text:
    STATE of Louisiana v. Phillip LAMPTON.
    No. 2011-KA-0775.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Katherine M. Franks, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| ,The defendant, Phillip Lampton, was charged by bill of information on July 12, 2010, with possession of cocaine, a violation of La. R.S. 40:967(C). On July 26, 2010, he pleaded not guilty. On August 20, 2010, a hearing on the motions was held, and the trial court found probable cause and denied the defendant?s motion to suppress the evidence. On August 27, 2010, the court allowed defense counsel to reopen the motions. On September 16, 2010, the trial court again found probable cause and denied the motion to suppress the evidence. Trial was set for September 28, 2010. On that date, the defendant withdrew his plea of not guilty, and pleaded guilty under State v. Crosby, 338 So.2d 584 (La.1976). The defendant waived delays, and on September 28, 2010, the trial court sentenced him to two years at hard labor, suspended, with two years of active probation. The defendant was also ordered to pay $800.00 to the Judicial Expense Fund.

AUGUST 20, 2010 HEARING ON THE MOTIONS

At this hearing, Officer Jimmy Peak testified that on June 1, 2010, he was working with Officer Jonathan Sam. He stated that they were proactively patrolling in the Iberville Housing Development, which is known for high crime rates and drug trafficking. The officer said that they observed an unidentified 12black male walking in the 1300 block of Bienville Street in New Orleans, which he testified was in the housing development. He stated that nearly every building in the development had a “No Trespassing” sign. Officer Peak said that he and Officer Sam were familiar with most of the residents of the development, and because neither of them recognized the defendant as a resident of the development, they stopped him in the 1200 block of Bienville Street as he walked out of the housing development. Officer Peak testified that they asked the defendant for identification, and he presented identification that indicated he did not live in the housing development. At that time, the defendant was arrested for trespassing. During a search conducted incident to the defendant’s arrest, they observed a bulge in his right sock. The item recovered from the sock appeared to be crack cocaine. A field test was positive for crack cocaine.

On cross-examination, Officer Peak testified that he had been assigned to C.O.P.S. for a month or two at the time that the defendant was arrested. The officer said that he had been an NOPD officer for two years. The officer said that he had spoken to the majority of residents within that time, but did not know how many people lived in the development. Officer Peak stated that his partner, Officer Sam, had been assigned to the Iberville Development longer than he had worked there. The officer said that he was not familiar with the defendant and that was the reason that he made the stop. Officer Peak justified the stop by stating that the block that he was coming out of was known for drug trafficking, almost all of the buildings in the housing development had “No Trespassing” signs, and neither he nor his partner was familiar with the defendant.

J^SEPTEMBER 16, 2011 REOPENED HEARING ON THE MOTIONS

At this hearing, Officer Jonathan Sam testified that he and Officer Peak were proactively patrolling in the Iberville Housing Development on June 1, 2010. He had been working in that area for eight or nine months, and stated that he knew the majority of the residents in the development. Officer Sam stated that the reason he and Officer Peak stopped the defendant was because they did not think he was a resident of the development, and they suspected that he was trespassing. The officer testified that he had no independent knowledge that the defendant did not live in the housing development.

Officer Sam said that he and Officer Peak approached the defendant as he exited the 1300 block of Bienville (within the housing development), and asked him if he lived in the development. The defendant produced identification indicating that he did not live within the housing development. Officer Sam noted that nearly every building in the development had a “No Trespassing” sign, and that it is common for non-residents to enter Iberville Housing Development to buy drugs. He also stated that every tenant’s lease in this development includes a provision requiring tenants to accompany their guests until they leave the development. The State did not offer into evidence a copy of the lease referred to by Officer Sam.

On cross-examination, Officer Sam acknowledged that the area where they stopped the defendant, in the 1200 block of Bienville Street almost to Basin Street, was on the outskirts of the housing development, but stated that he and Officer Peak saw the defendant coming out of the courtyard within the development prior to the stop. Officer Sam testified that the defendant produced a valid ID when asked, but the ID showed an address not within the housing development.

|4Prior to the defendant’s arrest for trespassing, the officers conducted a brief pat down for officer safety. After the arrest, the officers noticed that the defendant kept moving his body so that the officers could not check his right side. The defendant continued to do this even after Officer Peak asked him to stop moving. At that time, the officers conducted a full search incident to arrest, and discovered crack cocaine in defendant’s right sock.

The trial court found probable cause for the defendant’s arrest, noting that the officers had the right to investigate possible criminal activity that they believed had been committed or was about to be committed. The trial court also denied the defendant’s motion to suppress the evidence.

In the defendant’s first assignment of error, he argues that the trial court erred in denying his motion to suppress the evidence. Specifically, the defendant argues that the police officers did not have reasonable suspicion to stop him. The officers’ testimony indicated that they stopped the defendant because they did not recognize him as a resident of the Iberville Housing Development, and suspected him of trespassing. The defendant argues that the officers then illegally arrested him for trespassing, and in a search incident to that arrest, the officers found a small amount of cocaine in his sock. The defendant argues that the cocaine was seized pursuant to an illegal search, and should have been suppressed.

The State argues that the police officers had reasonable suspicion to stop the defendant, and during that stop, the officers learned information that led them to believe that the defendant had committed a crime, criminal trespass, in their presence. The State claims that the search incident to that arrest was legal, and the trial court properly denied the motion to suppress the evidence.

Un the defendant’s reply brief, he argues that the fact that he was walking down the street on the fringes of the Iber-ville Housing Development did not amount to committing trespass. He therefore argues that the search incident to his arrest for trespassing was illegal.

The State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D).

Trial courts are vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 2008-2592, p. 5 (La.9/9/04), 884 So.2d 1176, 1179 (citations omitted); State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914 (trial court vested with great discretion when ruling on a motion to suppress). The district court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard and the district court’s ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 2001-2199 (La.App. [4 Cir.] 1/22/03), 839 So.2d 214, 218. Accordingly, “on mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo.” Id. (citation omitted). “Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts.” Id. (citation omitted).

State v. Anderson, 2006-1031, p. 2 (La. App. 4 Cir. 1/17/07), 949 So.2d 544, 546. See also State v. Wells, 2008-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581.

