author: THIBODEAUX, Chief Judge.

text:
    Adrienne STELLY v. ZURICH AMERICAN INS. CO., et al.
    No. 11-1144.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Carl William Robicheaux, Stelly Skylar J. Comeaux, Lafayette, LA, for Defendants/Appellees, Zurich American Ins. Co., D.S. Waters of America, Inc., and John F. Olinger.
    J. Clemille Simon, Lafayette, LA, for Plaintiff/Appellant, Adrienne Stelly.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| ,The plaintiff, Adrienne Stelly, appeals from a judgment awarding her damages for injuries sustained in a vehicle collision with a commercial truck driver insured by the defendant, Zurich American Insurance Company (Zurich). Following a bench trial, Ms. Stelly was awarded $20,000.00 in general damages and $6,458.00 in special damages. Finding the general damage award abusively low, we increase it to $48,000.00, bringing the total award to $49,458.00. We affirm the denial of damages for future chiropractic care.

I.

ISSUES

We must decide:

(1) whether the trial court abused its discretion in awarding general damages; and,

(2) whether the trial court abused its discretion in failing to award an element of damages for future medical care.

II.

FACTS AND PROCEDURAL HISTORY

On September 23, 2008, Ms. Stelly’s Nissan Altima was rear-ended by a Kentwood Water delivery truck driven by John 01-linger and insured by Zurich. The force of the impact pushed Ms. Stelly’s Altima, which was stopped in traffic, into the back of the sports utility vehicle stopped in front of her. Ms. Stelly sustained injuries to her lower neck and low back. Her vehicle could not be driven from the scene.

On the day after the accident, Ms. Stelly was seen by her regular chiropractor, Dr. William Higginbotham, who treated her for the subject accident from September 24, 2008 through January 20, 2011, a total of two years and four ^months. He also treated her for six months for a minor accident which occurred just twelve days before the subject accident. Dr. Higginbotham kept different charts on the two accidents, and he kept a third chart on pre-accident aches and pains that he had treated since 2002. For clarity, we will refer to the subject accident as the “Kent-wood” accident and to the other accident as the “first” accident. Dr. Higginbotham distinguished all three conditions from each other and was the only person to provide medical testimony. Zurich did not seek an examination of Ms. Stelly by a medical doctor or specialist of its choice.

The trial judge awarded Ms. Stelly all of her medical expenses for Dr. Higginbotham’s charges for the Kentwood accident, a total of $6,458.00, for treatments spanning twenty-eight months. He awarded her $20,000.00 in general damages, finding that she suffered only aggravations of pre-existing conditions for seven months. Ms. Stelly appeals the amount of damages awarded, arguing that the trial court erred in not awarding future medical expenses and in awarding abusively low general damages.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

J¿V.

LAW AND DISCUSSION

General Damages

Ms. Stelly contends that the trial court’s award of $20,000.00 in general damages was abusively low. We agree. The Louisiana Supreme Court articulated the standard of review for general damage awards in Duncan v. Kansas City Southern Railway Co., 00-66 (La.10/30/00), 773 So.2d 670, cert. denied, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001), as follows:

General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms.” Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993). Vast discretion is accorded the trier of fact in fixing general damage awards. La. Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 13 (La.App. 1 Cir. 11/8/96); 685 So.2d 163, 172. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260. As we explained in Youn:
Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award.

Id. at 1261.

The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498 (La.1979). Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

Duncan, 773 So.2d at 682-83.

Here, the trial court based its general damage award on an April 21, 2009 release date from Dr. Higginbotham for the Kent-wood accident that occurred on September 23, 2008. This would constitute seven months of treatment for the Kentwood accident. However, Ms. Stelly’s medical records reveal that Dr. Higginbotham did not release her on April 21, 2009. In fact, on that date he recorded low back and hip pain and spasm with exercise. Dr. Higginbotham did not record “see as needed” until Ms. Stelly’s visit dated November 16, 2010.

His records further indicate that Dr. Higginbotham continued to see Ms. Stelly for problems that he attributed to the Kentwood accident through January 20, 2011. This constitutes twenty-eight months of treatment for the subject accident. The trial court awarded Ms. Stelly medical specials of $6,458.00 for all twenty-eight months of treatment, which is inconsistent with its general damage award covering only seven months. For these reasons and the reasons below, we reject the defendant’s and the trial court’s position that all of Ms. Stelly’s related injuries were merely short-lived aggravations of pre-existing conditions. Consequently, we increase Ms. Stelly’s general damage award to $43,000.00.

Dr. Higginbotham began treating Ms. Stelly in 2002 for TMJ and general maintenance care of her back, which he characterized as “generalized lumbalgia” due to overwork or stress or sitting too long. He testified that prior to the first accident on September 11, 2008, Ms. Stelly had not presented to him with specific localized pain due to a traumatic event. As a result of the first accident, he |Rdiagnosed whiplash syndrome, without any radicular symptoms, and an aggravation of the preexisting TMJ. He released Ms. Stelly from care for the first accident when her upper neck symptoms subsided on February 9, 2009.

On the day following the September 23rd Kentwood accident, Ms. Stelly complained of major low back pain and burning. Dr. Higginbotham diagnosed “lumbosacral sprain/strain” which he differentiated from the pre-accident lumbal-gia, stating that lumbosacral sprain/strain is a tearing or pulling of the muscle, with severe burning or irritation to the ligamentous tissue and muscle, usually from an impact.

As a result of the Kentwood accident, he also diagnosed “cervico-brachial syndrome” which involves neurologic symptoms of burning pain radiating into the upper extremities. Dr. Higginbotham distinguished the cervico-brachial injury sustained in the Kentwood accident from the whiplash injury in the first accident, indicating that the whiplash injury affected the upper cervical spine while the cervico-bra-chial injury affected the lower cervical spine from level C5 through the thoracic level, Tl.

Dr. Higginbotham testified that the tearing of the supporting muscles and ligaments of the cervical and lumbar spine created instability issues, spasm, misalignment, and radiating pain which predisposes Ms. Stelly to re-injury. He further testified that the scar tissue formed after the tearing of the muscles is less elastic and also predisposes Ms. Stelly to re-injury. He further opined that the lumbosa-cral sprain/strain caused Ms. Stelly lower extremity heel and foot pain which has caused issues with her normal gait pattern and walking motion. Ms. Stelly’s last visit for the Kentwood accident, according to Dr. Higginbotham’s records and testimony, was January 20, 2011.

Accordingly, during the two-and-a-half years following the Kentwood accident, Ms. Stelly saw Dr. Higginbotham at least thirty (30) times for | (¡specifically-related lumbosacral sprain/strain pain and low back treatments, from September 2008 through September 2010. Some of these visits, and a half-dozen additional ones, included treatments for the related cervi-co-brachial injury with lower cervical and mid-back pain. By November 16, 2010, Dr. Higginbotham noted only headaches, but he gave Ms. Stelly exercises and told her to “return as needed.” He specifically testified that she would have exacerbating events that would be related to the Kent-wood accident. Ms. Stelly then developed related pain in her right foot, as discussed above, and Dr. Higginbotham treated her several more times for mid-back and foot pain, until January 2011, a total of twenty-eight months.

Ms. Stelly’s job is selling printers, and she travels 100 to 300 miles per day. She testified that after the Kentwood accident, her lower back began to burn when she stood waiting for the police to finish the paperwork on the accident. After that time, she worked in pain, had trouble lifting things, driving more than an hour, getting in and out of the car, and seeing clients all day, and she went home early because of the pain. She also testified that she was unable to perform pre-acci-dent household duties and leisure activities that required prolonged standing or sitting, such as cooking, cleaning, washing dishes, mowing the grass, riding her jet ski, bowling, and walking. Ms. Stelly testified that her daughter and flaneé had to do many of the tasks she had done, that it was hard on them, and that she and her fiancé had severed their relationship for several months due to her depression and irritability. Dr. Higginbotham’s testimony confirmed that Ms. Stelly was limited by the severe burning pain from her injuries.

Given the nature of Ms. Stelly’s injuries from the Kentwood accident and the length of time that she was treated, we find that $43,000.00 is the lowest amount the trial court could have reasonably awarded for general damages. See Morans v. Frederick, 05-429 (La.App. 3 Cir. 11/2/05), 916 So.2d 474 (affirmed 17$43,000.00 award for past pain and suffering for soft tissue injuries to the arm, shoulder, and neck with seventeen months of conservative treatment); See also Jacobs v. City of Marksville, 06-1386 (La.App. 3 Cir. 3/7/07), 953 So.2d 139, writ denied, 07-1093 (La.9/14/07), 963 So.2d 999 (affirmed $45,000.00 general damage award for soft tissue injuries to neck, back, and shoulder with thirteen months of conservative treatment).

Future Chiropractic Care

Ms. Stelly further contends that the trial court disregarded the uncontra-dicted medical testimony of Dr. Higginbotham regarding future medical care and, therefore, erred in failing to award any sum for that element of damages. She correctly argues that Dr. Higginbotham was of the opinion that Ms. Stelly would have lifelong problems due to the Kentwood accident and would need once-a-month chiropractic care for the remainder of her life at $50.00 to $100.00 each. Ms. Stelly states that her life expectancy at age thirty-six is forty-six more years, for a total of $41,000.00 in future medical expenses.

When the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses....

Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La.1992) (per curiam) (emphasis added).

Conversely, here, the trial court did not base its denial of future medical care on the basis that the record lacked the exact value of future expenses. Instead, the trial court found that Ms. Stelly’s testimony was “inconsistent” and that neither doctor nor patient was able to produce any evidence of the need for continued care directly resulting from the September 23rd accident. The court further noted that Dr. Higginbotham treated Ms. Stelly only with massage, 18exercise, and spinal adjustments, but no medication for pain or muscle relaxants, and he chose not to refer her to a medical doctor or specialist. Additionally, the court noted no claim for lost wages, or for emotional distress requiring medical treatment; and, it found that Ms. Stelly had returned to her pre-accident status of seeing her chiropractor for "maintenance” and relief for her pre-exist-ing day-to-day back problems.

