author: JUDE G. GRAVOIS Judge.

text:
    Rosa PEÑA v. Adrianna SIMEON and USAgencies Casualty Insurance Company, Inc.
    No. 11-CA-1083.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Ivan A. Orihuela, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    Scott A. Cannon, Shannon M. Liver-more, Attorneys at Law, Slidell, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, Jude G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS Judge.

LThe plaintiff, Rosa Peña, appeals the trial court’s grant of summary judgment in favor of the defendant insurer, USAgen-cies Casualty Insurance Company, Inc., finding that the uninsured/underinsured bodily injury motorist coverage on the auto policy issued by the defendant insurer was validly waived. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff was involved in an automobile accident on Huey P. Long Avenue in Gret-na, Louisiana, on August 21, 2008. On January 6, 2009, plaintiff filed suit against her insurer, USAgencies Casualty Insurance Company, Inc. (“USAgencies”), seeking uninsured/underinsured bodily injury motorist coverage (“UMBI”) for personal injuries she allegedly sustained in this accident. USAgencies answered plaintiffs petition claiming that there was no UMBI |Hcoverage under the policy in question because UMBI coverage had been validly rejected when the policy was purchased on May 3, 2008.

On May 12, 2009, USAgencies moved for summary judgment, claiming that there was a valid rejection of UMBI coverage on the policy. In support of its position, US-Agencies submitted the policy application, the declarations page of the policy, the UMBI Coverage Form for the policy, and the financing agreement for the policy premiums. These documents reflect the following:

• Plaintiff signed both pages of the policy application.
• Fausto Justo and plaintiff are both named as “Covered Persons” on policy application.
• The declarations page of the policy lists Mr. Justo’s name next to “Insured’s Name and Address”.
• Mr. Justo and plaintiff are listed as the “Operators” on the declarations page.
• Plaintiff initialed the UMBI Coverage Form next to UMBI Coverage option number 5, which states: “I do not want UMBI coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist.” (Emphasis in original.)
• “Fausto Justo” is typed on the line entitled “Named Insured or Legal Representative” on the UMBI Coverage Form.
• Plaintiff signed the UMBI Coverage Form on the line entitled “Signature of a Named Insured or Legal Representative”.
• The only form that Mr. Justo signed is the financing application for the policy premiums.

In its motion for summary judgment, US-Agencies argued simply that if plaintiff did not have authority to sign the UMBI Coverage Form, then she had no authority to sign the application, and therefore, the policy is void.

Plaintiff responded that the UMBI Coverage Form is invalid because it was not signed by the “named insured” (Mr. Jus-to), or his “legal representative.” Alternatively, plaintiff argued that there was a material issue of fact as to whether |4plaintiff was Mr. Justo’s legal or authorized representative. At the conclusion of the hearing on the motion for summary judgment, the trial court denied the motion without reasons.

USAgencies then deposed plaintiff. In her deposition, plaintiff testified that she lives with Mr. Justo, who is the father of her two children. She explained that she and Mr. Justo went to the agency together to obtain insurance. She stated that Mr. Justo was going to be “the one on the policy, but he was giving me authority to drive the vehicles.” She denied that Mr. Justo gave her authority to sign the forms. Rather, the “lady” at the agency “told us that we both had to sign the forms in order to drive the vehicles.” She acknowledged that Mr. Justo only signed the financing agreement for the policy premiums and did not sign the policy application. She stated that she read the documents she signed, but could not understand them because they were in English and she does not read English or “know what it says.” Plaintiffs native language evidently is Spanish. She testified that the agent did not speak to her in Spanish.

On August 27, 2010, USAgencies filed a second motion for summary judgment. In this motion, USAgencies argued that on the date the policy was issued, plaintiff was an “additional insured” under the policy. It noted that plaintiff testified in her deposition that it was her intention to obtain automobile insurance for Mr. Justo and herself so that she could operate Mr. Justo’s vehicles. It argued that “any insured named in the policy” is authorized to sign the UMBI Coverage Form, and concluded that because plaintiff had authority to sign the form, UMBI coverage was validly rejected.

In defense of this second motion for summary judgment, plaintiff repeated her prior argument that there was no valid waiver of UMBI coverage because the UMBI Coverage Form states that Mr. Justo is the “named insured” on the policy, Ubut the policy is signed only by plaintiff. Plaintiff contends that in order for the UMBI Coverage Form to be valid, it had to be signed by the named insured. Plaintiff argued that the only new evidence presented by USAgencies in its second motion for summary judgment is plaintiffs deposition which actually corroborates her arguments that the waiver contained in the UMBI Coverage Form is invalid. Plaintiff points out that in her deposition, she testified that she and Mr. Justo had never been married, and that she did not have authority to sign any documents on his behalf. Plaintiff further argued that she did not understand what she was signing because she could not understand or read English.

At the conclusion of the hearing on US-Agencies’ second motion for summary judgment, the trial judge granted the motion, finding that plaintiff was an insured under the policy, and as an insured under the policy, had authority to reject UMBI coverage. This timely appeal followed.

LAW AND DISCUSSION

Appellate courts review motions for summary judgments de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The mover bears the initial burden of showing that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2).

Louisiana Revised Statutes 22:1295(l)(a)(i) provides, in pertinent part, that no policy of automobile liability insurance “shall be delivered or issued for ^delivery in this state” without uninsured motorist coverage; however, UMBI coverage “is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item(l)(a)(ii) of this Section.” (Emphasis added.) Subsection (l)(a)(ii) of La. R.S. 22:1295 provides, in pertinent part, that the “rejection, selection of lower limits, or selection of economic-only [UMBI] coverage shall be made only on a form prescribed by the commissioner of insurance,” that “[t]he prescribed from shall be provided by the insurer and signed by the named insured or his legal representative,” and that “[a] properly completed and signed form creates a re-buttable presumption that the insured knowingly rejected [UMBI] coverage.” (Emphasis added.)

The UMBI coverage statute is to be liberally construed. Duncan v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544, 547. Accordingly, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Id. Whether the insurer is entitled to summary judgment depends on whether the insurer carried its burden of producing factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial, ie., by producing a valid UMBI Coverage Form by which any insured under the policy rejected such coverage. Accordingly, the only issue to be decided in this appeal is whether the UMBI Coverage Form signed by plaintiff validly rejected UMBI coverage.

Plaintiff argues that she is not Mr. Jus-to’s spouse, nor his legal representative, and accordingly, had no authority to sign the UMBI Coverage Form. While we acknowledge that plaintiff testified that she and Mr. Justo have never been married, we find the cases that have held that a spouse can validly reject UMBI coverage to be instructive.

|7In Bonnette v. Robles, 32,191 (La.App. 2 Cir. 8/18/99), 740 So.2d 261, the court held that the named insured’s spouse was an “insured named in the policy” entitled to select lower limits of UMBI benefits, in spite of the fact that the policy did not designate her as a named insured. Also, in Tucker v. Valentin, 01-755 (La.App. 5 Cir. 12/26/01), 807 So.2d 292, 294-95, this Court upheld the validity of a UMBI rejection form where the spouse placed her husband’s initials next to the option to reject UMBI coverage and signed her husband’s name on the rejection form. This Court reasoned that the spouse was a named insured under the policy and had expressed an intent not to receive UMBI coverage in the policy under which she was an insured. Further, in Bel v. State Farm Mutual Automobile Ins. Co., 02-0360 (La.App. 1 Cir. 2/14/03), 845 So.2d 459, writ denied, 03-0734 (La.5/30/03), 845 So.2d 1058, the plaintiffs argued that each insured named in the policy must sign a UMBI rejection in order for the rejection to be valid. The appellate court found “the wording of the statute clearly allows any insured named in the policy to reject UMBI coverage.” Id. at 462.

The relevant statute, La. R.S. 22:1295(l)(a)(i), clearly states that “any insured named in the policy” can reject coverage. There is no dispute that plaintiff is listed as a covered person under this policy, and thus is “any insured named in the policy.” When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. Barrilleaux v. NPC, Inc., 98-0728 (La.App. 1st Cir.4/1/99), 730 So.2d 1062, 1064, writ denied, 99-1002 (La.5/28/99), 748 So.2d 672. Accordingly, since plaintiff was listed as an insured under this policy, she had the authority to reject UMBI coverage and sign the UMBI waiver of Coverage Form.

We find that plaintiffs reliance on Duncan v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544, in this case is misplaced. In Duncan, supra, [sthe Supreme Court listed the following six tasks which are required in order to complete the UMBI Coverage Form prescribed by the Commissioner of Insurance, to-wit: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date. As opposed to the facts in the case before us, Duncan involved a defective form in which the policy number was not noted. Further, in Harper v. Direct General Ins. Co., 08-2874 (La.2/13/09), 2 So.3d 418, the Court explained that “as long as the name of the named insured is printed and the legal representative signs the form,” tasks three and four are satisfied.

