author: HUGHES, J.

text:
    Hubie AUCOIN v. Teisha N. ROCHEL, Safeway Insurance Company, A & D Louviere, Inc. d/b/a Vista Lounge & ABC Insurance Company.
    No. 2008 CA 1180.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.
    Writ Denied March 27, 2009.

      Phillip F. Cossich, Jr., David A. Parsiola, Brandon J. Taylor, Belle Chasse, LA, for Plaintiff/Appellant, Hubie Aucoin.
    Mark R. Pharr III, Thomas M. Long, Lafayette, LA, for Defendant/Appellee, A & D Louviere, Inc. d/b/a Vista Lounge.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.
   HUGHES, J.

12This appeal raises the issue whether a bar owner/employer of a bartender who drinks while on the job, with the owner/employer’s knowledge and consent, can be held liable to a third party for injuries sustained as a result of a pedestrian/auto accident in which the third party was struck and seriously injured by the intoxicated bartender/employee as she was driving someone home after closing the bar.

The trial court rendered summary judgment in favor of the defendant/bar owner, A & D Louviere, Inc. d/b/a Vista Lounge (hereinafter referred to interchangeably as “A & D,” “employer,” or “owner”), finding it to be free from any and all liability for the injuries sustained by the plaintiff, Hu-bie Aucoin, and dismissing all of his claims. Mr. Aucoin appeals. For the following reasons, we affirm.

FACTUAL BACKGROUND

The accident occurred at approximately 1:00 a.m. on September 12, 2004, in the eastbound lane of Louisiana Highway 182 in the Parish of St. Mary, when the Honda Accord belonging to and being driven by Teisha N. Rochel struck Hubie Aucoin, a pedestrian. The petition alleges that Mr. Aucoin was walking on the shoulder of the road and Ms. Rochel drove her vehicle onto the shoulder and struck him. (The deposition testimony of Ms. Rochel introduced in support of the motion for summary judgment includes contrary assertions: Mr. Aucoin was walking in the middle of the eastbound lane of the highway and Ms. Rochel never left her lane of travel nor did she see Mr. Aucoin until after her vehicle struck him.) It is undisputed that Ms. Rochel had been drinking earlier that night while working at the Vista Lounge and that she was arrested and charged with driving while intoxicated following the accident.

13Prior to the accident, Ms. Rochel had worked her shift at the Vista Lounge, starting at approximately six in the evening and ending when she closed the bar, which she estimated was around midnight. She admitted that she had been drinking throughout her shift, a common practice that was sanctioned by the owner/employer with the only limitations being that full price be paid for the drinks and that the employee not get intoxicated so that his/ her ability to count the money at the end of the shift and close the bar would not be compromised.

Also prior to the accident, after closing the bar, Ms. Rochel performed her final job duty of the night for her employer, which was to drop the money bag through the mail slot in the front door of the employer’s home, located a few miles west from the Vista Lounge, right off of Highway 182.

After dropping off the money bag, instead of proceeding her usual route, five more miles further westbound on Hwy. 182, to get home, Ms. Rochel proceeded easterly again, passing up the Vista Lounge in route to bring home a friend, Wayne Lagarde. Mr. Lagarde was a frequent patron and had been in and out of the Vista Lounge throughout the night and needed a ride home. However, before Ms. Rochel reached Lagarde’s home, her vehicle struck Mr. Aucoin.

PROCEDURAL BACKGROUND

Mr. Aucoin filed this lawsuit seeking to recover damages for the injuries he sustained as a result of being struck by the bartender/employee’s vehicle. The petition named as defendant, among others, A & D Louviere, Inc., d/b/a Vista Lounge, as owner/employer, and its liability insurer. Mr. |4Aucoin alleged that Ms. Rochel was employed by, and in the course and scope of her employment with, the owner when the accident occurred; thus any acts of negligence attributed to her, including driving her vehicle while intoxicated, would be imputed to the employer with the application of vicarious liability. Mr. Aucoin further alleged that the owner was guilty of its own acts of negligence in allowing and encouraging its employee to consume alcohol while working, while also requiring her to drive to the owner’s house and deliver the lounge’s cash profits after closing down the bar.

A & D filed a motion for summary judgment asserting that the list of undisputed material facts submitted together with the depositions presented in support thereof establish that Ms. Rochel was not in the course and scope of her employment and therefore plaintiff lacked factual support for that essential element of his cause of action in vicarious liability. Additionally, A & D asserted it is entitled to the immunity provided by La. R.S. 9:2800.1(A) and (B), Louisiana’s “anti-dram shop” statute, to bar owners and social hosts who serve alcohol.

STANDARD OF REVIEW

The trial court without specifically addressing the applicability of La. R.S. 9:2800.1, granted the summary judgment in favor of the bar owner, specifically finding that the bartender was on a personal mission to bring a |fifriend home, and no longer within the course and scope of her employment at the time of the accident. An appellate court reviews the district court’s decision to grant or deny a motion for summary judgment de novo using the same criteria that govern the trial court’s consideration of whether summary judg-merit is appropriate. Boudreaux v. Vankerkhove, 07-2555, p. 5 (La.App. 1st Cir.8/11/08), 993 So.2d 725, 729-730. Accordingly, we review the record de novo to determine whether the immunity provided in La. R.S. 9:2800.1(B) is applicable to insulate the employer for its own acts of alleged negligence, and to decide the merits of summary judgment regarding the alleged vicarious liability of A & D for the acts of its employee, Ms. Rochel.

SUMMARY JUDGMENT

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. | (Darryl Samaha, Husband of/and Karman Samaha v. David J. Rau, M.D., 07-1726, p. 5 (La.2/26/08), 977 So.2d 880, 883. Plaintiff may not rest on mere allegations or denials, but must set forth specific facts that show that a genuine issue of facts remains. If the plaintiff fails to meet this burden, there is no genuine issue of material fact and the defendant is entitled to summary judgment as a matter of law. Board of Supervisors of Louisiana State University v. Louisiana Agr. Finance Authority, 07-0107, p. 9 (La.App. 1st Cir.2/8/08), 984 So.2d 72, 79-80.

APPLICABLITY OF LOUISIANA’S ANTI-DRAM SHOP STATUTE

The issue of the applicability of statutory immunity in this case pertains to the cause of action asserted against the bar owner for its own acts of negligence that allegedly contributed to the accident.' After a thorough review of the statute, its history, purpose, and application, the relevant jurisprudence, and the facts of this case, we find that A & D is entitled to the immunity provided in La. R.S. 9:2800.1.

Prior to 1986, Louisiana did not have a “dramshop” law, and the imposition of liability on a seller of alcoholic beverages for damages sustained or caused by an intoxicated patron was determined by the application of general negligence principles (duty-risk analysis) under the “reasonable man” standard. Gresham v. Davenport, 537 So.2d 1144, 1148 (La.1989). Louisiana jurisprudence consistently opposed the application of absolute liability on an alcoholic beverage retailer for the consequences of a patron’s intoxication. See Thrasher v. Leggett, 373 So.2d 494 (La.1979), superseded by statute as stated in Godfrey v. Boston Old Colony Ins. Co., 97-2568 (La.App. 4th Cir.5/27/98), 718 So.2d 441, writ denied, 98-2487 (La.11/20/98), 729 So.2d 563. Applying the duty-risk analysis, some courts found no liability on the part of defendants, generally on the basis that “it is the consumption of the alcohol and not the sale of it which is the proximate cause of the ensuing harm.” Lee v. Peerless, 248 La. 982, 183 So.2d 328 (1966). The reasoning underlying that analysis is that the person who voluntarily engages in drinking has the most proximate opportunity to avoid the effects of intoxication by desisting from drinking or from drinking to excess. Thrasher, 373 So.2d at 497. (Notably, this reasoning was codified as the stated purpose and goal of the currently enacted statute, discussed fully below.) Other cases imposed liability under general negligence principles, based on a finding that the business owner breached a duty it owes to the general public to avoid affirmative acts that increase the risk of peril to an intoxicated person, such as ejecting an intoxicated patron from the bar located adjacent to a busy highway, as occurred in Pence v. Ketchum, 326 So.2d 831 (La.1976), overruled by Thrasher, supra.

