author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Roy PARKER.
    No. 2010-KA-1277.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for Ap-pellee.
    Edward R. Greenlee, Louisiana Appellate Project, Laplace, LA, for Defen-danVAppellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

The State of Louisiana indicted Roy Parker for the second degree murder of his wife, Veronica Parker, and for the attempted second degree murder of Brian Davis. Parker pled not guilty to both counts. Although he later amended his pleas to not guilty by reason of insanity, he again amended his pleas to not guilty. At the conclusion of a three-day trial, a twelve-person jury found him guilty as charged on both counts. The court denied Parker’s motions for new trial and for post verdict judgment of acquittal. Parker noted his readiness for sentencing, and the court sentenced him on the murder count to life imprisonment and on the attempted murder count to fifty years at hard labor. Each sentence is to be served without benefit of parole, probation, or suspension of sentence and each is to be served concurrently. The court denied Parker’s motion to reconsider sentence but granted his motion for appeal.

FACTS

Roy Parker shot and killed his wife, Veronica, and shot and wounded her coworker, Brian Davis, on the morning of May 2, 2009. At the time of the 12shooting, Ms. Parker and Mr. Davis were with several coworkers who had gathered after work for drinks at the Erin Rose Bar, near the hotel where they worked. Ms. Parker sustained nine gunshot wounds. She died of massive internal bleeding from perforations to her aorta, lungs, liver, diaphragm, spleen, and stomach. Mr. Davis sustained gunshot wounds to his stomach and his legs.

Carol Francis, Ms. Parker’s mother, testified that at the time of the shooting, the defendant and her daughter were separated, and Ms. Parker was staying at Ms. Francis’ apartment.

The State played tapes of 911 calls concerning three incidents involving Ms. Parker and the defendant. The first, on December 14, 2008, involved a domestic disturbance at a residence on Behrman Highway where the defendant was reported to be pounding on the door. The second was of a domestic battery call on April 28, 2009, a few days before the shootings, also at the Erin Rose and also involving the Parkers. The third tape was calls concerning the shootings.

Off. Kori Keaton testified that she responded to the 911 call of December 14, 2008. When she arrived she noticed a broken window with glass pieces lying inside the apartment, showing an attempted entry. Ms. Parker told her that she was asleep in her mother’s apartment, and woke up when she heard her husband arguing with a neighbor outside. Ms. Parker heard a loud crash from the front of the apartment, got up to investigate and saw her husband standing inside the front room with his arm bleeding. Ms. Parker told her that the defendant ran into her bedroom and back out again, stating that he was just checking to see if she had a man in the bedroom, and then he left. The officer later got an arrest warrant for the defendant.

| (.Concerning the April 28, 2009 incident, Kelsey Herman, one of Ms. Parker’s coworkers, testified that a group of employees from the hotel gathered at the Erin Rose to socialize after they got off work. Around 3:00 a.m. the defendant arrived as usual to pick up Ms. Parker. Ms. Parker told the defendant that she was getting ready to leave and would meet him outside. The defendant became mad, grabbed and threw a barstool, and dragged Ms. Parker out of the bar. Ms. Herman testified that after the defendant left, Ms. Parker came back inside the bar, locked herself in the bathroom, and cried. Another coworker, Jamie Burton, testified that he was also in the bar that night and that the defendant came into the bar and yelled at Ms. Parker. The defendant ripped Ms. Parker’s barstool from under her and dragged her out of the bar. Mr. Burton followed the pair outside, and when the defendant saw Mr. Burton, he released Ms. Parker, got in his car and drove away. Mr. Burton testified that the police were called, and the defendant was not allowed on the hotel premises after this incident.

Thomas Register, Ms. Parker’s boss, testified that on May 2, he and other coworkers met at the bar after they left work, sometime after midnight. Ms. Parker did not accompany them but she arrived sometime later and sat at the bar with Mr. Davis and other coworkers eating and drinking. Mr. Register saw the defendant come into the bar and shoot at Ms. Parker. He first ducked down, and then followed the defendant as he fled, calling 911 while he did so. He eventually lost the defendant and returned to the bar. Both Ms. Parker and Mr. Davis had been transported from the bar by the time he returned. He gave the police a statement and viewed a photographic lineup from which he chose the defendant’s photograph as that of the shooter. On cross-examination, Mr. Register testified that the shooting occurred just before 5:00 a.m. While viewing surveillance footage from |4the shooting, Mr. Register pointed out the defendant looking in through the windows of the bar prior to entering and shooting.

Brian Davis also worked with Ms. Parker. He and other workers arrived at the bar between 1:00 and 2:00 a.m., and Ms. Parker arrived somewhat later. Ms. Parker indicated that she was going home with a female coworker who was present. He sat next to Ms. Parker at the bar and at one point closed his eyes and put his head down. He heard gunshots and screams and saw Ms. Parker fall to the floor. Then he was shot. He stated that he still had the bullets in his body. While at the hospital he learned of Ms. Parker’s death from her wounds. Mr. Davis gave a statement to the police, and viewed a photographic lineup from which he chose the defendant’s picture as that of the shooter. Mr. Davis denied that he and Ms. Parker were involved romantically; instead, he asserted that Ms. Parker “watched out” for him.

With respect to the May 2 shooting, Ms. Kelsey Herman testified that she arrived at the bar approximately an hour before Ms. Parker did. Ms. Herman was also seated at the bar but around the corner from Ms. Parker and Mr. Davis. Ms. Herman went to speak with someone else in the bar, and as she returned, she heard several gunshots and saw Ms. Parker lying face-down on the floor. She saw the side of the shooter’s face as he fled the bar, and she identified him as the defendant. She had met the defendant a few times in the past when he had picked up Ms. Parker from the bar, and he had once given her a ride home. She chose the defendant’s photograph from a lineup. She testified that Ms. Parker had planned to spend the night with her on the night of the shooting.

Regarding the May 2 shooting, Mr. Jamie Burton testified that Ms. Parker arrived at the bar escorted by security personnel from the hotel. He was standing |sat the bar, talking with other people, when he heard a noise and saw a man leaving the bar. Mr. Burton saw Ms. Parker back away from the bar and fall to the ground. He did not see the face of the man who left, but from behind the man looked like the defendant, whom he had seen many times in the past when the defendant picked up Ms. Parker.

Officer Reginald Rowe responded to the 911 call concerning the April 28 incident at the bar. Off. Rowe met with Ms. Parker, who told him that the defendant came to pick her up and became enraged when she told him that she needed to pay her bill before leaving. Ms. Parker told him that the defendant pulled the stool out from under her and dragged her out into the street. Off. Rowe spoke with the defendant at the police station, where he admitted that he had pulled the chair out from under Ms. Parker because she was taking too long to leave the bar. The defendant also told him that it was normal for him to pick up Ms. Parker and take her home. Off. Rowe was also working on the night of the shooting, and when he responded to the shooting, he recognized Ms. Parker from the earlier incident. He informed Det. Robert Long, the lead investigator, about the earlier incident.

Detective Robert Long was lead investigator of the shootings. He testified that officers found a gun on the sidewalk just up the street from the bar, and a hat at the corner of Conti and Dauphine Streets. Det. Long met with Mr. Davis at the hospital, and Mr. Davis immediately told him that Ms. Parker’s husband was the shooter. Det. Long identified various photographs taken of the scene and the evidence seized both inside and outside of the bar. He took statements from those inside the bar who witnessed the shooting, and after learning from several witnesses that the defendant was the perpetrator, he obtained an arrest warrant for Rthe defendant. The defendant turned himself in on the evening of the shooting. Det. Long also identified clothing of both victims that he seized from the hospital. The hat that was seized a block from the bar had the words “Barbershop Roy” engraved on the back. The defendant was a barber by trade, and witnesses described the defendant as wearing the hat that night.

Det. Long testified that after the defendant surrendered, he was advised of his rights and taken to the Homicide Office, where he gave a statement. When the statement concluded, Det. Long arrested the defendant. He also had various witnesses view photographic lineups.

On cross-examination, Det. Long stated that when the defendant surrendered, four pairs of women’s underwear were in his pocket. Det. Long referred to the defendant’s statement, wherein the defendant alleged that the underwear had semen on them that he insisted was not his, thereby showing that Ms. Parker was cheating on him. The defendant told Det. Long that he took the underwear to the bar to confront her with them. The defendant told him that he and his wife had not had sex for at least two to three weeks; that they had been together for six years; and, that they had been married for two years, and had two children. The defendant admitted that they had been having problems because Ms. Parker worked late and did not come home immediately afterwards.

The gun found up the street from the bar was ultimately determined to be the murder weapon. The defendant told Det. Long that he was upset because he did not to know where his children were and that he had gone to the bar that night to try to reconcile with Ms. Parker. He got angry when he saw her sitting in the bar with other people. The defendant insisted that his body went numb and an evil spirit took over him when he shot Ms. Parker.

