text:
    Cathy GRIFFIN, Plaintiff-Appellant v. CITY OF MONROE, et al, Defendants-Appellees.
    No. 46,229-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Anthony J. Bruscato, Monroe, LA, for Appellant.
    Nanci S. Summersgill, Monroe, LA, for Appellees.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

_JjThe plaintiff, Cathy Griffin (“Griffin”), sued the defendants, the City of Monroe and Jeffrey P. Pilcher (“Pilcher”), for damages stemming from an automobile accident. The trial court rendered judgment in favor of the defendants. Griffin now appeals. At issue is whether the trial court was correct to judge Griffin’s conduct according to that of a driver entering a highway and whether the trial court erred in its application of the standard applicable to drivers of emergency vehicles. Finding no error in the trial court’s judgment, we affirm.

FACTS

The accident occurred at about 5:00 p.m. on July 22, 2008, on Forsythe Avenue in Monroe, Louisiana. Forsythe is a five-lane roadway with two eastbound lanes, two westbound lanes, and a center turn lane. Pilcher, a patrolman with the Monroe Police Department, was parked in a parking lot off the eastbound lanes of For-sythe and using a radar gun to check for speeders. The speed limit on this area of Forsythe is 35 miles per hour. After clocking an eastbound vehicle traveling 53 miles per hour, Pilcher left the parking lot by taking a right on Forsythe to pursue the speeder. Pilcher’s patrol car was equipped with emergency lights in the front grille and rear dash, which he activated upon beginning the pursuit, and a dashboard video camera, which had been recording. An audio recording also began when the pursuit started. During the pursuit, Pilcher was using a hands-free cell phone device to talk to another officer about an upcoming golf tournament.

li>As Pilcher began pursuing the speeder, Griffin was preparing to exit the parking lot of a Chase Bank located on the westbound side of Forsythe. Griffin wanted to turn left across Forsythe and get all the way to the outside eastbound lane so that she could then take a right at Oliver Road. As Pilcher was approaching, Griffin began her turn. Just as she entered the outer eastbound lane, she was hit from behind by Pilcher. Due to Pilcher’s braking in an effort to avoid a collision, the accident was minor. ' Thirty days after this accident, Griffin was involved in another automobile accident that caused substantial damage to the front end of her vehicle.

At trial, Griffin testified that she had looked to her left (east) and then to her right (west) prior to entering Forsythe. She waited for a westbound truck coming from her left to pass and then entered the roadway. Because nothing had been coming when she looked right, Griffin did not look to her right again or stop in the turn lane to check for oncoming traffic before entering the eastbound lanes. Griffin testified that she did not see Pilcher’s patrol car traveling eastbound until it hit her from behind.

Pilcher testified that after entering the outside eastbound lane, he changed lanes to get around a vehicle turning right. He then got back into the outside lane at which time he observed Griffin’s vehicle leaving the Chase Bank parking lot and entering Forsythe. He saw her cross the two westbound lanes and the center turn lane. He assumed she would enter the inside eastbound lane since he was approaching in the outside lane. At that time, he let off the acceleration. When he saw that Griffin was entering his lane of travel, he stomped on the brakes but could not avoid hitting Griffin’s lavehicle. Pil-cher admitted at trial that he was not sure how fast he was driving and that his focus was on the traffic on the road, not the speedometer.

Jeffery Lynn Sanders, an officer with the Monroe Police Department, qualified as an expert in accident reconstruction. Two weeks prior to trial, he reviewed the dashboard video recording, the accident report, and photographs from the accident. Using the video recording along with Google Maps and his own measurements of Forsythe, Sanders determined the distance traveled by Pilcher and his speed for each second of the video until the accident. Sanders determined that Pilcher had reached a maximum speed of 76 miles per hour in an attempt to catch up to the speeder. Sanders agreed with Griffin’s counsel that if Pilcher had decreased his speed when he saw her cross the westbound lanes the accident could have been avoided. However, he also testified that if Pilcher could see Griffin move across the westbound lanes of Forsythe, then she could have seen him approaching if she had looked in Pilcher’s direction. Sanders stated that Griffin was turning at an angle and that her vehicle never got completely straight in the outside eastbound lane before the accident occurred.

The dashboard video recording was introduced into evidence. It shows that just as Pilcher is changing from the inside to the outside lanes after passing a vehicle, Griffin is proceeding from the parking lot onto the roadway. She enters the roadway between two westbound vehicles and proceeds without hesitation through the lanes of travel. As Pilcher returns to the outside eastbound lane, Griffin is entering the center turn lane. LBraking from Pil-cher’s patrol can be heard just as the right front tire of Griffin’s vehicle approaches the dividing line between the two eastbound lanes of travel. The impact appears to occur simultaneously with Griffin’s entry into the outer eastbound lane.

The trial judge found at the close of trial that Griffin was clearly negligent. He noted that Griffin just avoided a collision with a westbound vehicle when she pulled out onto Forsythe and that she then crossed the lanes of travel and entered the outside lane where the collision occurred. After taking the matter under advisement to determine whether any fault should be assessed against Pilcher, the trial judge found no fault on his part. The trial judge concluded that Pilcher was doing what was necessary to apprehend a speeder and was not driving with reckless disregard for the safety of others, whereas Griffin pulled onto Forsythe without seeing what she should have seen, namely, Pilcher’s approaching patrol car with its emergency lights flashing.

After the denial of a motion for a new trial, Griffin appealed the trial court’s judgment allocating sole fault against her and none against Pilcher.

DISCUSSION

Griffin’s Fault

Griffin argues that it was legal error for the trial court to judge her actions according to the standard of conduct applicable to a driver entering a highway. She argues that the accident did not occur as she was entering the highway. Rather, it was a rear-end collision that occurred after she had successfully entered the outside eastbound lane of travel and was | .^proceeding forward in that lane. She asserts that she did not see Pilcher’s vehicle when she looked to her right before entering Forsythe because it was more than 600 feet away and there was no need for her to look again.

La. R.S. 32:124 provides that a “driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building ... shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” The driver entering a highway has the primary duty to avoid a collision. This is a high duty which requires the entering driver to use every reasonable means available to make sure that he can safely enter the highway. The driver must keep a lookout for vehicles on the highway and not enter until safe to do so. Cooley v. Trinity Universal Ins. Co., 37,701, p. 9-10 (La.App.2d Cir.11/26/03), 862 So.2d 248, 254, writ denied, 2003-3532 (La.3/12/04), 869 So.2d 825; Daniels v. Burridge, 2000-1089, p. 5-6 (La.App. 4th Cir.3/21/01), 785 So.2d 906, 910-911, writ denied, 2001-1110 (La.6/1/01), 793 So.2d 201. Keeping a lookout requires one not only to look, but to see what should be seen. Looking but not seeing what should be seen is tantamount to not looking at all. Smith v. Commercial Union Ins. Co., 609 So.2d 1024, 1026 (La.App. 2d Cir.1992), writ denied, 612 So.2d 86 (La.1993).

Additionally, drivers are required to yield the right of way upon the immediate approach of authorized emergency vehicles making use of audible or visual signals. La. R.S. 32:125(A). This duty arises when a motorist observes or hears, or under the circumstances should have observed or heard, the audible or visual warnings. Neloms v. Empire Fire and Marine Ins. Co., 37,786, p. 8 (La.App.2d Cir.10/16/03), 859 So.2d 225, 231; Pope v. Prunty, 37,395, p. 13 (La.App.2d Cir.8/20/03), 852 So.2d 1213, 1221, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137.

Griffin testified that she looked to her left and then to her right before entering Forsythe after waiting for a westbound vehicle to pass. Because she did not see any eastbound traffic on her right, she did not look back in that direction as she crossed four lanes and entered the outside eastbound lane. Had Griffin maintained a proper lookout for oncoming traffic as she crossed the two westbound lanes, the center turn lane, and the inside eastbound lane, she would have seen the approach of Pilcher’s patrol car with its emergency lights activated. As established by the video and by Officer Sanders’ testimony, Griffin had the opportunity to have seen Pilcher’s vehicle approaching before she completed her turn into the outside eastbound lane.

