author: DREW, J.

text:
    Darlene JOHNSON, Plaintiff-Appellant v. SUPER 8 LODGE-SHREVEPORT d/b/a Super 8 Lodge of Shreveport Limited Partnership, et al., Defendant-Appellee.
    No. 47,081-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 2012.

      Barry A. Roach, Larry A. Roach, Inc., Lake Charles, LA, for Appellant.
    Mayer, Smith & Roberts, LLP, Shreveport, LA, by Steven Eric Soileau, for Ap-pellees.
    Before BROWN, DREW and LOLLEY, JJ.
   DREW, J.

| jDarlene Johnson appeals a judgment granting Super 8 Lodge-Shreveport’s motion for summary judgment and dismissing her petition.

We affirm.

FACTS

In September of 2008, Darlene, her boyfriend, and her disabled father were guests at the Super 8 Lodge in Shreveport after having evacuated Lake Charles because of a hurricane.

The Super 8 Lodge offered two types of suites: a family suite and a Jacuzzi suite. The hotel apparently had six suites at the time, two of which were Jacuzzi suites. The family suites contained a king-size bed and a queen-size bed. The Jacuzzi suites contained a king-size bed and a Jacuzzi. The television in the Jacuzzi suites faced a small sofa and a Jacuzzi that was behind the sofa. The television was placed on a shelf in an entertainment center that was positioned at a 90° angle to the bed. In contrast, the entertainment centers in the family suites faced the king-size bed, but the televisions were apparently on a swivel.

Darlene, her father, and her boyfriend stayed in a Jacuzzi suite. Because she was unable to view the television from the bed, Darlene had asked several times that the entertainment center be moved, and the hotel’s maintenance man, Charles Johnson, complied with her requests. On the morning of September 12, Darlene attempted to turn the television on her own so that her father could see it from a hospital bed that was apparently next to the king-size bed. The television fell from the shelf and allegedly hit her in the face and knocked her to the ground.

12Parlene filed suit against Super 8 Lodge-Shreveport. She amended her petition to add Merryton L.L.C. d/b/a Super 8 Lodge Shreveport as a defendant.

Merryton filed a motion for summary judgment in which it contended that no duty to Johnson was breached, the television did not present an unreasonable risk of harm, and the accident was not caused by the conduct of defendants. In support of its motion, Merryton submitted photos of the television in its cabinet, an excerpt from Darlene’s deposition, an EMT report, and Darlene’s medical records from her physician.

Darlene opposed the motion for summary judgment and filed a cross motion for summary judgment. She asserted that Merryton had breached the duty of care owed to her by allowing the television to rest unsecured in the cabinet, which created an unreasonable risk of harm to her. Darlene attached excerpts from the depositions of hotel employees Charles Johnson, Rita Harris, and Angie Ware to her memorandum in opposition to Merryton’s motion and in support of her own motion.

Merryton filed a reply memorandum in support of its motion for summary judgment and attached an excerpt from the deposition of Charles Johnson as well as photos of the suite.

The trial court granted Merryton’s motion for summary judgment and denied Darlene’s cross motion for summary judgment. The court noted that although Darlene alleged that the television presented an unreasonable risk of harm due to improper mounting to the cabinet, Darlene had stated that she did not know how it fell out of the cabinet. The court also noted that Rwhile Darlene argued that the placement of the television created an unreasonable risk of harm because it was foreseeable that guests would turn the television so they could watch it from bed, the couch was the intended location from which the television was to be viewed. The court further noted that while Darlene argued that other suites had different configurations and the Jacuzzi suite lacked a pull-out shelf with swivels for the television, the fact that an alternative existed did not render the hotel’s actions unreasonable, and the hotel had fulfilled any duty to provide higher than ordinary care when the hotel staff moved the television for Darlene on prior occasions.

The trial court concluded that because there was no evidence of a defect which presented an unreasonable risk of harm, Darlene could not prove the elements of her case by a preponderance of the evidence. The trial court further concluded that there was no evidence to suggest that a duty had been breached or that the accident was caused by the hotel.

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.2/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the mov-ant is entitled to judgment as a matter of law. Id.

14A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof on a motion for summary judgment is set forth in La. C.C.P. art. 966(C)(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, 2006-1181 (La.3/9/07), 951 So.2d 1058. At that point, the party who bears the burden of persuasion at trial must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, supra.

| ¡^Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507 (La.12/8/00), 775 So.2d 1049.

A hotel owes a duty to its patrons to exercise reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition. Spencer v. Red River Lodging, 37,980 (La.App.2d Cir.2/5/04), 865 So.2d 337. Although the keepers of inns, lodging houses, or restaurants are not the insurers of the safety of them guests, they are under an obligation to exercise, at least, ordinary or reasonable care to keep them from injury. Id.

An individual is responsible for the damage caused by things in his custody. La. C.C. art. 2317. The owner or custodian of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that he failed to exercise such reasonable care. La. C.C. art. 2317.1. Thus, to recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.7/14/04), 878 So.2d 889, writ denied, 2004-2310 (La.1/14/05), 889 So.2d 266.

In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Reed v. Wal-Mart Stores, Inc., 1997-1174 (La.3/4/98), 708 So.2d 362. In a nutshell, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Id.

Darlene concedes that a television sitting on a cabinet at waist level would not be a defect presenting an unreasonable risk of harm. However, she complains that a genuine issue of material fact exists concerning whether there was a defect presenting an unreasonable risk of harm when the suite was configured in such a manner that the television could not be viewed by guests while in the bed and because Merryton should have properly secured the television since it knew or should have known that guests would turn and adjust the television in order to view it from the bed. We disagree.

The television at issue was on a flat shelf in an entertainment center. Darlene’s account of the mishap varied somewhat. She testified in her deposition that she did not know how the television fell when she pivoted it. She asserted that the television hit her in the head because she was bending down when she attempted to pivot the television. Darlene was a little more certain of how the television fell when she spoke to EMTs following the 17accident as she told them that she was trying to move the television when she lost her balance and the television fell on her. Dr. W.C. Nabours noted that Darlene told him on September 16, 2008, that she had a loss of consciousness and could not describe what had happened. Dr. Nabours believed that she had lost consciousness before she fell and the television hit her.

The hotel was well aware that guests were unable to see the television from the bed in the Jacuzzi suites. Charles Johnson testified that if someone in that room wanted to watch television from the bed, Rita would tell him to turn the entire entertainment center for them. This had happened on prior occasions, and it was not an unusual request. However, he did not have to turn the cabinet for the majority of the guests staying in that suite because they watched television from the sofa. Charles Johnson recalled that he turned the entertainment center for Darlene several times, and then had to return the entertainment center to its original spot when Darlene wanted to watch television from the sofa.

Charles Johnson stated that none of the suites had televisions that were bolted down. According to him, an unbolted television would not fall out of that type of entertainment center.

Angie Ware testified that she had never heard of a television falling out of an entertainment center at the hotel. She denied telling Darlene or any of her family members that it had happened before.

The hotel intended for guests to watch the television from the sofa. If the guest wanted to watch the television from the bed, the hotel would |sturn the cabinet to accommodate the guest’s preferences, as it had done for Darlene prior to the accident.

Based upon the record presented, we conclude there was no genuine issue of material fact concerning whether the configuration of the suite or the lack of a securing or turning mechanism for the television presented an unreasonable risk of harm. Accordingly, the motion for summary judgment was properly granted.

DECREE

At appellant’s cost, the judgment is AFFIRMED.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    John MORGAN v. BARBER BROTHERS CONTRACTING.
    No. 2011 CA 1164.
    Court of Appeal of Louisiana, First Circuit.
    April 25, 2012.

