author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Donald J. AARON, Appellant.
    No. 45,433-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 12, 2011.
    Rehearing Denied Feb. 24, 2011.

      Elton B. Richey, Jr., Christopher Hatch, Shreveport, LA, for Appellant.
    Charles R. Scott, District Attorney, Suzanne M. Owen, Laura Owen Wingate Ful-co, Jacob P. Broussard, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   CARAWAY, J.

|2Ponald Aaron was charged by grand jury indictment with manslaughter in violation of La. R.S. 14:31. By a 10-2 vote, a jury convicted him of negligent homicide. Prior to trial, the state moved to impose Aaron’s sentence under La.C.Cr.P. art. 893.3, a firearm enhancement statute. Specifically, the state alleged that Aaron actually discharged a firearm during the commission of manslaughter. The trial court imposed a five-year hard labor sentence for the negligent homicide conviction with enhancement under La.C.Cr.P. art. 893.3. Aaron appeals, raising five assignments of error. We affirm the conviction, vacate the sentence, and x-emand for resen-tencing.

Facts

At 1:30 p.m. on April 23, 2005, Aaron called Caddo Pailsh 911 and reported that he had shot a man near his Shreveport home. Shreveport Police Department (SPD) Cox-poral Diana Coleman, the first officer to respond to |sthe scene, saw two cars parked, nose to tail, off of the road. The cars wei'e stopped about 200 feet from the home whei'e Aaron resides with his father and approximately 100 feet down the road from the driveway of the home. The cars were slightly off the road, partly on Aaron’s propei'ty. The home is the last residence located on a narrow dead end residential sti'eet, some distance from the neighboring residences.

The lead car was a Nissan Maxima in which Ronald Jamison was still seated when police aiTived. Jamison had been fatally shot seven times. The windows of both front doors in the Maxima had been shattei-ed. Jamison’s right hand was resting in his lap, holding a beer bottle wrapped in a brown paper bag; he had nothing in his left hand. His car, although running, was in neutral; his light foot was on the accelerator. No weapons were found in Jamison’s car, although he had two serewdilvers between his seat and the console.

The other car at the scene had been driven by Aaron. After the shooting, Aaron left his handgun on the front passenger seat of his vehicle, a Honda Accord. Photos show that the shift knob on the gear shift lever of Aaron’s vehicle was missing.

When the officer arrived, Aaron was standing beside the cars on the street with his father. Aaron, formerly a police offi-eer, a martial arts | instructor and world’s super lightweight kickboxing champion, told Corporal Coleman that he was the person who shot Jamison. Coleman said:

He [Aaron] stated that he had come home for lunch and that there was a car in his driveway and that he followed the car to see, to get the tag number off of the car, and that he stopped behind the — no—that he had followed the car to get the tag number off the car, and he asked the guy why he was in his driveway, why was he here. And he said that the guy told him that T can’t park, I can’t drive down this street?’ And he said that they had, you know, some type of verbal jargon there. He said the guy appeared to reach for something,' and the guy told him that he was going to kill him, and so he stated that he shot the guy.

Aaron also stated that he had been concerned that Jamison may have broken into his house and that he had been unable to put his car into reverse during his encounter with Jamison due to the faulty gear shift.

After Jamison was transported from the scene, SPD Detective Shawn Parker arrived. Detective Parker and Aaron’s father walked around the outside of the defendant’s home to check for signs of burglary; they found none. The detective saw that Aaron had several homemade dog cages in the backyard with dogs in them; the defendant raised and sold pit bulls. A chain-type dog collar was found hanging from the rear view mirror of Ja-mison’s vehicle; Aaron had a similar chain-type dog collar in his vehicle as well. 1 sSPD had responded to four complaints of burglary at the Aaron residence in the years 1991 (two calls), 1994 and 2001.

SPD Sergeant Amy Muller and Corporal David Walls, crime scene investigators, also responded to the scene. Sergeant Muller and Corporal Walls took numerous photos of the scene including the scene as a whole, Aaron’s house and property, and detailed photos of the items .of interest. The photos clearly showed the position and nature of the bullet holes in Jamison’s car. One of these holes grazed the edge of the driver’s side windowsill in a way that makes the angle of the shot clear; the shot passed at a shallow angle from left to right. Sergeant Muller determined that the path of one bullet that traveled through the. driver’s seat was different from three other bullet paths she was able to measure; that bullet appears to have been fired from nearer the front of the Maxima than the others, which were fired from the side. Police found five spent shell casings on the ground outside the cars and three spent shell casings inside the defendant’s car. Measurements showed that Jamison’s driver’s side window was at least partially raised when it was shot out. Sergeant Muller examined the window mechanism and opined that Jamison’s window had been down about half way.

During the investigation, Sergeant Muller parked the Accord next to the Maxima in an effort to determine the position of the cars at the time of | r,the shooting, and Muller took photos of that recreation. The photos show that the cars must have been parked nearly side by side when at least three of the shots were fired.

After the initial investigation, police learned that Aaron was not alone in his car at the time of the shooting and that his girlfriend, Jamie McWilliams, was with him. During the search of Aaron’s car, police found “some Bossier court narcotic stuff’ with McWilliams’s name on it. About a week after the shooting, McWil-liams agreed to meet with police and give a statement.

Aaron appeared for testimony before a Caddo Parish grand jury, which later indicted him for manslaughter. Without objection and by apparent agreement, his grand jury testimony was presented by the state in the trial of the case-and read to the jury. In his grand jury testimony, Aaron testified that on the day of the shooting, he and his girlfriend were driving home to meet Aaron’s father for lunch. When they arrived at home, Aaron saw Jamison’s Maxima parked in the circular driveway in front of his home. Neither Aaron nor McWilliams recognized the vehicle. Aaron stated that there had been some suspicious vehicles in the area the night before.

As Aaron approached his home, he did not see anyone moving around the yard, entering or exiting the Maxima. Aaron pulled his car into the 17circular driveway from the other side, approaching Jamison’s car from the front. Neither he nor McWilliams recognized Jamison.

At that point, Jamison backed up and began to leave. Aaron, suspicious of Jami-son’s actions, decided to follow him as he backed out of the driveway in an effort to get the license plate number of Jamison’s vehicle. Once Jamison had backed into the street with Aaron following, Jamison waved for Aaron to exit the driveway and proceed down the street ahead of him. After Aaron waved back for Jamison to proceed, Jamison began to drive away down the street with Aaron’s vehicle following.

Then, abruptly, Jamison pulled to the side of the road and stopped, rolling down his window. Aaron pulled up beside Jami-son slightly to the front of Jamison’s car with the vehicles 3 to 5 feet apart. Aaron testified that he placed his car in park. He rolled down his passenger side window and asked Jamison, “What’s happening man? Are you lost or something?” According to Aaron, Jamison replied, “What, mfer? I can’t drive down the street,” in a very aggressive and agitated manner. Aaron replied that Jamison was not driving down the street, but was parked in Aaron’s driveway. Aaron testified that when he “said this,” Jamison:

got belligerent beyond explanation. He was cursing me, and I didn’t even hear all of what he said, but the last statement he made to me was ‘I’ll kill you,’ and I did hear this.

| sUpon this exchange, Aaron began trying to get his car into gear but could not get the gear shift to work, so he retrieved his loaded pistol in case Jamison tried to do something. Aaron said that Jamison said, “White boy, I’ll kill you,” and then began to open his door and bent forward in his seat as if he were reaching down for something. Aaron said that he had “no question in my mind” but that Jamison had a weapon. However, Aaron admitted that he could not see Jamison’s hands or arms so as to even identify with which arm he was reaching. Aaron interpreted that Jamison was reaching for a weapon because his body dipped down.

At that point, before Jamison’s hands were raised, Aaron began firing at Jami-son. Aaron fired out the window of his car while reaching over McWilliams, pinning her down against the seat. He said that neither of the cars moved during the shooting and that all the shots were fired from inside his car.

