author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana in the Interest of D.R.
    No. 2010-CA-0406.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 20, 2010.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, D.R.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|tD.R. was adjudicated a delinquent child for a violation of La. R.S. 40:966 A(l), distribution of marijuana. The juvenile judge at the hearing, as reflected in the transcript, committed D.R. to the custody of the Department of Public Safety and Corrections for twenty-six months, credit for time served, but the written judgment of disposition provides for a commitment “for a period of time not to exceed twenty-six (26) months to run concurrent ... with credit due [for time served].” The sole issue raised by D.R. on this appeal is that the commitment period expressed by the judgment of disposition constitutes a prohibited “indeterminate sentence”. See La. Ch.C. arts. 330 B and 331 A (providing for appeals in delinquency matters).

Although we conclude that the law does not prohibit indeterminate periods of commitment, subject to maximum terms, in delinquency dispositions, we remand this matter to the juvenile court for a clarification of the disposition as well as of the commitment period so that the resulting written judgment of disposition is 12consonant with the resulting oral disposition as transcribed. Our reasons and our remand instructions follow.

DISCUSSION

“ ‘Felony-grade delinquent act’ means an offense that if committed by an adult, may be punished by death or by imprisonment at hard labor.” La. Ch.C. art. 804(5); see also La. R.S. 14:2 A(4) (defining a felony as “any crime for which an offender may be sentenced to death or imprisonment at hard labor.”) Marijuana is classified as a Schedule I non-narcotic controlled dangerous substance. See La. R.S. 40:964, Schedule I, C(19) and 966 B(l). La. R.S. 40:966 B(3) provides the relevant penalty for distribution of marijuana:

A substance classified in Schedule I which is marijuana, tetrahydrocannabi-nols, or chemical derivatives of tetrahy-drocannabinols, shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars, (emphasis supplied)

Because an adult offender may be sentenced to hard labor upon conviction of distribution of marijuana, it is a felony-grade delinquent act.

La. Ch.C. art. 897 controls the disposition of non-exceptional felony-grade delinquent acts. One option is that “the court may commit the child to the custody of a private or public institution or agency.” La. Ch.C. art. 897 C(l). Another option in this case is that

the court may commit the child to the custody of the Department of Public Safety and Corrections, with or |swithout a recommendation that the child be placed in alternative care facilities through the department’s client placement process, or be referred to appropriate placement resources in the state available through other public or private agencies.

La. Ch.C. art. 897 D.

A judgment of disposition shall be written. See La. Ch.C. art. 903 B. The judgment of disposition shall specify “[t]he maximum duration of the disposition and, if committed to the Department of Public Safety and Corrections, the maximum term of the commitment.” La. Ch.C. art. 903 B(6). La. Ch.C. art. 898 A provides:

No judgment of disposition shall remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication. The court shall give a child credit for time spent in secure detention prior to imposition of disposition, (emphasis supplied)

However, this maximum does not apply if inter alia “[t]he judgment expires by its own terms, is modified when permitted by law, or is vacated” or “[t]he child reaches age twenty-one.” La. Ch.C. 898 C(4) and (5). Because the disposition expires in twenty-six months, less the period for the credit for the earlier periods of pre-dispo-sition commitment, and, of course, because D.R. is under the age of seventeen, the maximum term of imprisonment of thirty years is not in this case the maximum term of the duration of the judgment of disposition.

We consider, then, whether the juvenile court was required to impose a determinate disposition, or whether the so-called indeterminate disposition with a maximum period is lawful.

LD.R. argues that La. Ch.C. art. 80S incorporates the requirement of the Louisiana Code of Criminal Procedure that a “sentence,” or in the parlance of the Children’s Code, “commitment,” be determinate and prohibits indeterminate sentences, or commitments. Article 803 provides:

The provisions of this Title [on Delinquency] shall govern and regulate delinquency proceedings of courts exercising juvenile jurisdiction. Where procedures are not provided for in this Title, or otherwise by this Code, the court shall proceed in accordance with the Code of Criminal Procedure.

We agree with D.R. that the commitment in this case for a “period of time not to exceed” twenty-six months is an indeterminate period within the contemplation and meaning of La.C.Cr.P. art. 879, which provides that “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” Had such a sentence been imposed on an adult in adult court rather than D.R. in juvenile court, the sentence would be illegal under an application of La.C.Cr.P. art. 879. See State v. Williams, 30,090 (La.App.2d Cir.12/10/97), 704 So.2d 403, 404 (finding a sentence “not to exceed” five years illegally indeterminate). Moreover, commentators have noted that

From the 1906 statute forward, Louisiana juvenile statutes like those of all other states authorized the use of indeterminate dispositions until the child reached majority. This concept was the corollary of the principle of individualized treatment and with the exception of the enumerated offenses governed by Article 897.1, persists today.

McGough & Triche, Louisiana Children’s Code Handbook 2009-2010 (West), p. 497.

1 ¿Due, however, to the distinctive characteristics of juvenile proceedings, we do not agree that an indeterminate period of commitment per se renders the disposition illegal, as long as the court specifies a maximum. La. Const, art. 5, § 19 provides for special procedures relevant to juvenile adjudication proceedings. These special procedures necessarily emphasize rehabilitation over retributive punishment: the “hallmark” of the juvenile system has historically been “its disposition, individually tailored to address the needs and abilities of the juvenile in question.” See In re C.B., 97-2783, p. 7-8 (La.3/4/98), 708 So.2d at 395-396. The unique nature of the juvenile court system is “manifested in its noncriminal, or ‘civil’ nature, its focus on rehabilitation and individual treatment rather than retribution, and the state’s role as parens patriae [common guardian of the community] in managing the welfare of the juvenile in state custody.” State ex rel. E.D.C., 39,892, p. 2 (La.App.2d Cir.05/11/05), 903 So.2d 571, 574. One goal of the Children’s Code is to avoid “a disposition which [the juvenile judge] knows is only a dead end for the child.” McGough & Triche, Louisiana Children’s Code Handbook 2009-2010 (West), pp. 479-480, quoting Polier, A View from the Bench 30 (1964).

In the non-exceptional case, the design of the Children’s Code is to encourage the juvenile judge to review, reconsider, and if appropriate modify a judgment of disposition:

Except as provided for in Article 897.1, after the entry of any order of disposition, the court retains the power to modify it, including changing the child’s legal custody, suspending all or part of any order of commitment, discharging conditions of probation, or adding any further condition authorized by Article 897 E Ror 899 B. It may also terminate an order of disposition at any time while it is still in force.

La. Ch.C. art. 909.

This judicial ability to modify the length of a lawful commitment or the conditions of commitment at any time after the initial judgment of disposition is not as wide-ranging as in the Code of Criminal Procedure applicable to adult offenders. “Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of the execution of the sentence.” La.C.Cr.P. art. 881 A (emphasis supplied). Only felony sentences without hard labor and misdemeanor sentences may be modified after commencement of the execution of the sentence. See La.C.Cr.P. art. 881 B. Additionally, in an adult felony case, “within thirty days following the imposition of sentence ... the state or the defendant may make or file a motion to reconsider sentence.” La.C.Cr.P. art. 881.1. The Louisiana Supreme Court has noted that the juvenile motion under La. Ch.C. art. 909 is the equivalent of the adult motion to reconsider sentence under La.C.Cr.P. art. 881.1, but importantly noting that:

The sole difference between the two motions is that the juvenile may file his motion to modify the judgment of disposition at any time while the disposition is in force, whereas an adult offender’s motion to reconsider sentence must be filed within 30 days of original sentencing unless the trial court enlarges that time period.

State v. J.R.S.C., 00-2108 (La.6/1/01), 788 So.2d 424, 424-425. Considering this, the foregoing discussion of the applicable provisions of the Children’s Code, and the juvenile justice system’s focus on rehabilitation and individualized treatment, the need for a determinate sentence is neither present nor desirable in juvenile 17dispositions. We conclude that indeterminate sentencing for juveniles, unlike indeterminate sentencing for adults, is lawful.

REMAND INSTRUCTIONS

In this matter, as noted earlier, there is, however, a discrepancy between the written judgment of disposition which provides for an indeterminate but lawful commitment period and the transcript of the disposition hearing which provides for a determinate commitment period. Because D.R. has requested remand for clarification and because La. Ch.C. art. 909 contemplates reconsideration of a disposition by the juvenile court, we remand the matter for a new disposition hearing.