      Michael L. Hebert, Baton Rouge, LA, for Plaintiff-Appellant, John Morgan.
    David T. Butler, Jr., Baton Rouge, LA, for Defendant-Appellee, Barber Brothers Contracting.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

| j,The parties in this workers’ compensation action have previously litigated the compensability of the claim as well as the nature and extent of disability. John Morgan, the 41-year old claimant herein, has filed the current dispute with the Office of Workers’ Compensation (“OWC”) seeking payment for dental treatment with Dr. Andre Bruni, sleep apnea testing, a prescription for Cialis, and testosterone replacement therapy, together with penalties and attorney fees. For the following reasons, we hereby affirm.

FACTS

Mr. Morgan injured his neck on June 9, 1997, while working for defendant Barber Brothers as a heavy equipment operator. As a result of this accident, Mr. Morgan subsequently underwent a cervical fusion. Mr. Morgan returned to work approximately one year later; however, increased neck pain producing excruciating headaches forced Mr. Morgan to stop work again. Dr. John Clark, has primarily treated Mr. Morgan since his disabling pain began. Dr. Clark is also defendant Barber Brothers’ choice for a pain management physician.

Presently, Mr. Morgan claims that his 14-year usage of narcotic pain medication has decreased his ability to produce saliva and resulted in extensive and irreparable dental decay. Dr. Clark referred Mr. Morgan to Andre Bruni, DDS, for evaluation of his dental problems. Dr. Bruni related Mr. Morgan’s dental condition to his continued and long-term use of narcotic pain medication. Dr. Bruni also proposed a treatment plan to extract all of Mr. Morgan’s teeth with delivery of upper and lower dentures at a cost of $12,746.00. Barber Brothers has refused to authorize Dr. Bruni to treat Mr. Morgan.

In response to Mr. Morgan’s complaints of difficulty sleeping, chronic neck pain and headaches, Dr. Clark recommended that Mr. Morgan undergo a sleep apnea test to make certain that his narcotic pain medications were not making these complaints worse. Additionally, Dr. Clark stated that narcotic pain medications increase liver function and metabolize not only pain medications but testosterone as well. To combat problems | ¡¡associated with low testosterone levels, i.e., erectile dysfunction, low libido, lethargy, fatigue and depression, Dr. Clark prescribed a combination of Cialis and testosterone replacement therapy. Again, Barber Brothers has refused to authorize this treatment.

PROCEDURAL HISTORY

Mr. Morgan filed a Disputed Claim for Compensation on October 6, 2010, seeking dental treatment with Dr. Andre Bruni, sleep apnea testing, a prescription for Cial-is, and testosterone replacement therapy, together with penalties and attorney fees. Barber Brothers, through its third-party administrator, sought a second opinion with Dr. Anthony Ioppollo. Dr. Ioppollo was extremely skeptical that Mr. Morgan’s dental problems were related to his use of narcotic pain medication, and opined that sleep apnea testing was not warranted. Additionally, Dr. Ioppollo stated that he did not believe Mr. Morgan’s erectile dysfunction and low testosterone were related to his work injury. Barber Brothers reconvened seeking an order from the court compelling Mr. Morgan to enter an inpatient pain treatment program as recommended by Dr. Clark. The matter proceeded to a trial on the merits before the workers’ compensation judge (“WCJ”) on March 10, 2011.

After reviewing the applicable law, the OWC record, the evidence, including the report of the court-appointed dentist, Dr. Eugene Graff, and the testimony of the witnesses at trial, the WCJ in a judgment dated April 19, 2011, determined that Barber Brothers approve and pay for Mr. Morgan’s tooth extraction and dentures as recommended by Dr. Andre Bruni in an amount not to exceed $7,000.00. The WCJ further ordered Mr. Morgan to submit to an in-patient pain treatment program as recommended by Dr. Clark within 90 days from the date of judgment. Mr. Morgan’s claims for sleep apnea testing, erectile dysfunction treatment (i.e., a Cialis prescription), and testosterone replacement therapy were denied as premature; however, Mr. Morgan was granted leave to reassert these claims following his completion of an in-patient pain |4treatment program. Finally, the WCJ denied Mr. Morgan’s claims for penalties and attorney fees. From this judgment, Mr. Morgan has appealed.

Limitation of the Charges for Tooth Extraction

The first issue raised by Mr. Morgan is that although the WCJ ordered Barber Brothers to “approve and pay for [Mr.] Morgan’s tooth extraction and dentures as recommended by Dr. Andre Bru-ni,” the WCJ arbitrarily limited the amount which could be charged to a maximum of $7,000.00. Mr. Morgan argues the WCJ erred, and asserts that all medical treatment rendered pursuant to the Louisiana Worker’s Compensation Act is governed by the medical fee reimbursement schedule set forth at htbp://www.laworks. net/Dovmloads/OWC/CPTMedReimbCodes 2000.pdf.

In response, Barber Brothers argues that medical expenses an employer is obligated to pay must be necessary and reasonable. Barber Brothers also states that the OWC is empowered through the WCJ to determine the reasonableness of the charges. In conclusion, Barber Brothers claims the WCJ rejected the estimate of Dr. Bruni, and found, based upon the opinion of Dr. Graff, that $7,000.00 was a reasonable cost for the dental treatment in question.

It is well settled that the law in effect at the time of the injury controls in workers’ compensation cases. Frith v. Riverwood, Inc., 2004-1086, p. 7 (La.1/19/05), 892 So.2d 7, 12. At the time of Mr. Morgan’s 1997 injury, the current law, La. R.S. 28:1034.2, authorizing the Director of the OWC to establish a reimbursement schedule for medical services, was in effect. Louisiana Revised Statutes 28:1034.2 provides in pertinent part:

§ 1034.2. Reimbursement schedule
A. The director of the office of workers’ compensation administration shall establish and promulgate a reimbursement schedule for drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal and due under the Workers’ Compensation Act and applicable to any person or corporation who renders such care, services, or | -Treatment or provides such drugs or supplies to any person covered by Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950.
B. The director shall adopt, in accordance with the Administrative Procedure Act, rules and regulations necessary to establish and implement a reimbursement schedule for such care, services, treatment, drugs, and supplies. [Footnote omitted.]
C. (1) The reimbursement schedule shall include charges limited to the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies... []
D. Fees in excess of the reimbursement schedule shall not be recoverable against the employee, employer, or workers’ compensation insurer.

Dental charges are not set forth in the medical fee reimbursement schedule established pursuant to La. R.S. 23:1034.2. At the time of Mr. Morgan’s 1997 injury, La. R.S. 23:1034.2(0(4) had not been enacted.

The WCJ was presented with a $12,746.00 treatment plan proposed by Dr. Bruni and Dr. Ioppollo’s opinion that Mr. Morgan’s current dental complaints were not related to Mr. Morgan’s use of narcotic pain medication. The WCJ sought the opinion of its own expert, Dr. Graff, who, declining to comment on the cause of Mr. Morgan’s dental complaints, estimated treatment to cost $6,461.00. Accordingly, the WCJ directed Barber Brothers to approve and pay for Mr. Morgan’s tooth extraction and dentures as recommended by Dr. Andre Bruni in an amount not to exceed $7,000.00. We find this sum to be reasonable and within the discretion afforded the WCJ.

Disposition of Remaining Issues

The remaining issues raised by Mr. Morgan in connection with this appeal relate to the WCJ’s denial of sleep apnea testing, a prescription for Cialis, testosterone replacement therapy, and refusal to award penalties, costs and attorney fees.

The WCJ’s judgment denied Mr. Morgan’s claims for sleep apnea testing, a prescription for Cialis, and testosterone replacement therapy pending his completion of an | fiin-patient pain treatment program as recommended by Dr. Clark. Mr. Morgan argues that although “Dr. Clark is the treating pain management doctor,” the WCJ “has taken over as [Mr. Morgan’s] treating physician.” Barber Brothers claims that in granting its reconventional demand, the WCJ was following Dr. Clark’s recommendation that Mr. Morgan be weaned of narcotic pain medication before making a determination as to the need for sleep apnea testing, Cialis prescription, and testosterone replacement therapy.

