author: LOLLEY, J.

text:
    Salvatore A. CASCIO and John B. Sardisco, Co-Trustees of the Salvatore A. Cascio Trust, No. 2, Plaintiffs-Appellants v. TWIN CITIES DEVELOPMENT, LLC, Christopher Graham and Lee B. Santa Maria, Defendants-Appellees.
    No. 45,634-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.
    Gregorio, Gregory & Payne, by Sam N. Gregorio, Roy S. Payne, Joseph A. Gregorio, Shreveport, Louisiana, for Appellants.
    Jones, Walker, Waechter Poitevent, Carrere & Denegre, by Michael B. Donald, Nicole M. Duarte, Joshua A. Norris, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

Bln this appeal, plaintiffs, Salvatore A. Cascio and John B. Sardisco, co-trustees of the Salvatore A. Cascio Trust, No. 2, appeal the judgment of the 26th Judicial District Court, Parish of Bossier, State of Louisiana, which granted a partial summary judgment by Twin Cities Development, LLC, Christopher Graham, and Lee B. Santa Maria (collectively “Twin Cities”). For the following reasons, we affirm the trial court’s judgment.

Facts

Cascio and Sardisco are co-trustees of the Salvatore A. Cascio Trust, No. 2 (the “Trust”), which owns a 76-acre tract in Bossier Parish (“trust property”). On April 15, 2008, Cascio, acting on behalf of the Trust, entered into an oil, gas, and mineral lease of the trust property with Twin Cities, which was acting as an undisclosed agent of Chesapeake Louisiana, L.P. The lease granted Twin Cities the exclusive right to use the trust property for exploration and production of oil, gas, and minerals. The trust property overlays the Haynesville Shale, which is alleged by plaintiffs to be one of the richest natural gas reservoirs in the country. The plaintiffs also allege while they did not know the Haynesville Shale was situated below their property before entering into the lease agreement, Twin Cities had longstanding knowledge of this.

In October 2008, plaintiffs filed suit against Twin Cities for rescission of the lease based on error concerning a substantial quality of the |2object of the contract. Twin Cities moved for partial summary judgment on this claim. The trial court, ruling in favor of Twin Cities, determined that:

[A]n error as to the existence of a mineral deposit is not an error as to a cause “without which the obligation would not have been incurred” under La. C.C. art. 1949. In addition, an error as to the existence of a mineral deposit is not an error as to a substantial quality which would vitiate consent under La. C.C. art. 1950.

Thereafter, plaintiffs obtained certification of the partial summary judgment as a final judgment, and filed the instant appeal.

Discussion

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880; Duncan v. U.S.A.A. Ins. Co., 2006-368 (La.11/29/06), 950 So.2d 544; see also La. C.C.P. art. 966. Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.06/25/04), 876 So.2d 764; Austin v. Bundrick, 41,064 (La.App.2d Cir.06/30/06), 935 So.2d 836. Summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(1). The burden of proof generally remains with the movant. La. C.C.P. art. 966(C)(2).

|3A mineral lease is a contract by which the lessee is granted the right to explore for and produce minerals in consideration of the payment of a rental or bonus. La. R.S. 31:114; Odom v. Union Producing Co., 243 La. 48, 141 So.2d 649 (La.1961); Winnon v. Davis, 32,988 (La.App.2d Cir.05/15/00), 759 So.2d 321. A mineral lease is governed by the Mineral Code. La. C.C. art. 2672. However, La. R.S. 31:2 provides:

The provisions of [the Mineral] Code are supplementary to those of the Louisiana Civil Code and are applicable specifically to the subject matter of mineral law. In the event of conflict between the provisions of this Code and those of the Civil Code or other laws the provisions of this Code shall prevail. If this Code does not expressly or impliedly provide for a particular situation, the Civil Code or other laws are applicable.

Therefore, courts most often apply the general rules of contract interpretation when interpreting contracts involving mineral rights. See, Stephenson v. Petrohawk Properties, L.P., 45,296 (La.App.2d Cir.06/02/10), 37 So.3d 1145, citing Blanchard v. Pan-OK Production Co., Inc., 32,-764 (La.App.2d Cir.04/05/00), 755 So.2d 376, writ denied, 2000-1297 (La.06/23/00), 765 So.2d 1043.

A contract is formed by the consent of the parties. La. C.C. art. 1927. However, consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known to the other party. La. C.C. art. 1949. Additionally, error may concern cause 14when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing. La. C.C. art. 1950. Cause is defined as the reason why a party obligates himself. La. C.C. art. 1967.

Claim of Error

Cascio and Sardisco claim that the contract, here the mineral lease, should be rescinded based on error regarding the object of the contract or a substantial quality thereof. Plaintiffs assert that the object of the mineral lease is the land and mineral formations, while the substantial quality of that object is the Haynesville Shale. They further argue that because they did not know the land they were leasing was not ordinary land, but land with exceptional qualities (namely the existence of the Haynesville Shale), this constitutes error that vitiates consent. Because of this, plaintiffs assert there exists a genuine issue of material fact and the trial court erred in granting summary judgment as to this issue of error.

The present ease is very similar to Thomas v. Pride Oil & Gas Properties, Inc., 633 F.Supp.2d 238 (W.D.La., 2009). In Thomas, plaintiff entered into a mineral lease with the defendant for land the plaintiff owned. At the time the mineral lease was entered into, Thomas did not know the Haynesville Shale existed below his property; however, Pride Oil did know. Thomas sought to have the contract rescinded on grounds of error, among other things. The Thomas court, noting the “particularly speculative nature of mineral exploration and production,” found that there was no error that vitiated consent and dismissed Thomas’ claims.

IsAs in the Thomas case, here we accept as true plaintiffs’ allegations that they did not know before entering into the mineral lease with Twin Cities that a potentially valuable shale deposit existed under the land and that Twin Cities did have such knowledge. However, this lack of awareness does not rise to the level of error concerning a substantial quality of the object of the contract that would serve to vitiate the plaintiffs’ consent. It should have been apparent to the plaintiffs that Twin Cities entered into such a lease agreement in order to explore for and hopefully discover and produce oil, gas, and minerals from that land. Twin Cities was willing to assume the expenses and risks involved with leasing the land, subsequently exploring it for mineral deposits, and producing and selling what was found there in accordance with unstable market conditions. The ease and success of such an exploration as well as the potential profit to be made could not have been assumed at such an early stage. As the Louisiana Supreme Court explained in Wilkins:

[T]he inherent nature and character of the right to extract oil and gas from the soil is such as not to be susceptible of having an intrinsic, determinable, and fixable value. The element which enters into the valuation is too uncertain, conditional, and contingent. At most any value which may be fixed on the right is contemplative, speculative, and conjectural, not to say fanciful and theoretical.
The seller who sells such rights,. and the buyer who buys, does so with a speculative intent, and it is a matter of common knowledge that every real estate owner uses his own judgment in estimating the sale value of his property. In the admitted speculative nature of the intangible right it is impossible that there could be any fixed and dependable valuation. The price may be at the very lowest today and by “leaps and bounds” reach the very peak of prices tomorrow, dependent on the production or nonpro-duction of oil and gas in the neighboring territory. After all is said the seller usually gets the best price in cash that he can get with the hope of getting a royalty in case |fioil or gas is discovered, and the buyer paying the price in cash estimated by the seller, assumes all of the chances and hazards of his undertaking.

Wilkins v. Nelson, 155 La. 807, 813-814, 99 So. 607 (1924).

Here, while Twin Cities knew of the potential existence of the Haynesville Shale below plaintiffs’ property, there were other uncertainties that remained. Such uncertainties encompass the nature of mineral exploration. Id. Although plaintiffs did not know of the existence of the Haynesville Shale below the trust property, this lack of knowledge is unlike mistaking brass for gold, as plaintiffs analogized to the instant case. See Gullette v. Woods, 448 So.2d 856 (La.App. 2d Cir.1984). A mistake that a bar is made of gold when it is really made of brass is a finite determination. Here, however, both the plaintiffs and the defendants could speculate as to the existence and value of minerals found on the trust property. There could be no finite determination due to the aforementioned speculative nature of mineral exploration.

Additionally, a claim of error that is asserted regarding the value of a mineral lease is synonymous with a claim of lesion beyond moiety. Thomas, 638 F.Supp.2d at 244. Because sales of mineral leases are not subject to rescission on this basis under La. R.S. 31:17, it follows that a claim of error on this basis cannot rescind the sale either. Id. Therefore, we find this contract may not be rescinded for error.

| yCONGLUSION

Considering the foregoing, we affirm the trial court’s judgment granting the motion for partial summary judgment on the error claim asserted by Twin Cities Development, LLC. All costs of this appeal are assessed to Salvatore A. Cascio and John B. Sardisco, co-trustees of the Salvatore A. Cascio Trust, No. 2.

AFFIRMED.

      . This motion also addressed claims of lesion; however, lesion is not an issue in this appeal because plaintiffs state in their appellate brief that they have asserted no lesion claims.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James Edward BURNS, Appellant.
    No. 45,539-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, Louisiana, for Appellant. James Edward Burns, Pro se.
    James E. Paxton District Attorney, Anita T. Mack, Edwin Moberley, Assistant District Attorneys, Tallulah, Louisiana, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   STEWART, J.

hThe defendant, James Edward Burns, was convicted of violating La. R.S. 14:30.1, second degree murder. He was sentenced to life at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals, raising three assignments of error. For the reasons discussed below, the defendant’s conviction and sentence are affirmed.

