text:
    Eugenie TOBIN, Ellis D. Brent, Jr., Charles E. Toney, Jr., Kye Lewis, Dadrius Lanus, Nykeisha Trenette Bryer, Venese Machelle-Charity Morgan v. Governor Bobby JINDAL, in his Official Capacity as Governor of the State of Louisiana, and the Louisiana Board of Regents.
    No. 2011 CA 1004.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2012.
    See also, 91 So.3d 317, 2012 WL 600784.

      Cleo Fields, Baton Rouge, LA, Katrina R. Jackson, Monroe, LA, for Plaintiffs-Appellants, Eugenie Tobin, Ellis D. Brent, Jr., Charles E. Toney, Jr., Kye Lewis, Dadrius Lanus, Nykeisha Trenette Bryer, Venese Machelle-Charity Morgan.
    James D. “Buddy” Caldwell, Attorney General, Urna M. Subramanian, Katherine K. Green, Asst. Attorneys General, Baton Rouge, LA, for Defendants-Appellees, Governor Bobby Jindal, in his Official Capacity as Governor of the State of Louisiana, and the Louisiana Board of Regents.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

|2This case is the second of two appeals from the same proceeding. In this particular appeal, hereafter referred to as “To-bin II,” plaintiffs seek review of a trial court judgment sustaining defendants’ peremptory exceptions raising the objections of no cause of action and no right of action, and dismissing plaintiffs’ petition that sought a permanent injunction and declaratory judgment. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case are essentially the same as outlined in the first appeal, Tobin, et al. v. Governor Bobby Jindal, in his Official Capacity as Governor of the State of Louisiana, and the Louisiana Board of Regents (Tobin I), 2011-0838 (La.App. 1st Cir.2/10/12), 91 So.3d 317, as follows:

During the 2010 Regular Legislative Session, the Louisiana State Senate adopted Senate Resolution 123 (SR 123), which directed defendant, the Louisiana Board of Regents (the Board), to “study the provision of public postsecondary educational opportunities in the New Orleans region, ... and formulate a plan that will make optimal use of all available ... resources, ... and which will allow each student attending such institutions to successfully and efficiently pursue his or her chosen academic path.” The Board was also directed by SR 12B to “submit a written report of its findings and recommendations to the Senate Committee on Education and the House Committee on Education, not later than March 1, 2011.”
The Board began to conduct a study of all the issues in SR 123, as well as the specific issues of a possible merger, consolidation, and transfer of New Orleans region institutions from one system to another. One of the scenarios considered by the Board was the potential merger of Southern University at New Orleans (SUNO) with [¡¡the University of New Orleans (UNO), hereafter referred to as the “SUNO-UNO merger.”
Plaintiffs are all students at institutions in the Southern University System. On February 14, 2011, plaintiffs filed suit against the Board and Louisiana Governor Bobby Jindal, in his official capacity, seeking a declaratory judgment, injunctive relief, and a temporary restraining order (TRO). Plaintiffs sought to enjoin and prohibit the Board from taking any and all actions relating to any proposed study of the SUNO-UNO merger, because plaintiffs alleged that the Board’s racial and gender composition (as appointed by the Governor) was unconstitutional, and therefore, violated their constitutionally-protected property interests in a higher education. The trial court held a hearing on plaintiffs’ request for a preliminary injunction on February 24, 2011. Immediately after the hearing, the trial court denied the preliminary injunction and issued extensive written reasons for judgment, essentially concluding that plaintiffs failed to prove the necessary elements for issuance of a preliminary injunction under La. C.C.P. art. 3601. Plaintiffs appealed from the trial court’s February 24, 2011 judgment.

Tobin I, 91 So.3d at 319-20. (Footnote 5 omitted.)

At the February 24, 2011 hearing, the trial court also considered and overruled the Board’s and the Governor’s (collectively referred to as “defendants”) peremptory exceptions raising the objections of no cause of action and no right of action. However, the only issue involved in plaintiffs’ first appeal, Tobin I, was whether the trial court properly denied plaintiffs’ request for the issuance of a preliminary injunction, leaving plaintiffs’ request for a permanent injunction and declaratory judgment for resolution at another time.

While the first appeal was pending, plaintiffs filed a third supplemental and amended petition for declaratory judgment and injunctive relief on March 9, 2011. In addition to their claims in the original and amended petitions, plaintiffs expanded their request for a permanent injunction to enjoin and prohibit the |4allegedly unconstitutionally-composed Board from taking “any and all actions and decisions” after December 17, 2010, the date that the appointed Board’s membership allegedly became unconstitutional. Plaintiffs further requested that the trial court issue a declaratory judgment, ruling that the Board’s membership as appointed by the Governor on December 17, 2010, was unconstitutional, in that the Board’s racial and gender composition was in violation of Louisiana Constitution Article 8, Section 5(B)(1), and therefore, any and all actions and decisions by the Board after December 17, 2010, regarding public institutions of higher education were unconstitutional. In response to plaintiffs’ third amended petition, defendants re-urged their peremptory exceptions raising the objections of no cause of action and no right of action.

On April 12, 2011, the trial court held a hearing on the exceptions, and after listening to oral argument and considering the law, pleadings, and submitted memoranda, the trial court ruled in favor of defendants, sustaining defendants’ peremptory exceptions and dismissing plaintiffs’ requests for permanent injunction and declaratory judgment with prejudice. The trial court’s written judgment was signed on April 20, 2011. Plaintiffs timely filed this second appeal, arguing that the trial court erroneously sustained defendants’ exceptions of no cause of action and no right of action.

LAW AND ANALYSIS

At the outset, we note that a peremptory exception may be urged at any time, and a party may re-urge a peremptory exception after it has been denied. La. C.C.P. art. 928; Louisiana State Bar Ass’n v. Carr and Associates, Inc., 2008-2114 (La.App. 1st Cir.5/8/09), 15 So.3d 158, 164, writ denied, 2009-1627 (La.10/80/09), 21 So.3d 292. We also initially point out that although we found plaintiffs’ first appeal regarding the denial of their preliminary injunction to be |smoot, because the act sought to be enjoined was accomplished pending that appeal, the same cannot be said of this second appeal. Plaintiffs’ third amended petition seeks to enjoin the allegedly unconstitutionally-composed Board from taking any and all actions and decisions after December 17, 2010, not just those actions concerning the study and potential recommendation of the SUNO-UNO merger. Thus, we have subject matter jurisdiction and we maintain this appeal.

The objection that a petition fails to state a cause of action is properly raised by the peremptory exception. La. C.C.P. art. 927(A)(5). A trial court’s judgment sustaining the peremptory exception raising the objection of no cause of action is subject to de novo review by an appellate court, employing the same principles applicable to the trial court’s determination of the exception. Johansen v. Louisiana High School Athletic Ass’n, 2004-0987 (La.App. 1st Cir.6/29/05), 916 So.2d 1081, 1086. The purpose of the exception of no cause of action is to determine the sufficiency in law of the petition, in terms of whether the law extends a remedy to anyone under the petition’s factual allegations. Id.

The exception of no cause of action refers to the operative facts which give rise to the plaintiffs’ right to judicially assert the action against the defendants. Carr and Associates, 15 So.3d at 167. The exception is triable on the face of the pleadings, and for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition are accepted as true in order to determine whether | fithe law affords a remedy to anyone under the facts alleged in the petition. Id.; Johansen, 916 So.2d at 1086. Generally, no evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 981. However, Louisiana jurisprudence recognizes an exception to this rule, whereby evidence admitted without objection may be considered by the court as enlarging the pleadings. Johansen, 916 So.2d at 1086. We note in this case, the trial court admitted into evidence, without objection, the entire record from the hearing on the preliminary injunction at the hearing on defendants’ peremptory exceptions.

The pertinent question for determining the exception of no cause of action is whether, in the light most favorable to plaintiffs, and with every doubt resolved in plaintiffs’ favor, the petition states any valid cause of action for plaintiffs’ relief. Carr and Associates, 15 So.3d at 167. Plaintiffs are entitled to injunctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unlawful, as when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law. Id., 15 So.3d at 168.

Plaintiffs maintain that the Board’s appointed membership was unconstitutionally composed, in that the membership did not reflect the racial and gender makeup of Louisiana’s population as required by La. Const, art. 8, § 5(B)(1), and that, therefore, all actions and decisions of the Board after December 17, 2010, the date that the Governor allegedly made unconstitutional appointments to the Board, are unlawful. For reasons similar to those articulated by the trial court in its oral and thorough reasons for judgment, we conclude that plaintiffs do not have a cause of action against the defendants.

The ultimate issue involves the proper interpretation of a statute, which is a question of law, subject to de novo review. Red Stick Studio Development, L.L.C. v. State ex rel. Dept. of Economic Development, 2010-0193 (La.1/19/11),7 56 So.3d 181, 187; In Re E.W., 2009-1589 (La.App. 1st Cir.5/7/10), 38 So.3d 1033, 1038. The question is whether La. Const, art. 8, § 5(B)(1) mandates a certain diversity requirement for the race and gender composition of the Board. The Board consists of fifteen persons appointed by the Governor with consent of the Louisiana Senate. See La. Const, art. 8, § 5(B)(1). The pertinent language concerning membership and diversity is as follows:

Article VIII. Education
§ 5. Board of Regents
(B)(1) Membership; Terms. The [B]oard shall be composed of two members from each congressional district and one from the state at large appointed by the [GJovernor, with consent of the Senate, for overlapping terras of six years, following initial terms which shall be fixed by law. The [B]oard should be representative of the state’s population by race and gender to ensure diversity. (Italicized emphasis added.)

