author: JUDE G. GRAVOIS, Judge.

text:
    Jeffrey C. BOURGEOIS, individually and on behalf of Dale Bourgeois, Mark J. Bourgeois, individually and on behalf of Dale Bourgeois, Rebekah L. Bourgeois, individually and on behalf of Dale Bourgeois, and Renee B. Bourgeois v. BOOMTOWN, LLC OF DELAWARE, Pinnacle Entertainment, Inc. of Delaware, M/V Boomtown Belle, II and Louisiana-1 Gaming, A Louisiana Partnership in Commendam.
    No. 10-CA-553.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Richard J. Fernandez, Amber E. Cisney, L. Eric Williams, Attorneys at Law, Me-tairie, LA, for Plaintiffs/Appellants.
    Daryl A. Higgins, A. Mark Flake, Attorneys at Law, Gretna, LA, for Defendants/Appellees.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT L. LOB RANO, Pro Tempore.
   JUDE G. GRAVOIS, Judge.

12Plaintiffs, Jeffrey C. Bourgeois, et al, appeal a summary judgment in favor of the defendants, Boomtown, L.L.C. of Delaware, Pinnacle Entertainment, Inc. of Delaware, M/V Boomtown Belle, II, and Louisiana-I Gaming, A Louisiana Partnership In Commendam, hereinafter sometimes collectively referred to as “Boomtown”, finding no liability as a matter of law for the death of Dale Bourgeois (“Mr. Bourgeois”).

On appeal, appellants argue the following assignments of error: 1) the trial court erred in disregarding defendants’ alleged breach of LSA-R.S. 26:90 (serving alcohol to an intoxicated person); 2) the trial court erred in not finding that the defendants had a duty to avoid affirmative acts that increased the risk of peril to an | ^intoxicated person (Mr. Bourgeois) and that the defendants breached that duty; and 8) the trial court erred in finding that the defendants’ actions did not constitute force, and that the defendants were therefore not entitled to the protections of LSA-R.S. 9:2800.1. For the reasons that follow, we affirm.

FACTS

Plaintiffs filed a wrongful death action against the defendants, alleging that the defendants’ serving of alcoholic beverages to Mr. Bourgeois was the proximate and legal cause of his death. The record and pleadings show that Mr. Bourgeois died in a single-car accident on Peters Road in Harvey, Louisiana, shortly after he left the Boomtown Casino on July 9, 2007. The record shows that Mr. Bourgeois, who was 56 years old, entered the casino on July 9, 2007 at approximately 5:26 p.m., and left the casino through an employee entrance at approximately 9:15 p.m. It is undisputed that Mr. Bourgeois drank alcoholic beverages while gaming at the casino, but the extent thereof has not been established. Autopsy records revealed that Mr. Bourgeois’s blood alcohol level at the time of the autopsy was .290% g, well over the statutory limit of legal drunkenness.

The petition alleged that the cocktail waitress at the Boomtown casino violated LSA-R.S. 26:90(2) by serving alcoholic beverages to an intoxicated person (Mr. Bourgeois). The petition cited Boom-town’s alleged cocktail server policy, which plaintiffs alleged required servers to bring alcoholic drinks to customers every 20 to 30 minutes or face disciplinary action, including possible termination, as plaintiffs characterized the excerpted deposition testimony of Boomtown’s waitress supervisor, offered in support of their petition.

| ¿ANALYSIS

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

Summary judgment procedure is intended to make a just and speedy determination of every action. LSA-C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under LSA-C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. LSA-C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. LSA-_JC.C.P.6 arts. 966 and 967; Paternostro v. Wells Fargo Home Mortg., Inc., 09-469 (La.App. 5 Cir. 12/8/09), 30 So.3d 45.

To determine whether liability exists under a negligence theory, the courts apply a duty-risk analysis. Under this analysis, the plaintiff must prove: 1) the conduct in question was the cause-in-fact of the resulting harm; 2) the defendant owed a duty of care to the plaintiff; 3) the requisite duty was breached by the defendant; and 4) the risk of harm was within the scope of protection afforded by the duty breached. Lazara v. Foti, 02-2888, p. 3 (La.10/21/03), 859 So.2d 656, 659. A negative answer to any of the elements of the duty/risk analysis requires a no-liability determination. Id. The question of whether a defendant owes a duty to the plaintiff is a question of law. Id.

First Assignment of Error

In their first assignment of error, plaintiffs claim that the trial court erred in disregarding defendants’ alleged breach of LSA-R.S. 26:90 (serving alcohol to an intoxicated person), which is found in Title 26 of the Revised Statutes, Chapter 1. Alcoholic Beverage Control Law, Part II. Permits. It states, in pertinent part:

§ 90. Acts prohibited on licensed premises; suspension or revocation of permits
A. No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
(2) Sell or serve alcoholic beverages to any intoxicated person.
H. Violation of this Section by a retail dealer’s agent, associate, employee, representative, or servant shall be considered the retail dealer’s act for purposes of suspension or revocation of a permit.
|fil Violation of this Section is punishable as provided in R.S. 26:171 and is also sufficient cause for the suspension or revocation of a permit.

Plaintiffs alleged that defendants violated this statute by serving alcoholic beverages to an intoxicated person, Mr. Bourgeois. Citing Boyer v. Johnson, 360 So.2d 1164 (La.1978), plaintiffs argued that where a criminal statute imposed a duty to protect a particular category of persons (intoxicated persons) from a particular type of harm, breach of this duty may be considered when determining negligence under the duty-risk analysis.

Defendants, however, argued the applicability of LSA-R.S. 9:2800.1, known as the “anti-dram shop liability act,” as a defense to plaintiffs’ cause of action. This statute provides in pertinent part as follows:

§ 2800.1. Limitation of liability for loss connected with sale, serving, or furnishing of alcoholic beverages
A. The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.
B. Notwithstanding any other law to the contrary, no person holding a permit under either Chapter 1 or Chapter 2 of Title 26 of the Louisiana Revised Statutes of 1950, nor any agent, servant, or employee of such a person, who sells or serves intoxicating beverages of either high or low alcoholic content to a person over the age for the lawful purchase thereof, shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.
D. The insurer of the intoxicated person shall be primarily liable with respect to injuries suffered by third persons.
E. The limitation of liability provided by this Section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.

|7Citing this statute, and particularly, paragraphs A and B thereof, defendants argued that it owed no duty to Mr. Bourgeois, and thus cannot be found liable for his death. In support of its motion for summary judgment, Boomtown showed that at the time of plaintiffs accident: 1) Boomtown possessed a valid, Louisiana liquor license permit as required by Title 26 of Louisiana’s Revised Statutes; 2) Mr. Bourgeois was of legal drinking age; 3) there were no allegations of any “false representations” regarding the alcohol content of the beverages consumed by Mr. Bourgeois; 4) the accident occurred off of defendants’ premises; and 5) the accident and resulting death was the direct result of Mr. Bourgeois’s intoxication. The trial court granted the motion for summary judgment and this appeal followed.

Plaintiffs argue that the trial court erred in disregarding defendants’ breach of LSA-R.S. 26:90(2). All parties agree that Mr. Bourgeois’s accident and death occurred within minutes of his leaving the casino, and that autopsy results show that his blood alcohol level was .290% g at the time of the autopsy the day after his death. All parties agree that Mr. Bourgeois consumed alcohol while at the casino and was legally intoxicated at the time he left the casino.