FACTS

The evidence presented at James Burns’ trial for second degree murder, which took place between August 31, 2009 and September 4, 2009, established the following facts:

Daisy May testified that on September 29, 2007, while she was being dropped off by a friend on a corner of Fifth Street in Delhi, Louisiana, she saw James Burns and her aunt, Robertine May Burns. Daisy asked Robertine to take her home to pick up her check, and then take her to get the check cashed. Daisy got in the back seat of the car, since James was driving and Robertine was riding in the front passenger seat. James bypassed Daisy’s house, and started driving back toward Tallulah.

James began to turn in to the M & M Package Store, but left the parking lot immediately when he saw a police car parked there. He then drove down Cow Bayou Road and turned around in a driveway. After re-entering the road, he stopped the car at a nearby bridge and got out of the car, taking the keys with him. Robertine asked him what he was doing and reminded him they were supposed to be going to get Daisy’s check cashed. James Burns told her he believed she was only trying to get him to go to her sister’s house so she could “call the police on him again.” Daisy testified |2that Robertine told James that “they hadn’t been having any problems all day, and that everything had been just fine.”

James suddenly pulled a knife from his back pants pocket, got back into the front seat of the car on his knees facing Rober-tine, and began stabbing her. Daisy exited the car and ran back to the driveway of the house where they had just turned around.

Shane Blake and his son Eric Blake were working on a lawnmower in Shane’s yard when Daisy came running up. They testified that the house was located well off the road. Shane had seen the car turn around in the driveway a few minutes earlier, but noted that it was not an unusual occurrence. Eric stated that he heard screaming and a horn blowing down by the road and mentioned it to his father. Shortly thereafter, they saw Daisy running up the driveway, screaming hysterically that her aunt was being stabbed. Daisy ran into the house and locked the door. Shane used his cell phone to call the police, then stood guard with his gun near the front of the house until the police arrived.

Madison Parish Sheriff’s Office Captain Jimmy Brooks and his partner Brian Cleveland were the two officers who had been at M & M Package Store when James, Robertine, and Daisy drove in and left immediately. They received a dispatch call indicating a 911 call had come in about a stabbing on Cow Bayou Road. They were only 1.1 miles from the scene of the incident, so they arrived there within two or three minutes of the 911 call. When they arrived, they saw a bloody knife and a pair of Rshoes in the road. They immediately called for backup and noted a blue Ford parked in tall grass off the road.

After the officers got out of their patrol car, they saw Robertine lying in the middle of the path the car had made, down an embankment in the weeds on the side of the road. She was still alive when they found her, but her right arm had almost been severed and she was bleeding heavily. They called an ambulance.

Detective Ed Atcheson and other law enforcement personnel arrived on the scene, and he and Officer Cleveland “cleared” the blue Ford that James Burns had been driving. It had been abandoned in tall grass, but the engine was still running. The officers noticed blood in the car. The path the car had taken from the roadway was clearly marked by damage to the surrounding landscape.

Since the scene was still not secure when the ambulance arrived, officers on the scene took a spine board from the ambulance, loaded Robertine’s body on it, put it on the trunk of a police unit and drove it up the embankment to the ambulance. At that time the EMT, James Marcus Todd, put her on a heart monitor and found no electrical conduction in the heart. Robertine was declared dead at the scene.

Officer Brooks testified that he heard a splash and a voice from the water of Cow Bayou. He, along with the other officers present, called for the person to come out, and James came from the water. Atche-son and Officer Neal Horath arrested James and took him into custody.

14Officer James Rash, a criminal investigator for the Madison Parish Sheriffs Office, was the investigator assigned to this crime. He testified that after signing a waiver of his rights, James gave a statement. Unfortunately, although the statement was videotaped on the night of the incident, the audio on the recorder was not working. Therefore, Officer Rash had to supply the court with a recital of what was said during the interview that night. Officer Rash testified that James claimed that after he turned the car around in the driveway on Cow Bayou Road, Robertine pulled out a knife and started trying to stab him, so he struggled with her to take the knife away. He claimed that once he got the knife from her, she got out of the car. James stated he was afraid his wife had someone coming to get him, so he decided to pull the car into the grassy area to hide it, and then he ran and hid. Officer Rash asked James if he knew that he had run over his wife, and James replied that he did not.

The Madison Parish Coroner, Dr. Thomas Neumann, testified that Robertine’s injuries were consistent with her body having been dragged on the roadway under the car for some distance. He ordered an autopsy, which was performed by Dr. Steven Hayne. Dr. Hayne testified that he found three stab wounds in Robertine’s body as well as road grease and road rash on her. He defined road rash as linear abrasions that are consistent with a body having either been slid or dragged on a hard surface. He also testified that Ro-bertine died as a result of her arm being almost torn from her body, specifically stating as follows:

And in the axilla there’s one major artery, the brachial artery that takes origin from the subclavian which takes origin from | sthe aorta. It’s a large blood vessel carrying blood under high pressure. And when it is torn it will cause extensive bleeding in a rapid fashion. There are other arteries that were torn. There were other veins that were torn but the major blood vessel was the bra-chial artery in the axilla. And that would produce death in a relatively short period of time. And that was the lethal injury that Ms. Barnes [sic ] suffered.

The autopsy report states that the manner of death for Robertine May Burns was homicide. Dr. Hayne testified that Rober-tine did not die of. the stab wounds she received, which were non-lethal, but rather as a result of her right arm being almost severed from her body as she was dragged under the car, causing her to bleed to death. The autopsy report states the cause of death was “pedestrian motor vehicle crash,” and ruled “the underlying cause of death: the laceration of the major vessels of the right axilla.”

Madison Parish Sheriffs Detective Chad Heath Ezell testified that he examined the car that had been moved to Richmond Automotive. He photographed it inside and out. There was blood in the car, on the door, outside the door, and on the passenger side window, both inside and outside of the car. The front passenger side tire also had blood on the inner side.

Mr. Kendal Stracner, who performs DNA analysis at the North Louisiana Crime Lab in West Monroe, Louisiana, received evidence from the crime scene and also performed DNA tests on blood found on the vehicle, which had been delivered on a flatbed truck to his work site. He testified that the blood found in and outside the car matched Robertine’s DNA profile. The probability of finding the same DNA profile from a randomly selected individual other than Robertine was approximately one in 73.1 trillion. The blood found on the inner side of the passenger side front 10tire was tested for DNA and the DNA was found to be consistent with that of Robertine Burns.

Raymond Myers testified that the day before Robertine died, he was painting a house in Delhi at the same time James was doing carpentry work inside the house with another man, L.B. Reese. While the three men were taking a break, Myers heard James tell Reese that he was going to “kill the bitch.” James did not mention Robertine’s name, but the next day, Ro-bertine was dead. Myers testified that he immediately told Robertine’s family what he had heard the day before.

The state asked the trial judge to make a determination of whether certain Prieur evidence could be introduced, and the trial judge allowed the evidence to be presented at trial. East Baton Rouge Sheriffs Deputy, Jason Broussard, East Baton Rouge Parish ADA, Sandra Ribes, and Rober-tine’s daughter, Crystal May, testified about an incident of domestic abuse by James Burns upon Robertine Burns in April of 2007, in Baton Rouge, and for which James Burns had been charged with domestic abuse and violation of a restraining order.

Deputy Broussard testified that on April 23, 2007, he received a call about a domestic abuse case regarding Robertine M. Burns. He went to her place of employment and spoke to her, and noticed that she had a swollen nose and lip. She told him that James had taken her daughter Crystal to school and had come back home and woken her up. He slapped her in the face and then began to punch her. He also told her he would kill her in that apartment. Deputy Broussard stated that Robertine had told him that after |7about two hours she was able to calm James down enough to allow her to go to work, where she called the sheriffs office to file the complaint.

Deputy Broussard went to see James Burns who stated that he had gotten into an argument with his wife, that she slapped him first, and that he slapped her back, and then she went to work. Deputy Broussard did not see any signs of injury on James Burns’ face or body. Deputy Broussard arrested him for domestic abuse battery.

Crystal May, Robertine’s daughter, testified that in April of 2007, she came home from school and saw her mother with a bandage made of gauze and tape on her nose.

ADA Sandra Ribes, from East Baton Rouge Parish, testified that Robertine’s case came to her attention on May 4, 2007. She stated that it was her usual procedure to contact the victim to get information, and that on that day, she talked to Rober-tine twice. The first time Robertine told Ms. Ribes that she wanted to pursue charges against James, but the second time she spoke to her, Robertine told her that she did not want to pursue charges because James’ mother was dying and he wanted to go up to North Louisiana. She believed he would leave her alone if he went to North Louisiana. Ms. Ribes asked her to put that in writing so she could put it in her case file, and Robertine did so. The statement indicates that Ro-bertine had a protective order which she believed would protect her from James. Ms. Ribes no-billed the case.

A month later Robertine contacted Ms. Ribes again and told her James had been harassing her and that she wanted Ms. Ribes to proceed | swith the charges in the domestic abuse incident and for violation of the protective order. She told Ms. Ribes that James had been calling her and threatening her by saying, “You thought this was the end, but it is not the end.” Ms. Ribes did file the charges against James on June 21, 2007, but in September 2007, the incident at issue in this case occurred and Robertine died.

