author: COOKS, J. THIBODEAUX, Chief Judge,

text:
    Bonnie ROMERO v. CLARENDON AMERICA INS. CO., et al.
    No. 10-338.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 29, 2010.
    Rehearing Denied Feb. 16, 2011.

      James P. Doherty, III, Lafayette, LA, for Plaintiff/Appellant, Bonnie Romero.
    Scofield & Rivera, LLC, James T. Rivera, Lafayette, LA, for Defendant/Appel-lee, Renae G. Stanford, Inc. d/b/a Stanford Truck Lines.
    Davidson, Meaux, Sonnier & McElligott, J.E. McElligot, Jr., Rachel B. Godley, Lafayette, LA, for Defendant/Appellee, Gregory J. Vidrine.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH PICKETT, Judges.
   COOKS, J.

11 FACTS AND PROCEDURAL HISTORY

Bonnie Romero (Plaintiff) was allegedly injured in an automobile accident when her car was struck by an eighteen wheeler tractor-trailer driven by Gregory J. Vid-rine (Vidrine). Plaintiff alleges Vidrine ran through a stop sign and collided with her vehicle. She further alleges Vidrine was acting in the course and scope of his employment with Renae G. Stanford, Inc. d/b/a Stanford Truck Lines (Stanford) when the accident occurred. Plaintiff also alleges Vidrine was under the influence of drugs at the time of the accident and that he refused to submit to a post-accident drug and alcohol test when requested to do so by his employer. Stanford fired Vid-rine for refusing to submit to drug and alcohol testing following the accident.

Plaintiff amended her original petition for damages alleging she is entitled to recover punitive damages against all defendants named in her suit under the provisions of La.Civ.Code art. 2315.4. Stanford asserts Plaintiff has no right of action and no cause of action against it for punitive damages as a matter of law, maintaining that punitive damages are only recoverable against Vidrine individually.

Plaintiff filed a motion for summary judgment on the issue of punitive damages against Stanford and its insurers, and filed a motion to compel discovery of information relating to Stanford’s financial worth. Stanford filed a cross motion for summary judgment alleging it is not vicariously liable for any punitive damages which may be awarded against Vidrine. The trial court denied Plaintiffs motion for summary judgment and her motion to compel discovery and granted Stanford’s cross motion for summary judgment finding Stanford is not liable for any punitive damages which may be awarded against Vid-rine. Plaintiff filed a writ of review with this court which we denied with instructions to Plaintiff that she request the trial court certify its ruling as a final judgment. The trial court certified the ruling as a final judgment |2and Plaintiff now appeals the trial court’s denial of her motion for summary judgment and denial of her motion to compel discovery. Vidrine also assigns error on appeal alleging the trial court erred in failing to dismiss Plaintiffs motion for summary judgment as premature. However, Vidrine did not file an Answer to the appeal nor did Vidrine appeal the trial court’s ruling. We, therefore, cannot consider Vidrine’s assignment of error.

ANALYSIS

Plaintiff is not entitled to recover punitive damages from Stanford. Although our courts have not had occasion to rule directly on the question of whether punitive damages, such as those imposed under the provisions of La.Civ.Code art. 2815.4, can be imposed upon a party vicariously liable for general damages, the jurisprudence applying Article 2315.4 and other punitive damage statutes is instructive.

In Louisiana, there is a general public policy against punitive damages; thus a fundamental tenet of our law is that punitive or other penalty damages are not allowable unless expressly authorized by statute. Ricard v. State, 390 So.2d 882 (La.1980); Killebrew v. Abbott Labs., 359 So.2d 1275 (La.1978). Furthermore, when a statute does authorize the imposition of punitive damages, it is subject to strict construction. International Harvester Credit, 518 So.2d at 1041; State v. Peacock, 461 So.2d 1040, 1044 (La.1984).

Ross v. Conoco, Inc., 02-299, p. 14 (La.10/15/02), 828 So.2d 546, 555.

Louisiana Civil Code Article 2315.4 provides:

In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

Vicarious liability of employers for the actions of their employees is established in the Louisiana Civil Code at Article 2320. It provides in part (emphasis added):

Masters and servants are answerable for the damage occasioned |3by their servants and overseers, in the exercise of the functions in which they are employed.
Teachers and artisans are answerable for the damage caused by their scholars or apprentices while under their superintendence.
In the above cases, responsibility only attaches, when the masters or employers, teachers or artisans, might have prevented the act which caused the damage, and have not done it.
The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.