It is evident from the briefs and from the transcript of the hearing on the motion for summary judgment that the parties do not agree whether Mr. Bourgeois’s demeanor at the time he left the casino would have put casino employees on notice that he was intoxicated. Defendants point to surveillance video that they claim show Mr. Bourgeois behaving in a “normal” way that did not evidence intoxication; plaintiffs characterize his behavior otherwise.

This disagreement between the parties, however, is of no moment regarding the application of LSA-R.S. 26:90(2) to the case at hand. That statute is found in the “Permits” section of the Alcohol Beverage Control Law. It is a regulatory statute that concerns the issuance and revocation of permits to sell and/or serve 18aIcohoIic beverages. Violations of the statute are actionable by the suspension or revocation of the offender’s permit, or a fíne and/or jail time (as per LSA-R.S. 26:171). The statute itself does not confer a right of action to private citizens for violation thereof.

By LSA-R.S. 9:2800.1, the legislature has explicitly stated that no person holding a permit under either Chapter 1 or Chapter 2 of Title 26 who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including -wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served. Thus, LSA-R.S. 9:2800.1 eliminates the need for a duty/risk analysis. On July 9, 2007, the date of plaintiffs accident, Boom-town possessed a valid alcohol permit and the decedent was of a lawful age to consume alcoholic beverages. The accident occurred off premises and resulted from Mr. Bourgeois’s own intoxication. As these facts are unequivocally established, Boomtown is immunized by this statute from tort liability. Since the legislature has for public policy reasons eliminated legal or “proximate cause” in a case of this type, Boomtown’s act of serving alcohol is not the proximate cause of the decedent’s death and absent this essential legal element, plaintiffs’ case fails as a matter of law.

Second Assignment of Error

In their second assignment of error, plaintiffs allege that the trial court erred in not finding that the defendants had a duty to avoid affirmative acts that increased the risk of peril to an intoxicated person (Mr. Bourgeois) and that the defendants breached that duty.

19Considering the facts that have been unequivocally established, as set forth above, Boomtown is immunized by LSA-R.S. 9:2800.1 from tort liability. Since the legislature has for public policy reasons eliminated legal or “proximate cause” in a case of this type, Boomtown’s act of allegedly serving alcohol to an intoxicated person (Mr. Bourgeois) is not the proximate cause of his death and absent this essential legal element, plaintiffs’ case fails as a matter of law.

Third Assignment of Error

In their final assignment of error, the plaintiffs argue that the trial court erred in finding that the defendants’ actions did not constitute force, and that the defendants were therefore not entitled to the protections of LSA-R.S. 9:2800.1. Paragraph E of LSA-R.S. 9:2800.1, as quoted above, provides that the limitation of liability provided by this Section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force. As proof of force, plaintiffs cite to the cocktail server policy as explained by excerpts from the deposition testimony of Dian Davis, M/V Boom-town Belle II Food and Beverage Manager, which was attached to their petition.

Initially, we note that this deposition, of which only excerpts were provided, was taken on October 11, 2006, well before Mr. Bourgeois’s accident. Second, this deposition was taken in another suit, Muller v. Boomtown of Delaware, case no. 582-836 in the 24th Judicial District Court, Parish of Jefferson. That suit concerned a personal injury claim brought by a Boomtown cocktail waitress who alleged that she sustained a work-related injury in 2000 or 2001 caused by being required to carry cocktail trays that were too heavily loaded. The deposition, therefore, focused on the server policy in 2000-2001 and different aspects of the server policy than the one at issue in this case. In any event, we find that the | Tndeposition excerpts do not support the plaintiffs’ characterization of the policy as “forcing” Boomtown customers to drink alcohol.

The deponent, Dian Davis, stated that the policy required cocktail waitresses to serve customers every 20 to 30 minutes. There was no testimony that customers were forced to accept an alcoholic drink every 20 to 30 minutes or were forced to drink one that was served. In the deposition, Ms. Davis refers to the fact that the coffee mugs were downsized at some point, which shows that service also included non-alcoholic beverages. Also, Davis testified that waitresses were only verbally counseled for failing to serve customers every 20 to 30 minutes if a customer made a complaint. If a waitress received more than one complaint, then a written reprimand would be made. Termination would occur if a waitress received three written reprimands “for the same incident.” She said it was up to the supervisor how many “verbals” were given before a waitress received a written reprimand.

These deposition excerpts fall far short of showing that Mr. Bourgeois, or any customer for that matter, was ever “forced” to accept or drink alcohol at the Boomtown casino. The deposition was taken prior to Mr. Bourgeois’s accident and at most, establishes the casino’s policy that waitresses must check on patrons every 20 to 30 minutes. The deposition, which focused on how many glasses a waitress carried on her tray, established that customers were also served non-alcoholic beverages such as coffee. Because the deposition was taken prior to Mr. Bourgeois’s accident, it also reveals nothing specific about Mr. Bourgeois’s evening at the casino.

Therefore, having failed to show that Boomtown forced Mr. Bourgeois to drink alcohol, the plaintiffs have failed to show that LSA-R.S. 9:2800.1 does not apply in this case.

| ^CONCLUSION

For the reasons assigned above, we affirm the grant of summary judgment in favor of the defendants.

AFFIRMED.

      . The original petition for damages lists as plaintiffs Jeffrey C. Bourgeois, Mark J. Bourgeois, Rebekah L. Bourgeois, and Renee B. Bourgeois. The original petition does not explain these plaintiffs’ relationship to the decedent, Dale Bourgeois. It is noted that this record was designated by appellants; therefore, it is possible that plaintiffs’ relationship to the decedent is explained in pleadings not included in this designated record.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Henry Gene WASHINGTON and John Henry Washington, on Behalf of Henry Gene Washington, Plaintiffs-Appellants v. Mike Miles McCAULEY, Steve Kent Trucking, Inc., and Greenwich Insurance Company, Defendants-Appellees.
    No. 45,916-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 2011.
    Writ Denied April 25, 2011.

      Jack Bailey Law Corporation by Jack M. Bailey, Jr., for Plaintiffs-Appellants.
    Ponder Law Firm by Charles M. Ponder, III, for Defendant-Appellee Greenwich Insurance Company.
    Voorhies & Labbé by Cyd Sheree Page, Co-Counsel for Defendant-Appellee Greenwich Insurance Company.
    Before BROWN, GASKINS and PEATROSS, JJ.
   GASKINS, J.

LThe plaintiffs, Mae Francis Washington Smith and John Washington, on behalf of the interdict, Henry Gene Washington, appeal from a trial court ruling denying their motion for summary judgment and granting summary judgment in favor of Greenwich Insurance Company, dismissing the plaintiffs’ claims. For the following reasons, we affirm the trial court judgment.

FACTS

This matter arises from a tragic motor vehicle accident in DeSoto Parish. On December 7, 2006, Mike Miles McCauley was employed as a truck driver for Steve Kent Trucking, Inc. At approximately 11:00 a.m. that day, while driving a company 18-wheeler on Highway 5 in DeSoto Parish,' during the course and scope of his employment, Mr. McCauley dropped his cell phone onto the floorboard of the truck. He bent over to retrieve it and crossed the center line of the highway. Mr. McCauley then overeorrected and lost control of the vehicle, which turned over and slid on its side. The truck turned over onto a vehicle traveling in the opposite direction. That vehicle was driven by Henry Washington. Mr. Washington’s vehicle was pushed from the roadway into a small body of water. While continuing to slide on its side, Mr. McCauley’s truck also collided with a car driven by Allan C. Richard, which was traveling several car lengths behind Mr. Washington. Mr. Richard was killed instantly. Mr. Washington suffered numerous serious injuries which left him permanently incapacitated.