This Court recently set forth the law regarding investigatory stops in State v. Harveston, 2010-1402, p. 7 (La.App. 4 Cir. 5/11/11), 71 So.3d 954, 957, as follows:

La. C. Cr. P. art. 215.1(A) codifies the U.S. Supreme Court’s authorization of stops based on reasonable suspicion set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and provides:
A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense |6and may demand of him his name, address, and an explanation of his actions.
“Reasonable suspicion” to stop is something less than probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether a detaining officer had sufficient facts within his or her knowledge to justify an infringement of the suspect’s rights. State v. Jones, 99-0861, p. 10 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 36-87.

This Court in State v. Marzett, 2009-1080, pp. 6-7 (La.App. 4 Cir. 6/9/10), 40 So.3d 1204, 1209, discussed four prior cases involving investigatory stops of defendants in housing developments:

This Court has addressed stops in public housing projects numerous times. In State v. Parker, 97-1994, p. 6 (La. App. 4 Cir. 12/9/98), 723 So.2d 1066, 1068, the arresting officers testified that they initially approached the defendant “pursuant to a ‘rule’ prohibiting persons from being in the Lafitte Housing Development without permission of a resident.” One of the arresting officers had recently arrested the defendant and knew that he was not a resident of the project. Id. However, this Court found that the arresting officers did not have sufficient reasonable suspicion to justify an investigatory stop. Id., 97-1994 at p. 6, 723 So.2d at 1069. It reasoned:
Because the exact provisions of the Lafitte Housing Development trespassing rule were never established in the record by way of testimony or otherwise, we cannot determine whether or not this rule was violated, or even that there is such a rule.
Id. This Court also noted an inability to find any trespassing statute or ordinance that applied exclusively to public housing developments of the City of New Orleans that was more restrictive than general trespassing laws. Id. Therefore, this Court held, “that the mere fact that the defendant was in a housing development did not give rise to the officers [sic] reasonable suspicion that he was committing or was about to commit a crime when the stop was initiated.” Id.
In State v. Coleman, 2001-0112, p. 1 (La.App. 4 Cir. 7/11/01), 791 So.2d 780, 781, the defendant exited the Guste Housing Development and approached the officer who arrested her while he was conducting an investigation of another crime in the 1400 block of South Robertson Street. The arresting officer asked the defendant to identify herself. Id. 2001-0112, p. 2, 791 So.2d at 781. She gave the name [ 7“Kim Carter,” but had no identification. Id. Moreover, the defendant was not able to explain why she was in the area. Id. A computer check produced no results for “Kim Carter.” Id. The arresting officer testified that he arrested her for trespassing because, in his experience, a person of defendant’s age had identification and could generally be identified in the computer. Id. A search incident to this arrest produced contraband. Id. On cross examination, the officer testified that he did not know whether there were trespass postings at the housing development. Id. This Court found there was no probable cause for the trespass conviction, finding the case before it to be “almost identical” to the facts of State v. Walker, 32-342 (La.App. 2 Cir. 9/24/99), 747 So.2d 133. Id. 2001-0112, p. 6, 791 So.2d at 783. In Walker, the Second Circuit found that arresting officers did not have probable cause to arrest for trespass, which led to the discovery of drugs. Id. 2001-0112, p. 4, 791 So.2d at 782. This Court’s analysis of Walker pointed out that the Second Circuit “noted that the parking area was neither fenced nor posted with any sign prohibiting parking after business hours or trespassing.” 2001-0112, p. 5, 791 So.2d at 782-783.
Finally, in rejecting the legality of another stop for trespassing in the Lafitte Housing Project, this Court reasoned:
The mere fact that the defendant was in the housing project does not mean he was trespassing, see Parker, 723 So.2d at 1069, and the State did not allude to any specific ordinance pertaining to criminal trespass in housing projects, any evidence of specific signage prohibiting nonresidents from entering the housing projects, or any criminal trespass statute or municipal ordinance pertaining to trespassing in a housing project. Emphasis added.
State v. James, 2007-1104, p. 4 (La.App. 4 Cir. 3/5/08), 980 So.2d 750, 753.
Marzett, 2009-1080, pp. 6-8, 40 So.3d at 1209-10.

In State v. Mulder, 2011-0424 (La.App. 4 Cir. 10/19/11), 76 So.3d 1241, writ denied, 2011-2511 (La.12/1/11), 76 So.3d 1160, this Court was recently faced with a case involving a defendant who was stopped and arrested as he was walking through a housing development. In Mulder, an NOPD officer testified that she and her partner were sitting in their marked police unit in the Iberville Housing Development when they saw the defendant walking in and around the area. As ^neither officer recognized him as a resident of the development, they exited their car, told the defendant to step to the hood of the vehicle, and patted him down. The defendant complied, but kept his left hand clenched as he placed it on top of the ear. The officer ordered the defendant to open his left hand and saw him discard a small foil packet. After confiscating the packet and opening it to find a tan powdery substance, the officer advised the defendant of his Miranda rights.

In finding that the police did not have reasonable suspicion to conduct an investigatory stop, this Court rejected the State’s argument that the officers had reasonable suspicion to detain the defendant because they did not recognize him as a resident of the housing project and “reasonably suspected that the defendant was trespassing, and instead of arresting him on that suspicion they were investigating whether he was a resident.” Citing the holding in State v. Parker, 97-1994 (La.App. 4 Cir. 12/9/98), 723 So.2d 1066, that “the mere fact that the defendant was in a housing development did not give rise to the officers [sic] reasonable suspicion that he was committing or was about to commit a crime when the stop was initiated,” the Mulder court also stated that the case before it was similar to State v. Parker, supra, in that “the State presented no evidence of any ordinance allowing only residents to enter a housing development, any evidence of specific signage prohibiting nonresidents from entering the housing development, or any criminal trespass statute or municipal ordinance pertaining to trespassing in a housing project.” State v. Mulder, supra.

Considering the facts of this particular case, and the jurisprudence discussed above, we find that the trial court erred in finding that the officers had probable | flcause to arrest the defendant for trespassing. The State did not produce sufficient evidence as to any specific trespassing rule relating to the Iberville Housing Development, or any other housing development in New Orleans, that prohibited a person from walking through the development when that person is a nonresident of the development and not accompanied by a resident of the development. Both officers referenced “No Trespassing” signs on most of the buildings in the development, but neither officer provided testimony as to the specific language on the “No Trespassing” signs. Officer Sam testified that every tenant of the development signs a lease, which includes a clause requiring that tenants escort their guests off of the property. But no such lease was offered into evidence by the State. Therefore, the State did not establish the exact provisions of such a rule.