Much discretion is left to the trial court for the reasonable assessment of whether future medical expenses are necessary and inevitable. See Dugas v. Det-onen, 01-1397 (La.App. 3 Cir. 7/3/02), 824 So.2d 475, writ denied, 02-2131 (La.11/15/02), 829 So.2d 426 (no abuse of discretion in trial court’s denial of future medical expenses). Here, while we have found that the trial court was incorrect in establishing the last related treatment date, the court’s other reasoning on future chiropractic care is supported by the record, and we will not overturn the denial of future medical damages.

V.

CONCLUSION

Based upon the foregoing, the general damage award to Ms. Stelly is increased from $20,000.00 to $43,000.00, and the denial of future medical expenses is affirmed. The cost of this appeal is assessed to Zurich American Insurance Company.

AFFIRMED AS AMENDED IN PART.


source: Caselaw Access Project

license: Public Domain

text:
    William SPEYRER v. The GRAY INSURANCE COMPANY, et al.
    No. 11-1154.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Jay Anthony Pucheu, Marksville, LA, for Plaintiff/Appellee, William Speyrer.

      Mark Alan Watson, Stafford, Stewart, & Potter, Alexandria, LA, for Defendant/Appellant, The Gray Insurance Company and Westgate, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

hThe sole issue in this workers’ compensation proceeding is whether the workers’ compensation judge (WCJ) erred in permitting the employee, William Speyrer, to select a physical therapist to conduct a functional capacity evaluation (“FCE”) following an FCE with a therapist selected by the employer. The employer’s insurer, The Gray Insurance Company (“Gray”), asserts that the WCJ erred in her judgment. We disagree with Gray and affirm the judgment of the WCJ. Specifically, we find that the parties reached a compromise as contemplated by La.Civ.Code art. 3071. The compromise reached by the parties resolves this issue in favor of Mr. Speyrer.

I.

ISSUE

We must decide whether the WCJ erred in permitting Mr. Speyrer to select a physical therapist to conduct an FCE following an FCE with a therapist selected by the employer.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Speyrer suffered a job-related accident and filed a claim for benefits under the Workers’ Compensation Act. Gray has paid weekly indemnity benefits since the inception of Mr. Speyrer’s claim. Indemnity benefits have never been discontinued, and medical benefits are continuing to be paid.

To force an evaluation of Mr. Speyrer’s capabilities, Gray filed a Motion to Compel an FCE. Prior to the hearing on the Motion, attorneys for both parties confer-enced with the WCJ. Following that conference, Gray’s attorney drafted a letter to the WCJ, copying Mr. Speyrer’s counsel, memorializing the 12conference. Specifically, the letter indicated that were the Motion to come up for hearing as scheduled, the WCJ would more likely than not order that Gray is entitled to its choice of FCE, including its right to choose the examiner and the duration of the FCE. Conversely, Mr. Speyrer would be authorized to have his choice of FCE, including choice of examiner and duration of FCE. Gray’s counsel concluded the letter by stating:

Based on that information, we are advising the court that the issues presented by the Motion to Compel FCE have been resolved, and we ask that the hearing be removed from the Court’s docket and shown as resolved by the parties, (emphasis added).

Mr. Speyrer participated in an FCE conducted at Rosewood Rehabilitation on August 17, 2010. Following the Rosewood FCE, Mr. Speyrer requested a five-day FCE to be performed by an evaluator of his choice. Gray denied Mr. Speyrer’s request.

At trial, Mr. Speyrer’s counsel introduced as evidence the letter drafted by Gray’s counsel. The WCJ ultimately granted Mr. Speyrer’s request for a multi-day FCE to be performed at Mr. Speyrer’s choice of facilities, Fontana Center. Gray appeals the judgment of the WCJ.

III.

LAW AND DISCUSSION

Standard of Review

This case poses a question of law; accordingly, the appropriate standard of review is de novo.

Appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.

Citgo Petroleum Corp. v. Frantz, 03-88, pp. 3-4 (La.App. 3 Cir. 6/4/03), 847 So.2d 734, 736, writ denied, 03-1911 (La.10/31/03), 857 So.2d 484 (quoting Conagra Poultry Co. v. Collingsworth, 30,155 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280).

Discussion

Gray asserts that the WCJ erred in allowing Mr. Speyrer to select his own therapist for the FCE. We disagree. Gray points out that this court addressed a similar issue in Gautreaux v. K.A.S. Construction, LLC, 05-1192 (La.App. 3 Cir. 2/22/06), 923 So.2d 850, and argues that Gautreaux controls the instant matter. We are mindful of Gautreaux, but we find that it is not implicated here.

In Gautreaux, the plaintiff argued that he had the right to choose a physical therapist to conduct the FCE. This court stated:

We now are called upon to face the issue [of choice] squarely as it relates to FCEs. After careful review, we find that the statute itself addresses the issue. Specifically, it provides that an injured employee “shall submit himself to an examination by a duly qualified medical practitioner” selected by his employer. La.R.S. 23:1121(A) (emphasis added). However, the statute also provides that an injured “employee shall have the right to select one treating physician” in each field or specialty. La.R.S. 23:1121(B)(1) (emphasis added).

Gautreaux, 923 So.2d at 851-52.

The court concluded that a physical therapist falls within the scope of the boarder term “medical practitioner,” and, accordingly, the plaintiff was “required to submit to the FCE with the medical practitioner arranged by the Defendants.” Id. at 852. Moreover, the court noted that because the clear language of La.R.S. 23:1121(B)(1) grants only the employee the right to choose a treating physician, and not a medical practitioner, the plaintiff had no right to select a physical therapist to conduct the FCE.

| fiautreaux is distinguishable from this matter. In Gautreaux, the parties had not reached a prior agreement about the FCE. Here, the parties compromised, as indicated by the letter written by Gray’s counsel that asked the court to remove the motion hearing from the docket and that alerted the court that the parties had “resolved” the FCE issue.

Louisiana Civil Code Article 3071 states that “[a] compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” Moreover, Article 3072 states, “[a] compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.”

The letter drafted by Gray’s counsel, copying Mr. Speyrer’s counsel, fits the definition of a compromise. In the letter, Gray acknowledges that based upon the information provided by the court that it would allow each party to choose a therapist to conduct the FCEs, Gray was withdrawing its Motion to Compel, and the parties consider the issue “resolved.” To settle the dispute involving the FCE, Gray made the concession that Mr. Speyrer would be allowed to choose his own therapist to conduct an FCE following an FCE conducted by Gray’s therapist of choice. The record indicates that Mr. Speyrer agreed to these terms because his attorney entered the letter as evidence in support of his case at trial. Thus, when Mr. Speyrer requested an additional FCE with a therapist of his choice, the terms of the compromise governed, and Gray was required to grant the request.

|fiGray now argues, however, that the letter its attorney drafted does not meet the requirements of a compromise as contemplated by La.Civ.Code art. 3071 or 3072. Specifically, Gray cites jurisprudence stating that both parties must sign a compromise document for it to be valid, or, alternatively, the compromise must be read in open court. See Trahan v. Coca Cola Bottling Co. United, Inc., 04-100 (La.3/2/05), 894 So.2d 1096; Brasseaux v. Allstate Ins. Co., 97-526 (La.App. 1 Cir. 4/8/98), 710 So.2d 826; DeSoto v. DeSoto, 96-1079 (La.App. 5 Cir. 4/29/97), 694 So.2d 1043. While we are cognizant of this jurisprudence, we refuse to elevate form over substance. The parties clearly had a meeting of the minds, and their compromise was memorialized in the letter Gray’s counsel drafted and sent to the WCJ. Mr. Speyrer’s counsel implicitly accepted the compromise and acquiesced to its terms as evidenced by his use of the letter in support of his case at trial.

Though our rationale differs from the WCJ, the judgment of the WCJ was legally correct. Gray should have authorized Mr. Speyrer to receive an FCE administered by a physical therapist of his choosing.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the WCJ. Costs of this appeal are assessed against Appellant, The Gray Insurance Company.

AFFIRMED.

      . The letter repeatedly uses the pronoun "we,” implying that the parties have had a meeting of the minds and have reached a compromise.

      . We note that in the letter, Gray uses the phrase, "the employee is conversely authorized to have his choice of FCE ...” (emphasis added). The term authorized indicates payment by Gray of the FCE under La.R.S. 23:1121(B)(1).


author: EZELL, Judge.

text:
    VERMILION PARISH SCHOOL BOARD v. CONOCOPHILLIPS COMPANY, et al.
    No. CA 11-999.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Scott R. Bickford, Regina O. Matthews, Martzell & Bickford, New Orleans, LA, David L. Landry, Pensacola, FL, for Plaintiff/Appellant, Vermilion Parish School Board.
    Lawrence Paul Simon, Jr., Liskow & Lewis, Lafayette, LA, for Defendants/Ap-pellees, Union Oil Company of California, The Pure Oil Corp.
    Daria B. Diaz, Keith B. Hall, Stone, Pigman, Walther, Wittmann, New Orleans, LA, for Defendant/Appellee, ConocoPhil-lips Company.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

| jThese consolidated cases present the res nova issue of whether an action by the Vermilion Parish School Board (VPSB) for underpayment of royalties, on its behalf and on behalf of the State, is subject to the three-year prescriptive period found in La. Civ.Code art. 3494. The VPSB argues that the leases at issue cover Section 16 lands which are state-owned properties not subject to the three-year prescriptive period. La.Civ.Code art. 3494(5). All three trial courts held that the three-year prescriptive period is applicable. For the following reasons, we reverse and remand for further proceedings.

