author: ROLAND L. BELSOME, Judge.

text:
    Jason NAVARRE v. KOSTMAYER CONSTRUCTION COMPANY, INC.
    No. 2010-CA-0490.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2010.

      George W. Byrne, Jr., Ungar & Byrne, New Orleans, LA, for Plaintiff/Appellant.
    Ronald A. Johnson, Allan C. Crane, Johnson Johnson Barrios & Yacoubian, New Orleans, LA, for Defendani/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).

      . Mr. Navarre testified in his affidavit:
      My work assignment location each day was the Kostmayer barge to which I was assigned. This barge would be transported from job site to job site as its assignments were completed. I and the rest of the crew, who were also regularly assigned to this same barge, would follow the barge to each of its job site locations.

   ROLAND L. BELSOME, Judge.

| ¶ Plaintiff-Appellant appeals the trial court’s grant of motion for summary judgment in favor of Defendant-Appellee. We find that Appellant is entitled to a trial on the merits regarding his Jones Act claim and reverse.

FACTS AND PROCEDURAL HISTORY

Plaintiff-Appellant, Jason Navarre, filed suit against Appellee, Kostmayer Construction Company, Inc. (“Kostmayer”), for injuries sustained on December 4, 2007, as a result of the alleged negligent operation of a crane spud barge, ORBR1. Mr. Navarre was employed hourly as a welder by Appellee. Mr. Navarre’s injury, a broken ankle, occurred while he was in a basket suspended from a crane, cutting pilings that were holding the barge in place. At the time of the accident, the barge was in the Mississippi River at Point-a-la-Hache. Appellee filed a Motion for Summary Judgment, arguing that Mr. Navarre was a land-based employee (a longshoreman) and did not satisfy the standards and criteria of a Jones Act seaman.

Mr. Navarre filed suit asserting his Jones Act claim on July 2, 2008. On December 3, 2009, the trial court granted Appellee’s motion for summary judgment. This appeal followed.

IiSTANDARD OF REVIEW

This Court reviews a court’s disposition of a motion for summary judgment de novo, applying the same standards as the trial court. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991).

DISCUSSION

Appellant assigns as error the trial court’s grant of Appellee’s motion for summary judgment and the trial court’s finding that Mr. Navarre failed to satisfy the requirements of a Jones Act seaman.

Appellee submits that the trial court was correct, noting that Mr. Navarre would receive a call from a supervisor advising a location of a new job, and would then drive to the job site, perform the welding repair, either on land, docks, or spud barges that were fixed in place. If the barge needed to be moved, a tug would be used to relocate the barge. As the tug moved the barge, Appellee argues, Mr. Navarre and the other workers would exit the barge and travel to the next job site in their own vehicles. Appellee maintains that Mr. Navarre never ate any meals nor stayed overnight on any vessel, but returned home when his shift was complete at the end of each day. Furthermore, Appellee argues that when Mr. Navarre was aboard the barges, they were used as stationary work platforms for maritime harbor work operations such as driving buoy pilings and dock construction and repair; that the barges were equipped with a crane, had no living quarters and no galley, and that the barge was unmanned.

Appellee concedes, however, that Mr. Navarre was on a moving barge when it was moved short distances at a jobsite. Appellee further concedes that as part of Mr. Navarre’s employment with Kostmayer, he rode in outboard motor boats that were used to transport the crew to and from the shore to the offshore barge.

| ^Appellant argues that, in addition to remaining on the ORBR1 when it was moved at a jobsite and routinely operating the motor boat to the offshore barge, Mr. Navarre regularly “operatfed] the vibratory hammer to drive pilings, as well as the winch which was specifically used to move or reposition the barge short distances at a work site” as well as the barge’s crane occasionally. Furthermore, Appellant submits that Mr. Navarre performed repairs to the hull of the barge itself; spent 60-70% of his work day aboard the barge; and that Mr. Navarre’s duties included tying and untying mooring lines, and spud-ding and unspudding of the barge, which Appellant maintains are traditional deckhand duties.

The well-settled two-part test for determining seaman status is: 1) whether the employee’s duties contributed to the function of the vessel or accomplishment of its mission; and 2) whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature. Richard v. Mike Hooks, Inc., 2001-0145, p. 3 (La.10/16/01), 799 So.2d 462, 465 (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995)).

We find that the record evidences that Mr. Navarre’s extensive work on the ORBR1 establishes that the first prong of the Chandris test is met; accordingly, only the second prong, whether Mr. Navarre’s connection to the ORBR1 was substantial in nature and duration, is at issue. In granting Appellee’s motion for summary judgment, the trial court, in its oral reasons, indicated that it found the fact pattern in Richard v. Mike Hooks, Inc. to be analogous to the facts of this case.

|4In Richard, the Louisiana Supreme Court found that although the first prong of the Chandris test was met, a welder helper’s work in connection with the vessels was “not substantial in nature or duration,” and therefore, the employee was not a seaman under the Jones Act, even though the employee spent in excess of thirty percent of his time on the vessels. Richard, 2001-0145, p. 6-7, 799 So.2d at 466-468.

In reaching this conclusion, the Supreme Court reversed the Third Circuit’s affirmation of the trial court’s finding that Richard had established that he was a Jones Act seaman. The Third Circuit determined that Richard qualified for seaman status because he spent approximately thirty percent of his time performing tasks connected to the vessel, and because his employment relationship with Hooks, a dredging company, exposed him to the perils of the sea.

In reversing the appellate court, the Louisiana Supreme Court emphasized that the thirty percent rule was simply a guideline and not a “magic number automatically rendering an individual’s connection with a vessel substantial in duration and nature.” Richard, 2001-0145 at p. 6, 799 So.2d at 466. Specifically, the Court considered the employee’s duties and his connection to the vessel, |ficoncluding that the totality of the circumstances evidenced that Richard could not establish seaman status:

Richard’s time spent aboard Hooks’s vessels and the perils he faced must be considered along with other important facts to determine whether his connection with defendant’s vessels are substantial in nature and duration. In this particular instance, we consider an analysis of the following: all of the vessels on which plaintiff worked were dockside; he was never more than a gangplank’s distance from shore when working on the vessels; some of the vessels were partially on land while being repaired; he never slept on the vessels; he did not eat on the vessels; he did not keep watch on vessels overnight; he was not a member of Hooks’s dredge crew that performed welding on dredges in operation; he never worked on a vessel while it was performing its primary mission; he took his orders from a land-based foreman; he was only aboard small moving vessels once every month, for short durations, where he assisted in moving dredge pipe along a canal adjacent to Hooks’s yard; and his repair duties did not take him to sea. While none of these individual facts alone prohibit an employee from attaining seaman status, a consideration of them together shows that Richard was a land-based employee, not a seaman.

Richard, 2001-0145 at pp. 6-7, 799 So.2d at 466-67 (footnote omitted). With regard to cases cited by the employee in support of his position that he established seaman status, the Court acknowledged that although the cases were arguably factually similar, nevertheless, “the totality of the circumstances [in those cases were] distinguishable.” Id. at p. 7, 799 So.2d at 467.

One notable distinction between Richard and the instant case is that the plaintiffs Jones Act claim in Richard was resolved by trial on the merits, and was not disposed of on a motion for summary judgment. Bell v. Dunn, 2004-2117, p. 13 (La.App. 4 Cir. 12/21/05), 924 So.2d 224, 234. The trial court in Richard originally denied the defendant’s motion for summary judgment, concluding that a jury could reasonably find that the plaintiff had established seaman status. Id.

| (¡Furthermore, the record evidences numerous differences between the employee’s connection to the vessel in Richard and Mr. Navarre’s work with the ORBR1. For example, the employee in Richard was assigned to the defendant’s dockside yard, whereas Mr. Navarre traveled each day to the particular job site of the barge to which he was assigned. Unlike the employee in Richard, Mr. Navarre was assigned to the ORBR1 continuously for approximately six months preceding the accident, and spent sixty to seventy percent of his time performing work operations aboard the ORBR1. “The vessels that Richard worked aboard were dockside, he was never more than a gangplank’s distance from shore while working, and some of the vessels being repaired were actually on land.” Richard, 2001-0145 at p. 2, 799 So.2d at 464 (emphasis added). Conversely, the ORBR1 was not always dockside; sometimes the vessel was only accessible to the crew by outboard motor boat. Additionally, as Appel-lee concedes, Mr. Navarre also |7testified that he remained and worked on the ORBR1 while it was being moved on the water during the work day.

Furthermore, the employee in Richard “was not hired as part of the dredging crew that performed repairs on vessels during dredging operations.” Id. As previously noted herein, Mr. Navarre was assigned continuously to the ORBR1 for approximately six months before the accident, and often performed work on the ORBR1 itself. Id. Additionally, “Richard’s only time spent on a moving vessel was once every month or so when he was required to ride in a small boat to assist in moving dredge pipe along a canal adjacent to Hooks’s yard.” Richard, 2001-0145 at p. 2, 799 So.2d at 464. Unlike Richard, Mr. Navarre testified in his affidavit that between ten and fifteen times per month, he served as the operator of the barge’s outboard motor boat used to transport the crew to the offshore barge, and that he also operated and used the motor boat as a work platform from which he performed job assignments in areas not accessible by the ORBR1. |8 Additionally, as previously noted, Mr. Navarre remained and worked on the barge while it was being moved.

The circumstances surrounding the injury itself also differed greatly. Richard sustained his injuries while he was unloading pipe from a truck on land; in contrast, Mr. Navarre was injured while suspended over the Mississippi River in a work basket that was raised and lowered by the barge’s crane. Id. Finally, the employee in Richard received instructions from a land-based foreman, but Mr. Navarre took all of his orders and assignments from Bruce Busby, who testified [ 9that he had been the ORBRl’s superintendent since early 2006. Richard, 2001-0145 at p. 6, 799 So.2d at 467. Considering the foregoing, under the totality of the circumstances in this particular case, we do not find that the fact pattern in Richard is analogous to the instant case.