We instruct the court to which this remand is directed to conduct a contradictory hearing pursuant to Article 909 within thirty days of the date of the finality of this judgment. At the conclusion of the hearing, the court shall either clarify the earlier disposition or modify the disposition. In either event, the court shall take care that the oral and written dispositions and resulting period of commitment are consonant with each other.

DECREE

The judgment of disposition is vacated and this matter is remanded to the juvenile court for further proceedings consistent with our ruling.

VACATED AND REMANDED.

      . See La. Ch.C. art. 804(1) and (3).

      . The transcript actually reads "two years two months.”

      .The commitment was to run "concurrent” with two others. The periods of time served pre-disposition judgment are July 27, 2009 through August 5, 2009 and October 14, 2009 through January 6, 2010.

      . The exceptional felony-grade delinquent acts, for which the terms of commitment are not subject to modification, are first and second degree murder, aggravated rape, aggravated kidnapping, and armed robbery. See La. Ch.C. art. 897.1.

      . “An extract of the minutes of court specifying the information required by Paragraph B of this Article and signed by the court shall be considered a written judgment of disposition.” La. Ch.C. art. 903 D.

      . For juvenile offenders placed in the custody of the State, the disposition "must specify the maximum length of the term of commitment.” State in the Interest of S.D., 01-670 (La.App. 5 Cir. 1/29/02), 807 So.2d 1138, 1146.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    In re Interment of Cleo Satter LOCICERO.
    No. 2010-CA-0624.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 20, 2010.
    Craig H. Stewart, Stewart Law Firm, Houma, LA, for Appellants, Estate of Cleo Satter LoCicero and Ramona L. Hedrick.
    Thomas M. Richard, Chad J. Landry, Chopin Wagar Richard & Kutcher, L.L.P., Metairie, LA, for Appellee, Auto Club Family Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

| j Plaintiff Ramona Hedrick appeals the trial court’s granting of summary judgment dismissing her claims against one defendant, Auto Club Family Insurance Company [“Auto Club”]. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Ms. Hedrick’s mother, Mrs. Cleo Satter LoCicero, suffered a heart attack and died while being treated in the intensive care unit of St. Elizabeth’s Hospital in St. John the Baptist Parish on January 24, 2004. Ms. Hedrick instructed that her mother be brought to Lake Lawn Funeral Home in New Orleans for religious services and burial. Five days later, Ms. Hedrick filed an ex parte “Petition for Interment” in Civil District Court in Orleans Parish, seeking and eventually obtaining a court order allowing her to proceed with the funeral and the interment of her mother, which allegedly was being blocked by Ms. Hedrick’s three sisters. Ms. Hedrick also filed a petition to be recognized as the executor of her mother’s estate and to execute her mother’s statutory will.

|2Several months later, on April 27, 2004, Ms. Hedrick, on her own behalf and on behalf of the estate of her mother, filed a “First Supplemental and Amending Petition for Damages” against Ms. Hedrick’s three sisters, namely Donna Webre, Ava Marks and Pam Melancon, and their respective insurers (referred to as “ABC”, “XYZ”, and “ZZZ” Insurance Companies). In this petition the plaintiff alleged that her sisters, who had been estranged from their mother at the end of her life, had defamed Ms. Hedrick by falsely accusing her of having murdered their mother by poisoning; and that their false and defamatory statements had caused an unnecessary autopsy desecrating their mother’s body, had unduly delayed and increased the expenses of their mother’s funeral, and had triggered a criminal investigation of Ms. Hedrick. Ms. Hedrick also alleged that her sisters were liable to her for their negligent, or alternatively intentional infliction of mental anguish/ emotional distress.

Auto Club intervened in the lawsuit as the homeowner’s insurer of Ms. Melancon. On April 17, 2009, the trial court granted partial summary judgment dismissing “all causes of action except intentional infliction of emotional distress” against Ms. Me-lancon. That judgment was never certified as final pursuant to La. C.C.P. art. 1915. On April 27, 2009, the trial court rendered summary judgment dismissing Auto Club from the litigation on the basis that Ms. Melancon’s policy excluded coverage for intentional acts. That judgment was designated as a final judgment on July 15, 2009, and Ms. Hedrick obtained an order of appeal.

^DISCUSSION

On appeal, Ms. Hedrick argues that even though all causes of action against Ms. Melancon except for intentional infliction of emotional distress have been dismissed, a jury could nevertheless find Ms. Melancon guilty of the “lesser cause” of negligent infliction of emotional distress under the same facts. Auto Club counter-argues that Louisiana does not recognize a cause of action for negligent infliction of emotional distress; that there were no facts alleged in the petition to support such a cause of action; and that the trial court correctly dismissed Auto Club because the policy it issued to Ms. Melancon clearly excludes coverage for the intentional acts of an insured.

We first note that, in their briefs, both parties to the appeal make the assumption that the April 17, 2009 judgment (dismissing all causes of action against Ms. Melancon except for intentional infliction of emotional distress) is before us on appeal, as well as the May 27, 2009 judgment (dismissing Auto Club from the suit); however, this assumption is incorrect. Because the trial court dismissed some but not all of Ms. Hedrick’s claims against Ms. Melancon, the April 17 judgment clearly is a partial summary judgment under La. C.C.P. art. 1915 B, which reads, in pertinent part:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
L(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The record does not contain an order of the trial court designating the April 17 judgment as final pursuant to article 1915 B. Absent such a designation, that judgment is an interlocutory judgment not yet ripe for appeal. See, e.g.: Lalla v. Calamar, N.V., 08-0952, p. 3 (La. App. 4 Cir. 2/11/09), 5 So.3d 927, 931.

Conversely, the May 27 judgment, because it dismissed all the claims against one party, Auto Club, qualifies as a final judgment under La. C.C.P. art. 1915 A(l), which provides that a final judgment may be rendered when the court “[djismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.” Pursuant to Auto Club’s motion, the trial court did designate the May 27 judgment as final; however, in view of article 1915 A(l), such a designation was unnecessary. See Jeansonne v. New York Life Ins. Co, 08-932, pp. 8-9 (La.App. 3 Cir. 5/20/09), 11 So.3d 1160, 1167-68; Regency Motors of Metairie, L.L.C. v. Hibernia-Rosenthal Ins. Agency, L.L.C., 03-1312 (La.App. 5 Cir. 2/23/04), 868 So.2d 905, 907-908.

Accordingly, the only judgment properly before us on appeal is the May 27 judgment. In written Reasons for Judgment, the trial court specifically noted that in April, 2009, it had “granted defendant, Ms. Melancon’s Motion for Summary Judgment in part and dismissed all of | aplaintiff s claims against this defendant except for plaintiffs claim for the intentional infliction of emotional distress.” The trial court then noted that “SECTION II — EXCLUSIONS” of the Auto Club policy expressly excludes coverage for bodily injury or property damages to others resulting from “intentional acts or directions by any insured.” In conclusion, the trial court reasoned that because Auto Club’s policy “excludes coverage for the one claim remaining against its insured,” Auto Club was entitled to summary judgment dismissing it from the litigation.

On appeal, the plaintiff does not dispute that the Auto Club policy excludes coverage for the intentional infliction of emotional distress by Ms. Melancon. Instead, appellant argues that a jury could still find Ms. Melancon liable for negligent infliction of emotional distress, in which case the exclusion in Auto Club’s policy would not apply. In effect, the plaintiff argues that based upon the facts alleged in her petition, the trial court erred on April 17, 2009, when it dismissed all causes of action against Ms. Melancon except for the intentional infliction of emotional distress. In response, Auto Club asserts that its policy does exclude coverage for both intentional infliction of emotional distress and for defamation; and that negligent infliction of emotional distress is neither recognized as an independent cause of action under Louisiana law, nor supported by the facts of the plaintiffs petition in the instant case.

As noted previously, appellant’s arguments are inapposite because the April 17, 2009 judgment is not before us on appeal. Moreover, we agree with the trial court that the Auto Club policy unambiguously excludes coverage for intentional acts of its insured, Ms. Melancon. Considering that |fithe intentional infliction of emotional distress was the only claim remaining against Ms. Melancon at the time the trial court rendered summary judgment dismissing Auto Club, we conclude that the May 27, 2009 summary judgment was properly rendered. Accordingly, that judgment is affirmed.

However, nothing in this opinion shall be construed as denying or limiting the rights of the plaintiff and/or Ms. Melancon to bring an action against and/or to recover from Auto Club in the event the April 17, 2009 interlocutory judgment is reversed or amended, and/or Ms. Melancon is found liable to the plaintiff for negligent infliction of emotional distress or any other cause of action covered by the policy.