The purpose of requiring the UMBI Coverage Form to be clear and unmistakable is to establish that the insured knowingly waived coverage under a particular policy. Dixon v. Direct Gen. Ins. Co. of Louisiana, 08-0907 (La.App. 1 Cir. 3/27/09), 12 So.3d 357, 362. In this case, we find that the form executed by plaintiff complies with the formal requirements of law in that there is a clear rejection of UMBI coverage, the form is signed and dated, and it contains the policy number and the name of the insured. Accordingly, by submitting the UMBI Coverage Form signed by plaintiff in support of its motion for summary judgment, USAgen-cies has produced factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial, i.e., that plaintiff validly rejected UMBI coverage by initialing and signing the UMBI Coverage Form, indicating that she did not want UMBI coverage. At that point, the burden shifted to plaintiff to rebut the presumption that plaintiff knowingly rejected UMBI coverage.

|nIn an attempt to rebut this presumption, plaintiff argued that Spanish is her native language and she did not understand the form that she signed which was written in English. Plaintiff argues that in Duong v. Salas, 38,613 (La.App. 2 Cir. 6/23/04), 877 So.2d 269, writ denied, 04-1840 (La.10/29/04), 885 So.2d 590, the waiver of UMBI coverage was held to be invalid where there was evidence that the insured could not adequately and fully read and understand English. USAgencies counters that Duong is distinguishable from this case in that the insured in Duong spoke no English at all, whereas in this case, plaintiff testified that she does not read or speak English well, and that in her deposition, she was shown the policy in question and was able to read it well enough to recognize it as the policy. USA-gencies also asserts that the facts of this ease is more akin to the facts in Rizzo v. Ward, 09-1325 (La.App. 4 Cir. 2/24/10), 32 So.3d 986, where the court found a valid rejection of UMBI coverage though the insured claimed that he could not speak, read or write English fluently. We agree with USAgencies’ argument that the facts in this case are more in line with the facts in Rizzo, rather than the facts in Duong.

Further, we note that the section of the policy application entitled “Applicant’s Statement,” which plaintiff signed, states that “I declare that I have read the application and provided the information requested by the insurance company.” The USAgencies representative signed the policy application under the section that states “I also certify that all questions on the application have been answered by the applicant,” and “that the responses provided are those of the applicant who has signed this application in my presence.” Plaintiffs deposition makes it clear that she accompanied Mr. Justo to the insurance agent’s office for the purpose of buying insurance so that she could drive his vehicles. She makes no claim of fraud, duress, or misconduct on the part of the insurance agent. Plaintiff lindid not testify that she told the agent she did not understand any of the documents or that she needed any of the forms to be explained to her in Spanish before she would sign them. It is well settled that a party who signs a written instrument is presumed to know its contents. Coleman v. Jim Walter Homes, Inc., 08-1221, p. 7 (La.3/17/09), 6 So.Bd 179,188; Aguillard v. Auction Management Corp., 04-2804 (La.6/29/05), 908 So.2d 1, 23, citing Tweedel v. Brasseaux, 433 So.2d 133, 137 (La.1983). Thus, we find that plaintiffs assertion that she did not understand the UMBI Coverage Form is not sufficient under the particular facts of this case to rebut the presumption that plaintiff knowingly rejected UMBI coverage.

CONCLUSION

For the foregoing reasons, the judgment of the trial court under review is hereby affirmed.

AFFIRMED

      . The other driver, Adrianna Simeon, who was also made a defendant in plaintiffs suit, is not involved in this appeal.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Pamela Marinovich SHORT v. David Allen SHORT.
    No. 11-CA-1084.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    See also, 77 So.3d 405.

      Rachel C. Marinovich, New Orleans, LA, for Plaintiff/Appellee, Pamela Marinovich Short.
    Bennett Wolff, Attorney at Law, Metair-ie, LA, for Defendani/Appellant, David Allen Short.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

12This is an appeal by a divorced husband from a judgment awarding interim spousal support to his former wife. We affirm.

PROCEEDINGS BELOW

The suit has been much-litigated, having come before us previously on several writ applications and two prior appeals. The current appeal arises following an eviden-tiary hearing held on remand pursuant to this Court’s order, following our ruling that vacated the district court’s award of interim spousal support. We held that the plaintiff, Pamela Marinovich Short, was entitled to interim spousal support from April 15, 2006 through March 27, 2008, but we remanded the matter for a full eviden-tiary hearing on Pamela Short’s needs and David Short’s ability to pay. Short v. Short, 09-639, p. 11 (La.App. 5 Cir. 3/23/10), 33 So.3d 988, 995, writ denied, 2010-1086 (La.9/3/10), 44 So.3d 688.

We note that since the previous appeal Pamela Short has reverted to her birth name, Pamela Marinovich, which is the name we shall use on this appeal.

| .¡The hearing on remand was held on July 14, 2011. On September 1, 2011, the district court rendered judgment that ordered David Short to pay Pamela Short (Marinovich) $44,968.71, plus legal interest for the period of April 15, 2006 through March 2008.

The trial court issued written Reasons for Judgment, followed by Supplemental Reasons for Judgment on September 7, 2011. The court stated as follows in pertinent part:

Mr. Short contends that Ms. Short had additional sources of funds including personal injury settlements and loans from her family from which to pay her expenses and that the Court should consider the total monies available to Ms. Short. The Court finds that the amount of interim spousal support should not be reduced using the separate assets of Ms. Short. There is a statutory duty to support one another during the marriage. Interim spousal support which is imposed prior to termination of the marriage is based upon the duty of each spouse to support the other. Therefore, interim spousal support should not be reduced or offset by the separate property of either spouse.
Furthermore, the Court will not impute additional earnings to Ms. Short. Mr. Short claims that she had additional income and earning capacity, however, it was not shown by competent evidence that she actually earned more income.
Mr. Short also asserts that any award should be reduced by credits to which he is entitled. However, Mr. Short is entitled only to credits for amounts which were actually included on Ms. Short’s expense list. Credit or reimbursement for other claimed payments are more properly addressed in the community property partition and child support obligation. The Court finds that he is entitled to the following credits: $1,237.50 for the auto mortgage for eleven months; $1,418.94 for the auto insurance which amount was uncontested by the parties, and $314.85 for utilities payments.
Although Ms. Short submitted little supporting documentation, the Court finds that the amounts claimed were not unreasonable and therefore, will adopt them for use. Ms. Short had monthly expenses of $2,540.00. Her net monthly income was $500.00 ($2,300.00 per month l4less $1,800.00 child support). Interim spousal support should be set at $2,040.00 per month for twenty-three and one-half months (April 15, 2006 through March 2008) or $47,940.00 subject to a reduction for the above listed credits. Therefore, Ms. Short should be awarded $44,968.71 in interim spousal support for the relevant time period April 15, 2006 through March 2008.

In the Supplemental Reasons for Judgment the trial court stated, in pertinent part:

The purpose of interim spousal support is to maintain the claimant spouse in a standard of living comparable to that enjoyed by the parties during the marriage. In determining the amount of the award, the Court examined all of the statutory factors such as the means of Ms. Short, the lifestyle of the parties during the marriage as well as the ability of Mr. Short to pay. Upon consideration of the evidence, the Court finds that Mr. Short had $10,000.00 per month in income. Tax returns submitted into evidence indicated that he consistently made in excess of $100,000.00 per year during the years in question from his employment with IBM. In addition, Mr. Short also had income as a reserve officer with the Jefferson Parish Sheriffs Office. Even after taking into account federal and state taxes, insurance and retirement, the Court finds that Mr. Short had in excess of $6,000.00 per month net income. Therefore, Mr. Short had sufficient means to pay the determined amount of interim spousal support for the relevant time period.
Ms. Short has proven sufficient needs. None of the expenses listed by Ms. Short was excessive. The amounts were reasonable and in line with the monthly expenditures and lifestyle maintained by the parties during the marriage.
Mr. Short seeks review.

ASSIGNMENTS OF ERROR

On appeal Mr. Short makes the following assignments of error:

1. The trial court erred in awarding Ms. Short an award of interim spousal support in the amount of $44,968.71, because Ms. Short failed to provide any financial documentation regarding her income, as required by La. R.S. 9:326.

2. The trial court erred in determining the amount of credit which Mr. Short was entitled to deduct pursuant to R.S. 9:821(D) from the interim spousal | ¡¡support award, because the court failed to consider all the factors enumerated in La. C.C. art. 113 in calculating the interim spousal support award. Thus, the trial court erroneously failed to give Mr. Short credit toward the interim spousal support obligation for payments made to or on behalf of the recipient, as provided in La. R.S. 9:321(D).

3. The trial court erred in awarding Ms. Short legal interest in a matter involving the establishment of an interim spousal support award.