The case went to the jury on September 4, 2009, and the jury found James Burns guilty of second degree murder. On September 22, 2009, James Burns was sentenced to serve life in prison at hard labor without benefit of probation, parole, or suspension of sentence. This appeal followed.

LAW AND DISCUSSION

Sufficiency of the Evidence

The defendant asserts in his first assignment of error that the evidence adduced at trial was insufficient to convict him of second degree murder.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Eason, supra; State v. Wiltcher, 41,981 (La.App.2d Cir.8/30/02), 956 So.2d 769.

|1f)An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When the conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438. The appellate court reviews the evidence in the light most favorable to the prosecution and determines whether an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417.

La. R.S. 14:30.1, which defines the crime of second degree murder, provides in part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily-harm.

Therefore, in order to prove that the defendant, James Burns, committed the crime of second degree murder, the state had to prove that he |nhad the specific intent to kill, or to inflict great bodily harm upon Robertine May Burns.

The defendant presents two arguments that the evidence was insufficient to prove second degree murder. His first argument is based on the allegation that the only witness to any of the events that occurred, Daisy May, admitted to using crack cocaine the day of the incident. Further, he argues Daisy was sitting in the back seat of the car and was unable to observe all of Robertine’s actions.

The defendant states in his second argument that the stab wounds that were found on Robertine’s body were not the cause of her death, and in fact, Dr. Hayne, who performed the autopsy, indicated that the cause of death was due to having been run over and dragged under the car. He claims his statement to Investigator Rash was unequivocal that he did not realize he had run over his wife. The defendant asserts that the state failed to eliminate the hypothesis that he was unaware he had run over his wife.

The state argues the transcript of the trial is rife with proof that the defendant committed the crime of second degree murder when he killed his wife, Robertine May Burns. We agree. Daisy May witnessed the defendant pull a knife out of his pants pocket and stab Robertine several times. Daisy May testified that she saw the stabbing very well and did not have an obstructed view of the incident. The evidence presented at trial also indicates that at some point in time, Robertine escaped from the vehicle where she was being stabbed. This indication is supported by the blood evidence inside and outside the car. A careful review of the evidence in its | ^totality provides a clear indication that the defendant, who was the only person with the keys to the car, ran over Rober-tine and dragged her body down the road and down an embankment into the weeds. As a result, her arm was torn from her body and she bled to death.

The state presented evidence that Captain Jimmy Brooks from the Madison Parish Sheriffs Office and his partner, Brian Cleveland, responded to the 911 call within three minutes of the call being made. When they arrived to the scene of the incident, they discovered that the motor was running in the Burns’ car and that Robertine was severely injured, barely conscious, and lying in the pathway left by Burns’ vehicle. Shortly thereafter, the defendant was captured coming out of Cow Bayou.

The evidence presented by the state in this case was sufficient to prove Burns’ guilt beyond a reasonable doubt to a rational jury. The state was required to show that James Burns intended to kill or inflict great bodily harm upon Robertine May Burns, and the state met its burden of proof. The testimony of Daisy May indicated that Burns suddenly stopped the car, and for no apparent reason, pulled out a knife and began stabbing Robertine. Although Daisy left the scene and did not witness the rest of what transpired there on Cow Bayou Road, when the police arrived two to three minutes after the 911 call was made, they found Robertine dying in the weeds in the wake of the car James Burns had been driving. This evidence, considered iñ the light most favorable to the prosecution, was sufficient to prove Burns’ guilt beyond a reasonable doubt. Therefore, this assignment of error has no merit.

11SChallenges for Cause

In the second assignment of error, the defendant contends that the trial court erred in denying challenges for cause as to five prospective jurors — David Lowery, Howard Carney, Brent Fortenberry, Johnny Goss, and Tilford Watts.

Challenges for cause are discussed in La. C. Cr. P. art. 797, which states:

The state or the defendant may challenge a juror for cause on the ground that:
(1) the juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. Ah opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offenses.

A trial court is vested with broad discretion in ruling on challenges for cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Holder, 44,386 (La.App. 2 Cir. 10/28/09), 25 So.3d 920.

114The law of challenge for cause indicates that it does not require a jury to be composed of individuals who are totally unacquainted with the defendant, the prosecuting witness, the prosecuting attorney and the witnesses who may testify at the trial, it requires only that jurors be fair and unbiased. In State v. Shelton, 377 So.2d 96 (La.1979), the court stated that in ruling on a challenge for cause, the trial judge has wide discretion, the exercise of which will not be disturbed on appeal except on a showing of an abuse thereof. That a prospective juror knows the defendant does not per se constitute a ground for challenge for cause. There must be a showing that the relationship would influence the juror’s ability to arrive at an impartial verdict. State v. Clark, 340 So.2d 208 (La.1976). A prospective juror’s statement that he will be fair and impartial is not binding on the trial court. If the revealed details of the relationship are such that bias or prejudice may be reasonably inferred, a juror may be properly refused for cause.

In State v. Gibson, 505 So.2d 237 (La.App. 3d Cir.1987), writ denied, 508 So.2d 66 (La.1987), the court stated a defendant can only complain about a trial court’s denial of a challenge for cause if the defendant has exhausted all his peremptory challenges. A prospective juror charged with bias can be rehabilitated if the court is satisfied that a juror can render an impartial verdict according to evidence and instructions given by the court. A relationship to law enforcement is not alone grounds for a challenge for cause. However, close scrutiny is required before a prospective juror who has been in law enforcement is allowed on the jury. |lfiThe decision of whether a prospective juror has been rehabilitated rests with the court.

The defendant argues that during voir dire, counsel for the defense exhausted all peremptory challenges. There were six denied defense challenges for cause, and defendant argues that five of those six challenges for cause were erroneously denied as to David Lowery, Howard Carney, Brent Fortenberry, Johnny Goss, and Til-ford Watts.

Prospective juror David Lowery was challenged for cause because he was Detective Rash’s brother-in-law, and Lowery had stated that he would take Detective Rash’s word over that of other people. The record shows that Lowery was rehabilitated and stated he could be fair and would look at the evidence first to make a determination of guilt. The trial judge denied the challenge for cause of David Lowery, and indicated he had looked at case law and found several cases dealing with spouses, even wives of deputies, who were permitted to serve on juries, as well as one case in which the brother-in-law of the arresting deputy was allowed to serve.

Howard Carney was a farmer who had indicated it would be a hardship for him to serve on the jury because it was time for him to bring in his crops. Further, Carney was involved in a case with his son who was going through a divorce in Mississippi. The ease had “spilled over” into Madison Parish, and the defense claimed both ADA Edwin Moberley and defense counsel Leroy Smith were involved in the Louisiana proceeding, with Smith representing the opposing party in Mr. Carney’s son’s litigation. The defense claimed Mr. Carney was biased against defense counsel, and |i6his concern for his crop along with this bias should have been sufficient reason for the trial judge to have granted the defendant’s challenge for cause. The state argued that Carney had a grandson who could run the farm’s day-to-day operations, and that the suit involved his son, not the prospective juror. The trial judge found Carney had less of a hardship case than another farmer who was in the jury pool, and ultimately denied the challenge for cause.

Brent Fortenberry had a financial interest in a detention center. The defense argued that Fortenberry’s financial interest in keeping the detention center full and keeping sheriffs and law enforcement happy should result in the challenge for cause being granted. The trial judge noted that Fortenberry had a financial interest in the center but stated that he did not think “one defendant is gon’ make him or break him whether he’s in jail or out of jail,” and then he denied the challenge for cause.

Johnny Goss was challenged for cause by the defense because he stated he was a close friend of several of the law enforcement officers, and really good friends with Sammie Byrd who worked in the DA’s Office. Defense argued Goss could not be fair and impartial and might give his friends’ testimony weight, because of his close relationship with them. The trial judge determined that there was no indication that Goss was socially engaged with any of the people and that Goss had stated very strongly and firmly that he could be fair. Further, there was no indication that his knowing the deputies would cause him to be partial. Therefore, the trial court denied the challenge for cause.

117Tilford Watts was a teacher at a technical college and was also a constable for Madison Parish. The defense challenged him for cause on the basis of a hardship he had discussed concerning scheduling of his classes, and the fact that 20 students were going to be extremely inconvenienced by his absence. Further, the defense argued that when questioned, Watts was “hesitant about law enforcement officers” and had also been the victim of several thefts. The trial judge found hardship did not support a challenge for cause. Further, the judge found the thefts did not seem to have any effect, and that Mr. Watts seemed sincere about his duty to serve. Therefore, the trial judge denied the challenge for cause.

Ultimately, all of these prospective jurors indicated that, despite their tenuous connections to various and sundry people involved in the case, they could render a fair and impartial verdict. Each of the five jurors was properly rehabilitated by counsel for the state or by the trial court. Because decisions on challenges for cause are within the wide discretion of the trial court, we find that the trial court did not abuse its discretion in the denial of these challenges for cause. Therefore, this assignment of error is without merit.

Prior Crimes Evidence

In the third and final assignment of error, the defendant alleges that the trial court erred in allowing the prior crimes and bad acts testimony presented by Jason Broussard, Crystal May and Sandra Ribes. The defendant argues that on the day jury selection began, August 31, 2009, the state filed its Prieur notice. See, State v. Prieur, 277 So.2d 126 (La.1973). The law requires that the state must provide the defendant with notice before trial that it intends to offer prior crimes evidence. Even when other crimes are relevant, the probative value of unrelated offenses must be weighed against their possible prejudicial effect.