In 1986, the Louisiana Legislature enacted La. R.S. 9:2800.1, entitled “Limitation of Liability for loss connected with sale, serving, or furnishing of alcoholic beverages,” with the express purpose of placing the responsibility for consequences of intoxication on the intoxicated person, rather than the server of the alcohol. Berg v. Zummo, 2000-1699, p. 8 (La.4/25/01), 786 So.2d 708, 713-14. Subsection (A) of La. R.S. 9:2800.1 provides specifically that “the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages is the proximate cause of any injury, ... inflicted by an intoxicated person upon himself or |supon another person.” (Emphasis added.) In furtherance of this stated goal, subsection (B) of La. R.S. 9:2800.1 provides immunity to “vendors of alcoholic beverages who sell or serve alcohol to persons over the age for the lawful purpose thereof.” Subsection (D) of the statute further specifies that “the insurer of the intoxicated person shall be primarily liable with respect to injuries suffered by third persons.” (Emphasis added).

The only exceptions to the limitation of liability expressly provided by the statute are when alcoholic beverages sold or served to minors (by omission under subsection (B)) and to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol. La. R.S. 9:2800.1(E). (Emphasis added.)

Employers are not expressly excluded from the immunity and the jurisprudence does not reflect any such interpretation of the statute. In Alvarenga v. Mills, 01-0872 (La.App. 4th Cir.5/10/02), 818 So.2d 1017, unit denied, 02-1610 (La.9/30/02), 825 So.2d 1197, a motorist involved in a collision with an intoxicated nightclub employee filed suit against the nightclub owner based on allegations that the employee became intoxicated there on the night of the collision. In that case, there was no separate claim in vicarious liability, because the plaintiff conceded that the employee, who was on his way home from the nightclub, was not in the course and scope of his employment at the time of the accident. The plaintiffs claims were based solely on the fact that the employee became intoxicated at his employer’s place of business. The fourth circuit found that the nightclub |flwas immune based on the clear language of the statute. Id., at p. 3, 818 So.2d at 1019. The plaintiff made the same argument that Mr. Aucoin makes in the case before us, discussed below, that notwithstanding the clear language of the statute, the nightclub owner still can be held liable for taking an affirmative act that increased the peril from its employee’s intoxication. The fourth circuit rejected that argument, noting that the only thing the nightclub owner did was to serve the employee the alcohol that intoxicated him and held that “under such circumstances, La. R.S. 9:2800.1 does not allow the imposition or liability.” Id. This circuit also has addressed the applicability of the La. R.S. 9:2800.1 immunity to an employer who served alcoholic beverages to an employee, who was not working at the time that he was served alcohol and became intoxicated. In Bourgeois v. Puglisi, 615 So.2d 1047 (La.App. 1st Cir.3/5/93), the intoxicated person worked offshore and did some maintenance work for the owner at the lounge two to three afternoons a week when he was not offshore. At the time that the employee became intoxicated and subsequently caused injury to a third party, he was not working for the owner of the lounge, but was there as a patron. In determining the owner’s liability in light of the immunity statute, this court reviewed the history of the statute and the jurisprudence both before and after its enactment. We noted that even prior to the enactment of the statute, when general negligence principles and the duty-risk analysis were employed, the duty owed by an employer to an inebriated employee was found to be the same as that owed by a tavern owner to an inebriated patron, i.e., to avoid affirmative acts which increase the risk of peril. Id., at p. 1048-49. We further noted that the same duty applied even when the | ^employer furnished alcohol to the employee at an event sponsored solely for the benefit of the employer’s business. Id., at p. 1049. We recognized the legislative intent in enacting the statute was to retain the prior jurisprudence that held that the consumption of alcohol, not the selling or serving of alcohol, was the legal cause of an alcohol related injury, and found that the bar owner/employer’s duty to its employee did not include within the ambit of its protection the risk that its intoxicated employee would injure a third party off the premises. Id., at p. 1049. We further noted in dicta the lack of authority for the argument that an employer is excepted from the statutorily provided immunity:

Plaintiff has cited no authority and we have found none which would except the employer from the limitation of liability pursuant to La. R.S. 9:2800.1 and the policy decision to hold the consumer of alcoholic beverages responsible for injuries and damages caused by the intoxicated person.

Id., at p. 1049; see also, Phipps v. Bruno Construction, 2000-0480 (La.App. 3rd Cir.11/2/00), 773 So.2d 826 (which applies the same reasoning and analysis employed by this court in Bourgeois, supra, in the context of a worker’s compensation claim for injuries sustained by an intoxicated employee.)

In this case, Mr. Aucoin argues that notwithstanding the clear wording of the statute, the pre-statute reasoning of Thrasher v. Legget should apply to impose liability when the bar owner takes affirmative action that increases the peril of an intoxicated patron. As did the plaintiff in the aforementioned Alvarenga case, Mr. Aucoin relies on dicta by the Louisiana Supreme Court in a footnote in a case that involved an intoxicated minor clearly outside the scope of immunity provided by the statute. In Berg v. Zummo, 2000-1699, p. 8, n. 8 (La.4/25/01), 786 So.2d 708, 713-14, n. 3, the supreme court stated, “[t]his [cjourt has never addressed, nor do we address today, whether the bar h,owner can be liable in spite of La. R.S. 9:2800.1 for taking an affirmative act which increases the peril to an intoxicated adult patron under the pre-La. R.S. 9:2800.1 reasoning of Thrasher v. Leggett.” Relying on this comment, Mr. Aucoin argues that A & D’s practice of allowing and encouraging its employees to consume alcoholic beverages while working at the bar, knowing that the employees would in all likelihood be driving a vehicle after closing the bar to fulfill the job duty of dropping off the cash to the owner, is affirmative action on the part of the owner that increased the perils of the intoxicated employee’s actions and for which he can be held liable notwithstanding the immunity provision of the statute.

First, as noted above, the comment Mr. Aucoin relies on is not only dicta, but it merely leaves open the possibility of the issue being raised, and specifically indicates no opinion either way. Additionally, the statutory language is clear and unambiguous, leaving no room for interpretation beyond the ordinary meaning of the words employed. Moreover, the statute itself provides exceptions, which do not include affirmative acts by the bar owner that may increase the peril of an intoxicated patron. In Zapata v. Cormier, 02-1801 (La.App. 1st Cir.6/27/03), 858 So.2d 601, this court, applying the clear language of La. R.S. 9:2800.1, held that several requirements must be met for the statutory immunity to apply: (1) the bar owner must hold the appropriate permit; (2) the bar owner or its agents, servants or employees sell or serve alcohol to a person over the age for the lawful purchase thereof; (3) the purchaser suffers or causes injury off the premises; (4) the injuries were caused by the intoxication of the person to whom the alcohol was served. Finding all four requirements had been met, we held the immunity provided by the statute applied and the bar owner could not be held liable.

| l2Likewise, we hold that the clear language of the statute provides immunity to A & D for the injuries caused by the intoxification of Ms. Rochel when the only act committed by the bartender was serving the alcohol that intoxicated the employee.

Finally, even if we were to hold that such an exception exists by extending pre-Statute reasoning for affirmative acts by the owner that increase the risk of peril, our review of the record convinces us that the actions of A & D did not arise to the kind of affirmative act on which the pre-statute jurisprudence predicated an imposition of liability. A & D relied on the deposition testimony of both, Ms. Rochel and Deborah Louviere, sole owner of A & D, as well as an affidavit executed by Mrs. Louviere, which it introduced in support of its motion for summary judgment. The two depositions consistently reveal that A & D allowed its employees to drink alcohol while working. However, both Ms. Rochel and Mrs. Louviere testified that there were specific conditions on this privilege, i.e., that the employee pay full price for the drinks and that the employee not drink to excess so as to get so intoxicated such that his ability to count and deliver the money at the end of the shift would be compromised. Additionally, both deponents also flatly denied that Ms. Rochel, or any of the employees were ever encouraged or forced, to drink alcohol at the bar.

Additionally, contrary to the assertions by Mr. Aucoin, our review of the record and the deposition testimony fails to reveal an alleged Vista Lounge policy that employees drive intoxicated patrons home. Ms. Rochel admitted that Mr. Lagarde had been in and out of the Vista Lounge that night drinking; however, she testified that he was also a friend of hers from high school and that she agreed to bring him home because he needed a ride. Ms. Ro-chel. testified that she had, in the past, also given a ride home after 11swork to the owner’s brother-in-law, not because he was drunk, but because he did not have a ride home. Although Mrs. Louviere testified that she gives people rides “all the time,” when she thinks they are drunk, both women flatly denied that there was any such policy in place at the bar. They were consistent in testifying that the only policy in place regarding intoxicated patrons was that the employees were instructed to offer an intoxicated patron a call to a taxi for a safe ride home. Whether an employee chose to bring a friend or a patron home was left entirely to the discretion and choice of the employee. Thus, Mr. Aucoin has failed to establish that the bar owner in this case imposed a policy on its employees that would require them to provide rides home for patrons or otherwise took any type of affirmative act that may have excepted it from the immunity provided by La. R.S. 9:2800.1(B).