LAW AND ANALYSIS

In a proceeding for divorce, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage. La. C.C. arts. Ill, 113. A spouse’s right to claim interim periodic support is grounded in the duty statutorily imposed on spouses to support each other during marriage and, thus, provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. Short v. Short, 09-639, p. 9 (La.App. 5 Cir. 3/23/10), 33 So.3d 988, 994, writ denied, 2010-1086 (La.9/3/10), 44 So.3d 688.

Interim spousal support is designed to assist the claimant in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce. Hall v. Hall, 08-706, p. 4 (La. App. 5 Cir. 2/10/09), 4 So.3d 254, 257, writ denied, 2009-0812 (La.5/29/09), 9 So.3d 166. The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation- until a final determination of support can be made. Id. The court may award an interim spousal support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. Id.

|fiThe trial court is vested with much discretion in determining awards of spousal support. Rodriguez v. Rodriguez, 02-0439, p. 9 (La.App. 4 Cir. 1/29/03), 839 So.2d 368, 374. Such determinations will not be disturbed absent a clear abuse of discretion. Id. As to interim spousal support specifically, “[a]n abuse of discretion will not be found if the record supports the trial court’s conclusions about the means of the payor spouse and his or her ability to pay.” Lambert v. Lambert, 06-2399, p. 10-11 (La.App. 1 Cir. 3/23/07), 960 So.2d 921, 928.

Factual findings shall not be set aside absent manifest error. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). To substantiate reversal, the appellate court must find from the record that there is no reasonable factual basis for the finding of the trial court and that the record establishes that the finding is clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

A spouse demonstrates a need for interim spousal support if she demonstrates that she lacks sufficient income to maintain the style or standard of living that she enjoyed while residing with the other spouse during the marriage. Molony v. Harris, 2009-1529, p. 3 (La.App. 4 Cir. 10/14/10), 51 So.3d 752, 756. Interim spousal support is specifically designed to maintain the status quo during litigation; as such, the burden is on the claimant to prove her entitlement to such support. Molony, 2009-1529 at pp. 4, 51 So.3d at 756-757.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of that discretion. Encompassed in the trial court’s discretion is the ability of the court to examine the spouses’ entire financial condition, which is not limited to income, but also includes any resource from which his or her needs can be supplied, including a spouse’s earning capacity. [Citations omitted.]

Hitchens v. Hitchens, 38,339, p. 3 (La.App. 2 Cir. 5/12/04), 873 So.2d 882, 884-885. La. R.S. 9:326 states, in pertinent part:

A. Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Suitable documentation of current earnings shall include but not be limited to pay stubs or employer statements. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party....

A. Documentation of need and income

Mr. Short argues that Ms. Marinovieh failed to prove her entitlement to interim spousal support because she failed to comply with the mandates of La. R.S. 9:326 regarding documentation of her income. Ms. Marinovieh relied on her income and expense form submitted on September 21, 2007, in connection with a session before the domestic hearing officer.

On the day of the remand hearing at issue here, she had supporting documents in court with her, but did not enter those into evidence. She relied to some extent on the documentation provided by Mr. Short to show the family expenses during the marriage prior to their separation.

The trial court determined that Ms. Marinovieh adequately established her need because none of the expenses she listed were excessive. The court stated, “The amounts were reasonable and in line with the monthly expenditures and lifestyle maintained by the parties during the marriage.”

Ms. Marinovieh stated she could not produce tax returns for the period after the couple separated because she did not earn enough income to be required to file returns in 2006 and 2007. She used the child support payments being made by Mr. Short, as well as loans from friends and family members and from two lawsuit settlements, to meet her expenses.

We find no merit to Mr. Short’s assertion that Ms. Marinovieh was required to return to work after their separation. She testified she had worked part-time as a [ 8nurse up until Hurricane Katrina, which was in late August 2005. After Katrina, however, she stopped working as a nurse and became a full-time mother until approximately September 2007, when she began working at St. Tammany Parish Hospital. Thus, at the time of the parties’ separation she was not employed as a nurse and had not been so employed for several months. There is no evidence that her staying home with the children as a full-time mother was without the consent of Mr. Short. See Lowentritt v. Lowentritt, 11-703 (La.App. 5 Cir. 3/13/12), 90 So.3d 1081.

Prior to Katrina Ms. Marinovich also had a side business as a calligrapher of wedding invitations, which she said earned a couple of hundred dollars a month. She testified her calligraphy business declined to nothing after Katrina, due to lack of demand for those services.

She testified her expense figures on the form were mostly estimates. The figures do not include the housing expense, because she lived in houses owned by her and her husband. The hearing officer determined that the expense of housing should be relegated to the parties’ community property settlement, and on de novo review the district judge agreed with that determination.

As stated above, the purpose of interim spousal support is to maintain the party receiving in a standard of living comparable to that enjoyed prior to the separation. The trial court found Ms. Marinovich’s testimony credible and her claims reasonable. We find no abuse of the trial court’s discretion on these issues.

B. Credit pursuant to La. R.S. 9:321(D)

Mr. Short argues he is entitled to credits for amounts paid toward his interim spousal support obligation. The court granted him some credits, as set out in the Reasons for Judgment, but denied credits for payments on the mortgages on the parties’ two homes, on the basis those will more properly be addressed in the ^community property partition and child support determinations. Further, Ms. Marinovich did not include those expenses in her expense list.

We find no error in that ruling.

C. Award of legal interest

The appellant seeks reversal of the interest award entirely, arguing interest on a newly-established award of spousal support is not permitted because La. C.C. art. 113 does not contain a provision for legal interest. He contends interest on a spousal support award is allowed only if the award was made executory and the obligee has brought a rule for contempt.

La. C.C.P. art. 1921 provides, “The court shall award interest in the judgment as prayed for or as provided by law.” Since the word “shall” in La. C.C.P. art. 1921 is mandatory, the court lacks discretion to deny interest if interest is prayed for or provided for by law. La. R.S. 1:3.

La. C.C. art. 2000 provides for judicial interest on money awards as follows, in pertinent part:

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by Article 2924. The obligee may recover these damages without having to prove any loss....

Thus, judicial interest on child support and spousal support is provided for in La. C.C. art. 2000.

When a party prays for an award of interest in a pleading seeking a money judgment, the court lacks discretion to deny interest on the award. Aupied v. Aupied, 09-636, pp. 6-7 (La.App. 5 Cir. 3/9/10), 38 So.3d 899, 903-904.

Judicial interest on past due child support and spousal support accrues from the date each payment is due, rather than from the date of demand. Bickham v. Bickham, 2002-1307, p. (La.App. 1 Cir. 5/9/03), 849 So.2d 707, 710-711.

| inThe written judgment does not state the date when interest was to begin. In her brief on appeal, Ms. Marinovich states that the district court awarded legal interest only from the end of March 2008, which she asserts “substantially complies with the requirements of legal interest pursuant to Article 2000.”

Considering the above, we find no basis to disturb the award of legal interest.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of appeal are assessed against the appellant, David Allen Short.

AFFIRMED

      . The previous appeals and writ applications in this case, all under the name Short v. Short, are as follows: (1) 08-637 (La.App. 5 Cir. 8/15/08), writ denied (unpublished writ disposition); (2) 09-416 c/w 09-639 c/w 09-640 (La.App. 5 Cir. 3/23/10), 33 So.3d 988, affirmed in part, reversed in part, and remanded, writ denied, 2010-1086 (La.9/3/10), 44 So.3d 688; (3) 11-3 (La.App. 5 Cir. 10/25/11), 77 So.3d 405, affirmed, writ denied, 2011— 2635 (La.2/10/12), 80 So.3d 472; (4) 11-493 (La.App. 4 Cir. 5/6/11), writ granted (unpublished writ disposition).


author: WALTER J. ROTHSCHILD, Judge.

text:
    Sharon LEWIS v. Clifton JONES and Allstate Insurance Company.
    No. 11-CA-1117.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      H. Edward Sherman, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    James L. Donovan, Jr., Attorney at Law, Metairie, LA, for Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   WALTER J. ROTHSCHILD, Judge.

12Sharon Lewis filed this negligence action against her father, Clifton Jones, and his homeowner’s insurer, Allstate Insurance Company, after she sustained a fall in Mr. Jones’ home. Following a jury trial, judgment was rendered partially in favor of defendants, and plaintiff now appeals on the basis of several assignments of error. We affirm.

In her petition, Sharon Lewis alleged that on March 7, 2006, she was a visitor to her father’s home in Marrero, Louisiana. While walking on the floor of the dining room, she stepped onto a worn or soft spot and the floor buckled and collapsed, causing her foot to go through the flooring. Plaintiff alleges that Mr. Jones lived in the home for over 50 years and was aware or should have been aware of soft spots in the flooring, yet failed to repair them or warn Mrs. Lewis of their existence. Plaintiff further alleges that Mr. Jones is liable for the defective condition and ruin of the flooring, and that the home was insured by Allstate, who was liable in solido with Mr. Jones.