In light of the cases cited above, particularly State v. Mulder, 2011-0424 (La.App. 4 Cir. 10/19/11), 76 So.3d 1241, writ denied, 2011-2511 (La.12/1/11), 76 So.3d 1160, and State v. Parker, 97-1994 (La.App. 4 Cir. 12/9/98) 723 So.2d 1066, we conclude that the defendant’s arrest for trespassing was illegal. Although the officers did not violate the defendant’s Fourth Amendment rights when they approached him and asked for his identification, the officers did not have probable cause to arrest the defendant for trespassing. Because the defendant’s arrest was illegal, the search conducted incident to that arrest was also illegal.

hnFor the reasons stated above, we find that the trial court erred in finding probable cause for the defendant’s arrest, and in denying the defendant’s motion to suppress the evidence seized in the search conducted incident to the arrest. The defendant’s conviction and sentence are hereby reversed.

REVERSED

      . Community Oriented Policing Squad.

      . La. R.S. 14:63 provides in pertinent part:
      A. No person shall enter any structure, watercraft, or movable owned by another without express, legal, or implied authorization.

        B. No person shall enter upon immovable property owned by another without express, legal, or implied authorization.
      C. No person shall remain in or Upon property, movable or immovable, owned by another without express, legal, or implied authorization.
      D. It shall be an affirmative defense to a prosecution for a violation of Subsection A, B, or C of this Section, that the accused had express, legal, or implied authority to be in the movable or on the immovable property.

      . The Louisiana Supreme Court in State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1183, citing United States v. Watson, 953 F.2d 895 (5th Cir.1992), stated, "mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention.”


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge.

license: Public Domain

text:
    ORLEANS PARISH SCHOOL BOARD v. LEXINGTON INSURANCE COMPANY, Aon Risk Services, Inc. of Louisiana, James Lawler, and ABC Insurance Company.
    No. 2011-CA-1753.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2012.

      Terrill W. Boykin, Kriste Taitón Utley, Shaundra M. Westerhoff, Boykin Ehret & Utley, Trevor G. Bryan, Trevor Bryan, APLC, New Orleans, LA, Robert A. Kutcher, Nicole Tygier, Chopin Wagar Richard & Kutcher, LLP, Metairie, LA, for Plaintiff/Appellant, Orleans Parish School Board.
    James M. Garner, Esq., Debra J. Fisch-man, Esq., Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC., New Orleans, LA, for Appellants, Recovery School District, the Louisiana Department of Education and the Board of Elementary and Secondary Education.
    Robert I. Siegel, Gieger Laborde & La-perouse, LLC, Michael R. Fontham, Daria Burgess Diaz, Dana M. Shelton, Stone, Pigman, Walther, et ah, New Orleans, LA, Courtney E. Murphy, Clausen Miller PC, New York, NY, for Defendants/Appellees, Westchester Surplus Lines Insurance Co. and RSUI Indemnity Co.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   DENNIS R. BAGNERIS, SR., Judge.

hThe plaintiff, Orleans Parish School Board and intervenors, Recovery School District, the Louisiana Department of Education, and the Board of Elementary and Secondary Education, appeal the partial motion for summary judgment granted in favor of the defendants, Westchester Surplus Lines Insurance Company and RSUI Indemnity Company, on the issue of flood coverage. Because we determine that the policies unambiguously excluded flood coverage, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Plaintiff, the Orleans Parish School Board (OPSB), filed suit against its primary insurance carrier, Lexington Insurance Company, and its excess insurance carriers, Essex Insurance Company, Clarendon Insurance Company, Westchester, and RSUI, for losses sustained in connection with Hurricane Katrina. The Louisiana Department of Education (DOE), the Board of Elementary and Secondary Education (BESE), and the Recovery School District (RSD) intervened in the lawsuit.

|2The insurance carriers, including West-chester and RSUI, filed partial motions for summary judgment on the issue of whether flood damage was an excluded peril under their policies. In support of their motions, Westchester and RSUI attached copies of their insurance policies and cited language from their Excess Schedules and Forms that expressly excluded flood loss as a covered peril.

OPSB countered that the Westchester and RSUI policies were “follow form” policies which meant that their policies followed the conditions and coverages of the primary policy offered by Lexington. Therefore, it argued that the Westchester and RSUI policies offered limited flood coverage because the Lexington policy offered some flood coverage. OPSB also claimed that exceptions to exclusions that denied coverage in the Westchester and RSUI policies, in fact, afforded limited flood coverage. With reference to the Westchester policy, OPSB maintained that its Electronic Data Amendment endorsement, which generally excluded coverage for electronic data losses, provided flood coverage for electronic data losses that resulted from flood. OPSB asserted that RSUI policy’s Exclusion and Limited Additional Coverage for Fungus endorsement offered limited flood coverage for “fungus” damage caused by flood, in the event the flood coverage endorsement applied to the affected premises.

The trial court agreed that the West-chester and RSUI policies were “follow form” policies; however, it noted that the Westchester and RSUI policies expressly | sexcepted to the Lexington policy by excluding flood coverage. Hence, the trial court granted Westchester’s and RSUI’s motions for partial summary judgment, finding that the language used in each of their schedules expressly and unambiguously excluded coverage for all loss and damage resulting from the peril of flood.

In response, OPSB filed a Motion For New Trial. It re-urged its claim that the excess policies provided limited flood coverage. The trial court denied the motion. Thereafter, the trial court granted the unopposed motion of Westchester and RSUI to certify as final the judgment granting their motions for partial summary judgment. The certification judgment specifically found that there was no just reason for delay pursuant to Louisiana Code of Civil Procedure Article 1915(B). This devolutive appeal followed.

DISCUSSION

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Under La. C.C.P. art. 966, a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. Dore v. Brignac, 00-1719, p. 3 (La.App. 4 Cir. 6/20/01), 791 So.2d 736, 738.

The interpretation of an insurance policy usually involves a legal question which can be resolved properly in the frame work of a motion for summary | ¿judgment. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Bonin, pp. 4-5, 930 So.2d at 910.