Upon review of the record in this matter, we find no error in the findings of the WCJ that Mr. Morgan’s assertion of claims for sleep apnea testing, Cialis prescription, and testosterone replacement therapy are premature until such time as he has submitted to and completed an inpatient pain treatment program as recommended by Dr. Clark.

Additionally, Mr. Morgan claimed that the WCJ erred in denying his claim for penalties and attorney fees based upon Barber Brothers’ callous disregard for the opinion of its own doctor and its refusal to provide reasonable and necessary medical treatment. Citing La. R.S. 23:1201, Barber Brothers argues that penalties and attorney fees are not owed when the claim is reasonably controverted. Barber Brothers hired an IME who offered clearly different opinions regarding the cause of Mr. Morgan’s tooth decay. The WCJ thereafter retained Dr. Graff, who opined that the cost of Mr. Morgan’s extractions and dentures would be considerably less. The WCJ then followed Dr. Clark’s recommendation regarding an in-patient pain treatment program for Mr. Morgan. Accordingly, Barber Brothers claims the WCJ was correct in denying Mr. Morgan’s claim for penalties and attorney fees.

The WCJ’s determination of whether an employer or insurer should be cast with attorney fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Frith, 2004-1086 at 12, 892 So.2d at 15. Based upon our review of the record herein, we cannot say the WCJ’s decision denying Mr. Morgan’s claim for penalties and attorney fees was clearly wrong.

17DECREE

For the above and foregoing reasons, the judgment of the WCJ is hereby affirmed. All costs of this appeal shall be assessed against the appellant.

AFFIRMED.

      . See Barber Brothers Contracting Co. v. Morgan, 2002-1712 (La.App. 1 Cir. 5/9/03), 849 So.2d 563.

      .In. his April 6, 2011 correspondence to the WCJ, Dr. Graff estimated extraction of Mr. Morgan’s remaining teeth and treatment with upper and lower dentures to cost $6,461.00. Dr. Graff further stated that he could neither confirm nor deny Mr. Morgan’s use of narcotic pain medication as the cause of his dental decay.

      . See Richard v. Vermillion Hospital, 2010-385, p. 12 (La.App. 3 Cir. 6/9/10), 41 So.3d 1219, 1228, writ denied, 2010-1611 (La. 10/8/10), 46 So.3d 1269.

      . See Manuel v. River Parish Disposal, Inc., 96-302, 96-303, p. 8 (La.App. 5 Cir. 10/1/96), 683 So.2d 791, 795.

      . Pursuant to Acts 2004, No. 534, § 1, the former text of subsection C of La. R.S. 23:1034.2 was designated as paragraph (C)(1), and paragraphs (C)(2) and (3) were added. Pursuant to Acts 2005, No. 257, § 1, La. R.S. 23:1034.2(C)(4) was added. Louisiana Revised Statutes 23:1034.2(C)(4) provides as follows:
      (4) Notwithstanding any other provisions of this Section, reimbursement for dental services shall not exceed the seventieth percentile in the current edition of the National Dental Advisory Service (NDAS) Comprehensive Fee Report, utilizing the average of geographic multipliers for Louisiana as published in the NDAS report.


author: PETTIGREW, J. McCLENDON, J.,

text:
    Richard KENNEDY, Individually and as the Dative Testamentary Executor of and the Succession of Sylvia Antonia Acosta Kennedy Graves v. Julie Kennedy FAGAN, Thomas Schafer III, ABC Insurance Company, T. Lynn Witt-Stamps, J. Jackson Stamps, Def Insurance Company, Bank of Louisiana and Shirley Henderson.
    No. 2011 CA 0482.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 2012.
    Rehearing Denied July 31, 2012.

      Maurice J. LeGardeur Jr., Covington, LA, Adam S. Lambert, New Orleans, LA, for Plaintiff-Appellant Richard Kennedy.
    Michael S. Fawer, Covington LA, for Defendant-Appellee, Julie Kennedy-Fa-gan.
    Henry L. Klein, New Orleans, LA, for Defendants-Appellees Bank of Louisiana and Shirley Henderson.
    Before CARTER, C.J., KUHN, PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

|¡Jn this action for damages, plaintiff-appellant, individually, and in his capacity as the dative testamentary executor of the estate of his late mother, filed suit naming numerous defendants, including his sister, who was the former testamentary executrix, the former attorneys for the estate, their respective malpractice insurers, a bank holding assets belonging to the estate, and an employee of said bank. Cross motions for summary judgment were later filed, on behalf of plaintiff-appellant, as well as on behalf of the bank and its employee. From a denial of his motion for summary judgment and a grant of summary judgment in favor of the bank and its employee, which dismissed his claims against said defendants, plaintiff-appellant has appealed to this court.

FACTS

The present litigation is yet another lawsuit arising out of the 2001 murder-suicide of Emory Lea Graves, Sr. and his wife, Sylvia Antonia Acosta Kennedy Graves. See In re Succession of Graves, 2007-2180 (La.App. 1 Cir. 3/12/08), 985 So.2d 140, writ denied, 2008-0799 (La.6/6/08), 983 So.2d 919; Kennedy-Fagan v. Estate of Graves, 2007-1062 (La.App. 1 Cir. 7/21/08), 993 So.2d 255, writ denied, 2008-2079 (La.11/10/08), 996 So.2d 1073.

Sylvia Antonia Acosta Kennedy Graves, decedent herein (“decedent”), died testate as a result of a murder-suicide on or about July 21, 2001. The decedent left two legatees, who were children from her first marriage — a daughter, defendant Julie Esther Kennedy-Fagan (“Julie”), and a son, plaintiff-appellant, Richard Vincent Kennedy (“Richard”). According to the terms of the decedent’s will, Julie was named as executrix of the estate. Due to her apparent failure to properly administer and liquidate decedent’s estate, Julie was removed from her duties as testamentary executrix by order of the trial court. In Julie’s stead, her brother and co-heir, Richard, was appointed by the trial court to serve as the dative testamentary executor.

On January 3, 2006, Richard instituted the present tort suit, appearing individually, and in his capacity as executor of the estate. Based upon the allegations of his petition, Richard seeks to recover estate assets, monies, and damages resulting from the actions |3and/or inactions of the defendants named herein. Following a denial of his motion for a partial summary judgment and a grant of summary judgment in favor of the bank and its employee dismissing his claims against said defendants, Richard now appeals. We affirm in part, reverse in part, and remand.

Richard alleged in the instant petition that his sister Julie retained attorneys T. Lynn Witt-Stamps and her husband, attorney J. Jackson Stamps, to represent decedent’s estate, and began administration of the estate on or about August 8, 2001. It was also alleged that “[t]he estate consisted of several valuable properties, including immovable rental properties in Louisiana and other states, three automobiles, and valuable estate jewelry, which was [sic] owned by decedent at the time of her death.” Richard further alleged that Julie and her attorneys opened succession bank accounts at the Bank of Louisiana (“Bank”), 636 Gause Boulevard, Slidell, Louisiana, with the assistance of their friend and/or associate, defendant Shirley Henderson, the assistant vice president and manager of the Gause Boulevard Branch of the Bank. It was alleged that Ms. Henderson “routinely breached her duties to the bank and its clients in order to assist [Julie], and her attorneys.” Richard claimed that Julie together with “defendants T. Lynn Witt-Stamps and J. Jackson Stamps, took physical possession of the estate jewelry, which [Julie] herself valued at over $100,000.00, and placed [said] jewelry into a [safety deposit] box located at the [Bank].”

Richard alleged in the instant action for damages that during Julie’s administration of the estate, and while attorneys T. Lynn Witt-Stamps, J. Jackson Stamps (collectively, “Witt and Stamps”), and later, Thomas Schafer, III, provided legal representation to the estate, said defendants were allowed to enter the safety deposit box at the Bank without obtaining court approval and without even signing signature cards for the said safety deposit box. It was also alleged that during one of these unrecorded entries into the |4estate’s safety deposit box, the valuable pieces of estate jewelry were removed leaving only “worthless costume jewelry and paste.”