On September 4, 2009, a hearing on the notice was held, outside the presence of the jury, regarding whether the testimony of Jason Broussard, deputy of the East Baton Rouge Sheriffs Office, Crystal May, daughter of Robertine May Burns, and Sandra Ribes, ADA of East Baton Rouge Parish, would be heard by the jury. Their testimony concerned an incident of domestic abuse that allegedly occurred in April of 2007, four months prior to Robertine’s death. The trial court heard the testimony of the three witnesses, held the testimony was not res gestae, but found that the evidence was admissible under Prieur.

The defendant argues that on the day before the Prieur hearing, he filed a pro se objection for the record indicating there were witnesses he had asked to be subpoenaed for his trial who were not subpoenaed by his counsel. The defendant argued that these witnesses who had not been subpoenaed would have rebutted the testimony of the three Prieur witnesses, and that his counsel was “totally incompetent” for his failure to call those witnesses. The defendant claimed there was no way his counsel could have known of the importance of these uncalled witnesses because the state failed to file its Prieur notice until the day the trial started. Therefore, the state’s failure to timely file the notice substantially prejudiced Mr. Burns and deprived him of his right and ability to adequately prepare for trial.

| inIn State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, certiorari denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (10/29/07), the court cited the Prieur rule that evidence of other crimes, wrongs, or acts is generally inadmissible to impeach the character of the accused, citing La. C.E. art. 404(B)(1). When the other crimes are offered for a purpose allowed under Article 404, the state is required to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or ... (res gestae).” 955 So.2d at 123. The Blank court also stated that the state must provide the defendant with notice before trial that it intends to offer prior crimes evidence, citing Prieur, 277 So.2d at 130. Even when other crimes are relevant, the probative value of unrelated offenses must be weighed against their possible prejudicial effect.

In Blank, the defendant claimed the state’s notice that it intended to introduce evidence of other crimes, filed approximately one month before trial and well beyond the court’s deadline for filing pretrial motions, was not timely, and should have been denied outright as untimely and inadequate. However, the Louisiana Supreme Court found that not every violation of pretrial procedures, including Prieur violations, requires reversal. The court stated that before a defendant can complain of such a violation, he must show prejudice. State v. Sanders, 93-0001, p. 14 (La.11/20/94), 648 So.2d 1272, 1284. Further, Prieur speaks of the “substantial risk of grave prejudice” to a defendant arising out of inadmissible or surprise admission of other crimes evidence, but does not presume that prejudice.

12riThe Louisiana Supreme Court found that notwithstanding the state’s failure to file its formal Prieur notice earlier, the defendant clearly knew that the state would introduce evidence of the other crimes at the penalty phase, given the court’s ruling which held the evidence admissible. The court noted the defense counsel did not object to the lack of notice at the Prieur hearing and despite the late hearing about admission of the evidence at the guilt phase, the defendant made no showing how his strategy would have been different had he received notice earlier. Because the defendant did not demonstrate prejudice resulting from the state’s untimely filing, he was deemed to show no basis for relief under the notice requirements of Prieur and Sanders. Therefore, the court found the defendant’s assignment of error did not warrant relief.

Similarly in this case, the state’s formal Prieur notice was rather untimely, having been filed on the day jury selection began. However, the record reveals that the state had provided defense counsel with evidence of other crimes committed in Baton Rouge, and the trial began at the end of August 2009. Further, although at the Prieur hearing, defense counsel brought up the issue that had he known earlier that the state intended to introduce the witnesses from East Baton Rouge he would have subpoenaed his own rebuttal witnesses to that testimony, he did not argue that he would have asserted any other defenses to the second degree murder charge, or would have changed his strategy, at trial.

The defendant failed to show prejudice, or the “substantial risk of grave prejudice” to him arising out of inadmissible or surprise admission of 1¾1 other crimes evidence required by Prieur. Therefore, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: PEATROSS, J.

text:
    BOSSIER PARISH SCHOOL BOARD, Plaintiff-Appellant v. Richard LeBLANC Architects, Inc., et al, Defendant-Appellee.
    No. 45,632-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Hammonds & Sills by: Kenneth F. Sills, Charles F. Hardie, VI, Jon Guice, Linda Ewbank, Baton Rouge, Louisiana, for Appellant.
    Cook, Yancey, King & Galloway by: Brian A. Homza, Jason B. Nichols, Shreveport, Louisiana, for Appellee, Cochran Construction Company, Inc.
    Lewis, Brisbois, Bisgaard & Smith, LLP by: Maureen 0. Sullivan, Sarah R. Smith, Lafayette, Louisiana, for Appellee, Richard LeBlanc Architects, Inc.
    Galloway, Johnson, Thompkins, & Smith by: Richard G. Duplantier, Jr., Michael D. Lonegrass, Allison L. Goertz, New Orleans, Louisiana, for Appellee, Terry’s Roofing & Sheet Metal, Inc.
    Mayer, Smith & Roberts, LLP, by: David Butterfield, Joel Lee-Eric Jesse, Shreveport, Louisiana, for Appellee, Ber-ridge Manufacturing Co.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

1 ,This is an appeal from a judgment sustaining an exception of peremption/pre-scription and dismissing the claims of Bossier Parish School Board (“BPSB”) against Cochran Construction Company, Inc. (“Cochran”) for damages arising out of the construction of the roof on Haughton Middle School. The trial court found that the five-year peremptive period embodied in the Louisiana Public Works Act, La. R.S. 38:2189, was applicable to the claims of BPSB and that the claims were perempt-ed. BPSB appeals. For the reasons stated herein, we affirm.

FACTS

On July 3, 1998, BPSB contracted with general contractor Cochran to construct the new middle school in Haughton. The construction contract was executed in compliance with the Louisiana Public Works Act, La. R.S. 38:2181, et seq. Terry’s Roofing and Sheetmetal (“Terry’s”) was the subcontractor hired to do the roof on the project and the roofing materials were manufactured by Berridge Manufacturing Company (“Berridge”).

Various interim certificates of completion were signed on the project; on December 10, 1999, a Certificate of Substantial Completion covering the “Entire Project” was signed by all parties and recorded on December 17, 1999. Subsequently, BPSB, Terry’s and Berridge executed a 10-year Watertightness Limited Warranty on the roof. BPSB and Terry’s signed the warranty on July 31, 2000, and Berridge signed on August 14, 2000. Cochran was not a party to the roof warranty agreement.

As early as August 2000, the roof on the middle school began leaking. Terry’s had made necessary repairs for years. In 2007, however, RTerry’s refused to continue repairing the roof; and, on September 4, 2007, BPSB made a warranty claim with Berridge. Berridge inspected the roof and advised Terry’s by letter that Terry’s was responsible for continuing repairs. At that point, BPSB was on notice that there was a problem with Berridge honoring the warranty on the roof.

On January 7, 2007, BPSB filed suit against numerous defendants, including Cochran. On May 15, 2009, BPSB filed an Amending and Supplemental Petition seeking damages sustained as a result of alleged defects in the construction of the middle school, for fraud, impairment of the express warranty contract, redhibition and breach of contract. With respect to Cochran, BPSB seeks damages for defective construction of the roof, fraud and intentional and/or negligent impairment of the express warranty agreement. It asserts that Cochran is liable in solido with the other defendants under La. C.C. art. 2520, et seq.

Cochran filed an exception of per-emption/prescription, which was sustained by the trial judge. The trial judge concluded that the claims of BPSB against Cochran were subject to the Louisiana Public Works Act, La. R.S. 38:2189, which provides as follows:

Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration, or repair of any public works let by the state or any of its agencies, boards or subdivisions shall prescribe 5 years from the substantial completion, as defined in R.S. 38:2241.1, or acceptance of such work, whichever occurs first, or of notice of default of the contractor unless otherwise limited in this Chapter.

| sIt is well settled that the above provision is peremptive. State Through Div. of Admin. v. McInnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937. As stated, because the claims of BPSB were brought more than five years from the date of substantial completion of the roofing work, the trial judge found the claims of BPSB to be perempted.

Alternatively, the trial judge found that, even if the above provision did not apply to all of the claims of BPSB, ie., those claims that BPSB characterizes as “non-contractual,” prescription commenced on the date BPSB filed its warranty claims with Ber-ridge and, therefore, are time barred by the one-year prescriptive period of La. C.C. art. 3492. BPSB’s motion for new trial was granted and a hearing was held; however, the trial judge again sustained the exceptions. This appeal ensued.

DISCUSSION

On appeal, BPSB assigns the following errors:

1. The trial judge erroneously held that the five-year prescriptive/per-emptive period set forth by La. R.S. 38:2189 of the Louisiana Public Works Act for claims against contractors on a public work applies to all claims directly relating to a public work, including those based in tort and for impairment of the warranty contract.
2. Alternatively, if the five-year prescriptive/peremptive period set forth by La. R.S. 38:2189 did not serve to bar the School Board’s non-contractual claims, said claims had prescribed pursuant to the one year prescriptive period provided by La. C.C. art. 3492.

The decisive issue on appeal is whether the five-year peremptive period of section 38:2189 of the Public Works Act applies to all claims made against the general contractor of a public work, including those which Lmight be characterized as quasi-contractual or tort claims. BPSB emphasizes the language of the statute that describes the actions to which it applies: any action “on the contract or on the bond.” BPSB urges that certain of its actions are in tort and are not covered by this provision. Accordingly, it argues that the trial judge erred in holding that this provision governs all of the claims, contractual and tort, that are contained in BPSB’s petition. We are not persuaded by the argument of BPSB.