Not only are the facts of this case distinguishable from those in Richard, but other jurisprudence lends support for the finding that summary judgment as to seaman status was inappropriate in this case. For example, In Re Endeavor Marine, Inc., 234 F.3d 287 (5th Cir.2000), acknowledged the Chandris Court’s “status-based standard” for determining seaman status, noting that “even a ship repairman (which is traditional longshoreman work and is one of the enumerated | inoccupations under the LHWCA) may qualify for seaman status if he has the requisite employment-related connection to the vessel.” Id. at 291 (citing Chandris, 515 U.S. at 364, 115 S.Ct. at 2172).

Endeavor Marine involved a crane operator, Kevin Baye, who was struck by a mooring line while working on the vessel FRANK L. At the time of the accident, the FRANK L was on the Mississippi River while a tug boat was pushing it alongside a cargo vessel. The district court, “faced with plaintiff whose primary duties aboard the vessel were in the nature of longshore work,” granted summary judgment in favor of the defendants, “concluding] that Baye’s connection to the FRANK L was not substantial in terms of its nature because his duties did not carry him to sea.” Endeavor Marine, 234 F.3d at 289. Thus, the district court, relying upon language from Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800, erroneously “concluded that because Baye’s duties d[id] not literally carry him to sea, he could ‘not satisfy the second prong of the Chandris test.’ ” Id.

In reversing the district court, the Fifth Circuit held that “when read in context, the ‘going to sea’ passage in Harbor Tug is a shorthand way of saying that the employee’s connection to the vessel regularly exposes him ‘to the perils of the sea.’ ” Id. at 291 (quoting Harbor Tug, 520 U.S. at 554-55, 117 S.Ct. at 1540). Thus, the language in Harbor Tug did not create a new, specific threshold for seaman status. Id. The Court found that, after considering the totality of Baye’s | nemployment-relat-ed connection to the FRANK L, Baye was a Jones Act seaman as a matter of law for three reasons: 1) Baye was permanently assigned to the FRANK L, having spent nearly all of the previous eighteen months on the vessel; 2) Baye’s primary job duties were “to operate the cranes on board a vessel whose sole purpose is to load and unload cargo vessels”; and 3) Baye was routinely exposed to the perils of the sea during the course of his employment, as “Baye’s duties d[id] place him on the brown waters of the Mississippi River.” Endeavor Marine, 234 F.3d at 292, n. 3.

Similarly, the Fifth Circuit rejected the argument that an employee who could have been assigned to other work locations besides the vessel upon which he sustained injury rendered his connection to the vessel insubstantial. Manuel v. P.A.W. Drilling & Well Service, Inc., 135 F.3d 344, 352 (5th Cir.1998). The Court noted that the “evidence established that Manuel [the employee] was assigned to and worked aboard Rig 3 the entire two months he worked for P.A.W.” and that it was “undisputed that Manuel’s duties contributed to the function of Rig 3.” Id. Therefore, the Court concluded that the employer’s argument that the employee did not have the requisite connection to a vessel based solely on 1 ^allegations that the employee could have been assigned to other work locations was “seriously flawed.” Id. Relying in part upon Chandris, the Court held:

At the time of his injury, Manuel was assigned to work aboard a vessel in navigation. The fact that Manuel was subject to reassignment by P.A.W. at some later time is of no moment. As the Supreme Court pointed out in Chandris, “[w]hen a maritime worker’s basic assignment changes, his seaman status may change as well.” Chandris, 515 U.S. at 372, 115 S.Ct. at 2191. Manuel’s basic assignment never changed; he remained assigned to Rig 3 for the entire two months leading up to his injury. Therefore, we conclude that Manuel satisfies Chandris’ two-prong test for seaman status as a matter of law.

Id. (emphasis added).

The Louisiana Supreme Court recognized that “[t]he determination of seaman status is inherently fact intensive, and each case must be decided on the facts presented therein.” Richard, 2001-0145 at p. 7, 799 So.2d at 467 (citing Chandris, 515 U.S. at 371, 115 S.Ct. at 2191, and Wilander, 498 U.S. at 356, 111 S.Ct. at 818). “The Chandris court poignantly stated that in defining the 1 ^prerequisites for Jones Act coverage, one should focus upon the essence of what it means to be a seaman rather than allowing jurisprudential ‘tests’ to obscure such a finding.” Wisner v. Professional Divers of New Orleans, 98-1755, p. 5 (La.3/2/99), 731 So.2d 200, 204. Thus, “the total circumstances of an individual’s employment must be weighed to determine whether he had a sufficient relation to the navigation of the vessels and the perils attendant thereon.” Chandris, 515 U.S. at 370, 115 S.Ct. at 2190 (quoting Wallace v. Oceaneering Int’l, 727 F.2d 427, 432 (5th Cir.1984)). We find that, considering the totality of the circumstances surrounding Mr. Navarre’s employment, his connection to the ORBR1 was substantial in both duration and nature, and that he is entitled to a trial on the merits of his Jones Act claim. Accordingly, the lower court’s grant of Appellee’s motion for summary judgment is hereby reversed.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is reversed and the matter remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Appellee’s brief does not assert that the first prong of the Chandris test is not met. The Louisiana Supreme Court has acknowledged that the first prong is extremely broad, and that " ‘all who work at sea in the service of a ship' are eligible for seaman status.” Richard, 2001-0145 at p. 3, 799 So.2d at 465 (quoting Chandris, 515 U.S. at 368, 115 S.Ct. at 2190).

      . The Chandris Court recognized that the thirty percent rule would not necessarily be applicable in every circumstance:
      A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore not a member of the vessel’s crew, regardless of what his duties are. Naturally, substantiality in this context is determined by reference to the period covered by the Jones Act plaintiff’s maritime employment, rather than by some absolute measure. Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases. As we have said, ”[t]he inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee’s precise relation to it.”

        Chandris, 515 U.S. at 371, 115 S.Ct. at 2191 (quoting McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991)) (emphasis added).

      . Spud barges are generally considered vessels for purposes of Jones Act claims. See, e.g., Manuel v. P.A.W. Drilling & Well Service, Inc., 135 F.3d 344, 347 (5th Cir.1998)(recog-nizing that "we have concluded that special purpose structures such as jack-up rigs, mobile, submersible drilling barges, derrick barges, spud barges, and others are vessels as a matter of law, even though they also served, in part, as work platforms”)(emphasis added)(citing Mouton v. Tug “Ironworker”, 811 F.2d 946 (5th Cir.1987); Guidry v. Continental Oil Co., 640 F.2d 523 (5th Cir.1981); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir.1966)). However, if a structure is utilized primarily as a work platform only, it is not generally considered to be a vessel. Manuel, 135 F.3d at 347.

      . "Richard did not work exclusively on any one project, but performed whatever work had to be done in defendant’s yard." Richard, p. 1, 799 So.2d at 464.

      . Although Appellee points to testimony in the record that the ORBR1 did not have a regularly assigned crew, Mr. Navarre testified in his affidavit that he had been assigned continuously to the ORBR1 for the six months preceding his accident, and Bruce Busby testified in his deposition that he could not recall exactly, but guessed that Mr. Navarre had worked under his direct supervision on the ORBR1 for approximately three to four months prior to the accident.

      . Mr. Navarre testified in his affidavit that between sixty and seventy percent of his time was spent performing work aboard the barge:
      Having reviewed a computer printout of each of my job assignments for Kostmayer between November, 2005 and the date of my accident [December 4, 2007], I have confirmed that more than 60-70% of my time while I was assigned to the Kostmayer barge was spent actually working on and performing work aboard the barge, including repair and maintenance to the barge itself, as opposed to working ashore or on a wharf or pier at the various job sites.

      . See infra note 12.

      . Mr. Navarre testified in his deposition that he worked on the vessel while it was moving:
      Q. And I think you answered this, but let me make sure. You never actually worked on these barges when they were being moved; you could only work when they were stationary; is that right?

        A. You can work on them as they move. I mean, if we need to transport somewhere and we were going to get there before the end of the work day, we stayed on them to do whatever we could do until we get there. But if it’s going to be like a two- or three-day transport, no, we didn't stay on them.

      . Mr. Navarre testified in his deposition regarding work that he performed offshore and work that he performed on the vessel itself:
      Q. Did you ever perform any repair work to the barge itself?
      A. Yes, sir.
      Q. What kind of repair work do you recall doing to the crane barge itself?
      A. I've gotten into holes and welded, you know, steel patches over holes in the barge. I've jumped in the water one day stuffing shingles in the cracks. You know, cracks of the barge, wooden shingles, so they would seal up and swell the barge, things like just, [sic]
      If there's a hole in it, we’ll get in there and see if we can fix it without dry docking, you know.
      Q. Is that part of your duties aboard the crane barge?
      A. Yes, sir.

      . Mr. Navarre testified in his affidavit regarding his job duties on the barge, which included regular operation of the motor boat:
      My job assignments and responsibilities aboard the Kostmayer barge entailed the operation of the barge’s equipment and machinery, including the vibratory hammer used to drive pilings, the winch used to move or reposition the barge short distances as necessary at job sites, the barge’s crane, which I operated on occasion to move tools and equipment around the barge. In addition, I regularly served as the pilot/operator of the small outboard crew boat kept aboard the barge when this vessel was needed to transport the crew to and from the barge's offshore position. This occurred on average about 10-15 times each month. I also operated and used this crew boat as a work platform from which I performed required job assignments in spaces or locations not accessible by the barge.
      My duties aboard the barge also included, as necessary, tying and untying the barge lines and spudding and unspudding the barge.
      As part of the crew of the barge, I performed regular repairs and maintenance of the barge, including its equipment. I personally repaired and ungraded the pad-eyes securing the crane to the deck of the barge and, on numerous occasions, I repaired leaks in the hull of the barge while the barge was at the job site performing its assigned mission.