FACTS

In December 2005, the VPSB, individually and on behalf of the school children of Vermilion Parish and on behalf of the State of Louisiana, filed suit against several Defendants concerning an oil, gas, and mineral lease dated December 5, 1963, referred to as the Unocal Lease and an oil and gas mining lease dated April 4, 1935, referred to as the LL & E Lease. In January 2006, the VPSB filed a second suit against several Defendants concerning oil, gas, and mineral leases dated September 25, 1984, March 1, 1968, January 5, 2000, and December 5, 1963, referred to as the Amerada Hess Leases. The third lawsuit was filed by the VPSB on January 3, 2006, against several Defendants concerning oil, gas, and mineral leases dated July 2, 1953, January 2, 1976, and February 1, 1979, referred to as the ConocoPhillips Leases. All three suits involved claims for the underpayment of royalties derived from Section 16 mineral leases occurring in the 1990’s.

The Defendants filed exceptions of prescription. A hearing in the Unocal matter was held on June 25, 2007. In reasons for ruling, the trial court stated that the mineral rights at issue were severed from the land and vested in the VPSB, with the VPSB seeking payment of royalties pursuant to contractual rights between the VPSB |2and Unocal. The trial court stated that the State was not a party to the mineral leases and that the VPSB was a separate body with the sole power to enter into the mineral lease, with the power to sue and be sued. The court granted the exception of prescription finding that the three-year prescriptive period in La.Civ. Code art. 3494(5) is applicable because only the State is immune from liability.

A hearing in the Amerada Hess matter was held on October 8, 2007. The trial court also ruled that the three-year prescriptive period was applicable.

In the ConocoPhillips matter, the VPSB entered into a stipulated consent judgment. Reserving all rights of appeal, the VPSB agreed not to oppose the exception of prescription in order to place the action in the same procedural posture for appeal as the other two matters.

The VPSB appealed all three matters. At the request of the VPSB, and without opposition from the Appellees, the three matters were consolidated for briefing and argument on appeal.

DISCUSSION

We must first address an argument by the Defendants that stipulations by the VPSB preclude it from appealing the judgments in the trial court. The Defendants argue that the VPSB is not an “agent” of the State and that the State has no rights to royalties from the VPSB’s lease of Section 16 lands. They claim that the VPSB stipulated in the Unocal and Amerada Hess matters that it would not appeal the trial court’s ruling that the State itself has no cause of action for the claims of nonpayment or underpayment of royalties under the mineral lease.

The VPSB did make this assertion in its motion to withdraw certain affirmative defenses and for certification of the order as a final judgment. However, the VPSB further stated that it was reserving its right to litigate the issue of “whether its royalty claims are immune from liberative prescription due to the ownership, in trust, of the lands at issue by the State.” The VPSB specifically reserved “the right to seek the |sremedy of lease cancellation and all other remedies that may be available for breach of a lease by underpayment of royalties in the event that [the trial court’s] grants of Defendants’ Exception of Prescription is reversed on appeal.”

Also, as recited in the factual section above, the VPSB simply did not oppose the exception of prescription in the Conoco-Phillips matter so that all three cases would be in the same procedural posture for appeal. We find that the VPSB properly reserved its right to seek review of the granting of the exceptions of prescription in favor of the Defendants. Therefore, we will now address the issue raised by the VPSB of whether it is immune from prescription because of ownership of Section 16 lands by the State.

This issue raised by this case involves questions of law. Therefore, the appropriate standard of review is de novo. Thiels v. Dennis, 09-957 (La.App. 3 Cir. 2/3/10), 29 So.3d 715. Pursuant to a de novo standard of review, an appellate court must determine whether the trial court was legally correct or legally incorrect and gives no additional weight to the trial court’s determination. Id.

The VPSB’s arguments are based on its position that the revenues from the mineral leases are derived from Section 16 lands, which are state-owned properties, making La.Civ.Code art. 3494(5)’s three-year liberative prescription inapplicable. The VPSB argues that it entered into the leases on behalf of the State, the owner of the Section 16 lands and mineral rights, as trustee, and also on behalf of the school children, the beneficiaries of the trust.

Pursuant to La. Const, art. 12, § 13, “Prescription shall not run against the State in any civil matter, unless otherwise provided in this Constitution or expressly by law.” Applicable to this particular matter, La.Civ.Code art. 3494(5) specifically provides that an action for the recovery of an underpayment of royalties is subject to a three-year prescriptive period unless the payment, rent, or royalties are derived from “state-owned properties.”

| ¿Ownership of Section 16 Lands

In 1806, the United States Congress set aside and dedicated for the use of public education Section 16 lands. State v. Humble Oil and Ref. Co., 195 La. 457, 197 So. 140 (1940); Terrebonne Parish Sch. Bd. v. Texaco, Inc., 178 So.2d 428 (La.App. 1 Cir.), writ refused, 248 La. 465, 179 So.2d 640 (1965), cert denied, 384 U.S. 950, 86 S.Ct. 1568, 16 L.Ed.2d 546 (1966). After Louisiana was admitted to the Union in 1812, title to the lands was vested in the State. Id. The Louisiana Supreme Court recognized that Section 16 lands are unique because they are a separate and distinct part of public lands and that the administration of those lands has always been separate and apart from the administration of other public lands. Humble Oil and Ref. Co., 197 So. 140. “For more than one hundred years it has been the settled policy of this State, as reflected in various constitutional and statutory provisions, to treat sixteenth section lands as separate and distinct from all other State lands and to place them under the control of the school authorities.” Id. at 144.

In Ebey v. Avoyelles Parish School Board, 03-765 (La.App. 3 Cir. 12/17/03), 861 So.2d 910, writ denied, 04-196 (La.3/26/04), 871 So.2d 349, this court discussed the history of the trust doctrine over Section 16 lands in Louisiana and recognized that Section 16 lands are held by Louisiana in trust for the benefit of school children. We further observed that “[t]he management of these trust lands is vested by the State in the local school boards.” Id. at 914 (citing La.R.S. 17:100.6 and La.R.S. 41:638).

In School Board of Avoyelles Parish v. U.S. Department of Interior, 647 F.3d 570 (5 Cir.2011), the federal court, citing Ebey, recognized that the school board is not the true owner of Section 16 lands; the State of Louisiana is the true of owner of Section 16 lands who vests the management of these trust lands in local school boards.

Statutory provisions further evidence that Section 16 lands are owned by the State because specific authority is granted to the school boards regarding the lands, which would not be necessary if school boards owned the lands. Louisiana Revised ^Statutes 41:961 (emphasis supplied), involving an action by a school board for the recovery of title and damage for trespass, specifically provides that title to Section 16 lands is still in the State as follows:

The school boards of the various parishes of the state may contract with and employ on the part of the State of Louisiana, attorneys at law, to recover for the state, damages for trespass to the sixteenth section known as school lands the title to which is still in the state. Each of the boards may make these contracts for the lands situated in its own parish and no others. The school boards may also sue for and recover the sixteenth section known as school lands.

Section 30 of Act 110 of 1922 authorized parish school boards to grant mineral leases on Section 16 lands. Humble Oil and Refining Co., 197 So. 140. Louisiana Revised Statutes 30:151 through 30:158 sets forth the procedures for the granting of mineral leases covering Section 16 lands. Pursuant to La.R.S. 30:152(A), “[e]very agency is authorized to lease its land for the development and production of minerals.” Louisiana Revised Statutes 30:152(A) further gives school boards the authority to lease Section 16 lands. A “school board” is included in the definition of “agency.” La.R.S. 30:151. If school boards owned Section 16 lands and the minerals, there would be no need to further authorize them to lease the lands because the statute already authorizes an agency to lease its own lands.

Further indication that the State is owner of Section 16 lands is found in La.R.S. 41:631 which provides that the Registrar of the State Land Office shall sell a tract of land not less than five acres of Section 16 lands donated by Congress to this State for school purposes. Louisiana Revised Statutes 17:87 authorizes parish school boards to rent or sell Section 16 lands or to sell the timber located on Section 16 lands.

Clearly, Section 16 lands are owned by the State. Both jurisprudence and statutory authority provides that Section 16 lands are owned by the State with school boards given the administrative authority over lands.

\fPumership of Minerals in Section 16 Lands

Defendants argue the VPSB was given the exclusive right to lease Section 16 lands and, as the mineral lessor, it enjoys all benefits under the lease. Defendants further argue that only the VPSB has the capacity to sue to enforce the contractual rights under the Section 16 lands leases, and therefore, the VPSB may not assert the State’s constitutional immunity. Relying on State, through Department of Highways v. City of Pineville, 403 So.2d 49 (La.1981), the Defendants claim that the VPSB is a state agency which is subject to a claim of liberative prescription. The supreme court explained:

We subscribe to the following reasoning, advanced in the cases cited above: the “State,” for the purposes of the constitutional immunity from prescription, does not include a state agency which is a body corporate with the power to sue and be sued and which, when vested with a cause of action, is the sole party capable of asserting it. Regardless of its status as an instrumentality of the state, such an agency remains a distinct legal entity subject to claims of prescription except where the law provides otherwise.

Id. at 52.

While we agree that school boards are agencies which are subject to claims of prescription, we find that premise does not apply under the circumstances of this case when Section 16 lands are involved.

The Louisiana Constitution of 1921, Article 4, § 2 provided that the State could not alienate the mineral rights it owned. Louisiana Constitution of 1974, Article 9, § 4(A) retained the provisions that the State could not alienate any minerals it owned. School boards were not given the authority to grant mineral leases on Section 16 lands until 1922 by Section 30 of Act 110. Therefore, the State still owns the minerals contained in Section 16 lands. The school boards are given administrative authority over Section 16 lands and have been specifically given the power to grant mineral leases on Section 16 lands as part of the overall administrative scheme concerning 17Section 16 lands. La.R.S. 30:152(A). No ownership of the minerals was conferred as the Louisiana Constitution forbids it.