Defendants answered the petition and requested a jury trial. Prior to trial, defendants filed a Motion in Limine seeking to have the recorded statement of | sClifton Jones read to the jury and placed into evidence, as Mr. Jones is now deceased. Plaintiff opposed this motion on the basis that defendants failed to produce Mr. Jones for a deposition on at least two occasions in 2007 upon the request of plaintiff. Further, plaintiff argued that the statement was unreliable as two investigators took two separate statements and asked leading questions to avoid answers which were against Allstate’s interest. The trial court granted the motion, allowing the parties to introduce the recorded statements of Clifton Jones.

On August 5, 2010, the morning of trial, plaintiff dismissed her claims against Clifton Jones and the Estate of Clifton Jones, reserving her rights against Allstate as the homeowner’s liability insurer of Mr. Jones on the date of this accident.

At trial, plaintiff testified that following an evacuation due to Hurricane Katrina, she was living in Houston in 2006. On March 7, 2006, plaintiff went to visit her father at his home in Marrero. The last time she had visited her father was Christmas 2005. As soon as she arrived at the house in 2006, she hugged her father and then proceeded across the floor to plug in her cell phone. At this point, the floor collapsed and she fell through the floor. She stated she was aware the house was undergoing repairs, but she was not aware of the condition of the floor. She was also not sure at the time whether her father knew of the floor’s condition. However, she testified she later learned that there was another hole in the floor which occurred when her sister and niece removed the carpeting from the floor, and that her father should have known the floor was rotten.

Plaintiff also testified that she sought treatment for her injuries when she returned to Houston. She stated that before the accident, she was very active, including visiting with her children and grandchildren, singing, cooking, sewing, beading, fixing hair and travelling for church. However, after the accident, she is |4no longer able to do these activities because of the pain and pressure from standing or sitting for long periods.

Plaintiff also presented the testimony of Latoya Joseph, Mr. Jones’ granddaughter and plaintiffs niece. Ms. Joseph testified that in 2006, she visited with Mr. Jones at his home several times and during this time she assisted in pulling up carpet from the dining room floor. She stated she noticed that the floor was “rotten” in several spots. Ms. Joseph testified that her grandfather was aware of the condition of the floor. Ms. Joseph also testified that prior to this accident, Mrs. Lewis loved to travel and cook, and kept her house in good condition. She noticed that following this accident, Mrs. Lewis was unable to complete daily activities, including cooking and cleaning, because of the pain from her injuries.

Plaintiff also presented the testimony of Lana Thompson, plaintiffs sister and Mr. Jones’ daughter. Ms. Thompson lived with Mr. Jones in his home prior to his death. Ms. Thompson stated that Mr. Jones made a claim with Allstate for the damage to his home following Hurricane Katrina, and that she was present when the adjuster came to the home. She also stated that she observed her sister and her niece remove the carpet from the dining room floor and that she saw that the floor was old and damaged. The removal of the carpet resulted in a hole in the floor and Ms. Thompson placed a box over the hole to prevent anything from coming into the house through the floor. Ms. Thompson stated that Mr. Jones was aware of this hole.

However, Ms. Thompson stated that Mrs. Lewis fell through a different part of the floor in a nearby area of the same room. Ms. Thompson also testified that before her injuries, Mrs. Lewis loved to cook, clean and travel, but that she is no longer able to do these things because of the pain from the injuries.

| ¡¿Plaintiff also presented medical evidence, including her hospital and physicians’ records, as well as the video deposition of Dr. Hong Nguyen and Dr. Matthew Grimm.

Following the presentation of plaintiffs case, defendant played for the jury the audiotaped statement of Clifton Jones, which was taken by an Allstate adjuster on March 22, 2006, approximately 2 weeks after the accident. In the recording, Mr. Jones stated the floor in his home had been damaged following Hurricane Katrina, and that when his daughter came to visit, he did not know the floor was rotten and did not know to warn her about the condition.

Following trial, the jury found Mr. Jones to be negligent, which they found to be a proximate cause of his daughter’s injuries. His fault was set at 50%. The jury also found that plaintiffs own negligence was a proximate cause of her injuries, and her fault was also set at 50%. Plaintiff was awarded $40,000.00 in general damages and $7,500.00 in medical expenses. Mrs. Lewis responded to this verdict with a Motion for Judgment Notwithstanding the Verdict (JNOV), Motion for New Trial and Motion for Additur. These motions were denied by the trial court on February 17, 2011, and it is from this judgment that plaintiff now appeals.

Admissibility of the Statement

By her first assignment of error, plaintiff argues that the trial court abused its discretion by permitting defendant to read the second statement of Clifton Jones to the jury. Plaintiff argues that the second statement is suspect as it was different from an earlier statement taken by another Allstate investigator, and it appears Mr. Jones was coached by the investigator. Plaintiff further argues that because defendants failed to present Mr. Jones for a deposition prior to trial, the statement cannot be used as evidence.

16Prior to trial in this matter, the trial court granted defendants’ motion in li-mine to allow introduction of the statement of Clifton Jones as he was unavailable as a trial witness because of his death. At trial, defendants played to the jury an audiotaped statement of Mr. Jones taken over the telephone by David Houser on March 22, 2006. The record indicates that this was the first statement of Mr. Jones taken by Allstate. A copy of the transcript of both statements is attached to plaintiffs opposition to the motion in li-mine. The second statement was taken on March 23, 2006 in Mr. Jones’ home while his daughter Lana Thompson was present. Although the first statement was read to the jury, the substance of both statements is similar. Mr. Jones stated that he did not know the flooring was rotten, but he provided very few details of the circumstances of the accident other than his daughter fell in his home.

Questions of admissibility of evidence fall within the province of the trial court. La. C.E. art. 104(A). Because of Mr. Jones’ death prior to trial, he was an unavailable witness at trial. La. C.E. art. 804(A)(4). La. C.E. art. 804(B)(6) states in part that a statement by an unavailable witness will not be excluded by the hearsay rule in this circumstance:

(6) In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines that considering all pertinent circumstances in the particular case the statement is trustworthy, and the proponent of the evidence has adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates and the proponent of the statement makes known in writing to the adverse party and to the court his intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.

|7We find that the statement of Mr. Jones met the criteria of the foregoing statute and was properly admitted into evidence by the trial court on this basis. See, Cross v. Lake Area Rehab. Services, Inc., 00-224, p. 6 (La.App. 3 Cir. 10/11/00), 771 So.2d 768, 771. The only evidence of Mr. Jones’ knowledge of the condition of the floor is contained in his statements, and there is no reason to find such statements are not trustworthy. Although plaintiff argues she was prevented from taking the deposition of her father, the record fails to contain evidence that such a deposition was compelled by her.

Further, after review of both statements contained in the record, we fail to find that the statement played for the jury was “suspect” or that the substance of the two statements was conflicting. In addition, plaintiff was free to introduce the second statement into evidence or to examine Mr. Jones’ daughter on any discrepancies as she was present during both statements. Plaintiff failed to meet her burden to show that the statement of Mr. Jones was improperly admitted as evidence in this case. Under these circumstances, we find no abuse of the trial court’s discretion in allowing the previous statement by Mr. Jones to be admitted into evidence.

Comparative Fault

Plaintiff next argues that the jury erred in its assessment of comparative fault when there was a lack of evidence that she knew or should have been known of the condition of the floor prior to walking on it. She argues that photographs of the flooring admitted into evidence fail to indicate an obvious defect which she should have noticed as she walked into the house. Further, she contends that because her [^father failed to warn her of the condition of the floor, it was error to find any comparative fault on her part.

Comparative fault is governed by La. C.C. art. 2323. It is well settled that the assessment of comparative negligence is a factual matter within the sound discretion of the trial court, and such determination by the trier of fact will not be disturbed on appeal in the absence of manifest error. Gibson v. State, Department of Transportation and Development, 95-1418, 95-1419 (La.App. 1 Cir. 4/4/96), 674 So.2d 996, 1004, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373, 374.

In the present case, we are unable to determine that the factual determinations of the jury were manifestly erroneous. Plaintiff testified she was aware that repairs were being made in the house at the time of her visit, and she was aware the house had been damaged in Hurricane Katrina the previous year. The photographs submitted into evidence depict a home under construction, and although Mr. Jones did not warn plaintiff of the condition of the floor, plaintiff should have known to proceed with caution into a home under repairs. The jury apparently concluded that plaintiffs actions contributed in part to her accident, and we will not disturb this finding in the absence of manifest error.

Quantum

Plaintiff contends the jury was manifestly erroneous in only awarding $40,000 in general damages where she presented evidence that she still suffered from pain in her hip and low back over four years after the accident and that the injury was permanent and restricted her physical activities. Considering these injuries, plaintiff submits that an award of $100,000 is the least amount the court is authorized to award.

|flThe assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Id.