17Off. Latoya Hamilton transported the defendant from the Seventh District police station, where he had surrendered, to the Homicide Office. During the journey, he showed her four pairs of women’s underwear, told her that they belonged to his wife, and that the substance in the underwear was not his because they had not had sex in a week.

The defendant’s video statement was played for the jury. He indicated therein that he believed his wife had been cheating on him for a long time, alleging that she had been consorting with owners of strip clubs in Atlanta and with men in New Orleans. He stated that he did not approve of her working nights and then spending time with coworkers at a bar instead of coming straight home. He alleged that his young daughter had told him that terrible things had happened to her while she was staying with other people when his wife was at work. He said he told his wife that she needed to get a nine-to-five job and come straight home to take care of the children. Although he maintained that he was a “stay-at-home” father, he indicated later in his statement that he worked as a barber.

The defendant stated that he had just been released from jail in connection with the “first lil [sic] argument ... altercation,” presumably the April 28 incident. Neither his wife nor their children were at home when he got there. When he asked his wife’s family where the children were, they told him that they did not know. He admitted knowing his wife had moved the children from the house when she learned that he had been released. He alleged that his young daughter told him that she had been harmed while staying with other people. He stated that he went to sleep, awakening around 8:30 a.m.; admitted being aware of the protective order that his wife had obtained against him, but he considered it to be like a divorce the court imposed which neither he nor his wife wanted; and, he wanted his wife to | ¿return to their home. He started going through his wife’s possessions, and he noticed a pair of her underwear lying on the floor. He picked them up and noticed a substance on the underwear. He asserted that they had not had sex for two to three weeks, and he believed that the substance showed that she had had sex with some other man. He went through the rest of her clothing and found other underwear with what he thought was a substance on them. He stuffed them in his pocket and admitted grabbing his gun “just in ... I don’t know what made me grab the gun. I know I shoulda [sic] never done it.... But something just told me to take it.”

The defendant testified that he went to visit his aunt, who had hidden the keys to his car because his driver’s license had been suspended, and told her that he needed the keys to drive to the store. His aunt refused to give him the keys and insisted upon driving him to the store. Instead, he grabbed the keys from her, and she got into the back seat of the car. The defendant drove to the French Quarter to confront his wife and to try to reconcile with her. He parked the car, left the keys with his aunt and walked to the bar. He saw his wife sitting there having fun with her coworkers, and then he did not know what came over him. He described himself as being “numb,” and he began shooting at her. He wished he had remained on the scene afterward to “comfort” her instead of running away. He began running to clear his head, and he found a place to hide for a while. He paid someone to drive him to his cousin’s house in New Orleans East but his cousin was not home. When the cousin returned, he told defendant he could not stay there and convinced defendant to surrender. His cousin drove him to the police station.

The defendant repeated that he went to the bar only to try to reconcile with his wife and bring her home. He reiterated that she left the house with the children |flfor months, and he was too weak to be patient with what he called her “flaws.” He stated that something came over him while he was standing outside the bar: “Like a [sic] evil spirit my whole body went numb. It was like I didn’t even do it. I swear it was like it wasn’t even me that was doing it.” He stated that he and his wife had been married for over two years, had been together for over six years, and he considered her to be his best friend. He stated that he was prepared to deal with the consequences of the shooting, but: “Thing got out of hand but it ... it wasn’t my fault, like I say ... I believe I was provoked” by many things, including what he termed her “playing with” his head, smiling with men, and coming home late. He had warned his wife that her job and her hanging out in the bar with her coworkers after work would ruin their marriage.

When the officers asked the defendant why he had grabbed the gun before leaving the house, he replied that he did not think that she would be at the bar, imagining that she would have the “sense” to be home with their children. He reiterated that he did not know why he grabbed the gun, noting that he usually did not carry the gun because he got stopped a lot by the police. He admitted that he could not stay away from his wife and described his actions as if he “was on a mission.”

After this case was submitted for decision, Mr. Parker requested, and was granted, permission to file a pro se supplemental brief. We will discuss his pro se assignments of error following consideration of his counseled ones.

DISCUSSION

ERRORS PATENT AND (PRO SE) ASSIGNMENT NO. 3:

A review of the record reveals no patent errors.

110Mr. Parker appears to allege in his pro se assignment No. 3 that his counsel did not object to the denial of his motions for post-verdict judgment of acquittal and for new trial, and he asserts that this failure to object should not estop this court from considering the claims. Citing State v. Craddock, 307 So.2d 342 (La.1975), he asserts the failure to object to an error discoverable by under La.C.Cr.P. art. 920(2) does not operate as a waiver of the error. Art. 920(2) provides that a court shall consider an error “that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” A claim of the sufficiency of the evidence would not fall within art. 920(2) because it calls for an inspection of the evidence. His claims as to both of these motions have no merit.

COUNSELLED ASSIGNMENT OF ERROR I

By his first counseled assignment of error, appellant contends that the trial court erred by denying him the right to a full voir dire. Specifically, he cites to an instance during voir dire where the court sustained the State’s objections to two questions defense counsel posed to the prospective jurors concerning whether the jurors automatically would consider a shooting to be murder. This claim has no merit because, the court had already allowed defense counsel to question the jury on basically the same issue without objection by the State.

The Supreme Court set forth the standard for the review of a claim that voir dire was unlawfully limited:

La. Const, art. I, § 17 guarantees a defendant full voir dire examination of prospective jurors and the right to challenge jurors peremptorily. The purpose of voir dire is to determine qualifications of prospective jurors by testing their competency and impartiality in order to discover bases for challenges for cause and for the intelligent exercise of peremptory challenges. State v. Hall, 616 So.2d 664, 668 (La.1993). Nonetheless, the scope of examination rests within the sound discretion of the trial court, and its ruling will not be disturbed absent clear abuse. La.Code Crim. Proc. art. 786; Hall, 616 So.2d at 669. In determining whether the trial court afforded a sufficiently wide latitude to the defendant, the entire voir dire examination must be considered. Id.

State v. Holmes, 2006-2988, p. 55 (La.12/2/08), 5 So.3d 42, 79-80, Cert. den., Holmes v. Louisiana, — U.S. —, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009). See also State v. Anear, 508 So.2d 943 (La.App. 4 Cir.1987), where this court also stated that a trial court may not curtail the defendant’s right to ask non-repetitious voir dire questions that “reasonably explore the juror’s potential prejudices, predispositions or misunderstandings relevant to the central issues of the particular case.” This court also noted that a court may limit voir dire “as long as the limitation is not so restrictive as to deprive defense counsel of a reasonable opportunity to probe to determine a basis for challenge for cause and for the intelligent exercise of peremptory challenges.” Id. In Holmes, the Court found that the trial court did not unduly limit defense counsel’s voir dire concerning fetal alcohol syndrome because counsel was allowed to question the prospective jurors concerning their ability to consider the syndrome as a mitigating factor. Likewise, in Anear, this court found that the trial court had not unduly limited voir dire, rejecting the defendant’s claims that he was not allowed to rehabilitate a prospective juror and that he was not allowed to delve into personal information concerning the prospective jurors, information that the State also did not have. By contrast, in State v. Searles, 94-0190 (La.App. 4 Cir. 12/15/94), 647 So.2d 1329, this court reversed the defendant’s conviction when it found that the trial court had erred by refusing to allow defense counsel to question prospective jurors to determine the | ^accuracy of personal information contained on the jury sheets and by “grudgingly” allowing counsel to ask any questions at all.

Here, appellant points to one instance during voir dire where he contends the trial court improperly limited his examination of the prospective jurors. During the second round of voir dire, defense counsel noted that by that time, the jurors must be hungry. The following then occurred:

DEFENSE COUNSEL

But before we all eat, as you have heard, the State has the burden to prove this case beyond a reasonable doubt. And we need to know that you all are able to consider that the shooting that you’re going to hear about is manslaughter and not murder. If we could go just person by person and just say, I can consider that,’ then we can get out of here and have lunch. If you can’t, if you think shooting someone is always murder, then you need to say that too.

ASSISTANT DISTRICT ATTORNEY

Objection, Your Honor. I don’t think they can consider it until they have heard some evidence.

BY THE COURT:

Sustained.

BY DEFENSE COUNSEL

I’m sorry. Let me rephrase the question. You need to be able to be open to the possibility that hearing about a shooting is not a murder, that not all shootings are murder. You need to be able to consider manslaughter in your deliberations.

BY ASSISTANT DISTRICT ATTORNEY

Same objection, Your Honor.

BY THE COURT:

Sustained.

|1SBY DEFENSE COUNSEL

Simply note our objection for the record.

Appellant argues that the effect of the court’s sustaining these two objections unduly impinged on his ability to determine if the prospective jurors could consider that a shooting might be manslaughter, not murder. In support, he cites State v. Shepard, 468 So.2d 594 (La.App. 2 Cir. 1985), but that case is distinguishable because in Shepard, the court refused to allow the defense to pose any questions to the prospective jurors about the possibility that the killing was manslaughter, not murder.