OPSB’s assignments of error contend the trial court erred because endorsements in the Westchester and RSUI policies offered limited flood coverage. The Westchester flood coverage argument is premised on the position that although its Electronic Data Amendment Endorsement excludes coverage for “electronic data,” it also states: “This exclusion does not apply to loss or damage to ‘Electronic Data’ or ‘Electronic Media’ caused by or resulting from the Perils of ... Flood ... if and to the extent such Perils are already covered by this or by an underlying policy.” Therefore, OPSB surmises that because the primary Lexington policy afforded some flood coverage, Westchester provided flood coverage for electronic data or electronic media as a follow form policy.

OPSB’s claim that RSUI provides limited flood insurance is based on the policy’s Exclusion and Limited Additional Coverage for Fungus endorsement. The endorsement provides in part:

ADDITIONAL COVERAGE-Limited Coverage for “Fungus”, Wet Rot, Dry Rot and Bacteria
1. This limited coverage applies when the “fungus”, wet or dry rot or bacteria is the result of one or more of the following causes that occurs during the policy period ...
a. A “covered cause of loss” other than fire or lightning;
b. Flood, if the Flood Coverage Endorsement applies to the affected premises.

|fiIn interpreting an insurance policy, the court must determine the common intent of the parties. Carrier v. Reliance Ins. Co., 99-2573, p. 11 (La.4/11/00), 759 So.2d 37, 43, citing Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. “An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.” Id. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. In applying these general precepts to the instant matter, we conclude that OPSB’s assignments of error lack merit.

With reference to the Westchester policy, the exception to the electronic data exclusion extends flood coverage “... if and to the extent such Perils are already covered by this or by an underlying policy.” In our review of the policy, there were no “perils” covered by the Westches-ter policy or an underlying policy to trigger flood coverage. We reject OPBS’s claim that Westchester offered electronic data flood coverage as a follow form policy to the underlying flood coverage offered by Lexington. This argument fails because an excess carrier is permitted to provide exceptions to coverage provided in a primary policy. Robichaux v. Randolph, 563 So.2d 226, 228 (La.1990). Here, the Westchester policy clearly excludes flood coverage. The policy states: “Perils Covered: All risk excluding flood ...” Thus, the plain language of the Westchester policy excludes any flood coverage. OPSB’s position strains to create flood coverage based on an exception to an exclusion that goes against the plain language of the policy to | r,exclude flood damages as a covered loss. We decline to create flood coverage out of an exclusion to an exception. As the Court reasoned in Magnon v. Collins, 98-2822, p. 8 (La.7/7/99), 739 So.2d 191, 197-198, “[T]o hold otherwise would defeat the intent of the parties by treating exclusions as inclusions.”

For similar reasons, we also find that RSUI’s “Exclusion and Limited Additional Coverage For Fungus” endorsement does not provide limited flood coverage. As with the Westchester policy, RSUI’s Excess Physical Damage Schedule expressly excludes coverage for flood risks. Next, to the extent that the Fungus Exclusion Endorsement could be interpreted to give limited coverage for fungus damage caused by flood, the endorsement only offers coverage if the “Flood Coverage Endorsement applies to the affected premises.” RSUI’s policy does not contain this Flood Coverage Endorsement. Thus, OPSB cannot claim RSUI provided it with limited flood coverage. RSUI does not have the required endorsement for fungus-related flood coverage and the policy expressly excepts to any flood coverage that may have been included in the Lexington policy.

This Court agrees with the trial court that the Westchester and RSUI policies unambiguously exclude coverage for all losses and damage resulting from the peril of flood. For the foregoing reasons, the judgment of the trial court granting partial summary judgment in favor of defendants, Westchester and RSUI, is affirmed.

AFFIRMED

      . OPSB has settled its claims against Lexington, Clarendon, and Essex. This appeal relates only to the excess policies of insurers, Westchester and RSUI.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Lawrence JOSEPH.
    No. 2011-KA-0689.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2012.

      Harold E. Weiser III, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|TOn June 29, 2010, the State filed a bill of information charging the appellant, Lawrence Joseph, with unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. He originally pleaded not guilty, and filed a motion for a preliminary hearing and motions to suppress the evidence, the statement, and the identification. On September 17, 2010, the appellant appeared for the hearing and the motions. He then withdrew his plea of not guilty and pleaded guilty as charged. The State agreed not to file a multiple bill. The appellant was subsequently sentenced to five years at hard labor, to run concurrently with any other sentence and with credit for time served.

On October 26, 2010, the Criminal District Court clerk’s office received the defendant’s pro se “notice of appeal to withdraw plea.” The district court denied the motion/notice following a contradictory hearing on February 4, 2011. In pro se writ 2011-K-0199, the relator sought review of the district court’s judgment denying his motion to withdraw his guilty plea. On April 15, 2011, this Court denied the writ because the relator was granted an appeal on February 28, 2011.

|2No trial or hearing on the motions was held because the appellant pleaded guilty as charged. The facts of the case are not relevant to the denial of his motion to withdraw his guilty plea.

After a review of the record, no errors patent were found.

The appellant argues that the trial court abused its discretion by denying his motion to withdraw his guilty plea that was filed after sentencing. The appellant states that the “crux of the ... argument is that his ‘Boykinization’, and the parties thereto, were inattentive, hasty, and irreverent” regarding appellant’s constitutional rights. At the hearing when appellant withdrew his plea of not guilty and entered a plea of guilty, the trial court noted that there were four spots on the guilty plea form that the appellant had not initialed. The court circled the four empty lines and instructed appellant’s trial court counsel to make sure that the appellant initialed those sections that were not initialed. The four lines of the guilty plea form that were not initialed were next to (1) the statement that the appellant was giving up his right to present witnesses who would testify for him and/or evidence that would be helpful or favorable to him; (2) the sentencing range; (3) the sentence that was part of the plea bargain; and (4) the statement that he understood that there was a thirty-day time limit to appeal the conviction and a two-year time period in which to file an application seeking post-conviction relief.

The appellant takes issue with the trial court’s conclusion seconds later that his guilty plea had been entered knowingly and voluntarily. Counsel points to the above-mentioned lack of initials to argue that the appellant might not have been aware of the maximum sentence possible or of the rights that he was waiving. Appellant’s appellate counsel argues that the trial court erred by allowing the guilty plea to be entered when the form had not been completed; there was one line I..¡without initials when the plea was accepted. Appellant argues that the court later abused its discretion by allowing the plea to stand and denying the appellant’s motion to withdraw his guilty plea. The appellant claims that his public defender pushed him toward a plea bargain despite his desire not to plead guilty. He further claims that the public defender urged a plea deal before a hearing on the motions had been held and before the strength of the State’s case was known.