      .At the time of Mr. Navarre’s accident, the ORBR1 was offshore, necessitating the use of the aforementioned motor boat that was used to transport the crew back and forth from the barge to the shore. Bruce Busby testified as follows:
      Q. Why don't you go ahead — what did you do after you got [Mr. Navarre] out of the work basket?
      A. Then we helped him across the barge, into our work boat, onto the bank and into my truck.
      Q. This work boat, can you describe that for me?
      A. About 17, 18-foot metal flatboat.
      Q. What is that used for?
      A. Sometimes getting us back and forth to the banks when we are a little bit too far to reach the banks. Sometimes we use it to work out of. Sometimes we use it just to pull the deck winch cables those short distances that we move the barge.
      Q. It has an outboard motor?
      A. Yes, sir.
      Q. And on this occasion do I gather that for this job the barge was too far out from the shore to just walk onto the barge and you used the work boat to get back and forth to the barge?
      A. Yes, sir.

      . Mr. Navarre testified in his deposition:
      Q. When Busby was the supervisor on the job, am I right that all of the — yourself, the fitters, laborers, and crane operators took their instructions from Busby?
      A. Right.
      Mr. Navarre also testified in his affidavit that he took all of his orders from superintendent Bruce Busby:
      I took my orders and got my daily job assignments from foreman/superintendent Bruce Busby who was assigned to the same barge as I was and, like I and the rest of the crew, reported to the site where the barge was assigned and located each day.

      . In addition to Richard, supra, Appellee cites to Louisiana jurisprudence in support of its argument that workers similarly situated to Appellant were not found to be Jones Act seamen. For example, Appellee argues that in Bouvier v. Krenz, 702 F.2d 89, 92 (5th Cir.1983); Romo v. Massman Constr. Co., 615 F.Supp.2d 488 (E.D.La.2009); Saienni v. Capital Marine Supply, Inc., 2005 WL 940558 at *5 (E.D.La.2005)(unpub.); and Schultz v. Louisiana Dock Co., 94 F.Supp.2d 746, 750 (E.D.La.2000), stand for the proposition that workers who had stronger connections to vessels than Mr. Navarre were still held not to be Jones Act seamen on summary judgment. We find that Appellee’s reliance on these cases is misplaced for two reasons: (1) the facts of each of these cases are distinguishable from this case; and (2) both the United States Supreme Court and the Louisiana Supreme Court have firmly established that the seaman status inquiry is extremely fact-intensive. See Chandris, supra; Richard, supra. In Bouvier, the court found that, unlike Mr. Navarre, the plaintiff "might work on as many as ten different ships” in "any given day,” and “would not necessarily complete work on one ship before starting on another,” and did not work “on any specific or identifiable group of vessels.” Bouvier, 702 F.2d at 91. Therefore, in finding that Bouvier was not a Jones Act seaman, the court concluded that "there simply was no element of permanency or sub-stantiality in Bouvier’s relationship with the vessels.” Id. In Romo, the plaintiff filed suit pursuant to the Longshoreman and Harbor Workers Compensation Act (LHWCA). Romo, 615 F.Supp.2d at 490. The court did not engage in any analysis of facts regarding whether Romo was a Jones Act seaman, but summarily found that it was "undisputed that Romo is a covered employee under the Longshoreman and Harbor Workers Compensation Act.” Id.

      Likewise, Saienni is factually distinguishable from the facts of the instant case. In finding that the plaintiff had not established seaman status, the court held:
      Regardless of whether plaintiff may be able to prove that his temporal connection to the Ingram defendants' vessels passes the 30 percent threshold, the Court finds plaintiff has failed to come forward with any specific facts demonstrating that the nature of his work was anything other than land-based repair of the Ingram defendants’ vessels. The undisputed facts in this case are (1) at the time of the alleged accidents, plaintiff was employed by the Ingram defendants as a shoreside mechanic operating out of a land-based fleeting facility and mechanic shop; (2) while performing his job duties, plaintiff’s time was split between working at the fleeting facility in Reserve and traveling by car to service vessels at other locations; (3) of the 40 percent of plaintiff’s total work time which was spent at the fleeting facility, half of that time (20 percent overall) was spent in the mechanic’s shop; (4) when plaintiff’s work duties were performed aboard vessels, the vessels were generally moored at a dock, shipyard or other stationary location; (5) while performing his work at off-site locations, when an overnight stay was required, plaintiff would spend his nights at motels and plaintiff could only recall one occasion when he slept on one of the vessels; (6) while aboard the vessels, plaintiff did not serve as a deckhand, pilot or captain because the vessels had their own crews; (7) in plaintiff’s capacity as a shoreside mechanic, plaintiff reported directly to a shore-based port engineer; and (8) plaintiff performed repairs aboard a vessel while it was underway only four times a year.

        Saienni, supra, at *11. Finally, in Schultz, unlike Mr. Navarre’s duties, "Plaintiff's duties were limited to inspecting and repairing barges moored at the facility.” Schultz, 94 F.Supp.2d at 750.

      . “For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee's duties take him to sea.” Harbor Tug, 520 U.S. at 555, 117 S.Ct. at 1540.

      . Notably, the Court in Richard "agree[ed with the Endeavor Marine Court] that the Harbor Tug [C]ourt did not intend to make a hard and fast rule that those individuals who do not ‘go to sea’ can never be classified as seamen.” Richard, 2001-0145 at p. 7, 799 So.2d at 467, n. 2.

      . One author noted that "[i]n its post-[McDermott Intern., Inc. v.] Wilander seaman status cases, the Court has consistently used the phrase 'perils of the sea’ as a term of art to embrace both perils of the open ocean and vessel-movement dangers.” David W. Robertson, The Supreme Court's Approach to Determining Seaman Status: Discerning the Law Amid Loose Language and Catchphrases, 34 J. Mar. L. & Com. 547, 570 (2003). In support, the author referenced the following:

        Papai, 520 U.S. at 558, 117 S.Ct. 1535, 137 L.Ed.2d 800, 1997 AMC at 1824-25 (referring to the work of a deckhand on a harbor craft as "seagoing activity” and stating that such work subjects the worker to the "perils of the sea”); Chandris, 515 U.S. at 368, 115 S.Ct. 2172, 132 L.Ed.2d 314, 1995 AMC at 1856 (associating "perils of the sea” with employment on "a vessel in navigation”); id. at 380, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314, 1995 AMC at 1866 (Stevens, J., dissenting, stating that "workers who labor on ships close to shore may face sufficient exposure to the perils of the sea to merit seaman status”); id. at 383, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314, 1995 AMC at 1868 (Stevens, J., dissenting, distinguishing between "perils of the sea” and "risks faced by maritime workers when a ship is moored to a dock”). Cf. In re Endeavor Marine Inc., 234 F.3d 287, 291-292 & n. 3, 2001 AMC 581, 586 & n. 3 (5th Cir.2000) (holding that "perils of the sea" includes vessel-movement dangers "on the brown waters of the Mississippi River”).

        Id. at n. 150.

      . In Manuel, the vessel, Rig 3, was a "portable truck-mounted workover rig owned owned by P.A.W. that was driven onto the deck of a leased barge and bolted into place.” Manuel, 135 F.3d at 346. “[T]he workover rig had been bolted to this particular barge for more than two years,” and the "flat-deck barge was equipped with spuds used to secure the barge to the water bottom once it reached the worksite.” Id. The Rig 3 had no power motor, and was thus maneuvered by tug boat to and from each location; and the barge "did not contain any steering mechanisms, navigational devices, bilge pumps, or crew quarters, except for a small shed in which the crew changed clothes.” Id. The Rig 3, used primarily by P.A.W. to plug and abandon wells, contained "a derrick with traveling block, a drawworks-type winch to run the traveling block up and down the derrick, a driller’s console, a mud pump and mud tank, a cement unit for pumping cement into wells, and a crane.” Id. The crew of the Rig 3 was described as follows:
      Rig 3’s crew consisted of four men: a tool-pusher, a driller, and two floorhands. The crew did not live aboard Rig 3. Each morning, a small boat picked up the crew at a dock and transported them to wherever Rig 3 was located. Upon arriving on Rig 3, the crew would raise the derrick and anchor the barge by dropping the spuds. Each evening, the transport boat would return the men to land, where they slept in lodgings provided by P.A.W. The crew usually did not remain on Rig 3 while it was under tow to a different location.

        Id.

      . Due to the hazardous nature of the work encountered by seamen, poor living conditions, "and their constant exposure to the perils of the sea, seamen have traditionally been considered as the 'wards of admiralty,’ and as such have been afforded special protection and consideration by the courts.” Jeffery J. Waltz, Richard v. Mike Hooks, Inc.: Perils of the Sea: The Supreme Court of Louisiana Ends the Perilous Uncertainty of Jones Act Interpretation in State Court, 48 Loy. L.Rev. 211, 215 (2002)(citing Harden v. Gordon, 11 F.Cas. 480 (C.C.D.Me.1823)) (No. 6,047). Thus, courts must be vigilant in protecting the rights of seamen:
      Every court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached. But courts of maritime law have been in the constant habit of extending towards them a peculiar, protecting favor and guardianship. They are emphatically the wards of the admiralty ...

        Id. at n. 32.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge. BONIN, J.,

license: Public Domain

text:
    Jane SUMNER v. Kimberly MATHES, The City of New Orleans, Sanitation Department and Progressive Security Insurance Co.
    No. 2010-CA-0438.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2010.

