text:
    Michael BANQUER and Sandra Banquer, Individually and on Behalf of Their Minor Child, Lauren Marie Banquer v. Donald GUIDROZ, David Mobley and New Hampshire Insurance Company.
    No. 2009-C-466.
    Supreme Court of Louisiana.
    May 15, 2009.
   PER CURIAM.

b This case arises out of an automobile accident involving a vehicle owned by Halliburton Energy Services, Inc. (“Halliburton”), which was driven by one of Halliburton’s employees, Michael Banquer. Seeking compensation for Mr. Banquer’s injuries, Mr. Banquer and Sandra Ban-quer, individually and on behalf of their minor child, Lauren Marie Banquer, filed suit against ACE American Insurance Company (“ACE”), alleging that ACE was Halliburton’s uninsured/underinsured motorist (“UM”) insurer. ACE filed a motion for summary judgment, arguing that while it had issued a business auto policy to Halliburton, Halliburton had specifically waived UM coverage. Plaintiffs filed a cross-motion for summary judgment and opposition to ACE’s motion, arguing that the UM waiver executed by Halliburton was invalid.

After considering the motions and hearing arguments from both parties, the district court denied ACE’s motion for summary judgment and granted plaintiffs’ motion, finding the UM waiver form invalid. The district court did not issue written reasons in support of this judgment.

|2ACE applied for supervisory review of this ruling. ACE also filed a motion to certify the district court’s granting of plaintiffs’ motion as a final judgment proper for appeal. The district court granted ACE’s request for certification, and ACE subsequently appealed the decision to the First Circuit Court of Appeal. The First Circuit consolidated the appeal with the issues raised in ACE’s writ application.

After briefing and oral argument, the First Circuit issued an opinion which affirmed the ruling of the district court. In the opinion, the court of appeal began its analysis by explaining that the Louisiana Revised Statutes state that rejection or selection of lower limits of UM coverage shall be made “only on a form prescribed by the commissioner of insurance.” La. R.S. 22:680(1)(a)(ii). The First Circuit then observed that in Duncan v. U.S.A.A. Insurance Company this Court reviewed the form produced by the commissioner of insurance for waiver of UM coverage and noted six tasks which are required to successfully complete this UM waiver form:

[Essentially, the prescribed form involves six tasks:] (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (U) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date, (emphasis added).

Banquer v. Guidroz, 08-0356, p. 5 (La. App. 1 Cir. 12/23/08), 5 So.3d 206, 209-210 (quoting Duncan v. U.S.A.A. Ins. Co., 06-363, p. 11-12 (La.11/29/06), 950 So.2d 544, 551). The court of appeal asserted that the form at issue in the present case did not satisfy the criteria described as task # 3 in Duncan, that is, printing the name of the named insured or legal representative on the UM waiver form.

|sOn the UM waiver form at issue, in the blank for the printed name of the insured, ■Halliburton’s name is typed, appearing as follows, “Halliburton Energy Services, Inc.” In the blank for the signature of the insured, a signature is affixed. ACE established through an unrefuted affidavit that James Ferguson was the individual whose signature appears on the UM waiver form at issue, and that Mr. Ferguson was authorized to reject UM coverage on behalf of Halliburton. Before the court of appeal, ACE argued that these facts were sufficient to satisfy the requirements described in Duncan as task #3 and task # 4. The First Circuit disagreed.

Citing the jurisprudence of this Court, the court of appeal found that the purpose of the inclusion of the printed name on the UM waiver form was to identify the signature provided. Thus, in the case of a juridical person, this meant that a correct and complete printed name on a UM waiver form must both identify the signing individual who is the legal representative of the juridical person and clearly indicate that the individual is acting on behalf of the pertinent juridical person. Accordingly, the court of appeal found that the text placed in the blank for the printed name of the insured on the UM waiver form at issue in the present case should have read “James Ferguson on behalf of Halliburton Energy Services.” Since the printed name on the UM waiver form at issue did not meet this standard, the First Circuit held that the UM waiver form was invalid for failure to satisfy the requirement described in Duncan as task # 3. After the First Circuit issued its opinion, ACE submitted a writ application to this Court.

The sole issue presented for our consideration is whether the court of appeal was correct in finding that Halliburton improperly rejected UM coverage. ACE asserts that the decision of the First Circuit, rendered on December 23, 2008, must be 14reversed as it conflicts with our recent holding in Harper v. Direct General Insurance Co., 08-2874 (La.2/13/09), 2 So.3d 418. We agree with ACE.

As in the present matter, in Harper the dispute revolved around the tasks described in Duncan as task #3 and task # 4. On the UM waiver form at issue in Harper, in the blank for the printed name of the insured or legal representative, the name of the juridical person insured, Sears, was typed on the form, appearing as follows “Sears, Roebuck and Company.” In the blank for the signature of the insured or legal representative, a signature was affixed. Liberty Mutual Insurance Company, the purported UM insurer, established through an unrefuted affidavit that the signature on the UM waiver form at issue was the signature of Laurence Jenchel, Sears’ legal representative who was authorized to reject UM coverage on behalf of Sears. This Court found that the Harper UM waiver form satisfied the requirements listed in Duncan. The Court held, “as long as the name of the named insured is printed and the legal representative signs the form, [the tasks described in Duncan as task # 3 and task # 4] are satisfied.” Harper, 08-2874 at p. 3, 2 So.3d at 420. Under the standards enunciated in Harper, the UM waiver form at issue in the present case satisfies the requirements described in Duncan as task # 3 and task # 4. The First Circuit erred in holding otherwise.

DECREE

Accordingly, the writ is granted. For the reasons stated herein, the judgment of the First Circuit Court of Appeal is reversed, and the matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . This revised statute was redesignated as 22:1295 by Act 415 of the 2008 Louisiana Legislative Session, effective January 1, 2009. This act made no substantive changes to the language of the provision. Furthermore, during the temporal period at issue in these proceedings, no substantive changes were made to the pertinent language in the provision at issue.


source: Caselaw Access Project

license: Public Domain

text:
    Reverend C.S. GORDON, Jr., J. Michael Malec, Darryl Malek-Wiley, Willie Webb, Jr., and Maison St. Charles, L.L.C. d/b/a Quality Inn Maison St. Charles v. The COUNCIL OF the CITY OF NEW ORLEANS and Entergy New Orleans, Inc.
    No. 2008-C-0929.
    Supreme Court of Louisiana.
    Oct. 24, 2008.
   In re Council of the City of New Orleans; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, New Orleans City Council, No. UD-99-2; Civil District Court Div. G, No. 2004-3433; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1381.

Granted. Consolidated with 2008-C-0932, 2008-OC-1226 and 2008-OC-1240.


text:
    Reverend C.S. GORDON, Jr., J. Michael Malec, Darryl Malek-Wiley, Willie Webb, Jr., and Maison St. Charles, L.L.C. d/b/a Quality Inn Maison St. Charles v. The COUNCIL OF the CITY OF NEW ORLEANS and Entergy New Orleans, Inc.
    No. 2008-C-0932.
    Supreme Court of Louisiana.
    Oct. 24, 2008.
   In re Entergy New Orleans Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, New Orleans City Council, No. UD-99-2; Civil District Court Div. G, No. 2004-3433; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1381.

Granted. Consolidated with 2008-C-929, 2008-OC-1226 and 2008-OC-1240.


text:
    Judith SANDIFER Formerly Known as Judith Honaker v. The LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS, Filmore P. Bordelon, Ruby R. Chancellor, Roberta R. Connelley, Gwendolyn M. Dunn, Sharon K. Fore, Bobby G. Fulmer, Patricia S. Juneau, Ann C. Laws, Rebecca A. Nelson, Rosemary S. Passantino, Eugene C. St. Martin, William Sonnier, Jr., Idolphus C. Turnley, Jr., and Claire D. Glaviano.
    No. 2008-C-1159.
    Supreme Court of Louisiana.
    Oct. 24, 2008.
   In re Bordelon, Filmore P.; Connelley, Roberta R.; Fore, Sharon K.; Juneau, Patricia S.; Nelson, Rebecca A.; St. Martin, Eugene C.; Turnley, Idolphus C. Jr.; Louisiana State Board of Practical Nurse Examiners; Chancellor, Ruby R.; Dunn, Gwendolyn M.; Sonnier, William Jr.; Gla-viano, Claire D.; Laws, Ann C.; Passanti-no, Rosemary S.; Fulmer, Bobby G.;— Defendant(s); Applying for Writ of Certio-rari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 508,244; to the Court of Appeal, First Circuit, No. 2007 CA 1131.

Granted.


text:
    AMERICAN HOME ASSURANCE COMPANY and Texas United Corporation/Texas Brine v. LA WORKER’S COMPENSATION SECOND INJURY BOARD (Employee: Julius Landry).
    No. 2008-C-1170.
    Supreme Court of Louisiana.
    Oct. 24, 2008.
   In re American Home Assurance Company et ah; Texas United Corporation/Texas Brine; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 543,371; to the Court of Appeal, First Circuit, No. 2007 CA 2105.