In discussing Article 9, § 4 enacted by the 1974 Louisiana Constitution, the second circuit acknowledged the “jurisprudential rule holding that prescription does not run against state-owned mineral rights was established as a corollary to the prohibition against alienation of state-owned minerals” had been codified by La. Const. art. 9, § 4(B). Cohort Energy Co. v. Caddo-Bossier Parishes Port Comm’n, 37,449, p. 9 (La.App. 2 Cir. 8/20/03), 852 So.2d 1174, 1180 (citing Shell Oil Co. v. Bd. of Comm’rs of Pontchartain Levee Dist., 336 So.2d 248 (La.App. 1 Cir.), unit refused, 338 So.2d 1156 (La.1976)). Louisiana Constitution Article 9, § 4(B) provides that: “[ljands and mineral interests of the state, of a school board, or of a levee district shall not be lost by prescription.”

The second circuit then considered whether the prohibition against alienation of its minerals by the State also applied to state agencies. The second circuit recognized that the supreme court in Stokes v. Harrison, 238 La. 343, 115 So.2d 373 (1959), held that when a school board sold a parcel of land that it had previously purchased from a private landowner without reservation of minerals, the sale was not a sale of property by the State requiring it to reserve the minerals for the purposes of La. Const, art. 4, § 2 of the 1921 Louisiana Constitution. The second circuit recognized that that “the Stokes court concluded that a ‘political subdivision’ or a ‘political corporation’ was not intended by the framers of the Constitution to be included within the term ‘state’ where it applies to the restriction or limitation of the strong policy of this state favoring prescription of reserved mineral interests.” Cohort Energy Co., 852 So.2d at 1182. The second circuit then concluded that the Caddo-Bossier Parishes Port Commission is a separate entity from the State because it is appointed by municipal and parish authorities, and title to land no longer vests in the State but vests in the port commission citing La.R.S. 34:3158 and 34:3160. There is obviously a difference |8when dealing with land the school board owns itself as opposed to Section 16 lands the school board administers for the State.

In Dynamic Exploration, Inc. v. LeBlanc, 362 So.2d 734 (La.1978), the supreme court affirmed a decision of the first circuit holding that a levee district was the “state” within the meaning of La. Const, art. 4, § 2 of the 1921 Louisiana Constitution. The court noted that the 1974 Louisiana Constitution overruled Stokes, 115 So.2d 373, by providing that a school board cannot alienate minerals.

The law is dear that a state agency can sue and be sued as an independent entity. In that case, the benefit the State has of immunity from prescription is not applicable. However, Section 16 lands are a different matter. Section 16 lands are lands owned by the State but managed by the school boards for the benefit of public education. The State still owns the minerals in Section 16 lands but as part of the administrative scheme of the lands, the school boards were given the authority to lease the lands.

State as a Party to Proceedings

The courts below found that the State has no cause of action for the claims of nonpayment or underpayment of royalties under the mineral lease granted by the VPSB. The VPSB argues that it has brought this action in the name of the State as agent and administrator of the Section 16 lands and mineral interests. The Defendants argue that the VPSB is the sole lessor under the mineral lease so that it is the only proper party.

In Board of Com’rs of Port of New Orleans v. Toyo Risen Kaisha, 163 La. 865, 113 So. 127 (1927), the supreme court declared that the personal rights of state agencies may be lost by liberative prescription, but public things administered by a state agency may not be lost by acquisitive prescription. The supreme court further recognized that liberative prescription runs against public agencies unless brought by and in the name of the State itself.

| a Terrebonne Parish School Board v. Southdown, Inc., 03-402 (La.App. 1 Cir. 7/14/04), 887 So.2d 8, involved a suit for damage to Section 16 lands caused by erosion from canals and exploration activities undertaken by individual oil and gas firms for the purpose of mineral exploration and production. Citing Terrebonne Parish School Board v. Mobil Oil Corp., 310 F.3d 870 (5 Cir.2002), the first circuit held that the State’s constitutional immunity in civil matters found in Article 12, § 13 did not apply to the school board when it was not brought by, or in the name of the State.

As recognized in State v. F.B. Williams Cypress Co., 131 La. 62, 58 So. 1033 (1912), judgment amended on other grounds, 132 La. 949, 61 So. 988 (1913), title to Section 16 lands has been vested in the State since their donation by Congress for the benefit of public schools. Everything that the State holds in her capacity as trustee is also protected by the State’s constitutional immunity from prescription. School boards shall aid the State in its execution of its trust of Section 16 lands.

The federal court has also recently recognized that the State, as owner of Section 16 lands, “has more than a nominal interest in the treatment of Section 16 lands.” Sch. Bd. of Avoyelles Parish, 647 F.3d at 578.

Just as the Louisiana State Mineral Board was given the right to grant mineral leases on state land by Act 93 of 1936, the school boards were also give the right to grant mineral leases on Section 16 lands, also state land, by Act 100, § 30 of 1922. In State v. Texas, 205 La. 417, 425-26, 17 So.2d 569, 572 (1944), the supreme court stated:

Unquestionably before the passage of Act 93 of 1936 there existed in the state the right to sue or be sued in its own name on matters pertaining to its mineral interests; all suits of that nature then were in the name of the state proper, whether as plaintiff or defendant. The statute, as we appreciate and interpret it, has not divested the sovereign of such right. It is true that the created State Mineral Board was thereby vested with authority to lease any state lands; that it was given full supervision of all mineral leases awarded by the state; and that it was granted the power to institute actions to annul any such lease. But these conferred | ^authorizations were not declared by the Legislature to be exclusive. Neither has the state transferred to the board title to its lands and mineral rights.
The State Mineral Board, by the statute, has been designated merely the agent of the state to supervise and handle that portion of its affairs which deals with the development of its lands for mineral purposes, and to this end the agent is permitted the right, concurrently with the principal (state), to institute actions in nullity. The board may be likened to an agent of an individual property owner who (agent) has been granted full, but not exclusive, authority in the management and supervision of the owner’s holdings, with power to bring suits respecting the property. In such case certainly the owner has not precluded himself to institute all necessary actions.

The supreme court further explained that, “the State Mineral Board, by reason of statute creating it, has the right to sue ... for the nullity of mineral leases, the state is authorized to maintain this action in its name.” Id.

In the present case, the VPSB entered into mineral leases as an agent of the State. The VPSB has sued on behalf of the State and makes no claims that it owns the Section 16 lands at issue. Section 16 lands and minerals are owned by the State. The State has a right to sue for underpayment of royalties on Section 16 lands in its own name. The immunity from prescription provision of La.Civ.Code art. 3494(5) clearly applies to “state-owned properties.” The VPSB’s claims that Defendants have improperly calculated and underpaid royalties on the Section 16 lands mineral leases are not prescribed pursuant to La.Civ.Code art. 3494(5) and La. Const. Art. 12, § 13.

Accordingly, the trial court erred in granting Defendants’ exceptions of prescription. The judgment of the trial court is vacated and reversed. This case is remanded to the trial court for further proceedings. Costs of this appeal are assessed equally amongst the Defendants.

REVERSED AND REMANDED.

GENOVESE, J., concurs in the result.


text:
    VERMILION PARISH SCHOOL BOARD v. AMERADA HESS CORPORATION, et al.
    No. CA 11-1001.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Scott R. Bickford, Regina O. Matthews, Lawrence J. Centola, Martzell & Bickford, New Orleans, LA, David L. Landry, Pensacola, FL, for Plaintiff/Appellant, Vermilion Parish School Board.
    Lawrence Paul Simon, Jr., Stuart T. Welch, Liskow & Lewis, Lafayette, LA, Robert Louis Theriot, Jana L. Grauberger, Liskow & Lewis, Houston, TX, for Defendants/Appellees, Amerada Hess Corporation, et al.
    Loulan Joseph Pitre, Jr., Gordon, Arata, McCollam, Duplantis & Eagan, New Orleans, LA, Christopher B. Bailey, Gordon, Arata, Lafayette, LA, for Defendant/Ap-pellee, BHP Billiton Petroleum (Americas), Inc.
    John E. Heinrich, Pamela Roman Mas-cari, Kean Miller, Baton Rouge, LA, for Defendant/Appellee, Honeywell International, Inc.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

| j For the reasons assigned in the companion and consolidated case of Vermilion Parish School Board v. ConocoPhillips Co., et al., 11-999 (LaApp. 3 Cir. 2/1/12), 83 So.3d 1234, the judgment of the trial court is vacated and reversed. This case is remanded to the trial court for further proceedings. Costs of this appeal are assessed equally amongst the Defendants.

REVERSED AND REMANDED.

GENOVESE, J., concurs in the result.


text:
    VERMILION PARISH SCHOOL BOARD, et al. v. UNION OIL CO. OF CALIFORNIA, et al.
    No. CA 11-1046.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Scott R. Bickford, Regina O. Matthews, Lawrence J. Centola, Martzell & Bickford, New Orleans, LA, David L. Landry, Pensacola, FL, for Plaintiff/Appellee, Vermilion Parish School Board.
    Reginal J. Ringuet, William Howard Collier, Ringuet & Collier, Lafayette, LA, for Defendant/Appellee, Peak Operating Company.
    Lawrence Paul Simon, Jr., Stuart T. Welch, Liskow & Lewis, Lafayette, LA, Robert Louis Theriot, Jana L. Grauberger, Liskow & Lewis, Houston, TX, for Defendants/Appellees, SWEPI LP, Carrollton Resources, L.L.C., Unocal Corporation.
    Phillip A. Wittmann, Daria Burgess Diaz, Keith B. Hall, Stone Pigman Walther Wittmann, New Orleans, LA, for Defendants/Appellees, ConocoPhillips Company, Louisiana Land and Exploration Co., Inex-co Oil Corporation.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

hFor the reasons assigned in the companion and consolidated case of Vermilion Parish School Board v. ConocoPhillips Co, et al., 11-999 (La.App. 3 Cir. 2/1/12), 83 So.3d 1234, the judgment of the trial court is vacated and reversed. This case is remanded to the trial court for further proceedings. Costs of this appeal are assessed equally amongst the Defendants.