The record shows that at a hearing held on September 17, 2010, counsel for the appellant declared that the appellant was withdrawing his plea of not guilty and entering a plea of guilty as charged. The trial court told the appellant that before the guilty plea could be accepted, the court had to make sure that the appellant understood the constitutional rights that he was waiving. The court asked the appellant if he understood that by entering the guilty plea he was waiving his right to a trial by judge or by jury, to being presumed innocent until the State could prove him guilty beyond a reasonable doubt, to confront the witnesses testifying against him, to testify or not to testify and not have his decision to remain silent held against him, and the right to appeal a guilty verdict. The court asked if the appellant understood each right, and he answered affirmatively. When the court asked the appellant if he was under the influence of prescription drugs, narcotics, or alcohol, he answered negatively.

The court declared that the appellant faced up to ten years in prison and/or a $5,000 fine as a first offender. The trial court said that the State alleged that the appellant had three prior felony convictions, and the appellant acknowledged having them. The court declared that the State agreed to a five year sentence, and agreed to not filing a multiple bill against him. The court asked if the appellant understood that, and he replied: ‘Yes, ma’am.” The court asked if the appellant l4expected any favorable treatment other than that just discussed, if his attorney had promised anything except what had been discussed, and if he had been forced or coerced into pleading guilty. The appellant answered negatively each time.

The court asked if the appellant understood all the possible legal consequences of pleading guilty and if he wished to plead guilty because he was guilty of the crime, and the appellant answered affirmatively. The court told the appellant that he had thirty days to appeal his conviction and two years to file an application for post-conviction relief. The court then looked at the form, and the appellant acknowledged his initials were on the guilty plea form. The court noted that the appellant had not initialed four spots; the court circled the four empty lines, and told counsel to have the appellant initial inside those circles. Defense counsel stated that she had gone over the form with the appellant and signed it at the bottom. The appellant said that he understood what counsel had explained to him. The court then found that the appellant had entered his guilty plea knowingly, intelligently, and voluntarily.

On September 27, 2010, the Assistant District Attorney (ADA) informed the court that the appellant had pleaded guilty, and the State had agreed not to file a multiple bill. The trial court sentenced the appellant to five years at hard labor, to run concurrently with credit for time served.

At a contradictory hearing on February 4, 2011, appellant’s counsel (a different attorney than the one who represented appellant at the guilty plea hearing) argued that the appellant “entered into a plea bargain, which he was not certain of what the arrangements were....” When the trial court asked what counsel meant, he replied: “He [the appellant] was not fully informed of his rights and what would happen.” The court declared: “Yes, he was. | .^Attached to this piece of paper [guilty plea form] at the top, Ariel [appellant’s trial counsel] wrote that ‘Lawrence Joseph enters this plea of guilty with the understanding — with understanding, and because the State has agreed not to file a multiple offender bill against him’.” The ADA told the court that he believed the appellant was a triple offender. The court stated that the appellant had the option of going to trial and being triple billed if he were convicted, or pleading guilty and receiving a five year sentence, which was far less than the multiple offender sentence would have been.

Counsel said that he had not yet informed the appellant of what the multiple bill statutes are and what the ramifications of those statutes are.

It doesn’t matter now because he’s [sic] entered a guilty plea. So, if your reason is that he was not fully advised of what his options were, I don’t believe that to be the case because he — the writing of his lawyer is on the top of the plea form, which — I asked him when he pled guilty if he understood that he was entering a guilty plea with the understanding that the State was not going to be filing a multiple offender bill against him. So, I find no reason so far that you’ve stated on the record, to allow him to withdraw his guilty plea.

Counsel said that the appellant had expressed that his trial counsel “didn’t fully explain to him the repercussions of what this plea agreement would have been.” The trial court noted that the appellant had prior felony convictions and he knew what a guilty plea was; the repercussions of the plea are accepting responsibility and being subject to serving jail time. The court stated that the appellant received less jail time (five years) than if he had been multiple billed; the maximum sentence was ten years, and as a third felony offender, he could have been sentenced to twenty years.

Counsel claimed that the appellant was not fully informed by his trial counsel of his possible defenses at trial, any pre-trial motions that he could file, and the elements of and penalties for the crime of unauthorized use of a motor | (¡vehicle. The ADA informed the court that the appellant was a fourth felony offender; the court stated that a fourth felony offender could receive a sentence of twenty years to life in prison. The court then denied the motion to withdraw the guilty plea.

In State v. Causey, 2010-1466, pp. 8-9 (La.App. 4 Cir. 6/16/11), 67 So.3d 697, 703-704, this Court set out the statutory law and jurisprudence relating to motions to withdraw guilty pleas that are filed after conviction:

La.C.Cr.P. art. 559 provide in pertinent part that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” The Louisiana Supreme Court in State v. Lewis, 421 So.2d 224 (La.1982) considered this issue and held that a trial court may permit the withdrawal of a guilty plea after sentencing when the trial court finds that the guilty plea was not entered freely and voluntarily or that the Boykin colloquy was inadequate, and, therefore, the plea is constitutionally infirm. The withdrawal of a guilty plea is within the discretion of the trial court, and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981).
For a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation and right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). However, the entry of a knowing and intelligent plea of guilty involves more than an understanding and a waiver of the basic triad of rights. In determining whether the defendant’s plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but may also look at other factors which may have a bearing on the decision. State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982).
In addition to the basic three rights enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in order to make a knowing and intelligent decision to plead guilty the defendant must be apprised of the possible range of sentences for the offense to which he pleads guilty. State ex rel. Curry v. Guillory, 441 So.2d 204 (La. 1983).

See also State v. Rhea, 2004-0091, pp. 3-4 (La.App. 4 Cir. 5/19/04), 876 So.2d 131, 133-34. There is “no absolute right to withdraw a previously entered plea of [ 7guilty.” State v. Young, 2011-0046, p. 7 (La.App. 4 Cir. 8/17/11), 71 So.3d 565, 570, (iquoting State v. Pichon, 96-0886, p. 2 (La.App. 4 Cir. 11/20/96), 684 So.2d 501, 502).