On January 12, 2007, Mr. Washington and John Washington, on behalf of Mr. Washington, filed a suit for damages for Mr. Washington’s 12injuries. Named as defendants were Mr. McCauley, Steve Kent Trucking, Inc., and its insurer, Greenwich Insurance Company (“Greenwich”). Among his injuries, Mr. Washington alleged that he suffered facial fractures, a fractured jaw, brain damage, multiple fractures of both arms, loss of use of his left arm due to a severed artery and crush fractures, a broken left hip, aspirated teeth into his lungs, contusions to all his internal organs, internal bleeding, and cardiac arrest. Mr. Washington claimed that he has already had four major surgeries and more will be required. He asserted that he is totally and permanently disabled. He sought to recover for past and future mental and physical pain and suffering; past and future physical disability and physical impairment; past, present and future loss of enjoyment of life; past, present and future medical expenses; loss of economic opportunity and numerous other items of damages.

Mr. Washington was interdicted and a supplemental and amended petition was filed by Mae Francis Washington Smith and John Washington, the curatrix and undercurator for Mr. Washington. State Farm Mutual Automobile Insurance Company (“State Farm”), Mr. Washington’s uninsured/underinsured motorist carrier, was added as a defendant. Mr. Washington claimed that the Greenwich policy provided coverage for him alone in the amount of $5 million, that he had future medical expenses more than $5 million, and that he had already incurred $1 million in medical expenses.

|sMr. Washington’s employer and its workers’ compensation insurer, Louisiana Workers’ Compensation Corporation, filed a petition of intervention to recover for amounts paid in workers’ compensation.

On September 18, 2007, the trial court entered a judgment allowing Ms. Smith to settle claims arising from the accident for $4.5 million. Greenwich paid $4 million and Steve Kent Trucking, Inc., paid $500,000. The plaintiffs reserved the right to claim an additional $1 million in insurance coverage from Greenwich and $500,000 in coverage from State Farm. Ms. Smith was authorized to settle the workers’ compensation intervention claim. Also in September 2007, an order was signed by the trial court dismissing the claims of the plaintiffs against Mr. McCau-ley, Steve Kent Trucking, Inc., and the intervenor, Louisiana Workers’ Compensation Corporation, reserving the plaintiffs’ rights against Greenwich and State Farm. On November 21, 2007, a judgment was entered allowing the plaintiffs to settle with State Farm for $500,000. At that point, only the plaintiffs’ claim against Greenwich for an additional $1 million in coverage remained.

Greenwich filed a motion for summary judgment claiming that it had a policy limit of $5 million per accident and that it paid $4 million to Mr. Washington and $1 million to the family of Mr. Richard. Greenwich contended that there was one accident in this case, as defined in its policy, and the company had paid its policy limits and should be dismissed from the suit.

|4The plaintiffs filed a motion for partial summary judgment on the issue of insurance coverage, arguing that Mr. Washington is entitled to recover another $1 million from Greenwich under the terms of the insurance policy. The plaintiffs argued that the policy sets limits at $5 million for “one accident or loss.” They maintained that there were two separate losses in this matter, arguing that Mr. Richard’s family had a wrongful death and survival action, while the plaintiffs were asserting a tort action under La. C.C. art. 2815. They also claimed that there were two separate accidents.

A hearing was held on the motions for summary judgment on February 22, 2010. Greenwich argued that the policy specified a $5 million “per accident” limit and that an accident is defined as “the continuous or repeated exposure to the same conditions resulting in bodily injury.” Greenwich also contended that the limit was a combined single limit or CSL.

On February 25, 2010, the trial court entered judgment granting Greenwich’s motion for summary judgment and denying that of the plaintiffs. The court reasoned that there was one accident in this matter, although there were two collisions. The liability of Greenwich was limited to $5 million per accident and the company had paid the policy limits by settling with Mr. Washington for $4 million and Mr. Richard’s survivors for $1 million. The plaintiffs appealed.

COVERAGE LIMITS

On appeal, the plaintiffs argue that the trial court erred in granting summary judgment in favor of Greenwich. The plaintiffs argue that the | slanguage of the Greenwich policy provides separate coverage for Mr. Washington and Mr. Richard, extending $5 million in coverage to each of them. According to the plaintiffs, the definitions of “accident” and “loss” used in the policy support their argument. The plaintiffs urge that, under the language of the policy, “accident” and “loss” are different and alternative bases of coverage. They also maintain that Mr. Washington and Mr. Richard each sustained separate losses and the policy limit is $5 million per loss. They contend that the $5 million policy limit is to be applied to each person who suffers bodily injury or death, not all such persons.

The plaintiffs also assert, in the alternative, that there were two accidents in this case. They claim that the first accident occurred when the vehicle driven by Mr. McCauley hit Mr. Washington and the second occurred when the vehicle collided with Mr. Richard. Therefore, the policy limits should be construed to provide $5 million in coverage to Mr. Washington regardless of what was paid to Mr. Richard’s survivors.

Legal Principles

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A | ^motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [the] mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Palmer v. Martinez, supra.

On the motion for summary judgment, the burden of proof is on the mover. La. C.C.P. art. 966. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966(C)(2); In re Clement, supra. If the plaintiff fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. In re Clement, supra.

Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving that the incident falls within the policy’s terms. 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. Palmer v. Martinez, supra.

|7An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Because an insurance policy is a contract, the rules established for the construction of written instruments apply to contracts of insurance. The parties’ intent, as reflected by the words of an insurance policy, determines the extent of coverage, and the intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning. La. C.C. art. 2047. If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written and a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. The determination of whether a contract is clear or ambiguous is a question of law. Palmer v. Martinez, supra.

An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Company, 98-0911 (La.1/14/94), 630 So.2d 759. The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. If, after applying the general rules of construction, an ambiguity remains, the ambiguous provision is to be construed against the insurer who issued the policy and in favor of the insured. See Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Company, supra.

| «Policy Provisions

The determination of the issues raised in this case turns upon a reading of the Greenwich insurance policy applicable here. The policy issued by Greenwich to Steve Kent Trucking, Inc., provided business automobile coverage. Regarding the limits of coverage, the declarations page of the policy provides that the most the company will pay for any one accident or loss is “$5,000,000 CSL.” The liability portion of the policy provides in pertinent part:

SECTION II — LIABILITY COVERAGE
A. Coverage
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.
C. Limit of Insurance
Regardless of the number of covered “autos”, “insureds”, premiums paid, claims made or vehicles involved in the “accident”, the most we will pay for the total of all damages and “covered pollution cost or expense” combined, resulting from any one “accident” is the Limit of Insurance for Liability Coverage shown in the Declarations.
All “bodily injury”, “property damage” and “covered pollution cost or expense” resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one “accident”.
No one will be entitled to receive duplicate payments for the same elements of “loss” under this Coverage Form and any Medical Payments Coverage Endorsement, Uninsured Motorists Coverage Endorsement or Underinsured Motorists Coverage Endorsement attached to this Coverage Part.