CONCLUSION

The judgment rendered by the district court on May 27, 2009 dismissing Auto Club from this litigation is affirmed, and the matter is remanded to that court for further proceedings consistent with this opinion.

AFFIRMED.

      . Because the April 17, 2009 judgment is not final, the plaintiff still has a right to appeal that judgment after a final judgment has been rendered adjudicating all the claims remaining in the lawsuit. See Cortes v. Lynch, 02-1498 (La.App. 1 Cir. 5/9/03), 846 So.2d 945.

      . See La. R.S. 13:4231.


text:
    DAHAN NOVELTIES & CO., LLC & JMS Global, LLC v. OHIO CASUALTY INSURANCE COMPANY, Arizona Central Insurance Agency & Oakwood Corporate Center Management, LLC.
    No. 2010-CA-0626.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 20, 2010.

      Thomas A. Gennusa II, Joseph S. Pia-cun, Reid S. Uzee, Gennusa Piacun & Ruli, Metairie, LA, for Plaintiffs/Appellants.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| TPahan Novelties & Co., L.L.C. and JMS Global, L.L.C. appeal the trial court judgment dismissing with prejudice their action against defendant, Arizona Central Insurance Agency (“ACIA”). After considering the evidence introduced at the hearing to confirm a preliminary default, the trial judge concluded that neither Da-han nor JMS met its burden of proof against their insurance agent. Upon our review for manifest error, we conclude that the trial judge did not commit error in deciding that Dahan and JMS failed to establish a prima facie case against ACIA. However, because there is no legal authority for the trial court to dismiss the lawsuit at the close of the plaintiffs’ case in a hearing to confirm a default judgment, we reverse and remand the matter to the trial court. We explain our decision below.

I

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” La. C.C.P. art. 1702 A; see Arias v. Stolthaven New Orleans, LLC, 08-1111, p. 7 (La.5/5/09), 9 So.3d 815, 820. See also Goldfinch v. United Cabs, Inc., 08-1447, p. 4 (La.App. 4 Cir. 5/13/09), 13 So.3d 1173, 1177. “[T]he plaintiff must present competent evidence that convinces the |2court that it is probable that he would prevail at trial on the merits.” Arias, supra. In this case, the trial court was not convinced.

“In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment.” Arias, supra p. 5, 9 So.3d at 818. “This determination is a factual one governed by the manifest error standard of review.” Id.

We, of course, review factual determinations made by the trial court using the manifest error or clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Reversing the trial court’s factual findings requires that we find that no reasonable factual basis exists for the trial court’s findings and that the findings are clearly wrong or “manifestly erroneous” according to the record. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “[Wjhere two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 883 (La.1993). The trial court has a “better capacity to evaluate live witnesses.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Thus, if the trial court’s holding was reasonable, the holding was not manifestly erroneous. Norfleet v. Lifeguard Transp. Serv., Inc., 2005-0501, (La.App. 4 Cir. 5/17/06), 934 So.2d 846.

II

Dahan and JMS are separate and unrelated business entities which were engaged in the retail sale of various novelty items from kiosks in a suburban mall. Under the terms of their lease agreements with the mall owner, they were required to carry general liability insurance. The mall owner directed them to ACIA, an insurance agency located in Arizona for their insurance. Separately, they forwarded their lease agreements to the agent and requested (by telephone) “full coverage.” A written application for insurance was not executed. ACIA procured [¡¡commercial liability insurance through Ohio Casualty Insurance Company and on October 17, 2001 issued certificates of liability insurance to Dahan, JMS, and the mall owner. No policies were issued to or received by Dahan and JMS at that time. But they began to operate their businesses in the shopping mall.

About two months later a water pipe burst in the storage room at the mall in which the inventories of the businesses were stored. This caused substantial water damage to the merchandise. Dahan and JMS submitted claims to the insurance company for their losses. The insurer, citing the provisions of the liability policy, denied coverage for loss of inventory or loss of business revenue.

Dahan and JMS filed suit against the agency, the insurance company, and the mall owner. With respect to the insurance agency, the petition alleged negligence in: (1) failing to provide full coverage for plaintiffs’ commercial property; (2) failing to notify plaintiffs that they did not have sufficient coverage for their commercial property; (3) failing to investigate whether plaintiffs had sufficient insurance coverage; and (4) failing to advise plaintiffs that they did not have sufficient insurance coverage. The petition further alleges that the agency knew, or had reason to know, that plaintiffs would rely on their false representations and assurances that the policies provided full coverage for plaintiffs’ commercial property. After service on the insurance agent by the Long-Arm Statute, a preliminary default was entered against ACIA.

At the confirmation of default hearing, Rotem Dahan, owner and operator of Da-han, and Moshe Shargian, owner and operator of JMS, each testified that in a telephone call to an unidentified representative of the insurance agency, he requested full coverage required by the lease as well as full coverage for loss of | inventory and loss of business income. They both acknowledged receiving the certificates of insurance in October 2007.

It is undisputed that the certificates of insurance indicate only liability coverage and do not indicate coverage for loss of inventory and/or loss of business income.

In her written reasons for judgment, the trial judge explained that the insurance agency, having received copies of the leases setting forth the insurance requirements for liability insurance, did comply with the request for “full coverage” for those requirements. As the trial judge wrote, “[tjhese types of policies are designed to protect the [mall] owners from anything that occurs due to plaintiffs’ fault. However, they do not cover plaintiffs’ inventory if the inventory itself is damaged.” Moreover, the trial judge found that if the insurance agency had not complied with their requests, Dahan and JMS had had ample time before the loss to review the certificates and notify the agency of their dissatisfaction.

Dahan and JMS argue on appeal that the trial judge ignored the “uncontrovert-ed” testimony in order to find that they had received the “full coverage” they requested. We disagree.

Ill

Louisiana law imposes a fiduciary duty on insurance agents in their dealings with the insured in certain instances. Taylor v. Sider, 99-2521 (La.App. 4 Cir. 5/31/00), 765 So.2d 416. An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he failed to obtain the requested insurance. Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730 (La.1973). The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly | ^insured in the amount of the desired coverage. Id. See also Roger v. Dufrene, 613 So.2d 947, 949 (La.1993). To determine whether such an assumption by the insured is warranted, the following three-part test is applied:

A plaintiff may recover for loss arising from the failure of an insurance agent to obtain insurance coverage if plaintiff can establish three elements: (1) an undertaking or agreement by the agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) that actions of the agent warranted an assumption by the client that he was properly insured.

Heidingsfelder v. Hibernia Insurance, L.L.C., 2009-0753, pp. 5-6 (La.App. 4 Cir. 11/18/09), 25 So.3d 976, 979.

In the present case, Dahan and JMS allege that the insurance agency was negligent in failing to procure the requested coverage. In support of this assertion, plaintiffs rely solely on their trial testimony that they discussed and requested full coverage pursuant to the lease and full coverage for business losses with the insurance agency representative. Although no opposing testimony was presented, it is evident from the written reasons for judgment that the trial court made a factual determination that plaintiffs only requested the full coverage required by the lease, thus finding that plaintiffs did not show that ACIA breached a duty by failing to procure coverage for loss of inventory and/or loss of business revenue.

We note that in response to the trial judge’s questioning, Mr. Shargian testified that, other than the lease, ACIA never requested any business records in determining coverage. The implication of the inquiry being, if business losses and inventory were to be covered, documentation to that effect would have been requested. We also note that Mr. Dahan and Mr. Shargian are sophisticated businessmen, not new to the retail business. Both testified that they have operated ^numerous kiosks in malls across the State of Louisiana. Based on the record before us and granting deference to the trial court for any credibility determinations made in connection with its ruling, we cannot say that the trial court was clearly wrong.

Plaintiffs also allege that ACIA was negligent in failing to advise plaintiffs that they did not have sufficient coverage. However, this Court has explicitly held that “insurance agents do not have an independent duty to identify their clients’ needs and to advise them regarding whether they may be underinsured.” Heidingsfelder, 2009-0753, p. 4, 25 So.3d at 978.

Finally, it is well settled in our jurisprudence that an insured is charged with the primary responsibility to read the policy. Isidore Newman School v. J. Everett Eaves, Inc. and Westport Insurance Corp., 2009-2161, p. 6 (La.7/6/10), 42 So.3d 352, citing City Blueprint & Supply Co., Inc. v. Boggio, 2008-1093 (LaApp. 4 Cir. 12/17/08), 3 So.3d 62. As properly pointed out by the trial court in this case, Dahan and JMS received the certificates of insurance in October 2007, and had ample time (before the loss occurred in December 2007) to notify ACIA if they did not receive the requested coverage. Both Mr. Dahan and Mr. Shargian continue to obtain insurance for their businesses with ACIA: “that’s usually the company that we purchase insurance from for those particular carts.”