Granted.


text:
    Reverend C.S. GORDON, Jr., J. Michael Malec, Darryl Malek-Wiley, Willie Webb, Jr., and Maison St. Charles, L.L.C. d/b/a Quality Inn Maison St. Charles v. The COUNCIL OF the CITY OF NEW ORLEANS and Entergy New Orleans, Inc.
    No. 2008-OC-1226.
    Supreme Court of Louisiana.
    Oct. 24, 2008.
   In re Council of the City of New Orleans; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, New Orleans City Council, No. UD-99-2; Civil District Court Div. G, No. 2004-3433; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1381.

Granted. Consolidated with 2008-C-929, 2008-C-932 and 2008-OC-1240.


text:
    Reverend C.S. GORDON, Jr., J. Michael Malec, Darryl Malek-Wiley, Willie Webb, Jr., and Maison St. Charles, L.L.C. d/b/a Quality Inn Maison St. Charles v. The COUNCIL OF the CITY OF NEW ORLEANS and Entergy New Orleans, Inc.
    No. 2008-OC-1240.
    Supreme Court of Louisiana.
    Oct. 24, 2008.
   In re Entergy New Orleans Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, New Orleans City Council, No. UD-99-2; Civil District Court Div. G, No. 2004-3433; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1381.

Granted. Consolidated with 2008-C-0929, 2008-C-0932 and 2008-OC-1226.


text:
    Don L. EISENHARDT v. Dorles SNOOK and State Farm Fire & Casualty Company.
    No. 2008-C-1287.
    Supreme Court of Louisiana.
    Oct. 24, 2008.
   In re Snook, Dories et al.; State Farm Fire & Cas. Co.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. A, No. 119,730-A; to the Court of Appeal, Second Circuit, No. 43,128-CA.

Granted.


text:
    Tasha TINGLE, et al. v. AMERICAN HOME ASSURANCE COMPANY, et al. Levi J. Tingle, et al. v. American Home Assurance Company, et al.
    No. 2009-CC-0997.
    Supreme Court of Louisiana.
    May 5, 2009.
   In re Colony Insurance Co.; G.B. Boots Smith Corp.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 2006-5168 B, 2007-1073; to the Court of Appeal, Third Circuit, No. CW 09-00536.

Denied.


text:
    STATE ex rel. Norris JASMINE v. STATE of Louisiana.
    No. 2009-KH-0971.
    Supreme Court of Louisiana.
    May 6, 2009.
   In re Jasmine, Norris; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 375-352; to the Court of Appeal, Fourth Circuit, No. 2009-K-0331.

Relator represents that the district court has failed to act timely on an ex-parte motion for lack of subject matter jurisdiction filed on or about October 7, 2008. If relator’s representation is correct, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Tasha TINGLE, et al., v. AMERICAN HOME ASSURANCE COMPANY, et al. Levi J. Tingle, et al. v. American Home Assurance Company, et al.
    No. 2009-CC-1007.
    Supreme Court of Louisiana.
    May 7, 2009.
   In re Montgomery, Brian S.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 2007-1073, 2006-5168 B; to the Court of Appeal, Third Circuit, No. CW 09-00533.

Denied.


text:
    STATE of Louisiana v. Roger FITCH, Jr.
    No. 2009-KK-1033.
    Supreme Court of Louisiana.
    May 11, 2009.
   In re Fitch, Roger Jr.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 503024; to the Court of Appeal, First Circuit, No. 2009 KW 0598.

Denied.


text:
    STATE of Louisiana v. Norris VESSELL.
    No. 2009-KK-1062.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 452-749; to the Court of Appeal, Fourth Circuit, No. 2009-K-0622.

Granted in part. The victim’s mother’s mental health records are admissible only: (1) if the victim’s mother testifies at trial and (2) if, in the opinion of the trial court, the medical records at issue are relevant as to an investigation of or prosecution for child abuse. See La. C.E. art. 510(C)(2)(f).


text:
    STATE of Louisiana v. Fredrick JONES.
    No. 2009-KK-1050.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 480-747; to the Court of Appeal, Fourth Circuit, No. 2009-K-0537.

Granted — Ruling of Trial Court Granting Motion To Suppress is overruled— remanded for further consideration.

JOHNSON, J., would deny.

WEIMER, J., would order an opposition before ruling.


text:
    In re Ahmad MUHAMMAD.
    No. 2008-B-2769.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re Muhammad, Ahmad; — Plaintiff; Applying for Rehearing of this Court’s order dated March 6, 2009, on Findings and Recommendations (Formal Charges) Office of the Disciplinary Board Nos. 02-DB-131, 04-DB-071, 05-DB-004, & 05-DB-056.

Rehearing denied.


text:
    Toni Swain ORRILL, et al. v. LOUISIANA CITIZENS FAIR PLAN, et al.
    No. 2009-CC-0974.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re Orrill, Toni Swain et al.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 05-11720; to the Court of Appeal, Fourth Circuit, No. 2009-C-0065.

Writ denied. Motion to dismiss denied as moot.'


text:
    In the Matter of the SUCCESSION OF Winston R. CLARK.
    No. 2009-C-0580.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re Clark, Brian Scott; — Other; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, No. 14,124 “E”; to the Court of Appeal, First Circuit, No. 2008 CA 1278.

Denied.


text:
    STATE of Louisiana v. Christopher BROWDER.
    No. 2009-KK-0820.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re Browder, Christopher; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 454-863; to the Court of Appeal, Fourth Circuit, No. 2009-K-0427.

Denied.


text:
    CITY OF DENHAM SPRINGS, Louisiana v. Tomey PERKINS, Jr., and Bay Lane, Inc.
    No. 2009-C-0871.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re Bay Lane Inc.; Perkins Jr., To-mey et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. G, No. 118,228; to the Court of Appeal, First Circuit, No. 2008 CA 1937.

Denied.


text:
    Toni Swain ORRILL, et al. v. LOUISIANA CITIZENS FAIR PLAN, et al.
    No. 2009-CC-0973.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re Orrill, Toni Swain et al.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 05-11720; to the Court of Appeal, Fourth Circuit, No. 2009-C-0533.

Denied.


text:
    STATE of Louisiana v. Christopher BROWDER.
    No. 2009-KK-1061.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re Browder, Christopher;- — -Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 454-863; to the Court of Appeal, Fourth Circuit, No. 2009-K-0618.

Denied.


text:
    Cynthia Yetta SERUTINE, et al. v. Russell W. STEELE, M.D., et al.
    No. 2009-CC-1070.
    Supreme Court of Louisiana.
    May 13, 2009.
   In re Louisiana State of LSU Health Sciences Ctr. N.O.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 2007-14333; to the Court of Appeal, Fourth Circuit, No. 2009-C-0624.

Denied.


text:
    Susan BLACK v. ST. TAMMANY PARISH HOSPITAL, Dr. Robert Capitelli, Patti Ellish, Judy Gracia, and Barbara Oakes.
    No. 2008-CC-2670.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Capitelli, Robert Dr.; Ellish, Patti; Garcia, Judy; Oakes, Barbara; St. Tammany Parish Hospital; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. G, No. 96083; to the Court of Appeal, First Circuit, No. 2008 CW 0855.

Granted.


text:
    STATE of Louisiana v. Rodney RICHARDSON.
    No. 2009-KK-0638.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 478-708; to the Court of Appeal, Fourth Circuit, No. 2009-K-0105.

Granted.


text:
    STATE of Louisiana v. Henri BROADWAY.
    No. 2008-KP-1747.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Broadway, Henri; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 2-94-1720.

Granted in part; denied in part. The district court’s judgment denying relator post-conviction relief is vacated with respect to Claim III, regarding suppression of material exculpatory evidence, Claim IV, ineffective assistance of counsel at the guilt stage, Claim V, ineffective assistance of counsel at penalty phase, and Claim VI, relating to juror misconduct with respect to operating a gambling pool on the outcome of trial. This case is remanded to the district court for purposes of conducting an evidentiary hearing on the four claims, as the court initially determined, and for ruling once more on relator’s entitlement to post-conviction relief with respect to these claims. In all other respects, the application is denied.


text:
    STATE ex rel. Jerome WEST v. STATE of Louisiana.
    No. 2009-KH-1017.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re West, Jerome; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 261-131.

The memorandum in support for post-conviction relief is transferred to the district court with instructions to the district judge to act on relator’s memorandum filed via certified mail receipt on November 6, 2008. The district court is ordered to provide this Court with a copy of its judgment. A copy of the application is attached.


text:
    STATE of Louisiana v. Veran JONES.
    No. 2008-OK-2442.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Jones, Verán; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, No. 12,512; to the Court of Appeal, First Circuit, No. 2006 KW 1748.

Not considered, untimely.


text:
    The KROGER COMPANY v. L.G. BARCUS & SONS, INC. et al.
    No. 2009-C-0382.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Kroger Company — Plaintiffs); Applying for Reconsideration of this Court’s order dated April 13, 2009; Parish of Caddo, 1st Judicial District Court Div. A, No. 470,454; to the Court of Appeal, Second Circuit, No. 43,804-CA.

Reconsideration granted. Writ denied.


text:
    STATE of Louisiana v. Ricky Joseph LANGLEY.
    No. 2009-KK-0386.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Langley, Ricky Joseph; — Defendant; Applying for Reconsideration of this Courts action dated April 13, 2009; Parish of Calcasieu, 14th Judicial District Court Div F, No. 10258-02, to the Court of Appeal, Third Circuit, No. KW 08-01413.