      George B. Recile, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & Hayes, L.L.P., Metairie, LA, W. Shelby McKenzie, Taylor Porter Brooks & Phillips, L.L.P., Baton Rouge, LA, Walter R. Woodruff, Jr., Edward S. Bopp-A Law Corporation, Mandeville, LA, for Jane Sumner.
    Charles V. Giordano, Tasha W. Hebert, Hebbler & Giordano, LLC, Metairie, LA, for Progressive Security Insurance Company.
    Joseph Maselli, Jr., Plauche’ Maselli Parkerson LLP, New Orleans, LA, for Vigilant Insurance Company.
    Angela P. McCulloch, Stanley K. Hurder, Marjorie F. O’Connor, Office of Group Benefits, Baton Rouge, LA, for Interve-nor/Appellant, Office of Group Benefits.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

pin this appeal, Plaintiff Jane Sumner and Office of Group Benefits, intervenor, contend that the trial court erred in granting the summary judgment filed by the Uninsured / Underinsured (“UM”) insurers, Progressive Security Insurance Company and Vigilant Insurance Company, dismissing them from this action. For the reasons set forth below, we affirm the decision of the trial court.

Factual and Procedural History

On August 6, 2004, Jane Sumner was involved in an automobile accident on Poy-dras Street in New Orleans with a vehicle operated by Kimberly Mathes and owned by the City of New Orleans, Sanitation Department, Mrs. Mathes’ employer. Mrs. Mathes was in the course and scope of her employment by the city at the time of the accident. Mrs. Sumner’s vehicle liability coverage included an uninsured / underinsured “UM” policy issued by Progressive Security Insurance Company to her husband, and with excess UM coverage provided by Vigilant Insurance Company under the same policy. At issue before this Court is the following relevant portion of Progressive’s UM policy issued to the Sumners:

Subject to the Limits of Liability, if you pay the premium for Uninsured/Under-insured Motorist Bodily Coverage, we will pay |gfor damages which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. sustained by an insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of an uninsured motor vehicle.
An “uninsured motor vehicle” does not include any motorized vehicle or equipment:
a. owned by you or a relative;
b. owned or operated by a self-insurer under any applicable vehicle law, except a self-insurer that is or becomes insolvent;
c. operated on rails or crawler treads
⅝ ⅜ # ⅜ ⅜ ⅜

(Emphasis added). Mrs. Sumner filed suit against Mrs. Mathes and the City of New Orleans. Plaintiff also filed suit against Progressive as her UM carrier, and subsequently amended her petition to add Vigilant as a defendant.

Shortly after filing suit, plaintiff filed a motion for summary judgment, arguing that she is entitled as a matter of law to coverage for bodily injuries and property damage under the Progressive UM policy. Plaintiff argued that though the City of New Orleans is self-insured, it is insolvent and unable to pay its liabilities. Plaintiff argued that Progressive is therefore required to provide coverage under its UM policy language (above). Progressive opposed plaintiffs motion, arguing that there is at least a genuine issue of material fact as to the city’s solvency. The trial court agreed with Progressive’s position, and denied plaintiffs motion for summary judgment in a written judgment signed April 13, 2006 with written reasons provided April 17, 2006.

On June 26, 2007, Progressive and Vigilant filed a joint motion for summary judgment, seeking to dismiss plaintiffs UM coverage claims against them. ^Progressive and Vigilant argued that due to the city’s status as a self-insurer, it cannot be said that a city-owned vehicle constitutes an “uninsured vehicle” under the Progressive policy. The defendants maintained that the plaintiff has proffered no factual support to substantiate a finding that the City of New Orleans is insolvent, so as to warrant UM coverage under the Progressive policy.

Mrs. Sumner opposed the defendants’ motion for summary judgment, arguing that the Progressive policy’s failure to define “insolvency” requires that the policy be construed in favor of the insured. Plaintiff offered as expert opinion a report from a forensic accountant whose report states that the City of New Orleans is insolvent.

In the discovery phase of the lawsuit, the parties took the deposition of Mr. Derek Muse, the Deputy Director of Finance for the City of New Orleans. In support of summary judgment, the defendants introduced Mr. Muse’s statements as well as expert opinion reports from a certified public accountant, allegedly showing that the City of New Orleans is not insolvent. At the August 21, 2009 hearing on the defendants’ motion for summary judgment, both sides presented arguments to the court, and the trial court granted summary judgment, stating:

“I think there is a difference between insolvency and the city making a decision to make a list of judgments and some orderly fashion of paying them. And the fact that the city continues to operate and pay its debts to me makes it clear that it’s not insolvent.”

The trial court’s written judgment granting the defendants’ motion for summary judgment was signed on September 29, 2009. Plaintiff now appeals the trial court’s decision to grant summary judgment to this Court.

| ¡Assignments of Error

Appellant Jane Sumner raises three arguments on appeal. She first argues summary judgment is inappropriate because of alleged ambiguity in the Progressive policy, and because there remains a genuine issue of fact as to the solvency of the City of New Orleans. Secondly, plaintiff argues that Progressive’s UM policy excluding coverage to self-insured vehicles is contrary to Louisiana’s public policy regarding the application of UM coverage. Finally, plaintiff argues that Progressive has not adequately proved that the City of New Orleans qualifies as a “self-insurer” for the purposes of liability coverage of its vehicles.

Standard of Review and Summary Judgment Standard

Appellate courts review motions for summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Wood v. Del Giorno, WWL-AM, et al, 2006-1612, p. 3 (La.App. 4 Cir. 12/19/07), 974 So.2d 95, 98. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an ^absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La.Code Civ. Proc. art. 966(C)(2).

Because the movant has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Istre v. Meche, 2005-2508, p. 6 (La.6/16/06), 931 So.2d 361, 364. Summary judgment is favored under our law and shall be construed to secure the just, speedy, and inexpensive determination of every action.

Law and Analysis

An insurance policy is a conventional obligation that constitutes the law between the insured and insurer, and the agreement governs the nature of their relationship. Rolston v. United Services Automobile Association, 2006-0978, p. 4 (La.App. 4 Cir. 12/13/06), 948 So.2d 1113, 1116. As such, courts are guided by certain principles of construction and should interpret insurance policies the same way they do other contracts by using the general rules of contract interpretation set forth in our Civil Code. Peterson v. Schimek, 98-1712, pp. 4-5 (La.3/2/99), 729 So.2d 1024, 1028-29. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. Civ. Code art. 2046.

An insurance contract should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms. Rolston, supra, p. 4, 948 So.2d at 1117. Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. Cadwallader v. Allstate Ins. Co., 2002-1637, p. 4 (La.6/27/03), 848 So.2d 577, 580; La. CivhCode. art. 2056. Whether an insurance policy provides for or precludes coverage, as a matter of law, is an issue that can be resolved within the framework of a motion for summary judgment. Franques v. Jones, 2006-1177, p. 3 (La.App. 4 Cir. 5/9/07), 961 So.2d 1253, 1255.

In the case at hand, plaintiff first argues summary judgment is inappropriate because of alleged ambiguity in the Progressive policy, and because there remains a genuine issue of fact as to the solvency of the City of New Orleans. Appellant’s first argument regarding this assignment of error is that because the Progressive policy at issue does not define “solvency,” summary judgment is inappropriate to dispose of plaintiffs claims given this alleged ambiguity in the insurance contract. She also argues that the Progressive policy’s language, “except that a self-insurer is or becomes insolvent,” is ambiguous. However, a term in an insurance contract is not automatically considered ambiguous merely because it is not defined in the contract.

Plaintiffs second argument that summary judgment is inappropriate is that there remains a genuine issue of fact as to the solvency of the City of New Orleans. Though there was substantial disagreement regarding the definition of “insolvency” at the trial court level, our legal heritage requires us to look no further than our Civil Code, which states that “[a]n obligor is insolvent when the total of his liabilities exceeds the total of his fairly appraised debts.” La. Civ.Code art. 2037. Also, both parties also argue as to the timing of when to determine the solvency of a self-insurer under such policy language. Though as an appellate court we decline to determine a bright-line rule, we believe that if the insolvency of a self-insurer cannot be substantiated by the time adequate discovery has been conducted, then the inquiry should end. Words in an insurance contract are to be lygiven their generally prevailing and ordinary meaning, unless they have acquired a technical meaning. La. Civ.Code art. 2047; McKittrick v. Louisiana Health Service and Indem. Co., 37,104, p. 5 (La.App. 2 Cir. 4/9/03), 843 So.2d 577, 580. The phrase “is or becomes insolvent” is not an open-ended invitation for a claimant to peruse the solvency of a self-insurer at any length of time. Such an interpretation is undoubtedly an “absurd” consequence not tolerated in our Civil Code. La. Civ.Code. art. 2046.

By the time arguments on the appellees’ motion for summary judgment had been heard by the trial court, ample discovery had been conducted regarding the city’s solvency. Such discovery included the deposing of Mr. Derek Muse, the Deputy Director of Finance for the City of New Orleans. Mr. Muse’s testified that in the City of New Orleans financial statement of December 31, 2007, long after the subject accident, the city’s assets exceeded its liabilities. Furthermore, the deposition exhibits confirmed the same, showing that from 2003 onwards, and certainly at the time of the August 6, 2004 accident, the City of New Orleans’ asset figures were greater than their liabilities. The defendants also retained an expert certified public account whose expert witness report and sworn affidavit refuted the plaintiffs expert report and determined that the City of New Orleans was not insolvent on August 6, 2004, and that it has not become insolvent since.

Furthermore, this Court is not persuaded by plaintiffs reliance on newspaper accounts of the city’s budget woes and statements from former Mayor C. Ray Nagin as evidence creating a genuine issue of material fact as to the city’s solvency. Given the extensive discovery in this matter leading up to the defendants’ motion for summary judgment, this Court finds that, upon de novo preview of the record, there is no error in the trial court’s ruling that the City of New Orleans is not insolvent. La. Civ.Code art. 2037.