La. R.S. 14:68.4 provides:

A. Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.
B. Whoever commits the crime of unauthorized use of a motor vehicle shall be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than ten years or both.

Appellate counsel conceded in his brief that a plea form need not be perfect to effect a valid guilty plea, but the defendant must be made aware of his rights. Counsel focuses on the line next to the maximum sentence that the appellant had not at first initialed; however, the trial court noted the four missed initials by circling the empty spots, and the appellant initialed three of the four lines. The appellant initialed inside the court’s circles next to the statement that the appellant was giving up his right to present witnesses and/or evidence favorable to him, on the line next to the sentencing range (zero to ten years in the Department of Corrections and/or $5,000), and on the line next to the sentence that was part of the plea agreement, five years in the Department of Corrections. He never initialed the fourth empty line next to the statement that he understood that there was a thirty-day time limit to appeal the conviction and a two-year time period in which to file an application seeking post-conviction relief. However, during the Boykin colloquy, the trial court informed the appellant of the time limits for an appeal and for an application for post-conviction relief.

|sThe trial court also asked the appellant if he understood each of the Boykin rights that he was waiving (right to trial by jury, right of confrontation and right against compulsory self-incrimination), and the appellant answered affirmatively. The court noted that as a first offender, the appellant could be sentenced up to ten years in prison and/or a $5,000 fine. The appellant acknowledged that he had three prior felony convictions; therefore, he would be sentenced as a fourth felony offender unless he accepted the plea agreement and received five years at hard labor. He acknowledged that the State agreed not to file a multiple bill and to the imposition of a five-year sentence at hard labor. The appellant indicated that he had not been promised anything beyond the plea bargain, and he had not been forced or coerced into pleading guilty.

The appellant’s argument relating to the guilty plea form is not persuasive; he initialed all but one of the four sections that were blank at the time of the guilty plea hearing, and the section that he never initialed pertained to the time limits for filing an appeal and an application for post-conviction relief. The September 17, 2010, transcript reflects compliance with Boykin requirements. The trial court went through each of the Boykin rights, and the possible maximum sentence the appellant could receive as a first offender and as a fourth felony offender during the colloquy. The appellant had three prior felonies; he had been to court before and understood such proceedings. He agreed to plead guilty in order to receive a five-year sentence at hard labor rather than going to trial and possibly being sentenced as a fourth felony offender to a much longer enhanced sentence.

We find that the trial court did not abuse its discretion by denying the appellant’s motion to withdraw his guilty plea. The appellant’s assignment of error lacks merit.

19For the reasons stated above, we affirm the defendant’s conviction and sentence.

AFFIRMED


author: GREMILLION, Judge.

text:
    Mary Phyllis SOILEAU v. SMITH TRUE VALUE AND RENTAL, et al.
    No. 11-1594.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 2012.
    Rehearing Denied Aug. 15, 2012.

      W. Glenn Soileau, Jacques P. Soileau, Soileau & Soileau, Breaux Bridge, LA for PlaintiffyAppellee, Mary Phyllis Soileau.
    Anthony C. Dupre, Attorney at Law, Ville Platte, LA, for Defendant/Appellee, Smith True Value and Rental.
    Bradley C. Myers, John F. Jakuback, Kean, Miller, Hawthorne, D’Armond, McCowand & Jarman, Baton Rouge, LA, for Defendant/Appellee, Risk Management, Inc.
    Peter F. Caviness, Steven J. Bienvenu, Dauzat, Falgoust, Caviness & Bienvenu, L.L.P., Opelousas, LA, for Defendant/Ap-pellee, Louisiana Municipal Risk Management.
    J. Michael Percy, Andrew P. Texada, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellees, Deere and Company, John Deere Limited.
    Richard J. Petre, Jr., Onebane Law Firm, Lafayette, LA, Rodney Janis, Wilson Elser Moskowitz Edelmen & Dicker LLP, West Palm Beach, FL, for Defen-danVAppellee, Smith’s Hardware.
    Charles M. Lanier, Jr., Mary Beth Meyer, Christovich & Kearney, LLC, New Orleans, LA, for Defendant/Appellant, Hartford Insurance Company.
    Karen Day White, Louisiana Municipal Association, Baton Rouge, LA, for Defendant/Appellee, Louisiana Municipal Association.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

IjThe plaintiff, Mary Phyllis Soileau, and the defendant, Hartford Insurance Company, appeal a jury verdict in Soileau’s favor. For the following reasons, we reverse the trial court’s denial of Hartford’s exception of no right of action, grant judgment in its favor, and dismiss it from the action.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Mary Phyllis Soileau, sustained serious injuries following a November 2007 accident in which a John Deere front-end loader detached from a John Deere tractor and fell on her leg, shattering it. Soileau filed suit in April 2008, against Deere & Company (Deere), the Town of Mamou, and Harry Smith Jr., Claire Smith, Smith’s Hardware (collectively Smith’s), and Smith’s insurer, Hartford Insurance Company. Smith’s rented the John Deere equipment to the Town of Mamou, for whom Soileau was working supervising the cleaning out of canals with the front-end loader at the time the accident occurred.

Extensive litigation ensued. In May 2009, Soileau entered into a “high/low” agreement with Hartford in which she received a certain amount of money up front in exchange for Hartford’s liability being capped at its policy limit of $2,500,000.00 regardless of the jury’s verdict. The agreement was executed on May 20, 2009, and released Smith’s of any personal obligation to Soileau.

Soileau settled with Deere in August 2010, and proceeded to trial against Smith’s and Hartford. A jury trial was held over five days in October 2010. On the fourth day of trial, Soileau moved in open court to dismiss the Smiths personally and their company, Smith’s Hardware. That same day, Hartford moved for a directed verdict based on its policy language that obligated it to pay only those sums that the insured becomes legally obligated to pay. The trial court denied the motion. Hartford also filed a peremptory exception of no right of action, Larguing that pursuant to the Louisiana Direct Action Statute, La.R.S. 22:1269, dismissal of Smith’s terminated Soileau’s action against it. The trial court denied Hartford’s exception.