When the shooting stopped, Aaron got out of his car, walked around Jamison’s car and opened Jamison’s driver’s side door wider to look inside. Aaron said that Ja-mison’s engine was racing. Aaron got back into his car and returned to his house. Aaron then entered his house to make sure there were no intruders inside. After finding no problem with the house, he called |n911. In the call, he reported that Jamison had threatened to kill him. Aaron drove back to where Jamison’s car was parked to wait for police. ■ ■ :.

Aaron was charged by grand jury indictment with manslaughter, and the state later filed a notice that it was seeking a firearm enhancement under La.C.Cr.P. art. 893.3(E)(1)(a) for manslaughter. When the case went to trial, the jury heard all of the above evidence, including Aaron’s testimony before the grand jury, and viewed many photos of the crime scene. A lengthy videotape filmed from the investigating officer’s patrol car was played for the jury. On the tape, there are recorded statements of Aaron, including a phone call he made to McWilliams while he was detained inside the patrol car.

Additionally, the jury heard expert testimony from defense witness Corporal Rodney Horton, a training officer at the Shreveport Regional Police Training Academy, regarding the dynamics of deadly force situations and the training that police officers receive to manage those situations. Among many other things, Corporal Horton explained that once a suspect “has the ... drop on you,” it is impossible to draw and fire a weapon before the suspect can shoot you. With his grand jury testimony having been placed in evidence, Aaron did not testify in his own defense. Although available 110and present at the courthouse under subpoena, McWilliams was not called to testify.

After hearing all of the evidence, the jury deliberated and returned a verdict of negligent homicide by a vote of 10-2. The jury also found that the defendant “used or discharged” a firearm during the commission of the crime. The court denied Aaron’s motions for post-verdict judgment of acquittal and objection to the firearm enhancement of the sentence. The court sentenced Aaron to serve five years at hard labor, all without benefit of parole, probation or suspension of sentence. The defendant filed a detailed motion to reconsider sentence which the court denied.

Discussion

I.

Aaron argues that there was no evidence to support the verdict of criminal negligence. Additionally, he claims the state failed to disprove that he acted in self-defense because the state did not exclude the reasonable hypothesis that Aaron reasonably believed the shooting was necessary.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Bowie, 43,374 (La.App.2d Cir.9/24/08), 997 So.2d 36, writ denied in State v. Jackson, 08-2639 (La.5/22/09), 9 So.3d 141 (same deference applies to bench trial).

112The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896. See also La. R.S. 15:438.

In relevant part, La. R.S. 14:31 defines manslaughter as follows:

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

Heat of passion manslaughter requires proof of specific intent. State v. Harris, 00-3459 (La.2/26/02) 812 So.2d 612; State v. Humphrey, 412 So.2d 507 (La.1981).

Likewise, La. R.S. 14:32 provides that negligent homicide is the killing of a human being by criminal negligence. Criminal negligence is defined in La. R.S. 14:12 as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

In 2005, the relevant portions of La. R.S. 14:20 provided:

A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

114Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary-are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Wright, 42,956 (La.App.2d Cir.3/5/08), 978 So.2d 1062, writ denied, 08-0819, 994 So.2d 532 (La.10/31/08). Although there is no qualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. Id.

La. R.S. 14:21 provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State ex rel. D.P.B., 02-1742 (La.05/20/03), 846 So.2d 753; State v. Garner, 39,731 (La.App.2d Cir.9/8/05), 913 So.2d 874, writ denied, 05-2567 (La.5/26/06), 930 So.2d 19; State v. Gaddis, 36,661 (La.App.2d Cir. 03/14/03), 839 So.2d 1258, writ denied, 03-1275 (La.05/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005).

When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State ex rel, D.P.B., supra.

Jamison’s presence in the driveway of the Aaron home was suspicious and without permission. The two men’s confrontation that then occurred as Jamison was exiting down the street is described by Aaron as escalating' to a point where he reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm from Jamison. Aaron’s testimony therefore asserted self-defense for his and McWilliams’s protection. Moreover, Aaron. asserts that he did not have a specific intent to kill Jamison or cause him great bodily harm while acting with sudden passion or heat of blood.

The charge to the jury included the law as reviewed above regarding justifiable homicide and self-defense (La. R.S. 14:20), manslaughter (La. R.S. 14:31), and negligent homicide (La. R.S. 14:32 and 14:12). Therefore, before we address the argument raised by Aaron regarding the propriety of h,;the responsive verdict of negligent homicide and the lack of sufficient evidence for proof of negligent homicide, we will first review whether the state met its burden of proving beyond a reasonable doubt that the homicide was not perpetrated in self-defense.

Aside from Aaron’s testimony, the state did present evidence reflecting circumstantially on what transpired between the men. Jamison was driving away from the Aaron residence on a public street. He was unarmed. He was shot seven times while still sitting in his vehicle with a beer bottle between his legs and his ear window only partially down. There are strong circumstantial inferences that the jury was entitled to draw from these facts, which conflict with Aaron’s claim of self-defense. Thus, Aaron’s argument that his testimony was “the only source of information regarding what transpired” is incorrect.

Additionally, there were two statements made in Aaron’s testimony which revealed his state of mind and militated against a finding that he had a reasonable belief that he was in imminent danger. Aaron did not see any movement by Jamison or any other person outside of Jamison’s vehicle as Aaron approached his home. Therefore, the issue of whether a burglary or other crime had occurred was very much in doubt. Aaron said, “I didn’t know if I was talking to a newspaper guy” as he first approached Jamison. [^Additionally, when Aaron was asked in his testimony before the grand jury what it was that caused him to fire the first shot at Jami-son, Aaron volunteered that Jamison’s verbal “threats certainly weren’t enough.”

The event that caused Aaron to rapidly shoot eight times at Jamison was a sudden movement that Jamison made inside his car. Aaron stated that immediately preceding the shooting he felt he could not get his car from park into gear and drive away from Jamison’s threatening behavior. Therefore, Aaron picked up his loaded semiautomatic handgun. There was no need to engage a shell in the gun’s chamber, and Aaron extended the gun over across McWilliams by the doorframe and open window, reaching to shoot as Jami-son’s fatal movement occurred.

Jamison’s movement as described by Aaron included his opening the car door. However, the door was just slightly opened and always remained as a barrier between the two men. Jamison never began any movement turning his body to exit the vehicle. His critical movement was described by Aaron as follows:

He opened the door and reached front and left, as if he were reaching between the seat and the door or next to the seat or under the front left portion of the seat, but that’s the way he made his motion.
* * * * * *
Because he dipped his whole body under as if he were reaching underneath the seat. I still didn’t do anything until he came up so abruptly like he did.

11sOther than this description, Aaron never reported that one of Jamison’s arms or his hand appeared or extended to be seen above the door. Any arm motion would have necessarily been hindered and obstructed by the door, the steering wheel and the partially closed window. Jami-son’s body was found seated, with his legs still below the steering wheel. Despite any abruptness of Jamison’s motion, there was no demonstration by Jamison indicating that a weapon was drawn and was beginning to be extended around the steering wheel and above the window or that his body was suddenly turning with the door swinging open. Those movements had not begun, and yet Aaron clearly had his gun drawn and pointed at Jamison’s head. Aaron did not testify that he gave any advance warning before shooting, not even by the sound of chambering a shell into his gun.

From the above evidence, the jury could conclude that Aaron was not presented with an imminent danger so as to justify a reasonable belief that the killing of Jami-son was necessary to save himself from losing his life or receiving great bodily harm. Aaron had perceived what he believed to be a threat posed by Jamison and had initiated his defense by aiming his gun at Jamison. Jamison did not have “the drop” on Aaron. Aaron had the drop on Jamison and fired at a time when Jamison had not begun a threatening action 113from the confines of his car in which he was limited from posing a deadly threat.