Plaintiffs second assignment of error is that Progressive’s UM policy excluding coverage to self-insured vehicles is contrary to Louisiana’s public policy regarding UM coverage. Plaintiff asserts a recent Louisiana Fifth Circuit decision voiding an exclusionary clause denying UM coverage and reversing summary judgment in favor of the UM carrier. In Mednick v. State Farm Mut. Auto. Ins. Co., 09-183 (La.App. 5 Cir. 1/26/10), 31 So.3d 1133, the court held that exclusionary language in the policy, stating that an “uninsured vehicle” does not include a motor vehicle “owned by any government or any of its political subdivisions or agencies” is void as against Louisiana’s public policy promoting UM coverage. Id., pp. 6-7, 31 So.3d at 1137.

While Mednick properly delineated the public policy rationale for uninsured motorist coverage, the policy language at issue in Mednick involved a much broader exclusion than the policy at issue in this matter (all vehicles owned by any governments or political subdivision), and is therefore distinguishable from the language in the Progressive policy merely excluding UM coverage for self-insured vehicles, except when the self-insurer is or becomes insolvent.

In Plumb v. City of New Orleans, et al, 2003-0269 (La.App. 4 Cir. 8/6/03), 854 So.2d 426, this Court affirmed a granting of summary judgment in favor of a UM insurer in a similar situation to the matter at hand. The plaintiff-appellant in Plumb was allegedly injured in a collision with a New Orleans Police Department patrol car while the officer was in the course and scope of his employment with the city. This Court upheld policy language excluding self-insured vehicles from the definition of a covered “uninsured motor vehicle.” Id., p. 4, 854 So.2d at 429.

^Furthermore, this Court considered the recent legislative amendments in Louisiana’s motor vehicle safety laws and determined that the City of New Orleans, the owner of the vehicle in question, is self-insured. Id., pp. 4-5, 854 So.2d at 428-429. This Court sees no flaw in our holding in Plumb, and therefore find that there is no violation of Louisiana’s public policy regarding UM coverage in enforcing the Progressive policy’s language excluding self-insured vehicles from UM coverage. “[T]he City’s self-insured status is not equivalent to being uninsured.” Id., p. 5, 854 So.2d at 429.

Finally, this Court is not persuaded by appellant’s arguments challenging the City of New Orleans’ self-insured status. As explained by this Court in Plumb, pp. 4-5, 854 So.2d at 428-429, La.Rev.Stat. § 32:1041 clearly and unequivocally exempts the state and any municipality therein from the certificate of self-insurance requirements set forth in § 32:1042, et seq. Again, we stand by our prior decision in Plumb, supra, p. 3, 854 So.2d at 428, holding that the City of New Orleans is self-insured.

Conclusion

Because there is no genuine issue of material fact as to the City’s solvency, and because Progressives provision excluding self-insured vehicles from UM coverage is not contrary to public policy, we find no error in the trial courts granting of summary judgment dismissing appellants claims against Progressive Security Insur-anee Company and Vigilant Insurance Company.

Decree

The decision of the trial court in granting summary judgment and dismissing all claims against defendants Progressive Security Insurance Company and ImVigilant Insurance Company is affirmed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED.

BONIN, J., Dissents and Assigns Reasons.

BONIN, J.,

Dissents and Assigns Reasons.

14 respectfully dissent.

The majority’s result in this case is premised on our holding in Plumb v. City of New Orleans, 03-0269 (La.App. 4 Cir. 8/6/03), 854 So.2d 426. But Plumb was wrongly decided. The fact that the City of New Orleans is uninsured is not changed by a court’s calling the City self-insured. The decision today deprives Jane Sumner of obtaining the uninsured motorist benefits for which she contracted with her own insurance companies.

In Part I below I discuss the proper interpretation of the insurance policy provisions, especially with respect to the exclusion upon which the insurers rely. I consider in Part II the provisions of the Motor Vehicle Safety Responsibility Law which do not apply to the City of New Orleans, a political subdivision of the state, but which both the Plumb decision and today’s decision misapply to the City. Well-established principles of statutory construction demand that Plumb be overruled; the Plumb court engaged in lawmaking, not law application or interpretation. Finally, I explain in Part III that there is no good reason to distort the UM law by labeling the City a self-insured, but there are several bad reasons. I conclude in Part IV that granting the summary judgment is legal error.

I begin with the well-recognized precepts for interpretation of insurance policies. An insurance policy is an aleatory contract. See Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 3 (La.2/25/03), 805 So.2d 1134, 1137. La. Civil Code art. 1912 provides:

A contract is aleatory when, because of its nature or according to the parties’ intent, the performance of either party’s obligation, or the extent of the performance, depends upon an uncertain event.

Comment (f) of the Revision Comments-1984 makes plain the import of an aleatory contract:

According to this text, the chance that an aleatory contract contemplates may result in one party not having to perform at all, as in the case of an insurance contract where the risk does not occur, ...

The significance of this legal concept in our law is that the insurer’s obligation to pay is contingent upon, the occurrence of an event which may never happen. In ordinary language, both parties are gambling; both are taking a chance.

Beyond being an aleatory contract, an insurance policy or contract is also a nominate contract. La. Civil Code art. 1914. Thus, an insurance policy is subject to the general principles concerning contracts set forth in the Civil Code. See La. Civil Code art. 1915. But, importantly, an insurance contract is also subject to some special rules “when those rules modify, complement, or depart” from the more general codal articles. La. Civil Code art. 1916.

An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer, and the agreement governs the nature of their relationship. La. Civil Code art. 1983. The extent of coverage is determined from the intent of the parties as reflected by the words of the insurance policy. Peterson v. Schimek, 98-1712, p. 4 (La.3/2/99), 729 So.2d 1024, 1028. An insurance policy, as a contract between the parties, should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. The contractual nature of the insurance policy underlies La. R.S. 22:881:

Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy.

Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. Louisiana Ins. Guar. Ass’n. v. Interstate Fire & Casualty, 93-0911 (La.1/13/94), 630 So.2d 759, 563. When the language of a policy is unambiguous and clear, the insurance contract must be enforced as written. When the wording is clear, the court lacks authority to alter or change the terms of the policy under the guise of interpretation. See Sher v. Lafayette Ins. Co., 07-2441, p. 5 (La.4/8/08), 988 So.2d 186, 192-93; Louisiana Ins. Guar. Ass’n, supra, 93-0911 at p. 5, 630 So.2d at 763.

Our civilian code further addresses contract interpretation. La. Civil Code art. 2051 states: “Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include.” We are guided by La. Civil Code art. 2046, which states:

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.

See also Crabtree v. State Farm Ins. Co., 93-0509 (La.2/28/94), 632 So.2d 736, 741 (stating: “An insurance policy should not be interpreted in an unreasonable or [4strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.”).

Ms. Sumner’s policy with Progressive contains the following agreement regarding her UM coverage:

We will pay for damages which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by an injured person;
2. Caused by an accident; and
3. Arising out of the ownership, maintenance, or use of an uninsured motor vehicle.
An “uninsured motor vehicle’’ does not include any motorized vehicle or equipment:
a. owned by you or a relative;
b. owned or operated by a self-insurer under any applicable vehicle law, except a self-insurer that is or becomes insolvent; ... (emphasis added)

From these principles of insurance policy interpretation, unless the exclusion conflicts with statutory provisions or public policy, Progressive must pay for damages which Ms. Sumner is entitled to recover from an owner or operator of an uninsured vehicle unless the vehicle is “owned or operated by a self-insurer under any applicable vehicle law ”. Under the facts of this ease, in order to avoid payment to Ms. Sumner, Progressive must establish that the City under an applicable vehicle law is a “self-insurer.”

At one time a UM policy provision which excluded self-insured vehicles from coverage would have been inoperative. See Jones v. Henry, 542 So.2d 507 (La.1989). The Lawmaker, however, abrogated that holding and La. R.S. 22:1295, which governs uninsured motorist coverage in insurance policies, now provides in pertinent part:

|sThe following provisions shall govern the issuance of uninsured motorist coverage in this state:
(2)(a) For the purpose of this coverage, the terms “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.
(b) For the purposes of this coverage, the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured vehicle when the automobile liability coverage on an insured motor vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of the accident, as agreed to by the parties and their insurers or as determined by final adjudication.
(3) Any party possessing a certificate of self-insurance as provided under the Louisiana Motor Vehicle Safety Responsibility Law, shall be an “insurer” within the meaning of uninsured motorist coverage provided under the provisions of this Section. This provision shall not be construed to require that a party possessing a certificate of self-insurance provide uninsured motorist coverage or that such coverage is provided by any party possessing such a certificate, (all emphasis added)

Simple interpretation of the insurance policy contract requires, then, that Progressive must establish that the City of New Orleans is a “self-insurer” under the foregoing controlling and applicable UM law. But that law incorporates a provision of the Louisiana Motor Vehicle Safety Responsibility Law in order to make the determination. We turn then to the provisions of that law to see if the City is a self-insurer “under any applicable vehicle law”.

II

Because the Louisiana Motor Vehicle Safety Responsibility Law does not apply to a political subdivision such as the City, the City cannot qualify as a “self-insurer” under that law.

| r,The MVSRL is directed to third-party protection. The law’s central feature is the provision for compulsory liability insurance on motor vehicles registered or operated in Louisiana with minimum limits of 10/20/10. La. R.S. 32:900 B(2)(a)-(c). The law does permit the substitution of other security in lieu of a liability insurance policy with those minimum limits; these substitutes include liability bonds to satisfy judgments arising from vehicular accidents, cash deposits with the state treasurer, or a certificate of self-insurance. See La. R.S. 32:861 A. Failure of a driver or owner to comply with the compulsory requirements and with the proof of compliance requirements can result in an array of administrative, criminal, and civil sanctions and penalties. See La. R.S. 32:863.1 C-I (impoundment of the vehicle, revocation of licenses and vehicle registration along with fines and reinstatement fees), 865 (fines up to maximum of $10,000 upon conviction), and 866 (reduction in recovery for civil damages: “pay to play”).