Plaintiffs’ position is that the diversity requirement in the last sentence of this particular section of the constitutional provision is mandatory, rather than permissive. However, the Louisiana Supreme Court has stated that the “modern view is that ‘should’ generally denotes discretion and should not be construed as ‘shall.’ ” Louisiana Seafood Management Council v. Louisiana Wildlife and Fisheries Com’n, 97-1367 (La.5/19/98), 715 So.2d 387, 394. Furthermore, where both mandatory words, such as “shall,” and permissive or directory words, such as “should,” are used in the same statute, or in the same section, paragraph, or sentence of a statute, it is a fair inference that the Legislature realized the difference in meaning, and intended that the words used should carry with them their ordinary meanings. Id. Thus, applying those principles to interpreting the constitutional article and section at issue, we conclude that the Legislature’s ordinary use of the word “should” in the unambiguous sentence pertaining to diversity was clearly intended to be permissive. A statute must be applied and | ^interpreted in a manner that is logical and consistent with the presumed fair purpose and intent of the Legislature. Harrah’s Bossier City Inv. Co., LLC v. Bridges, 2009-1916 (La.5/11/10), 41 So.3d 438, 447.

We find that plaintiffs’ allegation that the Board’s composition is unconstitutional is based on an erroneous premise that the diversity provision in La. Const, art. 8, § 5(B)(1) is mandatory, rather than a permissive instruction to the Governor and the Senate to consider the state’s population by race and gender when appointing and confirming members to the Board. The language of this provision simply does not lend itself to the mandatory interpretation maintained by plaintiffs. Therefore, the trial court correctly concluded in its written reasons for judgment that there is no “compelling argument or any rational reason to confer mandatory, obligatory language upon [La. Const, art. 8, § 5(B)(1)], thereby limiting the appointment powers of the [GJovernor.”

Plaintiffs have failed to plead any facts that would afford them any remedy in law against the Governor based on his appointments to the Board, or against the Board based on its composition. Thus, plaintiffs have failed to state a viable cause of action against defendants. The trial court’s judgment sustaining defendants’ peremptory exception raising the objection of no cause of action is legally correct, and plaintiffs’ first assignment of error lacks merit.

Having found no cause of action in the instant case, this court pretermits a discussion of the remaining assignment of error concerning the trial court’s ruling on the peremptory exception urging the objection of no right of action, because a proper analysis of that exception assumes that the petition states a valid cause of action. See Gisclair v. Louisiana Tax Com’n, 2010-0563 (La.9/24/10), 44 So.3d 272, 274 (quoting from Howard v. Administrators of Tulane Educational Fund, 2007-2224 (La.7/1/08), 986 So.2d 47, 59-60). See also Boatman v. Gorman, 92005-1369 (La.App. 1st Cir.2/7/06), 935 So.2d 696, 698, writ denied 2006-0539 (La.5/5/06), 927 So.2d 323.

CONCLUSION

For the above-stated reasons, we affirm the April 20, 2011 judgment of the trial court dismissing plaintiffs’ suit in its entirety. Plaintiffs are to pay all costs of this appeal.

AFFIRMED.

      . The first appeal, Tobin, et al. v. Governor Bobby Jindal, in his Official Capacity as Governor of the State of Louisiana, and the Louisiana Board of Regents (Tobin I), 2011-0838 (La.App. 1st Cir.2/10/12), 91 So.3d 317, arose from a separate judgment rendered by the trial court on February 24, 2011, which denied plaintiffs' request for a preliminary injunction. In Tobin I, decided this same date, we dismissed the appeal as moot.

      . Louisiana Constitution Article 8, Sections 5(D)(3)(a) and (b) authorize the Board to study, but not effect, a merger, consolidation, or transfer of a postsecondary institution from one system to another. To be effective, such measures and proposals require a two-thirds vote of the Legislature upon written recommendation by the Board. La. Const, art. 8, § 5(D)(3)(b).

      . Plaintiffs, Eugenie Tobin and Ellis D. Brent, Jr., are students at SUNO, while plaintiffs, Charles E. Toney, Jr., Kye Lewis, Dadrius Lanus, Nykeisha Trenette Bryer, and Venese Machelle-Charity Morgan, are students at Southern University at Baton Rouge, including the Southern University Law Center (SUBR).

      .The TRO was initially granted by the duty judge on the day plaintiffs filed their original petition, but the trial court dissolved the TRO a few days later, on February 18, 2011. The TRO request is not at issue in this appeal.

      . We held in Tobin I, 91 So.3d at 322, that a court may take judicial notice of legislative records where preserved, as they are a matter of public record. Accordingly, as we did in Tobin /, we take judicial notice of the legislative history for SR 123 and of the fact that during the 2011 Regular Session, the Louisiana Legislature eventually amended the Board’s proposed SUNO-UNO merger recommendation, and the Governor ultimately signed into law a transfer of UNO that did not affect SUNO. See La. R.S. 17:3217, as amended and reenacted, and La. R.S. 17:3230 and 17:3241, as enacted by 2011 La. Acts, No. 419, § 1, effective July 12, 2011. Id., 91 So.3d at 322.

      . In the interest of judicial economy, an appellate court may consider the possibility of mootness on its own motion and dismiss the appeal if the matter has in fact become moot and jurisdiction has abated. See Tobin I, 91 So.3d at 321 n. 6.


source: Caselaw Access Project

author: GAIDRY, J. HUGHES, J.,

license: Public Domain

text:
    Jason LATINO and Laura Latino, Individually and on Behalf of their Minor Son, Colby Latino. v. Matthew JONES, Tara Jones, and Farmer’s Insurance Exchange.
    No. 2011 CA 0463.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2012.

      Robert J. Burns, Jr., Baton Rouge, LA, for Plaintiffs/Appellants, Jason Latino and Laura Latino individually and on behalf of their minor son Colby Latina.
    Scott D. Wilson, Baton Rouge, LA, for Defendants/Appellees and Cross Claimants, Matthew Jones and Tara Jones.
    Charles L. Chassaignac, IV, Baton Rouge, LA, Adrianne L. Baumgartner, Covington, LA, for Defendant/Appellee Farmers Insurance Exchange.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

| ¡.This is an appeal of a motion for summary judgment and motion for partial summary judgment relating to an exclusion of coverage under liability policies issued by the defendant-appellee, Farmers Insurance Exchange (Farmers). For the following reasons, we affirm the trial court’s granting of the motions for summary judgment and partial summary judgment in favor of Farmers, thereby dismissing Farmers, with prejudice, from this matter.

FACTS AND PROCEDURAL BACKGROUND

On July 12, 2008, Victoria Jones, then ten-year-old daughter of Matthew and Tara Jones, asked permission from her parents to drive a golf cart which was owned by them and kept at their residence for the primary purpose of traveling to the nearby golf course and playing golf there. On the above mentioned date, Victoria was transporting herself and her friends up and down Summerlin Drive, the public street on which they lived in Zachary, Louisiana. Summerlin Drive allows entry and exit to a nearby golf course at Fenn-wood Hills Country Club; however, the record is clear that Victoria was not driving the golf cart for the purpose of playing golf. The street also ends in a cul-de-sac several houses down from the Jones residence.

A few houses down from the Jones family lived Jason and Laura Latino, along with their son Colby, who was six years old at the time. Colby was riding his bicycle on' the cul-de-sac of Summerlin Drive at the same time Victoria was riding around in the golf cart. As Victoria entered the cul-de-sac on the golf cart, the record reflects that Victoria believed Colby was playing “chicken” with her by riding his bike right in front of the golf cart as she was driving it. As a result, Victoria struck Colby from behind, knocking |c.him off the bike and onto the ground. The record reflects Victoria did not think Colby was seriously injured, and she immediately drove home and reported the incident to her mother.

Approximately thirty minutes later, the Joneses decided to go to the Latino residence to see how Colby was doing. They found Colby sitting in his driveway with his parents and some neighbors. The Joneses were told by the Latinos that Colby had been throwing up since the accident occurred, and around that time an ambulance arrived to transport Colby to Our Lady of the Lake Hospital. The Joneses later discovered that Colby was taken to the hospital’s Intensive Care Unit due to having problems with his kidney. Subsequently, one half of one of Colby’s kidneys was removed.

The Latinos filed their petition for damages on June 18, 2009 in the 19th Judicial District Court. They asserted that Matthew and Tara Jones were vicariously liable for the acts of their minor daughter, Victoria, which caused their son extensive injuries and that required the partial removal of one of his kidneys. The Latinos also claimed on behalf of their son Colby damages for his pain and suffering, mental anguish, loss of enjoyment of life, and medical expenses.