The jury’s weighing of the circumstantial facts regarding the shooting and Aaron’s offered explanation of self-defense also involved a significant credibility issue. The issue concerned McWilliams, who, as revealed by the police dash-cam video, was not present at the crime scene when officers arrived. Inexplicably, she was never reported by Aaron as a witness to the shooting. Aaron gave multiple reports of how the shooting occurred first to Corporal Coleman and later in a recorded statement while sitting in the patrol car. He never revealed McWilliams as a witness who could verify his account of the shooting. When asked why he did not report McWilliams as a witness, Aaron said that he assumed she was present when the officers arrived and was speaking to the officers at the scene on her own. Although he testified that he did not know about McWilliams’ probation for a prior criminal offense, he continued his nondisclosure of her presence in the vehicle during his incarceration the next two days before posting bond.

Moreover, the issue of the nondiselosuré of McWilliams and Aaron’s credibility became thoroughly clouded by the audiotape of a cell phone call made by Aaron at the crime scene while he sat in the patrol car. Aaron is heard on the audiotape, initiating the phone call saying:

[¡>nl just shot someone. You hear me? Hey. Jamie? Hey. Hello? Hey, can you hear me? I just shot someone, Jamie, outside the house. Where are you? You’re at the kennel? ... Is the house locked?

In Aaron’s grand jury testimony, he was not confronted with this phone call which clearly contradicts various aspects of his testimony. The state’s assistant district attorney did cross-examine Aaron regarding his nondisclosure of McWilliams and whether she was actually present in the vehicle at the time of the shooting. Aaron persisted in his statement that McWilliams was in the car and a witness to the shooting.

With the evidence by which the jury could conclude that the homicide was not perpetrated in self-defense, the jury could also conclude that negligent homicide occurred. As shown by the elements of the two crimes of manslaughter and negligent homicide, the former is a specific intent crime committed in the heat of passion, while the latter involves a “requisite ‘negative’ mental state of gross disregard for the consequences of ... actions and for the interests of others.” State v. Beason, 26,725 (La.App.2d Cir.4/7/95), 653 So.2d 1274, 1280, writ denied, 95-1388 (La.10/27/95), 661 So.2d 1359. The jury concluded that Jamison never posed a deadly threat to Aaron and likewise concluded that Aaron’s action was a gross disregard for the interests of others. Although denied by Aaron, there is circumstantial [¾1 evidence indicating that Aaron responded to Jamison’s belligerence with anger and in heat of passion. Nevertheless, the jury rejected manslaughter as its verdict, finding instead that Aaron’s conduct amounted “to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under the circumstances.” The jury was charged with the definition of both crimes, and we find that the evidence was sufficient to support the verdict of negligent homicide.

II.

Aaron next argues that the firearm enhancement of his sentence was invalid because the notice given by the state only provided for its application to the crime of manslaughter, not negligent homicide.

La.C.Cr.P. art. 893.1 provides:

A.If the district attorney intends to move for imposition of sentence under the provisions of Article 893.3, he shall file a motion within a reasonable period of time prior to commencement of trial of the felony or specifically enumerated misdemeanor in which the firearm was used.
B.The motion shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall specify the provisions of this Chapter under which the district attorney intends to proceed.

The state gave notice to Aaron that it was pursuing the enhancement under La. C.Cr.P. art. 893.3(E)(1)(a) which provides:

12pNotwithstanding any other provision of law to the contrary, if the defendant commits a felony with a firearm as provided for in this Article, and the crime is considered a violent felony as defined in this Paragraph, the court shall impose a minimum term of imprisonment of ten years. In addition, if the firearm is discharged during the commission of such a violent felony, the court shall impose a minimum term of imprisonment of twenty years.

A violent felony as defined in this provision includes second degree sexual battery, aggravated burglary, carjacking, armed robbery, second degree kidnaping, manslaughter, or forcible rape. La.C.Cr.P. art. 893.3(E)(1)(b).

The state’s written notice provided the factual basis for the enhancement as follows:

The State so notifies the defendant(s) based upon the following information: The defendant committed a violent felony, namely manslaughter, where he actually discharged a firearm during the commission of the offense. Refer to Art. 893.1(E)l(a) for the specific provision upon which the State is relying.

After trial, but prior to sentencing, Aaron filed a motion in opposition to the state’s notice of intent to seek firearm enhancement. Prior to sentencing, the trial court denied Aaron’s motion with defense objection.

Of course, Aaron was not convicted of any of the listed crimes of violence, which include the charged offense of manslaughter. Negligent | ^homicide is not listed as a crime of violence. Accordingly Article 893.3(E)(1)(a) could not apply to enhance Aaron’s sentence. Although arguably other subsections of La.C.Cr.P. art. 893.3 apply to a conviction of negligent homicide, we find that the mandatory provisions of La.C.Cr.P. Art. 893.1 required the state to notify Aaron of its intent to proceed under the applicable provision of the statute and to give the factual basis therefor. Because no such notice was given to Aaron, we find that the enhanced sentence was erroneously imposed. Accordingly, we vacate the enhanced sentence and remand for resentencing.

III.

Aaron argues that the jury could not fully determine the circumstances of this case without viewing in person the crime scene.

Before trial, Aaron filed a written motion to permit the jury to view the crime scene which the trial court denied. Counsel for the defense lodged an objection to the ruling.

La.C.Cr.P. art. 762 provides, in part:

Sessions of court shall be held at the parish courthouse and, if there is more than one courthouse in a parish, sessions may be held at any such courthouse, or sessions may be held at places within the parish other than the courthouse or courthouses in the discretion of the court:
(2) To allow the jury or judge to view the place where the crime or any material part thereof is alleged to have | ¡^occurred, or to view an object which is admissible in evidence but which is difficult to produce in court.' At this view, the court shall not permit the taking of evidence except in connection with the place or object....

A ruling on a motion to have the jury view the scene of the crime is within the sound discretion of the trial court, and the ruling will not be disturbed on appeal in the absence of an abuse of discretion. See, e.g., State v. Gallow, 338 So.2d 920 (La.1976).

In this case, the trial court clearly did not abuse its discretion. The jury saw, among other things, Google Earth views of Aaron’s home and its location relative to nearby landmarks, at least a dozen photos of the defendant’s home and the surrounding area, and a carefully prepared, measured diagram of the scene itself. The jury also viewed the videotape taken from the police car showing Jamison’s car at the site of the shooting and, in the background, the Aaron home. The jury was clearly aware that the crime happened in a secluded area where there was little traffic and no apparent -reason for Jamison to be on the Aaron property. Thus, taking- the jury to the crime scene would have been cumulative and unnecessary. This assignment of error is without merit.

TV.

| gsAaron argues that the court erred when it refused to allow the jury to hear that Jamison had 'outstanding warrants for his arrest;

After the state rested its ease, Aaron moved the court to allow Jamison’s “bench warrants into evidence” to assist in his defense. The defense argued that the evidence would be relevant to show why Ja-mison would have been so concerned “with anybody taking his tag down” and would have explained why Jamison “jerked over” to the side of the road and stopped his car abruptly. Specifically the defense argued twice that the evidence was not character evidence but was “evidence to support Mr. Aaron’s contention that this man acted evasive when he tried to get his license.” Aaron’s counsel conceded that he had no case law to support this argument. Determining that it had no authority to admit the evidence, the trial court denied Aaron’s request.

Calls on relevancy and admissibility of evidence are properly within the discretion of the trial judge, whose determinations in these areas should not be overturned absent a clear abuse of discretion. State v. Tauzin, 38,436 (La.App.2d Cir.8/18/04), 880 So.2d 157. Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. La. C.E. art. 401.

On appeal, Aaron argues that the evidence was relevant to explain Jamison’s actions at the time of the crime and was not offered as character evidence but merely to show Jamison’s state of mind and behavior. At trial, however, no evidence showed that Jamison was aware of either the warrants or Aaron’s claimed attempt to obtain his license number. Thus, facts showing Jamison’s state of mind regarding the warrants were never put at issue. With no such evidence before the jury, the admission of the warrants would have been extraneous. Moreover, any arguable relevance of the evidence to the victim’s actions was far outweighed by the inherent prejudice contained in the arrest warrants that tended to portray the victim as a bad person and overwhelm the actual evidence of his conduct on the day in question. This assignment of error has no merit.