Additionally, Richard alleged that Julie authorized Mrs. Witt-Stamps to sign checks on the decedent’s bank accounts and withdraw over $30,000.00 in attorney fees from said accounts without court approval or notice and without the court’s knowledge.

Richard also alleged that the Bank knew or should have known of the actions of Julie’s attorney, Mrs. Witt-Stamps, as the Bank kept banking records in the normal course of its business. Additionally, it was alleged that the Bank knew or should have known of the close relationship between its employee, Ms. Henderson, Julie, and Mrs. Witt-Stamps, and should have closely monitored the decedent’s bank accounts.

Richard further alleged that Julie’s subsequent attorney, Mr. Schafer, knew or should have known that prior counsel, Witt and Stamps, had removed funds from the decedent’s accounts without court approval, as records of said transactions and letters from Julie “authorizing” withdrawals by Mrs. Witt-Stamps were later discovered among Mr. Schafer’s files.

It was alleged that the aforementioned unauthorized acts were effectuated during Julie’s administration of decedent’s estate with the apparent assistance of Ms. Henderson, in her official capacity as a bank officer with the Bank, thereby rendering the Bank vicariously liable.

ACTION OF THE TRIAL COURT

On April 8, 2010, Richard filed a motion for partial summary judgment against the Bank and Ms. Henderson for estate funds that were illegally dispersed to Witt and Stamps by the Bank and Ms. Henderson. Richard also sought a partial summary judgment on the issue of liability against these same defendants for the jewelry that was allegedly stolen from the safety deposit box at the Bank.

In response, the Bank and Ms. Henderson filed a cross-motion for summary judgment and claimed that the Bank was not liable because it was allegedly authorized by Julie, its “customer” and executrix of the estate, to issue 11 cashier’s checks signed by Ms. Henderson for funeral expenses, legal fees, and taxes. The Bank argued that since |sJulie had consented to its drafting of the cashier’s checks and given authorization for the estate’s attorneys to enter the safety deposit box, the Bank was only honoring the wishes of its customer and could not be held liable.

Following a hearing on June 29, 2010, the trial court, for reasons orally assigned, denied Richard’s partial motion for summary judgment against the Bank and Ms. Henderson, and dismissed Richard’s claims against these defendants. Although the trial court specifically rejected the arguments put forth by the Bank regarding prescription and abandonment, the trial court found that Julie, in her capacity as executrix, had the authority to write checks and authorize withdrawals from the decedent’s Bank accounts. It was on this ground that the trial court granted the cross-motion for summary judgment filed by the Bank and Ms. Henderson. From this judgment, Richard, both individually, and in his capacity as executor of the estate of decedent, has appealed.

ISSUES PRESENTED ON APPEAL

In connection with his appeal in this matter, Richard presents the following issues for review and disposition by this court:

1. Did the trial court commit an error of law by failing to apply the legal presumption of liability for a bank that loses deposits which it was paid to keep safe?
2. Did the trial court commit an error of law by failing to apply the legal presumption of liability under the theory of Res Ipsa Loquitur?
3. When a bank’s customer and account holder dies, can the bank simply release funds from the decedent’s account on orders of the decedent’s daughter without prior orders of a court, or must that bank require a court order to release funds from the bank accounts of a deceased person?
4. May a bank be held liable for property lost or stolen from one of its safety deposit boxes when the bank admittedly failed to follow proper banking procedures and protocols by allowing unauthorized persons to enter the box without even signing the signature card or recording their entry into the box?

1 .STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Gonzales v. Kissner, 2008-2154, p. 4 (La.App. 1 Cir. 9/11/09), 24 So.3d 214, 217. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Aucoin v. Rachel, 2008-1180, p. 5 (La.App. 1 Cir. 12/23/08), 5 So.3d 197, 200, writ denied, 2009-0122 (La.3/27/09), 5 So.3d 143.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. Code Civ. P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-730. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether the mover-appellant is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830.

ANALYSIS

Release of Funds without Court Authority

The initial issue raised by Richard is whether the trial court erred in failing to apply the legal presumption of liability against the Bank. Richard asserts the Bank was a compensated depositary that failed to account for deposits under its exclusive care, custody, and control.

It is evident from the record that decedent had several accounts at the Bank prior to her death. In correspondence dated July 30, 2001, Julie wrote to the bookkeeping department of the Bank advising of decedent’s death on July 27, 2001. At that time, Julie requested that the Bank “freeze” decedent’s “bank accounts until disposition of the estate.” The only account referenced in this letter was the Kennedy Succession account No. 344-117. In her deposition testimony, Ms. Henderson stated that the Bank imposed a “freeze” on the Kennedy Succession account that day, July 30, 2001.

The record further reflects that on August 14, 2001, Julie opened a checking account (No. 390-232) at the Bank entitled “Succession of Sylvia Antonia Acosta Kennedy-Graves” (hereinafter, “the Decedent’s Succession Account”). Julie was the only authorized signatory on the Decedent’s Succession Account. Through a facsimile transmission addressed “To Whom It May Concern,” and sent the following day, August 15, 2001, at approximately 6 p.m., Julie advised the Bank of her appointment as executrix of decedent’s estate. In connection therewith, Julie forwarded copies of decedent’s death certificate and letters testamentary. In duplicate correspondence alternately referencing the Kennedy Succession account (No. 344-117) and the Joint Account (No. 365-572), Julie requested that funds from said accounts be transferred to the Decedent’s Succession ^Account. Said correspondence specifically directed that “[n]o funds are to be paid directly to any beneficiary or anyone other than the [Decedent’s] Succession/Estate Account, per the order of the court.”

In her deposition, Ms. Henderson testified that she had been employed by the Bank for 28 years. Ms. Henderson also admitted that although she had no training in Louisiana succession law, and had not attended any seminars involving succession law, she was generally aware that a succession representative needed to be court-appointed. Ms. Henderson denied having any knowledge as to what is required for an administrator to carry out his or her duties with respect to bank accounts. Ms. Henderson confirmed that at Julie’s direction she issued cashier’s checks on the Kennedy Succession account (No. 344-117) to pay invoices submitted by attorneys Witt and Stamps. Copies of $44,275.62 in transactions processed on the Kennedy Succession account (No. 344-117) for the period July 2001 through April 2002 were attached in globo to Ms. Henderson’s deposition as Exhibit “SH-8.” This account was eventually closed due to insufficient funds on November 19, 2002.

Through a court order signed January 15, 2002, Julie obtained authorization to pay $6,150.73 in urgent debts owed by the decedent. Said debts included payment of property taxes, flood insurance premium, safety deposit box and mail box rentals, and reimbursement of $5,533.85 for decedent’s funeral expenses. Ms. Henderson admitted that at Julie’s direction following court authorization, she issued a cashier’s check debiting the Decedent’s Succession Account (No. 390-232) for the payment of property taxes.

lain their brief to this court, the Bank and Ms. Henderson contend that Richard’s claims regarding the Bank’s “unauthorized” issuance of cashier’s checks are barred due to application of La. R.S. 10:4-406. The Bank and Ms. Henderson claim that it was incumbent upon Richard “to examine his monthly statement and to ‘... exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized ... ’ ” Several paragraphs later, the Bank and Ms. Henderson admit that previously, on July 30, 2001, Julie, in her capacity as decedent’s succession representative, instructed the Bank to forward all statements and items regarding the Kennedy Succession account (No. 344-117) to Julie’s address in Florida. The Bank and Ms. Henderson attempt to argue, albeit unsuccessfully, that they merely acted in accordance with the express wishes of their customer, Julie, who was an authorized signatory on the Kennedy Succession account.