The Louisiana legislature has recognized an intent to protect those performing labor and furnishing materials for public works when it passed Act 224 in 1918, which is the predecessor of the current public works statutes. Orleans Parish School Bd. v. Scheyd, Inc., 98-2989 (La.App. 4th Cir.6/16/99), 737 So.2d 954, writ denied, 99-2103 (La.11/5/99) 750 So.2d 181. Public contract laws are to be strictly construed, and the privileges granted therein are not extended beyond the dictates of the statute. Id., citing Wilkin v. Dev Con Builders, Inc., 561 So.2d 66 (La.1990). The Louisiana Public Works Act is sui generis and provides the exclusive remedy in litigation arising out of a public work. Board of Sup’rs of Louisiana State University v. Louisiana Agricultural Finance Authority, 07-0107 (La.App. 1st Cir.2/8/08), 984 So.2d 72, citing State, Division of Administration v. McInnis Bros. Construction, supra. The exclusivity of the Public Works Act applies equally to contractors and to public bodies.

The court in Scheyd, supra, specifically addressed the question of application of the five-year peremptive period of the Public Works Act to actions sounding in tort rather than contract. In holding that the five-year | .^period applies to all claims against the public works contractor, the court noted that, while there are different categories of actions, when the suit is between a public entity and a contractor and arises out of performance of a public work contract, all claims are subject to the time limitation set forth in the Public Works Act. To allow expansion of the time limitation would, as stated in Scheyd, be contrary to the intent of the legislature in enacting the statutory time limitation in the Public Works Act. We agree with the Scheyd court’s application of the statute.

The lawsuit in the case sub judice arose out of a public construction contract under the governance of the Public Works Act. As previously stated, the parties signed a Certificate of Substantial Completion covering the “Entire Project” on December 10, 1999, which was properly recorded in accordance with La. R.S. 38:2241. BPSB did not file suit until January 7, 2009, more than nine years after that date. We decline to parse through the claims made in the petition characterizing them by type of action as urged by BPSB. Rather, we hold that all claims arising under the public contract are subject to the time limitation of the Public Works Act. Scheyd, supra. Accordingly, we find that the trial court properly found the claims of BPSB to be perempted.

In light of this holding, we pretermit the alternative arguments presented by BPSB regarding the application of the one-year prescriptive period to the “non-contractual” claims. In addition, regarding BPSB’s claim that Cochran tortiously interfered with the Watertightness Warranty, we note that Cochran was not a party to the warranty contract and, unlike |fiBerridge, is not exposed to liability for any alleged breach of the same. Furthermore, a review of the record reveals no actions on the part of Cochran that interfered with Berridge’s decision to honor or dishonor its warranty with BPSB.

CONCLUSION

For the foregoing reasons, the judgment of the trial court finding the claims of Bossier Parish School Board to be per-empted under La. R.S. 38:2189 are affirmed. Costs of this appeal are assessed against the School Board in accordance with La. R.S. 13:5112 in the amount of $3,915.50.

AFFIRMED.

      . Cochran is the only defendant relevant to this appeal.


author: GASKINS, J.

text:
    MUSCULOSKELETAL INSTITUTE OF LOUISIANA, APMC (Al Pertuz), Plaintiff and Appellant v. McDONALD’S CORP., Defendant and Appellee. Musculoskeletal Institute of Louisiana, APMC (Carl Peacock), Plaintiff and 2nd Appellant v. Rollins, Inc., Defendant and 1st Appellant.
    Nos. 45,628-WCA, 45,629-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.
    Rehearing Denied Oct. 28, 2010.

      Javier Law Firm, LLC by Roger Anthony Javier, Amanda H. Baxter, Stacey A. LaGraize, New Orleans, Louisiana, for Rollins, Inc., and McDonald’s Corp.
    Williams Family Law Firm, LLC by R. Bray Williams, Joe Payne Williams, Natchitoches, Louisiana, for Musculoskele-tal Institute of Louisiana.
    Cox, Cox, Filo, Camel & Wilson, by Thomas Allen Filo, Michael K. Cox, Lake Charles, Louisiana, for Musculoskeletal Institute of Louisiana.
    Before BROWN, GASKINS and DREW, JJ.
   GASKINS, J.

11 These consolidated appeals involve a dispute between the same health care provider and two different employers concerning underpayment of workers’ compensation benefits. The health care provider asserts that it was reimbursed at a rate below the Louisiana workers’ compensation medical reimbursement schedule because of preferred provider organization (“PPO”) network agreements. The workers’ compensation judge (“WCJ”) ruled in favor of the health care provider in both cases; he also awarded penalties and attorney fees against the employers. The employer in No. 45,629-WCA appealed. The health care provider appealed in both cases, contending that the attorney fees awarded by the WCJ were abusively low; it also answered the appeal in No. 45,629-WCA, seeking additional attorney fees for defending the judgment in that case. For the reasons set forth below, we affirm the judgment in No. 45,628-WCA. As to the judgment in No. 45,629-WCA, we affirm the WCJ’s ruling on the merits; however, we reverse the portion of the judgment awarding penalties and attorney fees.

FACTS

Musculoskeletal Institute of Louisiana, A.P.M.C. (“Musculoskeletal”), is a group of physicians who specialize in the areas of orthopedics, neurosurgery and pain management. It rendered necessary and reasonable medical treatment, which was approved by their employers, to two employees who were injured in the course and scope of their respective employments. Al Pertuz (No. 45,628-WCA) was an employee of McDonald’s Corporation who was injured in December 2006. Carl Peacock (No. 45,629-WCA) was an employee of Rollins, Inc.; he was injured in 12September 2005. Both employers were self-insured for workers’ compensation and used a third-party administrator, Gallagher Bassett, Inc., to administer the workers’ compensation claims. In both cases, Musculoskeletal was reimbursed at a rate below the reimbursement schedule. The charges were first reduced to the allowed amount under the reimbursement schedule, then reduced another 10 percent through the use of a PPO contract that Musculoskeletal had had with First Health Group Corporation.

In August 2008, Musculoskeletal filed disputed claims for compensation -with the Office of Workers’ Compensation (“OWC”) in both cases. It asserted underpayment/late payment of medical bills and sought penalties and attorney fees for arbitrary and capricious handling of the claim. McDonald’s filed an answer and several exceptions (including one to subject matter jurisdiction); it also asserted affirmative defenses. Rollins also filed an answer and several exceptions. In February 2009, Rollins’ exceptions of no cause of action and prescription were denied.

The two cases were tried together in September 2009. Testimony was given by Lee McClendon, the former chief executive officer of Musculoskeletal, as to the company’s billing procedures for patients. He explained the difference in the handling of workers’ compensation patients and regular group health patients. In particular, he addressed the complexity of the bureaucratic procedures for obtaining approval to treat workers’ compensation patients. He stated that while a regular group health patient presents an identification card, Musculoskeletal has never received |ssuch a card in any workers’ compensation setting. Additionally, he testified that they have never received a written notice in a workers’ compensation setting prior to treating an injured worker stating that their charges will be discounted through some kind of network. According to McClendon, Musculoskeletal’s charges are above the fee schedule.

McClendon also testified that Musculo-skeletal had a contract with First Health PPO but that it was cancelled several years ago; First Health wanted to pay a reimbursement that was inadequate given the workload. However, Musculoskeletal still receives payments reflecting that the payor had applied discounts pursuant to the First Health PPO. He admitted that at one time Musculoskeletal had entered into an agreement with Willis-Knighton physician hospital organization (“PHO”), that Willis-Knighton PHO contracted with First Health, and that Musculoskeletal was bound to the terms of the PHO. However, he also testified that when Musculoskeletal entered into a direct contract with First Health in 2002, it replaced Musculoskele-tal’s participation in the contract that First Health had with the Willis-Knighton PHO.

Among other evidence admitted were deposition excerpts from Emil Bravo of Gallagher Bassett, the third-party administrator for both employers. He testified that ID cards were not issued for workers’ compensation; also, they did not issue any written notice containing the PPO networks on it to the providers in lieu of a card.

On December 8, 2009, the WCJ signed written judgments with reasons in which he ruled in favor of Musculoskeletal in both cases. The |4WCJ found that Muscu-loskeletal’s claims against the employers were based solely on its obligation to Mus-culoskeletal under the Louisiana Workers’ Compensation Act (“LWCA”). Under La. R.S. 23:1208, the employer was required to reimburse Musculoskeletal the lesser of its billed charges or the amount set forth in the reimbursement schedule. However, Musculoskeletal’s charges were improperly reduced a second time through the use of the PPO contract that Musculoskeletal had with Health Group Corporation and that this discounting was in violation of La. R.S. 28:1033. The WCJ further found that the employers failed to provide the statutorily required notice under La. R.S. 40:2203.1 (the Louisiana Preferred Provider Organization Act or PPOA) to Musculo-skeletal and that failure made their use of a PPO contract discount that Musculoskel-etal had entered into with First Health unenforceable by the employers.