However, here a review of the transcript of the entire voir dire shows that both defense counsel and the prosecutor discussed the elements of manslaughter. During the voir dire of the first panel, the prosecutor discussed manslaughter and gave hypothetical examples to explain provocation. During her questioning of the same panel, defense counsel continued the example given by the prosecutor and asked what would happen if the victim pulled a gun on the shooter. A prospective juror replied that the shooter would be provoked. Defense counsel then asked if the situation would change if the gun that the victim brandished was a squirt gun, and the juror replied that it would depend. Defense counsel then stated: “A lot of facts could be placed into that scenario, right? You have to look at the whole scenario, not just the actions of the person who’s pulling out the gun and firing. Is that fair,” to which the juror replied: “Yes.”

Later, during voir dire of the same panel, defense counsel spoke about circumstances building and building, “there’s a moment with the straw that breaks the camel’s back, and someone is accused of killing somebody else, and the circumstances show that there was that kind of building until it all fell apart, does | uthat sound like a manslaughter to you, based on the definition you’ve heard?” A juror replied: “Generally, yes. I would have to know what the facts are.” Defense counsel agreed, noting: “Because without the rest of the facts, it would just be the shooting of a gun to the chest, right?” Later, during the second round of voir dire, defense counsel asked, “How many people here think that if you kill another person, that it’s always murder? ... Everyone understands that there are circumstances when you kill another person and it’s not for whatever reason, murder.”

A full reading of the voir dire transcript shows that although the trial court sustained the State’s objections, defense counsel was able to question the prospective jurors earlier concerning their ability to consider the shooting to be a manslaughter. Indeed, the basis of the State’s objections was that the jury could not commit to finding the appellant guilty of manslaughter until it had heard the evidence. As noted in Holmes:

Louisiana law clearly establishes that a party interviewing a prospective juror may not ask a question or pose a hypothetical scenario which would demand a commitment or pre-judgment from the juror or which would pry into the juror’s opinions about issues to be resolved in the case. “It is not proper for counsel to interrogate prospective jurors concerning their reaction to evidence which might be received at trial.” State v. Williams, 230 La. 1059, 89 So.2d 898, 905 (1956). See also State v. Vaughn, 431 So.2d 358, 360 (La.1983); State v. Square, 257 La. 743, 244 So.2d 200, 226 (1971) (“Voir dire examination is designed to test the competence and impartiality of prospective jurors and may not serve to pry into their opinions concerning evidence offered to be offered at trial”), judgment vacated in part, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), mandate conformed to, 263 La. 291, 268 So.2d 229 (1972); State v. Smith, 216 La. 1041, 45 So.2d 617 (1950) (hypothetical questions and questions of law are not permitted in the examination of jurors which call for a pre-judgment of any supposed case on the facts).

| isHolmes, at p. 56, 5 So.3d at 80.

Contrary to the appellant’s argument, we find the trial court did not unduly limit his counsel’s voir dire of the prospective jurors on the issue of manslaughter. This assignment of error has no merit.

COUNSELLED ASSIGNMENT OF ERROR II.

In his next counseled assignment of error, appellant contends that the trial court erred by denying his proposed jury instruction concerning adultery and manslaughter. His proposed jury instruction stated: “In Louisiana, adultery has been found to constitute sufficiently adequate provocation to support a conviction for manslaughter. You may find Mr. Parker’s belief that Veronica Parker was committing adultery to be sufficient provocation.” The court refused to read this instruction to the jury, “given the fact that there’s been no facts that relate to that manslaughter instruction that you’ve provided to the Court.” The appellant now argues that the trial court erred because “evidence” of his wife’s adultery was presented in his statement, which the State presented to the jury. The appellant asserts that the court erred by finding that the defense had to provide evidence that the victim was actually committing adultery, rather than mere evidence to show that he believed she was committing adultery, in order to read the proffered instruction. This claim also has no merit.

A trial court must instruct the jury as to the law applicable to responsive verdicts. La.C.Cr.P. art. 803. La.C.Cr.P. art. 802 mandates that the trial court instruct the jury as to the law applicable to each case. This rule has been interpreted as requiring the trial court to charge the jury, when properly requested, 11fias to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. See La.C.Cr.P. art. 807, which provides in part that requested special written charge shall be given “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” See also State v. Goodley, 2001-0077 (La.6/21/02), 820 So.2d 478; State v. Jackson, 450 So.2d 621, 632 (La. 1984); State v. Scott, 2009-0138 (La.App. 4 Cir. 11/18/09), 26 So.3d 283, writ den., 2009-2773 (La.6/18/10), 38 So.3d 320; State v. Patterson, 99-994 (La.App. 5 Cir. 1/25/00), 752 So.2d 280. As noted by this court in State v. Jenkins, 98-1608, pp. 23-24 (La.App. 4 Cir. 12/29/99), 750 So.2d 366, 379: “The refusal to give a requested special charge does not warrant reversal of a defendant’s conviction unless it prejudices substantial rights of the accused. La. C.Cr.P. article. 921; State v. Marse, 365 So.2d 1319 (La.1978); State v. Johnson, 514 So.2d 684 (La.App. 2d Cir.1987).”

In Goodley, a murder case, the Court found that the trial court did not err in failing to instruct the jury on theft, with respect to the responsive verdict of manslaughter, where the evidence showed that the defendant was a principal to the underlying armed robbery. In Jackson, the Court held that in a first degree murder prosecution the trial court did not err in refusing to give the defendant’s requested instruction concerning negligent homicide because that offense was not fairly supported by the evidence, in that the defendant strangled the victim. In Scott, this court found that the trial court properly denied the motion to instruct the jury on the defense of others, where there was no indication that the victim was threatening anyone. In Patterson, the court found no error in the trial court’s refusal, in a second degree murder prosecution, to give a requested charge on negligent homicide, where there was no evidence from which the jury could have inferred 117guilt of that lesser offense. The victim died in the hospital after he was severely beaten by the defendant outside of a bar.

In support of his argument that the court should have given his proposed instruction, appellant cites State v. Cancienne, 50 LaAnn. 847, 24 So. 134 (1898), where the Court stated that manslaughter occurs when a defendant learns of his wife’s infidelity and kills his wife or her lover. He points to the fact that his statement, introduced at trial, showed that he believed that his wife was having an affair, thereby giving him the requisite provocation to reduce the shooting to a manslaughter, not a murder. He maintains that the court should have given his proposed instruction that equated the knowledge of adultery with sufficient provocation to render his actions a manslaughter.

Appellant acknowledges that Cancienne has been limited by later cases. In State v. Massey, 535 So.2d 1135 (La.App. 2 Cir. 1988), the court refused to apply Cancienne where the defendant caught his wife in the act of adultery over five months before he eventually killed her. The court held that any provocation that the adultery may have caused him was too remote in time to transform his stabbing of her into a manslaughter, even when she taunted him with the affair just prior to the stabbing. Likewise, in State v. Jack, 596 So.2d 323 (La.App. 3 Cir.1992), the defendant killed his gay lover. The court rejected the defendant’s claim that his discovery of his lover’s infidelity caused sufficient provocation under Cancienne to reduce his killing to manslaughter, in that the defendant and the victim were not married, and thus the victim’s conduct was not adultery as defined in Louisiana.

We find Cancienne distinguishable from the present case because Cancienne found his wife and her lover about to consummate the act. Here, there was no evidence of any actual adultery by the victim; at best, the appellant’s statement 11Ronly showed that he believed that she had had sexual relations at some point before he found her underwear. Appellant has presented no jurisprudence to support his contention that a belief of adultery is sufficient to reduce a murder to a. manslaughter. The State cites several cases from other jurisdictions that limit voluntary manslaughter to cases where the defendant finds his spouse in the act of adultery or immediately before or after an act of adultery, and the defendant immediately kills his spouse. See People v. Chevalier, 131 Ill.2d 66, 136 Ill.Dec. 167, 544 N.E.2d 942 (Ill.1989); Commonwealth v. Bermudez, 370 Mass. 438, 348 N.E.2d 802 (Mass. 1976). In Shields v. State, 285 Ga. 372, 677 S.E.2d 100 (Ga.2009), the court found that counsel was not ineffective for failing to request the court to instruct the jury that a killing made after the discovery of adultery was a manslaughter because the defendant knew of his wife’s affair with another man for a long time before he shot her during an argument. The court also noted that the trial court’s instruction on voluntary manslaughter would have allowed the jury to find the defendant guilty of that offense had it chosen to do so. The thread running through these cases is that finding a spouse in the act of adultery and immediately killing the spouse or the spouse’s lover is essential to a finding of voluntary manslaughter.

Here, at best, appellant argues that his statement showed that he believed that his wife was having an affair because he found her underwear with an unknown substance in them, and he had not had sexual relations with her for two or three weeks. He argues that this discovery, added to his seeing her sitting in the bar with a coworker, gave him a sufficient basis to believe that she was committing adultery, and thus the court erred by refusing to give his proposed instruction.