The jury found in favor of Soileau, apportioning Smith’s with 15% of the fault, Mamou with 15%, and Deere with 70%. It awarded damages totaling $9,429,758.81. The trial court entered judgment against Hartford casting it with 15% of the damages, amounting to $1,074,463.82 (Hartford received a credit for sums it already paid pursuant to the high/low compromise agreement). The trial court further cast Hartford with 50% of Soileau’s court costs.

Hartford, thereafter, filed a motion for judgment notwithstanding the verdict or, alternatively, for new trial, re-urging that Soileau had no claim against it under the language of its policy and under the direct action statute once Smith’s was dismissed. Soileau also filed a motion for judgment notwithstanding the verdict regarding fault apportionment. The trial court denied Hartford’s and Soileau’s motions. Hartford and Soileau now appeal.

ISSUES

Hartford assigns as error:

1. The trial court erred as a matter of law when it failed to dismiss Hartford after plaintiff dismissed Hartford’s insureds, with prejudice, and extinguished the cause of action forming the basis for pursuing a direct action against Hartford.
2. The trial court erred as a matter of law when it allowed plaintiff to proceed against Hartford, alone, after plaintiff unconditionally dismissed Hartford’s insureds, with prejudice, and none of the statutory bases under the Louisiana Direct Action Statute for bringing a direct action against an insurer alone applied.
3. The jury and the trial court erred as a matter of fact and law in finding Hartford liable to plaintiff when the terms of its insurance policy provide that Hartford is only liable for damages its insureds are legally obligated to pay and its |ainsureds were dismissed and could not be liable to pay anything to plaintiff.
4. The jury’s award of $7.5 million in General Damages is unreasonable and abusively high in light of the record reviewed in its entirety.
5. The jury’s verdict awarding $7.5 million in General Damages should be reversed because the award was tainted by an improper appeal to the jury’s prejudice against insurance companies that prevented the jury from doing justice. Plaintiffs counsel dismissed Hartford’s insureds in front of the jury and then, against the Court’s warning, elicited testimony from plaintiff that she did not want to collect any money from the insureds and that money would be recovered solely from their insurance company, Hartford. Plaintiffs counsel then improperly informed the jury that plaintiff would not be able to collect money for any fault it assessed against Deere, the settling manufacturer, thereby encouraging the jury to increase its award of damages.
6.The jury’s award of $750,000 in future medical expenses is speculative and supported neither by medical testimony of specific care that will be needed nor of the probable cost of any such future care and is contrary to the testimony of the physicians that she is not expected to have surgery in the future and is only expected to need periodic office exams and some medication.

Soileau assigns as error:

1. The trial court was erroneous in failing to instruct the jury concerning the burden of proving and apportioning fault under the Louisiana Product Liability Act; and/or the jury was erroneous in apportioning fault amongst the parties.

DISCUSSION

Hartford’s assignments of error one through three address the same issue: whether La.R.S. 22:1269 barred Soileau from pursuing Hartford alone once its insureds were dismissed from the litigation. Whether Soileau had capacity to proceed against Hartford alone (i.e., a valid right of action) is a legal question subject to de novo review. See Shorter v. Akins, 11-1553 (La.App. 3 Cir. 4/4/12), 86 So.3d 883. We find that the trial court legally erred in denying Hartford’s exception of no right of action.

1 ¿Louisiana Revised Statute 22:1269(B), formerly La.R.S. 22:665(B) states:

(1) The injured person or his survivors or heirs mentioned in Subsection A of this Section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only; however, such action may be brought against the insurer alone only when at least one of the following applies:
(a) The insured has been adjudged bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.
(b) The insured is insolvent.
(c) Service of citation or other process cannot be made on the insured.
(d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.
(e) When the insurer is an uninsured motorist carrier.
(f) The insured is deceased.

In Foltmer v. James, 01-1510, pp. 4-5 (La.App. 4 Cir. 9/12/01), 799 So.2d 545, 548, writ denied, 01-2777 (La.1/4/02), 805 So.2d 213 (citations omitted), the appellate court stated:

[T]he question regularly asked by courts considering whether a plaintiff has a right of action under the Louisiana Direct Action Statute is ... “whether plaintiff has the right to invoke a remedy which the law extends only conditionally.” The fact is that the Direct Action Statute extends a conditional right to file suit, to some parties under some circumstances. The reason the right is conditional is that no privity of contract exists between a plaintiff injured by a torfeasor and that torfeasor’s insurance company_ [A]n injured party obtains a right of action against another person’s insurance company only if all the requirements of LSA-R.S. 22:655(B) have been fulfilled. Accordingly, an insurance company that proves that the requirements of LSA-R.S. |b22:655(B) have not been fulfilled is entitled to dismissal of the claim against it on an exception of no right of action.

Hartford argues that Soileau’s dismissal of Smith’s in open court relieved it of any obligation pursuant to the direct action statute.

Soileau argues that the direct action statute is inapplicable when the insured has been a party to the litigation from the outset and is dismissed from the litigation at the conclusion of trial pursuant to a valid compromise agreement and that the high/low agreement allowed her to proceed against Hartford alone. Soileau relies on Rollins v. Richardson, 02-556 (La.12/4/02), 833 So.2d 921, and Finnie v. LeBlanc, 03-1013 (La.App. 3 Cir. 3/10/04), 875 So.2d 71, in support of her argument.

The High/Low Agreement

Soileau argues that pursuant to the terms of the high/low agreement, she “reserved her rights to proceed against Harford ... given that Smith’s had been released of personal liability and was therefore ‘judgment proof.’ ” This reliance is misplaced. Nowhere in the high/ low agreement does Hartford agree to waive its rights under the direct action statute. There is no mention of the direct action statute in the agreement, a provision that could have easily been inserted. The agreement specifically provides for the reservation of the parties’ rights as follows (emphasis added):

4. Neither the existence of this Agreement nor any action taken in accordance with its terms shall be construed in any way to prejudice the interests or rights of any Party to this Agreement. All of the terms, provisions, conditions, exclusions, endorsements, and other limitations of the Policies, and all rights, causes of action, claims or benefits of the Parties that are not expressly released, waived or limited by this Agreement are preserved.