In Dobson v. Allstate, 06-02521 06-1097, 06-1064, 06-1255, 06-1734, 06-1585, 2006 WL 2078423 (E.D.La.7/21/06), the court found that the agent had no duty to “spontaneously identify a client’s needs and advise him as to whether he is under-insured or carries the correct type of coverage.” Rather, as the Louisiana Supreme Court stated in Newman, supra, it is the client’s responsibility or duty, not the agent’s, to determine the amount of coverage needed and advise the agent of those needs, and upon receiving the policy of insurance the client has a duty to review the policy to ascertain that his needs are met. Newman, supra, 09-2161 at p. 5, 42 So.3d at 358. See also Frischhertz v. Lexington Ins. Co., 06-5676, 2006 WL 3228385 (E.D.La.11/3/06).

The trial judge was not clearly wrong in finding that Dahan and JMS did not meet their burden of proof or establish a prima facie case against ACIA, and this finding is reasonable.

IV

We turn now to an explanation of our holding that dismissal with prejudice of a lawsuit at the close of plaintiffs submission of evidence at a hearing to confirm a default judgment is not authorized. As noted earlier, Dahan and JMS obtained a judgment of default against ACIA. See La. C.C.P. arts. 1701 A and 1843 (“A judgment by default is that which is rendered against a defendant who fails to plead within the time prescribed by law.”). This judgment of default is sometimes called a “preliminary default.” See Frank L. Maraist, 1 Civ. Law Treatise: Civil Procedure § 12:3. ACIA filed no pleadings after the entry of the default judgment, and Dahan and JMS proceeded to a confirmation of the default judgment. See La. C.C.P. art. 1702.

A judgment by default is to be distinguished from a judgment of dismissal. See La. C.C.P. art. 1844 (“A judgment of dismissal with or without prejudice shall be rendered and the effects thereof shall be regulated in accordance with the provisions of Article 1671 through 1673.”). The judgment of default is against the defendant, see La. C.C.P. arts. 731-743, whereas the judgment of dismissal is against the plaintiff, see La. C.C.P. arts. 681-700.

Articles 1671-1672 regulate voluntary and involuntary dismissals. The trial court, at the conclusion of the confirmation hearing did not confirm the judgment of default (which would have been a judgment against the defendant) but instead granted a judgment of dismissal (which was a judgment against the plaintiffs). The trial court granted the dismissal effectively on its own motion.

|sOur procedural law confers upon a trial court only very limited authority to dismiss a lawsuit on its own motion. A trial court on its own may notice, for example, peremption or the failure to disclose a cause of action and dismiss the lawsuit. See La. C.C.P. arts. 927 B and 934. Also, when no party appears for trial, the trial court may dismiss an action “on its own motion.” La. C.C.P. art. 1672 A(2). But these authorized circumstances do not apply in this case. Except in such circumstances, a trial judge’s power to dismiss cannot be exercised on his own motion, but requires the application of a party.

The motion of the party plaintiff is required for a voluntary dismissal. See La. C.C.P. art. 1671; see also Spencer v. Children’s Hospital, 432 So.2d 823, 824-825 (La.1983). Because Dahan and JMS did not apply for the dismissal, voluntary dismissal is inapplicable.

For an involuntary dismissal, in order for a trial court to dismiss a lawsuit, a party defendant must move for such relief. In the ordinary contested case, such relief may be sought in the exceptions or in the answer. See La. C.C.P. arts. 924 and 1003. When a plaintiff fails to appear for trial, the court may render a judgment dismissing the action “upon application of any party.” La. C.C.P. art. 1672 A(l). Moreover, La. C.C.P. art. 1672 B provides another circumstance illustrative of the limited or resteicted authority of a trial judge to dismiss a lawsuit:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence, (all emphasis added)

“The article [La. C.C.P. art. 1672 B] is clear that the court may not dismiss an action on its own motion, but only upon application of either party.” Koch v. Koch, 97-1600, p. 3 (La.App. 4 Cir. 4/22/98), 714 So.2d 63, 65. In Williams v. Brooks the third circuit reversed the trial court which, after a defendant in the trial began to present its evidence, on its own motion dismissed the plaintiffs lawsuit; the court ruled that

La.Code Civ. P. art. 1672(B) grants to any party the right to move for dismissal after the plaintiff has completed the presentation of his/her evidence. However, the provision does not authorize the trial court to grant a dismissal on its own motion, (emphasis in original)

Williams v. Brooks, 96-1709, p. 3 (La.App. 3 Cir. 4/30/97), 693 So.2d 302, 304. “The phrase any party does not include the court because the court is not a party to the action.” Wooley v. Amcare Health Plans of Louisiana, Inc., 06-1146, p. 14 (La.App. 1 Cir. 1/17/07), 952 So.2d 720, 729 (emphasis in original). Moreover, Judge Amy in his concurring opinion in Williams pointed to the jurisprudential statement from our court in Spencer v. Children’s Hospital, 419 So.2d 1307 (La.App. 4th Cir.1982), which was approved by the Supreme Court, “that the trial judge has no power to dismiss a case on his own motion.” Williams, supra p. 5, at 305 (Amy, J., concurring); see also Spencer, 432 So.2d at 824.

Because there is no other party present at the confirmation hearing to move for dismissal, a trial court is effectively prevented from dismissing a plaintiffs case on the court’s own motion at the close of the plaintiffs evidence at a confirmation hearing. Therefore, the trial court’s rendering on its own motion a judgment of dismissal against the plaintiffs at the conclusion of the conclusion of their evidence is error.

Though these circumstances are rare in the reported decisions, we note that our predecessor court ruled that the trial judge erred when she on her own motion dismissed the plaintiffs suit at the close of the confirmation hearing. See Romero v. Melancon, 72 So.2d 570, 571 (La.App.Orleans 1954). The Romero court | inconcluded that the “plaintiff should have been afforded the opportunity of proving with legal certainty his demands against the defendant, and ... the case should be remanded to the city court.” Id.

By remanding this matter to the trial court for further proceedings, we treat a confirmation hearing in which the trial court concluded that the evidence was insufficient to support a judgment in favor of the plaintiff the same as when an appellate court concludes that the evidence was insufficient although the trial court had found the evidence sufficient. See Arias, 08-1111, p. 17, 9 So.3d at 825, and Goldfinch, 08-1447, p. 11, 13 So.3d at 1181.

If a trial court is not convinced that a plaintiff has made a prima facie case at the confirmation of the judgment of default hearing, it should refuse to confirm the default judgment, but not dismiss the case. See Jacobs v. Jacobs, 365 So.2d 25, 26 (La.App. 4th Cir.1978).

DECREE

The trial court judgment rendered on February 4, 2010, in favor of Arizona Central Insurance Agency and against Dahan Novelties & Co., L.L.C. and JMS Global, L.L.C. dismissing their case is reversed. We remand to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The claims against the insurance company and the mall owner are not before us.

      . See La. C.C.P. art. 1261 and La. R.S. 13:3204.

      . See La. C.C.P. art. 1701.

      . Mr. Dahan testified that he has a retail business, a cart in the mall, a cab company and transportation business, and real estate. Mr. Shargian testified that he is a real estate developer and was in the kiosk business, stating, "My company was the biggest company in 2007 that was operating kiosks in malls all over Louisiana.” He had 27 kiosks in seven malls.

      . A judgment refusing to confirm a default judgment is an interlocutory judgment and a party aggrieved by a trial court’s refusal to confirm a default may apply for supervisory review. See La. C.C.P. art. 2201; Jacobs, 365 So.2d at 26, n. 2.


author: EDWIN A. LOMBARD, Judge.

text:
    Melissa K. LYNCKER, Lissa Anne Lyncker, William Henry Lyncker III and Jacob Ryan Lyncker v. DESIGN ENGINEERING, INC., Circle, Incorporated, Orleans Parish Levee District, and State of Louisiana, Through Department of Transportation and Development.
    No. 2010-CA-0740.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 20, 2010.

