author: JOAN BERNARD ARMSTRONG, Chief Judge. BONIN, J.,

text:
    STATE of Louisiana in the interest of S.O.
    No. 2010-CA-0551.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2010.
    Cecilia E. Rutherford, New Orleans, LA, for Appellant, S.O.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State Of Louisiana.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., and Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

liS.O., a juvenile, appeals the judgment of the Juvenile Court for Orleans Parish adjudicating him a delinquent based on the petition charging him with having resisted an officer, a violation of La. R.S. 14:108(B)(l)(c). For the reasons set forth below, we affirm the judgment of the trial court.

On January 12, 2010, a petition was filed seeking S.O.’s adjudication as a delinquent based on allegations that he illegally possessed stolen things and resisted a police officer. S.O. entered a denial as to the petition.

The trial court granted S.O.’s motion to suppress evidence and found him not guilty on the charge of illegal possession of stolen things and guilty on the charge of resisting an officer. S.O. was committed to the Department of Public Safety and Corrections for a period not to exceed six months. Execution of the sentence was suspended, and S.O. was placed on active intense probation for six months under the supervision of the Office of Juvenile Justice. S.O. appeals from that judgment.

On January 4, 2010, Officer Drew Deacon and his partner received a call at 12:52 a.m. from the New Orleans Police Department (NOPD) dispatcher to investigate two suspicious persons who were looking into vehicles within a parking | ¡.garage located at 1020 Terpsichore Street. According to the NOPD dispatcher, the suspects were two black males, one wearing a grey, hooded sweatshirt.

In responding to the call, Officer Deacon and his partner observed two men fitting that description in the vicinity of 1020 Terpsichore Street, a block away, at the corner of Melpomene and Magazine Streets. Officer Deacon testified that both subjects were stopped, they were told to put their hands on the patrol car, and they were asked their names and birthdates. Officer Deacon later determined that S.O. provided a false name and birth date. Officer Deacon proceeded to pat down S.O. and his partner patted down the adult suspect, Willie McElveen, for the safety of the officers. In connection with the pat down, Officer Deacon discovered a black nylon book bag in S.O.’s possession. Mr. McElveen was found to be in possession of two cell phones, a GPS unit, a flashlight, and other items. The suspects were handcuffed and brought to the parking garage at 1020 Terpsichore Street.

Upon returning to the parking garage, Officer Deacon observed two vehicles with their doors ajar. The owners of the vehicles were located in the adjoining apartment complex. The black nylon book bag found on S.O. and some of the items found on Mr. McElveen were identified as belonging to the owners of the vehicles. Officer Deacon determined that S.O. and Mr. McElveen had not been given permission to take possession of the identified property. After relocating to the Sixth District police station, S.O. confessed his true name, and it was discovered that he was a juvenile.

As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations and assessment of witness testimony. State ex rel W.B., 08-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61, writ denied, 09-1129 (La.1/22/10), 25 So.3d 139, citing State ex rel J.N., 07-1229, p. 8 (La.App. 4 Cir. 5/7/08), 984 So.2d 910, 915. The State’s burden of proof in a juvenile delinquency proceeding, just as in a criminal proceeding against an adult, is to prove beyond a reasonable doubt that the child committed a delinquent act alleged in the delinquency petition. La. Ch.Code art. 883.

In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Louisiana Supreme Court held that when reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, citing State v. Captville, 448 So.2d 676, 678 (La.1984).

La. R.S. 14:108 provides, in pertinent part:

A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
B. (1) The phrase “obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:
(c) Refusal by the arrested or detained party to give his name and make his identity known to the arresting or detaining officer or providing false information regarding the identity of such party to the officer.

|4In the present case, S.O. asserts that the trial court erred in finding him guilty of resisting an officer because his arrest was unlawful. S.O. argues that there was no reasonable basis for his detention because he was not wearing a grey-hooded sweatshirt, and no further description, other than “black male,” was given for the second suspect. S.O. relies on the established principle that an individual has the right to resist either an unlawful detention or an unlawful arrest. State v. Manuel, 06-0486, p. 5 (La.App. 4 Cir. 11/21/06), 946 So.2d 245, 248. While we recognize that a person has the right to resist an unlawful detention or arrest, we find, as did the trial court, that the investigatory stop in the present case was lawful.

In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that a police officer may, in appropriate circumstances and, in an appropriate manner, approach a person for purposes of investigating possible criminal behavior, even absent probable cause to make an arrest. An individual in a public place may be stopped and questioned by police as to his name, address, and an explanation of his actions, if the officer has a reasonable suspicion that the person is committing, has committed, or is about to commit an offense. La.Code Crim. Proc. art. 215.1(A). “Reasonable suspicion”, although something less than the probable cause needed for an arrest, must be based upon particular articulable facts and circumstances known to the officer at the time the individual is approached and stopped, which, in conjunction with reasonable inferences drawn therefrom, provide reasonable grounds to suspect the detainee of criminal activity. State ex rel B.C., 08-0456, p. 5 (La.App. 4 Cir. 8/20/08), 991 So.2d 575, 579, writ denied, 08-2292 (La.1/29/10), 25 So.3d 822, citing State v. Flowers, 441 So.2d 707 (La.1983), cert. den. 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984).

In State v. Thompson, 02-0333, pp. 5-6 (La.4/9/03), 842 So.2d 330, 335, the Louisiana Supreme Court defined the standard for determining whether an officer has reasonable suspicion to conduct an investigatory stop:

Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of particular facts and circumstances to justify the infringement on individual’s right to be free from governmental interference. ... In determining whether or not reasonable cause exists to temporarily detain a person, the totality of the circumstances, “the whole picture,” must be considered. [Citations omitted.]

In the instant case, the unrefuted trial testimony proves that Officer Deacon and his partner received information from the NOPD dispatcher that two black males, one wearing a grey-hooded sweatshirt, were suspects in a possible burglary at 1020 Terpsichore Street. Minutes later, the officers observed two subjects who matched the description, walking in the immediate vicinity of the suspected burglary. Based on the undisputed facts articulated by Officer Deacon, we find the officers had reasonable suspicion to lawfully detain S.O. Because the State established that S.O. lied to the officers about his name and age in the course of the proper investigatory stop, the trial court correctly found him guilty of resisting an officer, a violation of La. R.S. 14:108(B)(l)(c) constituting sufficient grounds for the trial court delinquency judgment.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED

BONIN, J.,

Concurs with Reasons.

| ,1 respectfully concur in the result. I write separately to emphasize that the proper standard of review of an adjudication in a delinquency proceeding is, as provided by Louisiana Const, art. V, § 10 B, civil, not criminal. See State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979). The Louisiana Supreme Court there decided that

Except as otherwise provided by the constitution, this Court’s jurisdiction in civil cases extends to both law and facts; in criminal matters, its criminal jurisdiction extends only to questions of law. La. Const. 1974, art. 5, s. 5(C). Juvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence ..., and the special juvenile provisions within the judiciary article of the constitution. La. Const. 1974, art. 5, ss. 10, 18 and 19. Accordingly, since the constitution does not provide otherwise, the scope of review of this court in juvenile delinquency proceedings extends to both the law and the facts, (emphasis supplied)

See also In re C.B., 97-2783, p. 17 (La.3/4/98), 708 So.2d 391, 400 (“The hallmark of special juvenile procedures is their non-criminal nature.”).

Therefore, an appellate court in delinquency proceedings reviews both law and facts in properly evaluating the sufficiency of the evidence for an adjudication of a child as a delinquent. The civil standard of review in Louisiana is manifestly |2erroneous or clearly wrong, and the Batiste court applied that standard: “From this evidence we conclude that the juvenile court was clearly in error in finding beyond a reasonable doubt that Batiste committed unauthorized use of the bicycle.” Batiste, 367 So.2d at 788 (emphasis supplied).

The constitutionally required standard of proof in a delinquency proceeding is “beyond a reasonable doubt.” In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The United States Supreme Court stated:

It is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention. But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.

Id. at 367, 90 S.Ct. 1068. Moreover, a child in Louisiana enjoys state statutory protection to the same effect: “In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” La. Ch.C. art. 883. Under the federal constitution, a child is entitled, at a minimum, to a review of his adjudication for sufficiency of the evidence under the standard established by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979):

This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). This standard of review for sufficiency is more deferential than Louisiana’s “clearly wrong” standard of review.

States are free to provide broader protections to their citizens than those provided by the federal constitution. See, e.g., Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

I concur because, applying the proper, but less deferential standard of review to the sufficiency of the evidence, I find that the juvenile judge was not clearly wrong and was reasonable in adjudicating S.O. a delinquent.


source: Caselaw Access Project

author: CARTER, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Russell J. BEAUCHAMP, Jr.
    No. 2010 KA 0451.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      Frederick Kroenke, Baton Rouge, LA, for Defendant/Appellant, Russell J. Beau-champ, Jr.
    Leslie Burns, Livingston, LA, for Appel-lee, State of Louisiana.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   CARTER, C.J.

|2The defendant, Russell J. Beauchamp, Jr., was charged by bill of information with one count of distribution of cocaine, a violation of La. R.S. 40:967 A(l), and entered a plea of not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He moved for a new trial, for a post-verdict judgment of acquittal, and for arrest of judgment, but the motions were denied. He was sentenced to thirty years at hard labor, with the first two years of the sentence without benefit of probation, parole, or suspension of sentence. On appeal, the defendant contends the admission of the scientific analysis report into evidence violated his rights under the Confrontation Clause of the United States Constitution. For the following reasons, we affirm the conviction and sentence.

FACTS

On June 14, 2007, Tri-parish Narcotics Task Force Agents Bryan Mannino and Garrett Fitzgerald were driving on Summer Street in Denham Springs in an undercover vehicle equipped with a video camera. Agent Mannino saw the defendant riding a bicycle and held up four fingers, signaling he wanted to buy forty dollars worth of crack cocaine. The defendant asked, ‘You want a 40?” Agent Man-nino answered affirmatively, and the defendant told him to pull over at a nearby bar. The defendant left Agent Mannino’s field of vision, returning shortly thereafter and placing the crack cocaine on the hood of the undercover vehicle. Agent Mannino put forty dollars on the ground, as instructed to by the defendant, and secured the cocaine. The State played a recording of the drug transaction at trial.

| „MELENDEZ-DIAZ VIOLATION

In his sole assignment of error, the defendant argues the State failed to prove all of the elements of the offense, alleging the use of a scientific analysis report to establish that the substance distributed was cocaine violated Melendez-Diaz v. Massachusetts, - U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 814 (2009).

In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const, amend. VI. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). Statements are non-testimonial when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006). Statements are testimonial when the circumstances objectively indicate there is no ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution, Davis, 547 U.S. at 822, 126 S.Ct. at 2273-2274.

Melendez-Diaz involved the review of convictions for distribution of cocaine and trafficking in cocaine. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2530-2531. At trial, over a defense objection under Crawford, the prosecution relied upon “certificates of analysis” to establish that the |4substance hidden in the police car used to transport the defendant and two other men contained cocaine. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2531. As required under Massachusetts’s law, the certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2531.

The Court in Melendez-Diaz held that the certificates were “quite plainly affidavits,” falling within the core class of testimonial statements subject to the Confrontation Clause and that the analysts were “witnesses” for purposes of the Sixth Amendment. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2532. Additionally, the Court held that the power to subpoena the analysts could not substitute for the right of confrontation because compulsory process was of no use to a defendant if the witness was unavailable or simply refused to appear. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2540. The Court held that converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause would shift the consequences of adverse-witness no-shows from the State to the accused. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2540. The value of the Confrontation Clause to a defendant cannot be replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses to do so. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2540.

The Court in Melendez-Diaz, however, contrasted the statutory scheme in Massachusetts with other states’ “notice-and-demand statutes,” Iswhich require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial and give a defendant a period of time in which to object to the admission of the evidence absent the analyst’s appearance live at trial. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2541. The Court held that notice-and-demand statutes do not shift the burden because “[t]he defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so.” Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2541. The Court noted that it is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing the intent to present certain witnesses. Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2541. “There is no conceivable reason why [a defendant] cannot similarly be compelled to exercise his Confrontation Clause rights before trial.” Melendez-Diaz, — U.S. at -, 129 S.Ct. at 2541.

Louisiana Revised Statutes 15:499 A authorizes all criminalistics laboratories established by the laws of Louisiana or of the United States and all coroners, forensic pathologists, and other persons, partnerships, corporations, and other legal entities practicing in fields of knowledge and expertise in the gathering, examination, and analysis of evidence by scientific means to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis are made. -

1 ^Louisiana Revised Statutes 15:500 in pertinent part provides:

In all criminal cases ... the courts of this state shall receive as evidence any certificate made in accordance with R.S. 15:499 subject to the conditions contained in this Section and R.S. 15:501. The certificate shall be received in evidence as prima facie proof of the facts shown thereon, and as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom.

Louisiana Revised Statutes 15:501 provides:

A. The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.
B. (1) The party against whom such certificate is offered shall be permitted to subpoena on cross-examination, the person who performed the examination or analysis of the evidence. If the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody.
(2) When the attorney for the defendant, or the defendant acting in his own defense, requests that a subpoena issue to the person who performed the examination or analysis, the request shall be in writing and shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross-examination.

In State v. Cunningham, 2004-2200 (La.6/13/05), 903 So.2d 1110, 1122, theJLou-isiana Supreme Court held that the statutory scheme set forth in La. R.S. 15:499-501 is not unconstitutional under Crawford, The court noted that if a defendant requests a subpoena at least five days prior to trial for the person who performed the analysis of the evidence, or if the person responds to the subpoena, the certificate is not prima facie proof of its contents, has no evidentiary value, and the State has to call the relevant 17witnesses to prove its case. Cunningham, 903 So.2d at 1121. The court found, “[f]rom a practical standpoint, these statutes are no different from a situation in which the State offers hearsay evidence at trial. If defendant does not contemporaneously object, the hearsay is allowed into evidence.” Cunningham, 903 So.2d at 1121.

In the instant case, approximately four months prior to trial, the State filed a notice of intent to introduce a scientific analysis report at trial, attaching a copy of the report to the notice. The report was made in accordance with La. R.S. 15:499 and indicated that the evidence was determined to contain cocaine.

At trial, the State offered the certificate of analysis into evidence, and the defense objected because the certificate did not contain the date the analysis was conducted, only the date of completion, and because of the “lack of confrontation.” The State responded that the certificate listed the date of examination. In regard to the objection regarding the lack of confrontation, the State responded that it filed a notice of intent to introduce the certificate, the criminal code has a procedure to allow the party against whom the certificate is offered to cross-examine the analyst, and the defense failed to- follow that procedure. The certificate was admitted into evidence.

Following conviction, but prior to sentencing, the defense moved for a new trial, a post-verdict judgment of acquittal, and for arrest of judgment, arguing that admission of the certificate of analysis at trial violated Melendez-Diaz. At the hearing on the motions, the State argued that the defendant could have exercised his confrontation rights when given notice |sthat the State was going to introduce the certificate of analysis at trial. The trial court denied the defendant’s post-trial motions.

Admission of the scientific analysis report into evidence at trial did not violate Melendez-Diaz, and thus, the State presented sufficient evidence that the substance the defendant distributed was cocaine. Louisiana Revised Statutes 15:501 is precisely the kind of “notice-and-demand” statute that the court in Melendez-Diaz recognized to be permissible under the Confrontation Clause. The Louisiana statutory scheme, La. R.S. 15:499 et seq., merely requires a defendant to exercise his Confrontation Clause rights prior to trial. If the defendant had made a timely request for the issuance of a subpoena for the person who performed the analysis, the certificate would not have been admissible into evidence in lieu of such testimony. It would have been incumbent upon the State to procure the attendance of the person making the certificate at trial and to offer that testimony to establish the results of the examination. See State v. Landry, 583 So.2d 911, 912-914 (La.App. 1st Cir.1991).

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

      . The Tri-parish area includes the Livingston Parish Sheriffs Office, the Tangipahoa Parish Sheriff’s Office, and the St. Helena Parish Sheriff’s Office.

      . Louisiana Revised Statutes 15:499 and 15:501 were amended by 2010 La. Acts 693 (eff.08/15/2010). All references herein are to the versions of the statutes prior to Act 693.

      . The Louisiana Supreme Court was examining the statutes prior to their amendment by 2010 La. Acts 693 (eff.08/15/2010).

      . The court in Cunningham also noted a defendant must file a motion to suppress in order to contest an unconstitutional search. Cunningham, 903 So.2d at 1121 n. 11.


author: KUHN, J.

text:
    J4H, L.L.C., Just 4 Him Houma, L.L.C., and Just 4 Him, L.L.C. v. Misty Zeringue DEROUEN and Making the Kut, L.L.C.
    No. 2010 CA 0319.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      Steven M. Miller, Thibodaux, Louisiana, for Plaintiffs-Appellants, J4H, L.L.C., Just 4 Him Houma, L.L.C., and Just 4 Him, L.L.C.
    Woody Falgoust, Cassie Rodrigue Braud, Rachel Bollinger Carothers, Thibo-daux, Louisiana, for Defendants-Appel-lees, Misty Zeringue Derouen and Making the Kut, L.L.C.
    Before KUHN, PETTIGREW, and KLINE, JJ.

      . The Honorable William F. Kline, Jr. is serving pro tempore by special appointment of the Louisiana Supreme Court.

   KUHN, J.

1 .Plaintiffs, J4H, L.L.C. (“J4H”), Just 4 Him Houma, L.L.C., and Just 4 Him, L.L.C. (“Just 4 Him”), appeal the trial court’s judgment, which denied their motion for a preliminary injunction to prohibit defendants, Misty Zeringue Derouen and Making the Kut, L.L.C., from competing with plaintiffs’ hair salons in accordance with the terms of a noncompetition agreement. We affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

Tica Sevin formed Just 4 Him, L.L.C., a male-themed hair salon in Lockport, Louisiana, in December 2005. The salon catered to male clients seeking walk-in salon services. Due to its success, a second salon was opened six months later in Hou-ma, Louisiana, at 632 Corporate Drive. Thereafter, J4H was formed to franchise additional Just 4 Him salons. Tica and her husband, Kevin, are owners of J4H, which owns the salon located in Houma,

Ms. Derouen graduated from cosmetology school in 2001. She began working for Just 4 Him on March 26, 2007, after she and the Sevins reached a verbal agreement regarding the hours she would work, and they agreed she would receive 50 percent of the amount charged for the services she performed. She did not pay any additional amount to the salon to rent a “chair” or “booth;” the percentage of her earnings paid to the salon was her “rent.” Just 4 Him provided hair dryers and Paul Mitchell products for her use, but she provided her own scissors. Just 4 Him and/or J4H paid Ms. Derouen weekly; she kept all of her tips; |3and no social security or income taxes were withheld from her pay. Ms. Derouen primarily cut hair at the Houma salon, but she occasionally worked in other Just 4 Him. salon locations. For at least part of the time that she worked for Just 4 Him, she was a manager who trained new stylists, and she traveled to new salons as they opened to help with trainings.

On June 6, 2007, Ms. Derouen signed an “Operating Manual,” a six-page document that outlined various operating procedures for Just 4 Him. It included provisions addressing vacation time and an “end of the year bonus,” and it contained the following paragraph relevant to plaintiffs’ request for injunctive relief:

[B]y Louisiana law, clients are property of [Just 4 Him] and [J4H].... You may not take any trademark property of ■ [Just 4 Him] or [J4H] upon termination of employment. Trademark property includes using the name Just 4 Him, Just 4 Him Haircut Lounge or Just 4 Him Men’s Haircut Lounge. Trademark property also refers to any and all concepts regarding the Just 4 Him Ham-cut Lounge or [J4H] including but not limiting [sic] to a sports themed or male themed salon. Stylists are entered into a non compete clause with [Just 4 Him] and or [J4H] and may not compete with any of the afore named establishments within Lafourche and or Terrebonne Parish for 2 years from date of termination.

On July 10, 2009, the Sevins held a meeting with the Just 4 Him ham stylists. Mr. Sevin testified that the Just 4 Him salon located at 632 Corporate Drive was about to relocate to Martin Luther King Blvd., and he had been hearing complaints from his stylists. He called all of the hair stylists together for a meeting, wherein he told them that the salon would have extended hours on Saturday, and he discussed other business matters pertaining to the relocation.. Mr. |4Sevin further testified that he instructed his stylists that if they could comply with his directives, they could return the next day and continue working for Just 4 Him. He testified that all of the stylists returned the next day, except Ms. Derouen. Just 4 Him moved to its new Martin Luther King Blvd. location, and on August 17, 2009, Ms Derouen opened her own male-themed hair salon, Making the Kut, L.L.C. (“Making the Kut”), in the same business suite that Just 4 Him’s salon had previously occupied at 632 Corporate Drive.

On October 6, 2009, plaintiffs filed a petition seeking injunctive relief and damages, wherein plaintiffs alleged that Ms. Derouen “worked as an independent contractor cutting hair in ... [plaintiffs’ salons] while primarily working out of the salon located at 632 Corporate Drive .... ” and was “an independent contractor employed by [J4H] to act as a trainer for that business.” Plaintiffs further alleged that Making the Kut was directly competing with plaintiffs and using the same business model and training methods used by Just 4 Him. Plaintiffs sought damages for losses resulting from defendants’ competition and injunctive relief to enforce the terms of the noncompetition agreement.

The trial court issued an order directing defendants to show cause at a November 10, 2009 hearing why a preliminary injunction should not issue prohibiting them from competing with plaintiffs and why the terms of the noncompetition agreement should not be enforced. On November 30, 2009, the trial court signed a judgment denying plaintiffs’ motion for a preliminary injunction and ordering plaintiffs to bear all costs of the matter. In oral reasons for judgment, the trial court found, in pertinent part, as follows:

[Ms. Derouen] ... was certainly an independent contractor. I don’t think there is any doubt about that.... And as a result of that, we’re | .¡required to look at the statute to see what has to happen for an independent contractor [to enforce a noncompetition agreement] .... There’s a distinct difference ... between the treatment of an employee and the treatment of an independent contractor....

The trial court further concluded that plaintiffs’ burden of establishing a written contract as required by La. R.S. 23:921 C, pursuant to which Ms. Derouen’s work as an independent contractor was performed, was not satisfied by the Just 4 Him operating manual.

Plaintiffs appealed, urging that the trial court incorrectly concluded that: 1) Ms. Derouen was an independent contractor for purposes of applying La. R.S. 23:921, and 2) Just 4 Him’s operating manual was not an enforceable contract.

II. ANALYSIS

Historically, Louisiana has disfavored noncompetition agreements. Swat 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 4 (La.6/29/01), 808 So.2d 294, 298. Such agreements are deemed to be against public policy, except under the limited circumstances delineated by statute. LaFourche Speech & Language Services, Inc. v. Juckett, 94-1809, p. 3 (La.App. 1st Cir.3/3/95), 652 So.2d 679, 680, writ denied, 95-0850 (La.5/12/95), 654 So.2d 351. At all times pertinent to this matter, La. R.S. 23:921 provided in part as follows:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, 1 (¡or business of any kind, except as provided in this Section, shall be null and void.
C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract. (Footnote and emphasis added.)

Louisiana Revised Statutes 23:921 C is an exception to Louisiana’s public policy against noncompetition agreements and, as such, must be strictly construed. Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 00-1954, pp. 6-7 (La.App. 1st Cir.9/28/01), 809 So.2d 405, 410-11, writs denied, 01-3316 & 01-3355 (La.3/8/02), 811 So.2d 883 & 886.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought by making a prima facie showing that the party will prevail on the merits of the case. Vartech Systems, Inc. v. Hayden, 05-2499, p. 7 (La.App. 1st Cir.12/20/06), 951 So.2d 247, 255. However, where an obligor has failed to perform in accordance with the terms of a noncompetition |7agreement, the court shall order injunctive relief even without a showing of irreparable harm upon proof of the obligor’s breach. See Id.; Clear Channel Broadcasting Inc. v. Brown, 04-0133, p. 6 (La.App. 4th Cir.3/30/05), 901 So.2d 553, 557; see also La. R.S. 23:921 H.

Even though La. R.S. 23:921 mandates the court to issue injunctive relief upon proof of the obligor’s failure to perform, the employer must still establish that it is entitled to relief. Vartech Systems, Inc., 05-2499 at pp. 7-8, 951 So.2d at 255. If the agreement is found to be unenforceable or the agreement does not fall within an exception found in La. R.S. 23:921, the employer is unable to establish that it is entitled to the relief sought. CDI Corp. v. Hough, 08-0218, p. 6 (La.App. 1st Cir.3/27/09), 9 So.3d 282, 287.

Ordinarily, a trial court exercises great discretion in granting or denying the requested relief. Vartech Systems, Inc., 05-2499 at pp. 8, 951 So.2d at 256. Absent a clear abuse of that discretion, the trial court’s determination will not be disturbed on appeal. CDI Corp., 08-0218 at p. 6, 9 So.3d at 287. In this case, however, the underlying issue is whether the noncom-petition agreement falls within the exception found in La. R.S. 23:921 C. The proper interpretation of a statute is a question of law that we review on a de novo basis. CDI Corp., 08-0218 at p. 7, 9 So.3d at 287.

1. Employee or Independent Contractor Status

Despite the petition’s allegations and testimony by Mr. Sevin that Ms. Der-ouen was an independent contractor, plaintiffs now argue on appeal that Ms. Der-ouen was an employee for purposes of applying La. R.S. 23:921. Plaintiffs urge that pursuant to the operating manual, they maintained the right to terminate | astylists for any reason and otherwise maintained control over their stylists, and as such, Ms. Derouen was actually their employee. Generally, the distinction between employee and independent contractor status is a factual determination decided on a case-by-case basis, which is subject to a manifest error standard of review. See Tower Credit, Inc. v. Carpenter, 01-2875, pp. 6-7 (La.9/4/02), 825 So.2d 1125, 1129-30. But in this case, defendants counter plaintiffs’ contentions on appeal, urging that the allegations of plaintiffs’ petition and Mr. Sevin’s testimony constitute a “judicial confession” that Ms. Der-ouen was an independent contractor pursuant to La. C.C. 1853. We find merit in defendants’ contention.

Louisiana Civil Code article 1853 provides:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

Well-settled jurisprudence establishes that an admission by a party in a pleading constitutes a judicial confession and is full proof against the party making it. C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003, p. 5 (La.12/3/03), 861 So.2d 156, 159. In this instance, plaintiffs judicially admitted that Ms. Derouen was an independent contractor when they made multiple allegations to that effect in their petition. Mr. Sevin’s testimony during trial further confirmed that judicial confession:

[Mr. Sevin]:
Every service that [Ms. Derouen] does ... she makes ... [50%] off of it. THE COURT:
Okay. So she wasn’t an employee?
| s[Mr. Sevin]:
More like—
THE COURT:
You paid taxes?
[Mr. Sevin]:
More like an independent contractor we 1099 them.
THE COURT:
You gave them 1099’s?
[Mr. Sevin]:
Yes, sir.
THE COURT:
So the vacation pay [addressed in the operating manual] was really a gift in the since (sic) that they got paid for not being there.
[Mr. Sevin]:
Correct....
THE COURT:
Right. But usually vacation pay you talk about in terms of employees.
[Mr. Sevin]:
Oh okay.
THE COURT:
These are independent contractors. [Mr. Sevin]:
Yes, sir.
THE COURT:
Okay. And the same thing with the Christmas bonus if there was one. That was basically a gift.
[Mr. Sevin]:
Yes, sir.

li(A judicial confession has the effect of waiving evidence as to the subject of the admission. Id. Article 1853 explicitly provides that a judicial confession may be revoked only on the ground of error of fact. C.T. Traina, Inc., 03-1003 at p. 6, 861 So.2d at 160. Plaintiffs have at no time asserted that its judicial confession that Ms. Derouen was an independent contractor was made in error. Id. It was not until the trial court ruled adversely to plaintiffs, and they realized that them admission worked to their detriment, with respect to the application of La. R.S. 23:921 C, that they retreated from then-previous, committed stance. We conclude based on the record before us that plaintiffs’ judicial confession that Ms. Derouen was an independent contractor was never revoked on the ground of error of fact.