Reconsideration granted. Writ denied.


text:
    STATE ex rel. Edward SIMMONS v. STATE of Louisiana.
    No. 2006-KH-2894.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Simmons, Edward; — Plaintiff; Applying for Motion to Enforce this Court’s order dated June 25, 2007, Parish of Orleans, Criminal District Court Div. G, No. 421-053; to the Court of Appeal, Fourth Circuit, No. 2006-K-1343.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. Harold Joe BLACK v. STATE of Louisiana.
    No. 2008-KH-1368.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Black, Harold Joe; — -Plaintiff; Applying for Reconsideration of this Courts action dated March 27, 2009; Parish of E. Baton Rouge, 19th Judicial District Court Div. E, Nos. 521,693, 527,740, to the Court of Appeal, First Circuit, Nos. 2007 CA 1757, 2007 CA 1758.

Denied.


text:
    STATE ex rel. Porter MAJOR v. STATE of Louisiana.
    No. 2008-KH-1587.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Major, Porter; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 13, 2009; Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 07-99-0985; to the Court of Appeal, Third Circuit, No. 2008 KW 0371.

Denied.


text:
    In re GRAMERCY PLANT EXPLOSION AT KAISER.
    No. 2009-OC-388.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Allianz Insurance Co.; AXA Global Risks (U.K.); Certain Underwriters at Lloyd’s London’s; Compagnie Transconti-nentale De Reassurance; Compagnie Transcontinentale De Reassurance; Hayes, Terrance; Houston Casualty Co.; Kaiser Alumina & Chemical Corp.; Lexington Insurance Co.; Munich Reinsurance Co.; National Union Fire Ins. Co.; Q.B.E. International Ins. Ltd.; Qatar Insurance Co.; Sorema Insurance Co.; Swiss Reinsurance Co.; Winterthur International Ins. Co.; Zurich Reinsurance Co.; — Plaintiff(s); Applying for Reconsideration of this Court’s order dated April 13, 2009; Parish of St. James, 23rd Judicial District Court Div. E, No. 25,975; to the Court of Appeal, Fifth Circuit, No. 08-CM-1266.

Reconsideration denied.


text:
    STATE of Louisiana v. Horace ARDOIN.
    No. 2008-KP-1336.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Ardoin, Horace; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 62894-FB; to the Court of Appeal, Third Circuit, No. KW 07-01549.

Denied.


text:
    STATE of Louisiana v. Zachary ARABIE.
    No. 2008-KP-1399.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Arabie, Zachary; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 374,699; to the Court of Appeal, First Circuit, No. 2008 KW 0625.

Denied.


text:
    STATE of Louisiana v. Stevenson Wayne STROGEN.
    No. 2008-KP-1439.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Strogen, Stevenson Wayne; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 210,492; to the Court of Appeal, Second Circuit, No. 43586-KW.

Denied.


text:
    STATE of Louisiana v. Arthur Lee FUNCHESS.
    No. 2008-KP-1548.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Funchess, Arthur Lee; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 43263; to the Court of Appeal, First Circuit, No. 2008 KW 0383.

Denied.


text:
    STATE ex rel. Cedric ROBINSON v. STATE of Louisiana.
    No. 2008-KH-1947.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Robinson, Cedric; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 277-467.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2380 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Simuel SHAW, Jr. v. STATE of Louisiana.
    No. 2008-KH-1957.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Shaw, Simuel, Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 456-623; to the Court of Appeal, Fourth Circuit, No. 2007-KA-1427.

Denied.


text:
    STATE ex rel. Stephen WINDSOR v. STATE of Louisiana.
    No. 2008-KH-1965.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Windsor, Stephen; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 389-171; to the Court of Appeal, Fourth Circuit, No. 2008-K-0819.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Albert GREEN, Jr. v. STATE of Louisiana.
    No. 2008-KH-1966.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Green, Albert Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. C, No. 1548-02; to the Court of Appeal, First Circuit, No. 2008 KW 0395.

Denied.


text:
    STATE ex rel. Billy WILLIAMS v. STATE of Louisiana.
    No. 2008-KH-1967.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Williams, Billy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 01-95-0674; to the Court of Appeal, First Circuit, No. 2008 KW 0753.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Darryl G. SOILEAU v. STATE of Louisiana.
    No. 2008-KH-1969.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Soileau, Darryl G.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 11440-97; to the Court of Appeal, Third Circuit, No. KH 08-00416.

Denied.


text:
    STATE ex rel. James Vernon FREE, Jr. v. STATE of Louisiana.
    No. 2008-KH-1973.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Free, James Vernon, Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 267,333; to the Court of Appeal, Third Circuit, No. KH 07-00885.

Denied. State v. McKinney, 406 So.2d 160, 161 (La.1981).


text:
    STATE ex rel. James LANGENDORFER v. STATE of Louisiana.
    No. 2008-KH-1976.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Langendorfer, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 110,345.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Henry BOSS v. STATE of Louisiana.
    No. 2008-KH-1977.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Boss, Henry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 99-553; to the Court of Appeal, Fifth Circuit, No. 08-KH-459.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.

GUIDRY, J., recused.


text:
    STATE ex rel. Oracious EUGENE v. STATE of Louisiana.
    No. 2008-KH-1979.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Eugene, Oracious; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 191,394; to the Court of Appeal, Second Circuit, No. 43718-KH.

Denied.


text:
    STATE ex rel. Jessie MARTIN v. STATE of Louisiana.
    No. 2008-KH-1980.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Martin, Jessie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 03-472F; to the Court of Appeal, Second Circuit, No. 43792-KH.

Denied.


text:
    STATE ex rel. Roland BRIGHT v. STATE of Louisiana.
    No. 2008-KH-1981.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Bright, Roland; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 00-1002; to the Court of Appeal, Fifth Circuit, No. 08-KH-96.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

GUIDRY, J., recused.


text:
    STATE ex rel. Joe Nathan TUBBS v. STATE of Louisiana.
    No. 2008-KH-1982.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Tubbs, Joe Nathan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 78,385.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Clinton SAM v. STATE of Louisiana.
    No. 2008-KH-1984.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Sam, Clinton; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 03-3995; to the Court of Appeal, Fifth Circuit, No. 08-KA-220.

Denied.


text:
    STATE ex rel. Jerry ZORNES v. STATE of Louisiana.
    No. 2008-KH-1985.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Zornes, Jerry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 176,641; to the Court of Appeal, Second Circuit, No. 43765-KH.

Denied.


text:
    STATE ex rel. Buddy M. HICKS v. STATE of Louisiana.
    No. 2008-KH-1986.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Hicks, Buddy M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 06-CR1-95315; to the Court of Appeal, First Circuit, No. 2008 KA 0511.

Denied.


text:
    STATE ex rel. Antonio MONTGOMERY v. STATE of Louisiana.
    No. 2008-KH-1987.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Montgomery, Antonio; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 06-F3635^4; to the Court of Appeal, Second Circuit, No. 43785-KH.

Denied. State v. McKinney, 406 So.2d 160, 161 (La.1981).


text:
    STATE ex rel. Darryl D. PARKER v. STATE of Louisiana.
    No. 2008-KH-1989.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Parker, Darryl D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 99-7171; to the Court of Appeal, Fifth Circuit, No. 08-KH-529.

Denied. La.C.Cr.P. art. 980.8; State ex rel. Glover v. State, 98-2380 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Alexander STARR v. STATE of Louisiana.
    No. 2008-KH-1991.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Starr, Alexander; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 72,167C; to the Court of Appeal, Second Circuit, No. 43771-KH.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Dennis MAGEE v. STATE of Louisiana.
    No. 2008-KH-1992.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Magee, Dennis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 01-CR1-82853; to the Court of Appeal, First Circuit, No. 2008 KW 0442.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Jeremy COLBERT.
    No. 2008-K-2098.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Colbert, Jeremy; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 444-088; to the Court of Appeal, Fourth Circuit, No. 2007-KA-0947.

Denied.


text:
    STATE of Louisiana v. Henri BROADWAY.
    No. 2008-KD-2141.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Broadway, Henri; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 2-94-1720.

Denied. Moot.


text:
    STATE of Louisiana v. Shannon STROTHER.
    No. 2008-K-2289.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Strother, Shannon; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. F, No. 74643; to the Court of Appeal, Second Circuit, No. 43,-363-KA.

Denied.


text:
    STATE of Louisiana v. Warren CHAMP.
    No. 2008-KO-2303.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Champ, Warren; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 470-027; to the Court of Appeal, Fourth Circuit, No. 2007-KA-1281.

Denied.


text:
    STATE of Louisiana v. Clinton Charles COLGIN.
    No. 2008-KO-2304.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Colgin, Clinton Charles; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. F, No. 136,703; to the Court of Appeal, Second Circuit, No. 43,416-KA.

Denied.


text:
    STATE of Louisiana v. Edward Eugene ATES, Jr.
    No. 2008-KO-2341.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Ates, Edward E. Jr.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Union, 3rd Judicial District Court Div. C, No. 41,786; to the Court of Appeal, Second Circuit, No. 43,-327-KA.

Denied.


text:
    STATE of Louisiana v. Shawn BURTIS.
    No. 2008-K-2420.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Burtis, Shawn; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. D, No. 976-06; to the Court of Appeal, First Circuit, No. 2008 KA 0373.