      Terrence G. O’Brien, Taggart Morton, LLC, New Orleans, LA, for Plaintiffs/Appellants.
    Gregory G. D’Angelo Wm. David Coffey, Metairie, LA, for Defendant/Appellee, State of Louisiana, Through the Department of Transportation and Development.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

11 Melissa K. Lyncker, Lisa Anne Lyncker, William Henry Lyncker, III and Jacob Ryan Lyncker, plaintiffs in a wrongful death action concerning the death of Mr. William Lyncker, appeal to this Court a judgment of the district court granting summary judgment to the State of Louisiana — Department of Transportation & Development (DOTD) and dismissing Plaintiffs’ claims against it in their entirety. For the reasons provided below, we affirm the district court’s granting of summary judgment.

Factual and Procedural History

Plaintiffs / Appellants are the wife and children of Mr. William Lyncker, who was killed on the evening of September 15, 2004, when his automobile collided into a metal floodgate operated by the Orleans Parish Levee District on Chef Menteur Highway, U.S. Highway 90 in Eastern New Orleans. Highway 90 is a major 4-lane highway in New Orleans east with two lanes for eastbound travel and two lanes for westbound travel.

The floodgate had been extended across Highway 90 by the Orleans Levee District in preparation for possible high water due to the imminent arrival of Hurricane Ivan. The Levee District placed steel barricades across all lanes of | ^traffic to warn motorists that the floodgates were closed and to block passage on the roadway. Numerous radio and television broadcasts also warned motorist of the pending closure and installation of floodgates. Heavy steel barricades were placed at the intersection of Highway 11 and Highway 90 with the purpose of blocking passage onto Highway 90, where the floodgate was raised. Barricades with mounted flashing amber lights and reflective tape and sand bags closest to Highway 90 were placed 229 feet in advance of the floodgate. The Levee District also placed large reflective red diamond lights across the entire span of the Highway 90 floodgate itself to provide additional warning that the floodgates were raised. By the early evening, weather conditions in the city and the immediate Eastern New Orleans area had deteriorated due to high winds and moderate to heavy rainstorms, causing significant electrical power losses and wet, rain-slicked roads. The Mayor of New Orleans had issued emergency evacuation orders and placed a 2:00 p.m. curfew for residents choosing not to evacuate.

During the daylight hours of September 15, 2004, Mr. Lyncker consumed significant quantities of beer as he made hurricane preparations to his home, boats, and business equipment. Unfortunately, despite the curfew and his consumption of alcohol, at approximately 8:00 p.m., Mr. Lyncker decided to drive to a family member’s restaurant, located east of the Highway 90 floodgate, to help with additional hurricane preparations there. Soon after leaving his home, Mr. Lyncker approached the Highway 11 floodgate, where the floodgate was closed and the roadway was barricaded. Mr. Lyncker then drove off the road and over an earthen levee north of this initial floodgate.

Mr. Lyncker then proceeded toward the intersection with Highway 90, approximately three miles away, when he encountered additional warning signs Rand the barricades described above as the floodgate drew closer. Though there were reflective steel barricades lined across the intersection of Highway 11 and Highway 90, the strong winds had blown them apart enough such that Mr. Lyncker’s vehicle was able to pass through onto Highway 90. Mr. Lyncker turned onto Highway 90 and accelerated to speeds approaching seventy-five miles per hour. Mr. Lyncker did not slow his speed when he approached the amber-lit steel barricades that preceded the Highway 90 floodgate. Mr. Lyncker struck the barricades without applying his breaks or reducing his speed. One of the heavy barricades became trapped under Mr. Lyncker’s truck, yet Mr. Lyncker continued speeding towards the Highway 90 floodgate with the barricade dragging underneath the chassis of his truck.

Within minutes, Mr. Lyncker’s truck was discovered crashed into the Highway 90 floodgate, causing the extremely heavy floodgate to collapse. The truck was straddling the reflective centerline between the eastbound and westbound lanes. The amber lights on the barricade pinned underneath Mr. Lyncker’s truck were still flashing when police and emergency responders came to the scene. Mr. Lyncker was killed in the impact. Undisputed toxicology reports revealed that Mr. Lyncker had a blood alcohol concentration of 0.21% at the time his vehicle crashed into the Highway 90 floodgate.

Mr. Lyncker’s family filed a wrongful death action against Design Engineering, Inc., Circle, Inc., the Orleans Parish Levee District, and the State of Louisiana — Department of Transportation and Development. This Court affirmed the district court’s granting of summary judgment to Circle, Inc., who had constructed the floodgate that Mr. Lyncker’s vehicle crashed into. Lyncker v. Design Engineering, Inc., et al., 2007-1522 (La.App. 4 Cir. 6/25/08), 988 So.2d 812, writ denied, 2008-1669 (La.10/24/08), 992 So.2d 1036.

The Lynckers’ claims against DOTD include negligence in the construction and maintenance of the floodgate and failure to warn. Upon the completion of ample discovery, DOTD filed a motion for summary judgment, arguing that it has immunity under La.Rev.Stat. § 9:2798.4, when a driver sustains damages or death while driving under the influence of alcoholic beverages or drugs and over 25% negligent. The plaintiffs opposed summary judgment, arguing that DOTD’s alleged negligence in failing to construct advanced warning systems creates a material issue of fact as to liability, thus precluding summary judgment. The district court granted summary judgment in favor of DOTD, stating that “any reasonable fact finder would be compelled to find plaintiff excess of twenty-five percent negligent,” thus granting DOTD statutory immunity from liability against intoxicated drivers under § 9:2798.4. It is this granting of summary judgment that plaintiffs now appeal to this Court.

Standard of Review and Summary Judgment Standard

Appellate courts review motions for summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Wood v. Del Giorno, WWL-AM, et al., 2006-1612, p. 3 (La.App. 4 Cir. 12/19/07), 974 So.2d 95, 98. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(B). The burden of proof remains with the movant.

15However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La.Code Civ. Proc. art. 966(C)(2). Because the movant has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Istre v. Meche, 2005-2508, p. 6 (La.6/16/06), 931 So.2d 361, 364.

Law and Analysis

The sole issue on appeal is whether the district court erred in granting summary judgment in favor of DOTD under La.Rev. Stat. § 9:2798.4, which provides immunity to the state, state agencies, and political subdivisions of the state for damages or injuries suffered by persons operating a motor vehicle under the influence of alcoholic beverages or drugs. La.Rev.Stat. § 9:2798.4 provides in pertinent part as follows:

§ 2798.4. Immunity from liability; injuries sustained by persons driving under the influence of alcoholic beverages or drugs
A. Neither the state, a state agency, or a political subdivision of the state nor any person shall be liable for damages, including those available under Civil Code Article 2315.1 or 2315.2, for injury, death, or loss of the operator of a motor vehicle, aircraft, watercraft, or vessel who:
(1) Was operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration of 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or
|6(2) Was operating a motor vehicle, aircraft, watercraft, or vessel while he was under the influence of any controlled dangerous substance described in R.S. U:98(A)(l)(c) or R.S. ⅛0:96⅛.
B. The provisions of this Section shall not apply unless:
(1) The operator is found to be in excess of twenty-five percent negligent as a result of a blood alcohol concentration in excess of the limits provided in R.S. U:98(A)(l)(b), or the operator is found to be in excess of twenty-five percent negligent as a result of being under the influence of a controlled dangerous substance described in R.S. 1⅛:98{A)(l)(c); and
(2) This negligence was a contributing factor causing the damage.

(emphasis added).

Plaintiffs first argue that the trial court erred in granting summary judgment to DOTD because they say that no comparative fault percentage determination was made, or that such a determination cannot be made on summary judgment. They state that the requirements for immunity from liability under § 9:2798.4 were misapplied, and that such a determination of immunity cannot be made on summary judgment.

In order for DOTD to be held liable for damages, injuries, or death on a roadway, the plaintiff has the burden of proving: 1) that the thing that caused the damage was in the DOTD’s care, custody, and control; 2) that the thing had a vice, ruin, or defect that presented an unreasonable risk of harm; and 3) that the vice, ruin, or defect was the cause-in-fact of the plaintiffs damages. Ferrouillet v. State ex rel. Dept. of Transp. and Development, 2002-0576, p. 2 (La.App. 4 Cir. 1/15/03), 836 So.2d 686, 687. The DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising care and treasonable prudence, but also for those who are slightly exceeding the speed limit or who are momentarily inattentive. Id., p. 3, 836 So.2d at 688.