In the Pertuz case, the WCJ awarded reimbursement of the underpaid charges in the amount of $40.60, with legal interest from the date the underpayments were due. Concluding that McDonald’s failed to make an adequate and reasonable investigation of Musculoskeletal’s disputed claim for compensation benefits, the WCJ awarded a statutory penalty of $2,000 and attorney fees of $1,500. Likewise, in the Peacock case, the WCJ awarded $31.60 in underpaid charges, with legal interest from the date the underpayments were due, as well as a statutory penalty of $2,000 and attorney fees of $1,500 against Rollins. Costs were assessed against the employers.

| Jn No. 45,628-WCA, McDonald’s did not appeal the WCJ’s ruling. However, Musculoskeletal appealed, asserting that the award of attorney fees was abusively low.

In No. 45,629-WCA, Rollins appealed suspensively from the WCJ’s ruling. Mus-culoskeletal appealed devolutively, contending that the attorney fees awarded by the WCJ were abusively low. Additionally, Musculoskeletal answered the appeal, seeking additional attorney fees for defending the judgment against Rollins’ appeal.

VALIDITY OF PPO DISCOUNT

AGREEMENTS

Rollins argues that the WCJ incorrectly held that the LWCA does not allow contracting or discounting below the reimbursement schedule. Since various statutes provide for the maximum reimbursement, it contends that it must be permissible for the parties to agree to a lesser reimbursement rate. Musculoskel-etal, on the other hand, maintains that the PPO discounts taken by Rollins were not authorized under and/or were expressly prohibited by the LWCA.

Statutory law

La. R.S. 23:1038 provides:

No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.

La. R.S. 23:1034.2 states, in relevant part:

(D) Fees in excess of the reimbursement schedule shall not be recoverable against the employee, employer, or workers’ compensation insurer.
(E) Nothing in this Section shall prevent a health care provider from charging a fee for such care, services, treatment, drugs, or supplies |fithat is less than the reimbursement established by the reimbursement schedule.

La. R.S. 23:1203(B) states:

The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers’ compensation administration utilization review rules.

LAC 40:I.5101(B) provides:

The law provides that an employer or compensation insurer owes to an injured worker one hundred percent (100%) of the medical fees incurred in the treatment of work-related injuries or occupational diseases (hereinafter referred to as “illness(es)”).

Jurisprudence

While the issue presented in the instant case is res nova in this circuit, other appellate courts in this state have already been confronted with it. In particular, our brethren of the third circuit have grappled in several cases with the application of PPO discounts in workers’ compensation settings. Their efforts have culminated in the recent case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 2010-86 (La.App. 3d Cir.7/28/10), 2010 WL 3026527, which addressed many of the same assignments of error presented in the instant case.

In Payless Shoesource, supra, the third circuit also was called upon to determine whether PPO discounts were authorized by the LWCA. There the WCJ had concluded that they were not; the appellate court agreed. It found that sections such as La. R.S. 23:1033 and 23:1203(B), as well as the 17LWCA as a whole, prohibited any contracts that would operate to relieve an employer of liability created by the LWCA. In so concluding, the court stated:

The LWCA is highly regulated.... Almost every conceivable scenario is addressed in the scheme of the LWCA. If the Legislature intended for PPO contracts to fall into the scheme of workers’ compensation, it would have addressed them in the Act. Instead, the Act specifically prohibits manipulation of its mandatory provisions. The Employers’ attempt to do so through PPO contracts, is, therefore, impermissible.

The court went on to further find that the employers’ use of the PPO contracts violated the social legislative purpose of the LWCA:

Not only do the PPO contracts purport to limit the employer’s liability for medical care, but they also threaten the foundation of the workers’ compensation system-namely, providing quality medical care to injured workers. When medical providers are forced to accept less reimbursement for the same quality of care they provide to paying patients, it is likely that they will be reluctant to participate in the workers’ compensation program. That reluctance will then lead to a fewer number of providers accepting workers’ compensation patients, and consequently, substandard care. We cannot allow the workers’ compensation system to be compromised in such a way.

We concur with the third circuit’s conclusion that the employer’s use of the PPO contracts to additionally lower the reimbursement violates the spirit and intent of the LWCA. As to Rollins’ argument that the statutory language setting a maximum rate of reimbursement suggests that a lesser rate is permissible, we note that Musculoskeletal did not charge rates less than those set forth in the reimbursement schedule.

We find no error in the ruling of the WCJ that application of the PPO contracts violated La. R.S. 23:1033 and 23:1203.

J^NOTICE UNDER

LA. R.S. 40:2203.1

Rollins also contends that the WCJ erred in finding that it failed to provide notice under La. R.S. 40:2203.1 of the PPOA for several reasons. First, it claims that the WCJ lacked subject matter jurisdiction to hear the notice argument. Second, Rollins asserts that the notice requirement was inapplicable to it.

Subject matter jurisdiction

The instant suit involves a health care provider seeking proper reimbursement for services rendered to an injured employee when the employer has allegedly underpaid for those services. Such a matter is properly before the OWC. Beutler England Chiropractic Clinic v. Mermentau Rice, Inc., 2005-942 (La.App. 3d Cir.5/31/06), 931 So.2d 553. In response, the employer raised a defense involving a PPO contract. In litigating the employer’s asserted defense, the health care provider asserted noncompliance with a statute governing all PPO agreements in this state. To find merit in this assignment of error, we would have to find that the employer may successfully defeat subject matter jurisdiction in an action properly brought before the OWC through its choice of defenses. That we cannot do. The main demand controls subject matter jurisdiction. See Dixon v. Zemurray, 227 La. 457, 79 So.2d 738 (1955); Succession of Solari, 218 La. 671, 50 So.2d 801 (1951).

| ¡yApplication of notice provision

In pertinent part, La. R.S. 40:2203.1 states:

A. Except as otherwise provided in this Subsection, the requirements of this Section shall apply to all preferred provider organization agreements that are applicable to medical services rendered in this state and to group purchasers as defined in this Part. The provisions of this Section shall not apply to a group purchaser when providing health benefits through its own network or direct provider agreements or to such agreements of a group purchaser.
B. A preferred provider organization’s alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser’s contractual agreement or agreements and presented to the participating provider when medical care is provided. When more than one preferred provider organization is shown on the benefit card of a group purchaser or other entity, the applicable contractual agreement that shall be binding on a provider shall be determined as follows:
(5) When no benefit card is issued or utilized by a group purchaser or other entity, written notification shall be required of any entity accessing an existing group purchaser’s contractual agreement or agreements at least thirty days prior to accessing services through a participating provider under such agreement or agreements. [Emphasis added.]

In Payless Shoesource, supra, the third circuit addressed the identical notice issue. It held that the specific notice provisions of La. R.S. 40:2203.1 apply to workers’ compensation patients in a PPO network. In support of this decision, it cited Gunderson v. F.A. Richard & Associates, 2009-1498 (La.App. 3d Cir.6/30/10), 2010 WL 2594287. In the Gunderson case, a PPO claimed that the notice provisions of La. R.S. 40:2203.1 did not apply to workers’ compensation patients, asserting that the legislative history and the language of the act show that the notice provisions apply only to group |10health plan participants. However, the court held that “when La. R.S. 40:2203.1 states that it applies to ‘all preferred provider organization agreements that are applicable to medical services rendered in this state and to group purchasers as defined in this Part,’ it in fact, means all such agreements.”

It is undisputed that there was no benefit card in the instant case. Nor — according to the testimony of a representative of Rollins’ third-party administrator — was 30-days’ written notice given as required by La. R.S. 40:2203.1(B)(5). Like the third circuit in Payless Shoesource, supra, we hold that the specific notice provision of La. R.S. 40:2203.1 applies to workers’ compensation patients in a PPO network.

Accordingly, we find no error in the ruling of the WCJ that Rollins failed to provide the statutorily required notice under La. R.S. 40:2203.1 to Musculoskeletal and that that failure caused its use of the PPO contract discount to be unenforceable even if the PPO contract discount had been permissible.

PENALTIES AND

ATTORNEY FEES

Prescription

Rollins contends that the claims for penalties and attorney fees had prescribed pursuant to the one-year prescriptive period set forth for delictual actions in La. C.C. art. 3492. In support of this argument, it cites Craig v. Bantek West, Inc., 2003-2757 (La.App. 1st Cir.9/17/04), 885 So.2d 1234, writ denied, 2004-2995 (La.3/18/05), 896 So.2d 1004, and Seidl v. Zatarain’s, Inc., 05-780 (La.App. 5th Cir.3/28/06), 927 So.2d 557. |n However, these cases are readily distinguishable from the instant case because they do not involve statutory penalties and attorney fees owed to a health care provider under La. R.S. 23:1201(F)(4). Instead, they address benefits owed to claimants. Payless Shoesource, supra.

We look to La. R.S. 23:1201(F), which sets forth in relevant part:

(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.

According to the statute, the health care provider’s claims for penalties and attorney fees are separate and distinct from those of the injured employee and do not accrue until the health care provider’s underlying claim for payment is adjudicated. Because the health care provider cannot seek an award of statutory penalties and attorney fees from a defendant employer/insurer until the health care provider prevails on his claim for payment of his fee, that cause of action has not yet accrued at the time of trial. Payless Shoe-source, supra. Furthermore, when claims for penalties and attorney fees accompany the claims for benefits, if the underlying claims have not prescribed, neither have the claims for attorney fees and penalties. Rave v. Wampold Companies, 2006-978 (La.App. 3d Cir.12/6/06), 944 So.2d 847. Rollins does not allege that the underlying claim for reimbursement due to underpayment had prescribed. Accordingly, we find that Musculoskeletal’s claims for penalties and attorney fees had not prescribed.