The Latinos also named as a defendant Farmers Insurance Exchange. Farmers had issued to the Joneses liability coverage under a homeowner’s policy and an automobile policy. In Farmers’ answer, filed July 29, 2009, it is specifically alleged that no coverage is warranted for the Latinos’ claims in their petition for damages. Specifically, Farmers refers to the homeowner’s policy’s exclusion provision:

Section II-Exclusions:
LI. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to “bodily injury” or “property damage”:
f. Arising out of:
(1) The ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an “insured”;
(2) The entrustment by an “insured” of a motor vehicle or any other motorized land conveyance to any person; or
(3) Vicarious liability, whether or not statutorily imposed, for the actions of a child or minor using a conveyance excluded in paragraph (1) or (2) above.

While not mentioned in Farmers’ answer, the policy contains exceptions to the exclusions of coverage, which read in part as follows:

This exclusion does not apply to:
(3) A motorized golf cart when used to play golf on a golf course;
(4) A vehicle or conveyance not subject to motor vehicle registration which is:
(a) Used to service an “insured’s” residence;
(b) Designed for assisting the handicapped; or
(c) In dead storage on an “insured location”

Fanners further refers to its automobile policy issued to the Joneses, where coverage is also excluded:

B. We do not provide Liability Coverage for the ownership, maintenance or use of:
1. Any vehicle which:
|sa. Has fewer than four wheels; or
b. Is designed mainly for use off public roads.

Matthew and Tara Jones filed a cross-claim against Farmers as their insurer on April 15, 2010, along with their answer to the Latinos’ petition for damages. Farmers filed a motion for partial summary judgment on August 18, 2010, praying to be dismissed from the Joneses’ cross-claim. Farmers filed another motion for summary judgment on August 28, 2010, praying to be dismissed from the lawsuit entirely, with prejudice. On January 3, 2011, Judge Clark of the Nineteenth Judicial District Court granted both motions, thereby dismissing Farmers from the lawsuit with prejudice. On January 19, 2011, the Latinos filed this motion for devolutive appeal.

ASSIGNMENTS OF ERROR

The Latinos contend that the policy can be reasonably interpreted to afford coverage to the Joneses for the accident, and therefore the trial court improperly granted summary judgment.

The Latinos also contend that fact issues exist concerning whether the location of the accident occurred on an “insured location” under the policy, and therefore summary judgment was improper in this instance as well.

STANDARD OF REVIEW

The standard of review on a motion for summary judgment is de novo, where the appellate court must use the same criteria as the trial court to determine whether summary judgment was proper. Breaux v. Bene, 95-1004 (La.App. 1st Cir.12/15/95), 664 So.2d 1377, 1380. Whether a contract is ambiguous or not is a question of law. Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924, 928 (La.App. 1st Cir.), writ denied, 545 So.2d 1041 (La.1989). An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Miller v. Superior 6Shipyard and Fabrication, Inc., 2001-2907, p. 5 (La.App. 1st Cir.8/20/03), 859 So.2d 159, 162. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Borden, 543 So.2d at 928.

DISCUSSION

General Principles of Contractual Interpretation

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. This is an objective inquiry; thus, “a party’s declaration of will becomes an integral part of his will.” La. C.C. art. 2045, Revision Comments — 1984, (b). When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046, The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Because an insurance policy is a contract, the rules established for the construction of written instruments apply to contracts of insurance. Miller, 859 So.2d at 162, 163.

Louisiana Civil Code Article 2056 provides:

In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.
A contract executed in standard form of one party must be interpreted, in case of doubt, in favor of the other party.

Similarly, La. C.C. art. 2057 sets forth an analogous rule:

|7In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation.
Yet, if the doubt arises from lack of a necessary explanation that one party should have given, or from negligence or fault of one party, the contract must be interpreted in a manner favorable to the other party whether obligee or obligor.

The Insurance Contract

The appellant argues that the language in the pertinent coverage exclusions is somewhat ambiguous and is open to interpretation; therefore, according to Louisiana Civil Code articles 2056 and 2057, the policy should be interpreted against the obligee and drafter of the contract, which in this case would be Farmers, and in favor of the obligors, the Joneses. Both the Latinos and the Joneses would benefit if coverage was afforded under the policy, but we do not agree with this outcome. Rather, the contract language is very clear and unambiguous.

By reading the Section II exclusions outlined swpra, we note that “bodily injury” did occur to Colby Latino in that he was knocked off his bike, resulting in visibly apparent scratches and abrasions that both Matthew and Tara Jones testified to seeing on Colby, vomiting, and serious internal damage to his kidney. The bodily injury resulted from the use of a motor vehicle or other motorized land conveyance owned or operated by an insured. Matthew Jones testified that he purchased the 2003 Ez-Go golf cart in 2005. The golf cart was obviously operational since his daughter was operating it when the accident occurred. There was an “entrustment by an ‘insured’ of a motor vehicle or . .■. motorized land conveyance to any person” under subsection f(2) when the insured Joneses granted permission to their daughter to ride the cart. Finally, subsection f(3) also applies because there is vicarious liability for the acts of a minor in connection with motorized | ^conveyance under (1) and (2). This is statutorily provided by La. C.C. art. 2318. From simply the plain meaning of the words, without putting any extra effort into their interpretation, we see that the golf cart driven by Victoria Jones with the permission of her parents clearly fits into the policy’s exclusion clause.

However, the policy becomes more explicit when it addresses golf carts specifically. Exceptions (3) and (4) clearly contemplate a vehicle such as the one that was operated by Victoria Jones. Exception (3) would afford coverage had the cart been used at the time to play golf, but the record states through the Joneses’ own admissions that the cart was not being used to play golf at the time of the accident. While we agree with the appellants that a golf cart can fit the definition of the vehicle contemplated in exception (4), the cart was not used in the listed ways that afford coverage at the time of the accident. The cart was not being used to service the Jones residence at the time of the accident. Mr. Jones admitted in his deposition that the golf cart had been used in the past to haul cement bags to repair his fence right after hurricanes Katrina and Rita, and he would also use the golf cart to assist in landscaping his yard. While we agree that those are insured activities, the cart was not being used in those capacities at the time of the accident. Exception (4) also contemplates the transportation of the handicapped as a covered action. Mr. Jones testified that the cart has been used in the past to bring his mother-in-law to and from her home to his, since he claimed her to be elderly and unable to walk the distance on her own. Again, while this would be a covered act, the record does not support that Victoria Jones was transporting any handicapped person with her in the golf cart. The “dead storage” provision obviously does not apply since the 13cart was being driven at the time of the accident. None of the exceptions would therefore be applicable to cover the golf cart in this matter.

The appellants argue in their brief (without any legal support) that since the golf cart had been used in the past to service the Jones residence and to transport the handicapped, then exception (4) does apply because had Farmers wanted to be so specific that coverage would only apply while the cart was being used in those capacities, then exception (4) would have included the word “while” to make those distinctions. Here the appellants are asking this court to make a leap of interpretation we are not willing to make without legal authority to do so. The exceptions, when taken as a whole, are clear, and the meaning they convey is that if a golf cart causes bodily injury while it is being used to play golf, to service the insured’s residence, or to transport the handicapped, coverage does apply. The word “while” is understood and does not have to be written. The appellants further argue that a jury could reasonably conclude that the cart was covered since it had been used in an acceptable manner more than once in the past. We also disagree with this point, as the policy’s reading covers the use of the vehicle and not the vehicle itself. We find that Bumgardner v. Terra Nova Insurance Company, 36,615 (La.App. 2nd Cir.1/23/2002), 806 So.2d 945, cited by Farmers is not as distinguishable as appellants contend, because the Second Circuit looked to the use of the vehicle at the time of the accident to decide whether or not the vehicle (a tractor) was used as intended for coverage when the bodily injury occurred. The coverage exceptions Bumgardner deals with are identical to those here, word for word. Id., at 949. We can find no reason to draw a different conclusion than the Second Circuit from reading the same words.

| )0As for the exclusion in the automobile policy, the same theories of strict interpretation apply. Coverage is excluded for “use” of a vehicle with fewer than three wheels or which is designed mainly for use off of public roads. A four-wheeled golf cart can be excluded by the second clause, as it is designed primarily for use on a golf course. The designed use and not the actual use of the vehicle by the insured is contemplated by the language of the clause. Although the cart can be driven on a public roadway, just as a four-wheeled ATV or a dirt bike, none of those vehicles were ever designed and cannot be licensed for operation on a public roadway as can an automobile or a motorcycle. Nowhere in the record is the vehicle in question called anything other than a “golf’ cart.

Finally, appellants argue that the cul-de-sac where the accident occurred is an “insured location.” The policy’s definition of “insured location,” in pertinent part, is as follows:

4. “Insured location” means:
a. The “residence premises”;
c. Any premises used by you in connection with a premises in 4.a.”