VICARIOUS LIABILITY

We now review de novo A & D’s claim that it is entitled to summary judgment on the basis that there is no genuine issue of material fact; the evidence presented establishes that Ms. Rochel was not in the course and scope of her employment when the accident at issue occurred; therefore, it cannot be held vicariously liable for the injuries caused by the 'negligence (intoxication) of Ms. Rochel.

This court recently succinctly summarized the law relevant to the imposition of vicarious liability on an employer:

Vicarious liability in Louisiana is based on Louisiana Civil Code article 2320, which states, in pertinent part:
Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
Under this article, liability extends only to" the employee’s tortuous conduct that is within the course and scope of the employment. The specific inquiry in determining whether an |14employee is within the course and scope of his employment is whether the employee’s tortuous conduct is so closely connected in time, place, and causation to his employment duties as to be a risk of harm fairly attributable to the employer’s business as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest.

Henly v. Phillips Abita Lumber Co., 06-1856, pp. 10-11 (La.App. 1st Cir.10/3/07), 971 So.2d 1104, 1112-13. Our supreme court has also been instructive regarding the inquiry necessary for the proper imposition of vicarious liability. In Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226-27, the court stated that an employee is acting within the course and scope of his employment when the employee’s action is the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. The court has also delineated specific factors to be employed in the inquiry: whether the tortuous act was primarily employment rooted, whether the act was reasonably incidental to the performance of the employee’s duties, whether the act occurred on the employer’s premises, and whether it occurred during the hours of employment. LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). Moreover, an employee may be within the course and scope of his employment, yet step out of that realm while engaging in a personal mission. Timmons v. Silman, 99-3264, p. 4 (La.5/16/00), 761 So.2d 507, 510.

Generally, an employee driving from home to work or returning from work to home is not within the course and scope of his employment, unless he has a job related duty to perform en route. Orgeron, 639 So.2d at 227. Even still, an identifiable deviation from a business trip for personal reasons generally takes the employee out of the course and scope of employment |lfiuntil the employee returns to the route of the business trip. Timmons, 761 So.2d at 511. In Timmons, an employee was sent by her employer to the post office, approximately four blocks away, to refill the firm’s postage meter and return to work. However, after refilling the postage meter, the employee passed within one or two blocks of her place of employment and continued eighteen blocks past her place of employment on a personal mission to the bank to cash her Christmas bonus check. The court found the employee to be outside the course and scope of her employment when she was involved in an accident on her way to the bank, even though she still had the postage meter to return to work. The court reasoned, “when an employee deviates from the business route by taking a side trip that is clearly identifiable as such, the employee is unquestionably beyond the course and scope of employment while going away from the business route and toward the personal objective”. Id., 761 So.2d at 511. (Emphasis by underscoring added.)

In this case, the facts are even stronger in establishing that Ms. Rochel was no longer in the course and scope of her employment for A & D, as she had already completed her job related duty — dropping of the cash money to the owner’s home— when she embarked toward her personal objective of giving her friend a ride home. The record reveals that, although her shift was technically over, and she was no longer being paid, the A & D employee charged with closing the bar had the additional job-related duty to deliver cash to the owner’s home. Thus, Ms. Rochel was clearly within the course and scope of her employment for the approximate couple of miles west of the bar to the owner’s home. The record also reveals that after dropping off the money, she was free to do whatever she wished. Although generally she proceeded another five or so miles westbound to her home, on the night in ^question, she chose to drive in the other direction, easterly, past the bar and toward the home of Wayne Lagarde, a friend of hers who had been in the bar that night and asked her for a ride home. Despite Mr. Aueoin’s assertions to the contrary, we find this was a personal mission unrelated to her employment duties, for which her employer cannot be held vicariously liable.

First, the plaintiff has failed to establish that the bar had a policy or preferred practice in place by which the employees were ordered or encouraged to provide patrons with rides home. Although the bar owner, Mrs. Louviere candidly admitted that she, on occasion, had driven patrons home, she flatly denied ordering or asking her employees to do the same. In contrast, she and Ms. Rochel consistently testified that the only “bar policy” in place regarding intoxicated patrons or patrons who otherwise needed a ride home was that the employee was to offer to call a taxi for such patron. Moreover, Mr. Au-coin failed to prove his assertion that Ms. Rochel had engaged in this practice in the past, notwithstanding the lack of a formal policy. The evidence adduced established only that on one prior occasion, Ms. Rochel had provided a ride home to the owner’s brother-in-law, not because he was intoxicated, but because he did not have a ride. Finally, we also find that Mr. Aucoin has failed to establish that the ride provided that night by Ms. Rochel to Mr. Lagarde was in any way related to her employment. There was no evidence presented that Mr. Lagarde was intoxicated, rather, only that he needed a ride home. Moreover, although he was a patron at the bar that night, Ms. Rochel testified that in addition to being a patron, Mr. Lagarde was her friend whom she had known since high school, and by all accounts, she voluntarily gave him a ride home that night because he was a friend in need of one.

|17Based on the particular facts presented herein, we are constrained to conclude that Ms. Rochel was no longer in the employ of A & D at the time of this accident, but rather, had completed her employment for the night and was involved in a purely personal mission at the time of the accident, which caused the injuries in this matter.

CONCLUSION

Accordingly, we hold that the defendant is entitled to the immunity provided by La. R.S. 9:2800.1 for the acts of negligence alleged against it as a server of alcoholic beverages. Additionally, based on our factual conclusions, we find there are no genuine issues of material fact remaining and the defendant is entitled to summary judgment as a matter of law. Therefore, the judgment of the trial court granting summary judgment and dismissing the plaintiffs claims is hereby affirmed. Costs of this appeal are assessed to the plaintiff.

AFFIRMED.

      . Specifically, Mr. Aucoin alleged he sustained "severe and debilitating” injuries, including but not limited to injuries to the "head, brain, mouth, tongue, lungs, arms, legs, knees, feet, ankles, neck, back.” Other references in the record reveal that Mr. Au-coin is in a wheelchair and it is unknown whether he will walk again.

      . Mr. Aucoin also named as defendants the bartender, Ms. Rochel and her automobile liability insurer; however, his claims against these defendants were settled and they were dismissed from the suit with prejudice by motion of the plaintiff.

      . The defense of immunity from tort liability is an affirmative defense, which generally must be specifically pled in the defendant’s answer. Stockstill v. C.F. Industries, Inc., 94-2072, p. 6 (La.App. 1st Cir.12/15/95), 665 So.2d 802, 810, writ denied, 96-0149 (La.3/15/96), 669 So.2d 428. The general purpose in requiring that certain defenses be affirmatively pleaded is to give fair notice of the nature of the defense, and thereby prevent a last minute surprise to the plaintiff. Id. However, the failure to plead the affirmative defense does not automatically preclude the application of the defense in all cases. The general rule is that the pleadings may be enlarged by evidence adduced without objection when such evidence is not pertinent to any other issue raised by the pleadings and hence, would have been excluded if objected to timely. Dupont v. Hebert, 06-2334, p. 8 (La.App. 1st Cir.2/20/08), 984 So.2d 800, 807, writ denied, 08-0640 (La.5/9/08), 980 So.2d 695. In the instant case, the defense was pleaded, but in the motion for summary judgment, rather than the answer. Our review of this record reveals that evidence pertinent to the application of the immunity statute was presented without objection and with no surprise or prejudice to the plaintiff, such that the pleadings were enlarged to include that defense.

      . As detailed earlier, Mr. Aucoin alleges A & D was negligent in allowing and even encouraging its employees to drink while on the job, knowing they would be driving later, and in failing to properly supervise said employees and prohibiting them from getting intoxicated.

      . The Thrasher court overruled Pence, only to the extent that it is in conflict with that opinion. However, the court also stated, "[ujpon further consideration we now conclude that the opinions of this [c]ourt in Lee and Pence were each in part correct and in part incorrect.” 373 So.2d at 496. The court further stated, "while the [c]ourt in Pence may have been correct in concluding that under the facts of that case the bar owner had the last clear chance to avoid the injury by not ejecting the plaintiff onto a busy highway in a helpless condition, that decision is of little comfort to plaintiff here.” 373 So.2d at 497.