However, this duty does not extend to protect motorists against harm which would not have occurred but for their grossly negligent operation of a motor vehicle. Bullard v. State ex rel. Depart. of Transp. and Development, 1998-1942, p. 12 (La.App. 1 Cir. 11/5/99), 744 So.2d 212, 220-221. The DOTD may also provide adequate warnings of a defect or hazard in their roadways. Warnings should be “sufficient to alert the ordinary, reasonable motorist, based on considerations of probable volume of traffic, the character of the road, and the use reasonably to be anticipated.” Id., p. 11, 744 So.2d at 220.

In the matter sub judice, this Court reaches the only reasonable conclusion, which is that Mr. Lyncker’s grossly negligent operation of a motor vehicle while severely intoxicated, as evidenced by his unrefuted .21% blood alcohol concentration and well-documented erratic and reckless driving actions, is the sole and proximate cause-in-fact of his fatal car accident at the Highway 90 floodgate on September 15, 2004. Therefore, we affirm the decision of the district court in granting summary judgment to the DOTD.

In the plaintiffs’ first appeal to this Court in this matter, we noted that “since Mr. Lyncker crashed through the lighted barriers while heavily intoxicated and without slowing down, in this case, no warnings may have been enough to prevent the accident.” Lyncker v. Design Engineering, Inc., supra, p. 5, 988 So.2d at 816. Upon de novo review of the district court’s decisions of law and the entire record, we find no reason to waver from this belief. The appellants’ claims that the DOTD failed to follow internal memos and engineering protocol in creating an “advanced warning system” are without merit. The documentation provided in the DOTD’s | ¿motion for summary judgment, all acceptable for consideration for summary judgment under La.Code Civ. Proc. art. 966(B), overwhelmingly shows that there is no genuine issue of material fact as to the cause-in-fact of Mr. Lyneker’s injuries and death, and that DOTD is clearly entitled to judgment as a matter of law.

Sworn deposition testimony from Charles Wolfe, attached to the DOTD’s motion for summary judgment, shows that Mr. Lyncker had consumed significant quantities of beer throughout the course of the day, up to a few hours before he got into his truck at around 8:00 p.m. An attached affidavit from Mr. Wayne Winkler, an expert in accident reconstruction, reveals that the weather conditions required a reasonable driver to operate at speeds lower than the posted limit, but that Mr. Lyncker was driving over seventy-five miles per hour. Mr. Lyncker also should have seen the amber flashing lights on the initial steel barricades from more than 465 feet away. The large reflective diamond lights on the floodgate itself would have been visible from 300 feet. Instead, Mr. Lyncker drove straight through the barricades, dragging one barricade under his truck without slowing down. Mr. Winkler, who during his tenure with the Louisiana State Police was certified in Detection and Apprehension of Impaired Drivers and has personally arrested more than 500 drunk drivers, also noted if Mr. Lyncker was not under the influence of alcohol and traveling at the posted speed limit, he would have seen the amber lights and brought his vehicle to a safe stop. His failure to do so is directly attributed to his .21% blood alcohol concentration: drivers with such intoxication, according to Mr. Winkler, exhibit “decreased muscular coordination, staggering ... increased reaction times and disorientation.” Gary H. Wimbish, Ph.D., an expert on the effects on alcohol, provided an additional affidavit 1confirming that the amount of alcohol consumed by Mr. Lyncker would have still been in his system when the accident occurred.

Given the facts and evidence provided above in the DOTD’s motion for summary judgment, plaintiffs’ argument that the Court has not “found” Mr. Lyncker to be in excess of twenty-five percent negligent as a result of his .21% blood alcohol concentration under La.Rev.Stat. § 9:2798.4 is without merit. His intoxication is undisputed. His negligence is certainly a “contributing factor” to his injuries and death. La.Rev.Stat. § 9:2798.4(B)(2). The legislative history of § 9:2798.4 does not require that a full trial on the merits take place when summary judgment is sufficient to determine that the DOTD is not liable in any way for Mr. Lyncker’s accident and death. The DOTD owes no duty to a driver operating a motor vehicle in a grossly negligent manner. Bullard v. State ex rel. Depart. of Transp. and Development, 1998-1942, p. 12 (La.App. 1 Cir. 11/5/99), 744 So.2d 212, 220-221.

Conclusion

We agree with the district court’s conclusion that “any reasonable fact finder would be compelled to find Plaintiff in excess of 25 percent negligent.” Summary judgment is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. La.Code Civ. Proc. art. 966(A)(2). By granting summary judgment under La.Rev.Stat. § 9:2798.4, the district court “found” that there is no genuine issue of material fact that Mr. Lyncker is over 25% negligent, and we find that Mr. Lyncker’s intoxication is the sole and proximate cause of his fatal accident.

| mDecree

The judgment of the trial court granting summary judgment to the State of Louisiana — Department of Transportation and Development under La.Rev.Stat. § 9:2798.4, and dismissing all claims against it in this matter, is affirmed.

AFFIRMED.

      . La.Rev.Stat. § 9:2798.4(B)(1).


author: MARION F. EDWARDS, Judge.

text:
    Ryan BERGERON v. CITY OF KENNER and Kenner Municipal Fire and Police Civil Service Board.
    No. 10-CA-229.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2010.

      Louis L. Robein, Jr., Robein, Urann, Spencer, Picard & Cangemi A.P.L.C., Me-tairie, Louisiana, for Plaintiff/Appellant.
    Alvin J. Bordelon, Jr., Bordelon & Ther-iot, Metairie, Louisiana, for Defendant/Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

[ yPlaintifi/'appellant, Ryan Bergeron (“Bergeron”), appeals a judgment of the Twenty-Fourth Judicial District Court dismissing his appeal from a decision of the Kenner Municipal Fire and Police Civil Service Board (the “Board”) to reprimand him.

This matter had its genesis in a February 2008 directive issued by Kenner Fire Chief John Hellmers. At that time, because of financial issues, Chief Hellmers issued a directive abolishing a “medical waiver” policy, which had allowed firefighters to be absent for two separate shifts each year without medical certification of illness. The directive, which was effective immediately, stated:

Effectively immediately, all medical waivers have been abolished. If an employee is prevented from reporting to work as regularly scheduled, due to injury/illness, he/she must furnish the fire department with an Attending Physician’s Statement, KFD/25, prior to 12:00 midnight, before your next scheduled duty date including Kelly and/or vacation. It is mandatory that the Attending Physician Statement, KFD/25, be brought to Fire Headquarters to the Assistant Chief of the Day.
^Failure to submit an Attending Physician’s Statement in the time frame stated above to the Assistant Chief of the Day at Fire Headquarters, will result in disciplinary action and/or loss of wages.

(Emphasis in original.)

Bergeron was a firefighter in the Ken-ner Fire Department. According to the record, firefighters routinely work twenty-four-hour shifts, which begin at 7:00 a.m. on one day and end at 7:00 a.m. the next day, following which they are off duty for forty-eight hours. Bergeron was scheduled to work a twenty-four-hour shift beginning at 7:00 a.m. on November 2, 2008 and ending on November 3. His next shift was scheduled to begin at 7:00 a.m. on November 5, 2008, and conclude at 7:00 a.m. the next day. Prior to the start of his November 2 shift, Bergeron called in sick. Pursuant to the directive, Bergeron was required to bring an “Attending Physician’s Statement” to the assistant chief at Fire Headquarters prior to midnight November 4.

Bergeron did not visit a health care provider until November 5, at which time he visited his dentist, who signed the form stating that Bergeron could return to work with no limitations on November 6. Instead of delivering this form to Fire Headquarters, Bergeron’s wife brought the form to Station 36 at approximately 6:30 p.m. on November 5. Both parties agree on appeal that Bergeron should have reported by 12:01 a.m. for the remainder of his November 6 shift. He did not.

On November 11, Chief Hellmers summoned Bergeron to Fire Headquarters. Bergeron’s District Chief, Clinton Young, and Assistant Chief Rodrigue were also in attendance. At the meeting, Bergeron was asked if he knew the policy and why the statement was brought to the station rather than to headquarters. Bergeron explained that he knew the policy, but his papeiwork was not late because it was turned into the station and the captain of that day signed the [¿papers. Bergeron contended it was not a common practice to bring the papers to headquarters, and people bring paperwork to the station all the time. Bergeron and Chief Hellmers argued about whether or not the forms were late. At the conclusion of the meeting, Bergeron was issued a written reprimand on a personnel action form for “Failure to submit medical attending physician’s in the time frame stated in Directive Dated 2/21/2008” and “AWOL on 11/06/2008. Released from doctor on 11/06/2008, did not report for duty at 0000 hrs 11/06/2008.”