11flThe facts of the case just do not support a showing that his killing of his wife and his shooting of her co-worker were spontaneous acts as he alleges. There was no showing that he shot his wife “immediately” after he “discovered evidence” of her “adultery.” Appellant attacked his wife in the same bar a few days before the shooting; thus, his “discovery” of her underwear, allegedly containing an unknown substance, was not the circumstance that triggered the shooting. In addition, appellant admitted that he armed himself and intended to go to the bar, where he knew the victim and her coworkers gathered after work, before he found the underwear. He had picked the victim up from the bar after work many times and just prior to the shooting, he merely saw his wife sitting with the other shooting victim and other co-workers at the bar. These facts do not evidence a rational belief that his wife was committing adultery.

Although the record does not contain the entire jury instructions, it is clear that the court included a definition of manslaughter in its instructions because after the jurors had deliberated for a time, they returned and asked the court to define “sudden” as used in its definition of manslaughter. The court then reread the definition of manslaughter. Thus, the jury was aware that it could have returned a manslaughter verdict; it apparently found that appellant’s alleged belief that his wife was having an affair was not rational. Appellant failed to show that the jury could have reasonably accepted his theory that he rationally believed that his wife was committing adultery, and thus, he failed to show that the trial court erred by refusing to give his proposed jury instruction. This assignment has no merit.

\mPRO SE ASSIGNMENT ONE

By his first pro se assignment, appellant contends that the evidence was insufficient to support his convictions for the second degree murder of his wife and the attempted second degree murder of her coworker. He argues that the State failed to show that he had the specific intent to kill or inflict great bodily harm on the victims. He insists that the evidence showed, and the State failed to negate, that he acted in sudden passion or heat of blood, and thus he should have been convicted of only manslaughter and attempted manslaughter. He maintains that the court erroneously instructed the jury on the element of “sudden,” and had the court properly instructed the jury, it would have returned the responsive verdicts.

As we noted earlier the record does not include the transcript of the entire jury instructions, but we have concluded the court instructed the jury on manslaughter because after deliberations began the jury asked it to define “sudden” with respect to manslaughter. The court reread the manslaughter statute. There was no objection to the instruction given by the court; the only objection was with respect to the court’s refusal to give the manslaughter instruction as discussed in the second counseled assignment of error. Thus, any error with respect to the charge is not preserved for appeal. See La.C.Cr.P. art. 841; State v. Parker, 2008-1473 (La.App. 4 Cir. 4/29/09), 11 So.3d 534. As noted by this court in State v. Taylor, 91-2496, p. 5 (La.App. 4 Cir. 3/29/94), 635 So.2d 416, 420: “The contemporaneous objection rule exists, not only so that a trial judge may correct the error at the time it is made, but it also serves notice in the record that the complained of conduct was so noticeable as to create prejudice in the minds of the jurors.”

|21In any event, we find there was sufficient evidence for the jury to reject Mr. Parker’s claim that he shot his wife and her coworker in sudden passion or heat of blood. La. R.S. 14:31 defines manslaughter in pertinent part as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

In addition, the statute provides: “Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed ...” See also State v. Collor, 99-0175 (La.App. 4 Cir. 4/26/00), 762 So.2d 96. “Sudden passion” and “heat of blood” are not separate elements of the offense but are mitigating factors, which the defendant must establish by a preponderance of the evidence. State v. Batiste, 2006-0875 (La. App. 4 Cir. 12/20/06), 947 So.2d 810; State v. McClain, 95-2546 (La.App. 4 Cir. 12/11/96), 685 So.2d 590. As noted by this court in Collor:

Thus, in reviewing defendant’s claim that the evidence supports a manslaughter verdict, this Court must determine whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigating factors were not established by a preponderance of the evidence. State v. Sanders, 93-0001, p. 18-19 (La.11/30/94), 648 So.2d 1272, 1287, cert. denied 517 U.S. 1246, 116 S.Ct. 2504,135 L.Ed.2d 194 (1996).

State v. Collor, at p. 11, 762 So.2d at 103.

laAlso, La. R.S. 14:27A provides: “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

Appellant cites State v. Lombard, 486 So.2d 106 (La.1986), where the Court found that the evidence presented at trial was sufficient to support only a conviction of manslaughter, not the second degree murder verdict that the jury returned. The defendant and the' victim got into an argument at a football game over something that the defendant said to the victim’s girlfriend. The argument escalated into a physical fight that resulted in the defendant stabbing the victim. There, the Court found that the evidence showed that the stabbing occurred in sudden passion or heat of blood, and it vacated the jury’s verdict and imposed a verdict of manslaughter.

We find Lombard is distinguishable. Here, appellant insisted in his statement to the police and now argues that he merely intended to meet with his wife and convince her to come home to him, even though he found what he insisted was evidence of her adultery in her underwear. He avers that when he saw his wife with her coworkers, he became numb, and it was like something took over his body and he was on a mission. He argues that this showed that he shot the victims in a sudden passion or in heat of blood, thereby lessening the shootings to a manslaughter and an attempted manslaughter. However, this “evidence” was negated by the fact that he grabbed his gun before leaving his house, tried to trick his aunt into believing that he wanted his car keys only to go to the store, and then drove to the French Quarter, armed, to meet with her. Given these factors, the jury | Mcould very well have rejected his claim that the shootings were merely the result of his heat of blood or sudden passion caused by seeing her sitting with her coworkers. Instead, the jury could have believed that he left his house with the intention of shooting his wife to death, and in doing so he also shot her coworker. We find the evidence was sufficient for the jury to find him guilty beyond a reasonable doubt of second degree murder and attempted second degree murder. This assignment has no merit.

PRO SE ASSIGNMENT TWO

By his second pro se assignment, appellant contends that the trial court erred by denying his motions for new trial and for post-verdict judgment of acquittal. With respect to the motion for acquittal, as discussed in his first pro se assignment, the evidence was sufficient to support his convictions. In the motion for new trial, appellant alleged that the verdict was contrary to the law and evidence; that the court erred by dismissing a juror after he had been sworn and the trial began; and that the court erred by denying counsel’s motion to withdraw after counsel became aware that he had friends who were well acquainted with the victim and the eyewitnesses. Appellant makes no argument as to the second and third grounds, basing his assignment on the first ground and arguing that the court should have granted a new trial in the interests of justice.

Jurisprudence long held that an assignment of error contending that a trial court erred by denying a motion for new trial based on a claim that the verdict was contrary to the law and evidence under La.C.Cr.P. art. 851(1) presented nothing for appellate review. See State v. Gray, 351 So.2d 448 (La.1977); State v. Bartley, 329 So.2d 431 (La.1976). In State v. Guillory, 2010-1231 (La.10/8/10), 45 So.3d | m612, the Court held that the denial or granting of a motion for new trial based on art. 851 (5), where the ends of justice will be served with a new trial even though the defendant is not entitled to one “as a matter of strict legal right,” presents a question of law that is to be reviewed under an abuse of discretion standard. In State v. Collins, 2010-1181 (La.App. 4 Cir. 3/23/11), 62 So.3d 268, this court questioned whether the Court’s holding in Guillory should also be applied to a motion for new trial based on a claim that the verdict is contrary to the law and evidence. Here, however, even if the claim is subject to review, the trial court did not err by denying the motion on this basis because the verdict was supported by the law and evidence. The cases cited by the appellant, State v. Johnson, 98-2022 (La.12/18/98), 731 So.2d 273, and State v. Davis, 01-1275 (La.App. 5 Cir. 4/10/02), 817 So.2d 171, do not require a different finding. In Johnson, the Court found that this court’s ruling vacating the trial court’s grant of a new trial under art. 851(1) was an error because the court actually had granted a motion for post-verdict judgment of acquittal. The Court reversed the granting of the acquittal, vacated this court’s ruling, and remanded the case for the trial court to rule on the motion for new trial. In Davis, the court vacated the defendant’s sentence and remanded the case for the trial court’s ruling on his motion for post-verdict judgment of acquittal.

Appellant appears to argue that the trial court erred by denying his motions without affording him a hearing. However, the trial court was aware of the evidence presented at trial, and the motions did not specify how the evidence did not support the jury’s verdicts. This assignment has no merit.

\ ^CONCLUSION

None of the appellant’s counseled or pro se assignments of error have merit. Accordingly, we affirm his convictions and sentences.

AFFIRMED.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge. ARMSTRONG, C.J., JONES, J., BAGNERIS, J., LOVE, J., TOBIAS, J.,

license: Public Domain

text:
    Ann BERNARD, et al. v. Antoinette ELLIS, et al.
    No. 2010-C-1495.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 27, 2011.

      Byron A. Richie, Paul D. Oberle, Jr., C. Vernon Richie, Richie, Richie & Oberle, L.L.P., Shreveport, LA, for Relator, Imperial Fire & Casualty Insurance Company.
    Edward J. Womac, Jr., Christopher J. Williamson, Barrett R. Stephens, Law Offices of Edward J. Womac, Jr. & Associates, LLC, New Orleans, LA, for Respondents, Andrea Bernard and Norell Bernard.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PATRICIA RIVET MURRAY, Judge.