The record contains the videotaped deposition testimony of Dr. Hong Nguyen, an internist, who saw plaintiff in March of 2006, 3 weeks after her fall. He prescribed pain medication and plaintiff returned to see him in June of 2006 with the same complaints. Dr. Nguyen referred plaintiff to an orthopedist, Dr. Grimm.

Dr. Matthew Grimm, an orthopedist, stated that Mrs. Lewis came to see him in June of 2006 for hip and back pain that she stated was caused by a fall in her father’s home three months earlier. Dr. Grimm treated her with steroid injections, anti-inflammatory medication and physical therapy, and he related her injuries to the accident as plaintiff described it to him. Dr. Grimm subsequently ordered an MRI, which showed degenerative changes and arthritis in plaintiffs spine. However, he stated the changes were consistent for someone her age and the MRI as a whole was “unremarkable.”

Dr. Grimm state he diagnosed plaintiff with sciatica. Dr. Grimm also stated that plaintiff complained of knee pain in 2008, but he did not have an opinion on the cause of that symptom. Dr. Grimm stated that plaintiff continued to experience hip pain into 2008, and he ruled out the presence of a herniated disc. Dr. Grimm then referred her to Dr. Katz, an orthopedic surgeon. In 2009, he referred plaintiff to a neurosurgeon who did not think plaintiff was a candidate for surgery. Dr. Grimm stated that based on the history he had from plaintiff, he attributed her | ^injuries to the fall at her father’s house. He was not able to assign a disability rating.

On the basis of the medical evidence and plaintiffs testimony regarding the impact of the injuries on her physical and emotional condition, the jury awarded plaintiff $40,000 in general damages. Without providing jurisprudential support therefor, plaintiff contends that the lowest award plaintiff should have received for her injuries was $100,000.

The record in this case supports the jury’s award. Medical evidence indicates that plaintiff sustained an aggravation to her hip and spine that Dr. Grimm diagnosed as sciatica. However, the injury was not permanent and surgery was not recommended. She did not sustain a herniated disc. The objective medical evidence did not show more than normal degenerative changes in her hip and spine. She was treated through 2008, and the evidence of treatment in 2009 and 2010 was sporadic. Although plaintiff contends that her injuries were ongoing at the time of trial, Dr. Grimm stated that by December of 2007, plaintiff was told to engage in any activity she felt comfortable doing. Under these circumstances, we fail to find the jury abused its discretion in setting the general damage award and we will not disturb it.

Medical Expenses

Plaintiff argues that the jury erred in disregarding the medical evidence of plaintiffs physicians regarding the amount of her medical bills. However, we fail to find the jury was manifestly erroneous in its award of medical expenses. Dr. Grimm testified he based his opinions of the cause of plaintiffs injuries on her history, and the objective medical evidence failed to support a permanent injury to plaintiffs hip or spine. Dr. Grimm was unable to state the cause of plaintiffs knee pain, and did not relate this injury to her earlier fall. Although plaintiff testified |nthat she continues to experience pain and to be restricted in her activities, no permanent disability rating was assigned and a continuing medical condition is not supported by the record. The jury apparently failed to attribute all of plaintiffs medical treatment to her fall. We find that this factual determination is reasonably supported by the record, and we fail to find an abuse of discretion in the jury’s award of medical expenses.

JNOV

By her final assignment, plaintiff contends that the trial court erred in failing to grant her Motion for Judgment Notwithstanding the Verdict (JNOV) to raise the award of medical expenses to the amount of the medical bills introduced into evidence. A JNOV is properly granted ‘only when the facts and inferences are so strongly and overwhelmingly in favor of one party that the trial judge believes reasonable men could not have arrived at a contrary verdict. Mendoza v. Mashburn, 99-499, p. 6 (La.App. 5 Cir. 11/10/99), 747 So.2d 1159, 1163-64, writ not considered, 00-40 (La.2/18/00), 754 So.2d 957 and writ not considered, 00-43 (La.2/18/00), 754 So.2d 957 and writ denied, 00-37 (La.2/18/00), 754 So.2d 976. In considering a motion for JNOV, the trial court may not weigh the evidence, substitute its judgment of facts for that of the jury, or pass on the credibility of witnesses. Id.

Plaintiff argues that a JNOV was appropriate because the jury failed to award the full amount of medical expenses to plaintiff, although there was ample support in the record therefor. However, as we have previously discussed, the jury was not required to attribute all of plaintiffs medical expenses to the accident in this case. We have found that the record reasonably supports the jury verdict with |12regard to medical expenses, and the trial court did not err in denying plaintiffs motion for JNOV on this issue.

Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed.

AFFIRMED

      . Although the first statement was recorded in a telephone conversation, Mr. Jones’ statements indicate that his daughter Lana Thompson was in the house at the time.


author: ROBERT A. CHAISSON, Judge.

text:
    Michael Paul CARRERAS and Julie Carreras v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NUMBER 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital.
    No. 11-CA-1163.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    David A. Abramson, Patrick J. Sche-pens, Attorneys at Law, New Orleans, LA, Byron J. Bonck, Attorney at Law, Metair-ie, LA, Timothy S. Marcel, Attorney at Law, Luling, LA, for Plaintiffs/Appellants.
    Julian R. Murray, Jr., Attorney at Law, Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

12This is an appeal by Michael Paul Carreras and Julie Carreras, plaintiffs-appellants, from a judgment in favor of Jefferson Parish Hospital Service District Number 2, d/b/a/East Jefferson General Hospital, defendant-appellee, in this slip and fall case. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On January 19, 2004, Michael Carreras and his wife Julie were at East Jefferson General Hospital where their daughter was to undergo surgery. When she was taken to the operating room, the Carreras-es went down to the hospital cafeteria for breakfast. Mrs. Carreras got her tray of food and proceeded toward the cashier, where she ran into an acquaintance ahead of her in line and began chatting. Mr. Carreras also got a tray of food and then stopped at the beverage ¡¡¡counter for a glass of milk. As he turned toward the cashier, he slipped on some butter and jelly on the floor and fell.

The cafeteria staff immediately went to his assistance and notified hospital security of the accident. Rene Edwards, Supervisor of Security, testified that he got the initial call at 8:15 a.m., and reached the cafeteria at 8:20 a.m. By the time he arrived, the cafeteria staff had already cleaned the floor, but he observed butter and jelly on Mr. Carreras’s shoe. He took a statement from Mr. Carreras and offered to take him to the emergency room. Mr. Carreras said that he wanted to finish breakfast, so Mr. Edwards went back to his office. He got a second call informing him that Mr. Carreras was ready to go to the emergency room, so he returned to the cafeteria at 8:47 a.m., placed Mr. Carreras in a wheel chair, and brought him to the emergency room. The emergency room record shows that he was admitted at 9:16 a.m. There is no dispute that the accident occurred and that there was butter and jelly on the floor.

The proceeding was bifurcated, and the issue of liability was tried before the judge. There was a dispute in the case as to the precise time that the accident occurred. Both Mr. Carreras and his wife testified that the accident happened at about 8:45 a.m. They based this estimate on their recollection that their daughter was taken to the operating room at about 8:00 a.m., and that they then had a discussion about going down to breakfast. They both estimated that by the time they had actually decided to go down to the cafeteria, plus the time spent selecting food and proceeding to the cashier, that it must have been close to 8:45 a.m. Rene Edwards, the security person, testified that he drew up his report of the incident before leaving work that day. That report showed that he got the first call at 8:15 a.m. and arrived at the scene at 8:20 a.m. He then left while Mr. Carreras ate [4breakfast, and was then called a second time and arrived in the cafeteria at 8:47 a.m.

Another issue involves whether there were other people in the cafeteria at the timé that might have dropped the butter and jelly. Again, Mr. Carreras and his wife testified that there was no one else in the area where the slip occurred, the implication being that the foreign substances had been present for a significant period of time. However, Mrs. Carreras also testified that there was an acquaintance of hers in line for the cashier, and that she was chatting with her when Mr. Carreras fell. She also testified that she did not see any butter or jelly on this person’s tray. Latoya Shine, a cafeteria worker who was working at the grill on the morning in question, testified that when Mr. Carreras fell she started to go to his aid, but there were several workers who got to him first. She said that she had about ten people m line at the time, so she returned to her work station. She also said that between 8:00 a.m. and 8:30 a.m. the cafeteria is usually very busy.