The portion of the policy dealing with physical damage coverage provides in pertinent part:

J^SECTION III — PHYSICAL DAMAGE COVERAGE
A. Coverage
1. We will pay for “loss” to a covered “auto” or its equipment under:
a. Comprehensive Coverage From any cause except:
(1) The covered “auto’s” collision with another object; or
(2) The covered “auto’s” overturn.
b. Specified Causes of Loss Coverage
Caused by:
(1) Fire, lightning or explosion;
(2) Theft;
(3) Windstorm, hail or earthquake;
(4) Flood;
(5) Mischief or vandalism; or
(6) The sinking, burning, collision or derailment of any conveyance transporting the covered “auto”.
c. Collision Coverage
Caused by:
(1) The covered “auto’s” collision with another object; or
(2) The covered “auto’s” overturn.

C. Limit of Insurance

1. The most we will pay for “loss” in any one “accident” is the lesser of:
a. The actual cash value of the damaged or stolen property as of the time of the “loss”; or
b. The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality.
2. An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total “loss”.
3. If repair or replacement results in better than like kind or quality, we will not pay for the amount of the betterment.

The policy definitions provide in pertinent part:

SECTION V — DEFINITIONS

A. “Accident” includes continuous or repeated exposure to the same conditions resulting in “bodily injury” or “property damage”.
| mC. “Bodily injury” means bodily injury, sickness or disease sustained by a person including death resulting from any of these.
J. “Loss” means direct and accidental loss or damage.

Coverage for “Loss”

The plaintiffs contend that, under the terms of the insurance policy, there are separate bases of recovery for “accident” and “loss.” They argue that Mr. Washington suffered loss for his personal injury and Mr. Richard’s family suffered a separate loss asserted through wrongful death and survival actions. Therefore, they argue that the policy limits under the insurance policy are $5 million per “loss.”

Most insurance policies expressly define words or phrases which may be understood in different senses. Where a policy of insurance contains a definition of any word or phrase, this definition is controlling. Hendricks v. American Employers Insurance Company, 176 So.2d 827 (La.App. 2d Cir.1965), writ refused, 248 La. 415, 179 So.2d 15 (1965). As stated above, the Greenwich policy defines “loss” as direct and accidental loss or damage. It is clear from a reading of the policy that the word “loss” applies only to property damage. The word is used almost exclusively in that section of the policy relating to physical property damage to covered autos. The plaintiffs assert a claim for bodily injury to Mr. Washington which is defined in the policy as “bodily injury, sickness, or disease sustained by a person including death resulting from any of these.” The plaintiffs have offered no authority |nto support their claim that the word “loss” as defined in the Greenwich policy is directed at personal injuries arising from the accident.

The plaintiffs confuse the definition of “loss” as set forth in the policy with the concept of what they term “legal loss.” There is nothing in the policy or in the jurisprudence that supports the plaintiffs’ attempts to equate the definition of “loss” with legal loss such as a claim for personal injury, wrongful death, or a survival action. This construction is clearly not supported by the wording and definition of the policy at issue here.

Further, the insurance policy clearly states that, regardless of the number of claims made in the accident, the most that Greenwich will pay for the total of all damages resulting from any one accident is the limit of insurance for liability coverage shown on the declarations page. That .amount is $5 million. Generally, automobile insurance policies are written with “split” limits of liability in which the insurer’s obligation for bodily injury is limited to a specific amount per person with a maximum amount per accident or occurrence together with a separate limit for property damage liability coverage. However, some automobile policies are written with a “single” (or combined) limit per accident or occurrence for liability and property damage coverage. Watts v. Aetna Casualty and Surety Company, 574 So.2d 364 (La.App. 1st Cir.1990), writ denied, 568 So.2d 1089 (La.1990). Under the terms of the policy, all damages resulting from one accident, regardless of the number of claims made, are subject to the $5 million policy coverage limit. See Cooper v. Huddy, 581 So.2d 723 (La.App,12 1st Cir.1991), writ denied, 585 So.2d 552 (La.1991). The declarations page in the policy in the present case specifies that it is a combined single limit (CSL) policy rather than a split limit coverage policy which provides separate limits “per person” and “per accident.” We reject the plaintiffs’ argument that the policy provides separate $5 million policy limits for each “loss.”

Coverage for “Accident”

The plaintiffs assert that the collisions with Mr. Washington and Mr. Richard constitute separate accidents within the definition of the insurance policy and therefore the policy limits are $5 million per accident. This argument is without merit.

The insurance policy at issue here states that “[rjegardless of the number of covered ‘autos’, ‘insureds’, premiums paid, claims made or vehicles involved in the ‘accident’, the most we will pay for the total of all damages ... combined, resulting from any one ‘accident’ is the Limit of Insurance for Liability Coverage shown in the Declarations.” As stated above, the term, “accident” is defined as “continuous or repeated exposure to the same conditions resulting in ‘bodily injury5 or ‘property damage.’ ”

Most liability policies contain a policy limits clause stating that the insured’s liability is limited to a specified amount. This policy limit may apply to each “occurrence” or “accident.” While there is usually no doubt about the number of policy limits in a given case, the question of what constitutes a single “occurrence” or “accident” within the meaning of the policy limits clause in a liability insurance policy arises when the insured |1shas damaged several individuals, each of whose claims exceeds the policy limit amount, or the insured has damaged several pieces of property all owned by the same individual or entity, but with damage to each item exceeding the policy limit amount, or the insured has committed several acts of negligence which have each independently damaged one individual. In determining whether a single policy limit or multiple policy limits should be applied to a particular situation, “occurrence” and “accident” have been defined by courts across the nation in three ways. The majority of courts have adopted the general view that, to determine whether there is a single or multiple occurrence or accident within the meaning of the policy limits clause of a liability policy, one must look to the cause or causes of the accident or occurrence. Other courts have looked to the effect of the accident or occurrence, making the entire policy limits available to each injured or damaged party. A third group of courts has held that the phrase “per occurrence” in a limitation of liability clause in a liability policy refers, not to the cause of the occurrence or to the effect, but to the event that triggered liability.

Numerous cases in Louisiana and in the federal courts have construed insurance policies with the terms “accident” or “occurrence” to determine the extent of insurance coverage in light of the facts presented by the various situations. In Anchor Casualty Company v. McCaleb, 178 F.2d 822 (5th Cir.1949), an oil well blew out and spewed oil, gas, sand and mud into the air for more than two days, causing damage to numerous nearby 114property owners. The insurer argued that all losses and damages were incidental to the blowout and constituted a single accident, limiting coverage to the policy limit for a single accident. The injured property owners contended that when the oil, sand, and mud were blown onto the properties of various owners, additional accidents resulted to the property of each of them.

The court in Anchor Casualty found that the blowing out of the well was not a single accident, but a series of events. The eruptions continued intermittently for more than two days and during this period, the wind changed from time to time, blowing sand and mud on different properties. Based upon this reasoning, the court held that the “per accident” limit of the insurance policy was not applicable. Rather, the limit for aggregate damage applied.

In Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La. 1978), the Louisiana Supreme Court followed the reasoning of Anchor Casualty. In Lombard, numerous plaintiffs sought to recover for damages caused by a canal construction project. The project lasted for more than one year. The plaintiffs claimed various forms of property damage to their houses caused by excavation, pile driving, and other activities carried on during the course of the construction project. The insurance policy for the City of New Orleans substituted the term “occurrence” for “accident.” An “occurrence” was defined as an accident or a continuous or repeated exposure to conditions which result during the policy period in injury to person or real or tangible property which is accidentally caused. All | ^damages arising out of such exposure to substantially the same general conditions were to be considered as arising out of one occurrence and one policy limit would be applicable.