_|jThis matter is before this court en banc on remand from the Louisiana Supreme Court to resolve a conflict between two of this court’s writ dispositions: Knight v. Edwards, 10-1474 (La.App. 4 Cir. 1/7/11 )(unpub.), writ denied, 11-0245 (La.3/4/11), 58 So.3d 479 (the “Knight case”); and Bernard v. Ellis, 10-1495 (La. App. 4 Cir. 1/25/11 )(unpub.), writ granted, 11-0329 (La.3/31/11), 60 So.3d 1239 (the “Bernard case”). Imperial Fire & Casualty Insurance Company (“Imperial”) is the Relator in both writs. Both writs seek review of a trial court’s judgment denying Imperial’s motion for summary judgment on an insurance coverage issue.

The Bernard and the Knight cases involved the same factual scenario: a two-vehicle accident that occurred when Imperial’s insured was driving her vehicle, and nonresident relative guest passengers were riding with her in her vehicle. In both cases, the guest passengers filed suit against, among others, Imperial in its capacity as the named insured’s liability insurer. The guest passengers averred that they were covered under the uninsured or underinsured motorist (“UM/UIM”) provision of Imperial’s policy. Imperial responded by filing |2a motion for summary judgment contending that its policy does not provide UM/UIM to the guest passengers. In support, Imperial cited the definition of an insured in the UM/UIM portion of its policy, which does not include nonresident relative guest passengers. In both cases the trial court denied Imperial’s motion for summary judgment. Seeking review of those rulings, Imperial filed an application for supervisory writ in each case.

A three-judge panel of this court in the Knight case granted Imperial’s writ and held that the guest passengers were not entitled to UM/UIM coverage. The panel reasoned that “the liability portion and the uninsured motorist portion of the Imperial Policy present two distinct definitions of ‘insured persons.’ ” The panel further reasoned that “plaintiffs’ attempts to use the definition of ‘insured person’ found in the liability portion of the policy is in error.” The panel still further reasoned that “Imperial’s provision limiting coverage to ‘insured persons’ under the uninsured motorist section of its policy is only extended to those who reside in the same household and are blood related; the plaintiffs do not meet this criteria.” The panel thus concluded that Imperial was entitled to summary judgment based on “[a] clear reading of the policy in conjunction with the law.”

Another three-judge panel of this court in the Bernard case denied Imperial’s writ and held that the guest passengers were entitled to UM/UIM | .^coverage. The panel reasoned that the guest passengers fall within the definition of “insured persons” under the omnibus provision of the liability portion of the policy, which defines “insured person” or “insured persons” to mean “[a]ny person with respect to an accident arising out of that person’s use of a covered vehicle with the express or implied permission of you.” The panel further reasoned that the word “use” of a vehicle includes the act of riding in the vehicle as a passenger; the panel explained:

The Imperial policy does not define the term “use.” The jurisprudence has construed the term “use” as not limited to driving the vehicle. See Bolton v. N. River Ins. Co., 102 So.2d 544, 545 (La.Ct.App.l958)(holding that “use” included a back-seat passenger who slammed the door of the automobile on the plaintiffs hand); Home Indent,. Co. v. Lively, 353 F.Supp. 1191, 1193 (W.D.Okla.l972)(citing Bolton, supra, and noting that “[i]t is well settled that a passenger in a car as distinguished from the driver thereof may be using the vehicle.”) The purpose of liability insurance is to afford the insured protection from damage claims; therefore, insurance contracts should be interpreted to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148 (La.1993).

Noting that it was “Illiberally construing the policy,” the panel held that the guest passengers were “insured persons” under the liability portion of the policy and thus were entitled to UM/UIM coverage under the policy.

The Louisiana Supreme Court denied writs in the Knight case, granted writs in the Bernard case, and remanded the Bernard case with instructions that this court en banc reconcile its holding in the Bernard case with its holding in the Knight case. The Supreme Court also asked this court to consider the effect, if any, of the 2009 amendment to La. R.S. 22:1282. On remand, this court en banc entertained additional oral and written arguments from the parties.

In its supplemental brief on remand, Imperial contends that even assuming the guest passengers were using the vehicle, as this court found in the Bernard |4case, the definition of an “insured person” at issue contains an additional requirement that the “accident arise out of that person’s use.” Imperial contends that it cannot be concluded that the accident arose out of the guest passengers’ mere riding in the vehicle. In support of its position, Imperial cites the First Circuit’s recent decision in Batiste v. Dunn, 10-1812 (La. App. 1 Cir. 6/10/11), 68 So.3d 673.

The Batiste case involved the same factual scenario and policy provisions at issue in the Bernard and Knight cases. In the Batiste case, the First Circuit, with one judge dissenting, affirmed a judgment granting Imperial’s motion for summary judgment on the same coverage issue. The First Circuit reasoned that “[t]o find that plaintiffs were ‘using’ the vehicle simply because they were riding as guest passengers would require a strained interpretation inconsistent with the meaning of the word and beyond what could have been contemplated by the parties.” Batiste, 10-1812 at p. 4, 68 So.3d at 677. The court further reasoned that even assuming the passengers were using the vehicle, the accident did not arise out of their use. The court still further reasoned that the “use” provision is “designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury.” Id. Based on this reasoning, the court held that the guest passengers who were riding in the insured vehicle did not legally cause or contribute to the accident, did not fall within the definition of “insured persons” for. purposes of liability coverage, and thus are not entitled to UM/UIM coverage.

|fiWe are not bound by and decline to follow the Batiste case. The omnibus provision in the liability portion of Imperial’s policy defines an insured as “any person with respect to an accident arising out of that person’s [permissive] use of a covered vehicle.” As we stated in our prior writ disposition in the Bernard case, use includes riding as a passenger. But for the guest passengers’ permissive use of the covered vehicle — riding in the insured’s vehicle when the accident occurred — they would not have been injured. Liberally construing the policy language, we hold that the guest passengers fall within the definition of “insured persons” for purpose of liability coverage and thus are entitled to UM/UIM coverage.

Our finding is buttressed by the policy considerations underlying mandatory UM coverage and inherent in the 2009 amendment to La. R.S. 22:1282, which the Supreme Court instructed we consider on remand. Discussing the policy considerations, we noted in a footnote in our prior writ disposition in the Bernard case that “a contrary holding would result in the anomaly of allowing the driver to recover, but the driver’s two innocent guest passengers to have no recourse.” We further noted that “[t]his anomalous result is inconsistent with the underlying purpose of mandatory uninsured motorist coverage.” Judge Bonin expressed the Rsame policy considerations in his concurrence to the prior writ disposition. Based on the policy considerations, a liberal construction of Imperial’s policy, and the jurisprudence, we again deny Imperial’s writ application in the Bernard case and overrule en banc our contrary writ disposition in the Knight case.

WRIT DENIED.

McKAY, J., concurs.

BONIN, J., concurs with additional reasons.

ARMSTRONG, C.J., dissents.

JONES, J., dissents.

BAGNERIS, J., dissents with reasons.

LOVE, J., dissents and assigns reasons.

TOBIAS, J., dissents and assigns reasons.

McKAY, J., concurs. hi would deny this writ.

BONIN, J., concurs with additional reasons.

hi join fully in the majority opinion. I write separately to address additional considerations which support the majority opinion and answer the views expressed in the dissenting opinions. Also, I write to address more fully the Supreme Court’s directive concerning the 2009 amendment to La. R.S. 22:1282.

Despite the increasingly stringent enforcement of compulsory motor vehicle liability insurance laws nationally and in Louisiana, about one in seven motorists remains uninsured. It is- not surprising then that “[i]n Louisiana, UM coverage is provided by statute and embodies a strong public policy.” Roger v. Estate of Moul-ton, 513 So.2d 1126, 1180 (La.1987) (on original hearing). “[T]he requirement that there be UM coverage is an implied amendment of any automobile liability policy, even one which does not expressly address the subject matter, as UM coverage will be read into the policy unless validly rejected.” Id.

1

I begin by emphasizing that the majority opinion properly decides the issue presented in this case as one of interpretation of an insurance policy. This is the precise issue which Imperial Fire presents in this case, and presented in Knight v. Edwards, 10-1474 (La.App. 4 Cir. 1/7/11) (unpub.), writ denied, 11-0245 (Lag/4/11),2 58 So.3d 479, and Batiste v. Dunn, 10-1812 (La. App. 1 Cir. 6/10/11), 68 So.3d 673, writ application pending, 2011-C-1498 (La.7/8/11). In this case, the majority correctly addresses the particular policy’s definition and provision regarding who is insured under the liability coverage.

If a motor vehicle liability insurance policy provides UM coverage, then any person covered (or insured) under the liability provisions is ipso facto an insured for UM purposes. See La. R.S. 22:1295(l)(a)(i) (governing issuance of UM coverage: “No automobile liability insurance covering liability arising out of the ... use of any motor vehicle ... unless [uninsured motorist] coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover ...” (emphasis added)). “In other words, any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underinsured motorist.” Howell v. Balboa Ins. Co., 564 So.2d 298, 301-302 (La.1990).