      . The statute provides:
      Notwithstanding any other law to the contrary, no person .... nor any agent, servant or employee of such a person who sells or serves intoxicating beverages ... to a person over the age of the lawful purchase thereof, shall be liable to such person or to any other person ... for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.

      La. R.S. 9:2800.1 (B)(Emphasis added.)


source: Caselaw Access Project

author: GUIDRY, J. KUHN, J.,

license: Public Domain

text:
    Michael BANQUER and Sandra Banquer, Individually and on behalf of their Minor Child, Lauren Marie Banquer v. Donald GUIDROZ, David Mobley, and New Hampshire Insurance Company.
    No. 2008 CA 0356.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.
    Rehearing Denied Feb. 2, 2009.

      Wade A. Langlois, III, Gretna, LA, for Plaintiffs/Appellants, Michael and Sandra Banquer, individually, and on behalf of their minor child, Lauren Banquer.
    James F. Holmes, James A. Holmes, Adrejia L. Boutte, New Orleans, LA, for Defendant/Appellant, ACE American Insurance Company.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

|2The insurer in this matter appeals a summary judgment finding that its insured did not validly waive uninsured/underin-sured motorist (UM) coverage. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 8, 2006, Michael and Sandra Banquer, individually, and on behalf of their minor daughter, Lauren Marie Ban-quer, filed a petition for damages relative to an automobile accident in which Mr. Banquer was involved. According to the petition, on October 13, 2005, Donald Gui-droz, who was allegedly intoxicated at the time, drove out of the parking lot of the Queen Bee Lounge onto U.S. Highway 90 heading eastbound in the westbound lane of the roadway. A head-on collision between the vehicle driven by Mr. Guidroz and a vehicle driven by Mr. Banquer ensued as a result of Mr. Guidroz driving in the wrong direction on U.S. Highway 90. The car that Mr. Guidroz was driving at the time of the accident was owned by David Mobley and insured by New Hampshire Indemnity Company (New Hampshire).

ACE American Insurance (ACE) intervened in the suit, declaring that at the time of the accident, Mr. Banquer was acting in the course and scope of his employment with Halliburton Energy Services, Inc. (Halliburton). As the workers’ compensation insurer for Halliburton, ACE had paid workers’ compensation benefits to Mr. Banquer relative to the accident, and intervened in the lawsuit to assert a lien for payment equal to sum of workers’ compensation benefits paid to Mr. Banquer.

COn July 6, 2007, plaintiffs filed a supplemental and amending petition adding ACE as a defendant and alleged that due to the minimal insurance coverage provided by the New Hampshire policy, Mr. Guidroz and Mr. Mobley “were uninsured and/or underinsured as those terms are defined in Louisiana law.” The plaintiffs further alleged that Mr. Banquer was driving a vehicle owned by Halliburton at the time of the accident and that ACE had issued Halliburton a policy of insurance that provided UM coverage, despite the existence of a waiver purportedly rejecting UM coverage. The plaintiffs averred that the waiver was invalid because the waiver was “not on the proper form proscribed [sic] by [t]he Louisiana Commissioner of Insurance.”

ACE denied the allegations of the supplemental and amending petition and filed a motion for summary judgment, wherein it maintained that UM coverage had been validly waived by its insured, and therefore, it was not liable to the plaintiffs to provide UM coverage for the accident sued upon. Plaintiffs filed a cross motion for summary judgment contending that the waiver was not a valid rejection of UM coverage. Following a hearing on the motions, the trial court granted summary judgment in favor of the plaintiffs and denied the motion filed by ACE. ACE appealed the summary judgment and filed a writ application seeking supervisory review of the trial court’s denial of its motion for summary judgment. ACE’s writ application was referred to our panel to decide in conjunction with the appeal of the summary judgment. Our action on the writ application will be handed down separately on the same date as this appeal.

|,APPLICABLE LAW

Appellate courts review the granting of a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment was appropriate. Bel v. State Farm Mutual Automobile Insurance Co., 02-0360, p. 3 (La.App. 1st Cir.2/14/03), 845 So.2d 459, 461, writ denied, 03-0734 (La.5/30/03), 845 So.2d 1058. Summary judgment shall be rendered if there is no genuine issue of material fact and the mov-ant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). When a case involves cross motions for summary judgment, the court should determine whether either party has established there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Gray v. American National Property & Casualty Company, 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844.

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Green v. State Farm Mutual Automobile Insurance Company, 07-0094, p. 3 (La.App. 1st Cir.11/2/07), 978 So.2d 912, 914, writ denied, 08-0074 (La.3/7/08), 977 So.2d 917. 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. Halphen v. Borja, 06-1465, p. 3 (La. App. 1 Cir. 5/04/07), 961 So.2d 1201, 1204, writ denied, 07-1198 (La.9/21/07), 964 So.2d 338.

DISCUSSION

At issue in this appeal is the validity of a UM waiver form executed by the legal representative of the named insured, Halliburton. Because the form contains only the signature, and not the printed name, of the legal representative, we are first asked to consider the significance of the following language from Duncan v. U.S.A.A. Insurance Company, 06-363, p. 13 (La.11/29/06), 950 So.2d 544, 552:

The commissioner of insurance, in drafting the form, requires six tasks, all of which we find to be pertinent to rejecting UM coverage... .The insured or the legal representative signs the form evidencing the intent to waive UM coverage and includes his or her printed name to identify the signature. [Emphasis added.]

The question before us is whether the UM waiver is in proper form, because unless the insured’s expression of the desire to reject or select lower limits of UM coverage meets the formal requirements of law, the expression does not constitute a valid rejection. Richardson v. Lott, 03-0189, p. 8 (La.App. 1st Cir.11/7/03), 868 So.2d 64, 71, writ denied, 03-3324 (La.2/13/04), 867 So.2d 707.

Section 680 of title 22 of the Louisiana Revised Statutes states that the rejection or selection of lower limits of UM coverage “shall be made only on a form prescribed by the commissioner of insurance.” In reviewing the form produced by the commissioner of insurance, the court in Duncan pronounced that the prescribed UM waiver form entails the following:

(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

Duncan, 06-368 at 11-12, 950 So.2d at 551. In reviewing each of these criteria, the court went on to explain that “[t]he insured or the legal representative signs the | r,form ... and includes his or her printed name to identify the signature” in regard to criteria (3) and (4). Duncan, 06-363 at 13, 950 So.2d at 552.

In Duncan, the court’s explanation of why criteria (3) and (4) are included on the form is important — if just providing a signature was enough without identifying the signature by providing the printed name, then the form could have included just a blank space for “signing the name of the named insured or legal representative.” Since we conclude, as did the Louisiana Supreme Court in Duncan, that inclusion of the printed name is solely for the purpose of identifying the signature provided, we think it is of no moment that in cases of juridical persons, the printed name of the legal representative would always have to be provided (e.g., “James Ferguson on behalf of Halliburton Energy Services”).

Nor do we find it appropriate that identification of the signature on the form is provided by a separate affidavit executed by the legal representative. To the extent that identification of the signature is not set forth, as provided, in the single UM waiver document, see Roger v. Estate of Moulton, 513 So.2d 1126, 1132 (La.1987), the submission of Mr. Ferguson’s affidavit wherein he attests that he is the authorized legal representative of “Halliburton Energy Services, Inc” cannot be accepted to identify his signature on the UM waiver form.

Accordingly, we hold that the Duncan court’s pronouncement that “[t]he insured or the legal representative signs the form ... and includes his or her printed name to identify the signature” was in recognition of the requirement that the printed name of whomever signs the UM waiver form must also be provided to identify the signature. See also Harper v. Direct General Insurance Company of Louisiana, 08-31 (La.App. 3d Cir.11/5/08), 998 So.2d 783.

Therefore, as compliance with the form prescribed by the commissioner of insurance is necessary for the UM form to be deemed valid, see Duncan, 06-363 at 1714, 950 So.2d at 553, the ACE form must be deemed invalid for failure to include the printed name of the person who signed the form.

CONCLUSION

Accordingly, we affirm the summary judgment in favor of the plaintiffs decreeing the ACE UM waiver form invalid. All costs of this appeal are assessed to the appellant, ACE American Insurance Company.

AFFIRMED.

KUHN, J., Dissents & Assigns Reasons.

KUHN, J.,

dissenting.

hi disagree with the majority’s conclusion that the ACE American Insurance (ACE) form must be deemed invalid for failure to include the printed name of the person who signed the form. I would reverse the trial court’s grant of summary judgment in favor of the Banquers and find the UM waiver form valid.