Contrary to her argument that this was a rear-end collision that occurred after she had successfully entered the outside eastbound lane and was proceeding forward, the video from Pilcher’s patrol car shows that the accident occurred simultaneously with the entry of Griffin’s vehicle into Pil-cher’s lane of travel. The braking of Pil-cher’s vehicle can be heard just as the right front tire of Griffin’s vehicle approaches the dividing line between the two eastbound lanes. Griffin never had command of the outside eastbound lane prior to impact.

The video establishes that the accident resulted from Griffin entering Forsythe from a private parking lot and turning left across the lanes of travel |7and into the outside eastbound lane immediately ahead of Pilcher’s vehicle. Had she kept a proper lookout to her right for oncoming traffic as she made her turn, she would have seen the approach of Pilcher’s patrol car with its emergency lights activated and could have either remained in the center turn lane or in the inside eastbound lane until he passed.

For these reasons, we find no legal error by the trial court in assessing Griffin’s actions under the standard applicable to a driver entering a highway. Additionally, we find no manifest error in the trial court’s finding of fault on the part of Griffin in causing the accident.

Pilcher’s Fault

Griffin argues that the trial court erred in finding no fault on the part of Pilcher even though the record established his excessive speed, the lack of an overhead light on the patrol car or siren to warn of his approach, his failure to honk or slow his vehicle as she entered Forsythe, and that he was talking on a cell phone. She contends that his actions violated the duty of ordinary care and that of reckless disregard for the safety of others. Moreover, Griffin contends that the trial court did not determine whether the requirements for applying the reckless disregard standard to Pilcher’s actions were met.

La. R.S. 32:24 states:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
|s(l) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

As explained in Lenard v. Dilley, 2001-1522 (La.1/15/02), 805 So.2d 175, La. R.S. 32:24 provides two alternate standards of care for the drivers of emergency vehicles. Which standard applies depends on the circumstances of the case. The reckless disregard standard applies if, and only if, the driver’s actions fit subsections A, B, and C of the statute. If the driver’s action or conduct does not fit these subsections, then the driver will be held to the standard of due care. Id., 2001-1522, p. 6, 805 So.2d at 180. Reckless disregard means gross negligence, whereas due care is ordinary negligence. Id.

The trial court’s findings of fact may not be set aside on appeal unless clearly wrong or manifestly erroneous. Rabalais v. Nash, 2006-0999, p. 4 (La.3/9/07), 952 So.2d 653, 657; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). This is so even where the court of appeal is convinced that it would | flhave weighed the evidence differently and reached a different result. Rabalais, supra; Blair v. Tynes, 621 So.2d 591, 601 (La.1993). The issue to' be resolved is not whether the trier of fact was right or wrong, but whether its factual conclusion was reasonable. Rabalais, supra. Where there are two permissible views of the evidence, the fact-finder’s choice cannot be manifestly erroneous or clearly wrong. Id., citing Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Both the existence of negligence and the allocation of fault are factual determinations subject to the trial court’s great discretion. Easter v. Direct Ins. Co., 42,178, p. 8 (La. App.2d Cir.5/9/07), 957 So.2d 323, 328.

Review of the trial transcript and the trial court’s written reasons for judgment show that the trial court found the reckless disregard standard applicable under the circumstances of this case. The record shows that Pilcher’s actions satisfied subsections A, B, and C of La. R.S. 32:24 and that he did not act with reckless disregard for the safety of others.

Pilcher was the driver of an authorized emergency vehicle and was in pursuit of an actual or suspected violator of the law, namely, the driver he clocked traveling 53 miles per hour eastbound on Forsythe where the speed limit was 35 miles per hour. Pilcher testified that he normally tickets only drivers who exceed 50 miles per hour on that roadway. In order to make up the distance between himself and the speeder, Pilcher exceeded the maximum speed limit by driving up to 76 miles per hour as determined by Officer Sanders’ calculations. The trial court found Pilcher’s top speed to be “relatively high” but concluded that it was necessary for him to exceed | inthe speed limit in order to close the gap between himself and the offender. The video shows that Pilcher drove around one vehicle and returned to the outside lane which was clear ahead of him for some distance. The roadway was flat and straight, and the traffic was not heavy. The trial court was critical of Pil-cher’s use of a hands-free cell phone during the pursuit of the speeder. However, the trial court did not find the cell phone conversation to have contributed to the accident. Pilcher testified that he was using an earpiece and was not distracted by the call. Having reviewed the video, we agree that Pilcher’s use of the hands-free cell phone, while not advisable, did not contribute to the accident. We cannot say that Pilcher endangered life or property by exceeding the speed limit to catch up to the speeding vehicle.

Finally, the parties stipulated that the emergency lights on Pilcher’s patrol car were activated. These included lights on the front grille and rear dash. Nothing in the record suggests that these emergency lights would not be a visual signal sufficient to warn motorists of the vehicle’s approach. In fact, the video shows that two vehicles traveling in the inside eastbound lane when Pilcher pulled onto For-sythe appeared to slow their vehicles in response to his approach. Notably, Griffin did not testify that she did not see the emergency lights on Pilcher’s approaching vehicle. She testified that she did not see Pilcher’s vehicle at all. As previously explained, Griffin’s failure to keep a proper lookout while entering Forsythe and crossing four lanes of travel before entering the outside eastbound lane is |nwhat prevented her from seeing the approach of Pil-cher’s vehicle with its emergency lights activated.

Because subsections A, B, and C of La. R.S. 32:24 are satisfied, the reckless disregard standard applies under the circumstances of this case. Griffin cites two cases .in support of her argument that Pilcher should be found at fault. Both are distinguishable. In Ponville v. Travelers Ins. Co., 340 So.2d 331 (La.App. 1st Cir.1976), a state trooper in pursuit of a speeder on a two-lane highway struck the rear of another vehicle. The court affirmed a judgment finding the trooper negligent and not in compliance with La. R.S. 32:24 by traveling at an excessive rate of speed without operating his siren. At that time, La. R.S. 32:24(C) required emergency vehicles to use “audible and visual signals sufficient to warn motorists of their approach.” The statute was amended in 1980 to substitute “or” for “and” between “audible” and “visible.” In Moore v. Travelers Indent. Co., 352 So.2d 270 (La.App. 2d Cir.1977), writ denied, 354 So.2d 1049 (La.1978), the state trooper was found solely at fault for a fatal accident where he was exceeding the speed limit in pursuit of a speeder and where he had neither his siren nor emergency lights activated. Here, Pilcher, though traveling at a high speed, was in compliance with La. R.S. 32:24. He had his emergency lights activated thereby providing visual signals to warn motorists of his approach.

The trial court concluded that Pilcher was “doing what was reasonably necessary to catch and stop a speeding motorist” and that he was not acting in reckless disregard for the safety of others. Upon viewing the [12video, we are persuaded that Griffin was solely at fault. Even though Pilcher had accelerated to a high rate of speed and was aware that Griffin had entered Forsythe, he was allowed to presume that she would not drive into his path. See Daniels, 2000-1089, p. 5, 785 So.2d at 910, citing Davis v. Galilee Baptist Church, 486 So.2d 1021, 1024 (La.App. 2d Cir.1986). Pilcher testified that he let off the accelerator when Griffin left the center turn lane. Then, as can be heard on the video, he applied the brakes as soon as it was apparent that Griffin was entering his lane of travel just ahead of him. For her part, Griffin entered the roadway and proceeded to cross four lanes of travel without keeping a proper lookout and seeing what should have been seen, namely, the rapidly approaching vehicle with emergency lights activated. Based on our review of the record, we find the trial court’s judgment to be neither clearly wrong nor manifestly erroneous.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s judgment. Costs of appeal are assessed against the plaintiff, Cathy Griffin.