Thus, “any determination of whether a plaintiff is entitled to UM benefits must follow a determination that the plaintiff is an insured for the purposes of auto liability insurance coverage.” Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 196 (emphasis added). Notably, Imperial Fire agrees with this formulation of the controlling law and restricts its argument to whether these guest passengers are covered under the liability provisions of its policy.

There is no question that if the definition of an insured under the policy’s more restrictive UM provisions controls the outcome of this controversy, then these guest passengers would not be covered. But those provisions are not dispositive in this case. Imperial Fire’s argument is that these guest passengers are neither covered under the policy’s UM provisions, which is uncontested, nor under | sthe policy’s liability provisions, which is contested. Thus, the dissent of JUDGE BAGNERIS, in my view, somewhat misses the mark in relying upon the policy’s UM definition to exclude these guest passengers from coverage or, more importantly, to restrict UM coverage because the Louisiana Supreme Court “has already determined that an insurance company may not impose coverage limitations that are more restrictive than the coverage implicitly required by a state uninsured motorist statute.” Jones v. Henry, 542 So.2d 507, 509 (La.1989), citing to Breaux v. Government Emp. Ins. Co., 369 So.2d 1335 (La.1979). See also Bond v. Commercial Union Assur. Co., 407 So.2d 401, 409 (La.1981) (on rehearing) (noting that because the principal elements of UM coverage are prescribed by law, “[a]ny clause in an insurance contract in derogation of the mandatory requirements set forth in the statute is invalid insofar as it conflicts with the law.”)

Insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume unless there is a conflict with statutory provisions or public policy. See Louisiana Ins. Guar. Ass’n. v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 680 So.2d 759, 763. The dissent’s position does not consider that Imperial Fire may not limit its UM responsibility to its policy’s UM provisions when they conflict with the requirement of statute or public policy.

The majority opinion, however, correctly looks to the definition of the liability insureds for a determination whether the plaintiffs are protected by the UM coverage while using the covered vehicle.

Ji.

While the majority opinion does reject the argument that the policy’s UM coverage provisions can be more restrictive than the legal mandate of UM coverage for those insured under the policy’s liability provisions (who are using the covered vehicle), the majority opinion does not rest on the proposition that the law in effect at the time of this motor vehicle accident mandated UM coverage to guest passengers, as the dissent of Judge Tobias suggests.

“Parties are free to contract for any object that is lawful, possible, and determined or determinable.” La. Civil Code art. 1971. There is no question that at the time of this accident an insurance policy could have restricted its liability coverage to only persons operating the covered vehicle. See Taylor v. Rowell, 98-2865 (La.5/18/99), 736 So.2d 812.

In Taylor v. Rowell, the rental car agency’s insuring agreement restricted liability coverage to authorized operators and did not provide the rejection of UM coverage, which was not contractually provided. Id. at 815. There were two issues which arose from the insuring agreement: whether UM coverage was provided as a matter of law to the persons covered by liability insurance (i.e., the authorized operators) and, if so, whether it also extended to guest passengers. Id. at 817-818. The Supreme Court decided that, in the absence of a valid rejection, “rental car agencies are required to provide uninsured motorist coverage to insureds under the rental agreement.” Id. at 818. But, the Supreme Court further decided that “[tjhis mandatory UM coverage does not extend to guest passengers in the rental vehicle unless they are covered as insureds under the rental agreement. Id. (emphasis added).

|fiThus, Taylor v. Rowell does not mandate as a matter of public policy the extension of UM coverage to guest passengers who are not insureds. And the majority opinion does not rest on such premise. Thus, had this policy provided that liability coverage was restricted to a circumstance “arising from the operation of the covered vehicle,” then it would be true that these guest passengers would not be insureds and thus not entitled by operation of law to UM protection. But, of course, that is not what this policy provided; it more broadly provided protection to circumstances “arising from the use of the covered vehicle.” The “unless” proviso of Taylor v. Rowell controls because these guest passengers were contractually included as liability insureds.

8

The particular policy provision requiring that an accident arise out of the use of the automobile is no stranger to Louisiana courts. It, or a similar version, not only routinely and generally appears in automobile liability policies to provide for coverage, but is often found in general liability policies to provide for exclusion of coverage.

The third circuit has on two occasions, for example, considered the policy liability provision “using” to apply to guest passengers such that UM coverage would have been extended; the third circuit found that an “occupant” is “using” the vehicle. See Stunkard v. Langlinais, 97-1006 (La.App. 3 Cir. 2/4/98), 708 So.2d 1117, 1120, and Stewart v. Robinson, 521 So.2d 1241, 1245 (La.App. 3rd Cir.1988). Notably, in Stun-kard, because the guest passenger was occupying or using a covered vehicle, UM coverage was afforded, but in Stewart, even though the guest passenger was using the vehicle, UM coverage was denied only because the |fivehicle which was occupied was not a covered vehicle for liability coverage. See discussion in Part 1, ante.

“The issue of whether an accident arises out of the use of a vehicle has been much litigated.” Shelby McKenzie and Alston Johnson, III, La. Civil L. Treatise, Insurance Law & Practice § 117 (3d ed.). The commentators illustrate their point by discussing, among other cases, Cagle v. Playland Amusement, Inc., 202 So.2d 396, 401 (La.App. 4th Cir.1967), and Speziale v. Kohnke, 194 So.2d 485 (La.App. 4th Cir. 1967). In Cagle this court found a security guard’s accidental shooting of another person to be “arising out of use” of a vehicle because the guard was using his gun to break the ear’s window in an attempt to help the victim gain entry to the car. There, our court used the “reasonable interpretation” standard it established earlier that year in Speziale, reasoning that if injury caused by closing a door arose out of the use of the vehicle, then injury caused by attempting entry into a vehicle should also be seen to arise out of the use of the vehicle. Id. In Speziale this court found that injuries resulting from striking people with fireworks that were thrown out of a moving vehicle were not injuries “arising out of the use” of that vehicle. 194 So.2d at 487-88. Concerning interpretation of the phrase “arising out of,” this court stated that the phrase should not be read so narrowly as to mean “directly caused by the automobile itself,” nor should it be read so broadly as meaning “while using.” Id. at 487. The fact that the injury was caused by a “voluntary, deliberate act on the part of the automobile passenger ... along with the entire set of circumstances, remove[d] the con-nexity of the incident with the use of an automobile to the realm of insignificance.” Id.

These kinds of unusual, perhaps even rare, factual situations, however, are not present here. This is an ordinary motor vehicle accident in which the innocent guest passengers are simply riding in (i.e. using) the covered vehicle. Their use of |7the covered vehicle is about as ordinary and mundane as the primary use of any vehicle — a means of conveyance from one place to another.

Until the first circuit’s split decision in Batiste v. Dunn, there was not a single published court decision which interpreted the particular policy language of this policy to exclude guest passengers from UM protection because they were simply occupying a covered vehicle conveying them from one place to another. The majority opinion, and not the majority opinion in Batiste v. Dunn, has correctly applied the legal precepts for interpretation of this contract of insurance. An insurance policy as a nominate contract is subject to the general principles concerning contracts set forth in the Civil Code and to some special rules “when those rules modify, complement, or depart” from the more general codal articles. See La. Civil Code arts. 1914 — 1916; La. R.S. 22:881; Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580.

Our civilian code further addresses contract interpretation. La. Civil Code art. 2051 states: “Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include.” “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. Civil Code ART. 2046; see also Crabtree v. State Farm Ins. Co., 93-0509 (La.2/28/94), 632 So.2d 736, 741 (stating: “An insurance policy should not be interpreted in an unreasonable or 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.”).

The strained interpretations are the ones which assert that a passenger being conveyed in a covered vehicle is not “using” the vehicle or that his injuries |ssustained such as those in this case do not arise of his use of the covered vehicle. Thus, when the wording is clear, the court lacks authority to alter or change the terms of the policy under the guise of interpretation. See Sher v. Lafayette Ins. Co., 07-2441, p. 5 (La.4/8/08), 988 So.2d 186, 192-93; Louisiana Ins. Guar. Ass’n, supra, 93-0911 p. 5, 630 So.2d at 763.

4

The Supreme Court in its remand instructions directed that we consider what, if any, effect the 2009 amendment to La. R.S. 22:1282 may have on this decision. The majority opinion succinctly stated that it had no effect. Thus, the majority opinion properly did not explore the meaning and effect of the amendment.

After the dates of the issuance of Imperial Fire’s policy and of the accident, La. R.S. 22:1282 was amended by inserting only the italicized language so that it now reads:

No motor vehicle liability insurance policy nor any uninsured motorist coverage for bodily injury shall limit the coverage of, or the amount that can be recovered by, the named insured, or the spouse or other family member of the named insured, or express or implied permissive users, for whom the policy provides coverage, to any amount less than the highest policy limit provided in the policy for the respective coverage or potential recovery. Any recovery is limited to damages actually sustained. Any provision of a motor vehicle insurance policy issued in, or for delivery in, the state of Louisiana that is not in accord with this Section is contrary to the public policy of this state and shall be null, void, and unenforceable.