As part of the overall MVSRL, La. R.S. 32:1042 specially provides for self-insurance:

A. Any person in whose name more than twenty-five motor vehicles are registered or who owns property in Louisiana assessed in his name having a value of one hundred thousand dollars or more after deducting any encumbrances thereon from its assessed valuation may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the assistant secretary of the office of motor vehicles as provided in Subsection B of this Section.
B. (1) The assistant secretary may, at his discretion, upon the application of such a person, issue a certificate of self-insurance when he is satisfied that such person is possessed and will continue to be possessed of ability to pay judgments obtained against such person.
(2) The assistant secretary shall assess a fee of one hundred dollars for each certificate.
|7C. Upon not less than five days notice and a hearing pursuant to such notice, the commissioner may cancel upon reasonable grounds a certificate of self-insurance. Failure to pay any judgment within sixty days after such judgment has become final shall constitute a reasonable ground for the cancellation of a certificate of self-insurance. The commissioner, upon receipt of certified copy of a final judgment, shall forthwith suspend the license and registration, or any nonresident’s operating privileges, of any person, or any legal entity, against whom such judgment was rendered, except as otherwise provided in R.S. 32:892 and R.S. 32:895.
D. Any person or any legal entity whose certificate of self-insurance has been cancelled for his failure to pay a final judgment shall not be eligible for the renewal or reissuance of a certificate of self-insurance for a period of five years from the date of cancellation, (emphasis added)

§ 32:1042 by its plain terms applies only to persons who must comply with the financial responsibility requirements of the Motor Vehicle Safety Responsibility Law. Part A of § 32:1042 allows eligible and qualified persons to comply with the law “by obtaining a certificate of self-insurance issued by the assistant secretary of the office of motor vehicles.” Part B of § 32:1042 allows for the issuance of the certificate when the assistant secretary “is satisfied that such person is possessed of and will continue to be possessed of ability to pay judgments obtained against such person.” (emphasis added) A self-insurance certificate can be cancelled for the certificate holder’s “[fjailure to pay any judgment within sixty days after such judgment has become final.” Cancellation of a self-insurance certificate renders a person ineligible for renewal or reissuance of a certificate of self-insurance for a period of five years. See La. R.S. 32:1042 D.

Importantly for our purposes, the critical difference between an “uninsured” person and a “self-insured” person is the certificate of self-insurance. A certificate of self-insurance satisfies the requirement to obtain the compulsory minimum liability insurance. See La. R.S. 32:861 A(l) and 32:872 C(4). A certificate of |8self-insur-ance also satisfies the requirement for proof of compliance that the driver or owner is financially responsible to third parties. See La. R.S. 32:863.1(A)(4) and G(2), and 32:897(4).

The only reasonable interpretation of the incorporation of the self-insurer provisions of the MVSRL into the UM law is that a party without liability insurance and without a certificate of self-insurance is uninsured.

The Motor Vehicle Safety Responsibility Law is Chapter 5 of Title 32, and La. R.S. 32:1041 A clearly provides:

This Chapter shall not apply with respect to any motor vehicle owned by the United States, this state or any political subdivision of this state, or any municipality therein, a bona fide organized public volunteer fire department which owns and operates those specially equipped motor vehicles for fire fighting purposes, nor, except for R.S. 32:871 and 905, with respect to any motor vehicle which is subject to the jurisdiction of the Louisiana Public Service Commission, or to any motor vehicle subject to registration under the single state registration for motor carriers authorized by 49 U.S.C. 11506, or as otherwise permitted by federal law, or to carriers of persons operating over specified routes with fixed termini and predominantly under franchises or indeterminate permits granted by an incorporated municipality and who are subject to the regulatory jurisdiction of such municipality, (all emphasis added)

§ 32:1041 A could hardly be plainer: its words simply mean that none of the provisions of the Motor Vehicle Safety Responsibility Law, including the provisions of § 32:1042, applies to a political subdivision such as the City of New Orleans.

“Legislation is the solemn expression of legislative will.” La. Civil Code art. 2. The Lawmaker has given us specific instructions on applying its will as expressed in these statutes. La. R.S. 1:3 provides:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar 19and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
The word “shall” is mandatory and the word “may” is permissive.

Directly to the point, La. R.S. 1:4 provides that “[wjhen the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.”

But that is precisely what was done in Plumb. Plumb disregarded the inapplicability of the Motor Vehicle Safety Responsibility Law to a political subdivision, and improperly applied the Motor Vehicle Safety Responsibility Law to the City of New Orleans in order to conclude that the City is self-insured for uninsured motorist coverage. In order to do that, Plumb found that one portion of § 32:1042 applied (self-insured status), but another portion did not apply (the requirement of a certificate). Logical consistency requires a conclusion that § 32:1042 either does apply to a political subdivision or it does not; § 32:1041 makes it clear that it does not. Plumb should be overruled.

Progressive cannot as a matter of law establish that § 32:1042 is a vehicle law which is “applicable” to the City of New Orleans.

Ill

The fact that the MVSRL does not apply at all to the City is no reason to distort the UM law and try to stuff a governmental entity into the policy’s exclusion for self-insurers.

Only Ms. Sumner’s first-party insurers obtain an advantage by such action. By labeling the City a self-insured, the UM insurers in this case obtain a result that they could not obtain by attempting to exclude government vehicles from UM coverage. In Mednick v. State Farm Mutual Automobile Ins. Co., 09-183 (La.App. 5 Cir. 1/26/10), 31 So.3d 1133, the fifth circuit recently considered a policy that |inexcluded from UM coverage damages caused by the operation of a government-owned vehicle. The Mednick court stated

Considering the expressed intent of Louisiana’s insurance Code and [its] uninsured/underinsured motorist provisions, we now hold that the exclusion of government owned vehicles from uninsured/under-insured motorist coverage thwarts the expressed public policy of the statute setting forth the purpose of such coverage, namely to protect those innocent insureds who are harmed by an uninsured or underinsured tortfeasor.

Mednick, p. 6-7, 31 So.3d 1137.

Surely the City obtains no advantage by being labeled self-insured rather than uninsured, which it is. The City does not on that account escape liability or responsibility. If Progressive were to fulfill its contractual obligation and were to pay Ms. Sumner, by law it has a right of subrogation against the City. See La. R.S. 22:1295(4); see also Jones v. Henry, 542 So.2d at 509, n. 3, and Bosch v. Cummings, 520 So.2d 721, 723 (La.1988) (holding, “The uninsured motorist who pays all of its insured’s damages is completely subrogated to his claim against the uninsured or un-derinsured tortfeasor.”)

Of course, the City may delay (or avoid) payment to Progressive just as it will do to Ms. Sumner (which is a practical reason why her UM insurer should be held to its contractual obligation). If Ms. Sumner prevails against the City of New Orleans in her claim for damages, payment is never due or never overdue because no court can command payment of its judgment by the City. La. Const, art. XII, § 10(C) provides in pertinent part:

... no public property or public funds shall be subject to seizure.... No judgments against the state, a state agency, or a political subdivision shall be exigi-ble, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.

La. R.S. 13:5109 B(2) also provides:

In Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigi-ble, payable, and paid only -out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision.

“Louisiana courts have repeatedly held that judgment creditors cannot mandamus political subdivisions to appropriate funds for payment of a judgment rendered against the respective political subdivisions.” Hoag v. State, 04-0857, pp. 6-7 (La.12/1/04), 889 So.2d 1019, 1023, citing, inter alia, Jones v. Traylor, 94-2520 (La.App. 4 Cir. 8/23/95), 660 So.2d 933. Whether to pay a judgment against a political subdivision is discretionary with the political subdivision. Hoag, 04-0857 at pp. 7-8, 889 So.2d at 1024. Therefore, the City of New Orleans cannot be compelled by a court to pay any judgment whatsoever in favor of Ms. Sumner.

The inquiry then, factually or legally, into a political subdivision’s “solvency” is fruitless. Whether the City is solvent or insolvent, the decision whether and when to pay a judgment, or settle a pending case, is wholly within the discretion of the City of New Orleans.