REVERSED AND REMANDED.

GENOVESE, J., concurs in the result.


author: AMY, Judge.

text:
    Keisha DESSELLE, et al. v. ACADIAN AMBULANCE SERVICE, INC.
    No. 11-742.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Scott R. Bickford, Lawrence J. Centola, III, Martzell & Bickford, New Orleans, LA, Donald W. McKnight, Claude P. De-vall, J. Lee Hoffoss, Jr., Newman, Hoffoss & Devall, Lake Charles, LA, Derrick G. Earles, Marksville, LA, for Plaintiff/Appel-lee, Keisha Desselle, et al.
    James P. Dore, Alan J. Berteau, Kean, Miller, Baton Rouge, LA, Rodney M. Ra-balais, Rabalais & Roy, Marksville, LA, for Defendant/Appellant, Acadian Ambulance Service, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

11 The plaintiffs filed suit, asserting that the defendant health care provider imper-missibly demanded and/or collected sums in excess of the discounted rates negotiated with the plaintiffs’ health insurance providers. The trial court granted the plaintiffs’ motion for class certification. The defendant health care provider appeals, contending that the plaintiffs failed to establish the various elements of La.Code Civ.P. art. 591 required for class action status. For the following reasons, we affirm.

Factual and Procedural Background

Keisha Desselle, both individually and on behalf of her minor son, Ayden Des-selle, and Terry Dupuy alleged that they sustained injuries in accidents involving third parties. Each received assistance from the defendant, Acadian Ambulance Services, Inc. (Acadian Ambulance), as a result of their accidents. The record demonstrates that the plaintiffs were insured by health insurance policies issued by an insurer with whom Acadian Ambulance had contracted for medical services.

In light of Acadian Ambulance’s determination that a third party was at fault for each of the plaintiffs’ accidents, it proceeded according to its policy of attempting to recover its full rate from its patients’ settlement or judgment resulting from the accident rather than attempting to recover the discounted rate contracted for between itself and the patient’s health insurer. The record demonstrates that Acadian Ambulance typically does so through medical liens issued to either the patients or their attorneys.

The plaintiffs filed this matter, asserting that Acadian Ambulance applied this practice in their respective situations and that the practice violated La.R.S. 22:1871, et seq., the Health Care Consumer Billing and Disclosure Protection Act. |2A portion of the plaintiffs’ claim also alleges that this practice, in addition to the statutory violation, has resulted in payment of sums not due. See La.Civ.Code art. 2299. Acadian Ambulance initially contested the plaintiffs’ petition by advancing several exceptions.

Thereafter, the plaintiffs filed a motion to certify class action, which proceeded to an evidentiary hearing before the trial court. In written reasons for ruling and judgment, the trial court granted the motion and defined the class(es) as follows:

The Class as Defined consists of the following:

All persons who received “covered health care services” as defined by La. R.S. 22:1874(8) provided by Acadian Ambulance Service, Inc. (“Acadian[”) ]; and at the time of the covered health care services had “Health Insurance Coverage” as defined by La. R.S. 22:1874(18); and from whom Acadian attempted to recover any amount in excess of the “contracted reimbursement rate” as defined by La. R.S. 22:1874(7) and/or who paid Acadian in any manner including but not limited to liability insurance proceeds and/or from proceeds of a settlement or judgment, an amount in excess of the “contracted reimbursement rate” either directly and/or through their attorney and/or through a liability insurance carrier and/or any third party.

The class is composed of the following subclasses:

“Attempt to Recover” subclass: A subclass of persons who received covered health care services, and who had health insurance coverage, and from whom Acadian attempted to recover any amount in excess of the “contracted reimbursement rate” from October 25, 2009 through date of judgment.
Payor subclass: A subclass of persons who received covered health care services, and who had health insurance coverage, and/or who paid Acadian in any manner including but not limited to liability insurance proceeds and/or from proceeds of a settlement or judgment, an amount in excess of the “contracted reimbursement rate” either directly and/or through their attorney and/or through a liability | ..¡insurance carrier and/or any third party, from January 1, 2004 through date of judgment.

The trial court designated the plaintiffs as the class representatives.

Acadian Ambulance appeals and assigns the following as error:

1. The Trial Court erred in certifying a class which was not pled until after the certification hearing.
2. The Trial Court erred as a matter of law in finding that certification of a class was proper under La.C.C.P. art. 591(B)(1).
3. The Trial Court committed legal error in finding that plaintiffs proved that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
4. The Trial Court erred in finding plaintiffs proved commonality and typicality.
5.The Trial Court erred in certifying a class without requiring proof of class counsel’s ability to meet the requirements of La.C.C.P. art. 591(4).

Discussion

Pleadings

In its first assignment of error, Acadian Ambulance asserts that the trial court improperly shaped its class designation upon an amended petition filed by the plaintiffs after the class certification hearing. It contends that the amendment was without appropriate leave of court or written permission pursuant to La.Code Civ.P. arts. 1151 and 1154. Further, it contends that it did not receive sufficient notice of the amendment, and that the trial court’s acting upon the filing by adopting its class definitions was an abuse of the trial court’s discretion.

This assignment stems from the fact that the plaintiffs’ original petition alleged that Acadian Ambulance had refused to submit its charges to the patients’ |4health care provider. However, the evidence developed at the certification hearing indicated that, with regard to Ms. Desselle, Acadian Ambulance initially demanded payment from her, before ultimately receiving payment from her health care insurer. Ms. Desselle’s claim was differentiated from that of her son and that of Mr. Dupuy in this way. Plaintiffs’ counsel argued to the court that this ultimate payment of the claim by the insurer did not remove Ms. Desselle from consideration as a class representative insofar as Acadian Ambulance’s initial attempt to recover from Ms. Desselle entitled her to maintain a cause of action only for violation of La. R.S. 22:1874 rather than from payment of a thing not due as well.

After this evidence was presented, the trial court explained that: “I will allow plaintiffs thirty days to amend their pleadings to note that regarding Ms. Desselle. I think she is proper through [sic] under those guidelines.” Thereafter, discussion ensued between the parties’ counsel and the trial court involving the ultimate class definitions as shaped by the evidence developed at trial. In light of the specific permission granted by the trial court to amend the pleadings and the defense’s ability to respond to the anticipated amendment while still at the contradictory hearing, we find no abuse of the trial court’s discretion in accepting 15the supplemental petition or in incorporating its proposed language into its own class definitions.

This assignment lacks merit.

Class Action Requirements

Acadian Ambulance next turns to the trial court’s substantive determination that class certification was appropriate and asserts arguments on various components of La.Code Civ.P. art. 591.

Article 591, which sets forth the prerequisites for obtaining class action status, reflects the purpose of class action suits. As explained in Dupree v. Lafayette Ins. Co., 09-2602, p. 6 (La.11/30/10), 51 So.3d 673, 679, the class action mechanism enables representatives with typical claims “to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court.”

Paragraph (A) establishes five initial requirements for certification, providing:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

|fiIn its determination of whether a party has met the prerequisites for obtaining class certification, a trial court must conduct what has been described as a rigorous analysis. Brooks v. Union Pac. R.R. Co., 08-2035 (La.5/22/09), 13 So.3d 546. In doing so, a trial court evaluates, quantifies, and weighs the factors in determining to what extent the class action would effectuate substantive law, judicial efficiency, and individual fairness. Id. This analysis requires the trial court to actively inquire into every aspect of the case. Id. The trial court must not hesitate to require a showing beyond the pleadings. Id. In fact, a party seeking certification must be prepared to prove that, in fact, the prerequisites are present. Price v. Roy O. Martin, 11-853 (La.12/6/11), 79 So.3d 960 (quoting Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 181 S.Ct. 2541, 180 L.Ed.2d 374 (2011)). The trial court’s analysis may frequently overlap with the merits of the substantive claim. Id.

In written reasons for ruling, the trial court concluded that the plaintiffs established the above factors of Paragraph (A). Acadian Ambulance contests the | /indings regarding the commonality requirement of Paragraph (A)(2) and the typicality requirement of Paragraph (A)(3). It also contests the adequacy of representation as required by Paragraph (A)(4).

Acadian Ambulance further questions the trial court’s determination that certification was appropriate under La.Code Civ.P. art. 591(B)(1) and (3). This portion of Article 591 requires consideration of additional factors once the prerequisites of Paragraph A have been met.

Paragraph (B) indicates that:

An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
|⅝(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

On review of the class certification, we are mindful that an appellate court considers the trial court’s factual findings under the manifest error standard of review, and the trial court’s ultimate decision as to whether to certify a class under the abuse of discretion standard. Price, 79 So.3d 967-68. Additionally, the appellate court considers de novo whether the trial court applied the correct legal standard. Id. We turn to consideration of the specific assignments of error.

La.Code Civ. P. art. 591(A)

Commonality

With regard to the prerequisites, Acadian Ambulance contends that the trial court erred in finding that “[tjhere are questions of law or fact common to the class.” See La.Code Civ.P. art. 591(A)(2). While the trial court cited the common issue of whether Acadian Ambulance’s complained-of billing policy constituted a statutory violation, Acadian Ambulance contends that its implementation of the policy and each plaintiffs response to that policy will be a unique and inseparable part of the claim.