The six Duncan requirements are met in the present case, including the third requirement of “printing the name of the named insured or legal representative.” (Emphasis added.) Duncan v. USAA Ins. Co., 06-363 at pp. 11-12 (La.11/29/06), 950 So.2d 544, 551. It is undisputed that the form herein includes the typewritten name of Halliburton Energy Services, Inc.

Since Mr. Ferguson is not an insured, it is clear that he is signing in a representative capacity for Halliburton. Neither La. R.S. 22:680(l)(a)(ii) nor Duncan require that the representative capacity be indicated on the UM form. In the instant case, the representative capacity has been established by Mr. Ferguson’s affidavit. See Green v. State Farm Mut. Auto. Ins. Co., 07-0094 (La.App. 1st Cir.11/2/07), 978 So.2d 912, 914, writ denied, 08-0074 (La.3/7/08), 977 So.2d 917, wherein this court found a waiver form valid where a representative signed the 12waiver form on behalf of a corporation without indicating his representative capacity.

Additionally, I note that although the single word “available” is missing from an introductory paragraph of the waiver form, this is surely a clerical error that does not invalidate the form. See Green; Lachney v. Hanover Ins. Co., 04-2316 (La.App. 1st Cir.11/4/05), 927 So.2d 380, 382, writ denied, 05-2432 (La.3/24/06), 925 So.2d 1238. Likewise, any minor discrepancies in the holding between the insurance commissioner’s form and the present form do not invalidate it. The form employed herein comports in every substantial way with the required statutory form. Id.

It is abundantly evident that the insured intended to reject UM coverage, and because ACE’s waiver form complies with the required statutory form in every substantial way, I would find it valid and reverse the trial court’s grant of summary judgment in favor of the Banquers. Accordingly, I dissent.

      . In its answer to the petition, New Hampshire observed that the plaintiffs had improperly identified the company as "New Hampshire Insurance Company.” New Hampshire later filed a motion to deposit its policy limits, plus interest through the date of the deposit, into the registry of the court. By a consent judgment, the parties, including ACE as inter-venor, agreed to release New Hampshire of any further liability relative to the accident once funds equal to the limits of New Hampshire's policy were deposited in the registry of the court. The funds were deposited on March 1, 2007.

      . Prior to filing its motion for appeal, ACE filed a motion with the trial court to certify the summary judgment as a final judgment pursuant to La. C.C.P. art. 1915 B. The trial court granted the motion to certify the summary judgment as final for the reasons set forth in a memorandum in support of the motion submitted by ACE. Having reviewed the reasons so given, we find no abuse of the trial court's discretion in certifying the summary judgment as final and therefore maintain the appeal. See Dyess v. American National Property and Casualty Company, 03-1971, p. 3 n. 2 (La.App. 1st Cir.6/25/04), 886 So.2d 448, 450 n. 2, writ denied, 04-1858 (La.10/29/04), 885 So.2d 592.

      . The ACE waiver form does contain the printed name of the named insured, "Halliburton Energy Services, Inc.”

      . Because Duncan involved a missing policy number, the contested language in Duncan, which arguably requires Mr. Ferguson’s printed name, may be construed as dictum: "The insured or the legal representative signs the form evidencing the intent to waive UM coverage and includes his or her printed name to identify the signature.” Duncan, 06-363 at p. 13, 950 So.2d at 552.

      . In the Green case, the UM selection form was executed by Kevin Ryan on June 30, 2004. On the UM selection form, a handwritten "X” with a circle around it was placed by option “5,” which reads: "I do not want [UM] Coverage. I understand that I will not be compensated through [UM] coverage for losses arising from an accident caused by an uninsured/underinsured [motorist].” Illegible hand-written initials were placed to the left of the "X” just above the "5.” "Cintas Corporation” was typed into the blank for "Named Insured or Legal Representative,” the form was signed (by Kevin Ryan), it was dated "6/30/04” and policy numbers "D002A00280,” "D002A00281,” "D002A00282,” and "D002A00283” were typed in the blank above "Policy Number."


author: WELCH, J. McCLENDON, J.,

text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION v. LOUISIANA WORKERS’ COMPENSATION SECOND INJURY BOARD.
    No. 2008 CA 1276.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.

      Terrel A. Thomas, Baton Rouge, LA, for Plaintiff-Appellant, Louisiana Workers’ Compensation Corp.
    James D. “Buddy” Caldwell, Attorney General, Ingrid F. Johnson, Asst. Attorney General, Baton Rouge, LA, for Defendant Appellee, Louisiana Workers’ Compensation Second Injury Board.
    Before PARRO, McCLENDON, and WELCH, JJ.
   WELCH, J.

|2The plaintiff, Louisiana Workers’ Compensation Corporation (“LWCC”) appeals the judgment of the district court granting a motion for summary judgment filed by the defendant, Louisiana Workers’ Compensation Second Injury Board (“the Board”), and dismissing LWCC’s claim for reimbursement of workers’ compensation benefits paid. For the following reasons, we affirm the judgment of the district court.

I. FACTUAL AND PROCEDURAL HISTORY

In February 2001, Southwest Oilfield Services, Inc. (“Southwest”) hired Nor-wood Hollier as an oilfield technician. In 1992, approximately nine years prior to his employment with Southwest, Mr. Hollier had been injured in a work-related accident. As a result of that accident, Mr. Hollier underwent surgery on his lower back. During Mr. Hollier’s employment interview with Southwest, Mr. Hollier disclosed his previous back surgery.

On July 29, 2001, Mr. Hollier was involved in an automobile accident while in the course and scope of his employment with Southwest. LWCC issued a policy of insurance providing workers’ compensation coverage to Southwest that was in effect at the time of the accident, and therefore, LWCC commenced paying workers’ compensation benefits to Mr. Hollier. During the investigation of Mr. Hollier’s claim, LWCC learned about Mr. Hollier’s previous injury and back surgery. LWCC also learned that Mr. Hollier had disclosed this information during his employment interview with Southwest.

Upon discovery of this information, LWCC filed a notice of claim for reimbursement with the Board requesting reimbursement from the Workers’ Compensation Second Injury Fund (“the Second Injury Fund”) for payments it Dmade. On July 10, 2003, the Board denied the claim. Therefore, on August 7, 2003, LWCC filed a petition to appeal the Board’s denial of the claim in district court. Thereafter, the Board filed a motion for summary judgment seeking the dismissal of LWCC’s claim. By a judgment signed on November 5, 2007, the district court granted summary judgment in favor of the Board and dismissed LWCC’s claim for reimbursement. From this judgment, LWCC has appealed.

II. LAW AND DISCUSSION

A. Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Granda v. State Farm Mutual Insurance Company, 2004-2012, p. 4 (La.App. 1st Cir.2/10/06), 935 So.2d 698, 701. Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Id. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

On a motion for summary judgment, the initial burden of proof is on the moving party. However, if the moving party will not bear the burden of proof at trial on the matter before the court, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the non-moving party must produce factual support sufficient 14to establish that it will be able to satisfy its evidentiary burden of proof at trial. Failure to do so shows that there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Babin v. Winn-Dixie, Louisiana, Inc., 2000-0078, p. 4 (La.6/30/00), 764 So.2d 87, 40; see also La. C.C.P. art. 967(B).

B. Entitlement to Reimbursement from the Second Injury Fund

The motion for summary judgment arose in the appeal by LWCC from the Board’s denial of a claim for reimbursement from the Second Injury Fund for workers’ compensation benefits paid. Generally, when an employee is injured while in the course and scope of employment, an employer or its insurer must pay compensation benefits to the employee pursuant to La. R.S. 28:1031, et seq. However, in order “to encourage the employment of physically handicapped employees who have a permanent, partial disability by protecting employers ... and casualty insurers from excess liability for workers’ compensation for disability [which may result] when a subsequent injury to such an employee merges with his preexisting permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone,” the legislature created the Second Injury Fund. La. R.S. 23:1371(A); see also La. R.S. 23:1377.

An employer who “knowingly employs or knowingly retains in his employment” an employee who suffers from a permanent partial disability, as defined by statute, is entitled to be reimbursed from the Second Injury Fund if that employee “incurs a subsequent injury arising out of and in the course of his employment resulting in liability for disability due to the merger of the subsequent |smjury with the preexisting permanent partial disability.” See La. R.S. 23:1378(A)(1); Nabors Drilling USA v. Davis, 2003-0136, p. 5 (La.10/21/03), 857 So.2d 407, 413.