The court in Lombard found that the construction project, which lasted for more than one year, was not a single “occurrence” within the contemplation of the insurance policy, but was a series of “occurrences” resulting in damages during the course of the prolonged undertaking. The court stated that the word “occurrence” as used in the policy must be construed from the point of view of the many persons whose property was damaged. The court found that when the separate property of each plaintiff was damaged by a series of events, one occurrence was involved insofar as each property owner was concerned. Although the same causes may have operated on several properties at the same time, resulting in varying degrees of damage, the court found that it could not be regarded as one occurrence, but the damage to each plaintiff was a separate occurrence.

In Tesvich v. 3-A’s Towing Company, 547 So.2d 1106 (La.App. 4th Cir.1989), writs denied, 552 So.2d 383 (La.1989), 552 So.2d 384 (La.1989), numerous fishermen holding leases from the state for oyster production filed suit claiming their oyster beds were damaged when a tugboat and barge became grounded and subsequently was removed by | ^another tugboat. Based upon the reasoning of the Louisiana Supreme Court in Lombard v. Sewerage and Water Board of New Orleans, supra, the fourth circuit found that the claim of each plaintiff with respect to his or her leases constituted a separate occurrence.

In Society of Roman Catholic Church of Diocese of Lafayette & Lake Charles, Inc. v. Interstate Fire & Casualty Company, 26 F.3d 1359 (5th Cir.1994), two pedophilic priests molested 31 children over a period of seven years. Numerous claims were made on behalf of the children and their parents. Several insurance companies provided coverage to the plaintiff during the time period. The various insurance policies involved in the case were “occurrence” based, meaning their limits of coverage were capped on a per occurrence basis. The record did not show the number of times each child was molested or the extent of the damage resulting from each encounter. The Fifth Circuit was called upon to determine the number of occurrences present in the case in order to determine the amount of coverage provided by the various insurers. The court found the definition of “occurrence” to be somewhat uncertain and looked to Lombard v. Sewerage & Water Board of New Orleans, supra, for guidance. Following the reasoning of Lombard, the Fifth Circuit found that the damage to each child was a separate occurrence.

In Exxon Corporation v. St. Paul Fire and Marine Insurance Company, 129 F.3d 781 (5th Cir.1997), the Fifth Circuit found that, where five crew members claimed to be damaged by fumes from sludge carried by 117vessels they worked on and brought suit for their alleged damages, there were five separate occurrences based upon the court’s reading of Lombard v. Sewerage and Water Board of New Orleans, supra.

Other cases have found the facts and reasoning of Anchor Casualty Company v. McCaleb, supra, and Lombard v. Sewerage and Water Board of New Orleans, supra, to be distinguishable. The holding of Anchor Casualty was limited by St. Paul-Mercury Indemnity Company v. Rutland, 225 F.2d 689 (5th Cir.1955). In St. Paul, a truck and train collided, resulting in damage to 16 railroad cars. The argument was made that, based upon Anchor Casualty, there was a series of accidents or occurrences. The court in St. Paul stated that the decision in Anchor Casualty was based upon the court’s appreciation of the facts and a consideration of the applicable insurance policy which were distinguishable from the circumstances present in St. Paul. The Fifth Circuit in St. Paul found that the single, sudden, and unintentional collision between the truck and train was one accident and the insurer’s liability was limited to the coverage limit for one accident.

The case of McKeithen v. S.S. Frosta, 430 F.Supp. 899 (E.D.La.1977), arose when a ferry operated by the Louisiana Department of Highways collided with a Norwegian tanker. The ferry sank and numerous injuries and deaths resulted. The insurer of the Department of Highways sought a declaratory judgment that its liability under its insurance policy could not exceed the $300,000 limit in respect to all claims resulting from the collision. The individual claimants and the Department of Highways [ ^contended that the insurance policy provided $300,000 in coverage per claimant.

The insurance policy provided that, “Liability hereunder in respect of loss, damage, costs, fees, expenses, or claims arising out of or in consequence of any one occurrence is limited to the amount hereby insured. (For the purpose of this clause each occurrence shall be treated separately, but a series of claims hereunder arising from the same occurrence shall be treated as due to that occurrence.)”

The court in McKeithen found that the insurance policy made it clear that a series of claims could arise from one occurrence. According to the court, the wording of the policy showed that the clause was intended to include all claims arising out of a single event, that is, all damages claimed to have been caused by that event. Therefore, the limit of liability was $300,000. The McKeithen court discussed and distinguished the holding of Anchor Casualty Company v. McCaleb, supra, reasoning that the court in Anchor Casualty was concerned with a series of eruptions when an oil well blew out whereby one individual might be damaged by the first eruption and then damaged again by later event. Another individual, in another location, might be damaged by a wholly different discharge minutes or hours later.

The case of Whetstone v. Dixon, 616 So.2d 764 (La.App. 1st Cir.1993), units denied, 623 So.2d 1333 (La.1993), involved an eastbound motorist on a two-lane road who began swatting a bee that landed on his arm. He crossed the center line and collided with two separate oncoming westbound vehicles. The plaintiffs cited Lombard v. Sewerage and Water \^Board of New Orleans, supra, in support of their argument that, under the terms of the applicable insurance policy, two occurrences were involved. The first circuit found Lombard to be factually distinguishable and concluded that there was one occurrence which was defined in the insurance policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The “per occurrence” policy limit was applied to define the extent of coverage.

In Lantier v. Aetna Casualty & Surety Company, 614 So.2d 1346 (La.App. 3d Cir. 1993), two people were killed in an airboat accident. The argument was made that, under the terms of the applicable insurance policy, because there were two deaths, there were two occurrences. The third circuit rejected that argument, finding that there was only one occurrence and the “per occurrence” limit of liability applied.

Some cases have found separate accidents based upon the specific facts of the case. In Liberty Mutual Insurance Company v. Rawls, 404 F.2d 880 (5th Cir.1968), a motorist was traveling north on a public highway at a high rate of speed, being pursued by two deputy sheriffs. The motorist collided with the rear of one automobile, knocking it off the highway. The motorist then continued traveling north and veered across the center line into the path of oncoming southbound traffic where he collided with another automobile. The drivers of both cars struck by the fleeing motorist sought to recover against the motorist’s insurance carrier. The question arose as to whether one or two accidents occurred.

12pThe Fifth Circuit found that there were two accidents because the collisions were separated by time and distance and the fleeing motorist maintained control of his vehicle after the impact with the first vehicle. The court found this conclusion would be reached under either the “causation theory” applied in St. Paul-Mercury Indemnity Company v. Rutland, supra, determining an event from the standpoint of the conduct forming the causative act, or the “effect theory” used in Anchor Casualty Company v. McCaleb, supra, where an event is judged from the point of view of a person sustaining injury.

In Miley v. Continental Insurance Company, 93-1652 (La.App. 1st Cir.9/9/94), 645 So.2d 1166, a forestry management firm conducted a controlled burn on land adjacent to Interstate 12 in Tangipahoa Parish. Early the next day, two sets of collisions occurred on Interstate 12 adjacent to the land where the controlled burn had been conducted. The collisions occurred 15 minutes apart and two-tenths of a mile apart. They were caused by poor visibility from smoke generated by the fires. The forestry management company contended that its insurance policy had a $4 million “per occurrence” coverage limit. The question in the case arose as to whether there was one “occurrence” or two. The policy defined “occurrence” as an accident, “including continuous or repeated exposure to substantially the same general harmful conditions.” The trial court found that there were two accidents, based upon the reasoning of Lombard v. Sewerage and Water Board of New Orleans, supra. The appellate court affirmed, finding that the two collisions constituted two distinct accidents 121 separate in time and space on the highway. Each set of collisions was a single, identifiable event and therefore each collision was an “occurrence” within the terms of the insurance policy.