Decree

For the foregoing reasons, Aaron’s conviction for negligent homicide is affirmed. His sentence is vacated and the case is remanded to the trial court for resentenc-ing.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and MOORE, JJ.

[] Rehearing denied.

      . Jamison’s mother said that the victim did not own any dogs and that she did not recognize the dog collar as an item that belonged to her son; she explained that the chain was not on his rearview mirror when he left home on the morning of the shooting.

      . In 2006, La. R.S. 14:20 was amended substantially.

      . Because there was no evidence that Jami-son was attempting to commit a burglary, robbery or unlawful entry at the moment of the shooting, La. R.S. 14:20(3) and (4) do not apply.

      . La.C.Cr.P. art. 814 provides, in relevant part:
      A. The only responsive verdicts which may be rendered when the indictment charges the following offenses are:

      5.Manslaughter:
      Guilty.
      Guilty of negligent homicide.
      Not guilty.

      . Aaron's recorded description on the videotape differed from his grand jury testimony in that it did not report Jamison's movement downward. He said, "He opened his door like he was going to get out after me and I shot him.”

      . Although Aaron had the opportunity to confer with the court about the jury charge, he made no complaint about tire inclusion of negligent homicide as a responsive verdict. Even though negligent homicide is legislatively designated as responsive to manslaughter, the defendant may timely object to the instruction on the grounds that the evidence does not support the responsive offense. If the defendant does not enter an objection at trial, then the reviewing court may affirm the conviction if tire evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983).


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Mary M. BROWN, Plaintiff-Appellant v. Michael T. BORG and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.
    No. 45,770-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 19, 2011.

      Alton E. Ball, James A. Cooper, Jr., Shreveport, LA, for Appellant.
    Alan J. Berteau, Baton Rouge, LA, for Appellee, Michael T. Borg.
    Alan T. Seabaugh, Shreveport, LA, for Appellees, Michael T. Borg and State Farm Mutual Automobile Insurance Company.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   WILLIAMS, J.

| ¡¿Plaintiff, Mary M. Brown, appeals the judgment of the trial court dismissing her personal injury lawsuit on the basis of abandonment. For the following reasons, we affirm.

FACTS

On August 18, 2005, plaintiff, Mary M. Brown, filed a petition for damages, naming Michael T. Borg and his automobile insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), as defendants. Therein, plaintiff alleged that on August 19, 2004, a vehicle driven by Borg collided with her vehicle, causing her to sustain “severe and permanent” personal injuries. Attached to the|spetition were interrogatories and' requests for production of documents propounded to defendants.

On October 19, 2005, defendants filed an answer, along with a request for notice of trial and judgment, interrogatories and requests for production of documents. On July 17, 2006, plaintiffs responses to discovery were forwarded to defendants’ counsel.

On November 28, 2007, defense counsel wrote a letter to plaintiffs counsel requesting responses to discovery requests. The letter stated:

By letter dated October 18, 2005, I forwarded to your client Interrogatories and a Request for Production of documents. Your response to this discovery is necessary in order for me to evaluate your client’s claim. Please ask your client to respond to my discovery within the next ten days.
Enclosed, please find a copy of a Motion to Compel which I have prepared but not yet filed. Additionally, I would like to schedule a Rule 10.1 Telephone Conference for December 10, 2007, at 10:00 a.m. I will call you at that time to discuss any discovery issues. If your client is able to respond to my discovery requests prior to that date, then the conference and the filing of the Motion to Compel will not be necessary.

By letter dated December 10, 2007, plaintiffs counsel responded as follows:

This letter is in response to your November 28th request for a Rule 10.1 conference. The Discovery you request was delivered to your office July 17th, 2006. As your records should indicate!,] we have had additional communications including providing your office with medical release information. Our last communication wás a telephone call of August the 9th, 2007[,] in which I requested copies of the medical information you obtained using the medical, releases. Additionally, we discussed my preparation of affidavits indicating there were no additional insurance funds/policies available for your clients’ signatures. I will send you copies of the affidavits upon receipt of the medical information from your office.
If you would send me the medical information we discussed, I feel certain- we can close this matter reasonably soon.

No further communication was exchanged between the parties, and there were no other filings in the record.

On October 16, 2009, defendants filed a motion and order to dismiss on grounds of abandonment, pursuant to LSA-C.C.P. art. 561. Defendants alleged that no steps in the prosecution or defense of this matter were taken after July 17, 2006. Thereafter, on October 19, 2009, the district court signed an ex parte order, dismissing the lawsuit on grounds of abandonment. Subsequently, plaintiff filed a motion to set aside the judgment of dismissal. Following a hearing on ^February 4, 2010, the district court denied plaintiffs motion to set aside the judgment.

Plaintiff appeals.

DISCUSSION

The sole issue before this court is whether defense counsel’s letter, conditionally requesting a Rule 10.1 conference, qualifies as a “step in the prosecution or defense” of this action. Plaintiffs counsel argues that he was “present” and prepared for the Rule 10.1 conference on December 10, 2007, and defense counsel never called at the time he had proposed in the letter.

LSA-C.C.P. art. 561 provides, in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[;]
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment[.]
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

1 ^Consequently, LSA-C.C.P. art. 561 sets forth three requirements: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court on the record of the suit, with the exception of formal discovery; and (3) that the step be taken within three years of the last step taken by either party. James v. Formosa Plastics Corp. of Louisiana, 2001-2056 (La.4/3/02), 813 So.2d 335; State v. White, 41,802 (La.App.2d Cir.3/28/07), 954 So.2d 291.

A party takes a “step” in the prosecution or defense of an action when he or she takes formal action before the court, or on the record, intended to hasten the matter to judgment, or when the party conducts formal discovery or takes a deposition, with or without formal notice. See, James, supra; Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La.5/15/01), 785 So.2d 779. Courts have recognized two exceptions to the rule of abandonment: (1) when the failure to prosecute was caused by circumstances beyond the plaintiffs control and (2) when the defendant waived his right to plead abandonment by taking action in the case inconsistent with an intent to treat the case as abandoned. Jones v. Phelps, 95-0607 (La.App. 1st Cir.11/9/95), 665 So.2d 30, writ denied, 95-2907 (La.2/2/96), 666 So.2d 1104; See also Clark, supra.

In Moore v. Eden Gardens Nursing Center, 37,362 (La.App.2d Cir.6/25/03), 850 So.2d 998, the plaintiff filed a lawsuit against the defendant on March 18, 1998; the defendant propounded interrogatories to the plaintiff in April 1999; a deposition was taken on May 26, 1999. On August 12, 1999, the defendant’s counsel sent a letter to the plaintiff demanding responses to discovery and threatening to file' a motion to compel. On June 7, 2002, the defendant moved for dismissal on grounds of abandonment, alleging that the deposition was the last step in the prosecution or defense of the action. In response to the motion, the plaintiff argued that the August 1999 letter interrupted the period of abandonment because the letter “evincefd] an intent by the defendant to proceed with the case[.]” This court held that the letter did not constitute a step in the prosecution or defense of the matter, stating:

[The defendant’s] letter was not a new discovery action[.] The letter was a follow up to its previous discovery action, to which [the plaintiff] had not responded. As such, the letter was an action notifying [the plaintiff] of her inaction in the case. The letter thus implicitly evoked the purpose of the abandonment statute, ‘that suits, once filed, should not indefinitely lingerf.]’ [The defendant’s] action, |Rtherefore, represented neither a specific discovery action which is recognized as a “step” preventing abandonment nor a waiver of the abandonment period which had begun to run because of [the plaintiffs] inaction.

Id. at 1001. (Internal’citations omitted).

Similarly, in the instant case, defense counsel’s letter did not constitute a new discovery action. In the letter, defense counsel demanded responses to previously propounded discovery and threatened to file a motion to compel if the responses were not provided. Additionally, defense counsel requested a Rule 10.1 conference, on the condition that discovery responses were not provided. The letter specifically stated, “If your client is able to respond to my discovery requests prior to that date, then the conference and the filing of the Motion to Compel will not be necessary.” Thereafter, plaintiffs counsel responded to the letter, informing defense counsel that plaintiff had responded to the discovery requests on July 17, 2006. Plaintiffs counsel also requested responses to discovery from the defendant. Subsequently, there was no written or oral communication between the parties-for nearly two years, and the record is devoid of evidence of any formal action since July 17, 2006.

li)After reviewing this record and the pertinent law, we find that defendant’s demand for responses to discovery — accompanied by a conditional request for a Rule 10.1 conference and a threat to file a motion to compel discovery responses which had already been propounded — cannot be considered a formal action before the court or a method of formal discovery. The letter merely notified plaintiffs counsel, albeit erroneously, that plaintiff had not responded to discovery requests. Therefore, we find that the letter was neither a step in the prosecution or defense of this matter nor a waiver of the abandonment period, which commenced to run on July 17, 2006. Accordingly, we find no error in the trial court’s ruling denying the motion to set aside the judgment.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff, Mary M. Brown.

AFFIRMED.

      . Rule 10.1 of the .Louisiana District Court Rules, provides:
      Before filing any discovery motion, the moving party shall attempt to arrange a conference with the opposing party for the purpose of amicably resolving the discovery dispute. The conference may be conducted in person or by telephone. The discovery motion shall include a certificate stating:
      (a) that the parties have conferred in person or by telephone as required by this Rule and the reasons why they were unable to agree; or
      (b) that opposing counsel has refused to confer after reasonable notice. If the court finds that opposing counsel has willfully failed to confer, or failed to confer in good faith, the court may impose sanctions.


author: MOORE, J. GASKINS, J.,

text:
    Dewayne Wesley WRIGHT, Plaintiff-Respondent v. WILLIS-KNIGHTON MEDICAL CENTER, et al., Defendant-Applicant.
    No. 45,810-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 19, 2011.
    Rehearing Denied Feb. 24, 2011.

      The Allison Law Firm, by William T. Allison, for Plaintiff-Respondent.
    Watson, Blanche, Wilson & Posner, Baton Rouge, LA by Peter T. Dazzio, for Defendant-Applicant, Raghu Nathan, M.D.
    Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA by Paul M. Adkins, for Defendanh-Applicant, Ignatius Tedesco, M.D.
    Hayes, Harkey, Smith & Cascio, Monroe, LA by Laura S. Achord, Bruce M. Mintz, for Defendant Applicant, Continental Casualty Company.
    Before STEWART, GASKINS, PEATROSS, MOORE and LOLLEY, JJ.
   MOORE, J.

| ^Continental Casualty Company (“CNA”) seeks supervisory review of a judgment that denied its motion for summary judgment. For the reasons expressed, we grant the writ and make it peremptory.

Procedural Background

Dewayne Wright, an adult with Down Syndrome, came to the Willis-Knighton emergency room because of severe cramps on November 8, 1998. The emergency physician on duty, Dr. Ignatius Tedesco, evaluated him and admitted him to the hospital, where he later experienced a coma, insulin shock and CVA (stroke).

On November 5, 1999, Wright’s mother filed a complaint with the Patient Compensation Fund (“PCF”) naming Willis-Knighton as the healthcare provider; on November 2, 2000, she amended it to name Dr. Tedesco and a general surgeon, Dr. Rousseau. The PCF notified Dr. Tedesco | opf this action on November 15, 2000. In December 2001, a medical review panel found that Dr. Tedesco breached the standard of care by failing to verify the results of a urine test.

Acting through his mother, Wright filed the instant suit against Dr. Tedesco, Dr. Rousseau and a critical care physician, Dr. Raghu Nathan, on January 22, 2002; she amended her petition to join Willis-Knigh-ton as a defendant on October 31, 2002. In late 2008, the district court dismissed Willis-Knighton and Dr. Rousseau on exceptions of prescription (in the process, the court stated that Dr. Tedesco was an employee of Willis-Knighton). Wright amended the petition to join CNA, Dr. Tedesco’s medical malpractice insurer, on June 16, 2009.

CNA filed a motion for summary judgment, urging that its policy covering Dr. Tedesco was a claims-made policy insuring claims made between November 1, 1999, and November 1, 2000. It showed that Wright did not name Dr. Tedesco in her PCF complaint until November 2, 2000, a day after the claims-made period expired; hence, there was no coverage.

Wright opposed the motion. He argued that even though Willis-Knighton was not a named insured under the CNA policy, it was a solidary obligor and codefendant with Dr. Tedesco; ergo, the claim against Willis-Knighton, when made, was effective against Dr. Tedesco as well. In the |4alternative, he argued “relation back” under La. C.C.P. art. 1153, in that the join-der of Dr. Tedesco related back to the original PCF complaint, which was within CNA’s claims-macle period.

The district court found genuine issues as to whether Willis-Knighton and Dr. Tedesco were solidary obligors and whether the claims-made policy would relate back to the initial complaint. It therefore denied the motion for summary judgment.

CNA took the instant application for supervisory review, which this court granted to docket on July 15, 2010.

Applicable Law

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Hill v. Shelter Mutual Ins. Co., 2005-1783 (La.7/10/06), 935 So.2d 691. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. jsThe interpretation of an insurance contract is usually a legal question that can be properly resolved by motion for summary judgment. Henry v. South Louisiana Sugars Coop., 2006-2764 (La.5/22/07), 957 So.2d 1275; Walker v. State Farm, 42,051 (La.App. 2 Cir. 4/4/07), 954 So.2d 847.

The major distinction between an “occurrence” policy and a “claims-made” policy lies in the difference between the perils insured. In the occurrence policy, the peril insured is the occurrence itself; once the occurrence takes place, coverage attaches even though the claim may not be made for some time thereafter. By contrast, in the claims-made policy, the making of the claim is the event and peril insured and, subject to policy language, regardless of when the occurrence took place. Hood v. Cotter, 2008-0215 (La.12/2/08), 5 So.3d 819, quoting Sol Kroll, “The Professional Liability Policy ‘Claims Made,’ ” 13 Forum 842, 843 (1978); Guthrie v. Louisiana Medical Mut. Ins. Co., 42,974 (La.App. 2 Cir. 2/13/08), 975 So.2d 804. The Louisiana Supreme Court has held that claims-made policies do not violate public policy. Anderson v. Ichinose, 98-2157 (La.9/8/99), 760 So.2d 302; Livingston Parish School Bd. v. Fireman’s Fund, 282 So.2d 478 (La.1973). The supreme court has also held that claims-made policies do not violate the statutory time limit in which an insured may make a first-party cláim under La. R.S. 22:868. Hood v. Cotter, supra. In addition, this 1 fiCourt has' applied claim-made policies as written, even when claims period effectively shortens the legal prescriptive period. Guthrie v. Louisiana Medical Mut., supra.

Discussion

The CNA policy at issue identifies the named insux-ed as “Contracted Physicians of Willis Knighton Medical Center.” Dr. Tedesco is on the schedule of named insureds, with a prior acts date of Febraary 23, 1996; Willis-Knighton Medical Center itself, however, is not on the schedule. The declarations page contains this notice, printed in all capital letters:

YOUR PROFESSIONAL LIABILITY INSURANCE IS WRITTEN ON A CLAIMS-MADE BASIS AND PROVIDES COVERAGE FOR THOSE CLAIMS WHICH ARE THE RESULT OF MEDICAL INCIDENTS HAPPENING SUBSEQUENT TO THE PRIOR ACTS DATE STATED ON THE DECLARATIONS AND WHICH ARE FIRST MADE AGAINST YOU WHILE THIS INSURANCE IS IN FORCE. NO COVERAGE EXISTS FOR THE CLAIMS FIRST MADE AGAINST “YOU” AFTER THE END OF THE POLICY PERIOD UNLESS, AND TO THE EXTENT, AN EXTENDED REPORTING PERIOD APPLIES.

The alleged malpractice occurred after the prior acts date but the claim against Dr. Tedesco was made on November 2, 2000, after the end of the policy period, which expired on November 1, 2000. Plainly, there is no coverage “unless, and to the extent, an extended reporting period applies.”

17Wright argues that the CNA policy contains an extended reporting period (or “mini-tail”), appearing in Section V(A) of the policy (defined terms in boldface in the original):

V. EXTENDED REPORTING PERIOD COVERAGE
A. Termination
If this policy is terminated for any reason, you have the right to an Extended Reporting Period as follows:
1. Beginning on the termination date, the period of time allowed by the policy for the reporting of medical incidents, is extended for a period of 60 days, at no additional premium.
2. If you write to us within 60 days of the termination telling us that you want a further extension, and pay the premium to us promptly when due, * * * the period of time allowed by the policy for the reporting of medical incidents to us will be further extended in accordance with the rules, rates and rating plans in effect for us. * * *

Wright argues that this provision conferred on him an “automatic 60 day extended reporting period” as in Spurrell v. Ivey, 25,359 (La.App. 2 Cir. 1/25/94), 630 So.2d 1378, and the claim against Dr. Ted-esco clearly fell within the extra 60 days.

Analysis of this argument must begin with the policy’s definitions of “claim” and “extended reporting period”:

Claim means the receipt by you of a demand for money or services, naming you and alleging a medical incident.
Claim also means a medical incident which you report to us during the policy period which might result in a claim. ***
IsExtended Reporting Period means the time after the policy period for reporting claims due to a medical incident. The medical incident must happen on or after the prior acts date and before the end of the policy period.

The distinction is crucial. A claim occurs when you, “the person(s) or organization shown on the Declarations of this policy as the named insured,” receive a demand for money or services from a patient or plaintiff. By contrast, reporting occurs when the named insured conveys information about a potential claim to the insurer. The extended reporting period does not alter the policy period, a point reinforced by Section I’s coverage agreement: “The medical incident described above must happen on or after the prior acts date and claim therefor must be made before the end of the policy period stated on the Declarations of this policy.”

In light of these concepts, the passage in Section V(A) upon which Wright relies conferred upon Dr. Tedesco the right to an extended reporting period, but did not confer upon Wright an extended claims period. This distinguishes the case from Spurrell v. Ivey, supra, in which the policy gave third-party claimants an additional 36 months to make claims.

The policy simply does not support Wright’s argument, which would require us to conflate the definitions of claim and reporting, and in effect [ gdisregard the policy period stated on the declarations page, the Section I coverage agreement and the definitions. This argument lacks merit.

Wright further argues that the policy contains a “relation back” clause as follows:

All claims whenever made, shall be considered first made during the policy period in which the earliest claim arising out of the same or related medical incident was made, and all such claims shall be subject to the same limit of liability. * * *

Wright contends that under this clause, his claim against Dr. Tedesco arose out of the same facts as his prior claim against Willis-Knighton, and hence should be considered first made when the first claim occurred.

This clause, however, must be read in context. It appears in the coverage part of the policy under Section III, “Limits of Liability,” and Subsec. B, “Aggregate.” After Section 111(A) defines the limit of liability, Section III(B) begins:

Subject to the provision A above, the total limit of our liability for all injury or damage shall not exceed the limit of liability stated as aggregate. The aggregate limit of liability applies to each policy period for all medical incidents for which claims are made.

Read together, these passages only establish a limit of liability for multiple claims arising out of the same incident; the reference to “All claims whenever made” is plainly a mechanism for unifying claims into the | inaggregate, not for extending the claims-made period. In short, the limitation of liability in Section III does not alter the claims-made period.

We find that Wright’s claim was made after the expiration of the claims-made period and that no extended reporting period applied.

As noted above, the district court denied the motion for summary judgment based on its perception of two genuine issues of material fact, whether Willis-Knighton and Dr. Tedesco were solidary obligors and whether the claims-made policy would relate back to the initial complaint. These questions, however, have no bearing on the issue of coverage under the CNA policy.

Section III(B) addresses the aggregation of claims for purposes of the policy limit, and does not provide for any relation back of untimely claims. Wright argues, however, that La. C.C.P. art. 1153 provides for the relation back of claims:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

While Art. 1153 applies to pleadings in judicial proceedings, the events at issue in this case are not pleadings. Instead, they are Wright’s_|_yinitial PCF claim against Willis-Knighton, which is not an insured, on November 5, 1999, and his amended PCF claim adding Dr. Tedesco on November 2, 2000. Wright has cited no authority, and this court is aware of none, to hold that the relation back concept of Art. 1153 would apply to supersede the claims-made period of an insurance policy.

Finally, Wright argues that the prospect of solidary liability creates a genuine issue precluding summary judgment. In support, he cites the district court’s earlier finding that Dr. Tedesco was an employee of Willis-Knighton; he also cites the statutory definition of a healthcare provider to include hospitals and “any officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.” La. R.S. 40:1299.41 A(10). He contends that his timely claim against Willis-Knighton included a claim against the hospital’s employees, including Dr. Tedesco, and hence the claim was timely.

This argument, while interesting, fails to override the fact that Willis-Knighton was not an insured under this CNA policy. Nothing in the policy extends coverage to a named insured based the filing of a claim against an entity that is not a named insured, even if that claim would have been timely if made against the named insured. Moreover, the importance of solidary liability is that the interruption of prescription against one solidary obligor is | ]2effective against all solidary obligors. La. C.C. arts. 1799, 3503. This case is not about prescription, but about whether Wright filed a claim against Dr. Tedesco during the policy period. The summary judgment evidence shows that he failed to do so, and that no extended reporting period or any other exception applied.

The district court committed legal error in denying the motion for summary judgment.

Conclusion

For the reasons expressed, we grant the writ and make it peremptory. The motion ■ for summary judgment in granted in favor of Continental Casualty Company. All costs are to be paid by the plaintiff.

WRIT GRANTED AND MADE PEREMPTORY.

GASKINS, J., Dissents with reasons.

GASKINS, J.,

dissenting.

hi respectfully dissent from the majority’s opinion, which granted summary judgment in favor of Continental Casualty Company.

There are three events at play in this insurance claims-made policy:

1) The time of the medical incident (the alleged malpractice);
2) The receipt by Dr. Tedesco of the plaintiffs claim; and
3) The reporting to the insurance company of the claim by Dr. Tedesco.

The first event, the medical incident, occurred during the policy period. The third event, the reporting of the claim to the insurance company by Dr. Tedesco, apparently occurred during the extended reporting period. Neither of these events, nor the time they occurred, are of concern in this appeal. It is the second event, the receipt by Dr. Tesdesco “of a demand for money or services, ... alleging a medical incident” that is our focus in determining insurance coverage. All parties agree that Dr. Tedesco received ^notice of the claim after the policy period, but within the extended reporting period. The question is whether this policy covers claims first made during the extended reporting period. (Neither party has claimed that the extended reporting period does not apply to this claim.)

In several places in the policy, in all capital letters, this paragraph is emphasized:

YOUR PROFESSIONAL LIABILITY INSURANCE IS WRITTEN ON A CLAIMS-MADE BASIS AND PROVIDES COVERAGE FOR THOSE CLAIMS WHICH ARE THE RESULT OF MEDICAL INCIDENTS HAPPENING SUBSEQUENT TO THE PRIOR ACTS DATE STATED ON THE DECLARATIONS AND WHICH ARE FIRST MADE AGAINST YOU WHILE THIS INSURANCE IS IN FORCE. NO COVERAGE EXISTS FOR THE CLAIMS FIRST MADE AGAINST “YOU” AFTER THE END OF THE POLICY PERIOD UNLESS, AND TO THE EXTENT, AN EXTENDED REPORTING PERIOD APPLIES. [Underlining added.]

The underlined sentence clearly indicates that a claim can be first made against “you” after the end of the policy period if an extended reporting period applies.

The majority interprets the following policy language to exclude claims first made against Dr. Tedesco during the extended reporting period:

V. EXTENDED REPORTING PERIOD COVERAGE
A. Termination
If this policy is terminated for any reason, you have the right to an Extended Reporting Period as follows:
|al. Beginning on the termination date, the period of time allowed by the policy for the reporting of medical incidents, is extended for a period of 60 days, at no additional premium.