The employer’s or insurer’s right to reimbursement from the Second Injury Fund is not automatic. Nabors Drilling USA, 2003-0136 at p. 8, 857 So.2d at 416. The employer is not entitled to reimbursement from the Second Injury Fund merely because an employee with a preexisting disability is subsequently injured. Id. In order to be reimbursed from the Second Injury Fund, an employer or insurer has the burden of proving three elements. Id. First, the employer or insurer must prove that the employee had a preexisting permanent partial disability at the time of the subsequent injury. Id.; La. R.S. 23:1378(A). A permanent partial disability is “any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.” La. R.S. 23:1378(F), However, La. R.S. 23:1378(F) further provides for a presumption of permanent partial disability when the condition is one of thirty enumerated conditions of which the employer had knowledge of prior to the subsequent injury. One of the enumerated conditions is “[a] spinal fusion or the surgical removal of an interverte-bral disc.” La. R.S. 23:1378(F)(29).

Second, the employer or insurer must prove that the employer had actual knowledge of the employee’s preexisting permanent partial disability before the occurrence of the injury forming the basis of the compensation claim. La. R.S. h;23:1378(A)(4); Nabors Drilling USA, 2003-0136 at p. 8, 857 So.2d at 416. To satisfy this element, the employer or insurer must prove either that the employer knowingly hired a worker with a permanent partial disability or that he acquired actual knowledge of the permanent partial disability during the worker’s employment but prior to the subsequent injury and that he retained the employee notwithstanding knowledge of the permanent partial disability. See La. R.S. 23:1378(A).

Finally, the employer or insurer must prove that the permanent partial disability merged with the injury to produce a greater disability. La. R.S. 23:1371(A); La. R.S. 23:1378(A); Nabors Drilling USA 2003-0136 at p. 9, 857 So.2d at 416. This last element requires proof that the subsequent injury would not have occurred but for the preexisting permanent partial disability or that the disability resulting from the subsequent injury in conjunction with the preexisting permanent partial disability is materially and substantially greater than that which would have resulted had the preexisting permanent partial disability not been present. La. R.S. 23:1371(C).

C. Discussion of the Record

In this case, the Board filed the motion for summary judgment. As the mover, the Board had the initial burden of proof for purposes of seeking summary judgment pursuant to La. C.C.P. art. 966(C)(2). However, because LWCC bore the burden of proving at trial that it was entitled to reimbursement from the Second Injury Fund, the Board’s burden on the motion for summary judgment was to point out that there was an absence of factual support for one or more elements essential to LWCC’s claim. In this regard, the Board contended that there was an absence of factual support to establish (1) that Mr. Hollier had a preexisting permanent partial disability as defined by La. R.S. 23:1378(F) at the time of his subsequent injury on July 29, 2001, and (2) that Southwest had actual knowledge of Mr. 17Hollier’s preexisting permanent partial disability, if any, prior to Mr. Hollier’s subsequent injury of July 29, 2001, as required by La. R.S. 23:1378(A)(4).

In support of its motion for summary judgment, the Board offered the deposition testimony of Mr. Hollier and the deposition testimony of Dr. Michael Heard. Mr. Hollier testified in his deposition that he was in good health when he started working for Southwest and that he did not suffer from any conditions or physical illnesses prior to his employment at Southwest. Mr. Hollier also testified that he told Ronnie Cockerham, the person who interviewed and hired him for Southwest, that he had “a previous back surgery,” but that he was “healed,” and “everything was all right.” Mr. Hollier characterized his previous back surgery as a “partial lami-nectomy.” Mr. Hollier further testified that he was not under any doctor’s restrictions when he started working for Southwest and that after his back surgery in 1992, his only restrictions were that he was not supposed to jump or “to overdo it” until his body was stronger. Mr. Hollier explained that he did not believe those restrictions to be permanent, but he did become cautious in his movements.

Mr. Hollier further testified that when he was hired at Southwest, he was directed not to lift anything over fifty pounds, but instead, to use a forklift or ask for help. However, Mr. Hollier also explained that all of the employees used a forklift to lift heavy items and that the use of a forklift by employees was not a restriction directed specifically at him. Mr. Hollier also testified that before he started working at Southwest, he was neither required to take a pre-employment physical nor asked to complete a physical questionnaire. Mr. Hollier testified that he did not have any difficulties performing his job and that he did not have any condition or injury that he thought presented a hindrance or obstacle to him performing his job.

According to the deposition testimony of Dr. Heard, an orthopedic surgeon, | she saw Mr. Hollier for problems he was experiencing in his neck, his lower back, and his left knee and for headaches following his injury in the motor vehicle accident on July 29, 2001. Dr. Heard considered the work Mr. Hollier was performing at Southwest as an oilfield technician to be “medium, heavy, or very heavy type of work.” Dr. Heard testified that Mr. Hollier disclosed to him his previous lower back injury and surgery, but Dr. Heard was not aware of any restrictions that Mr. Hollier would have been under prior to the July 29, 2001 accident. Dr. Heard’s impression of Mr. Hollier was that he was suffering from lower back pain with radiculitis, status post laminectomy and diskectomy with recurrent disc herniation. Dr. Heard further explained that during Mr. Hollier’s diskectomy in 1994, his “disc [was] not completely removed.”

In opposition to the motion for summary judgment filed by the Board, LWCC offered no evidence. Instead, LWCC asserted that it was entitled to a presumption that Mr. Hollier’s prior back surgery constituted a preexisting permanent partial disability since-“[a] spinal fusion or the surgical removal of an intervertebral disc” is a condition enumerated in La. R.S. 23:1378(F)(29) and since Dr. Heard identified Mr. Hollier’s prior back surgery as a laminectomy and diskectomy. Furthermore, LWCC claims that even if Mr. Hol-lier’s prior back surgery is not presumptively considered a preexisting permanent partial disability, the deposition testimony of both Mr. Hollier and Dr. Heard establishes that Mr. Hollier’s prior back surgery constituted a preexisting permanent partial disability that created a hindrance or obstacle to his employment. LWCC also asserts that Southwest had actual knowledge of Mr. Hollier’s preexisting permanent partial disability before the July 29, 2001 accident, because Mr. Hollier disclosed his previous back surgery during his employment interview with Mr. Cock-erham and since Mr. Hollier was instructed during this interview not to lift anything over fifty pounds.

liiAt the outset, we find that the presumption of a preexisting permanent partial disability found in La. R.S. 23:1378(F) does not apply. Mr. Hollier stated that his prior back surgery was a “partial laminec-tomy” while Dr. Heard identified his status as post laminectomy and diskectomy. A laminectomy is the “excision of the posteri- or arch of a vertebra.” Dorlands Illustrated Medical Dictionary (25th Edition), 834. A diskectomy is the “excision of an intervertebral disc.” Dorlands Illustrated Medical Dictionary (25th Edition), 465. Thus, a diskectomy may be a condition invoking the presumption set forth in La. R.S. 23:1378(F)(29), because it is “the surgical removal of an intervertebral disc.” Notably, however, Dr. Heard explained in his deposition that only a part of Mr. Hollier’s disc was removed. The surgical removal of part of an intervertebral disc is not the equivalent of “the surgical removal of an intervertebral disc” under La. R.S. 23:1378(F)(29). Thus, while a diskectomy may qualify as a condition invoking the presumption set forth in La. R.S. 23:1378(F)(29), a partial diskectomy does not. Had the legislature intended that the surgical removal of part of a disc be included among the enumerated conditions that qualify for the presumption of a permanent partial disability, it would have included the appropriate language to express that intent in La. R.S. 23:1378(F)(29).

Moreover, in order to qualify for the presumption of permanent partial disability when the condition is one of the enumerated conditions set forth in La. R.S. 23:1378(F), it must also be established that the employer had knowledge of that condition prior to the subsequent injury. Because we find, for reasons detailed below, that there is an absence of factual support establishing that Southwest had knowledge of Mr. Hollier’s partial diskec-tomy or of a permanent partial disability prior to Mr. Hollier’s subsequent injury on July 29, 2001, the presumption of a preexisting permanent partial disability found in La. R.S. 23:1378(F) is not applicable to this case.

| ^Nonetheless, a medical condition not listed in La. R.S. 23:1378(F) may still be proven to be a permanent partial disability unaided by a presumption of permanent disability. Lotdsiana Workers’ Compensation Corporation v. Louisiana Workers’ Compensation Second Injury Board, 96-0808, pp. 6-7 (La.App. 1st Cir.2/14/97), 691 So.2d 122, 126. In order to do so, LWCC had the burden of proving that Mr. Hollier had a permanent condition of such seriousness as to constitute a hindrance or obstacle to his obtaining employment or to obtaining reemployment should he become unemployed. With regard to this issue, we find that the Board successfully pointed out that there was an absence of factual support for this essential element of LWCC’s claim. The deposition testimony of Mr. Hollier establishes that while Mr. Hollier did have a previous back injury and surgery, his condition nine years later was not of such seriousness that it hindered his employment or his ability to obtain employment. Mr. Hollier told Southwest that he was in good health at the time he was hired and that he was healed from his surgery. Mr. Hollier was able to perform the duties that he was hired by Southwest to do, including lifting objects up to fifty pounds, without any hindrances or obstacles and without Southwest modifying Mr. Hollier’s position or job duties in order to accommodate him.