The department treated the seven-hour absence as approved annual leave, and Bergeron was paid accordingly. Bergeron filed a timely appeal to the Board on the grounds that the Firefighters Bill of Rights was violated and that his paperwork had been turned in timely. Following a hearing, the Board found the Appointing Authority acted in good faith and for cause based upon the reasons set forth in the form. The term “AWOL” was removed from the document, and the Board determined that there was no violation of the Firefighters Bill of Rights under the evidence presented.

Bergeron then appealed the Board’s decision in the Twenty-Fourth Judicial District Court, averring that the decision was not based on proper or legal cause; specifically, that it failed to enforce or otherwise recognize his rights under the Louisiana Firefighters Bill of Rights, La. R.S. 33:2181 et seq. Before the Board as well as before the district court, Bergeron argued that the meeting at which he received the reprimand was an “investigation,” which triggered protection afforded under the Firefighters Bill of Rights. He averred that he was not given notice of the investigation, nor given the opportunity to obtain counsel. As a result, Bergeron urges that the written reprimand was a nullity.

In affirming the decision of the Board and dismissing the appeal, the district court noted that it was undisputed that the policy had, in fact, been violated. The 1 scourt found that the meeting was not an “investigation” as contemplated by the Bill of Rights but, rather, was simply to allow Bergeron a chance to explain why he violated policy and not all questions posed by a supervisor to an employee “while conducting routine workplace management will establish an ‘investigation’ under the Bill of Rights.” On appeal from that judgment, Bergeron urges that the trial court erred in its characterization of the meeting.

La. R.S. 33:2181 spells out certain rights of fire employees. Under that statute, whenever a fire employee is under investigation, certain minimum standards shall apply. Importantly, prior to a formal investigation, the fire employee must be notified in writing of the nature of the investigation, the specific charges, and the identity of the person conducting the interrogation. The statute also provides that the fire employee is entitled to the presence of an attorney and may call witnesses on his behalf. Under La. R.S. 33:2181(0):

No fire employee shall be disciplined, demoted, dismissed or be subject to any adverse action unless the investigation is conducted in accordance with this Sub-part. Any discipline, demotion, dismissal or adverse action of any sort taken against a fire employee without complete compliance with the provisions of this Subpart is an absolute nullity.

If made in good faith and statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Good faith does not occur if the appointing authority acted arbitrarily or capriciously, or as a result of prejudice or political expediency. Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the efficient operation of the public service. The appointing authority must demonstrate, by a preponderance of the evidence, |fithat the conduct did in fact impair the efficient and orderly operation of the public service. The findings of the Board are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. The role of the appellate courts is thus circumscribed by deference to determinations made by civil service boards and we must affirm those determinations if they are reasonable on the record.

The only finding contested by Bergeron was the determination that his rights under the Firefighters Bill of Rights were not violated; specifically, he contends the meeting between Bergeron and Chief Hellmers was an investigation or “interrogation” within the meaning of La. R.S. 33:2181.

In arguing that the meeting was an “interrogation,” Bergeron quotes similar statutes of other states, as well as La. Op. Att’y Gen. No. 08-0291. That opinion discusses the Firefighters Rights as compared to a similar statute regarding the rights of police and law enforcement officers under investigation. It concludes that if circumstances concerning the conduct of a fire employee “require a close study or systematic inquiry into a situation,” the protections afforded a fire employee under La. R.S. 33:2181 apply. The opinion goes on to state that “an investigation of a fire employee begins when an authorized person starts to make inquiries or collect evidence concerning a fire employee where the end result is ‘with a view to possible disciplinary action, demotion, or dismissal.’ ” In further accord is Opinion 04-0180, where that office concluded that “any action taken by formal investigating authorities ... which could possibly affect the job status (of a fire employee) requires that the minimum standards of R.S. 33:2181 apply.”

|7Attorney General Opinions are merely advisory and not binding authority, although the courts of this State have recognized their persuasive authority.

Under the Firefighters Bill of Rights, not all inquiries by an employer rise to the level of investigation or interrogation. According to La. R.S. 33:2281(2), an “interrogation” “includes but is not limited to any formal interview, inquiry, or questioning of any fire employee by the appointing authority or the appointing authority’s desig-nee regarding misconduct, allegations of misconduct, or policy violation. An initial inquiry conducted by the fire employee’s immediate supervisors shall not be considered an interrogation.”

Whether or not the meeting was an investigation or interrogation is problematic. The meeting where Bergeron was called upon to defend his actions to the chief, district chief, and assistant chief was somewhat more complex than an initial inquiry. Rather than a simple explanation of his actions, Bergeron and Chief Hellm-ers argued about the timeliness of the physician’s statement, which was essentially an argument interpreting department policy.

Given similar facts or more evidence, another such event might well trigger the notice requirements of La. R.S. 33:2181. The rights of fire employees under the statute cannot be subverted by manipulating or disguising the form of query so as to make the Firefighters Bill of Rights meaningless. The nature of an “inquiry” in each case must be considered on its own circumstances, and the characterization of a meeting by the appointing authority does not determine its true nature.

In the present matter the underlying actions by Bergeron which precipitated the meeting were undisputed. There were no facts to investigate and no evidence |swas presented to show a “systematic inquiry” or “close study.” Although the nature of the meeting was debatable, we cannot say, based on the evidence presented, that the district court committed manifest error in affirming the decision of the Board, finding that the meeting was not an investigation or interrogation so as to trigger the protections afforded by La. R.S. 33:2181.

For these reasons, the judgment is affirmed.

AFFIRMED.

      . Wyatt v. Harahan Mun. Fire and Police Civil Serv. Bd., 06-81 (La.App. 5 Cir. 7/25/06), 935 So.2d 849, writ denied, 06-2322 (La. 12/8/06), 943 So.2d 1091 (citing Moore v. Ware, 01-3341 (La.2/25/03), 839 So.2d 940).

      . Id.

      . Bannister v. Dep’t of Streets, 95-404 (La.1/16/96), 666 So.2d 641.

      . See, Bannister, supra.

      . Wyatt v. Harahan Mun. Fire and Police Civil Serv. Bd., supra.

        . Id.

      . 2009 WL 386977 (La. Op. Att'y Gen.) (January 29, 2009).

      . See, City of New Orleans v. Bd. of Directors of the La. State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; Conachen v. East Baton Rouge Parish Sch. Bd., 09-0100 (La.App. 1 Cir. 12/23/09), 30 So.3d 820; Branton v. Parker, 233 So.2d 278 (La.App. 1 Cir.), writ denied, 256 La. 359, 236 So.2d 497 (1970).

      . City of New Orleans v. Bd. of Directors of La. State Museum, supra.


author: WALTER J. ROTHSCHILD, Judge.

text:
    ESTATE OF Alan B. RAVEN and Lenore S. Raven v. The LINCOLN NATIONAL LIFE INSURANCE COMPANY.
    No. 10-CA-370.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2010.

      Terrence J. Lestelle, Richard M. Mor-gaño, Attorneys at Law, Metairie, Louisiana, Damodar Sarup “Dar” Aíran, Attorney at Law, Coral Gables, Florida, for PlaintiffiAppellant.
    Jonathan C. McCall Loretta 0. Hoskins, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.

      Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

| ¡Appellants seek review of a ruling of the trial court sustaining appellee’s exception of res judicata and dismissing their suit with prejudice. For the reasons stated herein, we reverse the trial court judgment.

In 1997, a class action was invoked in the 24th Judicial District Court against Lincoln National Corporation and Lincoln National Life Insurance Company alleging that defendants engaged in misleading and improper life insurance sales and administrative practices. Plaintiffs asserted several different causes of action, including fraud, unfair or deceptive acts, breach of duty of good faith and fair dealing, negligent misrepresentation and omissions, breach of contract and breach of fiduciary duty. Alan Raven and Lenore S. Raven, appellants herein, were members of the plaintiff class. In 2000, the parties to this litigation entered into a settlement agreement. On IsMay 17, 2001, the trial court approved the settlement and dismissed the action, including all individual and class claims in a Final Order and Judgment. Richard, H. Blanke, et al. v. Lincoln National Corporation Security-Cennecticut Life Insurance Company, Lincoln National Life Insurance Company, and Wayne E. Wolfe, Case No. 512,048. The court also entered a permanent injunction barring class members from advancing allegations which were settled in this action.