The policy defines extended reporting period, as follows:

Extended Reporting Period means the time after the policy period for reporting claims due to a medical incident. The medical incident must happen on or after the prior acts date and before the end of the policy period.

This definition of “extended reporting period” addresses when the medical incident occurs (within the policy period) and when Dr. Tedesco can report the claim to the insurance company (the time after the policy period but within the extended reporting period). It does not address when Dr. Tedesco must receive the claim. The facts of this case meet the definition for extended reporting period in that the incident- occurred during the policy period and was reported to the insurance company during the extended reporting period.

The last senténce of the emphasized paragraph, located on the declaration page and again in the policy, in all capital letters, does tell Dr. |4Tedesco that coverage will exist for the claims first made against “you” after the end of the policy period if, and to.the extent, an extended reporting period applies. Since the extended reporting period applied, the claim first made against Dr. Tedesco after the end of the policy period should be covered by insurance. .

I would affirm the trial court’s denial of the summary judgment requested by Continental Casualty Company.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

GASKINS, J., would grant rehearing.


author: PEATROSS, J.

text:
    Ollie WIMBERLY, Jr. and Sheila Wimberly, Plaintiffs-Appellants v. Joseph GIGLIO and Cheryl Giglio, d/b/a Central Station, et al., Defendants-Appellees.
    No. 46,000-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Washington & Wells, Shreveport, LA by Alex J. Washington, for Appellants.
    Ronald Miciotto, Shreveport, LA, for Appellees, Joseph Giglio, Cheryl Giglio & Central Station.
    Pardue Law Firm, Springfield, LA by DeVan Pardue, for Appellee, Robert Cheatham.
    Before BROWN, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

| ^Plaintiffs, Ollie Wimberly, Jr. and Sheila Wimberly, appeal a judgment in favor of Defendants, Joseph and Cheryl Giglio, the owners of the nightclub Central Station in Shreveport, Louisiana. For the reasons stated herein, we affirm.

FACTS

On April 26, 2006, two freshmen at Louisiana Tech University, Ollie Wimberly, 18, and his friend, Robert Cheatham, 19, traveled to Shreveport from Ruston for a night of partying. They attended the Pink Party at the Municipal Auditorium and, later in the evening, went to Central Station, a local nightclub owned by Defendants Joseph and Cheryl Giglio. It is undisputed that Wimberly and Cheatham were drinking alcoholic beverages prior to arriving at Central Station and the young men used fake I.D.s to get in the nightclub. Cheat-ham testified that he did not drink any alcoholic | ¡¡beverages while at Central Station. After midnight, the two left Central Station. with Cheatham driving because Wimberly was too intoxicated to drive.

At 1:50 a.m., the car driven by Cheat-ham left eastbound 1-20 at a five-degree angle and hit a tree. The car broke in half and the right side of the front half of the vehicle was sheared off. Wimberly was ejected and suffered massive internal injuries, two broken legs, lacerations and head injuries which resulted in his death. Cheatham, however, survived.

Ollie Wimberly, Jr. and Sheila Wimberly, parents of the deceased Wimberly, filed suit against the Giglios and their insurers alleging that the Giglios were liable for Wimberly’s death because the employees of the bar served drinks to the underage Cheatham and allowed him to leave in a visibly intoxicated state. Cheatham was also a named Defendant. Plaintiffs hired attorney Kenota Pulliam to represent them, but she subsequently encountered issues with the disciplinary board of the Louisiana Bar Association prior to trial of the matter. As a result, Ms. Pulliam was unable to continue representation of Plaintiffs. .Attorney Alex Washington then enrolled for Ms. Pulliam and requested a continuance to prepare for trial, which was granted. On the day before trial, Mr. Washington filed another Motion to Continue, arguing that he had not been successful in obtaining the 14video surveillance tape from Central Station which was recorded on the night of the accident. The trial judge denied the motion for continuance, recognizing that the matter had been pending for more than three years and that he had previously advised both parties that no further continuances would be granted.

As stated, the matter proceeded to trial and the court ruled in favor of the Defendants. In his ruling, the trial judge emphasized that his conclusion was based on a credibility determination and that he credited the testimony of Cheatham that he was not served any alcoholic beverages while he and Wimberly were at Central Station on the night of the accident. The trial judge concluded, therefore, that Plaintiffs had failed to prove by a preponderance of the evidence that the employees of Cental Station breached any duty owed to Cheatham. Plaintiffs now appeal, arguing that the trial judge erred in denying the March 25 Motion to Continue, in finding no liability on. the part of Central Station (and, thus, the Giglios) and in refusing to admit the coroner’s report into evidence.

DISCUSSION

Motion for Continuance

This case was continued numerous times over the course of the three years since suit was filed in 2006. On February 9, 2010, shortly after |fienrolling as counsel for Plaintiffs, Mr. Washington filed a Motion to Continue seeking additional time in which to prepare for the trial following his enrollment. The motion was granted and trial was ultimately set for March 25, 2010. At 9:30 a.m. on that date, Mr. Washington filed a second Motion to Continue. The basis for the motion was Mr. Washington’s alleged inability to obtain discovery from Cental Station of the video surveillance tape recorded on the night of the accident. The trial judge delayed the start of trial until 1:30 p.m. that day. In their first assignment of error on appeal, Plaintiffs rely on La. C.C.P. art. 1602 and assert that the trial judge erred in denying the Motion to Continue filed on March 25, 2010, because the videotape is material evidence which Plaintiffs exercised due diligence in attempting to obtain. We disagree.

A continuance is mandatory under article 1602 if the party seeking the continuance shows that a subpoena issued, the evidence is material and the plaintiff has exercised due diligence in attempting to obtain discovery of the evidence. La. C.C.P. art. 1602. Counsel for Defendants advised Mr. Washington that the videotape was taken into custody by the state police and this was corroborated by the testimony of the Giglios. A subpoena duces te-cum was issued to the state police on March 5, 2010, directing the police to | produce the videotape. The state police, however, showed no record of the videotape ever being seized and taken into custody.

Discovery in the case began in September 2007; however, depositions of the parties by Plaintiffs were not taken until February and March 2010. The record reflects that all parties, including the court, made efforts to obtain the videotape. Further, as the trial judge emphasized, the case had been pending for three years at the time of the denial of the motion to continue. Plaintiffs had previously requested and been granted several continuances and the trial judge had warned the parties that no further continuances would be granted. Based on this record, we cannot conclude that the trial judge was manifestly erroneous in determining that Plaintiffs failed to exercise due diligence in locating and procuring the videotape.

Assuming that Plaintiffs did exercise due diligence, we further find that Plaintiffs have failed to prove the materiality of the evidence. Significantly, the testimony reveals that an investigating officer reviewed the videotape at Central Station and testified that he did not see Wimberly or Cheatham on the tape. There is testimony that there may have been some difficulty in physically collecting the videotaped evidence from the surveillance system at the nightclub and the officer made the determination that it was not necessary because the two men were not seen on the tape. We |7agree, therefore, that there was nothing damaging to Central Station on the tape. In light of the testimony of the officers, we conclude that the trial judge did not abuse his wide discretion in refusing to grant a continuance to allow Plaintiffs to search further for the videotape.