In Rollins, 833 So.2d 921, the plaintiff sued the defendant-homeowners, who filed a third-party demand against their insurer, Allstate. Two weeks before trial, Rthe plaintiff entered into a settlement agreement with the homeowners. In consideration for being dismissed from the lawsuit, the homeowners “assign[ed], transferred], and subrogate[d] unto plaintiffs ... any claims or rights against Allstate Insurance Company pursuant to any policy issued to us or for our benefit.” Id. at 923 (alterations in original). Allstate also did not object to being named as a direct defendant in the lawsuit. Plaintiffs third-amended petition claimed Allstate had handled the claim in bad faith and that the homeowners had assigned their claims against Allstate to the plaintiff. Allstate, thereafter, denied liability based on certain policy provisions and asserted that the plaintiff had no right of action. The trial and appellate courts found that Allstate was entitled to summary judgment on the coverage issue because once the homeowner was dismissed, Allstate could not be liable for any damages since it is only responsible for “damages which the insured becomes legally obligated to pay.” Id. at 924.

The supreme court reversed, finding that summary judgment should not have been granted as “the intent of the parties to the compromise is central to the resolution of this case.” Id. The supreme court found that genuine issues of fact existed regarding the parties’ intent to release the homeowner’s obligation to which the insurance coverage applied. The supreme court stated:

In particular, the record demonstrates that Allstate did not object, and in fact agreed, to the amendment of plaintiffs petition to name it as a direct defendant in the face of its knowledge that its insureds, the [defendant-homeowners] were being released. Because genuine issues of material fact exist with respect to the confection of the compromise and Allstate’s role in that compromise, summary judgment should not have been granted in this case.

Id. at 925.

|7The facts of Rollins are distinguishable from the ones present here. First, the direct action statute was not at issue in Rollins. Second, it is clear that Hartford’s intent in executing the high/low compromise was not to allow Soileau to proceed against it alone or otherwise waive it rights under the direct action statute. Hartford’s intent is easily ascertainable from the four corners of the document, to wit, to cap its liability at $2,500,000.00, regardless of the jury verdict. The high/ low agreement in this case is factually dissimilar from Rollins, where there was a genuine issue of fact as to whether the insurer agreed to have the plaintiff proceed against it alone.

Direct Action Statute

Soileau argues that the direct action statute only governs the “bringing” of actions, not the maintenance of an action against an insurer once the insured is dismissed. Soileau argues that because she did not bring an action directly against an insurer, the direct action statute is inapplicable. We disagree. It is true that in Foltmer, 799 So.2d 545, and White v. State Farm Insurance Co., 03-754 (La.App. 4 Cir. 11/26/03), 862 So.2d 263, the insureds were not initially named, whereas in this case, Soileau proceeded against the insureds until nearly the end of the trial before dismissing them in open court. Nevertheless, we agree with Hartford that the legislative intent behind the amendment of the statute would be defeated if a plaintiff could circumvent the statute’s requirements simply by filing the action against the insured and the insurer and then, later, dismissing the insured.

IsSoileau cites Finnie, 875 So.2d 71, for the proposition that the dismissal of an insured pursuant to a compromise does not bar the plaintiff from pursuing her action solely against the insurer. We find the facts of Finnie distinguishable.

In Finnie, the plaintiff settled with the defendant and all of the other insurers except Lafayette Insurance Company (LIC). The settlement agreement stated that plaintiff “reserved the right to proceed against [defendant] ‘to the extent that he was insured by Lafayette.’ ” A panel of this court found:

Ms. Finnie reserved her claim against Mr. LeBlanc to the extent that he was insured by LIC. This was a partial dismissal, not a carte blanche release. The language in the partial dismissal, “to the extent he was insured by Lafayette” gave Ms. Finnie the right to proceed against LIC. LIC should not have been dismissed from the suit for the sole reason that Mr. LeBlanc was dismissed from the suit. The intent was to grant a partial release of Mr. LeBlanc and to reserve rights to the extent that he was covered by LIC. We cannot say that [the] trial court was legally incorrect in allowing the suit against LIC.

Id. at 76-77.

Finnie did not discuss the application of the direct action statute and the clear wording of the settlement agreement revealed the intent of LIC to remain as a party.

We agree with Hartford that Soi-leau’s right of action against Hartford was extinguished when she dismissed Smith’s from the suit. Pursuant to the plain language of the statute, a party can pursue an insurer alone only when one of the enumerated exceptions in the statute exist.

The direct action statute does not create an independent cause of action against the insurer. It merely grants a procedural right of action against the insurer where the plaintiff has a substantive cause of action against the insured. Descant v. Adm’rs of Tulane Educ. Fund, 93-3098 (La.7/5/94), 639 So.2d 246. When the injured party’s substantive cause of action against the original tort feasor is extinguished, the procedural right of direct action against the insurer, which is purely remedial and ancillary to the cause, must fall by operation of law. Dumas v. U.S. Fid. & Guar. Co., 241 La. 1096, 134 So.2d 45 (1961).

| Marsh Engineering Inc. v. Parker, 04-509, p. 11 (La.App. 3 Cir. 9/29/04), 883 So.2d 1119, 1127, writ denied, 04-2669 (La.1/28/05), 893 So.2d 73.

Soileau makes a feeble argument that La.R.S. 22:1269(B)(1)(b) should apply as an exception because the high/low agreement effectively rendered the insureds insolvent. A novel argument, but one that must fail. There are no valid exceptions to the direct action statute here; thus, the trial court erred in denying Hartford’s exception of no right of action. Because we have found that Soileau no longer had a cause of action against Hartford, all remaining issues assigned as error are rendered moot.

CONCLUSION

The judgment of the trial court denying the defendant-appellant, Hartford Insurance Company’s, exception of no right of action is reversed. The exception is granted, and Hartford Insurance Company is, hereby, dismissed. Costs of this appeal are assessed equally between the parties.

REVERSED AND RENDERED.

      . Justices Victory and Traylor both dissented, finding there were no genuine issues of fact that warranted reversal.

      . In Foltmer, the plaintiff sued the City of Gretna and its insurer in Orleans Parish; however, the plaintiff's claim was transferred to Jefferson Parish, thus rendering the plaintiff's claim against the insurer alone in Orleans Parish prohibited by the direct action statute. In White, the plaintiffs filed an amended petition naming the insured driver as a defendant four-and-a-half months after the trial court rendered a judgment against the defendant insurer. Notably, the insured owner, not the driver, had been named as a defendant throughout the trial and was only dismissed at the conclusion of the trial pursuant to a motion for involuntary dismissal.