Given Julie’s July 30, 2001 correspondence advising the Bank of decedent’s death, Julie’s request therein that the Bank “freeze” decedent’s “bank accounts until disposition of the estate,” and Ms. Henderson’s deposition testimony confirming the Bank’s imposition of a “freeze” on the Kennedy Succession account as of July 30, 2001; it is unclear why the Bank nevertheless proceeded to process $44,275.62 in transactions on the Kennedy Succession account (No. 344-117) for the period July 2001 through April 2002 when the account funds were depleted. Louisiana Revised Statutes 6:325, when read in connection with La.Code Civ. P. arts. 3222, 3224, 3302, and 3303, prohibits a Bank that receives written notice of the death of a customer from transferring any assets belonging to the deceased person without proper court authority and receiving a receipt therefor.

The trial court clearly erred in granting summary judgment in favor of the Bank and Ms. Henderson.

11(VApplicability of Res Ipsa Loquitur

The second issue raised by Richard is whether the trial court erred in failing to apply the evidentiary doctrine of res ipsa loquitur to establish through circumstantial evidence the negligence of the Bank and Ms. Henderson.

In our previous opinion in Broussard v. Voorhies, 2006-2306, p. 6 (La.App. 1 Cir. 9/19/07), 970 So.2d 1038, 1043, writ denied, 2007-2052 (La.12/14/07), 970 So.2d 535, a panel of this court summarized the law with respect to res ipsa loquitur and stated:

The plaintiff in a negligence case may meet his burden of proof by presenting both direct and circumstantial evidence. Cangelosi v. Our Lady of the Lake Med. Ctr., 564 So.2d 654, 664 (La.1990)(on rehearing). Res ipsa loquitur is not a substantive legal tenet, but rather an evidentiary doctrine under which a tort claim may be proved by circumstantial evidence. Gisclair v. Bonneval, 04-2474, p. 5 (La.App. 1st Cir. 12/22/05), 928 So.2d 39, 42. The doctrine permits the inference of negligence from the surrounding circumstances, and merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. Cangelosi, 564 So.2d at 665. Because application of res ipsa loquitur is an exception to the general rule that negligence is not to be presumed, it should be sparingly applied. Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La.1992). Generally, it may be applied when three requirements are met: (1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; (2) the defendant had exclusive control over the thing causing the injury; and (3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on the defendant’s part. Id.

Based upon our de novo review of this matter, we conclude that application of the doctrine of res ipsa loquitur is not required given the undisputed facts of this case.

The deposition testimony of Ms. Henderson discloses that on January 14, 2002, Julie contracted on behalf of the estate and rented safety deposit box # 94 at the Bank in the name of the Succession of Sylvia Kennedy-Graves. On January 24, 2002, Julie faxed an authorization for Mrs. Witt-Stamps, then-attorney for decedent’s estate, to access the safety deposit box. A copy of the Bank Record of Access to Safe Deposit Vault for Safe #94, attached to Ms. Henderson’s deposition, reveals that during the period of Julie’s 1 n administration, Mrs. Witt-Stamps obtained entry to the safety deposit box on January 24, 2002, February 4, 2002, and April 3, 2002.

Ms. Henderson further stated once a person identifies himself as an authorized user, signs the access record, and produces a “guard key” for a safety deposit box, said individual is permitted to examine the contents of the safety deposit box in the privacy of the Bank “Coupon Room.” Ms. Henderson stated that the Bank does not keep records as to whether customers place items in or remove items from its safety deposit boxes.

It is undisputed that the Bank and Ms. Henderson received notice of the decedent’s death, of Julie’s appointment as executrix, and Julie’s request that the Bank “freeze” decedent’s “bank accounts until disposition of the estate.” It would therefore seem reasonable for the Bank to similarly deny access to a safety deposit box subsequently opened in the name of the decedent’s succession pending a public inventory of it contents or further orders of the court.

Again, it was error for the trial court to grant summary judgment in favor of the Bank and Ms. Henderson.

Necessity for Court Approval to Release Succession Funds

The third issue presented by Richard is whether a bank may release funds from a deceased customer’s account based solely upon the order of a succession representative. In his brief to this court, Richard cites La.Code Civ. P. art. 3301 and asserts that a succession representative must obtain court authorization prior to paying a debt of the succession.

In their appellee brief, the Bank and Ms. Henderson offer the following response:

Apparently, ... Richard ... believes that court approval for each and every check was required, presumably by contradictory motion at a full-blown hearing on routine matters no court is required to referee.... [T]here has never been any law requiring what [Richard] apparently expected, and [Richard] has cited no authority to the contrary. [Underscoring in original.]

112The trial court, in its oral reasons for summary judgment, opined:

I do believe the bank when they have an account set-up for the testamentary and at the time the administrator or admin-istratrix had authority to write checks on the account and authorized those checks to be done, I think the bank is not responsible at that point.

We disagree. Louisiana Code Civil Procedure art. 3301 clearly provides that “[a] succession representative may pay an estate debt only with the authorization of the court, except as provided by Articles 3224 and 3302.” Additionally, La.Code Civ. P. art. 3303 provides, in pertinent part, that “[w]hen a succession representative desires to pay estate debts, he shall file a petition for authority and shall include in or annex to the petition a tableau of distribution listing those estate debts to be paid.” Finally, La.Code Civ. P. art. 3307 provides, in pertinent part, as follows:

Art. 3307. Homologation; payment
A. ... If no opposition has been filed, the succession representative may have the tableau of distribution homologated and the court may grant the authority requested at any time after the expiration of seven days from the date of publication or from the date the notice required by Article 3306 is mailed, whichever is later.
B. ...
C. After the delay for a suspensive appeal from the judgment of ho-mologation has elapsed, the succession representative shall pay the debts approved by the court.

The trial court clearly erred in granting summary judgment in favor of the Bank and Ms. Henderson.

Liability of Bank for Lost or Stolen Property

The final issue raised by Richard is whether a bank may be held liable for property lost or stolen from one of its safety deposit boxes. Specifically, Richard argues that given the Bank’s failure to follow proper banking procedure and protocol, the Bank is clearly liable for the loss of jewelry from its safety deposit box.

In light of our previous, undisputed findings regarding the notice received by the Bank and Ms. Henderson, we reiterate our previous holding that the Bank should have | iadenied access to the safety deposit box subsequently opened in the name of the decedent’s succession, pending a public inventory of it contents or further orders of the court.

Once again, it was error for the trial court to grant summary judgment in favor of the Bank and Ms. Henderson.

CONCLUSION

For the above and foregoing reasons, we hereby affirm the denial of the plaintiffs motion for summary judgment under our supervisory jurisdiction, rather than appellate jurisdiction, for the reason that there remain genuine issues of material fact. We nevertheless reverse the trial court’s June 29, 2010 grant of summary judgment in favor of the Bank and Ms. Henderson. Accordingly, the previously dismissed claims against said defendants put forth by Richard, both individually, and in his capacity as executor of decedent’s estate, are hereby reinstated. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs associated with this appeal shall be assessed against the defendants, Bank of Louisiana and Shirley Henderson.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

McCLENDON, J., dissents in part and assigns reasons.

McCLENDON, J.,

dissents in part and assigns reasons.

hi disagree with the majority’s reversal of the summary judgment granted in favor of the bank as it pertains to the safety deposit box. The majority fails to address the clear language of LSA-R.S. 6:325 A and B, which provide:

A. A bank may deal with safety deposit boxes or money, on deposit or otherwise, and other property in its possession standing in the name of a deceased person or in which the latter had an interest in accordance with its contract with its customer until the bank receives notice in writing addressed to it of the death of the customer. After receipt of such notice in writing and upon proper authority and upon obtaining a receipt therefor, any bank may transfer the contents of a safety deposit box or any money and other property in its possession standing in the name of a deceased person or in which the latter had an interest to the succession representative, the surviving spouse, heirs, or legatees of the deceased.
B. The letters of the succession representative or the judgment recognizing and putting the heirs in possession issued by a court of competent jurisdiction and accompanied by letters of tutorship or curatorship of the heirs who are not sui juris shall constitute proper authority for making the transfer which, when so made and receipted for, shall be full protection to the bank as to any heir, legatee, creditor, or other person having rights or claims to funds or property of the decedent. (Emphasis added.)