Denied.


text:
    STATE of Louisiana v. August C. PAYNE, Jr.
    No. 2008-K-2464.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Payne, August C. Jr.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 02-05-0205; to the Court of Appeal, First Circuit, No. 2008 KA 0167.

Denied.


text:
    STATE of Louisiana v. Robert LILLEY.
    No. 2008-KO-2514.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Lilley, Robert; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. B, No. 0615120; to the Court of Appeal, Second Circuit, No. 43,-467-KA.

Denied.


text:
    CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE v. CAPITAL CITY PRESS, L.L.C. d/b/a the Advocate Capital City Press and Kimberly Vetter v. East Baton Rouge Parish Metropolitan Council and The Baton Rouge Police Department.
    No. 2009-C-0422.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Baton Rouge City of et al.; East Baton Rouge Parish of; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 544,896, 544-900; to the Court of Appeal, First Circuit, Nos. 2007 CA 1088, 2007 CA 1089.

Denied.

TRAYLOR, J., would grant.


text:
    DEER FIELD HUNTING CLUB, INC. v. SWAYZE PLANTATION, L.L.C.
    No. 2009-C-0479.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Deer Field Hunting Club, Inc.;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 07-C-3584-A/C; to the Court of Appeal, Third Circuit, No. 08-313.

Denied.


text:
    Harold AUGUSTIN, Jr. v. Warden Lynn COOPER, Avoyelles Correctional Center and Tonia Rachal.
    No. 2009-CP-0481.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Augustin Jr., Harold; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div., No. 548,050; to the Court of Appeal, First Circuit, No. 2008 CA 1817.

Denied.


text:
    HURWITZ MINTZ FINEST FURNITURE STORE SOUTH, LLC d/b/a Hurwitz Mintz Furniture Co. v. MOGO, L.L.C., GSH New Orleans, L.L.C., Pamilaz, L.L.C., Avventura, L.L.C. and Etrog, L.L.C. d/b/a Hurwitz Mintz Realty Co.
    No. 2009-CC-0504.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Hurwitz Mintz Finest Furniture Store South LLC d/b/a; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 08-7804; to the Court of Appeal, Fourth Circuit, No. 2008-C-1526.

Denied.


text:
    CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE v. CAPITAL CITY PRESS, L.L.C. d/b/a the Advocate Capital City Press and Kimberly Vetter v. East Baton Rouge Parish Metropolitan Council and the Baton Rouge Police Department.
    No. 2009-C-0530.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re AFL-CIO et al.; Baton Rouge Union of Police; Local #237; — Other(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 544,-896, 544,900; to the Court of Appeal, First Circuit, Nos. 2007 CA 1089, 2007 CA 1088.

Denied.

TRAYLOR, J., would grant.


text:
    Armond ADAM v. The STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Peter W. Adam, et al. v. The State of Louisiana, Through the Department of Transportation and Development.
    No. 2009-C-0558.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Louisiana State of; Transportation and Development Dept, of; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, Nos. 2001-15905, 2002-15688; to the Court of Appeal, First Circuit, Nos. 2008 CA 1134, 2008 CA 1135.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE v. CAPITAL CITY PRESS, L.L.C. d/b/a the Advocate Capital City Press and Kimberly Vetter v. East Baton Rouge Parish Metropolitan Council and the Baton Rouge Police Department.
    No. 2009-C-0581.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Capital City Press; Vetter, Kimberly; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 544,896, 544,900; to the Court of Appeal, First Circuit, Nos. 2007 CA 1088, 2007 CA 1089.

Denied.

TRAYLOR, J., would grant.


text:
    CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE v. CAPITAL CITY PRESS, L.L.C. d/b/a the Advocate Capital City Press and Kimberly Vetter v. East Baton Rouge Parish Metropolitan Council and the Baton Rouge Police Department.
    No. 2009-C-0587.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Baton Rouge Lodge Number 1; Fraternal Order of Police; Louisiana State Lodge; Reech, Cory N.; Yoes, Patrick J.; — Other(s); Applying For Writ of Cer-tiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 544,896, 544,900; to the Court of Appeal, First Circuit, Nos. 2007 CA 1088, 2007 CA 1089.

Denied.

TRAYLOR, J., would grant.


text:
    Joseph DUPONT, et al. v. CABOT OIL & GAS CORPORATION, et al.
    No. 2009-CC-0588.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Cabot Oil & Gas Corporation et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Iber-ville, 18th Judicial District Court Div. B, No. 62,037; to the Court of Appeal, First Circuit, No. 2008 CW 2410.

Denied.

VICTORY, J., would grant.

GUIDRY, J., would grant.


text:
    FRANK’S CASING CREW & RENTAL TOOLS, INC. v. David L. SIPOS, et al.
    No. 2009-C-0664.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Frank’s Casing Crew & Rental Tools, Inc.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. C, No. 2005-0684-C; to the Court of Appeal, Third Circuit, No. 08-640.

Denied.


text:
    THRIVEST TRUST and Martha Guice v. SOUTHERN TITLE, INC., and Subsidiaries, Sabrina Alombro, Brenda Braud and Braud and Braud Law Firm.
    No. 2009-CC-0665.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Guice, Martha; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 607-067; to the Court of Appeal, Fifth Circuit, No. 09-C-83.

Denied.


text:
    Norman SMITH v. RACETRAC PETROLEUM, INC.
    No. 2009-CC-0671.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Racetrac Petroleum, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 2007-0001262; to the Court of Appeal, First Circuit, No. 2008 CW 1922.

Denied.


text:
    Hosea LEVINGSTON v. CITY OF SHREVEPORT, et al.
    No. 2009-C-0673.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Levingston, Hosea; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 508,168; to the Court of Appeal, Second Circuit, No. 44,000-CA.

Denied.


text:
    Curtis JOHNSON v. BOSSIER PARISH SCHOOL BOARD.
    No. 2009-C-0676.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Bossier Parish School Board;— Defendant; Applying For Writ of Certio-rari and/or Review Office of Workers’ Compensation Dist. 1W, No. 06-02138; to the Court of Appeal, Second Circuit, No. 43,817-WCA.

Denied.


text:
    STATE of Louisiana v. Cedric SCOTT.
    No. 2009-KK-0678.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Scott, Cedric; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 09-06-0670; to the Court of Appeal, First Circuit, No. 2009 KW 0207.

Denied.


text:
    Kim Schlosser Tumminello, Wife of/and Tim TUMMINELLO, et al. v. COLUMBIA LAKESIDE HOSPITAL and Ana Bergeron, R.N. and Health Care Providers Service Organization Purchasing Group, et al. Kim S. Tumminello w/o & Tim Tumminello, et al. v. Dr. John Megison, Lakeside Women’s Specialty Ctn. et al.
    No. 2009-C-0679.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Tumminello, Kim Schlosser; Tum-minello, Tim; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 549-798; to the Court of Appeal, Fifth Circuit, Nos. 08-CA-316, 08-CA-380.

Denied.


text:
    Joseph DUPONT, et al. v. CABOT OIL & GAS CORPORATION, et al.
    No. 2009-CC-0695.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Brock Exploration Corporation; Key Production Co. Inc.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 62,037; to the Court of Appeal, First Circuit, No. 2008 CW 2410.

Denied.

VICTORY, J., would grant.

GUIDRY, J., would grant.


text:
    Leonard KEASLEY v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC.
    No. 2009-CC-0698.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Transit Management of Southeast Louisiana Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation District 8, No. 02-07575; to the Court of Appeal, Fourth Circuit, No. 2009-C-0024.

Denied.


text:
    Toni S. LEMLY v. ST. TAMMANY PARISH HOSPITAL DISTRICT NO. 1, d/b/a St. Tammany Parish Hospital.
    No. 2009-CC-0709.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re St. Tammany Parish Hospital District No. 1 d/b/a St. Tammany Parish Hospital; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 2005-12411; to the Court of Appeal, First Circuit, No. 2008 CW 1674.

Denied.

TRAYLOR, J., would grant.


text:
    Lee Joseph PETITJEAN, Jr., et al. v. HIBERNIA NATIONAL BANK.
    No. 2009-C-0714.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Broussard, Larry; Leger, Angela Colleen Petitjean; Petitjean, Lee Joseph Jr. et ah; Petitjean, Rochell Denise;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 99-2849-F; to the Court of Appeal, Third Circuit, No. 08-1081.

Denied.


text:
    Todd FRANCE v. EAST CENTRAL BOSSIER FIRE PROTECTION DISTRICT NO. 1, Grady Lee, in his Official and Individual Capacities, and Robert Roe, in his Official and Individual Capacities.
    No. 2009-C-0726.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re East Central Bossier Fire Protection District No. 1 et al.; Lee, Grady; Roe, Robert; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. C, No. 124,006; to the Court of Appeal, Second Circuit, No. 44,058-CA.

Denied.

TRAYLOR, J., would grant.


text:
    Merdis COLE, et al. v. BROOKSHIRE GROCERY COMPANY.
    No. 2009-C-0728.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Brookshire Grocery Co.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, Pineville City Court, No. 6-0377; to the Court of Appeal, Third Circuit, No. 08-1093.

Denied.

VICTORY, J., would grant.

GUIDRY, J., would grant.


text:
    LOUISIANA COLLEGE v. INTEGRATED ARCHITECTURE, L.L.C., et al.
    No. 2009-CC-0737.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Integrated Architecture L.L.C. et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Rap-ides, 9th Judicial District Court Div. F, No. 229,945; to the Court of Appeal, Third Circuit, No. CW 08-01803.