The hospital introduced its Policy and Procedures Manual which contained instructions for cashiers in the cafeteria to inspect the floors every half hour. It was also shown that a log was kept at the cashier station which the cashiers had to initial after each half hour inspection. The log for the day in question was initialed for each pertinent half hour by the cashier on duty that day. Ms. Shine testified that the half hour checks were always done by either the cashiers or the “bussers,” and she remembered that the checks were done by the cashier on the morning in question at 8:00 a.m. and 8:30 a.m. She also said that newly hired people were given the safety handbook which emphasized keeping the floors safe, and that additional safety meetings were conducted every two months.

Shirley Moore, the cashier on duty, testified by way of deposition. Her recollection of events was uncertain, and she often stated that she could not |flremember the details of the incident. It was clear that she remembered being on duty that morning. It was also clear that she did not see Mr. Carreras fall, and that she could not see the floor where he fell from her position at the cash register. She was less certain about the half hour inspections. She said that there was another cashier on duty that morning and that this person had taken a break at 7:55 a.m. or 8:00 a.m. She thought that she had made an inspection right before the other cashier took her break. She was uncertain about when the other cashier returned, but said that it was probably a half hour later, and that she would have made the 8:30 a.m. inspection after the other cashier got back. Later in her testimony she said that she did make the 8:00 a.m. and 8:30 a.m. inspections timely as indicated by her initials on the log. In none of her inspections did she observe any foreign substances on the floor. She also said that she did not remember seeing other people in the area where the fall occurred for some time before it happened.

On the basis of the above evidence, the trial judge found that plaintiffs had failed to show that the defendant hospital had actual or constructive knowledge of the foreign substances on the floor. She particularly noted that Ms. Moore had not found butter or jelly on the floor during her 8:00 a.m. inspection, and that because she could not see the area of the fall from her position at the register she would not have been able to observe any subsequently dropped substances. She further found that plaintiffs had not shown that the foreign substances were on the floor for such a time that with reasonable diligence the hospital would have discovered them. It is implicit in the above findings that she found that the accident occurred at 8:15 a.m. as shown in the security report and testified to by Rene Edwards. She accordingly entered judgment in the hospital’s favor, and this appeal followed.

| fiLAW AND ANALYSIS

In their first assignment of error, plaintiffs contend that the district court erred in finding that the merchant’s slip and fall law contained in La. R.S. 9:2800.6 applied to this case. We agree that La. R.S. 9:2800.6 is not applicable to this case. However, it is apparent that the trial court’s reference to that statute was inadvertent. Immediately after referencing La. R.S. 9:2800.6, the trial judge referenced this court’s decision in Blount v. East Jefferson General Hospital, 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, which we find is the proper controlling authority, and conducted her analysis in accordance with the legal precepts contained therein.

East Jefferson Parish Hospital Service district Number 2 is a public entity and is therefore subject to the provisions of La. R.S. 9:2800, which provides in pertinent part:

B. Except as provided for in subsection A of this section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2817 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
C. Constructive notice shall mean the existence of facts that infer actual knowledge.

In this case, plaintiffs have asserted a claim under theories of both negligence and strict liability. As to their claim under a strict liability theory, La. R.S. 9:2800 clearly requires that the public entity defendant have actual or constructive notice of the particular vice or defect prior to the occurrence. Plaintiffs contend, however, that as to their claim under a theory of negligence, their burden of proof is different. Specifically, plaintiffs contend that they need only show that a fall occurred and injury resulted from a foreign substance on the | premises, and that the burden then shifts to the hospital to exculpate itself from the presumption of negligence. We do not find this to be a correct statement of the law.

In Blount, this Court stated:

Under the negligence standard, a hospital owes a duty to its visitors to exercise reasonable care to keep the premises in a safe condition commensurate with the particular circumstances involved; but the duty owed is less than that owed by a merchant. Under a negligence theory, plaintiff must also prove that the owner or custodian knew or should have known of the unreasonable risk of harm posed by the property. Under a theory of strict liability, the hospital is liable for defective things in its custody only upon a showing that it knew or, in exercise of reasonable care, should have known of the defect which caused the damage and failed to correct it with reasonable diligence.
Thus, under either theory of liability, plaintiff has the burden to prove actual or constructive notice of defendant. In order to maintain a claim for damages caused by the condition of things within the care and custody of a public entity, the complainant has the burden of proving that the public body had actual or constructive notice of the hazard and had a reasonable opportunity to remedy the condition, but failed to do so. (Citations omitted). Blount at 537-38.

Similarly, in Fontenot v. Patterson, Ins., 2009-0669 (La.10/20/09), 23 So.3d 259, 267-268, the Louisiana Supreme Court addressed claims in negligence and strict liability against a public entity as follows:

Regarding the DOTD’s liability, the pertinent legal principles are somewhat different insofar as tort claims may be pursued against the public entity under La. C.C. art. 2317 and La. R.S. 9:2800 strict liability, as well as in negligence pursuant to La. C.C. art. 2315. Henderson v. Nissan Motor Corp., 03-606, pp. 5-6 (La.2/6/04), 869 So.2d 62, 66-67. When addressing an action under either theory, the legal analysis is the same. The plaintiff bears the burden of showing that: (1) the DOTD had custody of the thing that caused the plaintiffs injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the DOTD had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiffs injuries. Netecke v. State ex rel. DOTD, 98-1182, 98-1197, p. 7 (La.10/19/99), 747 So.2d 489, 494.

[ RUnder either a negligence or strict liability theory, plaintiffs are required to prove actual or constructive notice of the public entity defendant. The trial court applied the correct law in this matter and we therefore decline to review the matter under a de novo standard. Because the judgment in this case is based on the factual determination that the hospital did not have actual or constructive notice of the foreign substances on the floor, the standard of review is manifest error. Stobart v. State through DOTD, 617 So.2d 880 (La.1993).

In Stobart, the court explained that the analysis to be used by the reviewing court is whether the factual determinations made by the factfinder are reasonable in light of the entire record. It went on to state that “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” (Id. at 883).

Here, there is no evidence to show that the hospital had actual knowledge of the butter and jelly on the floor, so the inquiry is whether it had constructive knowledge of the condition. Constructive knowledge can be found if the condition which caused the injury existed for such a period of time that the defendant, in the exercise of due diligence and ordinary care, must have known of the problem and could have guarded the public from injury. Blount v. East Jefferson General Hospital, supra at 538.

There was ample testimony and evidence that the accident occurred at 8:15 a.m. as testified to by the security officer and further verified by his contemporaneous written report. The plaintiffs’ asserted that it was more probably at 8:45 a.m. The factfinder implicitly found that the proper time was 8:15 a.m., and this finding was clearly reasonable on the entire record. Regardless, whether Mr. Carreras’s fall occurred at 8:15 a.m. or 8:45 a.m., the evidence was clear by the plaintiffs’ own admissions that at least one other customer was in the cafeteria l3checkout line at the time of his fall, thereby negating their argument that there was no one else in the area for at least thirty minutes before the accident who could have dropped the butter and jelly on the floor. The hospital put into evidence its procedures manual which required cashiers to inspect the floors every half hour. Shirley Moore, the cashier on duty, said that she made an inspection at either 7:55 a.m. or 8:00 a.m., and the log at her register showed that she initialed it at 8:00 a.m. Latoya Shine, another cafeteria employee on duty that morning, said that she remembered a cashier making an inspection at about 8:00 a.m. Ms. Shine also said that safety meetings were held every two months and floor cleanliness was always mentioned. Findings that the accident occurred at 8:15 a.m., that the floor had been inspected at about 8:00 a.m. and no problems noted, and that Ms. Moore could not have seen any subsequently spilled substances on the floor from her station at the cash register, all support the ultimate conclusion that the condition had not existed for such a time that the hospital must have known of the problem and failed to correct it. Because these factual matters are all reasonably supported by the entire record, we may not substitute our judgment for that of the trier of fact. Stobart v. State through DOTD, supra. Accordingly, we affirm the judgment of the trial court.

For the foregoing reasons, the judgment in favor of Jefferson Parish Hospital Service District Number 2 dismissing with prejudice the claims of Michael Paul Carr-eras and Julie Carreras against it is hereby affirmed.

AFFIRMED


text:
    Michelle McLEAN v. MAJESTIC MORTUARY SERVICES, INC., Metropolitan Life Insurance Company and ABC Insurance Company.
    No. 11-CA-1166.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Melanie Lockett, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant, Michelle McLean.
    Keith A. Doley, Attorney at Law, New Orleans, LA, for Defendant/Appellee, Majestic Mortuary Services, Inc.
    Virginia N. Roddy, Attorney at Law, New Orleans, LA, for Defendant/Appellee, Metropolitan Life Insurance Company.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

|gThis is a lawsuit against a funeral services company and a life insurance company for breach of contract, negligence, and fraud. The plaintiff appeals the trial court’s judgment that grants an exception of improper venue as to the funeral services company and grants an exception of res judicata as to the insurance company. We affirm in part, reverse in part, amend and remand.