It is a well-settled principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language. Cleco Evangeline, LLC v. Louisiana Tax Commission, 01-2162, p. 5 (La.4/3/02), 813 So.2d 351, 354. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9; Meyer & Associates, Inc. v. Coushatta Tribe of Louisiana, 07-2256, p. 7 (La.9/23/08), 992 So.2d 446, 451.

Therefore, under the plain language of the statute, once the letters testamentary confirming Julie Kennedy Fagan as the executrix of the Succession of Sylvia Antonia Acosta Kennedy Graves were presented to the bank, said letters constituted proper authority and afforded full protection to the bank as to any heir having rights or claims to property of the decedent in the bank’s safety deposit box. See LSA-R.S. 6:325 B.

Further, LSA-R.S. 6:328 provides that “[a] bank shall establish reasonable security procedures to ensure that only authorized persons shall have access to safety deposit boxes.” Reasonable security procedures include “requiring that the person seeking access present the key to the safety deposit box he seeks to enter,” which was done in this matter. Not only did Ms. Witt-Stamps present a key to the safety deposit box, but the executrix of the succession also faxed written authorization to the bank for Ms. Witt-Stamps to access said safety deposit box. Clearly, while there may be liability with regard to the loss of property from the safety deposit box, any actions arising from said loss are more properly directed against the executrix rather than the bank.

Accordingly, I respectfully dissent in part.

      . Attorneys T. Lynn Witt-Stamps and J. Jackson Stamps were later permanently disbarred by the Louisiana Supreme Court for actions related to their dishonesty and untruthfulness. See In re Stamps, 2003-2985 (La.4/14/04), 874 So.2d 113 .

      . In his brief to this court, Richard asserts that inasmuch as the Bank and Ms. Henderson failed to appeal from the trial court’s rejection of its arguments as to prescription and abandonment, the Bank and Ms. Henderson are precluded from raising these arguments in connection with the instant appeal.

      . In her deposition, Ms. Henderson testified that decedent had a succession account (No. 344-117) for her first husband, Mr. Kennedy, which was opened on June 20, 1972. This account was titled the "Kennedy Succession.” Decedent, and her children, Julie and Richard, were all authorized signatories on this account. There was also another account (No. 365-572) that was a joint account with decedent's second husband, Emory L. Graves. This account was titled "Emory L. Graves or Sylvia Kennedy Graves.” This account will hereinafter be referred to as the "Joint Account.”

      . Ms. Henderson testified that the Bank was not able to transfer funds from other accounts in which decedent held an interest without a judgment of possession.

      . Of the $44, 275, 62 in transactions processed on the Kennedy Succession account (No. 344-117) for the period July 2001 through April 2002, $39,718.24 was for the payment of invoices to the Witt-Stamps law firm.

      . This check, made payable to the Kennedy Succession account (No. 344-117) and dated February 5, 2002, was written on the Decedent's Succession Account (No. 390-232) and signed by Julie. A copy of this check was identified as "Exhibit 11” and attached to Ms. Henderson’s deposition. It is uncertain whether this check was ever negotiated.

      . Louisiana Revised Statutes 10:4 — 406(c) provides that if a bank makes available a statement of account, the customer must "exercise reasonable promptness” to determine whether any payment was unauthorized.

      . The contention of the Bank and Ms. Henderson that Julie was their customer ignores the reality that the customer of the Bank was actually the decedent’s estate, and the Bank was legally obligated to refrain from dispersing funds without court authority.

      . In her deposition testimony, Ms. Henderson stated that safety deposit box # 94 was a large box measuring 10" x 10" x 21-1/4".

      . It should be noted that Richard alleges that upon his entry into the safety deposit box (with proper court authority and in the presence of all heirs, all attorneys, and Bank representatives) in 2005, the valuable pieces of jewelry were missing; however, the safety deposit box contained notes allegedly left by attorneys Witt and Stamps detailing several entries into the safety deposit box that were not documented on the Bank access record.

      . Louisiana Code of Civil Procedure article 3224 applies to debts incurred in the operation of a business owned by a succession. Louisiana Code of Civil Procedure article 3302 grants authority to a court to authorize the payment of estate debts that should not be delayed.

      . I note that LSA-C.C.P. arts. 3302, and 3303, referred to by the majority, relate to actions of the succession representative, and not of the bank.

      . Additionally, I point out that this case once again presents the procedural difficulty that arises from a restricted appeal where interloc- • utory issues are direcdy related to appealable issues, requiring the exercise of our supervisory jurisdiction.


author: McCLENDON, J. WELCH, J.,

text:
    Joyce CARMENA v. ST. ANTHONY’S HOME.
    No. 2011 CA 1181.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      Michelle Sorrells, Baton Rouge, LA, for Plaintiff/Appellee Joyce Carmena.
    H. Alston Johnson, III, Gregory T. Stevens, F. Scott Kaiser, Baton Rouge, LA, for Defendant/Appellant Our Lady of the Lake Regional Medical Center d/b/a St. Anthony’s Home.
    Before CARTER, GUIDRY, PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

|PThis is a disputed claim for workers’ compensation. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL HISTORY

The relevant facts are essentially undisputed and stipulated to by the parties. On June 7, 2007, Joyce Carmena was employed as a certified nursing assistant (CNA) by Our Lady of the Lake Regional Medical Center d/b/a St. Anthony’s Home (OLOL), when she slipped and fell on a wet floor during the course and scope of her employment, causing injury to Ms. Carmena’s right knee. Ms. Carmena reported the accident and was referred to an orthopedist, Dr. Stephen Wilson. Ms. Carmena continued treatment with Dr. Wilson until April 2008, when she went to her own orthopedist, Dr. Ricardo J. Rodriguez. Dr. Rodriguez’s findings suggested an evolving sprain or tear with the patella ligament. Surgery was recommended, and on May 30, 2008, Dr. Rodriguez performed surgery on Ms. Carmena’s right knee, which included the reconstruction of the patella tendon using a hamstring graft.

OLOL paid Ms. Carmena temporary total disability (TTD) benefits, as well as all medical expenses associated with the right knee, from the date of the accident through February 8, 2009. At that time, she was released to restricted duty by Dr. Rodriguez, and Ms. Carmena returned to work in a light duty sedentary position for four hours a day. Accordingly, her TTD payments were converted to supplemental earnings benefits (SEB) on February 9, 2009.

The dispute in this matter arose later in 2009 when Ms. Carmena sought workers’ compensation coverage for symptoms that developed in her left knee. On June 5, 2009, Ms. Carmena made her first documented complaint regarding pain in her left knee, when she complained to Dr. Rodriguez of “pain in the left knee which has been going on for a few weeks.” Dr. Rodriguez also noted that Ms. Carmena did not remember any injury to that knee. Following an MRI, Dr. Rodriguez diagnosed Ms. Carmena with a “possible lateral meniscus tear” and recommended ar-throscopy surgery with partial lateral meniscectomy, which was | [.performed on October 7, 2009. Ms. Carmena returned to work in December 2009, for four hours a day on a light duty status. She returned to full duty employment in February 2010. OLOL denied any causal relationship between Ms. Carmena’s June 7, 2007 accident and her left knee medical treatment, which was paid by her own insurance.

Thereafter, on November 6, 2009, Ms. Carmena filed a disputed claim for compensation, seeking medical benefits for the surgery to her left knee, TTD benefits for the period of time she was unable to work because of the left knee complaints and surgery, and penalties and attorney fees for the failure to authorize the left knee surgery and for the wrongful termination of her SEB. Ms. Carmena asserted that she was receiving SEB for her right knee due to her part-time work restriction, and when surgery was performed on her left knee all indemnity benefits were wrongfully stopped even if OLOL did not believe that the left knee was work related.