First, we note, there is no evidence nor allegation that Stanford “might have prevented” Vidrine’s intoxication. Additionally, Stanford insisted that Vidrine be tested immediately following the accident and fired him when he refused to be tested. Thus, under the express provisions of La. Civ.Code art. 2320, Stanford’s vicarious liability for damages which resulted from Vidrine’s intoxicated state hinges upon whether it could have prevented Vidrine from driving while under the influence of drugs or alcohol. Further, we find this Article addresses only the compensatory damages which Stanford’s servant may have caused by his negligence. The Louisiana Supreme Court, when reviewing similar language found in La. Civ.Code art. 2324, held:

[T]he language of Article 2324 that co-conspirators are answerable in solido ‘for the damage caused by such act’ indicates that the Article imposes soli-dary liability only for compensatory damages. As the dissenting judge in the court of appeal below points out, this wording is important. See (Ross [v. Conoco, Inc., 00-1757 (La.App. 3 Cir. 12/26/01)], 805 So.2d [352], 369.) (Amy, J., dissenting). It is compensatory damages that recompense a plaintiff for injury caused by a defendant’s act. Punitive damages, on the other hand, are not caused by a defendant’s act and are not designed to make an injured party ‘whole.’ Rather, they are meant to punish the tortfeasor and deter specific conduct to protect the public interest. Billiot [v. B.P. Oil Co., 93-1118 (La.9/28/94), 645 So.2d 604], 612 [overruled on other grounds Adams v. J.E. Merit Constr., 97-2005 (La.5/19/98), 712 So.2d 88.] Consequently, we conclude that the solidarity imposed by Article 2324, cannot be used to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each cojconspirator’s4 individual conduct must fall within the scope of the applicable penal statute. Ross, 828 So.2d at 552-53.

Likewise, there is no reference in Article 2320 to vicarious liability for punitive damages imposed upon an individual for proscribed behavior.

The language of Article 2315.4 is clear and unambiguous. It expressly provides for punitive damages against “a defendant ” who recklessly or wantonly disregards the safety of others by driving while intoxicated. The article is clearly aimed at the offending person’s behavior and none other. We addressed the application of Article 2315.4 to persons who supplied liquor to a driver in Bourque v. Bailey, 93-1657 (La.App. 3 Cir. 9/21/94), 643 So.2d 236, writ denied, 94-2619 (La.12/16/94), 648 So.2d 392. In that case, later cited by the Louisiana Supreme Court with approval, we refused to hold third parties who supplied alcoholic beverages to the defendant driver liable for punitive damages which arose as a result of the defendant driver’s intoxication. As we stated in Bourque, 643 So.2d at 239 (emphasis added):

In light of the intentions of the legislature as revealed by the article’s clear terms and other related legislation on the subject, we hold that LSA-C.C. art. 2315.4 limits those from whom penal relief might be obtained to ‘a defendant whose intoxication while operating a motor vehicle was a cause in fact ...’ of injuries to others. Significantly, the provision defines a limited, class of individuals against whom exemplary damages may be awarded, not one which works to deny an accident victim his right to compensatory damages in derogation of LSA-C.C. art. 2315.1. Cf., Monteville v. Terrebonne Par. Con. Gov’t., 567 So.2d 1097, 1100 (La.1990); Cf. Joe, Inc. v. Chevron U.S.A., Inc., 561 So.2d 62, 64 (La.1990).

We also rejected the contention in Bo-urque that the third parties who supplied liquor to the defendant should be held liable in solido for any exemplary damages assessed against the defendant intoxicated driver. We held:

Neither Thibaut [v. Thibaut, 607 So.2d 587 (La.App. 1st Cir.), writs denied, 612 So.2d 37 (La.1993)] nor Narcise [v. Illinois Cent. R. Co., 427 So.2d 1192 (La.1983)] control the question of whether a co-defendant found liable for general damages may be summoned simply on account of its co-defendant status to bear the responsibility of another condemned to pay exemplary damages. Bearing in mind the nature of exemplary damages, International Harvester Credit, supra, and that LSA-C.C. art. 2315.4 is designed to penalize an intoxicated tortfeasor, not to compensate injured plaintiffs, we hold that those whose conduct is not directly targeted by LSA-C.C. art. 2315.4 cannot be bound by LSA-C.C. art. 2324 to shoulder that responsibility. Stated differently, we hold that, directly or indirectly, only the intoxicated driver, his insurer, and legal representatives — in other words, those affiliated with the party targeted by the punitive provisions of LSA-C.C. art 2315.4 — may be assessed with punitive damages under that provision. A contrary conclusion would be analogous to finding a liability insurer liable in solido with its insured beyond its policy limits, something which is verboten. See generally, Fertitta v. Allstate Ins. Co., 462 So.2d 159, 162, n. 4, and accompanying text. (La.1985).