The parties agree that the Progressive policy itself supplies no definition either of “solvency” or of “insolvency.” In order to define “insolvency,” the majority opinion states that “our legal heritage requires us to look no further than our Civil Code, which states that ‘[a]n obligor is insolvent when the total of his debts exceeds the total of his fairly appraised assets.’ La. Civ.Code. Art. 2037.” Ante, p. 6. The City of New Orleans can pass this test. The City’s assets include an international airport, a railroad, large public parks, roads, highways, bridges, and courthouses, to name just a few of them. The Article 2037 test allows a | ^factfinder to employ Coleridge’s “willing suspension of disbelief’ in the face of the City’s failure, refusal, or inability to pay any judgments for more than five years. In other words, we can make believe that the City is not insolvent. But, on this point too, I disagree with the majority that we need look no further than our Civil Code; to the contrary, our Civil Code would be the beginning, not the end, of the inquiry for an appropriate definition of insolvency for a self-insured, which is not provided in the policy itself or, it seems, in the law. I am compelled by this court’s refusal to follow the Lawmaker’s instructions on statutory construction and its insistence on following a wrongly decided precedent to address this issue as well. Because a party possessing a certificate of self-insurance “shall be an ‘insurer’ within the meaning of uninsured motorist coverage,” La. R.S. 22:1295(3), a less inappropriate definition of or test for insolvency is the one found in the Insurance Code, not the Civil Code. A simpler but tougher test for insolvency for an insurer is “the inability to pay its obligations when they are due.” La. R.S. 22:2003(3)(a)(ii) and (b). Of course, the City escapes even under this test because, being a political subdivision, its obligations are never “due.” And, further, an appropriate determination for the insolvency of a self-insured might be found in La. R.S. 32:1402 C, which provides:

Upon not less than five days notice and a hearing pursuant to such notice, the commissioner may cancel upon rea sonable grounds a certificate of self-insurance. Failure to pay any judgment within sixty days after such judgment has become final shall constitute a reasonable ground for the cancellation of a certificate of self-insurance. The commissioner, upon receipt of certified copy of a final judgment, shall forthwith suspend the license and registration, or any nonresident’s operating privileges, of any person, or any legal entity, against whom such judgment was rendered, except as otherwise provided in R.S. 32:892 and R.S. 32:895. (emphasis added)

|iaA certificate holder’s mere failure to pay a judgment within sixty days of the finality of the judgment might ipso facto satisfy a test for insolvency. But of course a political subdivision such as the City of New Orleans, according to Plumb, is exempt from the requirements of obtaining or providing a certificate of self-insurance. See Plumb, 03-0269, p. 4, 854 So.3d at 429. Thus, when the tortfeasor is a governmental entity such as the City, Progressive’s policy’s stipulation that it would pay if the self-insurer is or becomes insolvent is meaningless. In effect, the majority construes the policy to exclude governmental vehicles, which is contrary to the holding in Mednick, supra. Because the policy’s other provision respecting a self-insurer (“except a self-insurer that is or becomes insolvent”) is meaningless when applied to a political subdivision such as the City, one might argue that such is further support that the absurd result is the one construing the City as a self-insurer.

IV

The City does not possess liability insurance and it is uninsured. An uninsured political subdivision is not self-insured under § 32:1042 because these laws do not apply to it. A rose by any other name is still a rose. I conclude that the only proper finding, both legally and factually, is that the City of New Orleans is uninsured for the purposes of applying the UM law. See La. R.S. 22:1295. The motion for summary judgment in favor of Progressive should have been denied as a matter of law. I, therefore, dissent.

      . Following the granting of summary judgment in favor of defendants, plaintiff filed a Motion for New Trial, which was denied. Though plaintiff's motion for devolutive appeal sought the appeal of both the granting of Progressive and Vigilant’s motion for summary judgment and the denial of her motion for new trial, plaintiff's brief before this Court only raises arguments pertaining to the granting of summary judgment.

      . Office of Group Benefits adopts the arguments of plaintiff / appellant Jane Sumner.

      . See also La. C.C. art. 2982: "The aleatory contract is a mutual agreement, of which the effects, with respect both to the advantages and losses, whether to all parties or to one or more of them, depend upon an uncertain event.”

      . See also Smith v. Burton, 04-2675, pp. 5-6 (La.App. 1 Cir. 12/22/05), 928 So.2d 74, 78-79.

      . Whenever I reference Progressive, it includes the umbrella UM insurer Vigilant, which issued a "following-to-form” excess policy.

      . For the use of "third-party” and "first-party" terminology, see, e.g., Wolfe World, LLC v.

        Stumpf, 10-0209 (La.App. 4 Cir. 7/7/10), 43 So.3d 311, and Louisiana Joint Underwriters of Audubon Insurance Co. v. Johnson, 09-0336 (La.App. 4 Cir. 9/2/09), 20 So.3d 528.

      . The minimum limits, applicable at the time of this case, are $10,000 because of bodily injury to or death of one person in any one accident, $20,000 because of bodily injury to or death on two or more persons in any one accident, and $10,000 because of destruction of or damage to property.

      . See Samuel Taylor Coleridge, Biographia Literaria or Biographical Sketches of My Literary Life and Opinions (1817).


text:
    STATE of Louisiana In the Interest of L.R.
    No. 2010-CA-1212.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Nelson Bowman, Juvenile Regional Services, New Orleans, LA, for L.R.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

IjL.R. appeals the judgment rendered by the Juvenile Court for the Parish of Orleans adjudicating him delinquent of one count of La. R.S. 14:27 and 14:64 relative to attempted armed robbery. For the reasons that follow, we affirm the adjudication.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On December 7, 2009, L.R. was charged by delinquency petition with one count of attempted armed robbery. L.R. appeared in court on December 8, 2009, for a pretrial hearing. L.R. denied the offense charged and an adjudication hearing was set for January 5, 2010.

On January 4, 2010, the State filed a motion in limine to prevent defense counsel from mentioning or questioning any witness concerning impermissible and irrelevant character evidence. The motion was centered on the potential questioning of the victim, Edward Lewis. The State acknowledged that Mr. Lewis helped run a stand in the parking lot where this incident occurred. At the stand, Mr. Lewis sold various items, some of which might have included illegal materials, such as CDs and DVDs. The State argued that Mr. Lewis was not in the process of making any sales when he became a victim of the attempted armed robbery, and 12there was no evidence that the attempted armed robbery had any connection with Lewis’ business. The State also maintained that Mr. Lewis had not been convicted of any crime, and no charges were pending against him in connection with any illegal sales.

L.R. filed an opposition to the motion in limine and a motion for full cross-examination. On February 17, 2010, after hearing argument on the motions, the trial court ruled in favor of the State, allowing questions as to prior convictions, and as to any deals the State may have offered for immunity in exchange for testimony. On February 18, 2010, the trial court clarified its February 17, 2010 ruling, specifically denying L.R.’s motion to seek full cross-examination of the State’s witness, stating:

The Court will allow defense to cross-examine any of the state’s witnesses regarding prior convictions and any plea agreements or offers of immunity granted to the witness in exchange for the witnesses’ testimony. However, should any witness assert their privilege pursuant to the 5th Amendment of the United States Constitution and refuse to answer any questions that would potentially subject the witness to criminal prosecution, the Court will not order the witness to answer said question.

On March 2, 2010, L.R. filed a writ application with this Court, arguing, as he does in this appeal, that the trial court erred in failing to allow full cross-examination, thereby denying L.R. the opportunity to present a complete defense. This Court declined to exercise its supervisory jurisdiction. State of Louisiana in the Interest of L.R, 2010-0289 (La.App. 4 Cm. 4/l/10)(unpub.).

The adjudication hearing was held on May 18, 2010. The State presented testimony from Edward Lewis, Detective Gregory Powell, and Officer Frankie Watts. L.R. did not testify or call any witnesses on his behalf.

13Testimony of Edward Lewis

Edward Lewis testified that on November 30, 2009, he was working in the 11900 block of Hayne Boulevard, at which time he was approached by L.R. to purchase an amplifier. Mr. Lewis told L.R. he was not interested in an amplifier, but to bring it by and he would take a look at it. L.R.’s friend, Darnell Benjamin, returned with the amplifier, while L.R. stood on top of the levee adjacent to Hayne Boulevard. Addressing Darnell, Mr. Lewis informed him that he did not need the amplifier, but gave Darnell ten dollars to “keep [Darnell] off the streets tonight.” Mr. Lewis explained that he recognized Darnell and L.R. from the neighborhood and sometimes gave them money to help them out.

As Mr. Lewis was reaching into his pocket for the ten dollars, he felt a metal object, presumably a gun, pressed against the back of his head, and heard a voice demanding that he give up everything in his pockets. Mr. Lewis reached back, grabbed the gun, twisted it, and struggled as he fell to the ground. Mr. Lewis stated that when he turned around, he clearly recognized L.R. Mr. Lewis jumped up and ran behind his truck, and L.R. began to pursue him, but then turned and fled.

Mr. Lewis explained that Ralph, the proprietor of the snowball stand located in the parking lot where the incident occurred, called 9-1-1 to report the incident. Mr. Lewis did not remember what physical description he gave when the police arrived, but he did provide the police with L.R.’s name. Mr. Lewis also identified L.R. in court as the person who approached him with the gun.

On cross-examination, Mr. Lewis was questioned whether Ralph called the police because Mr. Lewis did not want to get into trouble with the police over the |4CPs and DVDs that he was selling from the parking lot. Mr. Lewis responded to this inquiry by invoking his Fifth Amendment right. Defense counsel objected, arguing that the basis for the question was to show that Lewis was biased and had an interest in cooperating with the police. Noting the objection, the trial court stated:

Again, if you want to ask him whether or not he’s been offered or promised anything in exchange for giving any testimony, I don’t have a problem with you asking that question because it goes to bias, but you know the Constitution of the United States gives every person a right not to incriminate themselves. So, unless you want me to change the law then I have to apply the law to the facts.

On re-direct examination, Mr. Lewis was asked: “Has me or anybody else in law enforcement promised you any immunity or anything in exchange of value for your cooperation with the police or for your testimony at trial today?” Mr. Lewis responded: “Nobody offered me anything.”

Testimony of Detective Gregory Powell

Detective Gregory Powell testified that on November 30, 2009, he responded to a call of an attempted armed robbery. In connection with his investigation, Detective Powell interviewed Darnell Benjamin, who was already detained when Detective Powell arrived. ■ Detective Powell understood that Darnell had been apprehended while walking away from the scene with some amplifiers. Darnell named L.R. as the individual who attempted to rob Mr. Lewis at gunpoint and positively identified a photograph of L.R. Detective Powell testified that no gun was ever recovered in connection with the incident.

Detective Powell further testified that Lewis identified L.R. in a six-person photographic lineup. The results of the photographic line-up were identified by Detective Powell and introduced into evidence. Detective Powell stated that he did |finot offer Mr. Lewis anything of value, or coerce him in connection with Ms identification of L.R. In response to a question asked on cross-examination, Detective Powell explained that he did not investigate Mr. Lewis in connection with the alleged stolen amplifier because, as he stated, Mr. Lewis “never had the amplifier”. Detective Powell acknowledged that he was aware that Mr. Lewis was operating some sort of business involving CDs and DVDs in the parking lot on the day of the incident, but stated that he did not investigate Mr. Lewis as to the alleged sale of CDs or DVDs on that day.