However, the first circuit found that Lombard was not applicable to the facts. The appellate court pointed out that in Lombard, the finding of an occurrence was based on continuous or repeated exposure to the pile driving activities and not on an accident in the ordinary sense of the word. In Miley, the court found that, unlike the pile-driving activity in Lombard, the smoke did not damage anything but was merely a contributing cause of the two sets of collisions. The appellate court in Miley stated, “Because this case involves the traditional type of accident, specifically vehicular collisions, the trial court’s characterization of an occurrence involving continuous or repeated exposure to substantially the same general harmful conditions was inappropriate.”

The facts in the present matter do not present a case of repeated exposure like Anchor Casualty Company v. McCaleb, supra, Lombard v. Sewerage, and Water Board of New Orleans, supra, and their progeny discussed above. Rather, the facts here show that the truck driven by Mr. McCauley overturned and collided with Mr. Washington and Mr. Richard almost simultaneously, resulting in a single accident under the facts, the terms of the Greenwich insurance policy, and the reasoning of St. Paul-Mercury Indemnity Company v. Rutland, supra, McKeithen v. S.S. Frosta, supra, Whetstone v. Dixon, supra, and Lantier v. Aetna Casualty & Surety Company, supra, discussed above. The facts of the present case are also ^distinguishable from Liberty Mutual Insurance Company v. Rawls, supra, and Miley v. Continental Insurance Company, supra, which involved two distinct accidents separated by time and distance. In the present case, the collisions were almost simultaneous.

Accordingly, we affirm the trial court ruling granting summary judgment in favor of Greenwich based upon a finding that there was a single accident in this case, that the limit of the Greenwich insurance policy was $5 million, and that amount has been paid by the company.

CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court granting summary judgment in favor of Greenwich Insurance Company, finding that it has satisfied the limits of the insurance policy applicable in this matter. Costs in this court are assessed to the plaintiffs, Mae Francis Washington Smith, and John Washington, on behalf of the interdict, Henry Gene Washington.

AFFIRMED.

      . See What Constitutes Single Accident or Occurrence Within Liability Policy Limiting Insurer's Liability to a Specified Amount Per Accident or Occurrence, 64 A.L.R.4th 668.

      . The holding in Lombard was criticized in William Shelby McKenzie & H. Alston Johnson, III, 15 Louisiana Civil Law Treatise, Insurance Law and Practice § 185 (3d ed.2006):
      This interpretation does not appear to be consistent with the policy language. If followed, its applicability should be limited to repeated exposure cases. The policy provisions limiting liability "per occurrence” are not ambiguous and such limits should be applicable to all bodily injury and property damage sustained by multiple persons arising out of a single incident; they should not be applied to each person separately. [Footnote omitted.]

      . See also H.E. Butt Grocery Company v. National Union Fire Insurance Company of Pittsburgh, Pa., 150 F.3d 526 (5th Cir. 1998).

      . We are aware of Esparza v. Eagle Express Lines, Inc., 2007 WL 969585 (E.D. Texas 3/28/07), cited by the plaintiffs, in which a tractor-trailer rig crossed the median of a highway and collided with two oncoming vehicles. Based upon H.E. Butt Grocery Company v. National Union Fire Insurance Company of Pittsburgh, Pa., supra, and Liberty Mutual Insurance Company v. Rawls, supra, the court found that there were two accidents or occurrences separated by time and distance. We find that this case is not controlling here. The facts in Esparza show that the impacts occurred 2-5 seconds and 30-300 feet apart. Certainly, the collisions were not separated by time and distance in the way those in Liberty Mutual Insurance Company v. Rawls, supra, and Miley v. Continental Insurance Company, supra, were. Under these facts, we reject the reasoning of the case as flawed and decline to follow it.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana in the Interest of A.U.M. Hector Galvan, Intervenor/Appellant.
    No. 46,082-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 2011.

      Brenda F. Ford, for Intervenor/Appel-lant, Hector Galvan.
    Michael E. Daniel, for Plaintiff/Appellee State of Louisiana, Dept, of Social Services.
    Angela M. Smith, Legal Services of North La., Inc., for Minor Child, A.U.M., and a confidential party.
    Angela G. Waltman, for Defendant/Ap-pellee, M.G.M.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

| Appellant, Hector Galvan, appeals from a judgment adjudicating A.M. to be a child in need of care. We affirm.

Facts

A.M. was born in Hidalgo County, Texas, on January 7, 1999. In 2006 he was living with his mother, Molly Muniz, and her boyfriend, Emilio Rodriguez. In September 2006, Molly Muniz was arrested and thereafter convicted of murder. She is presently serving a 10-year sentence in the state prison at Gatesville, Texas. The child was left with Emilio Rodriguez, who is an attorney. Testimony indicated that Rodriguez obtained an order from the Texas court appointing him as a non-parent temporary conservator of the child. In June 2009, Rodriguez, at the request of Muniz, sent the child to live with Muniz’s cousin, Leticia Rodriguez Clark, who resided in Mansfield, Louisiana. A.M. was enrolled in school in DeSoto Parish and has resided with Ms. Clark since June of 2009.

Hector Galvan resides with his wife and children in Tennessee. In early 2010, Muniz corresponded with Galvan, a former boyfriend. In February of 2010, both Gal-van and Muniz executed and filed with the Texas Attorney General acknowledgments of Galvan’s paternity of A.M. A new birth certificate was then issued naming Galvan as the father of A.M.

After Galvan attempted to take the child, a verbal Instanter Removal Order was issued by the 42nd J.D.C. in DeSoto Parish, Louisiana, on April 26, 2010, which placed the minor child, A.M. in the temporary custody of the State of Louisiana, Department of Social Services (“DDS”). Specifically, the trial court found that A.M. was a child in need of care |2pursuant to La. Ch. C. art. 606. Physical custody of A.M. was continued with Leticia Clark, a maternal cousin of the child with whom A.M. had been living since June of 2009. This order was served upon Molly Muniz at prison in Texas and upon appellant, Hector Galvan, the alleged father, in Tennessee.

A DNA test was performed at the insistence of DSS which revealed that Galvan was not the biological father of A.M. On May 25, 2010, DSS filed a petition to adjudicate A.M. as a child in need of care. Because Galvan was not the biological father, neither Galvan nor his attorney were served with a copy of this petition.

The next filing in the Louisiana record was an unauthenticated copy of a “First Amended Order Adjudicating Parentage” signed on May 28, 2010, by the 139th Judicial District Court of Hidalgo County, Texas, Case No. F^4754-05-C, “In the Interest of [A.M.], a Child.” The Texas court found that it had jurisdiction over the matter and adjudicated Galvan to be the father of A.M. and declared the parent-child relationship to be established for all purposes. It did not adjudicate custody. The Texas court based its opinion on the fact that Galvan admitted paternity “under oath and that there is no reason to question the admission.” Obviously Gal-van did not inform the court of the DNA test results.

On June 28, 2010, Galvan filed a “Petition for Intervention and to Recognize Foreign Judgment” in the Louisiana proceedings.