In my view, the insertion of the language “or express or implied permissive users” calls into question the post-amendment authoritative viability of Taylor v. Rowell, supra, Lindsey v. Colonial Lloyd’s Ins. Co., 595 So.2d 606 (La.1992), and Blackburn v. National Union Fire Ins. Co. of Pittsburgh, 00-2668 (La.4/3/01), 784 So.2d 687.

|9The amendment expands minimum mandatory UM protection from named insureds along with the spouse and family members to all permitted users.

The 2009 amendment is an explicit statement of public policy. But, because the statute as substantively amended would seem to require an insurer to provide UM coverage to any permissive user of the covered vehicle regardless of the policy’s provisions regarding liability insureds, its retroactive application might facially appear to violate Article I, § 10, Clause 1 of the Constitution of the United States, which prohibits states from passing any “Law Impairing the Obligation of Contracts.” See Northshore Cycles, Inc. v. Yamaha Motor Corp., U.S.A., 919 F.2d 1041, 1042-43 (C.A.5, 1990). See also La. Const, art. I, § 23 (“No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.”)

Nevertheless, even if the amended version of § 1282 is not applicable to the facts of this case, because it represents public policy expressed by the legislature in this area, it can be considered by the courts. See Pinkney v. Progressive Specialty Ins. Co., 597 So.2d 1168, 1172 (La.App. 1st Cir.1992). And, in that regard, it can be stated assuredly that there is nothing whatsoever in the majority opinion which is “incompatible with the aim of the uninsured motorist insurance statute” or with the more recent declaration of public policy. See Carona v. State Farm Ins. Co., 458 So.2d 1275, 1278 (La.1984).

Because this contract of insurance, as properly interpreted and applied, already comports with the Lawmaker’s public policy, we properly have not expressed an opinion as to whether a policy with different and more restrictive coverage language would be enforceable as against public policy.

5

Because Imperial Fire had not established on its motion for summary judgment that these plaintiffs were not insureds under the liability provisions of this policy, or that they were not using or occupying an insured vehicle, the trial | mjudge was correct to grant the motion for new trial because the summary judgment is “clearly contrary to the law and the evidence.” LA. C.C.P. ART. 1972(1).

I, therefore, concur in our affirming the trial court’s ruling.

ARMSTRONG, C.J.,

dissents.

hi respectfully dissent. I agree with the position taken by Judge Bagneris in the instant case.

JONES, J.,

dissents.

hi respectfully dissent for the reasons assigned by Judge Bagneris.

BAGNERIS, J.,

dissents with reason.

hAs lead writer of Knight V. Edwards, 10-1474 (La.App. 4 Cir. 1/7/11) (unpub.), writ denied, 11-0245 (La.3/4/11), 58 So.3d 479, I respectfully dissent with the majority opinion. I find that in both cases (Knight and the instant matter), a genuine issue of material fact does not exist and I would grant writs and reverse the district court’s denial of Imperial’s motion for partial summary judgment.

The extent of coverage is determined from the intent of the parties as reflected by the words of the insurance policy. Led-better v. Concord Gen. Corp., 95-0809 (La.1/6/96), 665 So.2d 1166. The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the insured and insurer as reflected by the words in the policy. Id. Moreover, when the words of an insurance 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. 201.6.

In Louisiana, an insurer may limit liability and impose reasonable restrictions upon its policy obligations provided that such limitations do not conflict with statutory provisions or public policy. Bonin v. Westport Ins. Corp., 2005-0886, p. 5 (La.5/17/06), 930 So.2d 906, 911. In this rationale to the case at [2bar, I find that the definition of “insured person” in the Imperial policy does not violate the Louisiana Uninsured Motorist Statute.

The Uninsured Motorist Statute found at La. R.S. 22:1295 provides in pertinent part:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (l)(a)(ii) of this Section.

The clear language of Imperial’s policy only classifies an insured person as a person residing in the same household as the person listed on the declarations page.

Further, in Howell v. Balboa Ins. Co., 564 So.2d 298 (La.1990), the Louisiana Supreme Court held:

[T]hat UM coverage attaches to the person of the insured, not the vehicle, and that any provision of UM coverage purporting to limit insured status to instances involving a relationship to an insured vehicle contravenes LSA-R.S. 22:1406(D). In other words, any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underin-sured motorist.

Id. at 801-302.

Both the liability portion and the uninsured motorist portion of the Imperial policy present two distinct definitions of “insured persons.” I find that Imperial’s | o,provisions limited insurance to “insured persons” under the uninsured/underin-sured motorist provisions of its policy to those who resided in the same household and were blood related to the named insured. Because uninsured motorist protection attaches to the person, plaintiffs can still pursue their claims via their personal uninsured/underinsured policies.

I also chose to follow the legal analysis of our cohorts in the First Circuit in its reasoning in Batiste v. Dunn, 10-1812 (La. App. 1 Cir. 6/10/11), 68 So.3d 673 and agree that guest passengers do not fall within the definition of “insured persons”.

I respectfully dissent from the majority in this matter presented en banc.

LOVE, J.,

dissents and assigns reasons.

hi respectfully dissent for the reasons assigned by Judge Tobias.

TOBIAS, J.,

dissents and assigns Reasons.

hi respectfully dissent. I am constrained to follow the Louisiana Supreme Court’s mandates in Magnon v. Collins, 98-2822, pp. 5-6 (La.7/7/99), 739 So.2d 191, 196; Howell v. Balboa Ins. Co., 564 So.2d 298, 301-02 (La.1990); and Taylor v. Ro-well, 98-2865, p. 6 (La.5/18/99), 736 So.2d 812, 817, all of which |aby clear analogy are applicable to the case now before us. The First Circuit’s majority decision in Batiste v. Dunn, 10-1812 (La.App. 1 Cir. 6/10/11), 68 So.3d 673, embraces Magnon and Howell and implicitly recognizes Taylor, albeit Louisiana’s strong public policy favoring uninsured/underinsured motorist (“UN/UIM”) coverage. If an insured may reject UM/UIM coverage, it follows that an insurer can define who is and who is not covered under that UM/UIM coverage, provided that any such restriction on coverage does not conflict with positive state law.

We now turn to the question of whether this UM coverage applies only to insureds or whether it extends to guest passengers in the rented vehicle. La.Rev.Stat. Ann. 22:1406(D)(1)(a) mandates UM coverage for the "protection of persons insured” under automobile liability policies in this state. We have previously held that La.Rev.Stat. Ann. 22:1406 requires that insurance policies provide uninsured motorist coverage only for persons insured under the policy. Seaton v. Kelly, 339 So.2d 731, 734. In Howell v. Balboa Insurance Co., 564 So.2d 298 (La.1990), we held that “any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underinsured motorist.” Although our decision in Howell addressed the issue of whether UM coverage for an insured is limited to instances involving a relationship to an insured vehicle, the holding is nonetheless applicable to the instant situation. From both a statutory and jurisprudential standpoint, an insurer is only required to extend UM coverage to those persons who are insured under the liability policy. The Courts of Appeal have adhered to this line of jurisprudence requiring a person seeking to recover under UM coverage to be an insured under the policy.

      . In the Bernard case, the trial court initially granted Imperial's motion for summary judgment. However, the trial court granted the plaintiffs' (the guest passengers’) motion for new trial, which had the same effect as denying Imperial’s motion.

      . The definition of an "insured” under the UM/UIM portion of the policy is as follows:
      "Insured person” and "insured persons” mean:
      1. you or a person residing in the same household as you, and related to you by blood, marriage, or adoption, including a ward, stepchild, or foster child; and
      2. any person who is entitled to recover damages covered by this Part C because of bodily injury sustained by a person described in 1 above.
      The term “you” is defined to mean "[t]he person shown as the named insured on the Declaration’s Page, and that person’s spouse if residing in the same household and holding a valid driver’s license.”

      . Procedurally, the Batiste case is distinguishable from the Bernard and the Knight cases in that it involved an appeal from a judgment granting Imperial’s motion for summary judgment.

      . An "omnibus clause” in an insurance policy broadens the term "insured” to include "not only the named insured, but also any other person while using the named insured’s vehicle, provided the use of the vehicle is with the named insured’s permission or consent.” Collins v. Farris, 03-1991, p. 5 (La.App. 1 Cir. 11/3/04), 897 So.2d 634, 639.

      . The amendment added "express or implied permissive users” to the statute. As amended, the statute provides:
      No motor vehicle liability insurance policy nor any uninsured motorist coverage for bodily injury shall limit the coverage of, or the amount that can be recovered by, the named insured, or the spouse or other family member of the named insured, or express or implied permissive users, for whom the policy provides coverage, to any amount less than the highest policy limit provided in the policy for the respective coverage or potential recovery. Any recovery is limited to damages actually sustained. Any provision of a motor vehicle insurance policy issued in, or for delivery in, the state of Louisiana that is not in accord with this Section is contrary to the public policy of this state and shall be null, void, and unenforceable.
      La. R.S. 22:1282 (emphasis supplied). The underlying accidents in the Bernard and the Knight cases occurred before the effective date of the amendment to the statute. Because the amendment was substantive and not made retroactive, it is not applicable to either case.