No other parts of the definition apply to this case. Appellants argue the cul-de-sac and street fit the definition of “insured location” because they are used “in connection with” the residence every time the cart is driven from the home to another location and back. Again the appellants give no legal authority for this argument, and we believe this argument is flawed because it leads to an absurd result. It is undisputed in the record that the cart was primarily used for transport between the residence and the golf course. It is also undisputed that the golf cart is covered when at the Jones residence and when it is at the golf course being used to play golf. Is the Ingolf cart covered when it is en route between those locations? We think not. To say that the cart is covered whenever it is on its way to an insured location leads to a series of circumstances that Farmers clearly did not anticipate with its policy. The appellants’ argument would mean that Summerlin Drive, a public street on which other residences are located, can be insured as a part of the Joneses’ residence. The street is obviously not part of the Jones residence as the public street is owned by the public and is subject to public use. La.C.C. art. 457. The appellants’ argument would also mean that any street on which the cart drives would be an “insured location,” so long as the cart’s final destination is another “insured location.” Farmers certainly did not intend with its policy to give the Joneses the ability to roam freely with the golf cart and be covered so long as the destination is an “insured location.” That would be the case nearly every time because the cart would always eventually return to the Jones residence. Neither does Farmers have to be so meticulous as to insure one stretch of road that the Joneses would be covered to ride their cart up and down as much as they like, nor could it be expected that Farmers intended to insure a part of a public street on behalf of the Joneses.

The intent of the parties determines the extent of coverage. Miller v. Superior Shipyard and Fabrication, Inc., 2001-2907 (La.App. 1st Cir.8/20/03), 859 So.2d 159, 163. We find that Farmers could have in no way intended to have an indeterminate public roadway fall into the category of “insured location” for the purpose of covering the accident at issue. This accident occurred in the cul-de-sac which is several houses away from the Jones residence, based on statements from both Matthew and Tara Jones. Mr. Jones testified at the time of the accident, he and his wife were standing at the corner of Summerlin and Weschester, which is approximately five | ^houses away from their home. Mrs. Jones testified that the cul-de-sac was ten or twelve houses from where they stood. That places the Jones residence five to seven houses away from the cul-de-sac. We find this distance to be too far to agree with the appellants that the cul-de-sac is used “in connection with” the Jones residence. The argument of the appellants is therefore without merit.

Genuine Issues of Material Fact?

We find that the language of the insurance policy is clear and unambiguous, and there is no question as to what Farmers intended to cover with its policy and what to exclude from coverage. It is clear to us that a golf cart used, in the fashion it was used at the time of the accident by Victoria Jones, is not covered by either the Joneses’ homeowner’s or automobile policies. Summary judgment declaring a lack of coverage under an insurance policy may be rendered only if there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Id., at 162.

DECREE

The trial court’s granting the motion for summary judgment for appellee Farmers and against appellants Jason and Laura Latino, individually and on behalf of their minor son Colby Latino is affirmed. The trial court’s granting the motion for partial summary judgment in favor of appellee Farmers and against cross-claimants Matthew and Tara Jones is affirmed. Appel-lee Farmers is hereby dismissed from the lawsuit, with prejudice. Costs of this appeal are assessed to the appellants, Jason and Laura Latino.

AFFIRMED.

HUGHES, J., concurs with reasons.

HUGHES, J.,

concurring.

|,If a vehicle is used to service an insured’s residence on a regular basis and the accident occurs on an insured location, there might be some circumstances where there would be coverage even though the vehicle was not being so used at the time of the accident. But based on the facts in this case I must concur with the result reached.


author: WHIPPLE, J.

text:
    James BUTLER v. L & N FOOD STORES, Summit and Retailers Casualty Insurance Company.
    No. 2011 CA 0577.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2012.

      James Butler, Thibodaux, LA, Plaintiff/Appellant, In Proper Person.
    Jennifer E. Frederickson, Baton Rouge, LA, for Defendants/Appellees, L & N Food Stores and Retailers Casualty Insurance Company.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   WHIPPLE, J.

12This matter is before us on appeal by claimant, James Butler, from a judgment of the Office of Workers’ Compensation (“OWC”) dismissing, with prejudice, Butler’s claims against his employer, L & N Food Store, Inc., and Retailers Casualty Insurance Company, based upon the finding that he failed to establish that he sustained a work-related injury and, accordingly, that he was not entitled to workers’ compensation benefits.

BACKGROUND FACTS

On January 27, 2010, Butler filed a disputed claim for compensation seeking workers’ compensation benefits for an alleged injury to his “upper back/neck” while working for L & N Food Store. Specifically, Butler asserted that on November 13, 2009, he “was climbing into a trailer and felt a pop in his upper back/neck.” He further asserted that he was entitled to penalties and attorneys fees pursuant to LSA-R.S. 23:1201, contending that his employer was arbitrary and capricious in its refusal to initiate workers’ compensation benefits.

Trial of the matter was held over the course of three days on September 20 and 24, 2010, and November 18, 2010. At the conclusion of trial, the OWC judge found that given the conflicting testimony and medical evidence, Butler failed to prove by a preponderance of evidence that he sustained a work-related accident. On November 29, 2010, judgment was rendered in accordance with the OWC judge’s oral reasons. Thus, Butler’s claims against L & N Food Store and Retailers Casualty Insurance Company were dismissed with prejudice. Butler now appeals, in proper person, asserting that the OWC judge was manifestly erroneous in her findings.

J^DISCUSSION

An employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. LSA-R.S. 23:1031. The employee who claims a right to collect workers’ compensation benefits has the burden of proving by a preponderance of the evidence, that a work-related accident occurred. Guidry v. Brewer, 2002-2693 (La.App. 1st Cir.9/26/03), 857 So.2d 623, 625, writ denied, 2003-2958 (La.1/9/04), 862 So.2d 993. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. McCoy v. City of Hammond, 2004-0410 (La.App. 1st Cir.5/6/05), 915 So.2d 849, 850.

Factual findings in a workers’ compensation case are subject to the manifest error standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable in light of the record. Lizana v. Gulf Coast Pain Institute, 2003-1672 (La.App. 1st Cir.5/14/04), 879 So.2d 763, 765. “If the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have 14weighed the evidence differently.” Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact may not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

The OWC judge, in her oral reasons for judgment, thoroughly discussed all of the evidence presented at trial, which included both testimony and medical evidence. In considering whether Butler established that a work-place accident had occurred, the OWC judge noted that although Butler testified that the accident was witnessed by his supervisor, the supervisor denied witnessing any accident and testified that Butler did not réport an accident to him until days after it allegedly occurred. Moreover, although Butler contended he asked another co-worker, Claude Ledet, to fill out an accident report for him, Ledet denied knowing anything about the accident and further denied that Butler had ever reported to him that he had hurt himself on the job. Ledet testified that he ran into Butler at Wal-Mart and that Butler asked Ledet for a copy of the accident report, which Ledet indicated he did not have.

The OWC judge also noted and considered the testimony of Patricia Thomas and Russell Thomas, Sr., members of Butler’s family, who testified that he had injured his back the day before the alleged workplace injury occurred, by lifting a man during horseplay at the Thomas’ home. As noted by the OWC judge, this testimony directly conflicted with Butler’s testimony that although he was at the Thomas’ home, the horseplay incident never happened and he did not injure himself on the day before his alleged work-place injury. Finally, the OWC judge noted that Butler had “extensive” pre-existing conditions and that he had undergone several surgeries. In particular, she | ¿thoroughly reviewed Butler’s medical history and noted that prior to the alleged injury his medical records showed that he had sought treatment for continued back pain as recently as the month before the alleged accident. After reviewing the conflicting testimony and evidence, the OWC judge found that Butler was not involved in a work-place accident, that he did not sustain a work-related injury, and that he did not aggravate a pre-existing condition as a result of any work-related accident.

After a thorough review of the record and evidence in this matter, which is replete with conflicts in the testimony, we conclude that the record reasonably supports the OWC judge’s finding that Butler failed to establish by a preponderance of the evidence that he sustained an injury due to a work-related accident. Thus, we cannot say that the judgment, dismissing his claims with prejudice, was manifestly erroneous.

Accordingly, the November 29, 2010 judgment of the OWC is hereby affirmed. Costs of this appeal are assessed to claimant/appellant, James Butler.

JUDGMENT AFFIRMED; MOTION TO DISMISS APPEAL DENIED; MOTION TO STRIKE GRANTED IN PART.

      . In response to Butler’s brief on appeal, L & N Food Store filed a motion and order to strike appellant’s brief and for sanctions and to dismiss the appeal, contending that the brief contains facts and arguments which are not in evidence and are not contained anywhere in the record on appeal, in violation of Uniform Rules — Courts of Appeal, Rules 2-12.2, 2-12.3, and 2-12.4. On review, we note that to the extent that Butler’s brief contains any references to testimony outside the record or arguments based on evidence not of record from the proceedings below, we do not consider such testimony or evidence not contained in the record. See Guedry v. Fromenthal, 633 So.2d 287, 289 (La.App. 1st Cir.1993) and Salassi v. State, Department of Public Safety and Corrections, Administrative Hearing Section, 96-0321 (La.App. 1st Cir.11/15/96), 684 So.2d 1014, 1017-1018. Nonetheless, even though L & N Food Store correctly notes that Butler failed to assign specific errors to the judgment of the OWC, the brief, although not artfully designated as such, generally appeals the OWC judge's finding that he failed to meet his burden in proving that a work-related accident occurred and that he sustained an injury as a result of that accident. Thus, in light of appellant’s pro se status and because appeals are favored in law, this court will consider his brief as presented in support of a general appeal of the merits of the OWC judgment despite the improper form of his appellate brief. See Putman v. Quality Distribution, Inc., 2011-0306 (La.App. 1st Cir.9/30/11), 77 So.3d 318, 320. Accordingly, we deny the portion of the L & N Food Store’s motion seeking to dismiss the appeal, but grant the portion of the motion seeking to prohibit consideration of any evidence and arguments not contained in or supported by the record before us on appeal.


author: CARTER, C.J.

text:
    Robert Wayne BARNETT, Sr. and Tina Barnett v. AMERICAN CONSTRUCTION HOIST, INC.
    No. 2011 CA 1261.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2012.