Bourque, 643 So.2d at 241 (emphasis added).

In Ross, the Louisiana Supreme Court, quoting from our decision in Bourque, rejected the assessment of punitive damages against co-conspirators under the provisions of former LSA-Civ.Code art. 2315.3. The court in Ross stated:

In Bourque v. Bailey, 93-1657 (La.App. 3d Cir.9/21/94), 643 So.2d 236, writ denied, 94-2619 (La.12/16/94), 648 So.2d 392, a panel of the Third Circuit Court of Appeal considered the issue of whether persons who contribute to the intoxication of the driver, including a bar owner, store proprietor, and/or passenger who supply the driver with alcohol, could be cast with punitive damages through Article 2324. The court noted that Article 2315.4 must be narrowly interpreted and that punitive damages are designed to penalize an intoxicated tortfeasor, not simply to compensate an injured plaintiff. Bourque, 643 So.2d at 241. The court relied on the legislative history of Article 2315.4 to determine that the intoxicated driver was the only party covered by the statute. Id. Accordingly, the court held that those co-defendant participants whose conduct is not directly targeted by article 23154 cannot be bound by Article 2324, to shoulder the punitive damages responsibility. Id.

Ross, 828 So.2d at 554 (emphasis added). There is nothing in the record which demonstrates any behavior on the part of Stanford for which Stanford should be penalized as an offending tortfeasor.

In reaching its decision in Ross, the Louisiana Supreme Court also relied on its Indecision in Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708:

This court in Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708, adopted the reasoning of Bourque and concluded that the legislature attempted to target only the conduct of the intoxicated driver of the motor vehicle when it passed Article 2315.4; thus, the Article does not allow the imposition of punitive dam-ayes against persons who have allegedly contributed to the driver’s intoxication. As we determine here, former Article 2815.3 was similarly targeted only at those parties who directly store, handle, or transport the hazardous substance that harms the plaintiff. Accordingly, alleged co-conspirators cannot be brought within the scope of this punitive statute through application of Article 2324.

Ross, 828 So.2d at 554 (emphasis added). The Louisiana Supreme Court in Ross expressly rejected the lower court’s “expansive interpretation” of former Article 2315.3 and found it failed to adhere to the policy of strict construction of our punitive statutes. Id. at 555. In view of the rationale stated in these decisions we do not believe that the punitive damages provided for in LSA-Civ.Code art. 2315.4 can be assessed against Stanford as Vidrine’s employer, especially where there has been no allegation nor any showing made that Stanford in any manner contributed to Vidrine’s intoxication. The trial court correctly rejected Plaintiffs motions. The ruling of the trial court is affirmed and all costs of this appeal are assessed against Plaintiff.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

Dissenting.

_JjThe majority is simply wrong.

The majority quotes La.Civ.Code art. 2320 emphasizing that portion which states that the vicarious responsibility only attaches when the masters might have prevented the act which caused the damage and have not done it. The majority then states: “there is no evidence nor allegation that Stanford ‘might have prevented’ Vid-rine’s intoxication.” The majority also notes that “[t]here is nothing in the record which demonstrates any behavior on the part of Stanford for which Stanford should be penalized as an offending tortfeasor.” The majority further points that no damages can be assessed against Stanford “especially where there has been no allegation nor any showing made that Stanford in any manner contributed to Vidrine’s intoxication.”

Neither compensatory nor punitive damages would accrue to Stanford because La. Civ. Code art. 2320 applies, at the very least, to compensatory damages. Moreover, this view fails to recognize that if there were evidence of Stanford’s behavior in that manner, the plaintiff would not need the vicarious theory of liability. It could proceed against Stanford directly. The majority’s interpretation of the statute would render the doctrine of respondeat superior virtually meaningless by limiting the |2employer’s liability to those cases in which the employer would itself be directly liable. If this understanding of the majority’s holding is correct, and Stanford is not vicariously liable even for the compensatory damages, I fail to comprehend why the majority goes on to discuss vicarious liability for the punitive damages.