      . See study of Insurance Research Council, Uninsured Motorists, 2011 Edition (www. ircweb.org).

      . Conversely, a person not insured for liability purposes is not an insured for UM purposes. See Filipski v. Imperial Fire & Cas. Ins. Co., 09-1013, p. 5 (La. 12/1/09), 25 So.3d 742, 745 (“This jurisprudence leads to the inescapable conclusion that a person who is not insured for liability purposes cannot be considered an insured for UM purposes.”)

      . These injured plaintiffs could not recover, of course, under the UM coverage if they were using a vehicle other than the covered vehicle. This is what distinguishes our factual situation from that of, for example, Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577, and from Seaton v. Kelly, 339 So.2d 731 (La. 1976). A policy’s UM definitions control who is covered when using a vehicle not covered by its liability provisions. That is the situation when the policy follows the person and not the insured vehicle.

      . “Policies frequently define ‘use’ to include the loading and unloading of an automobile. Conversely, many other liability policies, including homeowners policies and commercial general liability policies, expressly exclude coverage for liability 'arising out of the ... use ...' of vehicles.” Shelby McKenzie and Alston Johnson, III, La. Civil L. Treatise, Insurance Law & Practice § 65 (3d ed.).

      . See, however, Treadaway v. Progressive Northwestern Ins., 97-2356 (La.App. 4 Cir. 9/9/98), 720 So.2d 693, a divided panel in which a named insured was precluded from UM coverage because the covered vehicle was being operated by his wife, who was an excluded driver under the policy.

      . The Court said:
      Although Louisiana's public policy strongly favors UM coverage and a liberal construction of the UM statute, it is well-settled that a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy.... [A]ny determination of whether a plaintiff is entitled to UM benefits must follow a determination that the plaintiff is an insured for purposes of auto liability insurance coverage.

      . The Court stated:
      ... UM coverage attaches to the person of the insured, not the vehicle, and that provision of UM coverage purporting to limit insured status to instances involving a relationship to an insured vehicle contravenes LSA-R.S. 22:1406(D). In other words, any person who enjoys the status of the insured under a Louisiana motor vehicle liability policy which includes uninsured/ underin-sured motorist coverage enjoys coverage protection simply be reason of having sustained injuries by an uninsured/underin-sured motorist. [Emphasis in original.]

      . The Court said:


author: HILLARY J. CRAIN,

text:
    LOUISIANA-I GAMING v. Anthony ROGERS.
    No. 10-CA-1050.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.
    Rehearing Denied Nov. 17, 2011.
    John H. Musser, V, Emily Stevens Hardin, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    Isaac H. Soileau, Jr., Ryan A. Jurkovic, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   HILLARY J. CRAIN,

Judge Pro Tem.

12This is an appeal by Anthony Rogers, a workers’ compensation claimant, from a summary judgment disqualifying him from receiving compensation benefits on grounds that he violated La. R.S. 23:1208 by -willfully making false statements and misrepresentations in order to obtain those benefits. He asserts that this was error because there are material issues in dispute. Louisiana A-l Gaming, a Partnership in Commendam D/B/A Boomtown Belle Casino, his employer, has answered the appeal urging that the judgment improperly failed to award it restitution, investigative costs, penalties, interest, and attorney fees. For the following reasons we affirm the judgment disqualifying claimant from receiving benefits. We remand the matter to the Office of Worker’s Compensation for consideration of Louisiana A-l Gaming’s claims for restitution and other costs sought in its answer to the appeal.

The basic facts are as follows. Claimant was employed by A-l in 2006 as a table games supervisor. On April 15, 2009, claimant sat on an office chair with a | -¡hydraulic mechanism. The mechanism failed and the seat abruptly lowered. There is no dispute as to this occurrence as it was witnessed by a co-worker and also filmed on a security camera. Claimant asserted that he suffered injuries to his back and knee in the incident. He was treated by several physicians over the next few months and eventually back surgery was recommended. At that point, the employer contested the claim and this litigation ensued. After conducting discovery, the employer moved for summary judgment urging that claimant had violated La. R.S. 23:1208, which pertinently provides that:

A. It shall be unlawful for any person, for the purpose of obtaining ... any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation....
E. Any employee violating this Section shall, upon determination by a Workers’ Compensation Judge, forfeit any right to compensation benefits under this Chapter.

This motion was granted. The employer also sought restitution of benefits paid, plus attorney fees, penalties, interest and investigative costs. The judgment is silent as to these items. Claimant now appeals the forfeiture of benefits, and the employer has answered the appeal seeking restitution and other costs.

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 mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. A claim |4under La. R.S. 23:1208 is appropriate for resolution by way of the summary judgment procedure. Caye v. Slidell Travel Center, 2002-0208 (La.App. 1 Cir. 12/31/02), 837 So.2d 144, writ denied, 2003-0338 (La.4/21/03), 841 So.2d 797. For purposes of summary judgment in the forfeiture context there must be no genuine issue as to 1) a false statement or representation, 2) made willfully, 3) for the purpose of obtaining benefits. Caye, supra. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration, ie. whether there is any issue of material fact, and whether the mover is entitled to judgment as a matter of law. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.1l/28/01), 800 So.2d 783.

When claimant was first employed by A-l, he filled out a Second Injury Fund Questionnaire and represented that he had never sought medical treatment for an injury, an accident or pain involving his upper or lower back. During discovery in proceedings before the Workers’ Compensation Judge he was asked in interrogatories to list his treating physicians during the past ten years. That list excluded at least four doctors who had treated him for back pains since 2006. He also stated that he had experienced back soreness in the past, which he self-treated with non-steroidal anti-inflammatories. The only back pain for which he admitted having received medical treatment was in conjunction with an automobile accident in 1989. In deposition he was asked again about his back and reiterated that to the best of his knowledge the only treatment for his low back was that of 1989. He said that he never had any MRIs of the back or any epidural injections. He also denied any prior pain radiating into his legs.

His medical records, however, are replete with medical treatments for back pain, sometimes radiating into his legs, and including MRIs and injections, all dating back to at least 1999. There are some 35 medical reports over this period | ⅞documenting this ongoing condition. As late as 2007 he was treated with an epidural steroid injection for back pain after undergoing an MRI, and between 2007 and 2009, he underwent pain management treatments for back and shoulder pains. All of these treatments related to the same area of the back for which he is claiming disability as a result of the accident with A-l. Considering the overwhelming evidence of claimant’s prior back problems, it is this court’s opinion that reasonable people could only conclude that he willfully made misrepresentations in order to obtain workers’ compensation benefits from his present employer. See Stephens v. Southern Sweeping Services, 03-826 (La. App. 5 Cir. 11/25/03), 862 So.2d 197; Davis v. AMS Tube Corp., 2002-2427 (La.App. 1 Cir. 12/31/03), 868 So.2d 141. He thus forfeited any right to those benefits by operation of La. R.S. 23:1208.

Claimant asserts to the contrary that there are genuine issues of material fact, and submitted an affidavit purporting to set forth these issues. The substance of the affidavit is that he had undergone shoulder surgery in the past and he assumed that the back pains were related to that procedure, rather than being independent problems. This document simply does not raise issues which a reasonable person would find germane to the question of whether he made misrepresentations as to prior medical treatments for back pain. As noted above, he denied receiving treatments for his back, including undergoing MRIs and epidural injections, for back pain sometimes radiating into his extremities. The employer documented over 35 such treatments and procedures over a ten year period relating only to back problems and having only tangential, if any, relationship to the shoulder injury. Considering all of the evidence of record, the affidavit simply does not raise any issue which would require resolution by a trial.

|ñThe final issue is whether the employer is entitled to restitution and related costs. Section D of La. R.S. 23:1208 provides that the Workers’ Compensation judge “may” order restitution when a claimant has violated Section A of the statute. When a judgment is silent as to an element claimed by a party, it is usually interpreted on appeal as being a denial of that element. Oreman v. Oreman, 07-296 (La.App. 5 Cir. 10/30/07), 971 So.2d 1149, writ denied, 08-0128 (La.3/12/08), 977 So.2d 919. However, the record indicates that when the judgment was rendered it did not deal with restitution because the parties apparently agreed to take that matter up in a later proceeding, or to forego the claim in order to make this matter appealable. While this issue is far from clear in the record, it is this court’s opinion that the case should be remanded to the Office of Workers’ Compensation for further consideration of whether, in the Workers’ Compensation Judge’s discretion, restitution should be awarded.

For the foregoing reasons the judgment disqualifying claimant from receiving workers’ compensation benefits is affirmed. The case is remanded to the Office of Workers’ Compensation for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED