author: STEWART, J. BROWN, Chief Judge,

text:
    Edward E. LLOYD, Individually and as the Natural Tutor of Edward Caldwell, a Minor, Cheryl Caldwell, Kimberly Jackson, Eldrick Caldwell, and Roy Caldwell, Plaintiffs v. SHADY LAKE NURSING HOME, INC., XYZ Insurance Company, Louisiana Nursing Home Association Malpractice and General Liability Trust, Louisiana Nursing Home Association of Professional and General Liability Trust, and The Estate of William P. Dimaggio, Defendants.
    No. 45,180-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 2010.

      Joseph J. Bailey, Jeremy C. Cedars, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant-Applicant, Shady Lake Nursing Home, Inc.
    Charles Dean Jones, for Plaintiffs-Respondents.
    Before BROWN, STEWART, and LOLLEY, JJ.
   STEWART, J.

1 t Plaintiffs, the husband and children of Margaret Caldwell, filed a wrongful death action against her employer, Shady Lake Nursing Home, Inc. (“Shady Lake”). Cross motions for summary judgment filed by the parties raised the issue of whether plaintiffs’ sole and exclusive remedy was under the Louisiana Workers’ Compensation Act (“LWCA”) or whether plaintiffs could pursue their tort action. The trial court denied both motions. At Shady Lake’s request, this court exercised its supervisory power and agreed to review the denial of its motion for summary judgment. For the following reasons, we affirm.

FACTS

On September 19, 2007, Margaret Caldwell was working at Shady Lake Nursing Home as a certified nursing assistant (“CNA”). She was 54 years old and had worked for Shady Lake for approximately 20 years. She was morbidly obese and had high blood pressure. Caldwell was preparing to mop the floor near a nurse’s station when she saw William DiMaggio, a patient at Shady Lake, standing next to a snack cart located near the station. Caldwell instructed DiMaggio to return to his room. DiMaggio became angry and attacked her, striking her in the face. DiMaggio was quickly pulled away from her and returned to his room.

Immediately following the attack, Caldwell began having difficulty breathing and experienced elevated blood pressure levels. She was taken to |2East Carroll Parish Hospital and pronounced dead approximately one hour after being struck by DiMaggio.

An autopsy found the immediate causes of death to be hypertensive heart disease and coronary artery disease, with the underlying cause of death being a physical blow to the face. The death was ruled a homicide. DiMaggio was arrested and charged with manslaughter, but was later found to be mentally incompetent to stand trial and confined to the forensic division of a mental health institution. In oral argument to this court, the attorneys stated that DiMaggio had died.

Plaintiffs filed their wrongful death petition against Shady Lake, XYZ Insurance Company, and the Estate of William P. DiMaggio on February IB, 2008. The petition alleged liability on the part of Shady Lake under theories of negligence and intentional tort. As alleged in the petition, DiMaggio had been diagnosed as having impulse control disorder, dementia from a closed head injury, psychotic disorder associated with a closed head injury, and a history of chemical dependency and alcoholism prior to arriving at Shady Lake. His history was known to Shady Lake when it accepted DiMaggio as a patient. Plaintiffs alleged that it was foreseeable that nursing home employees would be subjected to fatal harm. They also alleged that Shady Lake exhibited an intentional disregard for decedent’s welfare and breached the duty of care owed to protect employees from violent attacks by mentally incapacitated patients.

| ^Plaintiffs filed a motion for partial summary judgment on April 30, 2009, asserting that there was no coverage under the LWCA because of the heightened burden of proof required for heart-related and perivascular injuries and therefore no tort immunity for the employer. Shady Lake filed a motion for summary judgment on September 2, 2009, requesting dismissal of plaintiffs’ tort claims against it. Shady Lake argued that there was no genuine issue of material fact as to whether Caldwell’s death was compensable under the LWCA and that its actions, even if proven, did not rise to the level of an intentional act.

The trial court identified the basic issues raised in the motions as whether plaintiffs’ claim is restricted to workers’ compensation or whether they can pursue a tort action for damages. The trial court noted that DiMaggio’s act of striking Caldwell was indisputably an intentional act. While the trial court recognized that DiMaggio’s intent would not transfer to Shady Lake for purposes of finding an intentional act on its part, it also recognized issues on the record as to whether Shady Lake might be liable under an intentional tort or negligence theory for its own actions in bringing about the incident, namely, in accepting a patient predisposed to commit a violent act and in failing to provide adequate security. In denying Shady Lake’s motion for summary judgment, the trial court apparently found a genuine issue as to whether Caldwell’s heart-related or perivascular injury was a personal injury by accident arising out of and in the course of her employment such that it would be compensable under workers’ ^compensation. The trial court’s denial of both motions did not resolve whether this suit belongs in workers’ compensation or general tort.

This court granted Shady Lake’s timely application for supervisory writs to review the trial court’s denial of its motion for summary judgment.

DISCUSSION

Shady Lake presents three issues for review. The first two involve the application of La. R.S. 23:1021(8) and ask whether the LWCA standard for heart-related and perivascular injury precludes summary judgment where Caldwell’s cardiovascular incident resulted from an otherwise com-pensable work-related injury and where she experienced chest pain and shortness of breath immediately following the attack by DiMaggio. The third issue is whether there is any evidence of an intentional act by Shady Lake that would deny it statutory immunity under the LWCA.

Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Yokum v. 615 Bourbon St., L.L.C., 2007-1785 (La.2/26/08), 977 So.2d 859. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966; Hines v. Garrett, 2004-0806 (La.06/25/04), 876 So.2d 764. A genuine issue of material fact 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.

Except for intentional acts, the rights and remedies afforded by workers’ compensation provide the exclusive means for redressing workplace injuries or compen-sable sickness or disease. La. R.S. 23:1032(A)(l)(a). Generally, if an employee receives a personal injury by an accident arising out of and in the course of his employment, the employer is required to pay compensation benefits. La. R.S. 23:1031(A); Gooden v. B E & K Const., 33,457 (La.App.2d Cir.6/23/00), 764 So.2d 1206. An accident is defined by La. R.S. 23:1021(1) as follows:

an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

The terms “injury” and “personal injuries” are defined as including only injuries caused by violence to the body’s physical structure and such disease or infections that naturally result therefrom. La. R.S. 23:1021(8)(a). These terms shall in no case be construed to include any other form of disease or derangement however caused or contracted. Id.

Of specific relevance to this matter is La. R.S. 23:1021(8)(e), which provides:

(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter | ^unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

For a heart-related or perivascular injury to be compensable under the LWCA, both elements must be proven by clear and convincing evidence. Gooden, supra; Ellis v. Normal Life of Louisiana, 93-1009 (LaApp. 5th Cir.5/31/04), 638 So.2d 422. La. R.S. 23:1021(8)(e) requires that the physical work stress be extraordinary and unusual in comparison to that experienced by the average employee in the same occupation. This requirement relates to the work actually being performed at the time of the injury or death. Gooden, supra.

Shady Lake argues that Caldwell’s death resulted from a compensable accident, namely, the attack by DiMaggio. To avoid application of La. R.S. 23:1021(8)(a), Shady Lake asserts that DiMaggio’s act of striking Caldwell should be considered an accident that aggravated her preexisting condition resulting in her stroke and heart attack. This argument overlooks the clear statutory language directing that a heart-related or perivascular death “shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable” unless clear and convincing evidence establishes that the two prongs of R.S. 23:1021(8)(a) are satisfied. For this reason, summary judgment is not proper on the basis that 17Caldwell’s heart-related death was merely the natural result of a compensable accident.

Shady Lake also argues that the facts satisfy the heightened standard under La. R.S. 23:1021(8)(a) for workers’ compensation coverage. However, there are genuine issues of fact as to whether it can be shown by clear and convincing evidence that Caldwell’s physical work stress was extraordinary and unusual in comparison to that experienced by the average CNA and whether such stress was the predominant and major cause of her death. There is no dispute that Caldwell was mopping when attacked. Nothing in the record shows that her regular job duties, particularly the work she was performing when attacked, involved unusual or extraordinary physical stress. The issue is whether the attack by DiMaggio can be considered extraordinary and unusual physical work stress and whether the attack, rather than some other source of stress or her preexisting conditions, was the predominant and major cause of her death. On this point, there is conflicting evidence that precludes summary judgment.

The evidence shows that Caldwell had preexisting conditions that contributed to her death. These included an enlarged heart, coronary artery disease, elevated cholesterol, and morbid obesity. Dr. Steven Hayne, the pathologist who conducted the autopsy, determined the immediate cause of death to be hypertensive heart disease and coronary artery disease. He referred to the blow to her face by DiMaggio as an underlying cause of death and a precipitating event. He explained in his deposition that the excitement caused by the blow, rather than the physical injury from it, | «burdened Caldwell’s already significant cardiovascular disease and was part of a cascade of events that led to her death. The reference to the blow as a precipitating event does not equate to the conclusion that it was the predominant or major cause of her heart-related death.

Moreover, witnesses offered conflicting testimony on whether the incident was extraordinary or unusual. When questioned about whether the incident involving DiMaggio would be considered unusual or extraordinary, Dr. Hayne opined that physical and verbal assaults occur in hospital settings all the time. Shady Lake’s medical director Dr. Donovan Bailey, its administrator Don Temple, and Chasidy Spencer, a nurse on duty at the time of the incident, described DiMaggio’s attack as unusual. However, Spencer admitted that patients had struck CNAs and nurses in the past, and Temple also indicated that it was not uncommon for older residents to hit, bite, or scratch staff. The deposition testimony of Annie Washington and Patricia Williams, both employees of Shady Lake, indicated that DiMaggio was known to be combative and aggressive. Temple described him as violent.

In summation, there is testimony indicating both that the incident was unusual and that it would not necessarily be unusual for residents to strike out at the staff. There is also evidence that the incident was a precipitating event to Caldwell’s death but that she suffered from serious preexisting conditions which appear directly related to the immediate causes of her death, namely, hypertensive heart disease and coronary artery disease. Considering the totality of the summary judgment evidence, we find that reasonable persons could disagree as to whether Caldwell experienced ^extraordinary or unusual physical work stress and whether that stress, rather than her preexisting conditions, was the predominant and major cause of her heart-related death. These are factual matters that present a genuine issue for trial.

When an employee is not entitled to a remedy under the LWCA, then there is no immunity in tort for the employer. O’Regan v. Preferred Enterprises, Inc., 1998-1602 (La.3/17/00), 758 So.2d 124. In O’Regan, supra, the Louisiana Supreme Court addressed whether an employee who has a disease that is presumed to be non-occupational is barred by the LWCA’s exclusivity provisions from pursuing a tort remedy against her employer. The plaintiff, who had been employed at a laundry service for four months, claimed that exposure to chemicals caused her to develop myelodysplasia. She initially sought compensation benefits. Because she had been employed for less than 12 months, she had to overcome the presumption that the disease was not contracted in the course of and arising out of her employment. La. R.S. 23:1031.1(D). To overcome the presumption, she had to prove her claim by an “overwhelming preponderance of the evidence.” She failed to do so, and subsequently filed a tort suit against her former employer asserting claims of negligence and intentional tort. On a motion for summary judgment on the negligence claim, the employer argued that O’Regan’s sole remedy was workers’ | ^compensation. Ultimately, the supreme court allowed the plaintiff to proceed with her tort claim.

The supreme court’s decision was based on the legislatively created presumption in R.S. 23:1031.1(D), which the court recognized as creating a category of employees “who are otherwise eliminated from the benefits” of the LWCA. Id., 1998-1602, p. 12, 758 So.2d at 132; La. R.S. 23:1031(A). The court further reasoned that if the employee fails to meet the heightened burden of proof to obtain compensation benefits, then the disease remains non-oecupa-tional. The employee is eliminated from the protections of the LWCA and may pursue other remedies against the employer.

O’Regan, supra, recognized that the legislature crafted a heightened burden of proof for certain categories, including mental injuries and heart-related and peri-vascular injuries, without also imposing a non-occupational presumption for these categories. See La. R.S. 23:1021(8). As to these categories, the court did not address whether an employee who could not meet the heightened burden of proving the causal connection between his injury and employment would have a tort remedy available. The O’Regan court based its decision solely on the statutory presumption. Id., see footnote 13. However, Justice Lemmon wrote in concurrence that by raising the burden of proof for certain employees, the Legislature eliminated their compensation remedy and thereby subjected the employer to tort liability. He reasoned that an employee who could prove his claim for compensation by a preponderance of the evidence, but not meet the overwhelming preponderance / clear and convincing standard, is denied a remedy because |nof the heightened burden and is therefore entitled to pursue a remedy in tort. We agree -with this reasoning.

Other appellate courts have recognized that the noncompensable nature of a heart-related injury due to the heightened burden of proof under La. R.S. 23:1021(8)(e) entitles an employee to pursue a tort action against his employer. See Tomas v. Conoco Food Distributors, 97-426 (La.App. 3d Cir.10/22/97), 702 So.2d 944; Ellis v. Normal Life of Louisiana, supra; Hunt v. Milton J. Womack, Inc., 616 So.2d 759 (La.App. 1st Cir.1993), writ denied, 623 So.2d 1309 (La.1993). See also Simmons v. Baumer Foods, Inc., 2009-1739 (La.App. 4th Cir.4/28/2010), 2010 WL 1727845, — So.3d — .

In Ellis, supra, a staff worker at a group home for adults with developmental disabilities had a fatal heart attack while at work. Her family filed a wrongful death action. The trial court granted the employer’s motion for summary judgment on the grounds that there was no evidence of an intentional tort. The appellate court reversed. The court found that the plaintiffs’ petition stated claims for both an intentional tort and negligence based on allegations that the employer either knew or should have known that the home was understaffed and yet required Ellis, who was diabetic and obese, to work under stressful conditions without adequate assistance. The court further found that the allegations did not satisfy the clear and convincing standard for heart-related injuries under the LWCA. Because Ellis’s death resulted from a non-compensable disease, she was entitled to bring a tort action against her employer.

Lain the matter before this court, the plaintiffs have asserted claims based on both intentional tort and negligence. If it is determined that the plaintiffs cannot meet the heightened burden of clear and convincing evidence under La. R.S. 23:1021(8)(e), then they are not bound by the exclusivity provisions of the LWCA and are not restricted to an intentional tort claim against Shady Lake.

Shady Lake asserts that the trial court has already determined that the intentional act exclusion set forth in La. R.S. 23:1032 does not apply inasmuch as DiMaggio’s intent does not transfer to Shady Lake. The trial court’s denial of the motions for summary judgment does not constitute a ruling on the plaintiffs’ intentional tort claim.

Intentional act under the workers’ compensation law means the same as intentional tort. White v. Monsanto Co., 585 So.2d 1205 (La.1991). The meaning of intent in the context of the exclusive remedy provision is that the defendant “either desires to bring about the physical results of his act, or believes they were substantially certain to follow from what he did.” Id., at 1208. Thus, intent refers to both consequences that are desired and those that are substantially certain to result from the defendant’s act. Id., citing Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981).

Shady Lake’s administrators testified that Mr. DiMaggio was known to be combative, to punch holes in walls, and frequently threatened to hit personnel. DiMaggio’s combative behavior, along with his psychotic condition, was well documented by Shady Lake staff, yet DiMaggio was [^approved for admission. In determining whether summary judgment is appropriate, jurisprudence provides that:

It is not the function of the trial court to determine or inquire into merits of issues raised, and the trial court may not weigh the conflicting evidence on a material fact. If evidence presented is subject to conflicting interpretations, summary judgment is not proper.

Federated Rural Elec. Ins. Corp. v. Gulf South Cable Inc., 2002-852 (La.App. 3d Cir.12/11/02), 833 So.2d 544. The pleadings, depositions, and other documents contained within the record show that there is a conflicting interpretation of facts thus creating a genuine issue of material fact as to whether Shady Lake is free from fault or liable for either its intentional act or negligence. Because more than one conclusion can be reached based on the record, summary judgment is inappropriate.

CONCLUSION

Based on the forgoing reasons, we affirm the trial court’s denial of Shady Lake’s motion for summary judgment. Costs are assessed against Shady Lake.

AFFIRMED.

BROWN, C.J., dissents with written reasons.

BROWN, Chief Judge,

dissents.

| ^though decedent was injured in a clearly identifiable accident occurring within the course and scope of her employment, plaintiffs, the husband and children of decedent, filed a tort action for wrongful death. Plaintiffs asked for a jury trial. Plaintiffs filed a motion for partial summary judgment on the question of liability. Defendant, Shady Lake Nursing Home Inc. (“Shady Lake”), also filed a motion for summary judgment. The facts were virtually undisputed. The issue argued in both motions was whether plaintiffs’ sole and exclusive remedy was under the Louisiana Workers’ Compensation Act (“LWCA”). Without resolving the workers’ compensation coverage question, the trial court denied both motions.

On September 19, 2007, Elizabeth Caldwell-Lloyd was working at Shady Lake Nursing Home as a certified nursing assistant when, at approximately 2:45 a.m., she was physically attacked by a patient, William DiMaggio. Immediately after being struck by DiMaggio, Mrs. Caldwell-Lloyd began having difficulty breathing and her blood pressure increased dramatically. She was then taken to East Carroll Parish Hospital and was pronounced dead at 8:56 a.m. — approximately one hour after being struck by DiMaggio.

In their presentation and argument to the trial court on the summary judgment motion, plaintiffs asserted the intentional act exclusion. The, trial court questioned, but did not decide, whether this issue should be determined by a jury. The trial court ruled that the mens rea of DiMaggio | adid not transfer to Shady Lake for the purpose of establishing an intentional act and that the argument that Shady Lake was “substantially certain” that such an assault by DiMaggio on Mrs. Caldwell-Lloyd would occur was “thin” and “a stretch.” Even so, the trial court denied both parties’ motions for summary judgment.

The Exclusivity Rule of Workers’ Compensation

Except for intentional acts, the rights and remedies afforded by the LWCA provide the exclusive means of redressing work place injuries. La. R.S. 23:1032. The LWCA represents a compromise in which the employer is responsible to pay legislatively fixed benefits regardless of fault. In exchange for accepting no fault responsibility, the employer is guaranteed immunity from lawsuits for tort damages arising out of the employment relationship, except for intentional torts. Thomas v. State Department of Transportation and Development, 27,203 (La.App.2d Cir.10/12/95), 662 So.2d 788, writ denied, 97-0745 (La.05/01/97), 693 So.2d 736. This compromise is the core of the workers’ compensation scheme. “The power to enact a Workmen’s Compensation Law reposes in the law-making body of the state. The amount of compensation, to whom due and payable, the limitations and restrictions within which it may be demanded, peculiarly address themselves to the lawmaking power....” Haynes v. Loffland Bros. Co., 215 La. 280, 40 So.2d 243, 291 (1949).

La. R.S. 23:1032 A(l)(a) provides in part:

Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this | ..¡Chapter, shall be exclusive of all other rights, remedies, and claims for damages.... (Emphasis added.)

Intentional Acts Exception

Plaintiffs’ presentation to this court, as well as the majority opinion, appears to have abandoned the intentional act argument or at least “sent it back down to the minor leagues.”

Tort immunity for the employer does not apply when the employee’s injuries are the result of an intentional act. La. R.S. 23:1032(B). The LWCA, however, was not intended to make the employer liable for the intentional acts of third parties who are not listed in the statute and not employees of the company. See Reeder v. Laks Corp., 555 So.2d 7 (La.App. 1st Cir.1989), writ denied, 559 So.2d 142 (La.1990). In Reeder, supra, the plaintiff was employed at a nursing care facility and was attacked by a mental patient of the facility. The appellate court rejected the plaintiffs argument that the facility was liable for the actions of the patient, holding that the allegations of fault against the defendant were “really negligent supervision and failure to provide a safe work place.” Id. at 10.

Plaintiffs argue that Shady Lake committed an intentional act by admitting DiMaggio to Shady Lake and failing to provide proper security and training for its employees. In order for an act to be intentional, the person who acts must either consciously desire the physical injury, whatever the likelihood of such a result happening, or know that the injury is substantially certain to follow from his conduct. Thus, intent has reference to a desire to cause physical injury. White v. Monsanto Co., 585 So.2d 1205 (La.1991).

|4Recovery for an accident that occurred because of unsafe working conditions is limited to workers’ compensation. Reeder, supra. See also Wilson v. State, Dept. of Health and Human Resources, 628 So.2d 1164 (La.App. 3d Cir.1993) (held that workers’ compensation was the exclusive remedy of a prison official who was intentionally stabbed by a prisoner).

In the present case, the facts are undisputed. No one at Shady Lake desired to afflict any injury or harm upon Mrs. Caldwell-Lloyd, a 20-year employee. Plaintiffs alleged numerous acts that they claim were intentional, but none meets the substantial certainty test for an intentional act. It was undisputed that DiMaggio, though exhibiting some outbursts, had never attacked a nurse or other patient prior to or after coming to Shady Lake. Further, DiMaggio’s treating physician, prior to DiMaggio’s arrival at Shady Lake, reported that his condition had improved since he started a new medication regimen and that his outbursts were very infrequent. DiMaggio was cleared for admission after an examination by Shady Lake medical personnel. It was not substantially certain or inevitable that DiMaggio would suddenly and violently attack Mrs. Caldwell-Lloyd, causing her death. At best, the danger was foreseeable but not substantially certain. Therefore, the intentional act exception does not apply.

Compensability of Heart-Related or Perivascular Injuries

Plaintiffs’ primary argument, which was adopted in the majority opinion, relates to a heightened burden of proof of causation. In O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.03/17/00), 758 So.2d 124, the Louisiana Supreme Court allowed the plaintiff to proceed with a tort claim [ ^against her employer after she had been denied benefits by the WCJ and the court of appeal. O’Regan was employed at a laundry service where she was exposed to certain chemicals that she claimed led her to develop myelodysplasia. Under the LWCA, O’Regan’s illness was presumed to be non-occupational because she had been working at her job for less than 12 months and she was required to overcome the presumption by an overwhelming preponderance of evidence. The supreme court noted that the Act itself presumed that the claim was not covered. If the claim is not covered under the Act, then there is no compensation remedy and a tort claim can be filed. O’Regan, supra.

In the present case, plaintiffs have asserted a wrongful death claim. Plaintiffs do not contend that there is no coverage under the compensation act but only that they cannot prove causation due to the heightened burden of proof (by clear and convincing evidence) required for heart-related and perivascular injuries as defined in La. R.S. 23:1021(8)(e).

The supreme court in O’Regan, supra, cautioned that a conceptual distinction must be made between injuries which do not come within the Act’s coverage provisions and injuries which are covered but for which no compensation is payable. The O'Regan court explained that its discussion of the case was based “solely upon the statutory presumption placing the employee outside of the Act.” Id. at 133. Further, the supreme court listed the statute governing heart-related and perivascu-lar injuries as an example | fiof a legislatively crafted higher burden of proof without a non-occupational presumption.

In the present case, plaintiffs filed suit in the civil district court, eschewing any attempt to pursue a remedy in workers’ compensation. In this case, the statute does not invoke a non-occupational presumption as was the case in O’Regan, supra.

If an employee receives a personal injury by an accident arising out of and in the course of her employment, the employer is required to pay compensation benefits. La. R.S. 23:1031(A); Gooden v. B E & K Construction, 33,457 (La.App.2d Cir.06/23/00), 764 So.2d 1206. An accident is defined by La. R.S. 23:1021(1) as follows:

[A]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

There is no dispute that when the attack occurred, Mrs. Caldwell-Lloyd was at work as a certified nursing assistant at Shady Lake Nursing Home. In the course of her work, she directed DiMaggio to return to his room. He then proceeded to physically attack her without warning. This was an accident, that is, an identifiable, physical event which directly produced at that time actual injury, a busted jaw, difficulty in breathing and elevated blood pressure. Within one hour Mrs. Caldwell-Lloyd was dead.

In Wilson, supra at 1167, Justice Knoll, then a judge on the Third Circuit and writing for the court, stated that “[djespite her physical disabilities which have further manifested themselves through the years, the | 7common thread of causation which runs throughout is the mental injury which Mrs. Wilson received when she was stabbed [by a prisoner].”

Whether by a preponderance or clear and convincing evidence the common thread of causation of Mrs. Caldwell-Lloyd’s heart/perivascular-related death is the beating she received arising out of and within the course and scope of her employment.

An employer takes a worker as he finds her, and a worker who is more susceptible to injury is entitled to no less protection under the LWCA than a healthy one. Harvey v. B E & K Construction, 30,825 (La.App.2d Cir.08/19/98), 716 So.2d 514. Plaintiffs point out that Mrs. Caldwell-Lloyd suffered from obesity, high blood pressure, and an enlarged heart. However, the pathologist testified that the battery was a precipitating event in the final common pathway. Courts have defined precipitate as “to cause to happen before expected.” Debona v. Pawn, 94-430 (La.App. 3d Cir.11/02/94), 649 So.2d 449, writ denied, 94-2878 (La.01/27/95), 650 So.2d 242. There is no evidence in the record to support the premise that Mrs. Caldwell-Lloyd’s underlying heart disease suddenly and contemporaneously progressed in its own natural course to the point of a coronary event. The decedent was punched in the face and then immediately began having difficulty breathing and chest pains. She was pronounced dead less than one hour later. The close proximity of the coronary event and the altercation with DiMaggio supports the conclusion that Mrs. Caldwell-Lloyd did not just happen to have a heart attack while performing her job.

|8Based on the foregoing reasons, I would reverse the decision of the trial court and grant the motion for summary judgment filed by defendant, Shady Lake Nursing Home, Inc.

      . Plaintiffs are Edward E. Lloyd, individually and as the natural tutor of Edward Caldwell, a minor, Cheryl Caldwell, Kimberly Jackson, Eldrick Caldwell, and Roy Caldwell.

      . Plaintiffs also sued Louisiana Nursing Home Association Malpractice and General Liability Trust and/or Louisiana Nursing Home Association of Professional and General Liability Trust; however, on March 5, 2010, the trial court granted plaintiffs' motion to amend their complaint and dismiss this defendant.

      . Plaintiffs have not raised any assignment of error regarding the denial of their motion for partial summary judgment.

      . Prior to the 1997 amendments, Section 1021(8)(e) was designated as Section 1021(7)(e). The content of this section was unchanged, and references in some decisions to the earlier citation should be understood as referencing the current Section 102l(8)(e).

      . At the time of the suit, the burden for overcoming the non-occupational presumption was by an "overwhelming preponderance” of evidence. The statute was amended by Acts 2001, No. 1189, § 1, eff. June 29, 2001, to change the burden to a "preponderance of evidence.”

      . There are only three types of burdens of proof — by a preponderance of the evidence, by clear and convincing evidence, and beyond a reasonable doubt. The word "overwhelming” is superfluous. See Justice Lemmon’s concurrence in the first O’Regan case, 737 So.2d at 37.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    SUCCESSION OF Anthony S. SCURRIA.
    No. 45,292-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 2010.

      Anthony J. Bruscato, James A. Roun-tree, for Appellants.
    Sturgeon & Boyd by Lauri Gene Boyd, Timothy O’Dowd, James Edward Paxton, for Appellees.
    Before WILLIAMS, STEWART and DREW, JJ.
   DREW, J.

hThe heirs have been litigating this succession for over 27' years. The present administratrix, Angelina llardo (“llardo”), appeals a partial judgment placing 10 of the heirs in possession of their pro rata portions of the remaining asset of the estate of Anthony Scurria (“Anthony”), who died December 16,1983. The sole asset of Anthony’s succession is an unpaid judgment for $416,666.67 plus interest from the date of judicial demand. This court awarded that judgment in Scurria v. Hodge, 31,207 (La.App.2d Cir.10/30/98), 720 So.2d 460, 469, writ denied, 1999-0011 (La.3/19/99), 739 So.2d 782.

The underlying dispute is the unsuccessful (to date) effort by one group of Anthony’s hems to collect the foregoing judgment owed to Anthony’s estate by Joe Scurria (the decedent’s brother) and Billy Hodge (the decedent’s nephew by marriage). The administratrix and those heirs aligned with her have asserted in this and other pending litigation that Joe Scurria and Billy Hodge fraudulently engaged in numerous financial maneuvers to put their assets beyond the reach of their creditors, thereby improperly avoiding payment of the judgment in favor of Anthony’s estate. Because the judgment debtors maintained possession of the properties transferred to various legal entities, the administratrix alleged that the transfers were presumed to be fraudulent simulations. Notwithstanding the 12foregoing, what we have before this court for review is the partial judgment of possession in favor of some of the heirs allied with the judgment debtors.

For the following reasons, the judgment is reversed. The matter is remanded for further proceedings deemed necessary by the adversaries.

FACTUAL AND PROCEDURAL BACKGROUND

At his 1983 death, Anthony had eight heirs including his brothers, sisters, and a niece, many of whom have since died, leaving 19 surviving heirs whose names are underlined below:

Sara Scurria Phillips, deceased Josephine Phillips Hodge (married to the judgment debtor, Billy Hodge, and mother of three Finlayson heirs of Jennie Scurria)
Marie Phillips Michele
Philip S. Scurria, deceased Dr. Sam Scurria
Philip Scurria
Tommy Scurria
Jennie S. Scurria, no children, deceased Jennie’s heirs are the children of Joseph Scur-ria (Larry Scurria, Jennie Sue “GiGi” Ball, Maria O’Dowd) and Josephine Phillips Hodge (Sara Ann Finlayson, Charles Michael Finlayson, Billye Jo Finlayson)
Annie Scurria Lombardo, deceased Andrew Lombardo
Sammy Lombardo
Sam Scurria, Jr., deceased Maria Wall O’Dowd
Sam Scurria, HI
Patrina Weems
Vincent Scurria (predeceased Anthony) Dr. Sandra Scurria
Joseph S. Scurria (judgment debtor) (three children who are heirs of Jennie)
] ¡Angelina Scurria llardo (administratrix) (sister of the decedent)

Judge Caraway, writing the opinion in Scurria v. Hodge, supra, set out the background. In 1979, Anthony (whose succession is at issue), his brother, Joe Scurria, and a nephew by marriage, Billy Hodge, formed the Tallulah Cablevision Corporation (“TCC”). Each shareholder received 50 shares of stock. TCC borrowed $150,000 from a bank with each shareholder signing the loan and each shareholder advancing the corporation $70,000. Anthony was president and executed TCC promissory notes to each shareholder for the $70,000 loans. Anthony also made other loans to the corporation. At his death, the $70,000 loan was outstanding along with $27,500 in other loans.

Following Anthony’s December 1988 death, two of decedent’s brothers, Joe and Sam, were named co-administrators of Anthony’s estate. Leroy Smith, Jr., was retained as attorney for the succession.

Smith hired CPA Harry G. Frazer to value the assets for estate purposes. Frazer acknowledged he had no particular expertise at valuing cablevision systems but set the value of Anthony’s one-third interest in TCC at $195,050.

The first documented TCC shareholders’ meeting was held on February 27, 1984, at which Billy Hodge and Joe Scurria were elected directors of TCC. Joe acted as administrator of Anthony’s succession at the meeting and voted the shares of the succession. In February 1984, the directors listed TCC for sale for $8,000,000 with a media brokerage firm. No sale was made and the brokerage contract was terminated.

14Funds were needed to pay inheritance taxes. Each of the heirs would have owed $17,000 to $18,000 to liquidate the succession’s debts and pay the taxes. Joe Scurria and Billy Hodge offered to buy Anthony’s interest in TCC for $100,000. A petition for authority to sell was initially opposed by some heirs. Ultimately, the opposition was withdrawn and the court granted the authority to sell for $100,000 in September 1984. Joe Scurria and Billy Hodge bought the succession’s interest in TCC for $100,000 and had TCC repay $91,000 in debts owed to Anthony’s estate.

Four months later in January 1985, Joe Scurria and Billy Hodge listed TCC for sale at $2.8 million and sold it for $1.9 million on May 30,1985. On May 29,1986, Philip Scurria sued Joe Scurria and Billy Hodge, alleging that as officers and majority shareholders of TCC, the pair violated their fiduciary duties and that Joe Scurria ■violated his fiduciary duties as co-administrator of Anthony’s estate. Later, Philip sued to have the succession reopened and was appointed provisional administrator. Philip, as provisional administrator of the succession, then brought an action against Joe Scurria, Billy Hodge, and TCC with the same allegations.

Following completion of plaintiffs’ evidence at the 1997 trial, the trial court found the evidence did not prove intentional fraudulent misrepresentations by Joe Scurria and Billy Hodge and dismissed the claims of fraud. After the defense was heard, the trial court found that neither Joe Scurria nor Billy Hodge breached any fiduciary duties to Anthony’s succession.

In Scurria, supra, this court reversed the trial court’s judgment. To overcome the appearance of self-dealing to the possible detriment of the succession, Joe Scur-ria and Billy Hodge had to prove that the transaction was an arms-length sale, ie., that the purchase price paid by the fiduciary was the equivalent of the fair market value. Further, we held that a succession administrator is required to know the fair market value of a succession asset to be sold. Based upon the evidence adduced, this court found that the $100,000 purchase price the succession received from Joe Scurria and Billy Hodge was far below the fair market value. Additionally, this court determined that Joe Scurria and Billy Hodge breached their fiduciary duties to the succession.

Finding the fair market value of TCC to have been $1.9 million, this court placed the net value of TCC at $1,550,000 (less debts and brokerage commission). Therefore, the court ordered Joe Scurria and Billy Hodge to pay to the succession $516,666.67 (less the $100,000 the two paid the succession in the contested sale) plus interest from the date of judicial demand. All of the succession’s subsequent efforts to collect that judgment have been unsuccessful.

After the death of provisional administrator Philip Scurria on May 4, 2000, Angelina Scurria llardo, sister of Anthony, sought in July 2000 to be named adminis-tratrix of Anthony’s succession, noting that the only asset was the judgment owed the succession. On August 15, 2000, llardo was appointed administratrix.

|fiIn 2007, Joseph Scurria filed a motion seeking to have the succession closed, since the matter had been pending for 24 years and since the succession had no debt and required no administration. Alternatively, Joseph Scurria requested llardo be removed as administratrix because she had filed no annual accounting, failed to fulfill her obligations to the succession timely, and mismanaged the estate by failing to close it and by permitting her animosity toward family members to interfere with her duties. The final allegation was that llardo was unfit to be administratrix due to bad moral character.

On November 21, 2007, the trial judge denied the motion to close the succession and ordered llardo to file an Annual Accounting by January 20, 2008, and a Sworn Detailed Descriptive List by February 20, 2008.

On December 23, 2008, 11 of Anthony’s heirs filed a rule requesting llardo show cause why she should not be removed as administratrix. The allegations were that llardo never qualified as a permanent ad-ministratrix, never filed an accounting, never contacted a majority of the heirs to determine if they wanted to expend funds to litigate, and incurred numerous attorney’s fees and court costs on behalf of the succession without court approval or discussion with other family members. The group also alleged llardo was not competent and should be removed as administra-trix.

On the same day, the same group of 11 heirs filed a rule seeking to be placed in possession of the succession. The 11 heirs relied upon La. C.C.P. parts. 3862 and 3371 to assert that other heirs concurred in being placed in possession, no longer wished llardo to act on their behalf, and sought her removal as administratrix.

llardo objected to the proceedings because the moving parties did not comply with court rules. Additionally, the admin-istratrix sought a continuance of the hearing and sought to quash the subpoena served on her counsel. Her objection also alleged that Philip Scurria informed counsel for the administratrix that he did not engage Leroy Smith (movants’ attorney) to file pleadings for him. The trial judge reset until March 5, 2009, the hearing on the requests to remove the administratrix and to place some of the heirs in possession of the estate

On February 11, 2009, llardo filed a motion seeking to have Leroy Smith, Jr., disqualified to represent anyone in this proceeding (the Succession of Anthony Scurria, # 2619), Ilardo v. Scurria (# 07-343), and Ilardo v. Scurria (#07-174). llardo alleged that Smith had a conflict of interest due to his prior representation of the Succession of Anthony Scurria and because he was a key fact witness.

The following testimony was adduced at the March 5, 2010, hearing:

Josephine Phillips Hodge
• She was a niece of Anthony Scurria.
• Her sister, Marie Phillips Michele, executed a power of attorney in her favor to handle the affairs of this succession, as did Dr. Sandra Scurria.
• She wished to be placed in possession of the succession and did not want Angelina llardo to be the administra-trix.
• Leroy Smith prepared all the powers of attorney she obtained.
|s* She denied knowing that she could be personally liable or would have to post a bond as security for debts of the succession.
• The children of Sam Scurria and Phillip Scurria plus Angelina llardo did not give her a power of attorney.
• She had no knowledge of whether anyone had advised the six heirs of Jennie Scurria concerning the legal consequences of accepting possession of the succession of Anthony Scurria.
Dr. Samuel Scurria
• He did not want to be a part of the lawsuit and did hot want Angelina llardo to represent his interests in the succession.
• He had people about whom he cared on both sides of the dispute and chose not to take either side.
• Remaining neutral, he had signed nothing and attended no meetings.
• His two brothers, Tommy and Philip, informed him that they wished to pursue collection of the debt owed the succession.
• He placed his faith in the court, hoped the court would make the right decision and felt he would be pleased with it.
• He joined neither side at the hearing.
Charles Michael Finlayson
• He was an heir of Jennie Scurria and executor of her estate.
• He and his two sisters (Sara Ann Fin-layson and Billye Jo Finlayson) desired to be placed in possession of the Succession of Anthony Scurria.
• He had not discussed any potential personal liability that might result from his being placed in possession of the estate of Anthony Scurria.
• He did not want to sue his “own folks” and did not want to be involved.

lflThe parties stipulated that the testimony of Sara Ann Finlayson and Billye Jo Finlayson would be the same as their brother.

Attorney Tim O’Dowd sent to the court and to counsel a letter stating he represented and had the powers of attorney from Joe Scurria, judgment debtor, and his children Jennie Sue “GiGi” Ball, Maria Scurria O’Dowd (married to attorney O’Dowd) and Larry Scurria (heirs of Jennie Scurria along with the three Finlay-sons). The parties also stipulated that the testimony of Joe Scurria, Jennie Sue “GiGi” Ball, Maria Scurria O’Dowd, and Larry Scurria would be the same - as Charles Michael Finlayson.

Placed into the record at the hearing were the two powers of attorney executed by Marie P. Michele and Dr. Sandra Scur-ria in favor of Josephine P. Hodge plus the Judgment of Possession in the Succession of Jennie S. Scurria naming her six heirs (listed above) to all her property not included in her particular legacies.

The appellate record also contains trial court record # 07-343 (Ilardo, Administratrix v. Joseph Samuel Scurria, et al.) in which the administratrix sought to compel production of financial information from the judgment debtor, Joe Scurria. The most recent minutes therein were dated January 7, 2009, prior to the trial court hearing in the present dispute.

Also placed into this record is the trial court record # 07-174 (Ilardo, Administratrix v. Charles H. (Billy) Hodge, et al.), the most recent minutes of which were also dated January 7, 2009. That action contains the succession’s efforts to obtain financial information concerning judgment 110debtor Billy Hodge and his alleged activities to avoid paying the judgment to the succession.

Over objections by attorneys for the debtors and the heirs aligned with them, the trial court, although questioning their relevance, made a part of the record all the exhibits attached to various motions filed by the administratrix.

The trial court ordered that 10 of the 11 petitioning heirs (Dr. Sandra Scurria, Joe Scurria, Josephine Hodge, Marie P. Michele, Larry Scurria, Jennie Sue “GiGi” Ball, Maria O’Dowd, Sara Ann Finlayson, Charles Michael Finlayson, Billye Jo Fin-layson) be placed into possession of their undivided interests in the only remaining asset of Anthony’s estate, which is the unpaid judgment against Billy Hodge and Joe Scurria.

The trial court deferred a decision on Ilardo’s motion to disqualify Leroy Smith from representing the heirs aligned with the debtors. The administratrix sought supervisory review of the trial court’s rulings.

In Writs No. 44,786-CW consolidated with Nos. 44,787-CW and 44,788-CW, this court on June 18, 2009, determined that supervisory jurisdiction was not warranted on the trial court ruling which deferred a decision of the motion to disqualify Smith. As to the partial judgment of possession, the court concluded that it was properly reviewable by appeal and remanded the matter for perfection of the appeal which is now before this court for decision.

liiOn April 15, 2010, however, this appellate panel directed the trial court to rule on the administratrix’s February 11, 2009, motion to disqualify Leroy Smith. On April 23, 2010, the appellate panel stayed the appeal and directed the trial court to resolve that issue expeditiously.

On May 14, 2010, the trial judge signed an order finding that the motion to disqualify had “merit in that conflicts of interest may be caused by Mr. Smith’s former role as Attorney for the Succession and by his potential role as a witness in the proceeding and therefore Mr. Smith’s decision to withdraw was both appropriate and required by this ruling.” On the same date, the trial court signed the order granting Leroy Smith’s motion to withdraw and enrolling James E. Paxton and Lauri G. Boyd as counsel for defendants. On June 28, 2010, the appellate panel signed an order lifting the previously granted stay.

The judgment debtors and their allies made arguments in brief on appeal about events which occurred after the trial court action, i.e., Billy Hodge’s purchase of another heir’s interest in Anthony’s succession. In a supplemental brief filed in this court, the administratrix objected to any consideration of such subsequent actions outside the appellate record. Alternatively, she requested that if this court chose to consider events taking place outside' the record, we should also consider the succession’s purchase of another heir’s interest in Anthony’s succession. For the following reasons, we will not consider those events.

In Martin v. Comm-Care Corp., 37,-600 (La.App.2d Cir.10/16/03), 859 So.2d 217, writ denied, 2003-3188 (La.2/6/04), 866 So.2d 225, this court explained that it is well settled that an appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. The record on appeal includes the pleadings, court minutes, transcript, judgments and other rulings, unless otherwise designated. La. C.C.P. art. 2128. An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. Memoranda and exhibits which were not filed into evidence in the trial court are not part of the record on appeal. If a party’s appellate brief asserts facts which are not in the record and refers to exhibits which have not been filed into evidence in the trial record, an appellate court may not consider those memoranda and exhibits, since they are outside the record. Appellate briefs are not part of the record on appeal. This court has no authority to consider facts referred to in appellate briefs, or in exhibits, if those facts are not in the record on appeal. See also, Reed v. Peoples State Bank of Many, 36,531 (La.App.2d Cir.3/5/03), 839 So.2d 955. Therefore, this court’s review of this dispute is limited to a consideration of the status of the parties when the trial court rendered the partial judgment of possession.

| iaTHE LAW

La. C.C.P. art. 3362 titled “Prior to Ho-mologation of Final Tableau of Distribution” states:

At any time prior to the homologation of the final tableau of distribution, a majority of the heirs of an intestate decedent whose succession is under administration may be sent into possession of all or part of the property of the succession upon their filing a petition for possession as provided in Articles 3001 through 3008 excluding any provisions of Article 3004 to the contrary, except that the proceeding shall be contradictory with the administrator. Upon the filing of such a petition the court shall order the administrator to show cause why the petitioners should not be sent into possession, and shall order that the petitioners be sent into possession unless the administrator or any heir shows that irreparable injury would result, and upon a showing that adequate assets will be retained in the succession to pay all claims, charges, debts, and obligations of the succession. If a majority of the heirs are sent into possession of a part of the property, the administrator shall continue to administer the remainder.

The comments to the article state, in part:

(a) This article applies only when the petition for possession is filed prior to the homologation of the final tableau of distribution. It complements Art. 3361, supra.
(b) Since acceptance under this article takes place before the completion of the administration, it is an unconditional acceptance, and the rules of Arts. 3001-3008, supra, governing acceptance without administration are, therefore, applicable. However, since an administrator has been appointed to represent creditors, the heirs are not sent into possession ex parte but only in proceeding contradictory with the administrator, who may show to the satisfaction of the court that the heirs should not be sent into possession or that they should be compelled to furnish security. Art. 1193 of the Civil Code and the jurisprudence indicate that a contradictory proceeding is required. Calhoun v. McKnight, 39 La.Ann. 325,1 So. 612 (1887).
(c) The provision permitting the heirs to go into possession of a part of the property, with the succession representative continuing to administer the balance, is new in Louisiana. | u Under the substantive articles of the Civil Code an heir who takes possession of a part of the property of a succession before the administration is complete becomes personally liable for the debts. Therefore, the succession creditors could still hold the heirs liable and would not be affected. The above article does not change this fundamental rule.
(d) All competent heirs must join in the acceptance. See Art. 3004, supra.

DISCUSSION

The first requirement for a majority of heirs to obtain partial possession of a succession is that the matter be tried contradictorily with the administrator. In this case, the administratrix did not show up for the hearing nor did she provide documentation that would have assisted in resolving the dispute. Her position was argued by her attorney, which satisfied the directive that a contradictory hearing be held.

llardo, the administratrix, bases her appeal upon the trial court’s erroneous granting of the partial judgment of possession in favor of the judgment debtors and the heirs aligned with them.

1. Nonpayment of Federal Estate and Louisiana Inheritance Taxes

According to the administratrix, the sole asset of the estate, the uncollected judgment (which she argues now totals almost $1 million with accrued interest) must be reported to the state for inheritance tax purposes. However, the record contains no declaration, testimony, or documentation 11fias to the present amount due on the judgment rendered by this court in 1997 against Joe Scurria and Billy Hodge.

In Succession of Davis, 43,096 (La.App.2d Cir.3/19/08), 978 So.2d 606, this court found a judgment of possession in an ancillary succession proceeding was premature because the appropriate account-ings and final payment of federal estate taxes known to be owed had not been filed or paid. In Davis, supra, no Louisiana inheritance taxes were due and federal estate taxes had been partially paid with the final accounting and payment pending. The present dispute is factually distinguishable because, unlike Davis, it is not possible to determine if or whether any taxes could be due sometime in the future.

Whether any federal estate taxes or Louisiana inheritance taxes may or may not be due on this unpaid judgment depends on the whether the administratrix and her allies are successful in collecting any or all of the judgment. Unless and until Joe Scurria and Billy Hodge pay the judgment in whole or in part to the succession, there is nothing in the estate to report or on which to pay any inheritance or estate taxes which may or may not be due at some time in the future. On this record, we cannot determine if taxes are ever to be due, much less how much and whether sufficient assets exist to pay the obligation.

2. Unpaid Debts of the Succession (Attorney’s Fees, Administratrix’s Fees and Costs, Costs of Court, Expenses, etc.)

Neither set of litigants placed into evidence any information about amounts of these charges. After the conclusion of the hearing and during argument of counsel, the attorney for the administratrix attempted to place 11fiinto evidence a record of accrued costs and expenses. The trial court declined to admit this and the accounting was proffered. However, the trial court acknowledged that significant costs and expenses would have accrued in this longstanding litigation. No succession accounting was placed into the record, making it difficult to determine whether potential assets are sufficient to cover unknown expenses and costs. The trial court observed that the judgment sought to be collected was substantial and stated in oral reasons:

Obviously, costs are incurred when you have a lawsuit, particularly one like this. It doesn’t surprise me that the costs are substantial. Of course, the key issue is whether there’s sufficient assets retained in the succession to pay all the claims, charges, debts and obligations of the succession. If the value of that claim was not enough to cover the costs, it’s safe to say we wouldn’t be here today. That’s why we are here. And it is a substantial judgment and it’s a substantial claim. And the value of that claim I don’t think is fixed, but the Court has no doubt that it’s greater than the amount of possible court cost debt.

The judgment debtors and/or those hems siding with them made contradictory arguments about the existence of debts of the succession. In 2007 Joe Scurria alleged that the succession’s lack of debt justified closing the succession. In conflicting allegations seeking to remove llar-do as administratrix, Scurria and his allies asserted that she had incurred without authority court costs and other fees on behalf of the succession.

The trial court correctly observed that the value of any claim against the succession was not fixed. While accepting the substance of trial court’s foregoing statement, we find neither the administratrix nor those seeking the partial judgment of possession complied with La. C.C.P. art. 3362. Neither 117made a showing that adequate assets would be retained in the succession to pay any charges or obligations which likewise were not established.

Based on our observations about the possible future tax liability and the lack of evidence on value of potential assets and amounts of succession obligations, we conclude that the judgment of partial possession must be reversed and the matter remanded for further proceedings in the trial court.

3. Additional Issues, Not Necessary to Resolve this Dispute.

(a) Although not necessary to resolve this appeal, we observe that the trial court correctly determined that a judgment of partial possession would not have irreparably harmed the succession. In the context of injunctions, irreparable injury is defined as that which cannot be adequately compensated in money damages or measured by a pecuniary standard. See East Baton Rouge Parish School Bd. v. Wilson, 2008-0536, 15 (La.App. 1st Cir.6/6/08), 992 So.2d 537, 546, writ denied, 2008-1479 (La.12/12/08), 997 So.2d 560. This dispute is all about money with some wanting to collect it and other heirs apparently wishing to forgive the money judgment owed to the estate.

Because La. C.C.P. art. 3362 specifically provides that the administrator continues to administer the remainder if a majority of heirs are placed in partial possession, we observe that the administratrix’s assertions of potential irreparable injury do not convince. The trial court reasonably concluded that there was no showing of irreparable injury.

(b) Also at issue was a dispute as to whether “a majority of heirs,” as used in art. 3362, refers to percentage of ownership interest in the estate:

| is* counting by roots, in this case eight original heirs, or
• counting by heads of individual heirs, 19 of whom existed at the time of the hearing and judgment of partial possession.

In oral reasons for its decision, the trial court explained that under the rules of statutory interpretation, if a literal interpretation does not lead to absurd results, it should be followed. In this case, “majority” means more than half. The trial court specifically found that movants established that more than half the heirs sought to be placed into possession of their portion of the estate. The administratrix made reasonable arguments that the court should interpret “majority of heirs” as a majority of ownership interest in the succession. However, the legislature could easily have required a majority of the ownership interest in the succession for a partial judgment of possession instead of “a majority of the heirs of an intestate decedent.” La. C.C.P. art. 3362. The legislature is where that issue should be addressed.

(c) The administratrix objects that the interests of justice were not served, since some heirs requested the partial judgment of possession without being adequately advised of the legal ramifications of their actions.

The administratrix objects on appeal that the heirs who sought the partial judgment of possession did not receive independent legal advice, since they relied on Leroy Smith, who represented the judgment debtors and had a conflict of interest from previously representing the succession. Additionally, the administratrix correctly observed that the testimony demonstrated that those heirs who aligned with the judgment debtors did not understand the legal consequences of obtaining the partial judgment of possession.

119Pointing to La. C.C.P. art. 3001, et seq., the trial court correctly noted any creditor having a claim against a succession could file a contradictory motion against the parties placed into possession to compel them to furnish security. Moreover, heirs placed in partial possession accept possession unconditionally and become personally hable for debts of the succession. The record clearly revealed that those heirs were not aware of those legal consequences. But the administra-trix’s complaints on behalf of those heirs were not hers to make. If those parties siding with the judgment debtors are aggrieved in the future, they may make complaints for themselves.

CONCLUSION

Based upon the finding that the showings required by La. C.C.P. art. 3362 were not made, we reverse the partial judgment of possession and remand this matter for further proceedings. This court was provided with neither evidence concerning potential tax liability nor documentation of the amount of the potential assets or liabilities of the succession. The interest of judicial efficiency will be served if the parties resolve this dispute completely in the trial court with sufficient evidence for an adequate review should a further appeal arise. The sparse evidence in this record did not support the relief sought. After a substantial expenditure of trial and appellate court time, the parties are in the same posture they occupied prior to this phase of this unfortunate litigation.

DECREE

The judgment is reversed and remanded for further proceedings deemed necessary by the parties. All costs of court generated at the trial andj^appellate level by the December 23, 2008, and subsequent motions and pleadings are cast against the movers/appellees (judgment debtors and the heirs placed into partial possession in the judgment reversed herein).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . Although the issues are not the same, one cannot help but think of Jarndyce v. Jarndyce, the endless (until the money ran out) litigation over a contested estate in Bleak House by Charles Dickens.

      . $516,666.67 less the $100,000 received by the succession in the sale to Joe Scurria and Billy Hodge.

      . Dr. Sandra Scurria, Joe Scurria, Josephine Hodge, Marie P. Michele, Larry Scurria, Philip Scurria, Jennie Sue "GiGi” Ball, Maria O'Dowd, Sara Ann Finlayson, Charles Michael Finlayson, Billye Jo Finlayson.

      . Of the initial 11 petitioners, Philip Scurria was omitted, since he had communicated he had not authorized Leroy Smith to make a filing on his behalf.

      . This court granted the administratrix's motion to have Joseph Samuel Scurria removed as a party to these proceedings, since the succession purchased his interest in Anthony’s succession. As that action occurred after rendition of the trial court judgment, this court does not consider it or anything else outside the appellate record, for reasons stated above.

      . As noted previously, the items introduced into this record are the powers of attorney from Michele and Dr. Sandra Scurria in favor of Mrs. Hodge, the Judgment of Possession in the Succession of Jennie Scurria, the records in trial court record # 07-343 (Ilardo, Administratrix v. Joseph Samuel Scurria, et al.) and the trial court record # 07-174 (Ilardo, Administratrix v. Joseph Samuel Scurria, et al.), the most recent minutes in both of which were dated January 7, 2009, prior to the trial court action in this matter in March 2009. The administratrix also introduced into evidence all attachments to her motions filed in the trial court.

      . Section 1 of Act 822 of the 2008 Regular Session of the Louisiana Legislature repealed La. R.S. 47:2401 through 2426. Section 1 was effective 1/1/08. Section 2 provided that inheritance taxes prescribed in three years from the 31st day of December of the year in which such taxes become due. Inheritance taxes due to the state for deaths occurring before July 1, 2004, for which no inheritance tax return has been filed before January 1, 2008, shall be deemed due on January 1, 2008. Section 2 was effective on 1/1/08. It appears that any taxes which might possibly be due the state will prescribe on December 31, 2011.


author: WILLIAMS, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Plaintiff-Appellant v. Willis Aldon EVERETT, et ux, Defendant-Appellee.
    No. 45,337-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 2010.
    Rehearing Denied Sept. 16, 2010.
    Bernard L. Knobloch, Jr., Baton Rouge, LA, for Appellant.
    Bobby L. Culpepper, Jonesboro, LA, for Appellee.
    Before BROWN, WILLIAMS, PEATROSS, DREW and LOLLEY, JJ.
   WILLIAMS, J.

| ,The petitioner, State Department of Transportation and Development (“DOTD”), appeals a judgment awarding Willis Everett and Helen Everett severance damages of $100,601 and attorney fees of $21,150.25. For the following reasons, we amend and affirm as amended.

FACTS

In July 2002, DOTD filed a petition to expropriate in full ownership a parcel of land containing 1.78 acres in Lincoln Parish, owned by Willis and Helen Everett (“the Everetts”). The petition noted that the property was being expropriated for highway purposes and that a residence was located on the property. In connection with the taking, DOTD deposited into the court registry the total amount of $295,000, representing the estimated compensation due to the Everetts for the property taken and for severance damages. The Everetts filed an answer and recon-ventional demand seeking additional compensation.

At trial, the only issue presented to the jury was the amount of severance damages due to the Everetts after the expropriation. In March 2009, the jury returned a verdict assessing severance damages in the amount of $100,601. Subsequently, the trial court rendered judgment awarding the Everetts severance damages of $100,601, attorney fees of $21,150.25, and expert witness fees of $6,550. DOTD appeals the judgment.

DISCUSSION

DOTD contends the trial court erred in awarding the Everetts the total amount of severance damages assessed by the jury. DOTD argues that it is liable only for the amount awarded in excess of the amount deposited for | ?such damages in the district court registry.

Property may be taken by the state or its political subdivisions for public purposes and with just compensation paid to the owner or into the court for his benefit. In every expropriation, the owner shall be compensated to the full extent of his loss. La. Const. Art. 1, Sec. 4(B). The measure of damages, if any, to the owner’s remaining property is based upon the value immediately before and after the taking, LSA-R.S. 48:453; State DOTD v. McKeithen, 42,830 (La.App.2d Cir.2/20/08), 976 So.2d 832. Severance damages are awarded to compensate a property owner for a proven decrease in the value of that part of his property which remains after a taking. State DOTD v. Unverzagt, 590 So.2d 680 (La.App. 3rd Cir.1991).

In an expropriation, the DOTD shall file a petition in the district court of the parish where the property is situated. The petition shall contain a statement of the purpose for which the property is to be expropriated and shall have annexed thereto an itemized statement of the amount of money estimated to be the full extent of the owner’s loss for the taking or the damage, or both. LSA-R.S. 48:442. Upon presentation of the petition, the court shall issue an order directing that the estimated amount be deposited in the registry of the court and declaring that the property described has been taken for highway purposes. LSA-R.S. 48:444. If the amount finally awarded exceeds the amount so deposited, the court shall enter judgment against the department and in favor of the property owners for the amount of the deficiency. The judgment shall not be an in globo award, but shall list separately the amounts awarded, but not deposited, for an increase in | ^severance damages, attorney fees and expert witness fees. LSA-R.S. 48:456.

In the present case, DOTD filed an expropriation petition in district court and deposited $295,000 in the court registry as compensation for the taking of approximately 2 acres of the Everetts’ property and for severance damages to the remaining property. As required by the expropriation statute, DOTD attached to its petition an itemized statement estimating the value of the land and improvements taken as $236,568 and the amount of severance damages as $58,437. After hearing the evidence at trial, the jury found that the taking caused $100,601 in severance damages to the remaining property, an award exceeding the amount previously deposited for such damages by DOTD.

The Everetts’ contention that they are entitled to the entire severance damage award is not supported by the applicable statute, which expressly provides that when the amount awarded for severance damages exceeds the amount deposited, the court shall enter judgment in favor of the property owners “for the amount of the deficiency.” Thus, there was no issue of a credit for the jury to consider, because pursuant to the statute the court has the responsibility to calculate the amount by which the jury’s award of severance damages exceeds the amount deposited for such damages by DOTD.

As previously noted, DOTD’s deposit of $295,000 into the court registry included the amount of $58,437 as severance damages. Thus, the jury’s award exceeded the amount deposited by the sum of $42,164. 1 Consequently, the trial court erred in rendering judgment for the total amount of the jury’s award, rather than for the amount of the deficiency, i.e. $42,164. We shall amend the judgment accordingly.

Attorney Fees

Additionally, DOTD points out that the award of attorney fees should have been based upon the difference between the jury’s award for severance damages and the amount deposited for such damages. Reasonable attorney fees may be awarded by the court if the amount of compensation deposited in the court registry is less than the compensation awarded. Such attorney fees shall not exceed 25% of the difference between the award and the amount deposited. LSA-R.S. 48:453(E).

As stated above, the difference between the jury’s award of damages and the amount deposited was $42,164. Pursuant to Section 453(E), the attorney fees cannot exceed 25% of this amount. Therefore, the award of attorney fees must be reduced to the amount of $10,541.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is amended to reduce the award of damages to the amount of $42,164 and to reduce the award of attorney fees to the amount of $10,541. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to the appellees, Willis Everett and Helen Everett.

AMENDED AND AFFIRMED AS AMENDED.

BROWN, Chief Judge, dissents with written reasons.

DREW, J., dissents for the reasons assigned by Chief Judge BROWN.

BROWN, Chief Judge,

dissenting.

hi respectfully dissent. The DOTD requested a jury trial. What DOTD had deposited was an amount for the part taken and “damages,” not necessarily “severance” damages. All the information was presented to the jury. DOTD did not ask for a credit or request jury interrogatories. The jury easily could have intended the amount awarded to be over what had been deposited. Anything else is simply speculation. I agree with the trial court and would affirm the verdict.

APPLICATION FOR REHEARING

Before BROWN, C.J, and WILLIAMS, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

BROWN, C.J., and DREW, J., would grant rehearing.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    D & B FRAMING, INC. v. HARRIS BUILDERS, L.L.C.
    No. 2010-CA-0591.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2010.

      Donald L. Miers, Jr., Donald L. Miers, Jr., APLC, Denham Springs, LA, for Plaintiff/Appellant D & B Framining, Inc.
    Jeff K. Prattini, Lloyd N. Shields, Shields Mott Lund L.L.P., New Orleans, LA, for Defendant/Appellee Harris Builders, L.L.C.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., and Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_JjThe plaintiff, D & B Framing, Inc. (D & B), appeals the district court judgment denying its motion to modify the arbitration award and dismissing with prejudice the arbitration proceedings involving D & B and defendant, Harris Builders, L.L.C. (Harris). For the reasons set forth below, we affirm the district court’s judgment.

In April of 2008, D & B, as subcontractor, and Harris, as contractor, entered into two subcontracts using the American Institute of Architects Document A401-1997 Standard Form of Agreement Between Contractor and Subcontractor, pursuant to which D & B supplied labor in connection with the Oak Villa Apartments and the Pass-A-Loutre construction project. The ALA form contracts provided, inter alia, for submission of disputes arising thereunder to binding arbitration.

On February 10, 2009, D & B demanded arbitration, seeking damages for alleged non-payment and breach of contract against Harris. Specifically, D & B claimed that Harris paid only $90,000.00 of the $266,000.00 contract price on the Oak Villa project, leaving a balance due D & B of $176,000.00. The demand asserts that Harris summarily removed D & B from that project in breach of the ^contract between the parties. D & B made no claim relating to the Pass-A-Loutre project.

In response to the arbitration demand, Harris filed a counterclaim against D & B, asserting that D & B abandoned both projects prior to completion, causing Harris to terminate the contracts. Harris claimed that it paid D & B more than was due for the work actually performed, and for work that Harris later discovered to be defective. Harris contended that it paid a separate subcontractor to replace and/or correct D & B’s defective work and to complete the project.

The parties agreed that Frank Walk, Jr. would serve as arbitrator. On August 23, 2009, Mr. Walk rendered an award in favor of D & B, in the total amount of $36,581.22, plus interest from December 3, 2008. The award includes an itemized account of the balance due D & B on both projects, after having deducted payments made by Harris to D & B and setoffs due Harris for payments made to other subcontractors to complete the Oak Villa project. The award assessed administrative fees and expenses to both parties, and denied all other claims and counterclaims made by the pai’ties.

On September 18, 2009, Harris paid D & B the full amount awarded in arbitration which, Harris notes, D & B did not reject.

On October 21, 2009, D & B filed a motion to modify the arbitration award, claiming that the arbitrator so imperfectly executed his powers that a mutual, final, and definite award on the subject matter submitted was not made. D & B asserted that the arbitrator made no ruling on the allegation of Harris’ breach of contract and the resultant damages. Harris objected to the motion to modify, asserting that the motion lacked any factual or legal support to vacate the arbitration award.

|sThe matter was brought before the trial court on December 18, 2009. Following oral argument, judgment was rendered March 1, 2010, denying D & B’s motion to modify the arbitration award and dismissing the matter with prejudice. The district court did not provide reasons for judgment, and this timely appeal followed.

The Louisiana Binding Arbitration Law (LBAL), La. R.S. 9:4201, et seq., and Louisiana Civil Code articles 3099, et seq. embody the principle that arbitration is favored in Louisiana. The purpose of arbitration is the settlement of differences in a fast, inexpensive manner, before a tribunal chosen by the parties. See, Montelepre v. Waring Architects, 00-0671, 00-0672, p. 3 (La.App. 4 Cir. 5/16/01), 787 So.2d 1127, 1130. Because of the strong public policy favoring arbitration, arbitration awards are presumed to be valid, and errors of fact or law do not invalidate such awards. Id. at p. 4, 787 So.2d at 1130, citing National Tea Co. v. Richmond, 548 So.2d 930 (La.1989).

Unless grounds for vacating, modifying or correcting the award are established, the award must be confirmed. Montelepre v. Waring Architects, supra at p. 4, 787 So.2d at 1130. The burden of proof is on the party attacking the award, which can be challenged only on statutory grounds. Id., citing, inter alia, Firmin v. Garber, 353 So.2d 975 (La.1977).

The LBAL specifies the sole grounds on which a court may vacate an arbitration award, and the particular basis specified by D & B in this case is found in La. R.S. 9:4210 D, which provides:

In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

A district court may modify or correct an arbitration award where: (A) there was an evident miscalculation of figures or evident material mistake in the description of any person, thing or property in the award; (B) the arbitrators have rendered an award upon matters not subject to arbitration, unless it is a matter not affecting the merits of the decision; or (C) the award is imperfect in form, not affecting the merits of the controversy. La. R.S. 9:4211.

In the present case, D & B submits that the award should be modified because the arbitrator failed to rule on D & B’s breach of contract claim. In support of its motion to modify, D & B invokes La. R.S. 9:4210(D), the statute setting forth the grounds for vacation, rather than modification, of an arbitration award .

Our review of the record in its entirety discloses no evidence to support D & B’s conclusory assertion that the arbitrator failed to render a final and definite award. A final and definite award must both resolve all the issues submitted to arbitration, and determine each issue fully so that no further litigation is necessary to finalize the obligation of the parties under | ¿the award. LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc., 03-1283 (La.App. 4 Cir. 3/3/04), 869 So.2d 304, citing Holmes v. Orleans Parish School Board, 95-2451, p. 13 (La.App. 4 Cir. 7/9/97), 698 So.2d 429, 436. However, arbitrators are not required to state in the award each matter considered, or to set out the evidence, or to make findings of fact or conclusions of law. They need not give reasons or grounds for the award or conclusions, describe the process by which they arrived at their decision, or spell out the rationale of the award. Transcontinental Drilling Co. v. Davis Oil Co., 354 So.2d 235, 237 (La.App. 4 Cir.1978), citing 6 C.J.S. Arbitration § 100.

In the present case, there is no evidence in the limited record before us to support D & B’s contention that the arbitrator failed to consider its breach of contract claim. D & B was awarded an amount due for work performed under the contracts, subject to the setoffs proved by Harris. The clear implication of this ruling is that the arbitrator considered and rejected D & B’s breach of contract claim. Furthermore, the award specifically denies all other claims and counterclaims made by the parties.

After careful review of the record taken in its entirety, we find no proof of valid grounds for vacating or modifying the arbitration award. Accordingly the trial court’s judgment denying D & B’s motion to modify the arbitration award is affirmed. All costs of this appeal are assessed to D & B.

AFFIRMED.

      . It is clear that, although denominated a "Motion to Modify Award”, D & B’s motion asserts no statutory basis for modification pursuant to La. R.S. 9:4211, but makes a claim of grounds supporting vacation of the award pursuant to La. R.S. 9:4210(D). We shall consider D & B’s motion as a motion to vacate the award.

      . The arbitration proceeding was not transcribed.


author: LOLLEY, J.

text:
    Loretta GOLDSMITH, Plaintiff-Appellee v. Shedrick GREEN, III and Safeway Insurance Company of Louisiana, Defendants-Appellees Latasha D. Potts, Plaintiff-Appellant v. Safeway Insurance Company, et al., Defendants-Appellees.
    Nos. 45,532-CA, 45,533-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 1, 2010.

      Law Office of Kirby D. Kelly, by Sean T. Landry, Shreveport, LA, for Plaintiff-Ap-pellee, Loretta Goldsmith.
    Richard J. Gallot, Jr., for Plaintiff-Appellant, Latasha Potts.
    Tracy L. Oakley, Ruston, LA, for Plaintiff-Appellee, Safeway Ins. Co. of Louisiana.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| T Plaintiff, Latasha Potts, appeals a judgment of the Ruston City Court, Parish of Lincoln, State of Louisiana, in favor of Safeway Insurance Company of Louisiana (“Safeway”), which dismissed her claims, as well as the claims of Loretta Goldsmith. For the following reasons, we reverse the trial court’s judgment and remand the case to the trial court for further proceedings.

Facts

This case arises out of an automobile accident that occurred on July 19, 2006, in Ruston, Louisiana. Shedrick Green and Thaddeus Slaton were involved in an ongoing feud. Green was driving a vehicle, owned by Melodynee Pringle, west on West Vaughn Street in Ruston, following Slaton’s vehicle. Green passed Slaton’s vehicle while brandishing and pointing a gun at Slaton. When Slaton saw the gun, he slowed down and turned into a parking lot at Arlington Park. Then, Green stopped the vehicle he was driving, got out of the vehicle, fired his gun at Slaton, got back into the vehicle and continued driving.

At approximately the same time, Potts was driving a vehicle, owned by Asalyn Goldsmith, with Loretta Goldsmith and others as passengers in the vehicle. The vehicle Potts was driving was traveling South on Arlington Street approaching the intersection with Vaughn Street. Green proceeded through the stop sign at the intersection without stopping and the vehicles collided. After the collision, Green continued driving and then pulled into |2an empty lot and attempted to flee on foot. Green fired his weapon again and shot himself in the hand.

Goldsmith and Potts each filed suit against Green and Safeway, as insurer of the vehicle. Safeway had issued a policy of automobile liability insurance to Melo-dynee Pringle, the owner of the vehicle Green was operating. The separate proceedings were consolidated at the trial court. Safeway denied coverage for Green in this accident, and the case was tried on September 22, 2009. Subsequently, the trial court issued an opinion in favor of Safeway and against Goldsmith and Potts, dismissing their claims, and one judgment as to both parties was entered. This appeal by Potts ensued.

Discussion

Initially, we note that the appeal before us was brought by Potts only. Although Goldsmith has filed a brief in which she has argued various assignments of error, she failed to file a motion for appeal as required by La. C.C.P. art. 2121; therefore, we do not have jurisdiction over the controversy as it pertains to Goldsmith.

The appellant bears the burden of complying with the procedural requirements for perfecting the appeal, and failure to follow the procedural formalities may result in the failure to invest the appellate court with jurisdiction over the controversy, in which case the appeal process terminates before it ever begins. There are three procedural elements for taking an appeal: (1) a motion or petition for appeal; (2) an order of appeal; and (3) a notice of appeal. Ratcliff v. Boydell, 566 So.2d 197, 199 (La.App. 4th Cir.1990), writ denied, 571 So.2d 647 (La.1990); Belser v. St. Paul Fire & Marine Ins. Co., 542 So.2d 168 (La.App. 1st Cir.1989). In the absence of any of these essential elements, an appeal court generally has no jurisdiction to consider an appeal. Ratcliff, supra; Belser, supra.

Specifically, though a proceeding has been consolidated with another, an appeal by a party in one proceeding does not serve as such to the benefit of another party in his joined action. Darouse v. Mamon, 201 So.2d 362 (La.App. 1st Cir.1967). Such is the case before us now. Here, our thorough review of the consolidated records gives no indication that Goldsmith made a motion for appeal, although Potts did, in any form, as required under art. 2121. Notably, the matters were consolidated at the trial court level; however, the consolidation of the proceedings at the trial court does not serve to consolidate a motion for appeal later in the proceedings. Darouse, supra. The motion for appeal must be made by each individual party aggrieved by the judgment; otherwise, it is as if they have not appealed. Although Goldsmith has filed a brief in this appeal seemingly as an appellant, we have no jurisdiction to consider her arguments as such. The only party subject to this appeal is Potts, and our holding only pertains to the trial court’s judgment as it affects her alone.

In the instant case, the theory of res gestae was used to support the trial court’s conclusion that because Green’s actions formed a continuous chain of events that linked his crime to the collision, the crime exclusion applied. Although the theory of res gestae is typically used to determine the relevance or admissibility of evidence in a criminal case, in this case the trial court applied it by analogy to determine when Green’s crime of aggravated assault was completed. Such an application was unnecessary Land erroneous. This court has described res gestae events as “those criminal acts that constitute an integral part of the transaction which is the subject of the prosecution[.]” State v. Moore, 44,429 (La.App.2d Cir.08/26/09), 20 So.3d 1137, writ denied, 2009-2166 (La.04/09/10), 31 So.3d 378. Further, the doctrine of res gestae includes witness testimony of what occurred “before, during, or after the commission of the crime if a continuous chain of events is evident under the circumstances.” State v. Lowery, 33,-905 (La.App.2d Cir.02/28/01), 781 So.2d 713, writ denied, 2001-1041 (La.02/22/02), 809 So.2d 978.

However, it is not necessary to use the theory of res gestae in this case, because an analysis of the facts of the case in light of the pertinent language of the insurance policy is sufficient to resolve the issue of coverage. The language of the insurance policy is the law between the parties. Moreover, res gestae has only been used by courts in criminal matters as a means of introducing evidence for convictions of defendants, not for determining the applicability of provisions in insurance policies. Therefore, the law applicable to contracts and insurance policies should be used for guidance in interpreting the policy provisions, not the theory of res gestae. We conclude that the trial court erroneously used such an analysis.

Potts argues that the city court erred in excluding coverage under the intentional/criminal acts exclusion in the Safeway policy. We agree. The Safeway insurance policy that was issued to the vehicle driven by Green states in pertinent part:

This policy does not apply under PART 1-LIABILITY-EXCLUSIONS ...
|fi(n) to any automobile while being operated or used in the commission of a crime, other than a traffic violation.

Insurance policies “should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.” Louisiana Ins. Guar. Assn. v. Interstate Fire & Cas. Co., 93-0911 (La.01/14/94), 630 So.2d 759. Insurance companies can limit coverage in any way as long as it does not conflict with statutory provisions or public policy. Id. It is the public policy of Louisiana that liability insurance is issued for the protection of the general public as well as for the security of the insured. Walker v. State Farm Mut. Auto. Ins., 37,063 (La.App.2d Cir.06/25/03), 850 So.2d 882, writs denied, 2003-2019 (La.12/19/03), 861 So.2d 574 and 2003-2117 (La.12/19/03), 861 So.2d 575. The goal of all liability policies is to benefit injured persons and to give coverage and protection to all insureds. Marcus v. Hanover Insurance Company, 1998-2040 (La.06/04/99), 740 So.2d 603.

However, this court has recognized the strong public policies of preventing wrongdoers from indemnifying themselves against their own intentional criminal acts and for the protection of innocent injury victims. Young v. Brown, 27,018 (La.App.2d Cir.06/21/95), 658 So.2d 750, writ denied, 95-1811 (La.10/27/95), 662 So.2d 1. This court has also pointed out that no reasonable policy holder would expect for his own intentional criminal acts to be insured, but they would expect for losses resulting from negligent or non-intentional acts to be covered because that is the primary reason insurance policies are purchased. Id.

| RUnder the stated exclusion, the vehicle is not insured while it is being operated or used in the commission of a crime, other than traffic violations. We agree that as the facts of this case exist, the actions involving the vehicle were criminal and uninsured up until the assault against Sla-ton was concluded (i.e., at the point that Green stopped shooting and returned to the vehicle). As described by the trial court in its opinion, “Green stopped at the stop sign located at the intersection of Vaughn Avenue and Arlington Street, jumped out of his ear, pulled a gun and fired shots at occupants of another vehicle, jumped back in his car[.]” At that point, the commission of the crime ended. In fact, Green was criminally charged only for the assault of Slaton based on those facts.

Afterwards, as noted by the trial court, Green “took off’; he proceeded to drive erratically, veering through a stop sign (a traffic violation, but still insured under the policy) and negligently hitting the vehicle driven by Potts. He was not charged with committing a crime for leaving the scene of the crime (i.e., shooting at Slaton), and at the time he hit the vehicle driven by Potts, the commission of the crime had clearly ended. Notably, Potts was not a victim of the crime either-she had absolutely no connection with the shooting. This was not a continuous chain of criminal évents as characterized by the trial court, and the negligent collision with Potts was not an integral part of the assault on Slaton. To find as such would serve to enlarge the criminal exclusion provision beyond what would be reasonably contemplated by the terms of the policy. We conclude that Green’s criminal actions were completed when he hit Potts’ |7vehicle, the exclusion was inapplicable to Green’s actions, and coverage should apply.

Conclusion

Considering the foregoing, we reverse the judgment of the trial court in favor of Safeway Insurance Company of Louisiana and remand this matter to the trial court for further proceedings as to Latasha Potts only. All costs of these proceedings are assessed to Safeway.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . Green was ultimately convicted of aggravated assault with a firearm and is incarcerated.