Denied.


text:
    Ralph J. HYMEL and Linda Hymel v. EAGLE, INC., et al.
    No. 2009-C-0873.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Hymel, Linda; Hymel, Ralph J. et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2008-1996; to the Court of Appeal, Fourth Circuit, No. 2008-CA-1287.

Denied.


text:
    John C. SKANNALL v. Dennis BAMBURG, Margie Bamburg and Sligo Hills, LLC.
    No. 2009-CC-0881.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Bamburg, Dennis; Bamburg, Margie; Sligo Hills, LLC; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. B, No. 116,576; to the Court of Appeal, Second Circuit, No. 44593-CW.

Denied.

VICTORY, J., would grant.

WEIMER, J., would grant.


text:
    Richard E. WALTERS v. MEDSOUTH RECORD MANAGEMENT, L.L.C.
    No. 2009-CC-0884.
    Supreme Court of Louisiana.
    May 15, 2009.
   In re Medsouth Record Management L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. B, No. 43906; to the Court of Appeal, Third Circuit, No. CW 08-01530.

Denied.

WEIMER, J., would grant.


author: MARION F. EDWARDS, Judge.

text:
    Charlotte H. LITTLE and John Little, D.D.S. v. BOSTON SCIENTIFIC CORPORATION, Micrus Corporation, Cook, Incorporated, Microvena Corporation, Cordis Corporation and Hospital Service District No. 1 of Jefferson Parish d/b/a West Jefferson Medical Center.
    No. 08-CA-271.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Rehearing Denied Feb. 9, 2009.
    Writ Denied April 17, 2009.

      Joseph R. Ward, Jr., Lisa A. Condrey, Ward & Condrey, LLC, Covington, Louisiana, Michael E. Kramer, Attorney at Law, Winnsboro, Louisiana, for Plaintiffs/Appellants.
    Stanton E. Shuler, Jr., Karen M. Dicke, Leake & Andersson, L.L.P., New Orleans, Louisiana, for Defendants/Appellees.
    Stewart E. Niles, Jr., Michelle A. Bo-urque, Niles, Bourque & Fontana, L.L.C., New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and MADELINE JASMINE, Pro Tempore.
   MARION F. EDWARDS, Judge.

| ^Plaintiffs/app ell ants, Charlotte H. Little (“Mrs. Little”) and John Little, D.D.S. (“Dr. Little”), appeal a summary judgment in favor of defendant/appellee, Micrus Corporation (“Micrus”), and a jury verdict in favor of defendants/appellees, Robert W. Dawson, M.D. and Louisiana Medical Mutual Insurance Company.

The underlying facts are as follows: In 2001, Mrs. Little suffered a hearing loss and, in the course of diagnostic testing, discovered that she had a brain aneurysm. She was referred to Dr. Robert Tiel (“Dr. Tiel”), a neurosurgeon, for further evaluation. Mrs. Little’s options were to have an open craniotomy, an Rendovascular coiling procedure, or to have no treatment, although disclosure of these options is disputed. Mrs. Little stated that she did not want to undergo a craniotomy. Following her consultation with Dr. Tiel, Mrs. Little decided to undergo the angiogram and coiling procedure.

She was referred to and consulted with Dr. Robert Dawson (“Dr. Dawson”), an interventional radiologist. Dr. Dawson noted that Mrs. Little perhaps had two aneurysms and was aware that she did not want to undergo a craniotomy. Dr. Dawson performed the angiogram and coil em-bolization on July 24, 2001. During the procedure, Dr. Dawson placed a coil, manufactured by Micrus, in the larger of the two aneurysms. While placing the second coil, the first coil dislodged, and, when it could not be removed successfully, Dr. Dawson placed an emergency consultation with Dr. Frank Culicchia (“Dr. Culicchia”). Dr. Culicchia performed a craniotomy and removed the coil. On the following day, another craniotomy was performed when Dr. Culicchia discovered that Mrs. Little had suffered a middle cerebral artery distribution infarct, or stroke. During these procedures the skull bone was not replaced due to swelling, but, on August 13, 2001, Dr. Culicchia performed a replacement of the bone. As a result of these problems, Mrs. Little suffered brain damage.

Suit was filed against several defendants, including Dr. Dawson and his insurer. Micrus, the manufacturer of the coil, was sued for defective design and manufacture, failure to warn of the risks that the coils could dislodge, and spoliation of evidence. A subsequent petition alleged that a Micrus representative, Sue Young, was negligent in sizing the coil used. Pri- or to trial, Micrus filed a Motion for Summary Judgment, which was granted by the trial court, dismissing it from the lawsuit. The case against Dr. Dawson was heard by a jury, and, following | Rtrial, the jury returned a verdict in favor of Dr. Dawson. From these judgments, Mrs. Little has taken an appeal.

INFORMED CONSENT

In her first assignment of error, Mrs. Little urges the jury erred in rendering a verdict in favor of Dr. Dawson, as the evidence was uncontroverted that she was not advised about the material risk of coil migration and its attendant risk that a subsequent craniotomy would be necessary. No other issues of malpractice are before us.

Prior to trial, a Medical Review Panel concluded that, among other things, with regard to Dr. Dawson and the issue of consent, “The complication that occurred was listed as a risk prior to the surgery.”

At trial, Mrs. Little, a speech language pathologist, testified that she knew what an aneurysm was from her training and work with stroke patients. Dr. Tiel told her of the various treatment options available, but he did not discuss the risks and benefits of each. He advised her to undergo the coiling procedure. When she went to Dr. Dawson’s office, that physician looked at her MRI and told her they could be successfully coiled but that an angio-gram was necessary to determine the exact location of the aneurysms. Except for taking her vital signs, there was no physical examination. He did not discuss any risks associated with either the angiogram or the coiling, and he did not tell her of any risks involving coil migration. The consultation took approximately five minutes. Dr. Dawson handed her the consent forms and told her to read and sign them. At the time she signed them they were not filled in.

Mrs. Little testified that she was anesthetized during the procedure, but near the end she heard Dr. Dawson state that he had “hit” the middle cerebral artery.

In At trial, a consent form signed by Mrs. Little was admitted. On July 23, she signed a consent for “cerebral angio em-bolization of aneurysm” to “define and treat aneurysm(s) with endovascular coils.” This document, thus, combined consent for an angiogram and coiling. Reasonable therapeutic alternatives and the risks associated with such alternatives are listed as: “open surgery — same risks.” The portions of the agreement in parentheses were filled in by hand. The printed material risks were listed on an attached page and included stroke, inability to speak, and paralysis.

Dr. Little testified that, when Mrs. Little consulted Dr. Tiel, she was told her aneurysm could be treated by either an open craniotomy or by the coiling procedure. Dr. Little accompanied his wife on her office visit to Dr. Dawson. Her appointment was at 1:00 p.m., and she told him she was there just to sign forms. She returned five minutes later, telling him she had signed the documents. They then went to the hospital for some pre-operative tests. When she was admitted, Dr. Dawson told him that if the angiogram showed the aneurysm was optimal for coiling, he would perform the procedure. If it could not be performed, Mrs. Little would have to return for a craniotomy. After Mrs. Little had been in the procedure room for some time, Dr. Dawson came out and explained that “things have gone wrong” and that he had called a neurosurgeon because the coil had dislodged. Dr. Little later signed consent forms for the craniotomy. Following the first procedure, Mrs. Little’s head began to swell, necessitating a second surgery on the following day. About two weeks later, a third operation was performed to attempt to clip the aneurysm and repair Mrs. Little’s skull. The aneurysm was not amenable to clipping.

Dr. Tiel, the referring neurosurgeon, testified that, after the aneurysms were discovered, he recommended that Mrs. Little have an arteriogram to better define |7her condition. He advised her that she could have a craniotomy, whereupon the artery would be partially dissected and “clipped” to prevent it from growing. Her second option was endovascular coiling, and the third was to do nothing. She did not want the craniotomy. In Dr. Tiel’s opinion, the risk of coil migration should have been indicated on the consent form, as it indicates a potential problem. However, Dr. Tiel was not aware of the rate of coil migration at the time of the operation. In his own practice, he does not give a detailed list of all surgical maneuvers but gives a general idea of what will happen. In the consenting process, it is important to indicate when a secondary operation may be necessary.

Dr. Dawson testified that Dr. Tiel referred Mrs. Little to him specifically for the coiling procedure. He specifically remembered his conversation with Mrs. Little. She told Dr. Dawson that she had come for the procedure, if it could be done, and that she did not want a craniotomy. When she came into the office, he conferred with her for approximately thirty minutes, going over her history and discussing her options, listed above, with her, including the chances over her lifetime of a spontaneous rupture. Because of her hypertension and the existence of a second aneurysm, her aneurysm was somewhat more likely to rupture. Endovascular therapy would require an angiogram to confirm that a coiling procedure was possible. The risks of complications from the arteriogram, mainly a stroke, were about one in a thousand. If she had a coil embolization or surgery, the same types of risks apply, but the percentage of complications would be about two and a half to three percent. Dr. Dawson “absolutely told her there was a possibility of a stroke,” and discussed the risks with her as they went over the consent forms.