      Donald W. Price, Baton Rouge, LA, Charles Darwin Davidson, Little Rock, AR, for Plaintiffs, Robert Wayne Barnett Sr. and Tina Barnett.
    Rodney J. Lacoste, Jr., Jean E. Lavida-lie, Jr., New Orleans, LA, for Defendant/Third-Party Plaintiff/Appellant, American Construction Hoist, Inc.
    Seth A. Schmeekle, Heather N. Sharp, New Orleans, LA, for Third-Party Defendant, The Charter Oak Fire Insurance Company.
    Harry J. Philips, Jr., Amy C. Lambert, Baton Rouge, LA, for Third-Party Defendant/Appellee, Buquet and LeBlanc, Inc.
    Musa Rahman, Baton Rouge, LA, for Intervener, Louisiana Workers’ Compensation Corporation.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

[ gThis is an appeal of a summary judgment dismissing the third-party complaint of Defendant/Third-Party Plaintiff, American Construction Hoist, Inc. For the following reasons, the judgment of the district court is affirmed.

FACTS AND PROCEDURAL HISTORY

Robert Barnett, Jr., an employee of Bu-quet and LeBlanc, Inc. (“Buquet”), was fatally injured in Baton Rouge, Louisiana, while riding the top level of a construction hoist leased by Buquet but owned and installed by American Construction Hoist, Inc. (“ACHI”). Barnett’s parents (hereinafter referred to as “Plaintiffs”) filed a petition against ACHI alleging that the cause of their son’s injuries was the negligence of ACHI in installing, supplying, and/or renting its hoist. ACHI filed a third-party demand against Buquet and The Charter Oak Fire Insurance Co. (“Charter”) seeking defense and indemnification based on the terms of a rental agreement between Buquet and ACHI.

ACHI filed a motion for partial summary judgment, requesting a partial final judgment declaring that Buquet was obligated to defend and indemnify it for the damages claimed by Plaintiffs. In support of its motion, ACHI claimed that a Kentucky choice of law provision in the rental agreement was enforceable and that under Kentucky law, the language in the rental agreement requiring Buquet to indemnify ACHI would be enforceable. In opposition to the motion, Buquet argued that Louisiana has a public policy against indemnification of a party for its sole negligence unless the indemnification agreement provides for such in unequivocal terms. Buquet stated that the indemnity provision in the rental | ¡¡agreement did not expressly require Buquet to indemnify ACHI for ACHI’s own fault as mandated by Louisiana law. Because Plaintiffs alleged only the fault of ACHI and because ACHI was seeking indemnity for its own fault, Buquet argued that the Kentucky choice of law provision was unenforceable as it was contrary to Louisiana’s choice of law rules that require the application of Louisiana law in proceedings where the public policy of Louisiana would be defeated by the application of another state’s laws.

After a hearing, the district court denied ACHI’s motion. In oral reasons for judgment, the district court explained that summary judgment was not appropriate because the application of Kentucky laws, under which the intent to indemnify a party for its own negligence need only be implied by the language of the indemnification provision, would be contrary to and would conflict with the law in Louisiana where it is against public policy to enforce an indemnification provision that does not express in unequivocal terms that the in-demnitor is liable for the sole negligence of the indemnitee. From this ruling, ACHI applied for supervisory writs to this court and .the Louisiana Supreme Court. This court denied the writ application. See Barnett v. American Construction Hoist, Inc., 10-1529 (La.App. 1 Cir. 11/15/10) (unpublished). The Louisiana Supreme Court also denied ACHI’s writ application. See Barnett v. American Construction Hoist, Inc., 10-2761 (La.2/4/11), 57 So.3d 316.

Thereafter, Buquet filed a motion for summary judgment seeking dismissal of ACHI’s third-party demand. The district court granted Buquet’s motion and stated in oral reasons that the indemnity provision in the rental agreement is not enforceable as it is against public policy in Louisiana. The district court then signed a judgment granting Buquet’s motion, dismissing ACHI’s third-party |4demand against Buquet and Charter with prejudice, and assessing costs to ACHI. The court designated the judgment as a final judgment pursuant to Louisiana Code of Civil Procedure article 1915. It is from this judgment that ACHI appeals.

On appeal, ACHI argues (1) that the district court erred in granting Buquet’s motion for summary judgment and failing to find Buquet is obligated to defend and indemnify ACHI for the damages claimed by Plaintiffs; and (2) that the district court erred in failing to find that Buquet is obligated to pay for all attorney fees and costs incurred on behalf of ACHI.

STANDARD OF REVIEW

Appellate courts review summary judgment de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Dean v. Griffin Crane & Steel, Inc., 05-1226 (La.App. 1 Cir. 5/5/06), 935 So.2d 186, 189, writ denied, 06-1334 (La.9/22/06), 937 So.2d 387. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. Ann. art. 966 B. When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law, and summary judgment is appropriate. Dean, 935 So.2d at 189.

DISCUSSION

The contract at issue is a rental agreement between ACHI and Buquet. The rental agreement sets forth the following provisions concerning indemnification and choice of law, which form the central issues of this appeal:

I,.INDEMNITY AND INSURANCE: Lessee shall defend, indemnify and hold forever harmless Lessor, its affiliated companies and their officers, agents, and employees from and against all loss, liability, and expense by reason of any violation of any rule, regulation or law, and by reason of bodily injury including death, and property damage, sustained by any person or persons, including but not limited to Lessee’s employees, as a result of the use or operation or daily maintenance of Equipment.
APPLICABLE LAWS: If any provisions hereof conflict with any statute or rule of law of any jurisdiction wherein it may be sought to be enforced, then such provision shall be deemed null and void to the extent that they may conflict therewith, but without invalidating the remaining provisions thereof. For questions of filing or recording as well as for all other respects, this agreement shall be governed by and construed according to the laws of the state of Kentucky....

Assignment of Error 1

In its first assignment of error, ACHI argues that the district court erred in granting Buquet’s motion for summary judgment because Buquet is bound to defend and indemnify it under the terms of the rental agreement. In support of this argument, ACHI contends that the indemnity provision does not violate Louisiana’s public policy, Kentucky law applies pursuant to a choice of law provision, and Bu-quet is obligated to defend and indemnify ACHI under Kentucky law.

Application of Kentucky Law

ACHI contends that the district court erred in not applying Kentucky law to the indemnity provision of the rental agreement. It is well established that where parties stipulate the state law governing the contract, Louisiana conflict of laws principles require that the stipulation be given effect, unless there is statutory or jurisprudential law to the contrary or public policy considerations justifying the refusal to honor the contract as written. La. Civ.Code Ann. art. 3540; Mobil 6Exploration & Producing U.S., Inc. v. Certain Underwriters Subscribing to Cover Note 95-3317(A), 01-2219 (La.App. 1 Cir. 11/20/02), 837 So.2d 11, 42-43, writs denied, 03-0418 (La.4/21/03), 841 So.2d 805, and 03-0417, 03-0427, 03-0438 (La.5/16/03), 843 So.2d 1129-30. A choice of law provision in a contract is presumed valid until it is proved invalid. Mobil Exploration, 837 So.2d at 43. The party seeking to prove such a provision invalid bears the burden of proof. Id.

Buquet argues that the choice of law provision is unenforceable under Louisiana Civil Code article 3540, which provides, “[a]ll other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under Article 3537.” Revision comments to Article 3540 explain that the application of the chosen law is subject to limitations imposed by the public policy of the state whose law would otherwise apply. La. Civ.Code Ann. art. 3540, cmt. (f). Parties may not, by simply choosing another law, evade the public policy of the state whose law would have been applicable to the issue but for the parties’ choice. Id.

ACHI argues that Kentucky law should be applied because there is no public policy in Louisiana disfavoring indemnity provisions that indemnify an indemnitee for his own negligence. However, in Berry v. Orleans Parish School Board, 01-3283 (La.6/21/02), 830 So.2d 283, 286, the Louisiana Supreme Court expressly recognized that there is public policy in Louisiana “disfavoring indemnification of a party solely responsible for causation.”

Under Louisiana law, a contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses |7resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms. Berry, 830 So.2d at 285. This court expressed the basis for this principle over forty years ago in Arnold v. Stupp Corporation, 205 So.2d 797, 799 (La.App. 1st Cir.1967), writ not considered, 251 La. 936, 207 So.2d 540 (1968): “[Gjeneral words alone, i.e., ‘any and all liability’, do not necessarily import an intent to impose an obligation so extraordinary and harsh as to render an indemnitor liable to an indemnitee for damages occasioned by the sole negligence of the latter.”