AFFIRMED.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    James SETTLES, Plaintiff-Appellant v. Brenda Michelle PAUL, Defendant-Appellee.
    No. 46,209-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Corkern, Crews & Guillet, L.L.C. by J. Chris Guillet, Natchitoches, LA, for Appellant.
    Kelly & Townsend, L.L.C. by T. Taylor Townsend, Natchitoches, LA, Castillo Law Firm, LLC by Rebecca L. Castillo, Shreveport, LA, for Appellee.
    Before STEWART, PEATROSS & DREW, JJ.
   PEATROSS, J.

11 Plaintiff, James Settle, appeals the judgment of the trial court granting Defendant’s, Brenda Michelle Paul’s, Motion for Involuntary Dismissal at the close of Mr. Settle’s evidence. Mr. Settle also appeals the denial of his motion for summary judgment and the award of expenses and attorney fees in favor of Ms. Paul. For the reasons stated herein, we reverse m part, affirm in part and remand the matter for the completion of the trial on the merits.

FACTS

This case involves a dispute over the existence of a partnership agreement regarding, and ownership of, Landmai'k Construction Company of Coushatta, L.L.C. (“Landmark”). Mr. Settle and Ms. Paul were in a romantic relationship and lived together for two years in a house owned by Ms. Paul. During this time, the couple decided to create a construction business together. It is undisputed that Mr. Settle, who had experience in construction, suggested to Ms. Paul the idea of the two starting the business. Ms. Paul was reluctant at first, concerned about undertaking such a large project. Ms. Paul eventually agreed to the idea and the couple held themselves out as a business and performed several “smaller” construction jobs during 2002.

The record reflects that several of the couple’s first jobs were for David Harvey, owner of Python Construction Co. (“Python”), an industrial concrete contractor. Mr. Settle and Ms. Paul apparently had a close 12reIationship with Mr. Harvey and Mr. Harvey provided advice and assistance to the couple in the early days of their business venture. Mr. Harvey advised the couple to incorporate the business and complete the necessary “paperwork” to enable the company to secure larger contracts in Texas, as well as Louisiana.

With Mr. Harvey’s assistance, Ms. Paul formed the limited liability company, Landmark, in March 2003. Landmark continued to do work for Python after the L.L.C. was formed. It is undisputed that all of the organizational documents list Ms. Paul as the sole member of Landmark. All parties, including Mr. Harvey, agree that the primary reason that Mr. Settle was not included as a member of the L.L.C. was because he was under a child support obligation to his former wife and he and Ms. Paul wanted to protect Landmark from consideration in Mr. Settle’s child support proceedings. In addition, Ms. Paul suggests that Mr. Settle had poor credit and several outstanding judgments against him; therefore, it was in the best interest of the company to put it in only her name.

As a practical matter, Mr. Settle was characterized as a superintendent, foreman and/or project manager for Landmark and was responsible for all work done by Landmark. He was paid a nominal salary of $300 per week. Ms. Paul was also classified as an employee on Landmark’s payroll records and was paid a nominal salary. All funds paid to the couple were commingled and used to pay their joint living expenses. Ms. Paul was primarily involved in the recordkeeping aspect of the business and Mr. Settle’s mother worked in the Landmark office performing | .^administrative duties. By all accounts, Landmark’s business flourished and the company was highly profitable. The record reveals that the company enjoyed a profit each year it was in business and Mr. Settle and Ms. Paul both had unfettered access to the company funds.

In June 2008, however, the relationship between Mr. Settle and Ms. Paul deteriorated and the couple separated. James ceased “working” for Landmark and the company stopped all operations. Ms. Paul then refused to allow Mr. Settle access to Landmark records or funds and took the position that she was the owner of the company and that Mr. Settle was merely an employee. Following the couple’s breakup, however, Ms. Paul made two payments to Mr. Settle in the amounts of $25,000 and $250,000. Ms. Paul suggests that these payments were a goodwill type gesture for Mr. Settle, while he argues that she was attempting to settle with him regarding the co-owned property of Landmark.

Mr.' Settle filed suit on July 10, 2009, alleging that he and Ms. Paul were business partners, each owning one-half of Landmark. He sought recognition as a co-owner of Landmark and requested partition of Landmark’s assets. Ms. Paul answered the suit, denying the existence of any partnership and maintaining that she was the sole owner (member and manager) of the L.L.C. as reflected in all of the organizational filings with the state.

|4Mr. Settle filed a motion for summary judgment on May 6, 2010, which was denied on the morning of trial, June 3, 2010. Trial commenced and Mr. Settle offered the testimony of five witnesses, including Ms. Paul and himself. At the conclusion of Mr. Settle’s case, counsel for Ms. Paul moved for involuntary dismissal, which was granted by the trial judge. The trial judge concluded that it was. clear from the evidence that Ms. Paul was the sole owner of Landmark and that Mr. Settle had failed to establish a prima facie case of ownership or an existing partnership between him ánd Ms. Paul. Ms. Paul then moved for expenses and attorney fees based on Mr. Settle’s allegedly untruthful answers to several requests for admissions. Following briefing on that issue, the trial judge ordered Mr. Settle to pay $2,500 in expenses and $5,000 in attorney fees to Ms. Paul in accordance with La. C.C.P. art. 1472. This appeal by Mr. Settle ensued.

DISCUSSION

Involuntary Dismissal

La. C.C.P. art. 1672 governs involuntary dismissals and provides, in pertinent part:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

In a non-jury trial, a motion for involuntary dismissal requires the judge to evaluate the evidence and render a decision based on a preponderance of the | sevidence, without any special inference in favor of the party opposing the motion. Crowell v. City of Alexandria, 558 So.2d 216 (La.1990); Chandler v. Chandler, 45,-308 (La.App.2d Cir.5/19/10), 37 So.3d 569; Lowe v. Skyjacker Suspensions, 45,058 (La.App.2d Cir.3/3/10), 32 So.3d 340. Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proved is more probable than not. Crowell, supra; Silva v. Calk, 30,085 (La.App.2d Cir.12/10/97), 708 So.2d 418. As stated, a plaintiff is entitled to no special inferences in his favor, but “uncontrovert-ed testimony should be taken as true to establish a fact for which it is offered absent circumstances in the record casting suspicion on the reliability of the testimony and a sound reason for its rejection.” Bartley v. Fondren, 43,779 (La.App.2d Cir.12/3/08), 999 So.2d 146, citing Johnson v. Insurance Co. of N. Amen, 454 So.2d 1113 (La.1984); Fuller v. WaV-Mart Stores, Inc., 519 So.2d 366 (La.App. 2d Cir.1988).

On appeal, the reviewing court reviews involuntary dismissals under the manifest error standard. Chandler, supra; Lowe, supra. The trial court has great discretion in granting an involuntary dismissal. Id.

Our law defines a partnership as a “juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.” La. C.C. art. 2801. Where there is no written agreement, the existence of a partnership may be established by proof that the alleged partners agreed | ⅜(1) to form a partnership and participate in the profits to accrue from the business in determined proportions; (2) to share in the losses as well as the profits of the partnership; and (3) to have the property or stock of the partnership form a community of goods in which each party has a proprietary interest. Lang v. Sproull, 45,208 (La.App.2d Cir.4/28/10) 36 So.3d 407, citing Porter v. Porter, 36,007 (La.App.2d Cir.6/12/02), 821 So.2d 663; Harris v. Wallette, 538 So.2d 728 (La.App. 2d Cir.1989).

“Essentially, the parties must intend to have a business relationship between them and that relationship must have all the major characteristics of a partnership.” Lang, supra; Porter, supra. Whether the parties have used the word “partnership” is immaterial in determining whether their enterprise is a partnership. Harris, supra. Moreover, there are no hard and fast rules in making the determination of whether a partnership exists and each case must be considered on its own facts. I.d. The consent to form a partnership may be inferred from circumstantial evidence. Id. The operation of an enterprise as a partnership has been held proof of the intention to form a partnership despite the lack of a formal partnership agreement. Id., citing Pertuit v. LeBlanc, 240 So.2d 777 (La.App. 2d Cir.1970).

In the case sub judice, Mr. Settle argues that the trial court manifestly erred in granting the motion for involuntary dismissal and in finding that he failed to establish by a preponderance of the evidence that a partnership was formed between him and Ms. Paul. We agree.

On the motion for involuntary dismissal, recall that the plaintiffs testimony should generally be accepted as true. Bartley, supra. Mr. Settle |7testified, and Ms. Paul agreed, that he approached Ms. Paul about the two of them creating a construction business. Mr. Settle and Ms. Paul operated the business together, obtaining several small construction jobs before the L.L.C. was officially formed. There is no dispute that Landmark was organized in Ms. Paul’s name only in order to protect the company’s assets from Mr. Settle’s former wife and his child support obligations.

Regarding the sharing of profits and losses, Mr. Settle and Ms. Paul enjoyed equal and unfettered access to Landmark profits. All salaries and draws from the company were deposited into one bank account and the couple’s living expenses were paid therefrom. Mr. Settle testified that the company did not experience a loss at any time; but, if it had, he would have shared equally in the loss just as he did the profits.

Mr. Settle and Ms. Paul used Landmark funds not only to support their day-to-day lives, but they also made significant improvements to the home owned by Ms. Paul and in which they both lived. In addition, Landmark funds were used to purchase various pieces of construction equipment, as well as recreational vehicles, including a boat and fourwheelers. Moreover, Mr. Settle’s testimony supports his proprietary interest in Landmark. Ms. Paul agreed that it was Mr. Settle’s expertise in the construction trade that provided the foundation for the business.

Finally, we find significant that Mr. Harvey (of Python) testified that both Mr. Settle and Ms. Paul discussed with him the creation and formation of Landmark. Mr. Harvey related that the couple began the construction venture as a partnership and that both Mr. Settle and Ms. Paul intended that | Rit be owned equally by them. According to Mr. Harvey, Ms. Paul told him that she was listed as Landmark’s sole member to avoid potential problems with Mr. Settle’s former wife and/or creditors. Furthermore, Mr. Settle’s mother testified that Ms. Paul assured her that the couple was in partnership and that Mr. Settle would realize his share of the company despite the fact that she was the sole member of the L.L.C.

In the recent case of Lang, supra, we addressed a similar situation in which Rowdy, an experienced construction worker, approached his significant other, Dawn, with whom he lived, about starting a construction business. All of the expertise for the venture and the work on the projects was Rowdy’s; however, the licensing was in Dawn’s name only because of divorce proceedings in which Rowdy was involved. The trial court held, inter alia, that Rowdy had no ownership interest in the business and this court disagreed. Finding manifest error in the trial court’s conclusion in Lang, this court recognized the partnership/ownership interest of Rowdy based on the totality of the circumstances present in that case. Likewise, we find that Mr. Settle met his burden of proving the existence of a non-written partnership by a preponderance of the evidence sufficient to survive Ms. Paul’s motion for involuntary dismissal.

Regarding Mr. Settle’s appeal of the denial of his motion for summary judgment, our de novo review of the record reveals genuine issues of material fact that must be addressed after a full trial on the merits.

19Expenses and Attorney Fees

Ms. Paul moved in open court for expenses and attorney fees under La. C.C.P. art. 1472 based on Mr. Settle’s allegedly untruthful answers to three requests for admissions. Article 1472 provides as follows:

If a party fails to admit the genuineness of any document or the truth of any matter as requested under Article 1466, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that the request was held objectionable pursuant to Article 1467, or the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit.

In determining whether the party failing to admit a fact had reasonable grounds to believe that it might prevail for purposes of determining whether to award attorney fees for that failure, the proper test is whether the party acted reasonably in believing that it might prevail. McElveen v. City of New Orleans, 03-1609 (La.App. 4th Cir.9/14/04), 888 So.2d 878, writ denied, 04-2527 (La.12/17/04) 888 So.2d 870.

The requests for admission at issue herein are Nos. 5, 6 and 18:

REQUEST FOR ADMISSION NO. 5:
You have no documents to support your contention that you have an ownership interest in Landmark Construction Company of Coushatta, L.L.C.
REQUEST FOR ADMISSION NO. 6:
You have no documents to support your contention that you have an ownership interest in Brenda Michelle Paul’s personal home, having a municipal address of Rt. 1 Box 72-E, Coushatta, LA 71019.
_b * * *
REQUEST FOR ADMISSION NO. 18:
Your credit was never used to purchase any equipment or other tangible assets on behalf of Landmark Construction Company of Coushatta, L.L.C.

Mr. Settle answered “Denied” to each of the above three requests for admission. Ms. Paul argues that Mr. Settle’s answers were untruthful and that he ultimately admitted the same in his deposition and trial testimony. Specifically, Ms. Paul states that Mr. Settle admitted in his testimony that he did not have documentary evidence of the existence of a partnership or documentary evidence of an ownership interest in her home. Ms. Paul further points to the testimony of Mr. Settle that all lines of credit were issued to Ms. Paul and his credit was not used to purchase any Landmark property or movables. She suggests that there was no reasonable basis on which to base his denials of the requests for admission; and, as such, the trial judge properly ruled that she was entitled to expenses and attorney fees under article 1472.

Mr. Settle makes a commendable attempt at providing reasons for the denials of the requests for admission and we recognize the validity of his belief that he might prevail. His later admissions, however, on the very matters covered by the requests, convince this court that there was no reasonable basis for his denials. The requests were of substantial importance and we find no abuse of discretion in the award.

|„ DECREE

For the foregoing reasons, the involuntary dismissal of the claims of James Settle is reversed and the matter is remanded for completion of trial on the merits. The denial of Mr. Settle’s motion for summary judgment is affirmed and the award of expenses and attorney fees in favor of Brenda Michelle Paul is affirmed. Costs of appeal are assessed equally to Brenda Michelle Paul and James Settle.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED FOR COMPLETION OF TRIAL.

      . The style of the case and various places in the record of this matter show Plaintiff's last name spelled "Settles”; however, the last name is spelled "Settle” in the brief filed on Plaintiff's behalf. We adopt the latter spelling in this opinion.

      . Ms. Paul and Mr. Settle each retained possession of various movables owned by Landmark and this litigation has been fraught with proceedings to protect, return and classify movable property that was purchased with Landmark funds.

      . The issue in Lang, supra, was whether Rowdy should be held liable as a partner for breach of contract. While the primary issue in Lang was liability and not partition of partnership assets, the analysis of partnership/ownership status is instructive.

      . A reading of the trial judge's ruling leaves this court curious at best as to the trial judge’s analysis of Ms. Paul’s entitlement to expenses and attorney fees under the article. The trial judge states that "plaintiff was asked to produce any written documents pertaining to [ownership of Landmark]” and that Mr. Settle "denied that were any such documents.” The ruling further states that "at trial, it turned out that there were numerous documents right on point” and that Ms. Paul was seeking the expenses of having to prove those matters. Actually, the requests for admission asked for confirmation that Mr. Settle DID NOT have documents relating to his ownership interest in Landmark and he denied the same, indicating that he may in fact have such documentation. In any event, we review the judgment herein and not the reasons for judgment and we find no abuse of discretion in awarding expenses and attorney fees under article 1472.


author: GASKINS, J.

text:
    Nakisha CREDIT and Kevin Credit, Sr., Individually and on Behalf of Their Minor Children, Adrienne Breana Howard, Kaylin Howard and Kevin Credit, Jr., Plaintiffs-Appellants v. RICHLAND PARISH SCHOOL BOARD, State Farm Mutual Insurance Company, Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, Rayville High School, XYZ Duty Teachers, Gail McClain as The Mother of Courtney McClain, Richland Career Center at Archibald, and Amy Doe as The Mother of LeBaron Sledge, Defendants-Appellees.
    No. 46,163-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Eddie Clark & Associates, LLC by Eddie M. Clark, for Plaintiffs-Appellants.
    The Downs Law Firm, APC by Earl Ross Downs, Jr., for Plaintiffs-Appellants.
    Hammond & Sills by Neal Lane Johnson, Jr., for Defendants-Appellees Rich-land Parish School Board, Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, Rayville High School, XYZ Duty Teachers, Richland Career Center at Archibald.
    Davenport, Files & Kelly, LLP by Martin Shane Craighead, Monroe, LA, for Defendants-Appellees Samuel G. Hesser, Richland Parish School Board, and State Farm Mutual Automobile Insurance Company.
    Jones Law Group by Rosalind D. Jones, for Defendant-Appellee Gail McClain.
    La Koshia Reconda Roberts, for Defendant-Appellee Gail McClain.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

hThe plaintiffs, Nakisha Credit, individually and on behalf of Adrienne Breana Howard, Kaylin Howard, and Kevin Credit, Jr., appeal from a trial court judgment finding that they have no cause of action against certain employees of the Richland Parish School Board arising from the death of Adrienne Breana Howard. For the following reasons, we reverse the trial court judgment and remand for further proceedings.

FACTS

In 2009, Adrienne Breana Howard (“Breana”) had been involved in an ongoing dispute with Courtney McClain (“Courtney”), who was apparently another student at Rayville High School. At the time of the incident discussed below, Brea-na had been expelled from Rayville High School and was attending the Richland Career Center at Archibald. On December 14, 2009, Breana was dropped off by a school bus at the rear of Rayville High School and began to walk home. According to the plaintiffs, LeBaron Sledge instigated a fight between Breana and Courtney. The fight began on a sidewalk at the rear of the school near the school bus zone. The plaintiffs allege that during the fight, Courtney pushed Breana off the sidewalk into the path of an oncoming Richland Parish School bus driven by Samuel G. Hesser. Breana was run over by the bus and died of her injuries. The plaintiffs contend that Kaylin Howard and Kevin Credit, Jr., Breana’s younger half-siblings, were on a bus immediately in front of the bus that struck Breana. Their bus was stopped and the passengers disembarked. The plaintiffs claim that Kaylin and Kevin Jr. witnessed the horrific injuries and death of their sister.

pNakisha Credit, mother of Breana, brings this suit individually and on behalf of Breana, Kaylin Howard, and Kevin Credit Jr., asserting her individual claim for wrongful death and survival damages and for the siblings’ Lejeune damages arising from Breana’s death. Defendants are the Richland Parish School Board; State Farm Mutual Automobile Insurance Company (“State Farm”), the insurer of the school board; Cathy Stockton, superintendent of the Richland Parish School Board; Georgia Ineichen, principal of Rayville High School; Larry Wright, Sr., vice-principal of Rayville High School; Samuel G. Hesser, driver of the bus that struck Brea-na; XYZ duty teachers; Gail McClain as the mother of Courtney McClain; and Amy Doe as mother of LeBaron Sledge.

The plaintiffs argued that the defendants were negligent in numerous ways, including the failure to supervise, failure to timely respond to the fight, and failure to adequately staff the bus area with teachers or school personnel. The plaintiffs alleged that Samuel G. Hesser saw or should have seen the fight and yet continued to operate the bus near the fight without regard to the safety of the children in the school bus zone. According to the plaintiffs, the mother of LeBaron Sledge was liable for her son’s role in instigating the fight and Gail McClain was liable as the mother of Courtney ] sMcClain for her daughter’s action in allegedly pushing Breana into the path of the bus.

Before us on appeal are exceptions of no cause of action filed by Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, and XYZ duty teachers. These defendants asserted that the plaintiffs have no cause of action against school board employees in their individual capacities under La. R.S. 17:439. That statute provides that “Except as otherwise provided in this Section, no person shall have a cause of action against any school employee based on any statement made or action taken by the school employee provided that the action or statement was within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed and was within the specific guidelines for school employee behavior as established by that school board.”

The trial court granted the exception of no cause of action as to Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers, dismissing those parties at the plaintiffs’ cost, based upon La. R.S. 17:439. Regarding Samuel Hesser, the school bus driver, the trial court noted that La. R.S. 17:439(D) states that the provision does not apply to a school employee operating a motor vehicle to the extent that liability for such negligence is covered by insurance or self-insurance. The trial court found that the plaintiffs do not have a cause of action against Mr. Hesser in his individual capacity, but they do have a direct action against the bus driver’s insurer to the extent of any insurance.

l4The plaintiffs appealed the granting of the exception of no cause of action dismissing their claims against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, and XYZ duty teachers.

NO CAUSE OF ACTION AGAINST SCHOOL BOARD EMPLOYEES

The plaintiffs argue that the trial court erred in finding that they have no cause of action against individual parish school board employees for omissions under the language of La. R.S. 17:439 as compared to the language of La. R.S. 17:416.4, and that the trial court erred in its interpretation of these statutes. This argument has merit.

Legal Principles

A “cause of action,” when used in the context of the peremptory exception of no cause of action, refers to the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. White v. St. Elizabeth B.C. Board of Directors, 45,213 (La.App.2d Cir.6/2/10), 37 So.3d 1139. A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. The exception is triable on the face of the petition and the facts pled are to be accepted as true. Cadle Company v. Henson, 45,978 (La.App.2d Cir.1/26/11), 57 So.3d 458, 2011 WL 228599. All doubts are resolved in favor of sufficiency of the petition so as to afford litigants their day in court. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Foti v. Holliday, 2009-0093 (La.10/30/09), 27 So.3d 813.

|,Jn reviewing a trial court’s ruling sustaining an exception of no cause of action, this court reviews the case de novo because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which entitles him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Cadle Company v. Henson, supra.

Legislation is the solemn expression of legislative will, and therefore, the interpretation of a law involves primarily the search for the legislature’s intent. La. C.C. art. 2; Gannett River States Publishing Corporation v. Monroe City School Board, 44,231 (La.App.2d Cir.4/8/09), 8 So.3d 833, writ denied, 2009-1029 (La.6/19/09), 10 So.3d 745. The rules for statutory construction are set forth in SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294:

The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the legislature to enact the law. Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. C.C. art. 9; La. R.S. 1:4. However, when a law is susceptible of different meanings, “it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. C.C. art. 10.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same ^subject matter and construing the provision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. Boyter, 99-0761 at 9, 756 So.2d at 1129; [Stogner v. Stogner, 98-3044] at p. 5 [ (La.7/7/99), 739 So.2d 762] at 766. The statute must therefore be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it. Boyter, 99-0761 at 9, 756 So.2d at 1129. Courts should give effect to all parts of a statute and should not adopt a statutory construction that makes any part superfluous or meaningless, if that result can be avoided. Langlois v. East Baton Rouge Parish Sch. Bd., 99-2007, p. 5 (La.5/16/00), 761 So.2d 504, 507; Boyter, 99-0761 at 9, 756 So.2d at 1129. Furthermore, “the object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.” First Nat’l Bank of Boston v. Beckwith Mach. Co., 94-2065, p. 8 (La.2/20/95), 650 So.2d 1148, 1153 (quoting Smith v. Flournoy, 238 La. 432, 115 So.2d 809, 814 (1959)).

When analyzing legislative history, it is presumed that the legislature’s actions in crafting a law were knowing and intentional. Courts must assume that the legislature was aware of existing laws on the same subject, as well as established principles of statutory construction and the effect of their legislative acts. Foti v. Holliday, supra.

Statutes in derogation of natural or common right are to be strictly interpreted, and must not be extended beyond their obvious meaning. Such statutes are to be strictly interpreted. See Monteville v. Terrebonne Parish Consolidated Government, 567 So.2d 1097 (La.1990). The starting point for the interpretation of any statute is the language of the statute itself. SWAT 24 Shreveport Bossier, Inc. v. Bond, supra.