Certainly the existence of common questions, alone, will not satisfy the commonality requirement. Price, 79 So.3d 969. Rather, the commonality element requires a demonstration that “the class members’ claims depend on a common contention, and that common contention must be one capable of class-wide resolution-one where the ‘determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ ” Id. at 969 (quoting Wal-Mart Stores, — U.S. -, 131 S.Ct. 2541).

| ¡¡The evidence presented at the hearing reveals no manifest error in the trial court’s factual finding as to this prerequisite. The record demonstrates that this matter is fairly straightforward in a factual sense considering the potentially large numbers of plaintiffs. Each of the plaintiffs will have been injured and will have received services of the defendant. Each will be covered by a health insurance policy issued by a health insurance provider with whom Acadian Ambulance was a contracted health care provider. In each instance, Acadian Ambulance will have determined that a third party was at fault in the accident and, pursuant to its internal policy, Acadian Ambulance will have, at least, pursued payment through the plaintiff or his or her attorney at a rate exceeding the contracted reimbursement rate with the health insurer. To the extent that the plaintiffs responded to Acadian Ambulance’s demand differently, and hence facts exist outside the common nucleus of operative facts, this differentiation is largely reflected in the subclasses identified by the trial court. Further, each claim shares a common issue that is central to the validity of each claim, i.e., whether Acadian Ambulance’s policy violated La.R.S. 22:1871, et seq.

This assignment lacks merit.

Typicality

Acadian Ambulance also questions the trial court’s determination under La. Code Civ.P. art. 591(A)(3) that “[t]he claims or defenses of the representative parties are typical of the claims or defenses of the class.” It has been noted that this element is satisfied if the class representative claims arise out of the same event, practice, or course of conduct giving rise to the claims of the other class members and those claims arise from the same legal theory. Lejeune v. Gioe, 08-1452 (La.App. 4 ir. 9/30/09), 21 So.3d 1042, writ denied, 09-2363 (La.1/8/10), 24 So.3d 875.

Acadian Ambulance representative, Debra Martin, was questioned at the certification hearing regarding the defendant’s policy of billing for cases in which it was determined that a third party was at fault. It is clear that the application of this policy, and the propriety of this policy, gives rise to the cause of action advanced by both the class representatives and the potential members of the class. While Acadian Ambulance asserts that this testimony was insufficient to satisfy this prerequisite, we find no merit in this argument. Rather, the straightforward and succinct nature of the questioning and testimony in this regard revealed the consistency of the application of the policy. Accordingly, we find no manifest error in the trial court’s finding with regard to this element.

Adequate Representation

In its final argument under La. Code Civ.P. art. 591(A), Acadian Ambulance contests the trial court’s determination that the proposed class certification offered adequacy of class representation. See La.Code Civ.P. art. 591(A)(4) (which requires proof that “[t]he representative parties will fairly and adequately protect the interests of the class”).

In Mathews v. Hixson Bros., Inc., 02-124, p. 12 (La.App. 3 Cir. 7/31/02), 831 So.2d 995, 1003, writ denied, 02-2286 (La.12/13/02), 831 So.2d 984, a panel of this court explained that the test generally applied in considering the adequacy of representation element requires: “(1) the absence of conflicting or antagonistic claims between the representatives and the other class members; (2) the representatives’ sufficient interest in the outcome to insure vigorous advocacy; and (3) competent, experienced, and qualified counsel.” Acadian Ambulance does not address the trial court’s finding regarding the qualifications and interest of the Inrepresentatives. Instead, Acadian Ambulance points to an absence of evidence regarding the qualifications of counsel.

Reference to the trial court’s reasons for ruling indicate a focus on the qualifications of the class representatives. The trial court did not address the qualifications of the class counsel. Simply, the trial court designated the plaintiffs’ attorneys appearing before the court as class counsel. Other than the apparent representation of their clients before the court, no evidence was produced regarding their qualifications. While we are not unmindful of the lack of positive evidence regarding class counsel, we ultimately find no manifest error in the trial court’s determination that the plaintiffs proved adequacy of representation under Article 591(A)(4) or in the designation of class counsel. Instead, the evidence regarding the qualifications and interest of the representatives was strong and the surrounding circumstances of the attorney’s representation supported a determination that counsel was competent to represent the class.

This assignment lacks merit.

La.Code Civ. P. art. 591(B)

As explained above, after the trial court found that the prerequisites of Article 591(A) were met, it turned to consideration of the factors set forth in Paragraph (B). Considering the nature of the case, the trial court determined that the matter was maintainable as a class action under both Paragraph (B)(1) and Paragraph (B)(3). Acadian Ambulance questions both of those conclusions.

Paragraph (B)(1)

The trial court’s 'written reasons made brief reference to La.Code Civ.P. art. 591(B)(1), which provides that an action may be maintained as a class action if, in addition to the prerequisites: “The prosecution of separate actions by or against individual members of the class would create a risk of: (a) Inconsistent or varying | ^adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class[.]” In commenting on this provision, the trial court briefly remarked that “[v]arying rulings on whether or not Acadian’s policy/procedure violates the Billing Act would establish incompatible standards of conduct for Aca-dian.” However, Acadian Ambulance correctly notes that the supreme court has remarked that Paragraph (B)(1)(a) is generally inappropriate for cases involving individualized money claims. See Dupree, 51 So.Bd at 681, n. 6. The limited jurisprudential guidance as to Paragraph (B)(1)(a) does, in fact, appear to be geared toward non-monetary claims rather than the type of damages case involved here. Thus, we turn to consideration of Paragraph (B)(3), where this claim is more appropriately analyzed.

Paragraph (B)(3)

This provision, more fully discussed by the trial court, indicates that an action may be maintained as a class action if:

The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
113(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation[.]

Acadian Ambulance contends that the plaintiffs failed to prove that “questions of law or fact common to the members of the class predominate over any questions affecting individual members” and, thus, the class action cannot be maintained under Paragraph (B)(3). It asserts that this argument constitutes the most compelling reason to deny certification.

With regard to Paragraph(B)(3), the trial court explained that:

There is little proof on liability or causation necessary in this case that is individual to each claimant. Plaintiffs’ claims do not require highly individualized inquiries to the cause of the damages. The alleged damages were caused by Acadian acting pursuant to its policy and procedure. The eventual question for the trier of fact is whether or not Acadian’s actions violated the Billing Act. This class will not degenerate into individual trials. In this case, once the trier of fact determines that Acadian’s actions pursuant to its policy/procedure does or does not violate the Billing Act, liability and causation for all class members is decided.

The record supports this appreciation of the respective weights of the issues. This is not a case involving multiple causative elements for the alleged liability and resulting damages. Instead, the case fundamentally revolves around the interplay of Acadian Ambulance’s billing policy with La.R.S. 22:1871, et seq. If the court eventually resolves this single, paramount, issue in favor of the plaintiffs, the remaining issues individual to the class members are seemingly ones of accounting insofar as they relate to calculation of damages. According to the Acadian Ambulance representative, the pertinent billing records can be retrieved from the defendant’s system. There is no indication that consideration of this type of issue, | ^particular to the plaintiffs, would require individual trials or be unduly burdensome.

For these reasons, we leave the trial court’s finding regarding certification under La.Code Civ.P. art. 591(B)(3) undisturbed. This assignment lacks merit.

DECREE

The judgment of the trial court is affirmed. All costs of this proceeding are assessed to the appellant, Acadian Ambulance Service, Inc.

AFFIRMED.

      . The plaintiffs also alleged a cause of action for breach of contract. However, the plaintiffs ultimately stipulated that they were not pursuing that cause of action.

      . The record indicates that the trial court denied Acadian Ambulance's exceptions of lis pendens and its exceptions of no right of action and no cause of action with regard to claims under La.R.S. 22:1871, et seq. The trial court continued certain other exceptions until further discovery was completed.

      . In a companion case, Acadian Ambulance also appeals a subsequently rendered preliminary injunction which prohibited Acadian Ambulance from collecting, or attempting to collect, an amount in excess of the contracted-for reimbursement rate. See Keisha Desselle, et al. v. Acadian Ambulance Service, Inc., 11-1017 (La.App. 3 Cir.2/1/12), 83 So.3d 1253.

      . The original petition sought to define the class as follows:
      All individuals currently residing in the State of Louisiana who during the relevant time period as defined below:
      (1) Received medical care, medical treatment, and/or medical services by Acadian Ambulance Service; and
      (2) At the time of this medical care, medical treatment and/or medical services were insured by a policy of health and medical insurance issued by any health insurance company; and
      (3) Which policy of insurance Acadian Ambulance Service either refused to accept and/or refused to submit bills and invoices thereunder to the health insurance company.

      . This theory of recovery is reflected in the definition of the "Attempt to Recover” subclass.

      . The trial court explained that:
      The Motion to Certify Class is granted for the following particulars:
      1. NUMEROSITY
      Generally, a class action is appropriate whenever interested parties appear to [be] so numerous that separate suits would unduly burden the courts, and a class action would clearly be more useful and judicially expedient than the other available procedures. Cotton v. Gaylord, 96-1958 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 768, writ denied, 97-0800 (La.4/8/97), 693 So.2d 147. At the hearing in the instant matter, Debra Martin, the Acadian corporate representative, testified that there w[ere] at least 500 people in the past year who were insured, received covered health care services, yet Acadian attempted to collect more than the contractual reimbursement rate. If this class was not certified, the filing of 500 individual cases would unduly burden the courts.
      2. COMMONALITY
      The test for commonality is not a demanding one, and requires only that there be at least one issue, the resolution of which will affect all or a significant number of the putative class members. Duhe v. Texaco, Inc., 1999-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, writ denied, 2001-0637 (La.4/27/01), 791 So.2d 637. Here, the determination of whether or not the actions pursuant to Acadian’s policy and/or procedure violate La. R.S. 22:1874 et seq. (The "Billing Act”) will affect the entire putative class. The Court's decision on whether or not the actions pursuant to Aca-dian’s policy and/or procedure violate La. R.S. 22:1874 et seq will be res judicata on other suits based on Acadian's alleged violations of the Billing Act.
      3. TYPICALITY
      The element of typicality requires that the claims of the class representatives be a cross-section of, or typical of, the claims of all members. Andrey [Andry] v. Murphy Oil, USA, Inc., 97-0793 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, writ denied, 98-1178 (La.6/9/98), 720 So.2d 1214. The Acadian witness, Debra Martin, specifically testified at the hearing that Acadian’s handling of the Desselle bill for services and the Dupuy bill for services was typical of the procedure employed by Acadian with regard to liability accidents.
      4. ADEQUACY OF REPRESENTATION
      The commitment of Keisha Desselle and Terry Dupuy to make sure that this litigation is brought to a conclusion was evident at the hearing. These class representatives have a significant stake in the litigation to ensure conscientious participation in the litigation. These class representatives specifically testified that they wanted resolution to this matter to ensure that Acadian does not continue to do things that the class representatives believe are unlawful.
      5. DEFINEABILITY
      At the hearing in the instant matter, Debra Martin, the Acadian corporate representative, testified that Acadian could perform searches in its database to see who was insured and to see who Acadian had labeled as having liability as the responsible party. Acadian’s admission to having these search capabilities makes the class easy to define.