The matter was tried on November 17, 2010. The workers’ compensation judge (WCJ) ruled in favor of Ms. Carmena, finding that her left knee condition was related to the right knee injury of June 7, 2007. Judgment in accordance with the trial court’s ruling was signed on March 2, 2011, and St. Anthony’s suspensively appealed.

DISCUSSION

The workers’ compensation laws provide coverage to an employee for personal injury by accident arising out of and in the course of employment. LSA-R.S. 23:1031 A. An employee must prove the chain of causation required by the workers’ compensation statutory scheme. He must establish that the accident was work-related, that the accident caused the injury, and that the injury caused the disability. Magee v. Abek, Inc., 04-2554, p. 4 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 806, writ denied, 06-1876 (La.10/27/06), 939 So.2d 1287. Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he [ ¿sustained an injury. Next, he must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the fact finder based on all credible evidence. Id.

Even if the employee suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the accident aggravated, accelerated, or combined with the pre-existing condition to produce a compensable disability. He may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and onset of the disabling symptoms. Magee, 04-2554 at pp. 4-5, 934 So.2d at 806-07.

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied; (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992); Carter v. Lakeview Regional Medical Center, 04-1794, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 686, 688. Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Bruno, 593 So.2d at 361. Whether a claimant has carried his burden of proof is a question of fact to be determined by the workers’ compensation judge. Harrison v. Baldwin Motors, 03-2682, p. 5 (La.App. 1 Cir. 11/3/04), 889 So.2d 313, 316, writ denied, 05-0249 (La.4/1/05), 897 So.2d 609.

An appellate court, in a workers’ compensation case, as in other cases, is bound by the manifest error rule and may not set aside the trial court’s findings |sof fact unless they are clearly wrong or manifestly erroneous. Carter, 04-1794 at p. 3, 923 So.2d at 688.

In the case sub judice, Ms. Carme-na testified at trial. She stated that, as a CNA, her job duties included bathing patients, taking vital signs, making beds, and, at times, required lifting. After her accident, Ms. Carmena testified that she continued to try to work full-time. She stated that until her surgery, she had to use her left leg more, putting her weight on her left leg because she could not put all of her weight on her right one because of the pain. Ms. Carmena stated that, after the surgery, her knee was in a brace, and she used a walker and then crutches for several months. Ms. Carmena also testified that when she first complained to Dr. Rodriguez of the pain in her left knee, he told her that it was related to the initial accident.

Dr. Rodriguez, an expert in the field of orthopedic surgery, testified by deposition. He testified that he first saw Ms. Carmena on April 4, 2008, after she had been treated for some time by Dr. Wilson and had received multiple cortisone injections. The April 10, 2008 MRI was suggestive of an evolving sprain or tear with the patella ligament, although there was no evidence of any displacement of the patella. Her progression of symptoms resulted in surgery on May 30, 2008, for a debridement of the left patella tendon and reconstruction of the patella tendon, using a hamstring graft. Dr. Rodriguez testified that recovery for this type of surgery was a full year. He stated that Ms. Carmena was on crutches for at least three months and that although Ms. Carmena was not tiny, she was not obese. He testified that she would certainly bear more weight on the left side while recovering. Dr. Rodriguez further stated that it was possible that Ms. Carmena’s right knee would always be a problem and was the reason for her permanent work restrictions. He also testified that Ms. Carmena’s left knee surgery could have affected and irritated her right knee for a little while.

With regard to Ms. Carmena’s left knee problems, Dr. Rodriguez testified that she probably had long-standing degenerative changes. It was Dr. Rodriguez’s opinion that the right knee did not make the left knee the way it |Rwas. Further, when asked whether he thought the right knee injury to Ms. Carmena caused her left knee to become symptomatic and more problematic because of the injury, Dr. Rodriguez responded that he did not. Asked again if he had seen situations where overcompensation to one body part lead to other problems, Dr. Rodriguez stated, “Certainly, it can in certain situations, but again in Joyce’s case, I don’t think it did.”

On appeal, OLOL argues that the WCJ erred in concluding that Ms. Carmena carried her burden of proof based solely on her own uncorroborated testimony. OLOL further contends that the WCJ le-gaily erred when it applied the presumption of causation to this matter.

In oral reasons, the WCJ stated the following, in pertinent part:

The issue before the Court is whether or not the left knee condition is compen-sable and related to the original accident of June 7, 2007.
The Court is of the opinion that it is.
The Court makes a finding of fact that the left knee condition was — a degenerative arthritic condition was aggravated by the two years of excessive weight-bearing that was required of the left knee to compensate for the right knee injury that occurred on June 7, 2007.
So the Court finds that she has met her burden of proving that it is related. The Court certainly takes note of the fact that Dr. Rodriguez does not relate it, but this is a legal concept not a medical concept, the finding of causation, and the Court finds that Mrs. Carmena has met her burden of proving that it was caused by the original accident of June 7, 2007. But for the accident, the Court has no reason to believe that Mrs. Carmena would have sustained any tear to her left knee.

The conclusion of the WCJ was based entirely on the testimony of Ms. Carmena, whom the WCJ found to be very credible. However, Ms. Carmena’s own treating physician could not relate her left knee injury to the work-related accident. Moreover, Ms. Carmena offered no medical opinion testimony. In the only medical opinion offered in this matter, by OLOL, Dr. Rodriguez stated that the left knee did not become symptomatic because of the right knee injury. Additionally, the presumption of causation is inapplicable to the facts of this case |7as Ms. Carmena’s left-knee symptoms did not commence with the June 7, 2007 accident and by all accounts did not appear for almost two years in May 2009. Consequently, Ms. Carmena failed to satisfy her burden of proving by a preponderance of evidence that the June 7, 2007 work-related accident caused her left knee injury. The WCJ was clearly wrong to conclude otherwise.

CONCLUSION

For the foregoing reasons, the March 2, 2011 judgment of the WCJ finding that Joyce Carmena’s left knee condition is related to the accidental right knee injury sustained on June 7, 2007, is reversed. Costs of this appeal shall be split equally between Joyce Carmena and Our Lady of the Lake Regional Medical Center d/b/a St. Anthony’s Home.

REVERSED.

PETTIGREW, J., concurs.

CARTER, C.J., dissents for reasons assigned by Judge WELCH.

WELCH, J., dissents and assigns reasons.

WELCH, J.,

dissenting.

|¶1 respectfully disagree with the majority opinion in this case. The WCJ made a factual finding that there was a causal connection between the original work-related accident and the injury to Ms. Carmena’s left knee. Although Dr. Rodriguez did not relate the accident to her left knee injury, causation is not necessarily and exclusively a medical conclusion, but rather, it is an ultimate fact to be determined by the fact finder based on all credible evidence. Champagne v. Roclan Systems, Inc., 2006-1928 (La.App. 1st Cir. 2/20/08), 984 So.2d 808, 814; see also Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275, 287. Furthermore, after weighing and evaluation all of the evidence, the WCJ is free to accept or reject in whole or in part the testimony of any witness, including the opinions expressed by an expert. LeBlanc v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1st Cir. 6/28/96), 676 So.2d 1157, 1161.

Dr. Rodriguez testified with regard to Ms. Carmena’s surgery on her right knee, that the recovery period was approximately one year, that she would be weight bearing on that knee only with crutches for the first three months, and that she would bear more weight on her left side during that recovery period. Dr. Rodriguez acknowledged that Ms. Carmena had degenerative problems in her left knee and had no history of trauma to that knee. While Dr. Rodriguez acknowledged that overeompensation from an injury on one side of the body may generally lead to problems on the other side, he provided no explanation for why this was not the case with Ms. Carmena’s left knee. Based on the absence of an 12explanation, the WCJ was well within its discretion to reject Dr. Rodriguez’s opinion on causation and make its own factual finding based on the evidence in the record. Therefore, I would affirm the judgment of the WCJ. Thus, I respectfully dissent.