On August 10, 2010, the Louisiana court rendered a judgment of disposition adjudicating A.M. to be a child in need of care and assigning the 13legal custody of A.M. to DSS, the DeSoto Parish Office of Community Services. The following is excerpted from the trial court’s judgment of disposition:

[A.M.] was ordered in[to] the custody of the state by Judge Robert Burgess. He was to remain in the home of Leticia Clark. Ms. Clark is a maternal cousin to [A.M.] and [he] has been residing with her since June 2009. [A.M.] ’s mother is currently incarcerated at Lane Murray in Gatesville, Texas, for 1st degree murder. Her release year is 2016. Ms. Muniz also has a history with Child Protection Services. Hector Galvan, Jr., is the alleged father of [A.M.]. Mr. Gal-van, who resides in Tennessee, wants custody of [A.M.]. He has no prior involvement with [A.M.], Mr. Galvan has tried to remove [A.M.] from Stanley Elementary without the caretaker’s permission and has also changed [A.M.] ’s name to his last name on legal documents, i.e., birth certificate, social security card, and has even obtained health insurance. He has obtained an order adjudicating parentage on false information. Mr. Galvan also has a lengthy criminal history, i.e., forgery, burglary, domestic violence and possession of marijuana.

In its oral reasons for denying the Texas judgment full faith and credit, the trial court stated:

The [second] Texas judgment [adjudicating paternity] is not recognized by this Court. It is clear that at the time the Texas court has failed to recognize that Louisiana was the home state of that child having been here, present, in school, for over six months.... I do not recognize the Texas decree ... the actions of the Texas court [in] not recognizing that this Court has primary jurisdiction, not recognizing that this Court has jurisdiction by stipulation of the parties in a previous order of custody, the Court juveniles adjudicate this child in need of care and rejects the intervention by Mr. Galvan.
It is from this judgment that Hector Galvan has appealed.

Discussion

One issue in this appeal is whether the Louisiana trial court had subject matter jurisdiction. The court specifically found that Louisiana was the child’s home state.

[4The UCCJEA provides the exclusive jurisdictional basis in state law for making a child custody determination by a Louisiana court. La. R.S. 18:1813(B). The UCCJEA provides five grounds, in preferential order, that warrant an exercise of jurisdiction over a child in an interstate matter relating to the child’s custody: (1) Louisiana is or was the home state of the child; (2) another state lacks jurisdiction and the child and at least one of the parents has a significant connection with the state and significant evidence relating to custody is found in this state; (3) all courts have declined jurisdiction because Louisiana is the appropriate forum;(4) no other court would have subject matter jurisdiction under the Act; or (5) the Louisiana court has temporary jurisdiction based on emergency circumstances. La. R.S. 13:1813(B).

The trial court found that it has home state jurisdiction over A.M. by virtue of the child’s presence in this state for more than six months prior to institution of the child in need of care proceedings. La. R.S. 13:1802(7)(a) defines “home state” as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. La. R.S. 13:1802(13) defines “person acting as a parent” as a person, other than a parent, who: (a) has physical custody of the child ... and (b) has been awarded legal custody by a court or claims a right to legal custody under the laws of this state. The testimony clearly shows that Leticia Clark was given the child by its mother who was in prison for murder and by the court [ 5appointed non-parent temporary managing conservator, Emilio Rodriquez. The child has lived in Louisiana with Ms. Clark continuously for more than six months and has been enrolled in DeSoto Parish schools since June of 2009. Further, no other state would have subject matter jurisdiction. The child has not resided in Texas for the last six months. Galvan, who resides in Tennessee, is not the child’s biological father.

Before a state court will have jurisdiction to modify a custody order under the Act, certain statutory requirements must be met. Primary jurisdictional considerations under the Act are the length of time the child has been in the state, the child’s connections to the state, and the availability of evidence in the state concerning the child’s care. Since A.M. has not lived in Texas for six consecutive months within six months preceding the current action, Texas is not the child’s home state. Where there is no home state, jurisdiction may depend on whether the child or at least one of the parents has significant connections with the state and whether there is available in the state significant evidence concerning the child’s care and personal relationships. These elements are present in Louisiana, and Louisiana is justified in exercising jurisdiction under this state’s codification of the UC-CJEA.

As for Galvan’s argument that the trial court erred in finding A.M. to be a child in need of care, we have reviewed the record and find that, in light of the unique facts and circumstances of this particular ease, the trial court did not err in adjudicating A.M. to be a child in need of care. With his mother, the only parent he has ever known, convicted of murder and Ifiincarcerated in Texas, A.M. certainly qualifies both as a child “without necessary ... supervision because of the ... prolonged absence of his parent” and one “placed at substantial risk of imminent harm because of the continuing absence of the parent” as set forth in La. Ch. C. art. 606(A)(3).

The state through the DSS, having established one of the statutory grounds for adjudication as a child in need of care as set forth in La. Ch. C. art. 606, thereafter created a case plan for A.M. which at the current time has the child in foster care with Ms. Clark, the maternal relative with whom he has been living for more than a year. The primary goal of the permanent plan currently in place for A.M. is reunification with his mother or guardianship with a relative such as Ms. Clark (while his mother is incarcerated).

As noted by this court in State ex rel. J.K., 33,878 (La.App.2d Cir.06/23/00), 764 So.2d 287, 292, writ denied, 00-2637 (La.10/06/00), 771 So.2d 83, the health, safety and best interest of the child are the paramount concerns in all child in need of care proceedings. La. Ch. C. art. 601; State ex rel. L.B., 08-1539 (La.07/17/08), 986 So.2d 62.

Conclusion

The trial court had jurisdiction and correctly evaluated the evidence and found A.M. to be a child in need of care. The court’s findings are fully supported by the testimony and documentation. Thus, we affirm.

AFFIRMED.

      . Uniform Child Custody Jurisdiction and Enforcement Act.

      . While the state has an interest in protecting an innocent child, it also has an interest in preserving the parent-child relationship. A finding that A.M. is a child in need of care does not destroy this relationship, but merely proposes to modify it until such time as the child is safe in the relationship.


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

text:
    In re Medical Review Panel for The Claim of John Aaron KLUKSDAHL.
    No. 2010-CA-1304.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 2, 2011.

      John A. Kluksdahl, New Orleans, LA, In Proper Person, Appellant.
    Richard E. McCormack, Stephen G.A. Myers, Kelly G. Juneau, Irwin Frtichie Urquhart & Moore LLC, New Orleans, LA, for Christopher Flynn, Ph.D., Appel-lee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRY LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|,The plaintiff, John Aaron Kluksdahl, appeals the trial court judgment granting the motion for partial summary judgment in favor of defendant Dr. Christopher Flynn. After de novo review, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

The plaintiff was diagnosed and treated for Attention-Deficit/Hyperactivity Disorder (ADHD) as an undergraduate at the University of Memphis (UM), September 1998 through May 2002. In August 2003, upon admission to the evening division of Loyola School of Law, he requested treatment for his ADHD from the Loyola counseling services. After verification from UM of prior treatment and an initial evaluation, the plaintiff was treated for management of his ADHD by Dr. Robert Barnes, a psychiatrist and Director of Counseling and Career Services, as well as other staff members of Loyola’s counseling center, including a psychologist, Dr. Flynn. However, at the conclusion of the 2005 spring semester, the plaintiff was involuntarily withdrawn for inappropriate behavior at the conclusion of the 2005 spring semester.

|2On December 9, 2008, the plaintiff filed this pro se action, naming Dr. Barnes, Dr. Flynn, and numerous other Loyola employees as defendants. The original petition was amended twenty-nine times but the gist of the plaintiffs complaint appears to be that his dismissal from law school is directly attributable to the treatment and drug prescriptions provided by the school counseling service staff and their breach of his expectation of privacy in the interchange of information with school administration personnel.