The Board, having met its burden of proving that there was an absence of factual support establishing that Mr. Hollier had a preexisting permanent partial disability as defined by La. R.S. 23:1378(F) at the time of his second injury on July 29, 2001, LWCC was required to produce factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial. We find LWCC failed to offer any evidence establishing a genuine issue of material fact for trial on this essential element of its claim.

We also find that the Board met its burden of proving that there was an absence of factual support establishing that Southwest had actual knowledge of |nMr. Hollier’s permanent partial disability, if any, before the July 29, 2001 accident. Mr. Hollier’s deposition testimony established that he told Southwest, during his employment interview, that he “had a previous back surgery,” that he “was healed from it,” and that “everything was all right.” These statements establish that Southwest had knowledge of a previous back surgery — it does not establish that Southwest had actual knowledge that Mr. Hollier underwent a surgical removal of part of an intervertebral disk or otherwise had a condition of such seriousness as to constitute a hindrance or obstacle to his employment or obtaining employment. Because LWCC failed to offer any evidence establishing that Southwest had actual knowledge of Mr. Hollier’s purported permanent partial disability before the July 29, 2001 accident, there is no genuine issue of material fact for trial on this essential element of its claim, and the district court correctly granted summary judgment. The November 5, 2007 judgment of the district court, granting the motion for summary judgment filed by the Board and dismissing LWCC’s claim, is hereby affirmed.

III. CONCLUSION

After a de novo review of the record, we conclude that the Board met its burden of pointing out that there was an absence of factual support for two essential elements of LWCC’s claim for reimbursement, i.e., that Mr. Hollier had a preexisting permanent partial disability as defined by La. R.S. 23:1378(F) at the time of his subsequent injury on July 29, 2001, and that Southwest had actual knowledge of Mr. Hollier’s purported preexisting permanent partial disability prior to Mr. Hollier’s subsequent injury of July 29, 2001, as required by La. R.S. 23:1378(A)(4). Because LWCC failed to produce factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial as to those two essential elements, there was no genuine issue of material fact and summary judgment dismissing LWCC’s claim was proper. Therefore, the |12November 5, 2007 judgment of the district court is hereby affirmed.

All costs of this appeal are assessed against the plaintiff/appellant, Louisiana Workers’ Compensation Corporation.

AFFIRMED.

PARRO, J., concurs.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

|,I respectfully concur in the result, finding it unnecessary to address whether the presumption under LSA-R.S. 23:1378 F(29) applies in this case.

      . The Board is a legislatively created entity that administers the Second Injury Fund. See La. R.S. 23:1372 and La. R.S. 23:1377.

      . See La. R.S. 23:1378(E) (providing that although the decision of the Board is final, any party may appeal the Board's decision to the Nineteenth Judicial District Court, Parish of East Baton Rouge, within thirty days after the date of the decision by the Board).

      . The provisions of La. R.S. 23:1378(A) have since been amended by 2004 La. Acts, No. 258, § 1; 2004 La. Acts, No. 293, § 1; 2005 La. Acts, No. 257, § 1; 2006 La. Acts, No. 453, § 1; 2007 La. Acts, No. 332, § 1; and 2008 La. Acts, No. 220, § 8. However, since all of the pertinent events in this case occurred prior to the 2004, 2005, 2006, 2007, and 2008 amendments, the version of La. R.S. 23:1378(A) that was in effect prior to those amendments is applicable to this case.

      . The provisions of La. R.S. 23:1378(F) have since been amended by 2006 La. Acts, No. 453, § 1 and 2008 La. Acts, No. 220, § 8. However, since all of the pertinent events in this case occurred prior to the 2006 and 2008 amendments, the version of La. R.S. 23:1378(F) that was in effect prior to those amendments is applicable to this case.


author: PARRO, J.

text:
    Murad K. MOHSEN v. Damaris Fernandez MOHSEN.
    No. 2008 CU 1703.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.

      Roy H. Maughan, Jr., Baton Rouge, LA, for Plaintiff/Defendant-in-Rule/Appellee, Murad K. Mohsen.

      Stephen G. Rabel, Baton Rouge, LA, for Defendant/Plaintiff-in-Rule/Appellant, Da-mans Fernandez Mohsen.
    Before PARRO, McCLENDON, and WELCH, JJ.
   PARRO, J.

|2The mover in a motion to establish international visitation appeals a judgment that denied her motion and ordered the surrender of her minor child’s passport. For the following reasons, the judgment is affirmed in part, reversed in part, and remanded with instructions.

Factual Background and Procedural History

Murad K. Mohsen (Murad) and Damaris Fernandez Mohsen (Damaris) were married on October 2, 2002, in California. Of the marriage, one child, Miranda (child), was born on September 26, 2004. Following their separation in March 2007, Murad filed a petition for divorce in a Louisiana district court. At that time, Murad was residing in Louisiana, and Damaris was residing in Florida. After the trial court overruled an exception raising the objection of lack of subject matter jurisdiction that had been filed by Damaris, the parties entered into an interim stipulated judgment signed by the court on November 14, 2007, which provided for the sharing of physical custody of their minor child. In that interim judgment, it was stated in pertinent part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties agree that neither the parties nor their agents shall take the minor child Miranda Murad Mohsen outside of the United States without further order by the Court.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this interim stipulated judgment establishing child custody shall maintain effect until such time as a trial on the merits may be held to detennine a custody arrangement in the best interests of the child, taking into consideration all relevant factors bearing on each party’s parental qualifications.

On December 31, 2007, the parties entered into a stipulated judgment providing for joint custody of the child with Damaris being designated as the domicilary parent, the establishment of a physical custody schedule, and child support. The parties further agreed that jui’isdiction over the matter and Murad’s petition for divorce would remain in Louisiana.

Pursuant to the terms of the inteiim judgment, Damaris filed a motion on February 25, 2008, to establish international visitation. In her motion, Damaris |3expressed her desire to transport the child to Nicaragua for 12 days (from March 20 to March 31, 2008) for the purpose of visiting with the child’s maternal grandparents. She prayed for an order directing Murad to appear in court and show cause why she should not be allowed to transport their child to Nicaragua beginning March 20, 2008, and returning to the United States on March 31, 2008. The court issued a show cause order, setting a hearing of this matter on March 18, 2008.

At the healing, Murad appeared without counsel, Damaris did not appear as she was reportedly in Miami, Florida, and counsel appeared on Damaris’ behalf. In addition to denying Damaris’ motion, the trial court declared that Damaris was prohibited from transporting Miranda to Nicaragua until such time as Nicaragua became “an accepted signatory party to the Hague Convention on 25 October 1980 of the Civil Aspects of International Child Abduction” and ordered Damaris to surrender the child’s passport to the court. Damaris appealed, asserting that the trial court abused its discretion in:

failing to perform a balancing test of each of the Uniform International Child Abduction Prevention Act’s factors to determine the risk of abduction, foreclosing any possibility of cross-examination of Murad, and directing her to surrender the passport of their minor child and prohibiting the child from leaving the United States.

Discussion

Damaris contends that in ruling on her motion, the trial court should have considered all of the factors set forth in the Uniform International Child Abduction Prevention Act (Child Abduction Prevention Act), LSA-E.S. 13:1851 et seq., rather than focusing exclusively on Nicaragua’s nonparticipation in the Hague Convention.

An application to the court for an order, if not presented in some other pleading, shall be by motion which, unless made during trial or hearing or in open court, shall be in writing. LSA-C.C.P. art. 961. If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party. LSA-C.C.P. art. 963.

|4The order sought by Damaris in this case was not one to which she was clearly entitled and required supporting proof; accordingly, the motion had to be served on and tried contradictorily with Murad. See LSA-C.C.P. art. 963. Despite the need for supporting proof, Da-maris chose not to attend the hearing, and no evidence was offered by her counsel in support of her motion. Therefore, since Damaris failed to meet her burden of proof, we find no error in the trial court’s denial of her motion to establish international visitation. Accordingly, we affirm that portion of the judgment.