PROCEEDINGS BELOW

On April 6, 2011, Michelle McLean filed suit against Majestic Mortuary Services, Inc. (“Majestic”) and Metropolitan Life Insurance Company (“MetLife”) in the 24th Judicial District Court, Jefferson Parish, Louisiana, as well as the unnamed insurer of Majestic. McLean alleged as follows:

On May 14, 2010, McLean’s husband, Daniel J. McLean III, died unexpectedly in Jefferson Parish, Louisiana, where he was domiciled. Michelle McLean is the sole beneficiary of Metropolitan Life Insurance Policy No. 0109672, which insured the life of the decedent. In May 2010, she initiated a claim with MetLife, and was directed to submit the claim and all related information to the decedent’s former employer, Orleans Parish School Board (“OPSB”). She did so.

|sOn or about May 18, 2010, McLean and Majestic signed a Statement of Funeral Goods and Services. Also on that day, McLean signed an Insurance Policy Assignment form, which was incomplete in that the spaces for the name of the insurer, the policy number, and the amount assigned were left blank.

The decedent’s funeral was held on May 22, 2010. On May 24, 2010, McLean advised Majestic in writing that she was dissatisfied with the services provided. McLean complained specifically of the following: Majestic provided a party van with a strobe light to transport McLean and the decedent’s two children to the funeral, as well as a limousine that had no air conditioning to transport McLean and the children from the church to the burial site. Majestic’s funeral director was unprepared and demonstrated an overall lack of knowledge and experience directing a Catholic funeral mass and burial. The funeral director wholly failed to provide guidance or instruction to the pallbearers. Furthermore, the director failed to make an announcement at the end of the visitation period prior to closing the casket, thereby depriving persons of the opportunity for a final viewing. The director further failed to properly handle the purity cloth, and the limousine drivers were unfamiliar with the burial site and its location.

McLean admitted that on May 26, 2010, Majestic acknowledged and apologized for the lack of certain services and unilaterally adjusted the amount due on the funeral services contract. McLean, however, maintained that the adjustment was insufficient. The parties were unable to agree upon the amount due. Therefore, McLean contacted OPSB to report her dissatisfaction with Majestic’s services. She was informed that she had the option of requesting full payment of the life insurance proceeds to her and she could then pay Majestic herself, directly. McLean exercised that option and requested full payment from MetLife.

1 Recording to the petition, after Majestic obtained the decedent’s death certificate from the office of the decedent’s physician in Jefferson Parish, Majestic submitted one copy thereof with a request for direct payment to MetLife through OPSB. Majestic submitted the request for payment with knowledge that there was a dispute concerning the amount due.

Upon discovering this fact, McLean contacted MetLife by telephone and in writing to reiterate her request to rescind any prior authorization for payment to Majestic and, further, to demand full payment of the life insurance proceeds. MetLife tendered the uncontested portion of the proceeds, $12,690.60, to McLean in early September 2010, several months after the decedent’s death.

On September 24, 2010, MetLife sent a letter to McLean advising that it could not determine whether she had effectively revoked her authorization for payment to Majestic, and further advising of its intent to file an interpleader action if an amicable compromise was not reached between the parties within 30 days. McLean responded, through her counsel, that she effectively revoked any and all authorization for payment to Majestic, that MetLife’s failure to properly tender payment was unreasonable, and that if further action became necessary to obtain all funds, McLean would pursue remedies and penalties against MetLife.

MetLife took no further action until after McLean filed her Petition for Damages in the 24th Judicial District Court on April 6, 2011. In response to the petition, Met-Life filed a peremptory exception of res judicata, asserting that on April 7, 2011, MetLife had filed a concursus proceeding against McLean and Majestic in Civil District Court for the Parish of Orleans and had deposited the contested portion of the life insurance proceeds ($7,309.40) into the court registry, in order for McLean and Majestic to assert their claims to the money contradictorily before that court. Met-Life alleged that it had been dismissed from | sthe concursus proceeding with prejudice, and that all causes of action against it were extinguished and merged in the judgment in the concursus proceeding because the suits arise out of the same transaction or occurrence.

McLean then filed an exception of lis pendens and a motion to vacate and annul judgment in the Orleans Parish concursus proceeding. She recited the facts alleged in the pending action against MetLife in McLean’s Jefferson Parish lawsuit, and alleged that the Jefferson Parish suit was filed the day before the Orleans Parish suit. She also stated that the judgment in the concursus had been submitted and signed before she received any notice or service of the shit and the judgment therein. McLean’s exception and motion to vacate were denied by the Orleans Parish judge.

When arguing the exception of res judi-cata in this proceeding, MetLife pointed out that in McLean’s exception of lis pen-dens in the concursus proceeding, McLean had specifically claimed that the parties were the same in the two actions and that they arose out of the same transaction. Thus, MetLife argued, McLean is bound by her judicial confession to two elements of res judicata.

Thereafter Majestic filed a declinatory exception of improper venue and a peremptory exception of no cause of action. Majestic asserted the suit against it was improperly filed in Jefferson Parish because the proper venue for an action against Majestic is Orleans Parish, where Majestic is located and domiciled, and where the alleged incident occurred. Majestic asserted further that McLean had failed to state a cause of action against Majestic either for breach of contract or for negligence because the petition states theories of law rather than facts.

After a hearing, the district court maintained MetLife’s exception of res judicata and Majestic’s exception of improper venue, but ruled that Majestic’s exception of no cause of action was moot.

| nMcLean appeals. She contends the district court erred in maintaining Met-Life’s exception of res judicata, in maintaining Majestic’s exception of improper venue, and in ruling that Majestic’s exception of no cause of action is moot.

LAW AND ANALYSIS

Appellate courts review exceptions of res judicata, improper venue, and no cause of action using the de novo standard of review, because these exceptions present legal questions.

Res Judicata

Louisiana’s law of res judicata is set out in La. R.S. 13:4231, which provides in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Based on the language of La. R.S. 13:4231, the Louisiana Supreme Court has established the following five elements that must be satisfied for a finding that a second action is precluded by res judicata: “(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action 17asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.” Chevron U.S.A., Inc. v. State, 2007-2469, p. 10 (La.9/8/08), 993 So.2d 187,194.

Since the 1990 amendment to the res judicata statute, the chief inquiry is “whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action.” Id.

Among the exceptions to the general rule of res judicata is the tenet that a judgment does not bar another action by the plaintiff when exceptional circumstances justify relief from the res judicata effect of the judgment. La. R.S. 13:4232(A)(1).

“A concursus proceeding is one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.” La. C.C.P. art. 4651.

“Persons having competing or conflicting claims may be impleaded in a concur-sus proceeding even though the person against whom the claims are asserted denies liability in whole or in part to any or all of the claimants, and whether or not their claims, or the titles on which the claims depend, have a common origin, or are identical or independent of each other.” La. C.C.P. art. 4652.

“Service of citation and a copy of the petition shall be made in the same form and manner, and the delays for answering are the same, as in an ordinary proceeding.” La. C.C.P. art. 4655.

“Each defendant in a concursus proceeding is considered as being both a plaintiff and a defendant with respect to all other parties. No exceptions or responsive pleadings may be filed to the answer of a defendant, and every fact | ^alleged therein is considered as denied or avoided by effect of law as to all other parties. If a defendant fails to answer, issue need not be joined by default.” La. C.C.P. art. 4656.

“After the deposit of money into the registry of the court, the plaintiff is relieved of all liability to all of the defendants for the money so deposited.” La. C.C.P. art. 4658. Notably,

Since every defendant in a concursus proceeding is both a plaintiff and a defendant, his right to the fund deposited, or to the amount claimed to be due by the plaintiff, may be asserted in his answer, and the proper judgment prayed for therein. Hence, since he may not inject issues which are extraneous to the subject matter of the proceeding and with which the other claimants implead-ed are not concerned, there is neither a need for nor a possibility of the defendant reconvening.

La. C.C.P. art. 4656, Official Revision Comments, Comment (b).

“The court may grant the plaintiff in a concursus proceeding injunctive relief prohibiting the defendants from instituting or prosecuting in any court of this state or of the United States any other action or proceeding on the claim involved in the con-cursus proceeding.” La. C.C.P. art. 4660.

“Except as otherwise provided in this Title and by law, the rules applicable to an ordinary proceeding apply, so far as practicable, to a concursus proceeding.” La. C.C.P. art. 4662.

These articles establish that a concursus proceeding is a special type of proceeding, in which the plaintiffs liability is limited to the amount of funds deposited in the registry of the court. The issues are limited to various defendants proving their rights to a specific sum of money. McLean’s civil suit in the Jefferson Parish court, however, sought damages for breach of contract, negligence, and fraud, issues that were clearly not limited to the amount of funds in dispute.

| pThere is little case law on the issue of whether a defendant in a concursus proceeding may file a reconventional demand against a plaintiff in concursus. In Amoco Production Co. v. Carruth, 457 So.2d 797 (La.App. 1 Cir.1984), the court noted, “The question of whether reconventional demands are prohibited in concursus proceedings remains unanswered in the jurisprudence.” Id., 457 So.2d at 799.