Negligence

Factual findings may not be set aside on appeal unless such findings are manifestly erroneous or clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). To reverse the findings of the trier of fact, an appellate court must view the record in its entirety and find that the record establishes that no reasonable factual basis exists for the factual findings and that such findings are manifestly erroneous or clearly wrong. Id. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Id. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Here, Plaintiffs argue that the trial judge erred in finding that Defendants were not liable for causing the death of Wimberly. They note that La. R.S. 9:2800.1, the social host liability statute, does not immunize a bar owner from liability. That statute provides:

A. The legislature finds and declares that the consumption of intoxicating beverages, rather than the [Rsale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.
B. 'Notwithstanding any other law to the contrary, no person holding a permit under either Chapter 1 or Chapter 2 of Title 26 of the Louisiana Revised Statutes of 1950[FN1], nor any agent, servant, or employee of such a person, who sells or serves intoxicating beverages of either high or low alcoholic content to a person over the age for the lawful purchase thereof, shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.
C. (1) Notwithstanding any other law to the contrary, no social host who serves or furnishes any intoxicating beverage of either high or low alcoholic content to a person over the age for the lawful purchase thereof shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were served or furnished.
(2) No social host who owns, leases, or otherwise lawfully occupies premises on which, in his absence and without his consent, intoxicating beverages of either high or low alcoholic content are consumed by a person over the age for the lawful purchase thereof shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person who consumed the intoxicating beverages.
|nD. The insurer of the intoxicated person shall be primarily liable with respect to injuries suffered by third persons. E. The limitation of liability provided .by this Section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.

Immunity from liability under section B is limited to those bar owners who serve or sell alcoholic beverages to “... person[s] over the age for the lawful purchase thereof[.]” Thus, when a bar employee serves alcohol to a person under the age of 21 and that person causes damage because of his intoxication, La. R.S. 9:2800.1 does not immunize the bar owner from liability; however, neither is that bar owner absolutely liable. Colgate v. Mughal Bros., Inc., 36,754 (La.App.2d Cir.1/29/03), 836 So.2d 1229, writ denied, 03-0923 (La.5/16/03), 843 So.2d 1136, citing Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708.

In determining whether liability exists, the court must determine whether the bar owner violated general negligence principles, applying the traditional duty/ risk analysis. Colgate, supra. The following five separate elements must be proved: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the breach of duty 110element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element). Id. A negative answer to any of the elements of the duty/risk analysis prompts a no-liability determination. Id.; Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072.

The burden of proving negligence by a preponderance of the evidence rests on the party alleging it. Aetna Life and Cas. Co. v. Solloway, 25,462 (La.App.2d Cir.1/19/94), 630 So.2d 1353, writ denied, 94-0575 (La.4/22/94), 637 So.2d 162. The plaintiff bears the burden of proving his case by a preponderance of the evidence. Id. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance of the evidence when, taken as a whole, such proof shows that the fact sought to be proved is more probable than not. Aetna Life and Cas. Co., supra, citing Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972).

In the case sub judice, Plaintiffs assert that Central Station violated general negligence principles, citing the following (verbatim):

1. Alphonso Rodriguez [a friend of Wimberly’s who was present at Central Station that night] testified that the two men [Wimberly and Cheatham] entered Central Station with fake I.D.s and he observed Cheatham holding a shot Inglass. Later, he observed Cheatham holding a different glass.
2. Paula Crosby testified that she saw the two men at Dairy Queen after they had left Central Station and that Cheat-ham told her they had been drinking (and doing shots) at Central Station.
3. Trooper Mondello testified that Cheatham told him he had had a couple of beers prior to the accident.
4. Trooper Robinson testified that there was a strong odor of alcohol on Cheatham and no empty bottles at the scene of the accident.
5. Cheatham was convicted of vehicular homicide in the death of Wimberly and admitted he was intoxicated on the night of the accident.

Our review of the record, however, considering the specific facts of this case and applying the elements of the duty/risk analysis, reveals no manifest error in the trial judge’s conclusion that Plaintiffs failed to prove by a preponderance of the evidence that the employees of Central Station acted negligently.

A vendor of alcoholic beverages has a duty to refrain from selling or serving alcohol to minors. Colgate, supra; Berg, supra. In Berg, the supreme court recognized that “the difference between selling and serving alcohol to an adult and a minor is tremendous” and opined that selling alcohol to 112minors constitutes an affirmative act which may result in liability. The supreme court concluded as follows:

[T]he liability of a vender [sic] of alcoholic beverages who sells or serves alcohol to a person under the legal drinking age is determined under La. C.C. arts. 2315 and 2316 using the traditional duty/ risk analysis on a case by case basis. Under this analysis, the vendor has the .duty to refrain from selling or serving alcohol to a minor, and if the other requirements of breach of duty, causation and damages are proven, the vendor will be liable for damages. It is not necessary that the vendor commit an additional “affirmative act,” such as ejecting the minor patron from the premises, that increases the peril of the intoxicated patron, in order for liability to be imposed.

Thus, we recognize the duty imposed on Central Station not to sell or serve alcohol to patrons under age 21, such as Wimberly and Cheatham. Once the duty is established, it is then incumbent upon the plaintiff to prove by a preponderance of the evidence that this duty was breached by the vendor. Here, Plaintiffs failed to prove by a preponderance of the evidence that Central Station served alcohol to Cheatham.

Rodriguez testified that he had been friends with Wimberly for approximately one year prior to the night of the accident and had once been in a romantic relationship with him for four months. The two were no longer involved at the time of the accident. Rodriguez testified that he saw Wimberly at the Pink Party and rode with him to Central Station. According to Rodriguez, Wimberly used a fake I.D. to get in the club, but did not |ispurchase alcohol once inside. He further testified that he did not know Cheatham prior to being introduced to him by Wimberly at Central Station. Rodriguez testified that he saw Cheatham holding an empty shot glass and, later, a different glass. Initially, Rodriguez testified that he only observed empty shot glasses in Cheatham’s hand; however, later, when questioned by the court, Rodriguez testified that he saw Cheatham drinking alcohol at Central Station.

Cheatham also testified at trial. He consistently stated that he and Wimberly had been drinking at the Pink Party prior to arriving at Central Station. Cheatham explained that the two did not ride together to Central Station and that, when he arrived, Wimberly was talking with Rodriguez on the patio area of the club. He helped Wimberly to the car to leave because Wimberly was too intoxicated to walk to the vehicle. Cheatham agreed that he was also intoxicated, but stated that he did not purchase or consume any additional alcohol at Central Station.

The trial judge credited the testimony of Cheatham over that of Rodriguez. Our review of the testimony reveals no abuse of discretion in the trial judge’s credibility determination. There is only speculation and conjecture that Cheatham purchased alcohol at Central Station and consumed it. This alone does not satisfy the breach of any duty on the part of | uthe club. See Crutchfield v. Landry, 03-0969 (La.App. 4th Cir.3/17/04) 870 So.2d 371, writ denied, 04-1295 (La.9/24/04), 882 So.2d 1128.

Coroner’s report

In their third assignment of error, Plaintiffs argue that the trial court erred in refusing to allow the introduction of the coroner’s report into evidence. Plaintiffs’ pretrial exhibit list failed to list the coroner’s report as a potential exhibit to be introduced at trial. The trial judge, therefore, refused to allow the report as a “last minute addition” so that each party would be “adequately prepared.” Plaintiffs argue that Defendants listed the district attorney’s file as an exhibit which contains the coroner’s report and it would have been no surprise to Defendants to allow its admission. Defendants counter that it was within the judge’s discretion to disallow it since it was not listed by Plaintiffs as an exhibit.

Complaint of an alleged erroneous evi-dentiary ruling “may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.” La. C.E. art. 103 (emphasis added). The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Graves v. Riverwood Intern. Corp., 41,810 (La.App.2d Cir.1/31/07), 949 So.2d 576, writ denied, 07-0630 (La.5/4/07), 956 So.2d 621.

11fiOn appeal, the court must consider whether the complained-of ruling was erroneous and whether the error affected a substantial right of the party affected. If not, a reversal is not warranted. Graves, supra, citing La. C.E. art. 103(A). The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case, and it is the complainant’s burden to so prove. Graves, supra.

We find that any error in refusing to allow the introduction of the coroner’s report into evidence is harmless as it did not have any substantial effect on the outcome of the case. The record clearly establishes how the accident occurred, the cause of death and that Wimberly was intoxicated. Introduction of the coroner’s report would not have affected the outcome of the proceedings in any way.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Defendants Joseph and Cheryl Giglio is affirmed. Costs of appeal are assessed to Plaintiffs Ollie Wimberly, Jr. and Sheila Wimberly.

AFFIRMED.