In April 2010, Dr. Flynn moved for partial summary judgment, pointing out that the plaintiff would be unable to establish the required elements of his malpractice claims against Dr. Flynn at trial. Specifically, Dr. Flynn asserted that he was entitled to summary judgment as a matter of law because the plaintiff was unable to establish through expert testimony the pertinent standard of care or, concomitantly, a breach of the standard of care. The defendant argued at the motion hearing on May 14, 2010, that expert testimony is unnecessary to establish the standard of care in malpractice claims against a psychologist. On May 20, 2010, the trial court issued a judgment granting Dr. Flynn’s motion for partial summary judgment and dismissing the plaintiffs malpractice claims against Dr. Flynn. The plaintiff appeals this judgment.

Applicable Law

On appeal, motions for summary judgment are reviewed de novo, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and | ^whether the mover is entitled to judgment as a matter of law.” Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d.634, 638. In Louisiana, summary judgment is “designed to secure the just, speedy, and inexpensive determination of every action” and, therefore, is “favored and shall be construed to accomplish these ends.” La. Code Civ. Proc. art. 966(A)(2). The burden of proof is with the movant on summary judgment but, where the movant will not bear the burden of proof at trial, his burden on summary judgment does not require him to negate all essential elements of the adverse party’s claim, action, or defense. Rather, to satisfy his burden of proof, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La.Code Civ. Proc. art. 966(C)(2); Greenhouse v. C.F. Kenner Associates Ltd. P’ship, 1998-0496, p. 4 (La.App. 4 Cir. 11/10/98), 723 So.2d 1004, 1007. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, the trial court is required to find that no genuine issue of material fact exists, making summary judgment appropriate. La.Code Civ. Proc. art. 966(C)(2); Greenhouse, supra.

Discussion

On appeal, the plaintiff argues that partial summary judgment is inappropriate in this case because the defendant did not attach any exhibits to his motion and the trial judge failed to review the plaintiffs individual malpractice allegations to determine “whether the individual allegations did, or did not, require |4the testimony of a peer provider to establish a standard of prudent care, breach, and proximate causation.” The plaintiff asserts that expert testimony is not statutorily required for malpractice claims against a psychologist and, therefore, the trial judge’s refusal “to review any individual, specific malpractice allegations to determine whether the individual allegations did, or did not, require the testimony of a peer provider to establish a standard of prudent care, breach, and proximate causation” was error.

The issue before the court is not whether an expert witness is necessary to establish the appropriate standard of care in a malpractice claim against a psychologist but whether the plaintiff sustained his burden on summary judgment. The plaintiff is correct that there are some very limited circumstances of such obvious negligence that expert testimony is not required to establish a malpractice claim, see Pfiffner v. Correa, 1994-0992 (La.10/17/94), 643 So.2d 1228; Schultz v. Guoth, 2010-343 (La.1/19/2011), 57 So.3d 1002, but he clearly misapprehends the shifting burdens of proof on summary judgment. Once the defendant pointed out to the court that there was an absence of factual support for one or more elements of his malpractice claims, the burden shifted to the plaintiff to come forward with some evidence that he will be able to satisfy his evidentiary burden of proof at trial. The burden was not upon the trial judge to sift through the plaintiffs twenty-nine amended petitions to determine whether any of the malpractice claims raised by the plaintiff against Dr. Flynn constituted Pfiffner claims of such obvious negligence that expert testimony was unnecessary to |establish the standard of care. The record, as designated by the plaintiff, contains no pleading filed by the plaintiff in response to the defendant’s motion on summary judgment. The record indicates that the plaintiff appeared at the motion hearing but contains no transcript of that hearing or indication that exhibits were submitted at the hearing by the plaintiff in response to the defendant’s motion for partial summary judgment. Rather, in his brief on appeal the plaintiff quotes excerpts from “amended petitions # 4 and # 8” which purportedly are specific malpractice allegations against Dr. Flynn that do not require expert testimony, specifically, claims that Dr. Flynn breached patient confidentiality policy. As evidence of Dr. Flynn’s purported breach, the plaintiff attaches copies of interdepartmental emails and memorandum as exhibits to his brief on appeal.

On appeal from summary judgment, our review is de novo but limited to what was before the trial judge. In this case, the record does not indicate, nor does the plaintiff claim, that the arguments and exhibits submitted by the plaintiff on appeal were ever before the trial judge. It is axiomatic that this is a court of record and we do not review evidence or issues brought for the first time on appeal. Thus, our de novo review (limited to the record before us) indicates that Dr. Flynn pointed out to the court that there was an absence of factual support for one or more of the essential elements of the plaintiffs claim and the plaintiff failed to sustain his burden of showing that a genuine issue of material fact existed to defeat summary judgment.

| fi Conclusion

Upon de novo review, the plaintiff failed to establish that he will be able to satisfy his evidentiary burden of proof at trial with regard to his malpractice claims against Dr. Flynn and, accordingly, Dr. Flynn is entitled to summary judgment on those claims as a matter of law.

AFFIRMED.

MURRAY, J., concurs and assigns reasons.

MURRAY, J.,

Concurs and Assigns Reasons.

|TMr. Kluksdahl, who is not represented by counsel in this appeal, argues that he did not have to submit expert testimony to defeat the summary judgment because he is alleging not only malpractice, but also breach of contract. Specifically, the plaintiff alleges in his petition that Dr. Flynn’s unauthorized disclosure of plaintiffs confidences constituted breach of the implied contract between them. According to plaintiffs argument, he need only prove the occurrence of such a breach, which is actionable per se. However, plaintiff misinterprets the law in this regard.

The trial court granted partial summary judgment dismissing from the plaintiffs petition, as amended, “any and all allegations against Christopher Flynn, Ph.D., arising out of the provision of health care as defined by LSA-R.S. 40:1299.41 et seq.” R.S. 40:1299.40(A)(1), in pertinent part, defines “Health care provider” as a “person, partnership, limited liability company, corporation, facility or institution licensed or certified by this state to provide health care or professional services as a ... psychologist ... acting in the course and scope of his employment.” Moreover, the statute defines “Health care” as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient_” R.S. 40:1299.40(A)(9). | ¡¡Finally, it defines “Malpractice” as “any unintentional tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.... ” R.S. 40:1299(A)(8).

In support of his motion for summary judgment, Dr. Flynn submitted evidence showing that the allegations against him did arise out of the provision of health care as defined by the statute, and further that his actions were appropriate under the circumstances. For instance, he submitted pertinent correspondence between himself, other Loyola personnel, and the plaintiff which preceded the plaintiffs involuntary withdrawal from Loyola Law School. Additional documentation showed the limited circumstances under which a psychologist at Loyola would be authorized to reveal confidential information given to him by a student he was counseling. At this point, as noted in the majority opinion, the burden shifted to the plaintiff to present evidence establishing the standard of care applicable to Dr. Flynn, and that the standard had been breached. In other words, to defeat the summary judgment, Mr. Kluksdahl had to show not only that a breach of confidentiality occurred, but also that under the particular circumstances, the breach of confidentiality violated the applicable standard of care for a psychologist in Dr. Flynn’s position. In the absence of expert testimony, Mr. Kluksdahl was unable to meet that burden. Accordingly, the partial summary judgment was properly granted.

For these reasons I respectfully concur in the majority opinion.