Conversely, under Kentucky law, a contract provision requiring a party to indemnify another party for the indemnitee’s sole negligence need not be expressed in unequivocal terms. See Reynolds Metals Company v. J.U. Schickli & Bros., Inc., 548 S.W.2d 841, 842 (Ky.1977); Fosson v. Ashland Oil & Refining Company, 309 S.W.2d 176, 178 (Ky.1957).

The public policy of Louisiana would be defeated by the application of Kentucky’s law. Thus, the district court’s refusal to apply the choice of law provision in the rental agreement was clearly justified. Accordingly, we conclude the district court did not err in refusing to apply Kentucky law to the instant suit.

Defense and Indemnification

While it is true that the indemnity provision in the rental agreement obligates Buquet to indemnify ACHI “from and against all loss, liability, and expense by reason of any violation of any rule, regulation or law, and by reason of bodily injury including death ... sustained by any person or persons ... as a result of the use or operation or daily maintenance of Equipment,” that sentence does not expressly and unequivocally include liability for ACHI’s own negligence or fault within that obligation. The agreement does not make clear that Buquet was | ^obligated to assume responsibility for injuries caused solely by the negligent acts of ACHI.

ACHI prepared and furnished the rental agreement and easily could have supplied the necessary unequivocal terms in the contract making it clear that Buquet was obligated to indemnify ACHI for liability arising from the latter’s sole negligence. The indemnity provision does not include such terms. Accordingly, no indemnity is owed to ACHI by Buquet under Louisiana law.

We have conducted a de novo review of the record in this case and agree with the district court that Buquet is entitled to judgment as a matter of law. Because application of Kentucky law would defeat Louisiana’s public policy disfavoring indemnification for an indemnitee’s sole negligence, the Kentucky choice of law provision is not enforceable. There is an absence of unequivocal terms expressing a clear intent of the parties that Buquet would assume responsibility for ACHI’s sole negligence as required under Louisiana law. Therefore, no indemnity is owed as a matter of law under the facts of this case. The district court did not err in granting Buquet’s motion for summary judgment.

Assignment of Error 2

ACHI argues in its second assignment of error that it is entitled to recover attorney fees and costs from Buquet as its indemnitor under the terms of the rental agreement. Because we find Buquet does not owe a duty to defend and indemnify ACHI, we find no merit in this assignment of error.

CONCLUSION

For the foregoing reasons, the judgment of the district court granting Buquet and LeBlanc, Inc.’s motion for summary judgment is affirmed. Costs of this [flappeal are assessed to Defendant/Third-Party Plaintiff/Appellant, American Construction Hoist, Inc.

AFFIRMED.

      . Charter moved for summary judgment, which the district court granted, dismissing with prejudice all claims brought by ACHI against Charter. ACHI dismissed its appeal of that judgment. See Barnett v. American Construction Hoist, Inc., 11-1260 (La.App. 1 Cir. 8/22/11) (unpublished).


text:
    Joseph Glynn Stephen LUNNEY, Jr. v. Leslie Ann Shoebotham LUNNEY.
    No. 2011 CU 1891.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2012.

      Thomas H. Huval, Covington, LA, Bradford H. Felder, Lafayette, LA, for Appellant, Leslie Ann Shoebotham.
    David R. Paddison, Covington, LA, for Appellee, Joseph Glynn Stephen Lunney, Jr.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

|2Leslie Ann Shoebotham appeals a judgment of the trial court modifying the shared custody arrangement set forth in a prior consent judgment, but denying her requests that custody be changed from the shared fifty-fifty arrangement of the consent judgment and that she be named domiciliary parent.

FACTS AND PROCEDURAL HISTORY

Leslie Shoebotham and Glynn Lunney are the divorced parents of three children, born December 12, 1993, August 19, 1996, and April 22, 1998. The youngest two children have special needs. After their divorce, Ms. Shoebotham and Mr. Lunney reached an agreement regarding custody of the children, which was memorialized in a judgment dated December 11, 2008 (“the consent judgment”). The consent judgment provided for joint custody, with physical custody being shared according to the following schedule: Ms. Shoebotham would have the children every Monday and Wednesday; Mr. Lunney would have the children every Tuesday and Thursday; and Ms. Shoebotham and Mr. Lunney would alternate having the children Friday through Sunday.

In March 2010, Ms. Shoebotham moved for a change of custody, seeking to have the children reside with her on weekdays and alternate weekends with each parent. Her motion was based, in part, on the ongoing treatment of the children’s special needs and her contentions that Mr. Lun-ney was not facilitating that treatment during periods in which he exercised physical custody. Mr. Lunney opposed the proposed change in custody but, in a re-conventional demand, suggested that the children would benefit from an alternating weekly physical custody schedule.

| sIn June 2010, the parties met with a hearing officer of the 22nd Judicial District Court who recommended that Ms. Shoe-botham’s requested change of custody be denied and that the parties share physical custody on an alternating weekly basis. However, due to particular difficulties the youngest child, G.I.L., was facing, the hearing officer recommended that during the school year, G.I.L. would reside with Ms. Shoebotham Mondays through Fridays and every third weekend of the month. The hearing officer’s recommendation was made a temporary order of the court on June 16, 2010.

The parties reached an agreement as to custody of the oldest child who was then seventeen years old, which was memorialized by a separate consent judgment signed March 18, 2010. The trial court held a three-day hearing regarding custody of the younger two children (then ages fourteen and thirteen) and ruled that Ms. Shoebotham failed to meet her burden of proving a material change in circumstances so as to warrant modification of the custody arrangement set forth in the consent judgment. The trial court ordered that the parties share equal physical custody of the youngest two children on an alternating weékly basis, with a detailed schedule regarding physical custody during holidays.

Ms. Shoebotham now appeals, designating seven assignments of error. In short, she contends that the trial court applied an incorrect burden of proof to her request for modification of the consent judgment’s custody arrangement, made prejudicial ev-identiary rulings, and, alternatively, erred in modifying the consent judgment’s custody arrangement.

J4DISCUSSION

The time that parents with joint legal custody share with their children is a physical custody allocation of a joint custody plan. Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433, 436. A party seeking modification of a physical custody decree set forth in a stipulated or consensual judgment must meet the two-prong test of proving that there has been a material change in circumstances (also referred to as a change in circumstances materially affecting the welfare of the child) since the original decree, as well as prove that the proposed modification is in the best interest of the child. Cedotal, 927 So.2d at 436. If the first prong of the test is not met and a material change in circumstances is not shown, the inquiry ends, and there is no basis for altering the physical custody decree. Kingston v. Kingston, 11-1629 (La.App. 1 Cir. 12/21/11), 80 So.3d 774, 778; Bonnecarrere v. Bonnecarrere, 09-1647 (La.App. 1 Cir. 4/14/10), 37 So.3d 1038, 1044, writ denied, 10-1639 (La.8/11/10), 42 So.3d 381. Ms. Shoebot-ham’s contention that she should merely have been required to show that her proposed custody modification was in the children’s best interests is legally incorrect.

In her appellate brief, Ms. Shoe-botham argues that a material change in circumstances was not necessary in this case as both parties stipulated that the custody arrangement set forth in the consent judgment was unworkable. Preter-mitting a determination of whether such a stipulation could negate the requirement of proving the first prong of the test for modifying the custody arrangement set forth in the consent judgment, we find no such stipulation reflected in the record. In his response to Ms. Shoebotham’s request for modification of custody, Mr. Lunney averred that there had been no material | ^change in circumstances that would warrant a change in the existing custody and visitation schedule. However, in a reconventional demand, Mr. Lunney sought to change the custody arrangement to a week-to-week schedule and asserted that such a schedule would be more beneficial to everyone. During Mr. Lunne/s testimony at the hearing, he was specifically asked if he agreed that the custody arrangement set forth in the consent judgment did not work. Mr. Lunney responded, “[n]ot really,” and then explained that the schedule accommodated both his and Ms. Shoebotham’s teaching schedules. He went on to explain that, in asking that the schedule be modified, he did not understand that he might be conceding there was a change in circumstances, but was merely expressing a preference. Mr. Lunney stated that he “would certainly withdraw [his] motion” and that he was “perfectly happy with any 50/50 custody relationship for the two younger boys.” Considering the record as a whole, we do not find, as Ms. Shoebotham suggests, that Mr. Lunney’s request for a change in the custody schedule rises to the level of a stipulation to the first prong of the test for modifying custody.

In three assignments of error, Ms. Shoebotham challenges the trial court’s finding that she did not prove a material change in circumstances, as well as the trial court’s rulings to allow expert testimony by Dr. Colin McCormick and not to allow testimony by the parties’ middle child.