11^Reasonable controversion of claims of underpayment

Next Rollins argues that the award of penalties and attorney fees should be reversed because it reasonably controverted the claims of underpayment at issue here. We find merit in this assignment of error.

In pertinent part, La. R.S. 23:1201 states as follows:

F. Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty ... together with reasonable attorney fees for each disputed claim.... Penalties shall be assessed in the following manner:
(2) This Subsection shall not apply if the claim is reasonably controverted....

In the Payless Shoesource case, the third circuit reversed the award of penalties and attorney fees because the existence of the PPO contracts, though found to be invalid, provided an articulable basis for the employers to pay the additionally discounted amounts, at the time the employers took action. Accordingly, the court found that the matter had been reasonably controverted. The issue presented herein concerning the application of PPO contracts to workers’ compensation underpayment claims are res nova in this circuit. It is a novel issue, and there are compelling arguments to be made on each side. We find that Rollins reasonably controverted Mus-culoskeletal’s claim in the instant case. Accordingly, we reverse the award of penalties and attorney fees made in No. 45,-629.

In No. 45,628-WCA, Musculoskele-tal appealed seeking an increase in the award of attorney fees made in its favor. McDonald neither appealed nor answered the appeal; therefore, we can grant no relief from the | ^judgment rendered against it. However, we decline to award additional attorney fees.

CONCLUSION

The judgment in No. 45,628-WCA is affirmed.

As to the judgment in No. 45,629-WCA, we affirm the WCJ’s ruling on the merits; however, the portion of the judgment awarding penalties and attorney fees is reversed.

Costs of these appeals are assessed equally between Musculoskeletal and Rollins.

JUDGMENT IN No. 45,628-WCA AFFIRMED.

JUDGMENT IN No. 45,629-WCA AFFIRMED ON THE MERITS; AWARD OF PENALTIES AND ATTORNEY FEES REVERSED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . When an appellee fails to appeal from a judgment or fails to answer the appellant’s appeal, those portions of the judgment adverse to appellee become final and cannot be considered on appeal. Mertens v. Mertens, 308 So.2d 506 (La.App. 3d Cir.1975), writ denied, 313 So.2d240 (La.1975).


text:
    Latonya HARRIS and Shatara Harris, Plaintiffs-Appellants v. Latiffany Latrice DUNN, U.S. Agencies Insurance Company and State Farm Insurance Company, Defendants-Appellees.
    No. 45,619-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Smith & Nwokorie by Brian G. Smith, for Appellants.
    Kitchens, Benton, Kitchens & Black by Graydon K. Kitchens, III, Minden, Louisiana, Hudson, Potts & Bernstein by Mark J. Neal, Monroe, Louisiana, for Appellees.
    Before STEWART, GASKINS and CARAWAY, JJ.
   STEWART, J.

h The plaintiff, Shatara Harris (“Sha-tara”), filed suit for damages after she was struck by a vehicle driven by the defendant, Latiffany Latriee Dunn (“Latiffany”). Shatara sued Latiffany and her liability insurer, USAgencies Casualty Insurance Company, Inc. (“USAgencies”), as well as State Farm Mutual Automobile Insurance Company (“State Farm”), the provider of uninsured / underinsured motorist (“UM”) coverage for the driver of the vehicle in which Shatara was a passenger. Seeking to deny coverage, both USAgencies and State Farm filed motions for summary judgment on the grounds that Latiffany intentionally struck the vehicle and Sha-tara. The trial court granted both motions. Shatara now appeals the dismissal of her claims as to these two defendants. Because we find that a genuine issue of material fact exists as to whether Latiffa-ny acted intentionally, we reverse the summary judgments and remand for further proceedings.

FACTS

The incident occurred on August 2, 2005, at about 9:30 p.m., in Homer, Louisiana. Latiffany was in her vehicle at the intersection of Pearl and Washington Streets when a vehicle driven by Latonya Harris pulled up beside Latiffany’s vehicle. Sha-tara, who is Latonya’s sister and was a passenger in Latonya’s vehicle, exited and approached Latiffany’s vehicle. The two women exchanged words, and Shatara may have either swung at Latiffany or hit her. As Shatara walked back to Latonya’s vehicle, Latiffany drove her car forward, made a U-turn, and drove back in the same direction. Latiffany’s vehicle hit the front passenger door of Latonya’s vehicle. Sha-tara, who was behind the passenger door while in the process of entering 12the vehicle, was injured. Latiffany did not stop. Rather, she drove to the Claiborne Parish Sheriffs office where she reported the incident.

In the meantime, Sgt. Jimmy Hamilton of the Homer Police Department received a call about the incident and went to the scene to investigate. Afterward, he met Latiffany at the sheriffs station, transported her to the Homer police station, conducted an interview, and then arrested her for the charge of aggravated second degree battery. On March 8, 2006, Latiffany pled guilty to simple battery.

On August 1, 2006, Shatara and Latonya filed suit for damages against Latiffany and her insurer, USAgencies, as well as State Farm, Latonya’s UM insurer.

On September 22, 2008, USAgencies filed a motion for summary judgment on the grounds that its policy excluded coverage for intentional acts and for damage caused while the insured was engaged in the commission of a crime. USAgencies argued that Latiffany intentionally struck Latonya’s vehicle and that Latiffany’s admission of guilt satisfied the policy exclusion.

On November 25, 2008, State Farm filed its own motion for summary judgment. State Farm asserted that because its UM coverage is triggered by an “accident,” Latiffany’s intentional and criminal act did not trigger UM coverage for its insured and her passenger.

Both USAgencies and State Farm relied on the same documentation in support of their motions for summary judgment. This included the depositions of Sgt. Hamilton, Latonya, and Shatara; a certified copy of the |scourt minutes pertaining to Latiffany’s guilty plea to simple battery; and their respective policies. In opposing summary judgment, the plaintiffs offered their own affidavits in which both denied speaking with Hamilton at the accident scene. At the summary judgment hearing, counsel for the plaintiffs sought to introduce a recording of Sgt. Hamilton’s interview with Latiffany the night of the incident. The trial court sustained an objection to the introduction of the recorded statement on the basis that it was not permissible evidence for consideration on summary judgment.

After hearing arguments, the trial court granted both motions for summary judgment. As to USAgencies’ motion, the trial court concluded that Latiffany’s guilty plea satisfied the specific exclusion for the commission of a crime under the policy. As to State Farm’s motion, the trial court was persuaded that “accident” as used in the policy refers to some unintentional event. Judgments dismissing the claims of Latonya and Shatara against USAgencies and State Farm were signed on February 19, 2009.

Only Shatara has appealed. She asserts that the trial court erred in refusing to allow the introduction of Latiffany’s recorded statement and in granting the summary judgments on the grounds that Latif-fany’s actions were intentional and thus excluded from coverage.

DISCUSSION

Latijfany’s Recorded Statement

Shatara argues that the trial court erred in refusing to consider the recorded statement of Sgt. Hamilton questioning Latiffa-ny. She contends |4that the statement was obtained through discovery, was on file in the record, and thus properly before the court for consideration even though not attached to any affidavit.

To preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the ruling and state the reasons for the objection. Robinson v. Healthworks Intern., L.L.C., 36,802 (La.App.2d Cir.1/29/03), 837 So.2d 714, writ not considered, 2003-0965 (La.5/16/03), 843 So.2d 1120; Currie v. Myers, 32,633 (La.App.2d Cir.1/26/00), 750 So.2d 388, writ not considered, 2000-0665 (La.3/17/00), 756 So.2d 316. The record does not show that plaintiffs counsel objected to the trial court’s ruling so as to preserve the issue for appellate review.

Moreover, the recorded statement was not competent summary judgment evidence. Summary judgment evidence includes the pleadings, depositions, answers to interrogatories, and affidavits. La. C.C.P. art. 966(B). Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached to the affidavit or served with it. La. C.C.P. art. 967(A). Unsworn or unverified documents are not self-proving and will not be considered on summary judgment. Marino v. Parish of St. Charles, 09-197 (La.App. 5th Cir.10/27/09), 27 So.3d 926. A document that is not an affidavit, or is not certified and not attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether there remains a genuine issue of material fact. Boland v. West Feliciana Parish Police Jury, 2003-1297 (La.App. 1st Cir.6/25/04), 878 So.2d 808, writ denied, 2004-2286 (La.11/24/04), 888 So.2d 231.

The recorded statement offered by plaintiffs counsel at the summary judgment hearing met none of the requirements for consideration as competent summary judgment evidence. Therefore, the trial court did not err in refusing to consider the recorded statement.

Review of Summary Judgments

A summary judgment is subject to a de novo review on appeal under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Canterberry v. Chamblee, 41,940 (La.App.2d Cir.2/28/07), 953 So.2d 900. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

A summary judgment declaring a lack of coverage under an insurance policy is not appropriate unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts, under which coverage could be provided. Canterberry, supra, citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Insurers are free to limit coverage in any manner that does not conflict with statutory provisions or public policy. Id. However, exclusionary provisions are to be strictly construed against the insurer with any ambiguity construed in favor of the insured. Canterberry, supra; Herzog Contracting Corp. v. Oliver, | fi 40,342 (La.App.2d Cir.12/16/05), 918 So.2d 516, writ denied, 2006-0154 (La.4/24/06), 926 So.2d 542. The insurer has the burden of proving the applicability of a coverage exclusion within a policy. Blackburn v. National Union Fire Ins. Co. of Pittsburgh, 2000-2668 (La.4/3/01), 784 So.2d 637.