La. R.S. 17:416.4 states in pertinent part:

A. In addition to the provisions of R.S. 17:416.1(C), 416.3(B) and (C)(2)(a), and 416.6(B), should any public school 17employee be sued for damages by any student or any person qualified to bring suit on behalf of any student based on any action or statement or the omission of any action or statement by such employee when in the proper course and scope of his duties as defined by the school board employing such employee, then it shall be the obligation of said school board to provide such defendant with a legal defense to such suit including reasonable attorney fees, investigatory costs, and other related expenses. Should any such employee be cast in judgment for damages in such suit, it shall be the obligation of the school board employing such defendant to indemnify him fully against such judgment including all principal, interest, and costs, except that the school board shall not be responsible for any costs which the court stipulates are to be borne by a party other than the employee or school board.
B. If the school board provided the defense and the judgment makes an award to the employee for damages or other awards for costs or any fees, the employee shall reimburse the school board for its costs incurred for the defense. The requirement of reimbursement by the employee shall not exceed the award received by the employee.
C. Nothing in this Section shall require a school board to indemnify an employee against a judgment wherein there is a specific decree in the judgment that the action of the employee was maliciously, willfully, and deliberately intended to cause bodily harm or to harass or intimidate the student.

La. R.S. 17:439 provides:

A. Except as otherwise provided in this Section, no person shall have a cause of action against any school employee based on any statement made or action taken by the school employee provided that the action or statement was within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed and was within the specific guidelines for school employee behavior as established by that school board.
B. As used in this Section, the terms “school employee” means any school employee who has direct contact with students in the course and scope of the school employee’s duties as defined by the school board by which the school employee is employed, and includes but is not limited to school-based administrators, classroom teachers, coaches, librarians,J^counselors, teachers’ aides, clerical employees, lunchroom workers, custodial workers, school bus drivers, and school bus drivers’ aides.
C. The immunity from liability established by this Section shall not apply to any action or statement by a school employee that was maliciously, willfully, and deliberately intended to cause bodily harm to a student or to harass or intimidate a student.
D. The provisions of this Section shall not apply to the negligence of any school employee operating a motor vehicle, to the extent that liability for such negligence is covered by insurance or self-insurance.
E. The provisions of this Section are not intended to supersede or repeal any other provision of this Part and are intended to supplement the other provisions of this Part.

Discussion

La. R.S. 17:416.4 provides that if school board employees are sued for damages based upon any action or statement or the omission of any action or statement, the school board has the duty to defend and indemnify the employee. This provision was originally enacted in 1982. The plaintiffs urge that La. R.S. 17:439 was enacted in 1999 to provide a limitation of liability for school employees for statements made or actions taken. They claim that the language providing the limitation of liability and limiting causes of action is not as broad as the duty to defend and indemnify provided in La. R.S. 17:416.4. The plaintiffs point out that La. R.S. 17:439 precludes suits against school board employees based on statements or actions, but there is no mention of the omission of any action or statement, language which is included in La. R.S. 17:416.4.

The plaintiffs interpret La. R.S. 17:416.4 and La. R.S. 17:439, read together, to provide that there is no cause of action against a school board |3employee for statements or actions, but a cause of action exists against a school employee for the employee’s omission of any action or statement, and the school board has a duty to defend and indemnify the employee in connection with such suits. The plaintiffs claim that they allege at least 25 instances of failures or omissions on the part of school board employees which are clearly outside the specific guidelines for school employees behavior established by the school board. The plaintiffs assert that the statutes limiting the general rights of tort victims are to be strictly construed and the legislature is presumed to have acted with full knowledge of the strict interpretation of statutes of this nature. Therefore, the legislature did not intend to limit or restrict causes of action against school board employees for omissions of any action or statement.

The legislative purpose in enacting La. R.S. 17:439, relative to the civil liability of school employees, was to provide for the limitation of liability for school employees for certain statements made or actions taken, to provide exceptions, and to provide for related matters. Currently, there is no jurisprudence construing this statute. We observe that the statute specifically precludes a cause of action against a school employee based upon any statement made or action taken by the school employee within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed, and within the specific guidelines for school employee behavior as established by the school board. Certain exceptions are also listed in the statute.

11f)The two statutes at issue here, La. R.S. 17:416.4 and 17:439, are located in Chapter 2, titled Teachers and Employees, under Part 1, General Provisions. There are several statutes under this part that offer employees indemnity, attorney fees, etc., as does La. R.S. 17:416.4 (for actions or statements or omissions of actions or statements when in proper course and scope of duties), such as La. R.S. 17:416.1 (for acts and omissions in disciplining); La. R.S. 17:416.3 (for reasonable searches); and La. R.S. 17:416.6 (for searches of persons entering school buildings or grounds). Other statutes, like La. R.S. 17:439 (statements made or actions taken within duties and behavior), provide immunity, such as La. R.S. 17:416.11 (not personally liable in any act or failure to act in the directing of or disciplining students). This scheme indicates that the legislature intended the protection of indemnity, defense, legal fees, etc., to flow from some acts of employees while other acts were afforded the more extensive protection of immunity.

We must interpret La. R.S. 17:439 in a manner that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it. By the exclusion in La. R.S. 17:439 of the language regarding omissions, which is included in La. R.S. 17:416.4, we are compelled to find that the legislature did not intend to preclude a cause of action against school employees for omissions. If the legislature had intended that result, it would have included the omissions language in the statute. Further, La. R.S. 17:439(E) provides that the provisions of theJjjsection are not intended to supersede or repeal any other “provision of this Part and are intended to supplement the other provisions of this Part.”

Many of the plaintiffs’ allegations could be viewed as omissions. In the second supplemental, amended, and restated petition for damages, the plaintiffs allege that the defendants, including the Richland Parish School Board, Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, and XYZ duty teachers, failed to use ordinary and necessary care by various acts and omissions. Among those “acts and omissions” in this case, the plaintiffs allege that the school employees were negligent in the following ways:

• In failing to supervise the children
• In failing to timely respond to the fight
• In failing to exercise reasonable care
• In failing to intervene and/or prevent the fight
• In failing to adequately staff the bus area with teachers and/or school personnel
• In failing to disrupt and/or deter the fight with the presence of teachers and/or school personnel
• In failing to have teachers on duty at designated duty areas consistent with the teacher duty schedule
• In failing to provide a safe environment on the campus
• In failing to see that which should have been seen
• In allowing the students to continue fighting uninterrupted
• In failure of the appropriate teachers to be on duty at the scheduled time and in accordance with their duty assignments
112* In failing to call emergency personnel promptly
• In failing to slow the vehicle down with children in the area
• In breaching any and all duties owed to the decedent
• Inadequate supervision
• In allowing substantial harm to befall the decedent
• In failing to provide competent supervision
• Failure of teachers and school personnel to be attentive to what was going on in the bus area
• In failure of the school board and school to properly train its teachers, staff, and/or faculty members
• In failure of teachers to adhere to school board policy
• In failure to protect the decedent from injury and death
• Negligent and/or inadequate supervision
• In failure to properly monitor the school campus
• In providing little to absolutely no intervention whatsoever prior to the fight
• In failure to have designated bus safety areas
• In failure to provide the appropriate degree of supervision under the circumstances
• In failure to have marked bus safety zones
• In failure to have barricades in the bus area
• In failure to adhere to school guidelines
• In failure of teachers to be on duty to possibly break up the fight
• In failure to the school bus driver to exercise the highest degree of care for school children such as the decedent

11sLa. R.S. 17:439 requires that, for the limitations of liability to apply, the action or statement complained of must be within the course and scope of the school employee’s duties as defined by the school board within the specific guidelines of school employee behavior. The specific defendants in this case, arguing the application of the statute, have the burden of demonstrating that the petition fails to state a cause of action against them. The defendants here have not alleged that the matters urged by the plaintiffs were statements or actions which fall within the protection of La. R.S. 17:439. Accordingly, we find that La. R.S. 17:439 does not preclude the plaintiffs from bringing a direct cause of action against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers for omissions. However, La. R.S. 17:416.4 will apply and the Richland Parish School Board will have a duty to defend and indemnify those employees under the terms of that statute.

