affirmed. Costs are assessed against Mr. McCallister.

AFFIRMED.

HUGHES, J., concurs.