2. Work Performed Pursuant to a Written Contract

Louisiana Revised Statutes 23:921 C authorizes independent contractors, “whose work is performed pursuant to a written contract,” to enter into noncompet-ition agreements in accordance with the terms of that subsection. Plaintiffs urge that if Ms. Derouen is considered an independent contractor, the operating manual, which includes the noncompetition clause, satisfies the statutory writing requirement. Plaintiffs argue that the trial court misinterpreted La. R.S. 23:921 C by interpreting it to require that the “written contract” must address how the work is to be performed. Plaintiffs assert that the statute does not require the written contract to address any particular terms, and because a lack of employer control over a job is indicative of an independent contractor relationship, the absence of such terms cannot be fatal to the enforcement of the written agreement at hand. We find no merit in these contentions.

| ^Hiring the services of another person is a form of a contract of lease. La. C.C. art. 2745; Loup v. Louisiana State School for the Deaf, 1998-0329, p. 4 (La.App. 1st Cir.2/19/99), 729 So.2d 689, 692. For a contract of lease to be valid, there must be a thing, a price, and consent. La. C.C. art. 2670. In order to enforce a non-competition agreement against an independent contractor, La. R.S. 23:921 C mandates that the independent contractor’s work is performed “pursuant to a written contract.” Interpreting this statutory requirement strictly, in accordance with Louisiana’s public policy against noncom-petition agreements, we construe this language as requiring a valid contract of lease in written form. A contrary interpretation would defeat Louisiana’s strong objective of preventing an individual from contractually depriving himself of the ability to support one’s self where the terms of his oilier work are not the clear object of the contract. Because Just 4 Him’s operating manual neither specified an agreement as to the price that Ms. Derouen was to be paid nor specified the services she was to perform, it did not constitute a contract of lease; thus, Ms. Derouen’s work was not performed pursuant to it within the meaning of La. R.S. 23:921 C. Accordingly, because plaintiffs did not establish that Ms. Derouen was performing work “pursuant to a written contract” as contemplated by La. R.S. 23:921 C, they did not establish that the noncompetition agreement met the requirements of that exception and that they were entitled to the relief sought. CDI Corp., 08-0218 at p. 6, 9 So.3d at 287. The trial court properly denied plaintiffs’ motion for a preliminary injunction.

hJIL CONCLUSION

For these reasons, we affirm the trial court’s judgment denying plaintiffs’ motion for a preliminary injunction. Appeal costs are assessed against plaintiffs-appellants.

AFFIRMED.

      . The record establishes that each stylist had a different agreement regarding compensation, with some receiving a smaller percentage of the amount of the services rendered.

      . Ms. Derouen testified she was initially paid in cash and later paid with a Just 4 Him check from the J4H franchise.

      . An appeal may be taken as a matter of right from a judgment relating to a preliminary injunction. La. C.C.P. art. 3612.

      . Louisiana’s strong public policy restricting these types of agreements is premised on an underlying state objective to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 00-1954, p. 6 (La.App. 1st Cir.9/28/01), 809 So.2d 405, 410. writs denied, 01-3316 & 01-3355 (La.3/8/02), 811 So.2d 883 & 886.

      .Acts 2010, No. 164, effective August 15, 2010, added the following sentence to Subsection 1 of Paragraph A of La. R.S. 23:921:
      However, every contract or agreement, or provision thereof, which meets the exceptions as provided in this Section, shall be enforceable.


author: PARRO, J. HUGHES, J.,

text:
    Vanessa EMERY and Nedra Wrights v. PROGRESSIVE CASUALTY INSURANCE COMPANY, T & T Seafood, Inc., Joshua Tourere, Allstate Property & Casualty Insurance Company, and Liberty Mutual Fire Insurance Company.
    No. 2010 CA 0327.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      David J. Schexnaydre, Mary B. Lord, Pajares & Schexnaydre, L.L.C., Mande-ville, LA, for Defendant-Appellant Progressive Security Insurance Company.
    Keith L. Richardson, Brad M. Bou-dreaux, Guglielmo, Marks, Schutte, Ter-hoeve & Love, Baton Rouge, LA, for Defendant-Appellee T & T Seafood, Inc.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

^Defendant, Progressive Security Insurance Company (Progressive), appeals the judgment of the trial court granting a partial motion for summary judgment in favor of another defendant, T & T Seafood, Inc. (T & T), finding that Progressive had waived its coverage defenses in this matter. For the reasons that follow, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Vanessa Emery and Nedra Wrights, were involved in an automobile accident in which the vehicle they were occupying was rear-ended by a vehicle driven by Joshua Tourere (Joshua) on April 25, 2006. According to the plaintiffs’ petition, the impact from the collision forced the plaintiffs’ vehicle off the road, where the vehicle then struck a sign and two parked cars.

When the accident occurred, Joshua was allegedly in the course and scope of his employment with T & T, thus making T & T allegedly vicariously liable for the accident and the resulting damages. At the time of the accident, Progressive provided automobile liability coverage to T & T for various vehicles listed on the declarations page of the policy; however, Joshua was not driving any of these listed vehicles when the accident occurred. Instead, Joshua was driving his personal vehicle, which Progressive alleges was not covered by the policy it issued to T & T, as it was not one of the listed vehicles covered by the policy, nor was it a replacement or substitute vehicle.