Ms. Shoebotham complains that she was not provided with requested psychological records of Dr. McCormick’s treatment of Mr. Lunney and was therefore denied the opportunity to meaningfully cross-examine Dr. McCormick. The admissibility of a witness’s testimony lies within the discretion of the trial court. Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. Partnership, 01-2812 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied, 03-0306 (La.4/4/03), 840 So.2d 1219. The trial court considered Ms. Shoebotham’s objection to Dr. McCormick’s testimony and ruled that Dr. McCormick would be allowed to testify and that his testimony would be given the weight the trial court deemed appropriate. Ms. Shoebotham’s counsel then indicated he agreed with the trial court’s ruling but wanted the trial court to know that he believed he had been “sandbagged.” After reviewing the entire record, we find that any error in allowing Dr. McCormick to testify was harmless. The trial court’s reasons indicate it did not accord great weight to Dr. McCormick’s testimony, and we find the testimony elicited did not prejudice Ms. Shoebotham.

Ms. Shoebotham also contends the trial court erred in not allowing the parties’ middle child, B.B.L., to testify. Before adjourning court on the first day of the hearing, counsel for the parties discussed with the trial court their intentions for the following day, and the trial court indicated it would hear testimony of the youngest and oldest child in chambers first thing the next morning. The trial court asked if B.B.L. would be present. After some discussion, the trial court was informed by Ms. Shoebotham’s counsel that “[B.B.L.] asked that you make the decision without him testifying.” The following day, the trial court interviewed the other two children in chambers. On the third day of the hearing (approximately two months after day two), Ms. Shoebotham’s counsel indicated that B.B.L. wanted to testify as his brothers had done. Both parties conceded that, initially, B.B.L. had not been listed as a potential witness. The trial court ruled that B.B.L. would not be allowed to testify, stating, “I think that the other two children that testified gave me an abundant amount of information in this case, and he obviously |7didn’t want to testify before that. He was never listed as a witness. I think insofar as the children are concerned, I have heard what I need to hear.” Considering the delicate nature of these proceedings and that the child did not wish to testify in chambers when the others testified, we cannot say the trial court abused its discretion in not allowing B.B.L. to testify on the last day of the hearing.

After considering all of the evidence presented over the course of the three-day hearing, the trial court found that Ms. Shoebotham did not meet her burden of proving a material change in circumstances so as to modify the joint/ shared custody agreement or to name her as domiciliary parent. The trial court noted that this case was extremely fact-specific and that the medical and psychiatric histories of the children were particularly relevant. After considering the evidence presented, the trial court determined that “[t]he issues ■ raised by [Ms. Shoebotham] appeared] to be issues in parenting style.”

This court has carefully considered the entire record on appeal and finds no error in the trial court’s finding. Each custody ease must be viewed within its own peculiar set of facts. Cedotal, 927 So.2d at 437. Due to the delicate nature of the mental and physical health issues involved here, and in consideration of the children’s interests, we do not set forth a discussion of the evidence presented herein. Rather, we refer to the thoughtfully detailed written reasons of the trial court, which are supported by the record.

In its judgment, the trial court ordered that the parties enjoy shared custody of B.B.L. and G.I.L. on an equal basis, with each parent exercising a seven-day uninterrupted period of physical custody. Pursuant to the consent judgment, the parties shared physical custody that alternated during each |sweek: Ms. Shoebot-ham would have the children every Monday and Wednesday; Mr. Lunney would have the children every Tuesday and Thursday; and Ms. Shoebotham and Mr. Lunney would alternate having the children Friday through Sunday. Ms. Shoe-botham argues that if she was properly held to the burden of proving a material change in circumstances on her request to modify custody, then the trial court erred in modifying the consent judgment after finding that no material change in circumstances was proven.

In Bergeron v. Bergeron, 492 So.2d 1193, 1194 (La.1986), the Louisiana Supreme Court addressed the burden of proof applicable to modification of a child custody order, stating:

Although the trial court retains a continuing power to modify a child custody order, there must be a showing of a change in circumstances materially affecting the welfare of the child before the court may consider making a significant change in the custody order. (Emphasis added.)

The qualifying language used in Bergeron was recognized by this court in Mosely v. Mosely, 499 So.2d 106, 109 (La.App. 1 Cir.1986), writ denied, 505 So.2d 1138 (La.1987), wherein it was determined that modifications to terms of stipulated visitation could be made on a showing that they were in the best interest of the children because they were not so substantial as to require proof of a change in circumstances.

Under the consent judgment, the parties exercised physical custody for an equal amount of time over the course of two weeks, but the children were moving from house to house every day during the week, with only a three or four-day block of time with any one parent (depending on whether Mr. Lunney was the custodial parent for the weekend). The trial court’s change to an alternating weekly schedule, wherein each parent exercised the [Ssame amount of physical custody time during a two-week period, was not so significant a change as to require proof of a material change in circumstances.

In its reasons for altering the physical custody schedule, the trial court noted that “[b]oth parties have conceded that the original scheduled periods of physical custody have been unworkable.” This court has rejected Ms. Shoebotham’s contention that she was not required to show a material change in circumstances because the parties stipulated that the custody arrangement set forth in the consent judgment was unworkable. Rather, we find that this change to an alternating weekly physical custody schedule was appropriately considered under a best-interest-of-the-children analysis.

In its written reasons, the trial court credited the testimony of Dr. Milton Anderson, who testified as an expert in child psychiatry, “that the only psychiatric research on divorce reflects that the greatest effect on children of divorce is the transition from house to house.” The trial court determined that the best interest of these special-needs children would be served by a seven-day uninterrupted period of physical custody with each parent, which would serve to reduce the frequency of transition and would provide stability to the children on a weekly basis. After reviewing the record herein, we find no error in the trial court’s ruling that this minor change to the physical custody schedule is in the best interest of the children, given their particular needs.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Leslie Ann Shoe-botham.

AFFIRMED.


author: WELCH, J.

text:
    Desiree BENNETT v. ARKANSAS BLUE CROSS BLUE SHIELD.
    No. 2011 CA 1180.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2012.

      David L. Bateman, Baton Rouge, LA, for Plaintiff-Appellee, Desiree Bennett.
    Frank R. Whiteley, Metairie, LA, for Defendant-Appellant, Arkansas Blue Cross Blue Shield.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   WELCH, J.

^Defendant, Arkansas Blue Cross Blue Shield (Blue Cross), appeals a judgment of the Office of Workers’ Compensation (OWC) awarding claimant, Desiree Bennett, workers’ compensation benefits and outstanding medical expenses. We reverse and remand.

BACKGROUND

Most of the facts forming the basis for the instant dispute have been stipulated to by parties and can be gleaned from this court’s opinion in Bennett v. Trinity Universal Insurance Company, 2005-1957 (La.App. 1st Cir.9/15/06), 943 So.2d 1104 (Bennett I). In September 1997, while in the course and scope of her employment with Blue Cross, Ms. Bennett injured her back. The accident occurred outside of an office building owned by Turner United Partnership and United Companies Realty and Development Company (collectively referred to as “Turner”). Blue Cross leased its office in that building from Turner pursuant to a written lease agreement.

St. Paul Fire and Marine Insurance Company (St. Paul), Blue Cross’s workers’ compensation insurer, voluntarily paid weekly indemnity and medical expenses to and on behalf of Ms. Bennett following the accident. On August 18, 1998, Ms. Bennett filed a tort lawsuit against Turner and its liability insurer, Trinity Universal Insurance Company (Trinity). St. Paul intervened in the lawsuit, asserting its statutory right to be paid by preference out of any judgment or sums paid to Ms. Bennett and seeking reimbursement against the defendants for workers’ compensation benefits and medical payments made to and on behalf of Ms. Bennett as a result of the accident in the amount of $74,515.30.

In Bennett I, Turner filed a reconven-tional demand against St. Paul and a third party demand against Blue Cross, asserting that Blue Cross was responsible for any losses incurred by Turner because of Blue Cross’s active breach of its | .¡contractual obligations contained in a lease agreement. Specifically, Turner claimed that Blue Cross breached a “Waiver of Subrogation” provision in the lease by which Blue Cross agreed to waive any right of subrogation against Turner and to cause its insurance carriers, including St. Paul, to do the same. Turner also relied on a hold harmless provision, in which Blue Cross agreed to indemnify it or reimburse Turner for any losses resulting from Blue Cross’s failure to perform its obligations under the lease agreement, which Turner insisted included the claims asserted by Ms. Bennett.

On August 10, 2001, Ms. Bennett settled with Turner for $250,000.00. The settlement was entered into without the written consent of Blue Cross or St. Paul. Thereafter, Ms. Bennett’s tort claims were dismissed, and Bennett I proceeded to resolve the issues raised by Turner against Blue Cross and St. Paul. The trial court dismissed Turner’s demands and ordered the defendants to reimburse St. Paul the full amount of the workers’ compensation payments made to Ms. Bennett, $74,515.30.

On appeal, the Bennett I defendants asserted that the trial court erred in failing to uphold the provision of the lease requiring Blue Cross to waive any subrogation rights and to cause its insurers to do the same. Construing the lease, this court found that Blue Cross’s obligation to waive subrogation and cause its carriers to also do so did not apply to Ms. Bennett’s claims related to or based upon defects in the defendants’ premises. This court further found that because defendants failed to obtain written approval for the compromise with Ms. Bennett from St. Paul, pursuant to La. R.S. 23:1102(0(1), defendants were required to reimburse St. Paul for its workers’ compensation lien.