      . The Acadian Ambulance representative testified that the patients billed pursuant to the subject policy has exceeded five hundred per year since January 2000.

      . The reasons for ruling erroneously refer to Article 591(B)(1)(b) rather than Article 591(B)(1)(a). The substance of the trial court’s statement clear addresses Subpara-graph (a) however.


text:
    Keisha DESSELLE, et al. v. ACADIAN AMBULANCE SERVICE, INC.
    No. 11-1017.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Scott R. Bickford, Lawrence J. Centola, III, Martzell & Bickford, New Orleans, LA, Donald W. McKnight, Claude P. De-vall, J. Lee Hoffoss, Jr., Newman, Hoffoss & Devall, Lake Charles, LA, Derrick G. Earles, Marksville, LA, for Plaintiff/Appel-lee, Keisha Desselle, et al.
    James P. Dore, Alan J. Berteau, Kean, Miller, Baton Rouge, LA, Rodney M. Ra-balais, Rabalais & Roy, Marksville, LA, for Defendant/Appellant, Acadian Ambulance Service, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

hThe defendant health care provider contests the granting of a preliminary injunction prohibiting it from collecting, or attempting to collect, an amount in excess of the reimbursement rate contracted with certain health insurance providers pending litigation of a related class action certification. The defendant asserts that the trial court lacked subject matter jurisdiction to enter the preliminary injunction in light of the pending appeal and, also, that no evidence was presented indicating that the judgment under review presented irreparable harm. For the following reasons, we reverse and vacate the judgment entering the preliminary injunction. We render judgment denying the preliminary injunction.

Factual and Procedural Background

The plaintiffs, Keisha Desselle and Terry Dupuy, filed the underlying matter against Acadian Ambulance Services, Inc. (Acadian Ambulance), asserting that Aca-dian Ambulance impermissibly pursued recovery of its full rate for services rendered to the plaintiffs and those situated similarly. The plaintiffs asserted that this practice violated La.R.S. 22:1871, et seq. (the Health Care Consumer Billing and Disclosure Protection Act), insofar as they were insured by health insurance policies issued by an insurer with whom Acadian Ambulance had contracted to provide medical services. In addition to the alleged statutory violation, the plaintiffs contended that Acadian Ambulance’s policy resulted in payment of sums not due. The trial court granted the plaintiffs’ motion to certify class action on April 7, 2011 and named the plaintiffs as class representatives. Thereafter, Acadian Ambulance appealed the trial court’s granting of the motion for class | {■certification. The trial court entered the order of appeal on April 12, 2011. The suspensive appeal bond was filed into the record on April 14, 2011.

The question involved in this present appeal subsequently arose when, on April 25, 2011, the plaintiffs filed a motion for preliminary injunction seeking an order enjoining Acadian Ambulance “from engaging in the practice of refusing to accept a patient’s health insurance when a patient has been involved in a liability accident” during the pendency of the litigation. Acadian Ambulance challenged the plaintiffs’ motion and asserted that the trial court lacked subject matter jurisdiction given the pending suspensive appeal. On June 3, 2011, the trial court granted the motion for preliminary injunction, ordering that:

judgment be rendered herein in favor of Plaintiffs, Keisha Desselle and Terry Dupuy, enjoining defendant, Acadian Ambulance Service, Inc., its employees, assigns, representatives, or agents (“Acadian”) during the pendency of this litigation from attempting to collect a health insurance liability or any amount in excess of the contracted reimbursement rate for covered health services by placing privileges/liens pursuant to LSA — R.S. 9:4752 on patients who, at the time of their treatment with Acadi-an, are insured by a policy of health and medical insurance issued by a “health insurance issuer”, as defined by LSA— R.S. 22:1872, with which Acadian is a contracted health care provider pursuant to LSA-R.S. 22:1872, their attorneys, tortfeasors, or liability insurance companies, during the pendency of this litigation, subject to the setting of security and posting thereof by Plaintiffs, as set forth in Louisiana Code of Civil Procedure article 3610.

IsAcadian Ambulance filed a devolutive appeal following the entry of the preliminary injunction. It asserts that the trial court lacked subject matter jurisdiction to order the preliminary injunction in light of the pending suspensive appeal of the class action certification. Acadian Ambulance further asserts that preliminary injunction was erroneously entered as the plaintiffs failed to sustain their burden of proof under La.Code Civ.P. art. 3601.

Discussion

We first address Acadian Ambulance’s contention that the plaintiffs failed to sustain their burden of proving entitlement to the preliminary injunction pursuant to La. Code Civ.P. art. 3601. In describing the grounds for issuance of a preliminary injunction, Article 3601(A) provides that: “[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law[.]”

On review, we are mindful that a trial court’s judgment on a request for preliminary injunction will not be reversed absent an abuse of discretion. Derouen’s Heavy Equip., Inc. v. Lafayette City-Parish Consol. Gov’t, 08-1077 (La.App. 3 Cir. 3/4/09), 7 So.3d 48. However, having reviewed the record(s) of |4these proceedings, we conclude that the trial court abused its discretion in granting the motion for preliminary injunction.

Referencing La.Code CivJP. art. 3601, the supreme court has explained that injunctive relief is designed “to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant.” Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Auth., 04-0211 (La.3/18/04), 867 So.2d 651, 655. While an action for an injunction is pending, the trial court may issue a temporary restraining order, a preliminary injunction, or both. Id. A preliminary injunction may be issued in order to preserve the status quo until trial on the merits of the permanent injunction. Id. The preliminary injunction may issue upon a prima facie showing that the plaintiff is entitled to relief. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22. However, the trial court may issue a permanent injunction only after a full trial on the merits, at which the party seeking the permanent injunction must demonstrate entitlement to the injunction by a preponderance of the evidence. Broadmoor, 867 So.2d 651. “Notably, parties may agree to consolidate trial on the merits of a permanent injunction with the judgment issuing a preliminary injunction.” Mary Moe, 875 So.2d at 29. Despite the substantive effect of the preliminary injunction and its change in the status quo, this is not a case in which the parties agreed to consolidate trial of the merits with the judgment issuing the preliminary injunction.

We first conclude that this case runs afoul of La.Code Civ.P. art. 3601 insofar as the plaintiffs did not demonstrate that “irreparable injury, loss, or damage may otherwise result to the applicant[.T (Emphasis added.) The evidence submitted regarding the history of this claim indicates that the plaintiffs, Ms. ftPesselle and Mr. Dupuy, have already been subjected to the complained-of billing procedure. The trial court observed that they seemingly pursued the preliminary injunction in their own right, not as representatives of a prospective class. Thus, pursuit of the plaintiffs’ own claim for injunctive relief can only be viewed as unproven or, alternatively, moot. We note, too, that any alleged injury, loss, or damage is monetary is nature. It is unclear how the anticipated injury, loss, or damage is irreparable insofar as the plaintiffs’ suit is one for monetary damages.

Further, to the extent it could be argued that the plaintiffs were pursuing the injunction in favor of a larger group of prospective Acadian Ambulance customers, the limits of the trial court’s subject matter jurisdiction to enter the injunction comes into question. Recall that the sus-pensive appeal of the certification of the class was entered prior to the application for, and related proceedings on, the preliminary injunction. See La.Code Civ.P. art. 2088. Notwithstanding this | (¡observation, however, it is apparent that the plaintiffs failed to demonstrate irreparable injury, loss, or damage to any prospective plaintiff.

Further, we reject the plaintiffs’ assertion that they were not required to demonstrate irreparable injury, harm, or loss insofar as they have availed themselves of an exception to the requirement of irreparable harm. For this proposition, the plaintiffs cite Thibodeaux v. Conoco Phillips Co., 06-1282 (La.App. 3 Cir. 3/7/07), 952 So.2d 912, writ denied, 07-0725 (La.6/29/07), 959 So.2d 518, wherein a panel of this court noted that a showing of irreparable harm is unnecessary in situations where the injunction enjoins actions clearly contrary to expressed law. The plaintiffs assert that the evidence developed at the class certification hearing regarding the complained-of billing practice elearly demonstrates a violation of La.R.S. 22:1871, et seq.

The supreme court has, in fact, acknowledged that a showing of irreparable injury is not necessary in the event that the conduct at issue constitutes a direct violation of a prohibitory law or a constitutional right. Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597 (wherein the supreme court considered the exception in the context of a preliminary injunction issued against public entities). Here, the alleged violation of La.R.S. 22:1871, et seq., and in particular La.R.S. 22:1874, is the central issue of the case on the merits. Despite their allegation as such, the plaintiffs have not shown that Acadian Ambulance’s billing procedure is a clear violation of La.R.S. 22:1874. We point out that the statute includes consideration of, among other things, contractual matters between the concerned entities. The plaintiffs have not resolved that type of issue through the evidence submitted. Although the plaintiffs argue that a statutory violation is apparent in light of testimony and evidence developed at the class certification hearing, pursuit of the resolution of that question of law constitutes an attempted end-run to the ultimate question at issue. The question would be resolved, and the status quo upended, without further proceedings on the merits as later developed.