Progressive contends that it was notified of the accident on November 13, 2006, and that eleven days later, on November 24, 2006, it sent T & T a reservation of rights letter, citing the parts of the policy defining what was considered an insured auto and advising T & T that it was conducting an investigation into the issue of coverage. In the letter, Progressive advised T & T that no action it might take to investigate, explore |,^settlement, or defend a lawsuit arising out of the accident should be deemed to be an admission of coverage under the policy. The letter further stated that it would notify T & T when its coverage investigation was complete. However, on the same date, Progressive sent another letter to T & T advising T & T that it had completed its investigation into the accident and that it had concluded that there was “no coverage available for this loss.” At no point in this letter did Progressive advise T & T that there was a conflict of interest or that T & T should consult a separate attorney with regard to the issue of coverage.

Despite having sent these letters to T & T, Progressive subsequently appointed a single attorney to defend both Progressive and T & T when the plaintiffs filed their lawsuit against them on February 21, 2007. One month later, this attorney filed an answer on behalf of both T & T and Progressive that contained various defenses, including an affirmative defense asserting that there was no coverage under the policy. Although Progressive had now denied coverage to T & T by letter and in an official pleading, Progressive continued to use a single attorney to represent both itself and its insured in this matter. On August 12, 2008, while still representing both Progressive and T & T, this attorney deposed Joshua and specifically inquired about facts concerning coverage. Only after taking this deposition did Progressive appoint separate counsel for T & T. Therefore, on August 22, 2008, almost twenty-one months after Progressive had first denied coverage by letter to T & T, and more than seventeen months after the original attorney had filed an answer asserting the affirmative defense that there was no coverage, Progressive provided a separate attorney solely to represent the interests |4of T & T. It was that attorney who then advised T & T in a letter of the conflict of interest. The new attorney further advised T <& T that he would not be representing T & T on the coverage issue and that T & T might wish to retain another attorney on that issue.

In January 2009, after this separate attorney had been appointed, the attorney representing only Progressive went to the home of John Tourere (Mr. Tourere), the owner and president of T & T, to get him to sign an affidavit concerning the ownership of various motor vehicles, which was a key fact in the coverage dispute. It is undisputed that T & T’s attorney was not there with him when he signed the affidavit, and according to T & T’s briefs and argument both at the trial court level and the appellate level, T & T’s attorney was not notified that Progressive’s attorney intended to obtain this affidavit from Mr. Tourere. Indeed, T & T’s attorney contends that both attorneys for T & T only found out about the affidavit when it was attached to Progressive’s motion for summary judgment. Moreover, Mr. Tourere stated in a later affidavit that he was not aware that the attorney who came to get his signature on the affidavit concerning vehicle ownership was representing only Progressive in this matter.

After obtaining this affidavit, Progressive filed a motion for summary judgment contending that there was no coverage under the policy. T & T responded by filing a motion for partial summary judgment arguing that Progressive had waived its coverage defenses. After a hearing, the trial court granted T & T’s motion for . partial summary judgment and denied Progressive’s motion for summary judgment. The trial court further designated the judgment as final and appealable after finding no just reason for delay.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544, 546; see LSA-C.C.P. art. 966. An appellate court’s review of a summary judgment is a de novo review based on the evidence presented to the trial court, using the same criteria used by the trial court in deciding whether a summary judgment should be granted. Buck’s Run Enterprises, Inc. v. Mapp Const., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. A motion for summary judgment should be granted only if all the pleadings, depositions, answers to interrogatories, admissions, and any affidavits submitted to the trial court show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). If the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. See LSA-C.C.P. art. 966(C)(2).

DISCUSSION

Generally, in the terms of its liability policy, an insurer contractually agrees to provide its insured a legal defense for liability claims against the insured. Problems arise, however, when the insurer concludes that its policy does not provide coverage for the particular claim made against its insured. The insurer is faced with a dilemma between its duty to defend and its right to contest coverage with its insured. Dugas Pest Control of Baton Rouge, Inc. v. Mutual Fire, Marine and Inland Ins. Co., 504 So.2d 1051, 1053 (La.App. 1st Cir.1987).

Moreover, the insurer has a duty to defend its insured even though there may ultimately be no liability on the insured’s part. The insurer is obligated to provide this defense unless the allegations of the petition unambiguously exclude coverage. Id. Thus, although the allegations of the petition may ultimately turn out incorrect or untrue, the insurer is still obligated to provide a defense. Id. at 1054.

As noted in Dugas, the Louisiana State Bar Association’s Committee on Professional Ethics and Grievances, in a formal opinion, has stated, “[wjhere the insurer either denies coverage to the insured or reserves its rights to do so subsequently, ... the | fiCommittee is of the opinion that it would be improper ... for the same attorney to represent both the insurer and the insured.” Id. Accordingly, if the insurer chooses to represent the insured but deny coverage, it must employ separate counsel. Id.; see Belanger v. Gabriel Chemicals, Inc., 00-0747 (La.App. 1st Cir.5/23/01), 787 So.2d 559, 565, writ denied, 01-2289 (La.11/16/01), 802 So.2d 612.

This position is further supported by Rule 1.7 of the Rules of Professional Conduct, which provides:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4)each affected client gives informed consent confirmed in writing.

Louisiana State Bar Association, Articles of Incorporation, Art. XVI, Rules of Professional Conduct, Rule 1.7, LSA-R.S. foil. 37:222.

T & T contends that because Progressive failed to appoint separate counsel earlier than it did, Progressive has waived its right to assert any coverage defenses in this matter. Waiver is generally understood to be the intentional relinquishment of a known right, power, or privilege. Waiver occurs when there is an existing right, a knowledge of its existence, and an actual intention to relinquish it, or conduct so inconsistent with 17the intent to enforce the right as to induce a reasonable belief that it has been relinquished. A waiver may apply to any provision of an insurance contract, even though this may have the effect of bringing within coverage risks originally excluded or not covered. Steptore v. Masco, 93-2064 (La.8/18/94), 643 So.2d 1213, 1216.