Liability coverage for Latiffany is set forth in Part A of the USAgencies policy. To deny coverage, USAgencies relies on the “Exclusions for Part A,” which states in relevant part:

Coverage for Your Liability to Others does not apply to any of the following: 2. Bodily injury or property damage caused by an intentional act by or at the direction of any covered person or a named excluded operator.
• • •
12. Bodily injury or property damage caused by any covered person while engaged in the commission of a crime.

USAgencies argues that Latiffany committed a crime as established by her guilty plea and that she intentionally struck Latonya’s vehicle and injured Shatara.

We will first address the exclusion for injury or damage caused by a covered person while engaged in the commission of a crime. The USAgencies policy defines the word “crime” as meaning “any felony or any action to flee from, evade or avoid arrest or detection by the police or other law enforcement agency.” Latiffany was not fleeing, evading, or avoiding arrest when the incident occurred. Thus, this portion of the definition is not applicable. USAgencies relies on the court minutes documenting Latiffany’s guilty plea to simple battery as evidence that she committed a |7crime to satisfy the policy exclusion. However, simple battery is a misdemeanor offense and does not fit the definition of a crime under USAgencies policy. Because the guilty plea does not show that Latiffa-ny was engaged in a “crime” as defined by USAgencies’ policy, USAgencies is not entitled to summary judgment on the basis of its crime exclusion.

USAgencies also relies on an intentional acts exclusion. State Farm likewise relies on the alleged intentional nature of Latiffany’s actions in arguing that its UM coverage does not apply. The State Farm policy’s UM coverage provision states:

We will pay nonpunitive damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

State Farm argues that Shatara’s alleged injuries resulted from an intentional criminal act, not an accident. As such, its UM coverage does not apply to Shatara, a passenger in its insured’s vehicle.

The issue is whether Latiffany intended to hit either Latonya’s vehicle or Shatara. Both USAgencies and State Farm refer to Latiffany’s guilty plea as proof of her intent. A guilty plea is an admission against interest that is relevant to proving fault in a civil case. Shephard on Behalf of Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308; Hooper v. State Farm Mut. Auto. Ins. Co., 00-1509 (La.App. 5th Cir.1/23/01), 782 So.2d 1029. While a guilty plea is admissible, it is not conclusive evidence. American Medical Enterprises, Inc. v. Audubon Ins. Co., 2005-2006 (La.App. 1st Cir.6/8/07), 964 So.2d 1022, writ denied, 2007-1405 (La.10/26/07), 966 So.2d 575; Miles v. Louisiana Landscape Specialty, Inc., 97-118 (La.App. 5th Cir.6/30/97), 697 So.2d 348. Thus, while Latiffany’s guilty plea may be considered as evidence in determining her intent, it alone is not proof that she acted intentionally.

All the surrounding circumstances must be examined to determine a person’s intent at the time the alleged intentional act occurred. Poulan v. Hunter, 86,225 (La.App.2d Cir.11/6/02), 880 So.2d 1125. An intentional act is one where the actor either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening, or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Norwood v. VariVeckhoven, 34,891 (La.App.2d Cir.6/22/01), 792 So.2d 836, citing Pique v. Saia, 450 So.2d 654 (La.1984).

Summary judgment based on the determination of subjective factors such as intent, motive, good faith, knowledge, or malice is seldom appropriate as such determinations require credibility evaluations and the weighing of evidence. White v. Golden, 43,076 (La.App.2d Cir.4/30/08), 982 So.2d 234, citing Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42,072 (La.App.2d Cir.4/4/07), 954 So.2d 883, writ denied, 2007-1146 (La.9/14/07), 963 So.2d 1001. Moreover, the circumstantial evidence that is usually necessary to prove intent requires the trier of fact to choose from competing inferences, a task that is not appropriate in a summary judgment proceeding. Id. Summary judgment is appropriate only |flif there is no factual dispute as to intent. Norwood, supra. That is not the case here.

In his deposition, Sgt. Hamilton testified that he was the only officer to investigate the accident and prepare the 10-page accident report. Neither the report nor his interview with Latiffany was attached to his deposition or otherwise offered as evidence in a form appropriate for summary judgment. Based on the police investigation, Hamilton testified that Latonya was driving behind Latiffany and honking the horn at her. When Latiffany stopped at an intersection, Latonya pulled her vehicle in the middle of the street beside Latiffa-ny’s vehicle. Shatara exited to ask Latif-fany why she, allegedly, tried to run over her earlier the same day. A verbal altercation ensued during which Shatara swung at Latiffany and may have hit her. Latif-fany drove forward, made a U-turn, and then sideswiped Latonya’s car, possibly dragging Shatara, who was between the open car door and the interior of the vehicle. When Sgt. Hamilton arrived at the scene, he observed moderate “sideswipe” damage to the passenger side of Latonya’s vehicle. He recalled that Shatara was standing but appeared to be dirty and claimed to be injured. When questioned about his interview with Latiffany, Hamilton testified that she told him that she knew she had hit the car but did not know that she had hit Shatara. When asked if Latiffany admitted that she intended to hit the vehicle, Hamilton stated:

I would have to go back and listen to it again but I’m almost sure that she told me just what was in my report. That she did a U-turn and drove back towards Ms. Harris’s vehicle. That’s what she said. She drove back towards her vehicle. She said she was angry due, you know, to the young lady hitting her and she drove back towards their vehicle and struck it.

| mHamilton also explained that after Latif-fany hit the car she was afraid that if she stopped then the young women in Latonya’s vehicle would “jump on her.” So, she went straight to the sheriffs office. When asked whether either Shatara or Latonya said that Latiffany intentionally tried to hit them, Hamilton stated that he believed that they did but could not say for certain without looking at the witness statements in the criminal case file, which he did not have.

In her deposition, Shatara generally described the same events as related by Hamilton. However, she claimed that she was only talking to Latiffany, and she denied taking a swing at her or hitting her. Shatara stated that as she was getting back into Latonya’s vehicle, Latiffany “went and turned around and came back and I don’t know if she was trying to hit the vehicle or try [sic] to hit me. I don’t know.” She said that Latiffany hit the open door.

Latonya’s testimony was substantially the same as Shatara’s. Additionally, she stated that Latiffany had pulled away at a normal speed prior to making the U-turn and coming back in the same direction. When asked if it appeared that Latiffany hit her car on purpose, Shartara stated, “I don’t know if she did it on purpose or not. I don’t know.”

In their affidavits, both Latonya and Shatara denied speaking to Hamilton at the accident scene and claimed to have spoken with an officer named Donald Mallory. They denied that Shatara argued with Latiffany or swung at her. They stated that Latiffany turned her car around and came |nback and that the impact occurred when Shatara was inside the car with one leg out.

It is undisputed that the women stopped at the intersection, that Shatara exited Latonya’s vehicle and had some sort of discussion with Latiffany, that Latiffany pulled forward to turn her vehicle around, and that she then hit the passenger door of Latonya’s vehicle while Shatara was in the process of entering it. Latiffany then drove to the sheriffs office where she remained until Hamilton came for her. Neither Shatara nor Latonya said definitively that Latiffany intended to hit either the vehicle or Shatara. In their affidavits, both women denied speaking with Hamilton at the accident scene. Though Latiffa-ny pled guilty to simple battery, her plea alone does not suffice on summary judgment to establish her intent. Finding an intentional act would require us to make credibility determinations and weigh the conflicting evidence concerning whether Sgt. Hamilton, whose deposition suggests that Latiffany acted intentionally but whose recall on that very issue appears questionable, interviewed Shatara and Latonya as he claimed or whether they spoke to another officer as they asserted in their affidavits. Though Hamilton believed that Latiffany acted intentionally, he could not say for certain without looking back at the witness statements, which he did not have, or listening to his digitally recorded interview with Latiffany, which was not offered as evidence in a proper form. At most, Hamilton’s deposition shows that Latiffany admitted striking Latonya’s vehicle, which is undisputed, but not that she admitted doing so intentionally.

112While it certainly appears that Latiffa-ny may have acted recklessly and carelessly, we cannot say as a matter of fact that the record shows she intended to hit either Latonya’s vehicle or Shatara with her vehicle. To affirm the summary judgments, we would have to accept the inferences drawn by USAgencies and State Farm from the circumstances surrounding the incident. Other inferences are plausible. For example, Latiffany may have simply acted recklessly by driving too closely to Latonya’s car (which the record suggests was in the middle of the road) after making the U-turn, and then hitting the open door by accident as Shatara was entering the vehicle. Even though Latiffany pled guilty to simple battery, we find that the record shows that a genuine issue of material fact exists as to whether Latiffany’s actions constituted an intentional act. As such, summary judgment in favor of USA-gencies is not warranted.

This issue of fact also means that summary judgment in favor of State Farm is also not warranted. We make no ruling on State Farm’s argument that its UM coverage is not triggered when an intentional act, rather than an “accident,” causes damage or injury to persons entitled to UM coverage under its policy.

CONCLUSION

For the reasons explained, the trial court’s judgments in favor of USAgencies and State Farm dismissing the claims of the plaintiff, Shatara Harris, are reversed and vacated. Costs are to be divided equally between USAgencies and State Farm. This matter is remanded for further proceedings.

REVERSED, VACATED, and REMANDED.