Q: [D]id you ever tell Ms. Little there was a risk that the coil would migrate out of the aneurysm, specifically?
A: I told her that the risks of the procedure were perforation and stopping up a blood vessel.
IsQ: Let me ask the question again: at no time — I think you’re agreeing with me — at no time did you tell her, “Charlotte, there’s a chance this coil could get loose in your brain.”
A: I told her we could stop up a blood vessel. I did not tell her the mechanism that this was because the effect on the brain is the same. If you stop up a blood vessel, it’s a stroke. We’re talking about harm, not mechanism.

According to Dr. Dawson, complete or partial coil migration, as a complication, is too unusual to put in terms of percentage. A coil could migrate and not harm the patient. Only the risks of harm, not the technical aspects of a procedure, are listed on a consent form for surgery. Mrs. Little understood that if complications arose, she would be treated for them.

During Mrs. Little’s surgery, the first coil in the larger aneurysm was placed and sat well, allowing other coils to be deployed to fill the aneurysm. When Dr. Dawson attempted to seat the second coil, the first one became dislodged into the cerebral artery. He called Dr. Culicchia and meanwhile attempted to snare the coil to extract it. Dr. Culicchia recommended surgery.

Dr. Dawson had received instructions via documents from Micrus regarding the use of the coil. The packaging information made no sense to him, so Dr. Dawson discussed it with a company representative. Dr. Dawson was told to essentially ignore a section labeled “Instructions for Use.”

Dr. Culicchia, a neurosurgeon, testified that, on the morning of the first procedure, he was notified that he had to report to the angiogram suite. After viewing the angio-gram that had just been performed, he realized the artery had to be opened. Meanwhile, he asked Dr. Dawson to continue to attempt to retrieve the coil. When Dr. Dawson was unsuccessful, Dr. Culicchia proceeded with the surgery and removed the coil. In his opinion, the angi-ographic criteria supported the initial finding that the aneurysm could and should be treated with coils. | ciRemoval of a migrated coil is not always necessary unless the coil has resulted in a clot formation. Many patients have coils, which have migrated and blood flow is fine. In Mrs. Little’s case, however, the coil caused the obstruction of blood supply to a portion of her brain, leading to the stroke and necessitating the emergency craniotomy.

After the first surgery, Mrs. Little’s brain was very swollen, and necrotic tissue had to be removed. During the third surgery, Dr. Culicchia noted that it was a “wide neck” aneurysm, which type of aneurysm has a high incidence of coil migration. However, it is very difficult to determine the proper “neck to dome” ratio of an aneurysm located in the middle cerebral artery.

Dr. Charles Kerber was qualified as an expert witness in the fields of radiology, interventional radiology, and endovascular neurosurgery, including the issue of informed consent. After reviewing the pertinent documents and records, Dr. Kerber testified that, in his opinion, the consent form was reasonable and adequate and that the recommendation for coiling was appropriate and reasonable. Even a good coiling procedure has risks for death, stroke, or blindness. According to the an-giogram, the neck of the larger aneurysm indicated that a coil would likely stay and that Mrs. Little’s aneurysm was coilable. The risks set forth on the consent form for the cerebral angiogram are the same risks a patient would encounter in a coiling procedure, and the list of technical issues that can occur in surgery are essentially infinite. Coil migration is a technical problem that can result in complication, and the potential complication should be disclosed to the patient.

Dr. Edward Connolly, a neurosurgeon, testified as a member of the Medical Review Panel. He stated that the type of aneurysm from which Mrs. Little suffered was an excellent candidate for coiling but is frequently difficult to clip. He opined |10that the consent form gave adequate and reasonable consent. The list of technical problems that could occur would be nearly infinite. It would be unusual for a physician to tell a patient they might need surgery for some unforeseen occurrence. The chances of Mrs. Little needing an open craniotomy even if she had an embo-lus were not great. If Mrs. Little signed a blank consent form, it would be below the standard of care. However, if she knew of the risks before she signed the form, such would indicate the patient received informed consent.

The standard of review on appeal is as follows:

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong.... To reverse a fact-finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). Where the jury’s findings are reasonable, in light of the record viewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court’s ruling is manifestly erroneous, or clearly wrong....
... [Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, where conflict exists in the testimony.... However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. ...

The law on the issue of informed consent is both statutory and jurisprudential. LSA-R.S. 40:1299.40, in pertinent part, states:

| n A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of. any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
When the alleged malpractice is based on lack of consent, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent. LSA-R.S. 40:1299.40 (in 2001).
The doctor’s duty is to disclose all risks which are “material”.... In broad outline, a risk is material when a reasonable person in what the doctor knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy....
The factors contributing significance to a medical risk are the incidence of injury and the degree of the harm threatened. If the harm threatened is great, the risk may be significant even though the statistical possibility of its taking effect is very small. But if the chance of harm is slight enough, and the potential benefits of the therapy or the detriments of the existing malady great enough, the risk involved may not be significant even though the harm threatened is very great....
The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the 112likeIihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony....
There must be a causal relationship between the doctor’s failure to disclose material information and material risk of damage to the patient.... Because of the likelihood of a patient’s bias in testifying in hindsight on this hypothetical matter, this court and others have adopted an objective standard of causation: whether a reasonable patient in the plaintiffs position would have consented to the treatment or procedure had the material information and risks been disclosed....

Encompassed in the definition of material risks is the concept that in order for a patient to make an informed, intelligent decision, he must be advised of any alternatives to the proposed procedure. The physician is required to disclose material risks in such terms as a reasonable doctor would believe a reasonable patient in the plaintiffs position would understand. Technical language will not ordinarily suffice to disclose a risk to an untutored layperson; and abstract or blanket terms may not be adequate to communicate specific dangers. In order for a reasonable patient to have awareness of a risk, she should be told in lay language the nature and severity of the risk and the likelihood of its occurrence.

In the present case, Mrs. Little contends that withheld information concerning the Micrus manufacturer’s warnings coupled with a failure to disclose the known complication of coil migration were things to which she would have attached significance in her decision making process. The portion of the Micrus insert to which Mrs. Little refers states that the coil system “is intended for [ ^embolization of intracranial aneurysms that — because of their morphology, their location or the patient’s general medical condition — are considered by the treating neurosurgical team to be a) very high risk for management by traditional operative techniques or b) inoperable”.

As Dr. Dawson pointed out in his testimony, Mrs. Little’s decision to forego a craniotomy made her condition inoperable by definition. Therefore, we fail to see how disclosure of this information would have changed the outcome. Further, the manufacturer’s information included infection, stroke, and death as possible complications of the procedure and, as outlined above, these risks were disclosed in the written consent forms. With regard to coil migration, the question is whether Mrs. Little would have attached significance to that specific risk.

The evidence at trial shows that the incidence of coil migration, as of the time of the procedure, was “too unusual to put in terms of a percentage,” and that coil migration does not inevitably cause harm or require removal. Thus, it is questionable that the possibility of migration was a material risk as defined by the jurisprudence. The initial harm that Mrs. Little suffered, that of a stroke, was listed as a potential complication of both the angio-gram and the coiling procedure. As we understand it, migration and/or the attempted removal were the mechanisms that caused the stroke and led to the emergency surgeries. Mrs. Little failed to prove that she would have attached particular significance to the fact that a stroke could be caused by coil migration rather than by another means inherent in an invasive brain procedure. In other words, Mrs. Little was aware that a stroke was a possible complication of such a procedure. There is no evidence that the possibility of coil migration made the chances of suffering a stroke more probable. Even if coil migration were defined as a material risk, the resulting harm, a stroke, was satisfactorily disclosed in the consent form.

| ]4Mrs. Little urges that the consent form was blank when she signed it, after only five minutes of consultation with Dr. Dawson, who did not discuss any risks associated with either the angiogram or the coiling, and who did not tell her of any risks involving coil migration. Dr. Little confirmed that time frame. Dr. Dawson specifically recalled the consultation, which he stated took about thirty minutes and during which he went over each possible complication with her. The form stated that surgery carried the same material risks as the other procedures. Moreover, the signed form states that all blanks were filled in prior to signing, that she had the opportunity to ask questions regarding risks and alternatives, and that her questions had been answered. The credibility determination apparently made by the jury was reasonable, and, in the absence of evidence that the consent was obtained by misrepresentation, under LSA-R.S. 40:1299.40 we must presume that the consent was valid.

It is inarguable that Mrs. Little did not want to undergo an open craniotomy and that she chose the intervention that she believed to be the least invasive. However, the ensuing complications clearly required emergency surgery, to which Dr. Little validly consented. Although we sympathize with Mrs. Little’s plight, we cannot find manifest error in the jury’s verdict.

SUMMARY JUDGMENT

Appellate courts review the trial court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue 11fias to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue exists when reasonable persons could disagree. However, if reasonable persons could reach only one conclusion, summary judgment is appropriate. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case.

Mrs. Little contended that Micrus was liable due to the defective design, manufacture, and failure to properly warn of the risk of coil migration. A supplemental petition added that a Micrus representative, Sue Young (“Ms. Young”), was negligent in “sizing” the particular coil used and that the coil, after its removal, was given to a Micrus representative, who intentionally discarded it to prevent inspection. In dismissing Micrus from the lawsuit on summary judgment, the trial court determined that Mrs. Little did not prove that the warning on the product was not inadequate and that there was no viable action against Ms. Young for negligence. The court further found in favor of Micrus on the issue of spoliation, and, following this conclusion, determined that Mrs. Lit-tie had not produced any evidence of defective design. On appeal, Mrs. Little contests the findings of the court with regard to inadequate warning and spoliation.

Ms. Young’s deposition was admitted in connection with the Motion for Summary Judgment. She stated that she trained physicians and staff at hospitals in the intricacies of the Micrus coil and was present during the procedure on Mrs. Little. She testified that, if there is a complication that happens with a device, |1(iMicrus asks the physician to save it and return it to Micrus. However, Ms. Young did not know what became of the coil after it was removed as it was not given to her. After the surgery, she called Bill Gore of Micrus to report what happened and wrote a report. She was unable to find the report, and probably threw away “last year all my stuff and unfortunately, that went with it.” Eric Leopold, a Micrus representative to whom she sent the report, was also unable to find any copy of the report. We note Ms. Young’s deposition was taken in 2004; suit had been filed in July of 2002 and service obtained against Micrus in August 2002.

Ms. Young believed that she sent the report to Micrus by e-mail, and that she had verbal confirmation that it had been received. However, in this case Ms. Young did not perceive the problem to be a malfunction of the coil, so she did not ask to see the device or have it saved.

Attached to the opposition is a copy of a confidential report on the matter, prepared by Micrus. The report indicates that initial notification of the event was October 28, 2002, and, after describing the event is the comment: “The product was not returned to Micrus. No product malfunction is alleged.” A report to the FDA generated and dated that same day reiterates that no malfunction had been alleged.

A portion of Dr. Culicchia’s deposition was admitted in connection with the opposition to the motion. In that deposition, Dr. Culicchia stated that, after he removed the coil, he handed it to the person who hands him instruments, the scrub nurse or surgical technician, but he did not know who that was. He did not know what became of the coil, although it was his “best recollection” that Ms. Young was given the coil.

The theory of “spoliation of evidence” refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use.... A plaintiff 117asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient.... Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was discarded, the theory of spoliation of evidence does not apply.... The tort of spoliation of evidence has its roots in the evidentiary doctrine of “adverse presumption,” which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained.

We find on review that questions of fact exist regarding whether or not Ms. Young received the coil following surgery. She testified that she did not; Dr. Culicchia recalled that it was given to her. Whether or not she received it at that time is a credibility determination not properly determined by summary judgment. We agree with the trial court that it is a prerequisite to a state law tort claim for spoliation of evidence that a party knew suit would be filed when the evidence was discarded and that suit had not been filed as of the time of the surgery. Implicit in this finding, however, is a factual determination, that is, that the coil was disposed of prior to suit having been filed, that is, at the time of the surgery. Even though summary judgment is now favored, it is not a substitute for trial on the merits, and it is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, or knowledge that call for credibility evaluations and the weighing of the testimony.

In this regard, we are further troubled on the subject of the inaccuracies in the reports generated by Micrus to the FDA, regarding notice and its statement that no product malfunction had been alleged well after suit had been filed and served on Micrus. We note as well the fact that the report made by Ms. Young was | ^thrown away over a year after suit had been filed, and such report may well go toward the issue of spoliation.

Micrus urges that, even if Mrs. Little’s version of events is correct — that is, that the device was disposed of deliberately— Mrs. Little cannot establish a cause of action for spoliation under the Louisiana Products Liability Act because destruction of the evidence has to impair the plaintiffs civil claim in order to have a cause of action. Mrs. Little alleged that Micrus was liable in part due to the defective manufacture of the coils causing failure during the procedure, a cause of action encompassed by LSA-R.S. 9:2800.55. It is evident to this Court that destruction of the device distinctly impairs that cause of action.

On our review, we find the above questions of material fact preclude summary judgment and set it aside. Because of this finding, we decline to address any remaining issues with regard to that judgment.

For the foregoing reasons, the jury verdict is affirmed. The summary judgment is reversed and set aside, and the matter remanded to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . Rabalais v. Nash, 2006-0999 (La.3/9/07), 952 So.2d 653, 657 (some citations omitted).

      . Hondroulis v. Schuhmacher, 553 So.2d 398, 411-12 (La.1988) (citations omitted). Also see, Rovira v. Byram, 02-1115 (La.App. 5 Cir. 2/25/03), 841 So.2d 1009, writ denied, 2003-0784 (La.5/9/03), 843 So.2d 407.

      . Kennedy v. St. Charles Gen. Hosp. Auxiliary, 630 So.2d 888 (La.App. 4 Cir.1993), writ denied, 94-0269 (La.3/18/94) 634 So.2d 863.

      . Hondroulis, supra; Rovira, supra.

      . See, e.g., Cherry v. Herques, 623 So.2d 131, 135 (La.App. 1 Cir.1993).

      . Nugent v. On-Call Nursing Agency & Assoc. of New Orleans, Inc., 07-1022 (La.App. 5 Cir.3/25/08), 983 So.2d 128 (citing Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764).

      . Nugent, supra.

      . Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

      . Nugent, supra.

      . Desselle v. Jefferson Hosp. Dist. No. 2, 04-455 (La.App. 5 Cir. 10/12/04), 887 So.2d 524, 534 (citations omitted).

      . S.J. v. Lafayette Parish Sch. Bd., 2006-2862 (La.6/29/07), 959 So.2d 884.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Clarence ANDERSON Jr.
    No. 08-KA-456.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Terry M. Boudreaux, Thomas J. Butler-Appellate Counsel, Vincent Paciera, Michael F. Es-cudier-Trial Counsel, Assistant District Attorneys, Gretna, LA, for the State of Louisiana.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Appellant, Clarence Anderson, Jr.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|2On November 13, 2007, the Jefferson Parish District Attorney’s Office filed an amended bill of information charging the defendant, Clarence Anderson, Jr., with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. At his arraignment, the defendant pled not guilty.

The defendant filed an omnibus motion, which included a “Motion to Suppress Confession, Identification, and Physical Evidence,” that the trial court subsequently denied. On November 13, 2007, this Court denied writs. State v. Anderson, 07-902 (La.App. 5 Cir. 11/13/07)(unpublished writ disposition).

After a one-day trial, the jury unanimously found the defendant guilty as charged. The defendant subsequently filed a “Motion for New Trial Alternatively Motion to Arrest the Judgment,” which the trial court denied. After the defendant waived sentencing delays, the trial judge sentenced the defendant to ten years at hard labor. The defendant takes this timely appeal.

Facts

At trial, Detective Chad Peterson of the Kenner Police Department testified that, on the morning of June 14, 2007, he was driving to work on the airport access 13road in Kenner, in an unmarked police vehicle. As he traveled, he pulled along side of an older-model Delta 88 Oldsmobile, which was in the right-hand lane.

Detective Peterson observed an African-American man driving the car. Detective Peterson saw the driver lean forward, reach down with his right hand, and pick up an object from the floorboard, while his left hand remained on the steering wheel. According to Detective Peterson, this action made him curious. Detective Peterson testified, “As the object came up, I identified it as ... what appeared to me as a firearm from that distance.”

Detective Peterson testified that, next, he saw the defendant take his left hand off of the steering wheel, and while holding the gun near his chest, quickly chamber a round into the firearm. The driver then reached down with his right hand and placed the weapon on the floorboard. According to Detective Peterson, he had an unimpeded view through his vehicle’s window into the suspect’s vehicle; he could not, however, remember if the windows on the suspect’s vehicle were raised or lowered. Detective Peterson testified that the driver did not look over at him while they were driving beside each other.

Detective Peterson testified that, because of public safety concerns, he initiated a traffic stop of the vehicle by activating his emergency lights and siren. At trial, Detective Peterson identified the defendant as the man he stopped. According to Detective Peterson, after the defendant stopped his vehicle, he approached the defendant’s vehicle with his badge around his neck and his weapon drawn. He ordered the defendant to exit the vehicle with his hands in sight.

When the defendant complied and exited the vehicle, Detective Peterson attempted to handcuff the defendant and the defendant pulled away in an apparent attempt to flee. A small struggle ensued. After Detective Peterson was able to cuff the defendant, he placed the defendant under arrest. When Detective Peterson 14looked into the vehicle, he saw a semi-automatic handgun on the floorboard to the right of the driver’s seat. When Detective Peterson eventually retrieved and secured the weapon, he determined that it was operable and loaded. Detective Peterson testified that he removed both live rounds and a clip from the weapon. Six 9-millimeter rounds were in the magazine and one 9-millimeter round was in the chamber of the gun.

The defendant testified that, in the early morning hours of June 14, 2007, he loaned his Oldsmobile Delta 88 to his fiancée, Shkeitha Oliney, to go to work. Later that morning, he retrieved his vehicle from his fiancée’s worksite, returned to his house, then started towards his fiancée’s house in Kenner.

The defendant testified that he was trying to charge his fiancée’s cellular phone, while traveling on Airport Road, when the occupant of a Chevy SUV began riding beside him and looking into his vehicle. The defendant testified that he took one of his hands off of the steering wheel, in order to connect the charger, which he retrieved from the floorboard, to his fian-cée’s phone. The defendant did not feel anything else on the floorboard. As the defendant continued driving, after connecting the cellular phone to the charger, the occupant of the other vehicle put his police lights on and pulled him over.

According to the defendant, he immediately pulled over for the officer. The defendant testified that the officer ordered him to show his hands but did not order him to get out of his vehicle. The defendant testified that he identified himself to the officer and informed him that he had previously been convicted of a felony.

The defendant admitted that the officer who stopped him found a gun under the seat of his vehicle. The defendant stated that he did not know that there was a firearm in his vehicle nor was he in possession of a firearm. The defendant suggested that the officer might have mistaken his cellular phone for a gun.

|BLater in his testimony, the defendant stated that the gun found in his vehicle belonged to his fiancée. The defendant testified that he did not know, prior to the incident, that his fiancée owned a gun.

Shkeitha Oliney testified that she borrowed the defendant’s car to go to work on the night before the incident. Subsequently, the defendant retrieved his vehicle from her second jobsite. Oliney testified that she tried to call the defendant from work to inform him that her firearm was in his vehicle because she knew he was a convicted felon. Oliney testified that, when she attempted to call the defendant to tell him about the firearm, the defendant answered but then the phone went dead. There was no signal when she tried to call back.

Oliney stated that the defendant did not know that she had left a firearm in his vehicle. Oliney testified that the firearm was in the defendant’s vehicle because she had taken her gun for protection on her way to work earlier that morning. Oliney testified that, on the date of the incident, the defendant did not know she owned a firearm. Oliney testified that she collects firearms as a hobby.

In his first assignment of error, defendant contends that the State did not present sufficient evidence to support his conviction. The defendant argues that the State failed to prove that he was in actual or constructive possession of the firearm with the intent to commit the crime. He also specifically argues that Detective Peterson did not have “probable cause to conduct an investigatory stop of the Anderson’s vehicle.”

The State responds that the defendant admitted that a loaded weapon was found on the floorboard of his car. The State notes that the twelve-member jury made a credibility assessment when it rejected the defendant’s testimony that Detective Peterson saw him charging his cell phone, not chambering a round in a |ngun and his claim that he did not know that the firearm, which purportedly belonged to his fiancée, was in his vehicle.

The standard for appellate review of the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560; State v. Lee, 02-704 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 592, writ denied, 03-0535 (La.10/17/03), 855 So.2d 755. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

In order to convict a defendant of illegal possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that the defendant had (1) possession of a firearm; (2) a conviction of an enumerated felony; (3) an absence of the ten-year statutory period of limitation; and (4) the general intent to commit the offense. La. R.S. 14:95.1; State v. Lee, 836 So.2d at 593.

Constructive possession is sufficient to satisfy the possession element of La. R.S. 14:95.1. Actual possession of a firearm is not necessary. State v. Lee, 836 So.2d at 593. An individual is in constructive possession of a thing if it is subject to his dominion and control. Id. An individual’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. Id.

The defendant’s mere presence in an area where a firearm was found does not necessarily establish possession. State v. Gordon, 00-1013 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 143, twits denied, 02-0362 (La.12/19/02), 833 So.2d 336 and 02-209 (La.2/14/03), 836 So.2d 134. The State must prove that the offender was aware that a firearm was in his presence and that the offender had the |7general criminal intent to possess the weapon. State v. Lee, 836 So.2d at 693. The defendant’s guilty knowledge may be inferred from the circumstances. State v. Gordon, 803 So.2d at 143.

In State v. Lee, supra, the defendant was convicted of possession of a firearm by a convicted felon. State v. Lee, 836 So.2d at 591. In Lee, the driver of the vehicle testified that he saw the defendant take two guns from under his shirt and put them on the vehicle’s floorboard. In addition, the officers both testified that they saw the defendant duck down in the passenger seat when he spotted their police car. One of the officers discovered the guns on the floorboard, in plain view, on the front passenger side of the vehicle immediately after the defendant exited the passenger seat.

This Court noted that, even excluding the driver’s testimony, there was a strong inference that the defendant bent over in an attempt to hide the weapons when he saw he was the subject of a traffic stop. In addition, a gun holster found on the defendant perfectly fit one of the guns found on the floorboard. State v. Lee, 836 So.2d at 593. This Court found that there was sufficient evidence under the Jackson standard to prove the charge of possession of a firearm by a convicted felon. State v. Lee, 836 So.2d at 593-94.

In this case, Detective Peterson testified that he observed the defendant lean forward and reach down with his right hand to pick up an object off the ground, while his left hand remained on the steering wheel. As the defendant raised the object, Detective Peterson identified it as a firearm. Then, Detective Peterson saw the defendant take his left hand off of the steering wheel, draw the gun towards the middle of his chest, and quickly chamber a round into the firearm before reaching down again. Detective Peterson testified that he had an unimpeded view into the defendant’s vehicle.

| sConversely, the defendant claimed that he did not know that there was a firearm in his vehicle when Detective Peterson stopped him. He told the jury that he was attempting to connect his cell phone to its charger. Further, Shkeitha Oliney, defendant’s fiancée, testified that she was a novice firearm collector and the gun from defendant’s car belonged to her. Ms. Oli-ney stated that she was carrying the weapon because she was traveling to work in an area that is not safe at 2:00 in the morning. She also unequivocally stated that defendant did not know that the weapon was in his car. She contended that she was attempting to contact the defendant about the weapon as he was being stopped by the police.

When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with the jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Lee, 836 So.2d at 593. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. Id.

We will not assess the credibility of witnesses or reweigh the evidence on appeal. Therefore, viewing the evidence in the light most favorable to the prosecution, the jury did not err in finding, beyond a reasonable doubt, that the defendant was in actual possession of a weapon when the officer saw him holding the gun.

Next, defendant specifically argues that Detective Peterson did not have “probable cause to conduct an investigatory stop of the Anderson’s vehicle.” Although defendant did not provide further support for his • claim, we will review whether the officer had reasonable suspicion to conduct an investigatory stop.

The Fourth Amendment to the United States Constitution and Louisiana Constitution Article 1, § 5 protect individuals from unreasonable searches and seizures. State v. Micelotti, 07-700 (La.App. 5 Cir. 2/6/08), 979 So.2d 573, 576. |nLaw enforcement officers are authorized by La. C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to perform investigatory stops to interrogate a person who is reasonably suspected of criminal activity. Terry v. Ohio, 892 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Micelotti, supra.

During a Terry stop, as codified in La.C.Cr.P. art. 215.1, a police officer is authorized to stop an individual in a public place whom the officer reasonably suspects is committing, has committed, or is about to commit a crime. State v. Micelotti, 979 So.2d at 576. The officer can demand that individuals give their identity and explain their actions. Id.

Reasonable suspicion necessary for an investigatory stop is something less than probable cause. Id. Whether a police officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference must be determined by the facts of each case. Id.

A police officer must have a particularized and objective basis for suspecting the particular person that is stopped has been connected with criminal activity, in order to make an investigatory stop. State v. Micelotti, 979 So.2d at 576. A particularized and objective basis for suspecting the individual of criminal activity requires the officer to point to specific and articulable facts that justify the investigatory stop. Id.

The police, however, do not have to observe what they know to be criminal behavior before investigating. State v. Ayche, 07-753 (La.App. 5 Cir. 3/11/08), 978 So.2d 1143, 1149(citing State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989). Rather, the requirement is that the officers have a reasonable suspicion of criminal activity. Id.

|inAn investigatory stop is illegal without reasonable suspicion, and the evidence seized from that stop is suppressible. State v. Micelotti 979 So.2d at 576. “The credibility of witnesses at a suppression hearing is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness.” State v. Micelotti, 979 So.2d at 577. A trial court’s denial of the defendant’s motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. Id.

An appellate court must consider the totality of the circumstances, while giving deference to the inferences and deductions of trained officers that might elude an untrained person. Id. In determining whether a motion to suppress ruling was correct, an appellate court may consider the evidence adduced at the motion to suppress hearing, as well as all pertinent evidence presented at the trial. Id.

In the present case, Detective Peterson, a law enforcement officer with approximately 10 years experience, observed the defendant chambering a round into a firearm while driving with no hands on the wheel. Detective Peterson testified that, although he did not witness the defendant committing a specific crime, he stopped the defendant to investigate because “[he] did not know if a crime had been committed or was about to be committed.”

We cannot say that the trial court erred in finding that Detective Peterson had sufficient reasonable suspicion that a crime was being committed, had been committed, or was about to be committed to justify an investigatory stop. Detective Peterson did not have to observe what he knew to be criminal behavior before investigating but rather behavior he reasonably suspected may become criminal activity.

| ^Finally, as is our practice, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920. See also State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals that the sentencing transcript indicates that the trial judge sentenced the defendant to ten years for the charged offense and six months in parish prison for a misdemeanor offense tried simultaneously with this charge. The trial judge ordered the sentences to run consecutively to each other. In fact, the trial judge stated twice that the defendant’s sentences were to run consecutively to each other. However, the hard labor commitment states that the sentences are to run concurrently to each other. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand this matter with instructions to the trial judge to amend the commitment/minute to conform to the transcript. State v. Manson, 94-625 (La. App. 5 Cir. 1/18/95), 650 So.2d 327, 330. Based on the foregoing, we affirm the defendant’s conviction and sentence and remand for correction of the commitment as ordered.

AFFIRMED; REMANDED WITH INSTRUCTIONS.