Waiver principles are applied stringently to uphold the prohibition against conflicts of interest between the insurer and the insured that could potentially affect legal representation in order to reinforce the role of the lawyer as the loyal advocate of the client’s interest. Accordingly, when an insurer, with knowledge of facts indicating noncoverage under the insurance policy, assumes or continues the insured’s defense without obtaining a non-waiver agreement to reserve its coverage defense, the insurer waives such coverage defense. Id.

There is no dispute in this matter that Progressive had knowledge of facts indicating noncoverage under the insurance policy prior to the filing of the lawsuit in this matter. Progressive contends, however, that its only duty in this matter was to issue a reservation of rights letter to T & T and that once it had done so, it was then permitted to provide only one attorney to represent both itself and its insured while it further investigated the coverage issue.

Progressive’s argument fails to acknowledge the fact that it was not merely investigating the coverage issue. Indeed, on the same date that Progressive mailed T & T the reservation of rights letter, it also mailed T & T a letter stating that it had “concluded” its investigation into the accident and that it had “determined that there was no coverage available” under the policy. Thereafter, despite having already denied coverage, Progressive appointed a single attorney to represent itself and its insured in the litigation, and that attorney filed an answer asserting, for the second time, that the Progressive policy did not provide coverage for the accident. Despite this obvious conflict of interest, Progressive did not act to provide separate counsel for its insured for approximately seventeen months.

IsThese actions on the part of Progressive not only constituted a conflict of interest, but they constituted conduct so inconsistent with an intent to enforce its right to assert its coverage defense as to induce a reasonable belief that the right had been relinquished. It is true that Progressive had advised T & T that coverage was denied prior to any suit being filed, as well as asserting again its coverage defense when it filed an answer using the same attorney it had appointed to represent T & T. However, for the next seventeen months, Progressive did nothing to advise T & T of the conflict of interest inherent in these actions, nor did the single attorney it appointed obtain any informed, written consent from T & T concerning this conflict of interest as required by Rule 1.7(b)(4) of the Rules of Professional' Conduct. Moreover, Progressive did not retain separate counsel for T & T as required by Dugas and Belanger until seventeen months after filing the answer denying coverage, thereby evidencing the conflict of interest. Only then did the new attorney appointed by Progressive advise T & T that it may wish to consult another attorney on the issue of coverage. The result was that for approximately seventeen months, T & T was represented by an attorney who was not completely dedicated to its defense in this matter. Instead, it was represented by an attorney who knew of an obvious conflict of interest and never notified T & T of that fact. In addition, T & T was represented by an attorney who actively took steps detrimental and prejudicial to its position in the lawsuit. As waiver principles are to be applied stringently to uphold the prohibition against conflicts of interest between the insurer and the insured that could potentially affect legal representation in order to reinforce the role of the lawyer as the loyal advocate of the client’s interest, we must find that Progressive waived its coverage defenses by assigning only one attorney to represent itself and its insured for seventeen months despite having knowledge of facts indicating noncov-erage under the policy.

[flDECREE

For the reasons set forth above, the judgment granting the motion for partial summary judgment filed by T & T Seafood, Inc. is affirmed. All costs of this appeal are assessed to defendant, Progressive Security Insurance Company.

AFFIRMED.

HUGHES, J., dissents with reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent. I can find no prejudice to T & T on the merits.

The letter and answer put T & T on notice, but did not admit anything leading to liability. The affidavit and deposition likewise revealed only the true facts, which are uncontested, and did nothing to harm T & T on the merits.

The facts may be adverse to T & T on the issue of coverage, but I don’t see how discovering the truth any quicker would have helped. And had a separate “conflict” counsel been present from day one, the result would be the same.

      . Progressive is referred to as Progressive Casualty Insurance Company at various times in the record-however, the judgment refers to it as Progressive Security Insurance Company. Furthermore, in its answer, Progressive states that it was incorrectly named in the petition as Progressive Casualty Insurance Company and gives its correct name as Progressive Security Insurance Company. Therefore, when we use the full name of the company, we will use the name as it appears in the answer and in the judgment.

      .The lawsuit also named as defendants Joshua Tourere, Allstate Property & Casualty Insurance Company (Allstate), and Liberty Mutual Fire Insurance Company (Liberty Mutual). The plaintiffs later amended the petition to add Toyota Motor Sales, U.S.A., Inc. and/or Toyota Motor Corporation and/or Toyota Motor Company, LTD (Toyota) for failure of the airbag in the plaintiffs’ vehicle to deploy. Joshua and Allstate were dismissed, with prejudice, when Allstate, Joshua’s insurer, paid the limits of its policy. Toyota was also dismissed pursuant to a motion for summary judgment. Liberty Mutual is the uninsured motorist carrier on the plaintiffs’ vehicle, and it remains in the lawsuit; however, it is not involved in this appeal.

      . In addition to the affirmative defense asserting no coverage, paragraph nine of the answer contained a straight denial of the petition’s allegation that the policy provided coverage for the accident.

      . At the hearing on the motions for summary judgment, the attorneys noted that the attorney representing T & T and Progressive at the deposition was also representing Joshua at this time, as Joshua was T & T’s employee.

      . It should be noted that the letter from this newly-appointed attorney claims that Progressive was raising a coverage defense that T & T's policy was cancelled for non-payment of premiums prior to the accident. However, this does not appear ever to have been a defense raised by Progressive at any point in this litigation.

      . See Opinion No. 342, May 30, 1974.

      . Neither Dugas nor Belanger addressed the issue of waiver. Instead, both cases addressed the insurer's liability for attorney fees and costs that the insured may incur for defending the suit when the insurer fails to employ separate counsel.

      . In its brief to this court, Progressive suggested that it was also appealing that portion of the judgment denying its motion for summary judgment; however, such judgments are not appealable. LSA-C.C.P. art. 2083(C). Counsel for Progressive acknowledged this fact in oral argument before this court.