      . The request for penalties and attorney fees was abandoned at trial.


author: McCLENDON, J. PETTIGREW, J.,

text:
    Fartima HAWKINS v. Sean FOWLER; the United States of America, through the Department of Defense, United States Army; State Farm Insurance Company.
    No. 2011 CA 1495.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.
    Rehearing Denied May 24, 2012.

      Kris A. Perret, Baton Rouge, LA, for Plaintiff/Appellant Fartima Hawkins.
    Donald R. Smith, Baton Rouge, LA, for Defendant/Appellee Allstate Indemnity Company.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

lain this case, plaintiff filed suit seeking to recover damages for injuries she sustained in an automobile accident. The trial court granted summary judgment in favor of Allstate Insurance Company (Allstate), and plaintiff has appealed. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter involves a civil action filed by plaintiff, Fartima Hawkins, to recover damages resulting from a February 5, 2008 automobile accident in Baton Rouge, Louisiana. The accident occurred when Ms. Hawkins’s vehicle was struck broadside by a United States government vehicle (“GOV”) being driven by Sergeant Sean Fowler, a recruiter for the United States Army. Ms. Hawkins filed suit, naming, among others, Sergeant Fowler and his personal liability insurer, Allstate, as defendants.

Thereafter, Allstate filed a motion for summary judgment alleging that the policy issued to Fowler excluded coverage for the accident because Fowler lacked permission to use the GOV for commuting purposes or, alternatively, because Fowler used the GOV for his regular use insofar as he drove it back and forth from his home in Baton Rouge to his office in Covington each day. Allstate asserted that its policy did not afford coverage under either alternative and summary judgment was, therefore, appropriate.

Following a hearing, the trial court granted Allstate’s motion for summary judgment. In so ruling, the court found coverage was excluded under the evidence. The court reasoned that if Fowler “had the implied permission, then it falls within the regular use exclusion” because “back and forth to work every day is regular use.” Alternatively, “[i]f he didn’t have permission, then it falls within the lack of permission exclusion.” Plaintiff subsequently filed a Motion for New Trial and/or Reconsideration, which was denied by the trial court.

Plaintiff has appealed, asserting that genuine issues of material fact remain that preclude summary judgment in this matter.

| «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. Schultz v. Guoth, 10-0343, p. 5 (La.1/19/11), 57 So.3d 1002, 1005. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146, p. 8 (La.1/21/04), 864 So.2d 129,137. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law. See LSA-C.C.P. art. 966(B). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66 (per curiam).

The burden of proof on a motion for summary judgment remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish School Bd., 07-p.856,4 p. 2 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113; see also LSA-C.C.P. art. 967(B).

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. An insurer seeking to avoid coverage through summary judgment must prove some provision or exclusion applies to preclude coverage. Gaylord Chem. Corp. v. ProPump, Inc., 98-2367, p. 4 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, 352.

In its motion for summary judgment, Allstate alleged that its policy did not provide coverage because either Fowler lacked permission to use the GOV for commuting purposes or, alternatively, the GOV was available for Fowler’s regular use. Specifically, the Allstate policy affords coverage to “[a] non-owned auto used by you [insured] or a resident relative with the owner’s permission. ■ This auto must not be available or furnished for the regular use of an insured person.” Allstate concludes that its policy excludes coverage under any view of the evidence.

It is uncontested that the vehicle was provided for Fowler’s regular use during recruiting visits. However, the accident occurred when Fowler was driving from his work in Covington to his home in Baton Rouge. Army policy, as acknowledged by Fowler, does not allow a recruiter to drive the government vehicle to and from work and home (called “domicile to duty”) without written permission from the battalion commander. Nevertheless, Fowler testified that with express verbal permission from his supervisor, Sergeant Thomas Putnam, Rhe drove the vehicle back and forth from home to work “every day.” Fowler indicated that all of the recruiters take their government vehicles home. Sergeant Putnam testified that he was not aware that recruiters used their vehicles to go from work to home, but that it was possible that the recruiters, without his knowledge, took the government vehicles for this use. Sergeant Putnam also testified that Army protocol requires the keys from the government vehicles be kept in his desk in a lockbox, but that the lockbox and the lock to his office had not been in working order for some time.

We recognize, as did the trial court, that there are two permissible views of the evidence under the facts — 1) that Fowler did not have permission to use the GOV, or 2) that Fowler had permission to use the GOV and that it was provided for his regular use. First, if Fowler did not have authority to use the GOV, the lack of permission exclusion would apply. On the other hand, if Fowler had permission to use the GOV, his commuting from Baton Rouge to Covington on a daily basis made the GOV “available or furnished for [his] regular use,” such that the regular use exclusion would apply. See O’Neal v. Blackwell, 00-2014, p. 10 (La.App. 1 Cir. 11/14/01), 818 So.2d 118, 125 (although a son needed permission from his parents to drive the vehicle, it was furnished “for ... specific uses that occurred on a regular basis” such that regular use exclusion applied), and Blanchard v. Hanover Ins. Co., 250 So.2d 484, 487 (La.App. 1 Cir.1971) (regular use exclusion applied when “the employer continuously, at regular and predictably certain intervals, furnished vehicles for plaintiffs use”). Under either of the two scenarios, coverage would be excluded under Allstate’s policy.

Plaintiff maintains, however, that there is a feasible third position — that the vehicle was not provided for Fowler’s personal “regular use” but that, on at least the night of this accident, Fowler had the implied permission of the commanding officer to use the GOV. Plaintiff asserts that there is a direct conflict between the testimony of Fowler and Putnam with regard to the permissive use of the GOV. Plaintiff avers that Fowler, based on Putnam’s failure to follow regulations and protocol, may have believed he had implied permission [ (¿o use the GOV. Plaintiff concludes that the jury should be allowed to hear and see the witnesses and decide for themselves who they believe. However, implied permission inferred from Sergeant Putnam’s failure to follow protocol, would reflect implied permission for regular use, not limited use.

Further, there is no testimony or evidence to support plaintiffs third scenario that Fowler may have had implied permission to use the GOV for personal non-regular or limited use. Although plaintiff argues that there may be such a possibility, summary judgment cannot be defeated by mere argument. Argument of counsel and briefs, no matter how artful, are not sufficient to raise an issue of material fact. Wilson v. Davis, 07-1929, p. 15 (La.App. 1 Cir. 5/28/08), 991 So.2d 1052, 1063, writs denied, 08-2011, 08-2020 (La.11/10/08), 996 So.2d 1070, 1071. See also Kelly v. West Cash & Carry Bldg. Materials Store, 99-0102, p. 25 (La.App. 4 Cir. 10/20/99), 745 So.2d 743, 759. (“It takes more than the existence of a mere possibility to prove a fact by the preponderance of the evidence, and plaintiff has offered no evidence that she will ever be able to prove anything more at a trial on the merits. In the absence of anything more than plaintiffs mere conjecture on this issue, we find no genuine issue of material fact....”) Here, none of the evidence presented, individually or collectively, creates a genuine issue of material fact precluding summary judgment. Accordingly, we conclude that there is no error in the trial court’s ruling granting summary judgment in favor of Allstate.

CONCLUSION

For the foregoing reasons, the trial court’s May 31, 2011, judgment granting Allstate’s motion for summary judgment is affirmed. Costs of this appeal are assessed to plaintiff, Fartima Hawkins.

AFFIRMED.

PETTIGREW, J., concurs and assigns for reasons.

WELCH, J., concurs for reasons assigned J. PETTIGREW.

PETTIGREW, J.,

concurs, and assigns reasons.

hi respectfully concur with the majority because Fowler testified that he drove the vehicle back and forth from home to work “every day” with verbal permission from his supervisor. This is regular use.

      . Allstate was first named a defendant in plaintiff’s “First Supplemental and Amending Petition.”