We conclude that, in light of issues regarding the requisite burden of proof, the trial court abused its discretion in entering the preliminary injunction. Accordingly, we vacate the order granting the motion for preliminary judgment.

DECREE

For the foregoing reasons, the June 3, 2011 judgment entering the preliminary injunction is reversed and vacated. The plaintiffs’ motion for preliminary injunction is denied. Costs of this proceeding are assessed to the appellees, Keisha Desselle and Terry Dupuy.

JUDGMENT GRANTING PRELIMINARY INJUNCTION REVERSED AND VACATED. JUDGMENT DENYING THE PRELIMINARY INJUNCTION RENDERED.

      . In a companion case, we address Acadian Ambulance's appeal of the class action certification. See Keisha Desselle, et al. v. Acadian Ambulance Service, Inc., 11-742 (La.App. 3 Cir.2/1/12), 83 So.3d 1243.

      .In separate written reasons, the trial court explained:
      After reviewing the law and memoranda of the parties, the Court finds that it has not divested its jurisdiction over the present matter since the only matter on appeal with the Third Circuit Court of Appeal is class certification. Also, the Court notes that the motion was filed by Keisha Desselle and Terry Dupuy in their individual capacities, not as representatives of a class. Therefore, the Court denies Acadian’s exception of lack of subject matter jurisdiction.
      As for the instant motion, the Court finds in favor of plaintiffs, Keisha Desselle and Terry Dupuy, and grants their Motion for Preliminary Injunction as prayed for. Therefore, Acadian Ambulance Service, Inc., its employees, assigns, representatives, or agents (“Acadian") are enjoined during the pendency of this litigation from attempting to collect a health insurance liability or any amount in excess of the contracted reimbursement rate for covered health services by placing privileges/liens pursuant to La. R.S. 9:4752 on patients who, at the time of their treatment with Acadian, are insured by a policy of health and medical insurance issued by a "health insurance issuer", as defined by La. R.S. 22:1872, with which Acadian is a contracted health care provider pursuant to La.R.S. 22:1872, their attorneys, tortfeasors, or liability insurance companies, during the pendency of this litigation.

      . La.Code Civ.P. art. 2088 provides, in part, that:
      A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal[.]

      . We note here that La.Code Civ.P. art. 3601(D) provides that "[ejxcept as otherwise provided by law, an application for injunctive relief shall be by petition." The plaintiffs pursued the preliminary injunction via a motion filed within the existing suit rather than by petition.

      . The class definitions, below, were inclusive of those to whom the complained-of policy was applied or to whom the policy would be applied "through date of judgment." In defining the classes, the trial court explained:
      The Class as Defined consists of the following:
      All persons who received "covered health care services” as defined by La.R.S. 22:1874(8) provided by Acadian Ambulance Service, Inc. ("Acadian[”) ]; and at the time of the covered health care services had "Health Insurance Coverage" as defined by La. R.S. 22:1874(18); and from whom Aca-dian attempted to recover any amount in excess of the "contracted reimbursement rate” as defined by La. R.S. 22:1874(7) and/or who paid Acadian in any manner including but not limited to liability insurance proceeds and/or from proceeds of a settlement or judgment, an amount in excess of the "contracted reimbursement rate” either directly and/or through their attorney and/or through a liability insurance carrier and/or any third party.
      The class is composed of the following subclasses:

        "Attempt to Recover" subclass: A subclass of persons who received covered health care services, and who had health insurance coverage, and from whom Acadian attempted to recover any amount in excess of the "contracted reimbursement rate" from October 25, 2009 through date of judgment.

        Payor subclass: A subclass of persons who received covered health care services, and who had health insurance coverage, and/or who paid Acadian in any manner including but not limited to liability insurance proceeds and/or from proceeds of a settlement or judgment, an amount in excess of the "contracted reimbursement rate" either directly and/or through their attorney and/or through a liability insurance carrier and/or any third party, from January 1, 2004 through date of judgment.

      . We do not further address Acadian Ambulance's contentions regarding subject matter jurisdiction in light of our findings regarding the plaintiffs' burden of proof as to La.Code Civ.P. art. 3601. However, we observe that several applications for supervisory writs have been filed with this court during the course of this litigation, including one seeking review of the trial court's denial of Acadian Ambulance's exception of lack of subject matter jurisdiction filed in response to the motion for preliminary injunction. The reviewing panel found "no error in the trial court’s ruling denying the exception of lack of subject matter jurisdiction." See Keisha Desselle v. Acadian Ambulance Service, Inc., 11-00668 (La.App. 3 Cir. 6/10/11)(an unpublished writ), writ denied, 11-1515 (La.7/18/11), 67 So.3d 475.

      . In pertinent part, La.R.S. 22:1874 provides that:
      A. (1) A contracted health care provider shall be prohibited from discount billing, dual billing, attempting to collect from, or collecting from an enrollee or insured a health insurance issuer liability or any amount in excess of the contracted reimbursement rate for covered health care services.
      (2) No contracted health care provider shall bill, attempt to collect from, or collect from an enrollee or insured any amounts other than those representing coinsurance, copayments, deductibles, noncovered or noncontracted health care services, or other amounts identified by the health insurance issuer on an explanation of benefits as an amount for which the enrollee or insured is liable.


text:
    STATE of Louisiana, Applicant v. Shelley P. COOK, Respondent.
    No. 47,187-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 2012.
    James D. Caldwell, Attorney General, Jerry L. Jones, District Attorney, Madeleine M. Slaughter, Assistant District Attorney, for Applicant.
    Ronald K. Cook, West Monroe, LA, Wade L. House, for Respondent.
    Before CARAWAY, DREW and LOLLEY, JJ.
   11 WRIT GRANTED. MADE PEREMPTORY.

In this traffic-stop situation, the defendant was placed under arrest for driving while intoxicated after the officer smelled alcohol and conducted a field sobriety test on the defendant. With arrangements underway for someone related to defendant to obtain the vehicle and prevent its im-poundment, an officer at the scene removed defendant’s purse from the vehicle and examined its contents. The purse revealed a baggie of methamphetamines, straws and a pipe.

The defendant was charged with possession of methamphetamines, a Schedule II controlled dangerous substance. Following a suppression hearing, the trial court ruled the search of the purse to be a violation of the Fourth Amendment’s protections. The state requests that we exercise our supervisory powers to reverse the adverse trial court ruling suppressing the utilization at trial of evidence seized from the defendant’s purse subsequent to her arrest for D.W.I., La. R.S. 14:98.

|2Though a number of ancillary issues could be discussed in any Fourth Amendment analysis of these facts, only one exception to the warrant requirement is necessary here for us to validate the search and seizure and to reverse the ruling of the trial court.

Under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), if an occupant of a vehicle is arrested the current doctrine of Search Incident to Arrest allows only two ways in which the passenger compartment (and any containers therein) may be searched, as a contemporaneous incident of the arrest.

The first exception (an unshackled ar-restee, still near the car) is inapplicable to the current facts.

The second exception allows law enforcement to search the passenger compartment incident to arrest, together with any containers located therein, if there is a reasonable belief (reasonable suspicion) that evidence of the crime of arrest is in the car. Of any genre of crime, the one most likely to fit this criteria would be the arrest of an impaired operator. The observed impairment of the driver in this case, while clearly involving alcohol, raises the considerable possibility for the involvement of other drugs used by the defendant. It is therefore reasonable to believe that evidence of the crime of arrest (beer bottles, pills, other drugs) would be located in the vehicle being unlawfully operated by the arrestee and in her purse.

Accordingly, we vacate the trial court’s suppression of the evidence seized from the defendant’s purse and remand for further proceedings consistent with this ruling.

REVERSED AND REMANDED.

      . Other arguable exceptions to the warrant requirement:
      • a probable cause search of the entire vehicle, or
      • an inventory of the vehicle and its containers, or
      • consent.


author: JAMES W. KITCHENS, Justice.

text:
    In re Petition of Attorney James N. RANDALL, Jr. for Reinstatement to the Practice of Law.
    No. 2010-BR-00241-SCT.
    Supreme Court of Mississippi.
    Oct. 12, 2010.
   ORDER

JAMES W. KITCHENS, Justice.

¶ 1. This matter came before the Court, en banc, on the Petition for Reinstatement to the Practice of Law filed by Attorney James N. Randall, Jr. On October 17, 2005, by order of this Court, Randall was voluntarily transferred to disability inactive status. We are satisfied that Randall has provided sufficient “supporting proof of personal capacity” as contemplated by Mississippi Rule of Discipline 25. The Mississippi Bar supports the reinstatement of Attorney James N. Randall, Jr.

¶ 2. IT IS THEREFORE ORDERED that the Petition for Reinstatement to the Practice of Law is granted and that the law license of James N. Randall, Jr., be and it is hereby reinstated, and that he shall fully comply with the recommendations made by the Mississippi Bar.

¶ 3. SO ORDERED, this the 12th day of October, 2010.


text:
    THE MISSISSIPPI BAR v. Connie M. EASTERLY.
    No. 2010-BD-01006-SCT.
    Supreme Court of Mississippi.
    Nov. 16, 2010.
   ORDER

JAMES W. KITCHENS, Justice.

¶ 1. This matter came before the Court on the Joint Motion to Place an Attorney on Disability Inactive Status. The Court finds that Connie M. Easterly is not capable of practicing law at present, and that she voluntarily has agreed to transfer to disability inactive status pursuant to Rules 17-24 of the Mississippi Rules of Discipline.

¶ 2. IT IS THEREFORE ORDERED that the Joint Motion To Place Attorney on Disability Inactive Status is granted and that the Mississippi license of Connie M. Easterly to practice law is hereby transferred to disability inactive status pursuant to Rules 17-24 of the Mississippi Rules of Discipline.

¶ 3. IT IS FURTHER ORDERED that Connie M. Easterly is not permitted to practice law while on Disability Inactive Status as set forth in Rule 24 of the Mississippi Rules of Discipline.

SO ORDERED.