Following this court’s decision in Bennett I, St. Paul obtained full reimbursement from Turner for the workers’ compensation benefits paid to or on behalf of Ms. Bennett prior to the settlement. On August 10, 2001, St. Paul | germinated Ms. Bennett’s compensation benefits based on her entering into the settlement with Turner without its approval. The parties stipulated that no benefits have been paid to Ms. Bennett since the settlement in the tort litigation.

In May 2002, Ms. Bennett filed a disputed claim against Blue Cross in the OWC (Bennett II). The dispute therein centered on pain management treatment that had not been authorized by Blue Cross. In that litigation, Blue Cross filed a peremptory exception raising the exception of no right of action and a motion for summary judgment. Regarding the exception of no right of action, Blue Cross argued that by settling with a third party without obtaining approval from her employer, Ms. Bennett forfeited her right to future compensation benefits. Alternatively, Blue Cross argued that until Ms. Bennett could show that she exhausted her settlement proceeds, she had no cause of action to recover the cost of medical treatment from her employer. In opposition thereto, Ms. Bennett contended that Blue Cross’s consent to her settlement with Turner was not required because Blue Cross waived its workers’ compensation subrogation claim against Turner in the written lease agreement.

On March 14, 2002, the workers’ compensation judge (WCJ) overruled the exception of no right of action and denied the motion for summary judgment. Blue Cross appealed, and this court dismissed the appeal on the basis that the rulings were interlocutory and non-appealable. Bennett v. Arkansas Blue Cross Blue Shield, 2003-1314 (La.App. 1st Cir.8/26/03)(unpublished action). On March 14, 2005, the WCJ signed another judgment overruling the exception of no right of action and denying the motion for summary judgment, adding language to the effect that the judgment was a final one and that there is no just reason for the delaying the appeal. This court again dismissed the appeal, sua sponte, holding that the judgment appealed from was not a final judgment for the purpose of this court’s appellate jurisdiction.

IsOn September 28, 2009, the WCJ dismissed Bennett II without prejudice for Ms. Bennett’s failure to provide the court with a judgment. The judgment ordered that the action may be reinstated upon a showing of good cause within 30 days of the order. Nearly a year later, on April 9, 2010, Ms. Bennett filed the instant disputed claim for compensation against Blue Cross challenging Blue Cross’s termination of her compensation benefits and its failure to authorize pain management treatment. Blue Cross answered, asserting that Ms. Bennett’s claim has prescribed, that her claim is barred by the doctrine of res judicata because of the September 23, 2009 dismissal in Bennett II and this court’s ruling in Bennett I, and that her claim is barred because she settled her claim against a third party defendant without the written consent of her employer.

At the hearing, Blue Cross argued that no benefits were owed to Ms. Bennett until Ms. Bennett could prove that her benefits exceeded the amount she received in the third party settlement. It urged that Ms. Bennett forfeited her right to future benefits by entering into the settlement without her employer’s approval. Ms. Bennett argued that Blue Cross waived its right to subrogation in the lease agreement with Turner, thereby negating the requirement that she obtain Blue Cross’s approval for the settlement.

Following the hearing, the WCJ denied all of Blue Cross’s exceptions and awarded Ms. Bennett workers’ compensation benefits and medical expenses. The WCJ specifically ruled that Blue Cross waived its right of subrogation, including its right to recover from Ms. Bennett’s third party tort lawsuit, in its lease agreement. This appeal, taken by Blue Cross, followed.

DISCUSSION

In this appeal, Blue Cross contends that Ms. Bennett’s claim should have been dismissed on the basis of res judicata or abandonment because she failed to reinstate her claim after her disputed claim was dismissed on September 23, 2009, | fiuntil April 9, 2010, well outside the 30-day period allowed for reinstatement by the judgment. The record reflects that the WCJ dismissed Bennett II without prejudice pursuant to Section 5705 of the Hearing Rules due to Ms. Bennett’s failure to provide the court with a judgment. Section 5705 of the Hearing Rules provides for the dismissal of a claim without prejudice, after contradictory hearing properly noticed by the court on the judge’s own motion or an ex parte motion of a party for four reasons. Blue Cross claims that the WCJ dismissed the claim pursuant to Rule 5705(4), which provides for the dismissal where the claimant fails to appear for a properly noticed hearing. Paragraph C of Rule 5705 provides that any order dismissing the case without prejudice shall allow for the reinstatement of the action within 30 days for good cause shown.

At the hearing on Blue Cross’s exceptions of prescription and res judicata, Blue Cross argued that the WCJ had dismissed Ms. Bennett’s case as abandoned and argued that because a case that has been abandoned does not interrupt prescription, Ms. Bennett’s failure to file the instant claim for over a year following the dismissal of her disputed compensation claim caused the claim to prescribe. The WCJ denied the exceptions, specifically stating that she did not dismiss the earlier-filed case as abandoned. The WCJ stressed that the matter went to trial, following which she made the same ruling she had made in connection with an earlier summary judgment. The WCJ stated that she ordered the parties to submit a judgment reflecting that ruling and when the judgment was not submitted, she dismissed the case, believing that Ms. Bennett would reinstate and file a judgment and the case could be disposed of. Because the WCJ did not dismiss the case for abandonment for the failure to appear, Blue Cross’s prescription argument based on Rule 5705 has no merit. Furthermore, as there is no provision in Rule 5705 authorizing the WCJ to dismiss a case as abandoned for the failure to submit a judgment, we find no error in the WCJ’s decision to allow Ms. Bennett to re-file |7and prosecute her claim even though it was beyond the 30-day period set forth in the judgment of dismissal.

In its second assignment of error, Blue Cross contends that the “law of the case” doctrine or the principles of res judi-cata barred the trial court from determining that Ms. Bennett is entitled to benefits because Blue Cross waived its right of subrogation, including its right of recovery from Ms. Bennett’s third party lawsuit, in its lease agreement with Turner. In its final assignment of error, Blue Cross maintains that Ms. Bennett forfeited her right to workers’ compensation benefits when she settled with Turner without the written approval of her workers’ compensation carrier.

Louisiana Revised Statutes 28:1102(B) plainly states that an employee who settles a lawsuit without the consent of the employer and insurer forfeits the right to future compensation, including medical expenses. We find that the WCJ erred in finding that Ms. Bennett did not forfeit her right to future compensation under this provision because Blue Cross waived its right of subrogation in its lease with Turner. This ruling is in direct conflict with this court’s interpretation of the lease agreement in Bennett I.

In support of her claim that Blue Cross’s approval of the settlement was not necessary, Ms. Bennett relies on Paragraph 8.18 of the Blue Cross-Turner Lease, which provided that Blue Cross waived any right of subrogation against Turner and obligated Blue Cross to cause its insurance carriers to also waive subro-gation. Ms. Bennett submits that Blue Cross’s consent to her settlement was not necessary because Blue Cross agreed in the lease to waive any subrogation claims, including its right to reimbursement of workers’ compensation benefits to its employees.

In Bennett I, in challenging the trial court’s dismissal of its claims against Blue Cross and St. Paul, Turner argued that the lower court erred in refusing to uphold the clear language of this provision. However, as this court observed in | ¡¿Bennett I, a part of the lease that would have seemingly obligated Blue-Cross to be liable for any injuries caused by any defects in Turner’s premises was not made part of the lease. Therefore, the lower court found and this court agreed, any obligation on Blue Cross’s part to waive subrogation and cause its insurances to waive the same under any insurance policy as contemplated by Section 8.18 did not apply to Ms. Bennett’s claims related to or based upon defects in Turner’s premises. This court further held that Turner violated La. R.S. 23:1102(0(1) by failing to obtain St. Paul’s written approval of the settlement with Ms. Bennett, and as a result, was required to reimburse St. Paul for its workers’ compensation lien.

Because this court has held that Blue Cross did not waive its right of subrogation with respect to Ms. Bennett’s claims, the WCJ clearly erred in finding that Blue Cross waived its right of subrogation with respect to Ms. Bennett’s compensation claim. Thus, the subrogation clause of the Blue Cross-Turner Lease did not excuse Ms. Bennett’s failure to obtain Blue Cross’s approval of her settlement with Turner. Under the clear language of La. R.S. 23:1102(B), Ms. Bennett forfeited her right to future compensation, including medical expenses, by settling with Turner without the consent of Blue Cross or St. Paul. See Triche v. Regional Electric & Construction, Inc., 95-0105 (La.App. 1st Cir.10/6/95), 671 So.2d 425, 433.

Louisiana Revised Statutes 23:1102(B) allows an employee who fails to obtain the consent of an employer to a settlement to recover benefits in excess of the settlement proceeds under certain circumstances. Because the WCJ ruled that Ms. Bennett did not forfeit her right to benefits pursuant to La. R.S. 23:1102(B), she did not address Blue Cross’s claim that Ms. Bennett could not recover compensation benefits and medical expenses until she demonstrated that she exhausted her settlement proceeds. Therefore, we remand this matter to the OWC to address this issue.

^CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is reversed. The case is remanded for proceedings consistent with this opinion. Costs of this appeal are assessed 50% to Desiree Bennett and 50% to Arkansas Blue Cross Blue Shield.

REVERSED AND REMANDED.

McClendon, j., concurs.