At the conclusion of the hearing, L.R. was adjudicated delinquent of the charged offense. The trial court indicated that it found Mr. Lewis’ testimony “very credible” and determined that the State proved the elements of case beyond a reasonable doubt. Following a pre-disposition investigation, a disposition hearing was held on June 22, 2010. L.R. was committed to the Office of Juvenile Justice for a period of one year and one month with credit for time served. This appeal followed.

LAW AND ANALYSIS

As his sole assignment of error, L.R. asserts that the trial court erred in denying his counsel the opportunity to fully cross-examine Mr. Lewis, thereby denying L.R. the opportunity to present a complete defense.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. La. Const. Art. I, § 16; State v. Lawrence, 2008-0397, p. 8 (La.App. 4 Cir. 2/4/09), 5 So.3d 896, 902. The essential purpose of the confrontation right is |fito secure, for the opponent, the opportunity of cross-examination. Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Robinson, 2001-0273, p. 5 (La.5/17/02), 817 So.2d 1131, 1135. Encompassed in the right of confrontation is the right of the accused to impeach a witness for bias or interest. Lawrence, 2008-0397, p. 9, 5 So.3d at 902. The right to expose a witness’s motivation in testifying is both a proper and important function of the constitutionally protected right of cross-examination. State v. Chester, 97-2790, p. 15 (La.12/1/98), 724 So.2d 1276, 1286.

Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal. La. C.E. art. 609.1(B). However, extrinsic evidence to show a witness’s bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness. La. C.E. art. 607(D)(1). The Louisiana Code of Evidence also provides that “[particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.” La. C.E. art. 608(B).

|7The Louisiana Supreme Court has recognized that “[a] witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding his conduct.” State v. Burbank, 2002-1407, p. 2 (La.4/23/04), 872 So.2d 1049, 1050 (quoting State v. Vale, 95-1230, p. 4 (La.1/26/96), 666 So.2d 1070, 1072). A witness’s “hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” Vale, 95-1230, p. 4, 666 So.2d at 1072 (quoting State v. Brady, 381 So.2d 819, 822 (La.1980)). Likewise, “[a] | ^defendant's right to demonstrate facts and circumstances which might influence the witness’s perceptions or color his testimony, thereby lessening the weight the fact-finder might accord his testimony, is guaranteed in both state and federal criminal proceedings and is an important function of the right to confront and cross-examine.” State v. Bowie, 2000-3344 p. 9 (La.4/3/02), 813 So.2d 377, 385.

With regard to the scope of confrontation of witnesses, the trial court has the discretionary power to control the extent of the examination of witnesses as long as the court does not deprive the defendant of his right to effective cross-examination. State v. Hawkins, 96-0766, p. 6 (La.1/14/97), 688 So.2d 473, 479. Additionally, evidentiary rules may not supersede the fundamental right to present a defense. Id.

In this case, the State submits that the trial court did not abuse its discretion in limiting the cross-examination of Mr. Lewis regarding his alleged sales of illegal materials because Mr. Lewis was not in the process of making any sales when L.R. attempted to rob him, nor had Mr. Lewis been convicted of any crime pertaining to illegal sales. Furthermore, the charged offense had no connection with Mr. Lewis’ business. Alternatively, the State contends that if this Court does find an abuse of discretion, L.R.’s conviction must stand because the denial of the defendant’s opportunity to impeach a witness for bias is subject to the harmless-error analysis.

The Louisiana Supreme Court has recognized the well-established principle that Sixth Amendment confrontation errors are subject to harmless error analysis. State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)); see also State v. Bradley, 2008-0195 (La.App. 4 Cir. 10/1/08), 995 So.2d 1230. This Court must determine whether, assuming that the damaging potential of the cross-examination were fully realized, the error was harmless | ¡¡beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; see also State v. Louviere, 2000-2085, p. 28 (La.9/4/02), 833 So.2d 885, 905. Factors to be considered in this regard include the importance of the evidence to the State’s case, whether the testimony was cumulative, the presence or absence of additional corroboration of the evidence, the extent of cross-examination permitted, and the overall strength of the State’s case. Id.; see also State v. Legendre, 2005-1469 (La.App. 4 Cir. 9/27/06), 942 So.2d 45.

In the present case, although Mr. Lewis’ testimony was indisputably important to the State’s case, it is evident from the record that Mr. Lewis’ testimony was corroborated on all material points by Detective Powell’s investigation. Mr. Lewis testified that he was familiar with L.R. from the neighborhood and was face-to-face with him during the robbery attempt. Mr. Lewis also positively identified L.R. in a photographic line up and identified L.R. in open court. Most significantly, Mr. Lewis’ testimony surrounding the incident | inwas not only uncontradicted, it was also corroborated by Detective Powell’s testimony regarding his interview with Darnell Benjamin, an eyewitness to the incident who also identified L.R. as the perpetrator.

As previously noted herein, the trial court permitted Mr. Lewis to be questioned directly with regard to whether he was offered immunity or anything of value in exchange for his cooperation or testimony at trial, to which Mr. Lewis responded negatively. With regard to the overall strength of the State’s case, the State presented substantial and unrefuted evidence of L.R.’s guilt. Additionally, assuming ar-guendo that any error occurred in the trial court’s limitation of questioning of Mr. Lewis, we find that the error, if any, was harmless beyond reasonable doubt, considering the undisputed evidence and testimony that was presented to the trial court. Accordingly, we find that the trial court did not abuse its discretion under these particular facts and circumstances.

CONCLUSION

For the foregoing reasons, the adjudication is hereby affirmed.

AFFIRMED.

      . Officer Frankie Watts also testified regarding the arrest of L.R. on December 2, 2009 as a member, of the Warrant Squad. Other than arresting L.R. pursuant to an arrest bulletin, Officer Watts did not participate in the investigation of this matter.

      . Article 609 provides as follows:
      A.General civil rule. For the purpose of attacking the credibility of a witness in civil cases, no evidence of the details of the crime of which he was convicted is admissible. However, evidence of the name of the crime of which he was convicted and the date of conviction is admissible if the crime:
      (1) Was punishable by death or imprisonment in excess of six months under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party; or
      (2) Involved dishonesty or false statement, regardless of the punishment.
      B. Time limit. Evidence of a conviction under this Article is not admissible if a period of more than ten years has elapsed since the date of the conviction.
      C. Effect of pardon or annulment. Evidence of a conviction is not admissible under this Article if the conviction has been the subject of a pardon, annulment, or other equivalent procedure explicitly based on a finding of innocence.
      D. Juvenile adjudications. Evidence of juvenile adjudications of delinquency is generally not admissible under this Article.
      E. Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. When evidence of a conviction is admissible, evidence of the pendency of an appeal is also admissible.
      F. Arrest, indictment, or prosecution. Evidence of the arrest, indictment, or prosecution of a witness is not admissible for the purpose of attacking his credibility.

      . Article 609.1 provides as follows:
      A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
      B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
      C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:
      (1) When the witness has denied the conviction or denied recollection thereof;
      (2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or
      (3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.
      D. Effect of pending post-conviction relief procedures. The pendency of an appeal or other post-conviction relief procedures does not render the conviction inadmissible, but may be introduced as bearing upon the weight to be given the evidence of the conviction.
      E. Effect of pardon or annulment. When a pardon or annulment, based upon a finding of innocence, has been granted, evidence of that conviction is not admissible to attack the credibility of the witness.
      F. Juvenile adjudications. Evidence of juvenile adjudications of delinquency is generally not admissible under this Article, except for use in proceedings brought pursuant to the habitual offender law, R.S. 15:529.1.

      . Detective Powell testified regarding Mr. Lewis' positive identification of L.R. from the six-person photographic lineup. Mr. Lewis also testified at trial regarding his identification of L.R. from the six-person photographic lineup:
      Q. Okay. And what did you do with that set of pictures after you looked at them? Do you remember signing it or anything?
      A. He showed me the picture — I don't remember exactly what I did because everything went kind of fast when I actually identified him. Soon as I saw the picture, I knew that was him, right then and there. And now what happened in the course of [sic] afterwards? I don’t remember.
      Q. Whose signature appears on the back of that?
      A. Mine.
      Q. Okay. And whose handwriting is that?
      A. Mine.
      Q. And what does the handwriting say?
      A. Number 6 is the boy I've given money to and also this is the person who tried to rob me.
      Q. And if you could flip it over.
      Q. And that’s the picture you identified?
      A. Yeah.
      Q. And how certain were you that that was the person who tried to rob you?
      A. I was positive. I mean, he looks a little younger on this picture, but I know that’s him.

      . Mr. Lewis testified at trial that he recognized L.R. immediately:
      Q. As the robbery was going on, could you see the face of the person who had the gun pointed at you?
      A. Not until I turned around.
      Q. Okay.
      A. When I turned around, I knew exactly who it was.

      . Detective Powell testified at trial regarding Mr. Darnell's positive identification of L.R.:
      Q.After you developed [L.R.] as a suspect, how did your investigation proceed?
      A. From there my investigation proceeded that I was able to obtain a single photograph of [L.R.], who at the time was only known as Lee. Officers who were familiar with Lee knew him as [L.R.] and had a single photo of him in their files, which I was able to obtain. At that time, I had showed it to Mr. Darnell and Mr. Darnell’s mother and both of them positively identified [L.R.] as the subject they knew as Lee and also the subject who attempted to rob the victim at gunpoint, and they did sign that, which was put into evidence.

      . "The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error [if any].” Broadway, p. 24, 753 So.2d at 817 (citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)).