In 2007, Aan B. Raven and Lenore S. Raven, residents of Florida at that time, filed a complaint against Lincoln National Life Insurance Company in Miami-Dade County, Florida. On motion of defendants, the suit was subsequently removed to the United States District Court for the Southern District of Florida on the basis of diversity jurisdiction where the complaint was amended by plaintiffs. In this action, plaintiffs asserted claims against the Lincoln for declaratory judgment, breach of contract, bad faith dealing, misrepresentation, negligence, unjust enrichment and violation of unfair trade practices statute. On February 28, 2008, the federal district court entered an order staying the action “until such time as the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, determines whether claims raised by plaintiffs in their amended complaint are barred in whole or in part by the Class Action Settlement and the Release and Waiver as set forth in the Final Order and Judgment entered by the aforementioned Court in the case of Blanke v. Lincoln National Corp, No. 0512048 (La. 24th Jud. Dist.Ct.2001).”

On July 31, 2009, the Estate of Aan B. Raven and Lenore S. Raven, filed a pleading in the 24th Judicial District Court entitled, Petition for Declaratory Judgment that Final Order and Judgment entered on May 17, ] 42001 does not Bar New Cause of Action filed Subsequent Thereto. In this pleading, plaintiffs allege that the issues raised in the federal complaint in Florida are outside the scope of the 2001 Final Judgment and Permanent Injunction issued by the Louisiana state court. Plaintiffs allege that the Louisiana class action related to misrepresentations made by Lincoln in selling “vanishing premium” life insurance policies and other misleading administrative policies. Plaintiffs allege that the Florida case is based upon new allegations that Lincoln failed to effectuate the policy waiver of premiums based on disability and wrongfully caused the policy to lapse. Plaintiffs further contend this cause of action against defendant arose after the judgment rendered on May 17, 2001 in Louisiana.

Lincoln responded to this pleading with a Peremptory Exception of Res Judicata, alleging that plaintiffs’ action is barred by the Final Order in the class action, which permanently enjoined class members from bringing any claim related to the class action. Defendant contends that plaintiffs’ claims are based on vanishing-premium allegations, allegations concerning the rollover of an existing policy into a new policy, and allegations regarding the cash surrender value of a policy, and that these claims are related to the matters covered by the Louisiana court’s Final Order.

Following a hearing on this exception, the trial court entered judgment on November 24, 2009 sustaining defendant’s exception of res judicata. Additionally, the trial court issued written reasons for judgment on January 8, 2010 stating that plaintiffs’ suit was dismissed with prejudice. Plaintiffs now devolutively appeal from both of these judgments.

UBy this appeal, plaintiffs argue that the trial court erred in sustaining the exception of res judicata. After review of the record and exhibits in this matter, we agree.

Res judicata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit. LSA-R.S. 13:4231. It promotes judicial efficiency and final resolution of disputes. Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654, 95-0671, pp. 11-12 (La.1/16/96); 666 So.2d 624, 631.

LSA-R.S. 13:4231, as amended in 1990, provides:

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:

(1) If the judgment is in favor of the plaintiff, 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 merged in the judgment.

(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 the above statute, 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 asserted 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, 07-2469 (La.9/8/08), 993 So.2d 187, 194. 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.

In the present case, there is no dispute that the first three elements have been met. However, the parties dispute the applicability of the last two elements and whether the claims asserted in the Florida court existed at the time of the Final Order in the Louisiana case and whether the facts asserted in the Florida case arise out of the transaction or occurrence that was the subject matter of the first litigation.

Although the original class action petition is not contained in the record before us, defendant submitted the Final Order and Judgment issued in that litigation on May 17, 2001. In that judgment, the court stated that plaintiffs’ petition contends that Lincoln Life engaged in misleading and improper life insurance sales and administrative practices in several enumerated respects. The judgment further stated that plaintiffs expressly agree to a Release and Waiver, which provided in part as follows:

Plaintiff and each Class Member hereby expressly agree that they, and each of them, shall release and forever discharge the Releasees from any and all claims and causes of action — known or unknown — that were or could have been asserted in the Action or otherwise with respect to any Policy. As part of this Release, Plaintiff and each Class Member agree that they release, acquit and forever discharge Releasees from, and shall not now or hereinafter institute, maintain or assert against the Releas-ees, either directly or indirectly, derivatively, on their own behalf, on behalf of the Class, or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands or rights ...

|7The Final Order and Judgment also contained a Permanent Injunction, which provided in part:

All Class Members who have not been timely excluded from the Class with respect to a Policy are hereby permanently barred and enjoined from (i) filing, commencing, prosecuting, maintaining, intervening in, participating, ... or receiving any benefits or other relief from, any other claim, lawsuit, arbitration, or administrative, regulatory or other proceeding or order in any jurisdiction based on, arising out of, or relating to the claims and causes of action, or the facts and circumstances relating thereto, in this Action and/or the Released Transactions as to that Policy,....

The Released Transactions referred to in the injunction were listed in Section B of the document. Further, Section B(3) provides the exceptions to the Release and Waiver, and states in part as follows:

Nothing in this Release shall be deemed to alter: (a) a Class Member’s contractual rights under a Policy (except to the extent such rights are altered or affected under the Amended Settlement Agreement) to make a claim for benefits that will become payable in the future pursuant to the express terms of a Policy issued by Lincoln Life, or (g) a Class Member’s right to assert any claim which arises from facts and circumstances occurring in their entirety after the Court signs the Final Order and Judgment; provided, however, that this provision shall not entitle a Class Member to assert claims which relate to the allegations contained in the Action or to the matters described in Section B.

In support of its exception of res judica-ta, Lincoln Life contends that plaintiffs’ allegations in the Florida complaint implicate the claims and causes of action asserted in the class action. As such, defendant argues that the allegations are barred by the Release and Waiver since all such allegations were before the court in the class action, and are based on, arise out of, and relate to the matters of the class action. With regard to the exception contained in Section B(3), Lincoln Life contends that it is ^inapplicable as plaintiffs’ claims asserted in the Florida case did not arise from facts and circumstances occurring in their entirety after May 17, 2001, the date of the judgment. Rather, defendant contends that plaintiffs rely on facts and circumstances that arose when the policy was converted in 1986.

In their Amended Complaint filed in the federal court in Florida, plaintiffs address this issue and averred as follows:

The issues raised in this Amended Complaint are distinguished and entirely different from those raised in the class Action petition. The instant action is based upon allegations that Defendant failed to effectuate the waiver of premium based on disability, to which Plaintiff Raven was entitled; wrongfully caused the insurance policy to lapse; failed to provide proper, effective and timely notice to Plaintiffs before causing the policy to be lapsed; and misrepresented the cash value of the policy to Plaintiff L. Raven — each issue being an independent cause of action which arose some time on or after June 9, 2002, and clearly after the May 17, 2001 cut-off date provide in the Class Action Final Judgment and Order.
The aforesaid new issues, upon which this action is based, were not raised in, could not have been raised at the time, were not covered by the Class Action litigation, and were specifically excluded from the Release and Waiver which was incorporated in the Final Judgment and Order.

Our review of the evidence contained in the record fails to support the trial court’s determination that the issues asserted in the amended complaint were barred by the Final Order in the class action. Although the trial court determined that the claims asserted in the amended complaint were “based on, arising out of, or relating to’ the claims released by the settlement,” we fail to find this to be the case.

By the allegations in the Amended Complaint, plaintiffs state that the federal action arose after the Final Order was issued when they learned their policy had lapsed due to nonpayment of premiums. Further, although 1 ^defendant argues that some of the facts and circumstances of the federal action arose prior to the issuance of the Final Order, we fail to find that the claims asserted are therefore barred by the terms of the Release and Waiver. In fact, we find that the only apparent relationship between the present claims and the claims which were settled and released in 2001 are that they arose out of the subject policy. We conclude therefore that plaintiffs’ claims as asserted in their Amended Complaint in the federal court in Florida are not altered by the Release contained in the Final Order and Judgment, and are therefore not barred by the doctrine of res judicata.

For the reasons stated herein, we find that the claims raised by plaintiffs in their Amended Complaint are not barred in whole or in part by the Class Action Settlement and the Release and Waiver as set forth in the Final Order and Judgment entered by the 24th Judicial District Court on May 17, 2001. Although we find no basis for the continuation of the stay order imposed by the federal court in Florida on February 28, 2008, nothing in this opinion shall be construed as a commentary on the merits of plaintiffs’ action in that court. The only matter within our jurisdiction is the judgment of the trial court on defendant’s exception, and all further matters should be addressed in the United States District Court for the Southern District of Florida.

Accordingly, the judgment of the trial court sustaining defendant’s exception of res judicata is hereby reversed. Lincoln Life shall bear all costs of this appeal.

REVERSED.