In Amoco Production Co., the trial court on its own motion raised and maintained an exception of no cause of action regarding the reconventional demand. The court of appeal reversed on the ground that the proper procedural vehicle was an exception of improper cumulation of actions. The court declined to reach the merits of such an exception or to state whether the court could bring it itself. Id., 457 So.2d at 799.

That case suggests that a defendant in concursus may not bring a reconventional demand against a plaintiff in concursus if the reconventional demand asserts other claims, even if they arise out of the same transaction that produced a disputed amount of money. For example, in Mary Adams and Associates v. Rosenblat, 539 So.2d 860 (La.App. 5 Cir.1989), this Court held that the maximum amount awarded in a concursus proceeding could not exceed the amount deposited in court, and therefore attorney’s fees could not be awarded in addition to that amount. Id., 589 So.2d at 863-864.

Hence, we conclude that the exception of res judicata raised by MetLife in response to McLean’s suit should not have been granted in full, because the concursus proceeding is a limited proceeding. It appears a defendant in concursus may not actually bring reconventional demands and demands for additional relief against a plaintiff in concursus, although defendants in concursus may cross-claim against each other.

|10Thus, the limited nature of the concur-sus proceeding does not make it res judica-ta to all the claims against MetLife raised in this suit, despite the fact that the parties were the same and that the dispute arose out of the same transaction.

McLean’s suit against MetLife was for the proceeds of the life insurance policy, but she also argues she is entitled to penalties and fees for MetLife’s untimely payment to her, pursuant to La. R.S. 22:1811 and 22:1973. Thus, McLean had a dispute with MetLife for more than just the policy proceeds. She sought damages, penalties and attorney’s fees.

We conclude that the signing of the judgment in the Orleans Parish concursus proceeding, the same day the petition was filed and before there was any service on McLean, was a harsh result. The concur-sus judgment dismissed MetLife and declared that this was the only suit in which McLean could assert any cause of action against MetLife. McLean never received the minimum time within which to answer and to make any reconventional demand against MetLife.

Considering the foregoing, we find there are “exceptional circumstances [that] justify relief from the res judicata effect of the judgment,” at least as far as any matters not strictly within the scope of the concur-sus proceeding regarding the proceeds of the life insurance policy. La. R.S. 13:4232(A)(1).

Therefore, we shall amend the judgment to limit the res judicata effect of the Orleans Parish judgment.

Venue

Under the general rules of venue, an action against an individual who is domiciled in the state shall be brought in the parish of his domicile. La. C.C.P. art. 42(1). If he resides but is not domiciled in the state, the action shall be brought in the parish of his residence. Id. An action against a foreign or alien insurer shall be brought in the parish of East Baton Rouge. La. C.C.P. art. 42(7).

|nThe general rules of venue provided in Article 42, however, are subject to the exceptions provided in Articles 71 through 85 and otherwise provided by law. La. C.C.P. art. 43.

An action against joint or solidary obli-gors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant provided that an action for the recovery of damages for an offense or quasi-offense against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled if the parish of plaintiffs domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3203. La. C.C.P. art. 73(A).

An action for recovery of damages for an offense may be brought in the parish where the wrongful conduct allegedly occurred, or in the parish where the alleged damages were sustained. La. C.C.P. art. 74.

An action on a life insurance policy may be brought in the parish where the deceased died, the parish where he was domiciled, or the parish where any beneficiary is domiciled. La. C.C.P. art. 76.

An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract. La. C.C.P. art. 76.1.

In support of the exception of improper venue, Majestic argued that the proper venue for an action against it is Orleans Parish because that is where its offices are located and where it is domiciled, the contract for services was executed at Majestic’s offices in Orleans Parish, and all funeral services performed by Majestic were executed and performed in Orleans Parish.

McLean contends that venue is proper in Jefferson Parish for any one of three reasons: ancillary venue, location of contract, location of wrongful conduct.

|121. Ancillary Venue

McLean points out that her claims against MetLife arise out of a life insurance policy. The decedent was domiciled in Jefferson Parish and died in Jefferson Parish. The sole beneficiary, McLean, is domiciled in Jefferson Parish. Hence, under La. C.C.P. art. 76, venue is proper in Jefferson Parish for all claims against MetLife. Therefore, McLean asserts, under the concept of ancillary venue Jefferson Parish is a proper venue for all claims against Majestic.

“Ancillary venue applies when separate claims involving common or identical questions of fact share no common venue. The concept of ancillary venue allows such claims to be tried together for reasons of judicial economy and efficiency, even though venue is not proper technically for one claim or one party.” Underwood v. Lane Memorial Hosp., 97-1997, p. 8 (La.7/8/98), 714 So.2d 715, 719.

We find that the concept of ancillary venue cannot be applied here, because MetLife and Majestic are not solidary or joint obligors. The alleged obligations of each to McLean arise out of separate contracts. There is no showing that MetLife and Majestic are solidary or joint obligors. Therefore, ancillary venue does not apply.

2. Contract

Second, McLean relies on the provisions of La. C.C.P. art. 76.1, which states, “An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.”

McLean cites the existence of a contract between herself and Majestic for funeral and related services. She contends that work was performed in Jefferson Parish pursuant to that contract — specifically, Majestic picked up McLean and | iaher children from their home in Jefferson Parish and transported them through Jefferson Parish to the decedent’s funeral in Orleans Parish. Further, she states that Majestic obtained the death certificate from a medical office in Jefferson Parish. Based on those allegations, she argues that work under the contract was performed in Jefferson Parish, making it a proper venue under Article 76.

We find that, under the particular facts of this case, those are insufficient contacts to constitute “work under the contract” so as to make Jefferson Parish a proper venue.

3. Location of wrongful conduct

McLean also contends venue is proper under Article 74, which provides that an action for recovery of damages for an offense or quasi offense may be brought where the wrongful conduct occurred or in the parish where the damages were sustained. McLean argues wrongful conduct occurred in Jefferson Parish when Majestic sent a party van to McLean’s home in Jefferson Parish to transport her and the children to the funeral. McLean also contends the damages she sustained by Majestic’s negligent conduct in failing to properly direct the funeral services, and in submitting an assignment form seeking payment with knowledge that mutuality was lacking, were damages she sustained in Jefferson Parish.

We cannot agree. The funeral itself, not only the services but also the burial, took place in Orleans Parish, and the submission of the assignment form also was done in Orleans Parish. As in item 2 above, we find the sending of the van into Jefferson Parish to pick up McLean for the funeral does not sufficiently fulfill the requirements to fit within Article 74.

Accordingly, not only did the wrongful conduct occur in Orleans Parish, but also the damages were sustained in Orleans Parish. Hence, venue in Jefferson Parish was not proper under Article 74.

| ^Although we are affirming the district court’s ruling on the exception of venue, in the interest of justice, we amend the judgment to provide for transfer of the case against Majestic to Orleans Parish, pursuant to La. C.C.P. Art. 932.

No Cause of Action

McLean asserts the district court erred in decreeing Majestic’s peremptory exception of no cause of action moot after maintaining the exception of venue. McLean argues that because proper venue lies in Jefferson Parish, the exception of no cause of action should have been considered and denied.

In view of our ruling on the venue question, we need not address the exception of no cause of action. See Marler v. Petty, 94-1851, p. 7 (La.4/10/95), 653 So.2d 1167, 1171.

DECREE

For the foregoing reasons, the judgment is affirmed insofar as it maintained the declinatory exception of improper venue by Majestic Mortuary Services, Inc.

The judgment is reversed in part as to the exception of res judicata, and is amended to provide that the exception of res judicata against Metropolitan Life Insurance Company applies only as to allocation of the insurance proceeds comprehended by the concursus proceeding; the other claims made for breach of contract, negligence, and fraud are not subject to the res judicata exception.

The judgment is amended further to provide that the suit be transferred to Civil District Court for the Parish of Orleans insofar as it concerns Majestic Mortuary Services, Inc.

11fiThe case is remanded to the district court for further proceedings in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AMENDED AND REMANDED

      . See Ins. Co. of N. Am. v. Louisiana Power & Light Co., 2008-1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267; Tuban Petroleum, L.L.C. v. SIARC, Inc., 2009-0302, p. 3 (La.App. 4 Cir. 4/15/09), 11 So.3d 519, 522, writ denied, 2009-0945 (La.6/5/09), 9 So.3d 877; Gordon v. Louisiana Citizens Prop. Ins. Corp., 2007-0262, p. 3 (La.App. 4 Cir. 9/12/07), 966 So.2d 1084, 1086.

      . ”[I]f an action has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.” La. C.C.P. art. 932(B).