CAUSE OF ACTION AGAINST SCHOOL BUS DRIVER

The plaintiffs maintain that the trial court erred in finding that they have no cause of action against the school bus driver, Samuel G. Hesser, under the clear wording of La. R.S. 17:439(D). The plaintiffs contend that La. R.S. 17:439(D) gives them the right to bring a cause of action against Mr. Hesser for his negligence in operating the bus. Because the court found that the plaintiffs could not bring a direct cause of action against Mr. Hesser, but could proceed against the bus driver’s insurance carrier, the plaintiffs urge that the trial court misinterpreted the statute. This argument has merit.

| ^Discussion

La. R.S. 17:439(D) provides:

D. The provisions of this Section shall not apply to the negligence of any school employee operating a motor vehicle, to the extent that liability for such negligence is covered by insurance or self-insurance.

In this case, the trial court stated in its reasons for judgment that La. R.S. 17:439(D) prohibited a direct cause of action against Mr. Hesser as the school bus driver, but allowed a direct action against the bus driver’s insurance carrier, to the extent of any insurance. We find that, under the clear wording of La. R.S. 17:439(D), the trial court erred in its interpretation of this provision. The statute specifically provides that the limitation of liability precluding a cause of action against a school employee does not apply to a school employee operating a motor vehicle, to the extent that liability for such negligence is covered by insurance or self-insurance. The plaintiffs’ clams against Mr. Hesser arise from his alleged negligence in operating the school bus. Therefore, the plaintiffs have a direct cause of action against Mr. Hesser for his alleged negligence in operating the school bus to the extent that his liability is covered by insurance or self-insurance. However, he will not be personally liable in excess of his insurance limits unless it is shown that he acted maliciously and willfully, and deliberately intended to cause bodily harm to the decedent.

This interpretation squares with the Direct Action Statute of La. R.S. 22:1269(B), which provides that the injured person or his survivors or heirs shall have a right of direct action against the insurer, within the terms and limits of the policy, and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido. [However, such action may be brought against the insurer alone only if the insured has been adjudged bankrupt or proceedings to adjudge the insured bankrupt have been commenced, the insured is insolvent, service of citation or other process cannot be made upon the insured, the cause of action is for damages as a result of an offense or quasi-offense between children and their parent or between married persons, when the insurer is an uninsured motorist carrier, or when the insured is deceased. None of these exceptions |1Rapply in this case. Therefore, under La. R.S. 17:439(D) and La. R.S. 22:1269(B), the plaintiffs have a direct cause of action against Mr. Hesser to the extent that his liability is covered by insurance or self-insurance. After that point, under La. R.S. 17:416.4, the school board has a duty to defend and indemnify Mr. Hesser for any excess liability.

Accordingly, we reverse that portion of the trial court judgment finding that the plaintiffs do not have a cause of action against Mr. Hesser. The plaintiffs have a cause of action against Mr. Hesser within the limits specified in La. R.S. 17:439(D).

CONCLUSION

For the reasons stated above, we reverse that portion of the trial court judgment finding that the plaintiffs, Nakisha Credit, individually and on behalf of Adrienne Breana Howard, Kaylin Howard, and Kevin Credit, Jr., have no cause of action against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers, for allegations that their omissions contributed to the death of Adrienne Breana Howard.

We also reverse that portion of the trial court judgment finding that the plaintiffs have no cause of action against the school bus driver, Samuel G. Hesser. The plaintiffs have a limited cause of action against Mr. Hesser to the extent that liability for negligence in operating the school bus is covered by insurance or self-insurance. The matter is remanded to the trial court for further proceedings. Costs in this court are assessed against the 117defendants, Cathy Stockton, Georgia In-eichen, Larry Wright, Sr., Samuel G. Hes-ser, and XYZ duty teachers.

REVERSED; REMANDED FURTHER PROCEEDINGS. FOR

      . See Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990).

      . Numerous exceptions of no right of action, no cause of action, insufficient service of process, and vagueness were filed by the original defendants in this case. Some exceptions were resolved by consent or cured by proper service of process. Others were disposed of by a ruling of the trial court and amendment of the petition. Kevin Credit, Sr. was dismissed on an exception of no right of action because he is not the biological or adopted father of Breana Howard. These are the parties remaining in the suit, and the claims remaining against the defendants.

      . We note that a Teacher Bill of Rights is found in La. R.S. 17:416.18.

      . La. R.S. 22:1269 provides in pertinent part:
      A. No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his survivors, mentioned in Civil Code Art. 2315.1, or heirs against the insurer.
      B. (1) The injured person or his survivors or heirs mentioned in Subsection A of this Section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either die insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only; however, such action may be brought against the insurer alone only when at least one of the following applies:
      (a) The insured has been adjudged bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.
      (b) The insured is insolvent.
      (c) Service of citation or other process cannot be made on the insured.
      (d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.
      (e) When the insurer is an uninsured motorist carrier.
      (f) The insured is deceased.
      (2) This right of direct action shall exist whether or not the policy of insurance sued upon was written or delivered in the state of Louisiana and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the state of Louisiana. Nothing contained in this Section shall be construed to affect the provisions of the policy or contract if such provisions are not in violation of the laws of this state.


author: LAMAR, Justice,

text:
    Johnny McINNIS v. STATE of Mississippi.
    No. 2008-CT-01576-SCT.
    Supreme Court of Mississippi.
    April 7, 2011.

      Office of Indigent Appeals by Justin T. Cook, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. This Court granted Johnny Mcln-nis’s petition for certiorari, in which he appeals the affirmance of his conviction for burglary of a dwelling. Mclnnis argues that the trial court committed reversible error in failing to grant a two-theory instruction when the State presented no direct evidence that he committed the crime of burglary. We agree and reverse and remand, as the trial court failed to grant any circumstantial-evidence instruction.

FACTS

¶ 2. On the night of October 8, 2007, eighty-four-year-old Hillary Kissenger awoke to an unfamiliar noise and discovered a black male in her bedroom. She testified that, while she did not have her glasses on, she could discern that the intruder had a light complexion with curly hair and wore a white t-shirt and belt. Kissenger saw the intruder grab her purse and run out of the house. She immediately called the police.

¶ 3. At approximately 10:55 p.m., the police received Kissenger’s 911 call. Sergeant Shannon Caraway was on patrol two blocks from Kissenger’s home on Thirty-second Street when she received a dispatch call to be on the lookout for a black male wearing a white t-shirt. Caraway immediately proceeded toward Kissenger’s home and had turned onto Thirty-third Street when she saw a black male wearing a white t-shirt drive past her. Caraway turned around and followed the car as it proceeded to travel at a high rate of speed. At 10:56 and 37 seconds, the car stopped approximately six blocks from the site of the burglary, and Caraway identified the driver as Johnny Mclnnis. Mclnnis also had a passenger, Bonnie Woods Armstrong, described as a “black hispanic female.”

¶ 4. Caraway asked Mclnnis why he was driving so fast, and Armstrong answered that she needed to use the rest room. Caraway also told Mclnnis that his description matched that of someone who had just committed a burglary. While Caraway did not tell Mclnnis where the burglary had occurred, Mclnnis voluntarily responded that he “was just on Thirty-second Street trying to hustle some Mexicans.” Caraway then noticed that there were three purses on the front seat between Mclnnis and Armstrong. Armstrong identified one purse as hers, but she did not know who owned the other purses or where they had come from. Caraway determined that one purse belonged to Kissenger, because it contained several items bearing Kissenger’s name. Kissenger’s wallet, which contained her driver’s license and social security card, also was found in the car. Caraway also discovered two, crumpled Trustmark Bank envelopes approximately eight feet from the driver’s side of Mclnnis’s car. Kissen-ger went to the scene and identified the purse and envelopes as hers.

¶ 5. Mclnnis’s mother, Ruthie Mae Mclnnis, testified that, on the night of October 8, 2007, she had received a phone call from a female asking to speak to her son. Mrs. Mclnnis testified that her son had spoken to the female and then had left the house.