Nonetheless, the judgment also ordered that the child’s passport be surrendered to the court, and this portion of the judgment will now be reviewed. Louisiana Revised Statute 13:1854 of the Child Abduction Prevention Act sets forth the types of actions in which abduction prevention measures may be ordered, as follows:

A. A court on its own motion may order abduction prevention measures in a child-custody proceeding if the court finds that the evidence establishes a credible risk of abduction of the child.
B. A party to a child-custody determination or another individual or entity having a right under the law of this state or any other state to seek a child-custody determination for the child may file a petition seeking abduction prevention measures to protect the child under this Part.
C. A prosecutor or public authority designated under R.S. 13:1837 may seek a warrant to take physical custody of a child under R.S. 13:1859 or other appropriate prevention measures.

Notably, Damaris’ motion to establish international visitation did not seek abduction prevention measures as set forth in LSA-R.S. 13:1854(B). Furthermore, Mu-rad did not respond to Damaris’ motion by filing a petition seeking abduction prevention measures. Moreover, LSA-R.S. 13:1854(C) is clearly not applicable in this case. However, because Damaris’ motion involves an issue that is included within the ambit of a child-custody proceeding, the trial court had authority, on its own motion, to order abduction prevention measures, but only upon a finding that the evidence established a credible |firisk of abduction of the child. See LSA-R.S. 13:1854(A).

Pursuant to LSA-R.S. 13:1857(A), in determining whether there is a credible risk of abduction of a child, the court shall consider all of the following factors and any evidence that the petitioner or respondent:

(1) Has previously abducted or attempted to abduct the child.
(2) Has threatened to abduct the child.
(3) Has recently engaged in activities that may indicate a planned abduction, including any of the following:
(a) Abandoning employment.
(b) Selling a primary residence.
(c) Terminating a lease.
(d) Closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting any unusual financial activities.
(e) Applying for a passport or visa or obtaining travel documents for the respondent, a family member, or the child.
(f) Seeking to obtain the child’s birth certificate or school or medical records.
(4) Has engaged in domestic violence, stalking, or child abuse or neglect.
(5) Has refused to follow a child-custody determination.
(6) Lacks strong familial, financial, emotional, or cultural ties to the United States.
(7) Has strong familial, financial, emotional, or cultural ties to another country.
(8) Is likely to take the child to a country that either:
(a) Is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child.
(b) Is a party to the Hague Convention on the Civil Aspects of International Child Abduction but either:
(i) The Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country.
(ii) Is noncompliant according to the most recent | ^compliance report issued by the United States Department of State.
(iii) Lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague Convention on the Civil Aspects of International Child Abduction.
(c) Poses a risk that the child’s physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children.
(d) Has laws or practices that would either:
(i) Enable the respondent, without due cause, to prevent the petitioner from contacting the child.
(ii) Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner’s gender, nationality, marital status, or religion.
(iii) Restrict the child’s ability legally to leave the country after the child reaches the age of majority because of a child’s gender, nationality, or religion.
(e) Is included by the United States Department of State on a current list of state sponsors of terrorism.
(f) Does not have an official United States diplomatic presence in the country.
(g) Is engaged in active military action or war, including a civil war, to which the child may be exposed.
(9) Is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in the United States legally.
(10) Has had an application for United States citizenship denied.
(11) Has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a Social Security card, a driver’s license, or other government-issued identification card or has made a misrepresentation to the United States government.
(12) Has used multiple names to attempt to mislead or defraud.
(13) Has engaged in any other conduct the court considers relevant to the risk of abduction.

At the hearing on this matter, Murad testified on examination by the court as follows. Murad, a native Jordanian, had been in the United States for 12 years and a 17citizen of the United States since 1999. Damaris was from Nicaragua. Murad and Damaris met in San Francisco in 2002 where she had been for five years. They married in October 2002 in Redwood City, California, and lived in Sanmatio, California, for three or four years. They have one child, who was three-and-a-half years old. While in California, Murad worked as a limousine driver in San Francisco.

Murad further testified that he and Da-mans then moved to Farmington, Minnesota, where he worked as a manager of a fast food restaurant. In April 2007, Damaris went to Miami, Florida, for a birthday party for her 80-year-old grandmother, where Damaris remained. Damaris informed Murad that their relationship was not working and that she did not want him to move with her to Miami. Subsequently, Murad moved to Baton Rouge, Louisiana, and filed a petition for divorce. Pursuant to the interim stipulated child custody order, he had physical custody of their minor child every other two months for a period of two months on a rotating basis with Damaris.

According to Murad, ninety-nine percent of Damaris’ family lived in San Francisco and one percent resided in Miami. Da-mans’ mother and sister last visited San Francisco in January 2008 and had just returned to Nicaragua. Murad explained that Damaris’ mother had a visa for five years which enabled her to travel back and forth from Nicaragua to the United States. To his knowledge, Damaris was not a United States citizen; therefore, he was concerned about her ability to return to the United States if something happened to her papers while she was out of the country.

After noting that Nicaragua was not a signatory to the Hague Convention and would not be required to cooperate -with the United States in the event of an abduction, the trial court denied Damaris’ motion for international visitation. In so ruling, the trial court stated that it would not authorize a visit by the child to Nicaragua until Damaris could offer proof that the United States had recourse in the event of an abduction. When asked by the trial court judge about the child’s passport, Mu-rad stated that Damaris had it and that he feared, in light of what he had heard from others, that she |smight go to Nicaragua even though the court denied her motion. In light of Murad’s concerns, the trial court ordered that the child’s passport be surrendered to the court.

Under the Child Abduction Prevention Act, the trial court had authority to order Damaris to surrender the child’s passport to the court. See LSA-R.S. 13:1854(A); see also LSA-R.S. 13:1858(C)(3)(b). Since the Child Abduction Prevention Art did not become effective until August 15, 2007, Damaris probably did not realize that the trial court could order such abduction prevention measures when she filed her motion on February 25, 2008, to establish international visitation. However, no one may avail himself of ignorance of the law. LSA-C.C. art. 5. As a party to a child-custody proceeding requesting international visitation, Damaris should be charged with knowledge of Louisiana laws relating to abduction prevention measures.

Nonetheless, we find it necessary to vacate the portion of the judgment that ordered the surrender of the child’s passport in light of the trial court’s reliance solely on Nicaragua’s nonparticipation in the Hague Convention in its determination of the existence of a credible risk of abduction. Clearly, a country’s nonparticipation in the Hague Convention is only one factor to be considered by a court in determining whether a credible risk of abduction exists. See LSA-R.S. 13:1857(A)(8)(a). Consideration of the other factors enumerated in LSA-R.S. 13:1857(A) is also required. In the interest of justice, we remand this matter for a full hearing on, and reconsideration of, all of the factors involved in a determination of the issue of whether there was a credible risk of abduction of the child, thereby justifying the surrender of the child’s passport.

Decree

For the foregoing reasons, that portion of the judgment that denied Damaris’ motion to exercise international visitation is affirmed. Otherwise, the remaining portions of the judgment are vacated. This matter is remanded for a full hearing on the issue of whether there was a credible risk of abduction justifying a surrender of the child’s passport. In resolving this issue on remand, the trial court shall consider all of |athe factors set forth in LSA-R.S. 13:1857(A)(1) through (13). In the event that the evidence offered at such a hearing preponderates in favor of a determination of a credible risk of abduction of the child, the trial court must enter an abduction prevention order that complies with the directives of LSA-R.S. 13:1858. Pending a hearing on this matter, the passport of the minor child, Miranda Murad Mohsen, shall remain in the possession of The Family Court of East Baton Rouge Parish. Costs of this appeal are assessed to the parties equally.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

      . On appeal, Damaris recognized that the denial of her motion regarding the proposed March 2008 visit is now moot.

      . “Petition” includes a motion or its equivalent. LSA-R.S. 13:1852(6).

      . "Child-custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is at issue. LSA-R.S. 13:1852(4).

      . Murad testified that he resided in Minnesota for a period of three months.

      . Had the legislature intended that a country’s nonparticipation in the Hague Convention serve as an automatic basis for the issuance of abduction prevention measures, it would have stated so.

      . Section 1858 details what must be included in an abduction prevention order,