¶ 6. Johnny Mclnnis testified that Armstrong had called him around 10:00 p.m. or 10:30 p.m. on October 8, 2007, and had asked him to pick her up at Thirty-second Street. Mclnnis stated that he picked up Armstrong approximately thirty or thirty-five minutes later in a driveway and helped her put her belongings into his car. Mcln-nis testified that Armstrong had two purses.

¶ 7. Mclnnis denied burglarizing Kissen-ger’s home and telling Sergeant Caraway that he had tried to hustle Mexicans for money. He also stated that no Trustmark envelopes had been on the ground near his car at the time of his arrest.

COURT OF APPEALS DECISION

¶ 8. The Court of Appeals found that the trial court properly had denied Mclnnis’s two-theory instruction, as the evidence was not purely circumstantial and the instruction was cumulative with the elements instruction. The Court of Appeals found the following facts to be direct evidence, requiring a denial of Mclnnis’s two-theory instruction:

In this case, Kissenger testified that the burglar was a black male wearing a white T-shirt. The record indicates that Mclnnis was in the vicinity during the ■time the burglary occurred. Mclnnis was spotted by Officer Caraway leaving the area within seconds of the 911 call being placed by Kissenger. Mclnnis was subsequently chased and detained by the police. When Mclnnis was detained, Officer Caraway informed Mcln-nis that he fit the description of a stocky black male wearing a white T-shirt, who had just committed a burglary of a dwelling house. Mclnnis told Officer Caraway that he was just on 32 Street trying to “hustle” some Mexicans. Officer Caraway testified that she did not tell Mclnnis where in the area the burglary had occurred. Also, during their investigation, the officers found Kissen-ger’s purse on the front seat of the car that Mclnnis was driving.

The Court of Appeals also found that the proffered two-theory instruction was cumulative with the following instruction (S-1), which the trial court had granted:

JOHNNY L. MCINNIS, has been charged in Count I with the offense of Burglary of a Dwelling House.
If you find from the evidence in this case beyond a reasonable doubt that:
1. Johnny L. Mclnnis, on or about the 8 day of October, 2007, in the Second Judicial District of Jones County, Mississippi;
2. Did break and enter;
3. The dwelling house of Hillary D. Kissenger located at 1438 32 Street, Laurel, Mississippi;
4. With the intent to commit the crime of larceny therein;
5. Once therein, Johnny L. Mclnnis, did unlawfully take, steal and carry away the personal property of Hillary Kissenger;
Then you shall find the defendant, Johnny L. Mclnnis, guilty in Count 1 of Burglary of a Dwelling House.
If the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant, Johnny L. Mclnnis, not guilty in Count I of Burglary of a Dwelling House.

¶ 9. Instruction S-l contains no language that is traditionally included in any circumstantial-evidence instruction. It is a customary elements instruction containing the reasonable-doubt standard. Therefore, we next analyze whether the trial court erred in failing to grant Mcln-nis’s two-theory instruction, when no other circumstantial-evidence instruction was granted.

DISCUSSION

¶ 10. This court reviews a grant or denial of a jury instruction under an abuse-of-discretion standard. Jury instructions must be read as a whole to determine if they fairly announce the law, and they must be supported by evidence. “[A] court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Because we find the trial court committed reversible error in failing to grant a two-theory instruction as requested by Mclnnis, we decline to address the second issue raised on appeal: Whether the trial court erred in granting an accomplice instruction.

¶ 11. We begin our discussion by defining “circumstantial evidence.” Circumstantial evidence is “evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.” In this case, Mclnnis submitted a two-theory instruction, which is a specific type of circumstantial-evidence instruction. A two-theory instruction instructs the jury what to do when the “record supports two or more hypotheses of the crime committed” and all the evidence of the crime is circumstantial. This court recently has held that a trial court may refuse a two-theory instruction if it has granted a (general) circumstantial-evidence instruction. A circumstantial-evidence instruction provides that the State must prove the defendant guilty beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence, In this case, Mclnnis did not request a circumstantial-evidence instruction, but as previously noted, he did request a two-theory instruction.

¶ 12. While a two-theory instruction is different from a circumstantial-evidence instruction, “the rules for when they are appropriately given apply to both.” But our caselaw has been less than clear as to the application of these “rules.” As noted by Justice Robertson in his concurring opinion in Montgomery v. State, this Court has “no less than eighteen articulations of the test for determining whether and when the circumstantial evidence burden of proof rule should apply.”

¶ 13. Earlier this year, this Court addressed a similar case, and, speaking for a unanimous court, Justice Kitchens again articulated a rule for cases in which a circumstantial evidence instruction is warranted when requested by the defendant: “While evidence does not always fall neatly into one category, examples of direct evidence include an admission or confession by the defendant to ‘a significant element of the offense,’ or eyewitness testimony to the ‘gravamen of the offense’ charged.” The term “gravamen” is defined as the “substantial point or essence of a claim, grievance, or complaint.” Therefore, if any evidence presented fits the direct-evidence definition from Kirkwood, the trial court may properly refuse a circumstantial-evidence instruction.

¶ 14. The gravamen for the offense of burglary of a dwelling are that: (1) Mcln-nis broke into and entered Kissenger’s home and that (2) McInnis had the intent to commit some crime therein. In this case, the State was required to prove either directly or circumstantially that Mclnnis was the man who broke into and entered Kissenger’s home with the intent to commit larceny. And in fact, the jury was instructed to that effect. But Kissen-ger did not testify that she saw Mclnnis commit any act in her home, nor is there any other direct evidence that identifies Mclnnis as the perpetrator. The gravamen for this offense is tied to a specific defendant. Furthermore, Mclnnis never confessed or made any admission to a significant element of the crime. While the Court of Appeals identified various testimony as direct evidence that a crime was committed, this was not direct evidence that Mclnnis committed the crime of burglary. Therefore, the trial court abused its discretion by denying a two-theory instruction, because it gave no other circumstantial instruction.

CONCLUSION

¶ 15. The trial court abused its discretion in refusing to grant Mclnnis a two-theory instruction, as the State presented no direct evidence that Mclnnis committed the crime of burglary. Therefore, we reverse and remand for a new trial consistent with this opinion.

¶ 16. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Armstrong did not testify at trial.

      . Mclnnis v. State, 61 So.3d 906, 911-12 (Miss.Ct.App.2010).

      . Id. at 910-11.

      . Id. at 911.

      . This flawed reasoning is found in another Court of Appeals' decision, Moses v. State, 30 So.3d 391, 395 (Miss.Ct.App.2010). Instructing the jury that it must find the elements of a crime beyond a reasonable doubt does not cure and render harmless the trial court’s refusal of a circumstantial-evidence instruction where such an instruction is warranted. See Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992); Gilleylen v. State, 255 So.2d 661, 663 (Miss.1971); Kendall v. State, 217 So.2d 35, 36 (Miss.1968).

      . Davis v. State, 18 So.3d 842, 847 (Miss.2009).

      . Id.-

      . Jackson v. State, 815 So.2d 1196, 1200 (Miss.2002).

      . Jones v. State, 797 So.2d 922, 927 (Miss.2001).

      . Keys v. State, 478 So.2d 266, 268 (Miss.1985).

      . Goff v. State, 14 So.3d 625, 677-78 (Miss.2009) (Waller, C.J., dissenting) (The term " 'two-theory' is a misnomer. A better name would be a 'two-interpretation' instruction[.]")

      . Id. at 625, 662-63 (finding that circumstantial-evidence instruction embodies essentials of a two-theory instruction).

      . State v. Rogers, 847 So.2d 858, 864 (Miss.2003).

      . Id. at 864.

      . Montgomery v. State, 515 So.2d 845, 849 (Miss.1987) (Robertson, J., concurring).

      . Id.

      . Kirkwood v. State, 52 So.3d 1184, 1187 (Miss.2011) (quoting Mack v. State, 481 So.2d 793, 795 (Miss.1985)).

      . Black’s Law Dictionary 562 (7th ed. 2000).

      . Miss.Code Ann. § 97-17-23 (Rev.2006).