If for some reason I have misunderstood the majority’s reasoning, and Stanford can be liable for compensatory damages, then, Stanford is liable for punitive damages as well. The majority begins by an erroneous assertion: “our courts have not had occasion to rule directly on the question of whether punitive damages ... can be imposed upon a party vicariously liable for general damages.... ” In fact, “[ejmploy-ers have been held vicariously responsible for the punitive damages chargeable to their employee-drivers.” 12 William E. Crawford, Louisiana Civil Law Treatise § 9:16 (2d ed.2009) (citing Lacoste v. Crochet, 99-602 (La.App. 4 Cir. 1/5/00), 751 So.2d 998; Curtis v. Rome, 98-966-70 (La.App. 4 Cir. 5/5/99), 735 So.2d 822, writ denied, Rambo v. Rome, 99-1617 (La.10/1/99), 748 So.2d 441). Thus, while ignoring the on-point jurisprudence, the majority relies exclusively on the jurisprudence which held La.Civ.Code art. 2324 (liability as solidary or joint and divisible obligation) inapplicable to expand the liability for punitive damages on other defendants (Ross v. Conoco, Inc., 02-299 (La.10/15/02), 828 So.2d 546; Bourque v. Bailey, 93-1657 (La.App. 3 Cir. 9/21/94, 643 So.2d 236), writ denied, 94-2619 (La.12/16/94), 648 So.2d 392). For the following reasons, this reliance is, at best, misguided.

First, when the supreme court faced the question as to whether solidarity liable defendants could be solidarity liable for punitive damages, it expressly cautioned that its analysis did not encompass vicariously liable defendants. Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708. Second, the same court that held the employer vicariously liable for punitive damages distinguished that jurisprudence and ruled that l.gthe solidarity of an obligation to pay compensatory damages does not make all of the defendants solidarily liable for punitive damages. Berg v. Zummo, 99-974 (La.App. 4 Cir. 5/10/00), 763 So.2d 57, rev’d on other grounds, 00-1699 (La.4/25/01), 786 So.2d 708. Thus, both the supreme court and our sister jurisdiction at the fourth circuit had no difficulty recognizing that solidary and vicarious liability are two completely different and unrelated theories of liability.

Quoting at some length Ross, 828 So.2d 546, the majority fails to distinguish the relationship and the accompanying policy considerations between the punitively — liable tortfeasor and his co-conspirators and the punitively — liable tortfeasor and his employer. The focus in the conspirators’ punitive liability is on the person(s) whose culpable conduct caused plaintiffs injuries. Thus, “the solidarity imposed by Article 2324 cannot be used to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each co-conspirator’s individual conduct must fall within the scope of the applicable penal statute.” Id. at 553. The theory of vicarious liability is different in that the focus is not on the culpability of the defendant but on who will be paying for the damages once they are assessed. This is because a corporate employer who acts only through its employees is always deemed culpable when the employee, acting in the course and scope of the employment, is held liable for punitive damages.

The courts of this state have understood this wisdom for some time. Over ten years ago, the fifth circuit confronted the question of whether to assess punitive damages against the principal whose agent was held liable for punitive damages. There, the presently-repealed statute authorized punitive damages for wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances. The court observed:

|4It seems to us that to hold that the negligence of an agent cannot be imputed to the principal in awarding punitive damages would have the effect of virtually eliminating punitive damage awards. Likewise, in order to avoid punitive damage liability, a corporation would simply have to create a separate entity to perform the hazardous activities, thus insulating itself from punitive liability. To allow punitive liability to be so easily sidestepped runs counter to the legislature’s public policy concerns in imposing punitive damages in certain enumerated situations. As such, we find that negligence for punitive damages, like any other type of negligence, may be imputed to a principal through the acts of an agent.

Rivera v. United Gas Pipeline Co., 96-502, 96-503, 97-161, p. 10 (La.App. 5 Cir. 6/30/97), 697 So.2d 327, 336, writs denied, 97-2030-32, 97-2034, (La.12/12/97), 704 So.2d 1196-97.

The fourth circuit, when presented with the same question this court now faces, has ruled twice that the employer is vicariously responsible for the punitive damages assessed against its intoxicated employee-driver in Curtis, 735 So.2d 822 and in Lacoste, 751 So.2d 998. Most likely because the resolution of the issue was so self-explanatory and self-evident the fourth circuit did not provide much reasoning behind its decision. I have no doubt, though, that the court was driven by the same considerations the fifth circuit so aptly observed in Rivera, 697 So.2d 327 noted above.

These observations are certainly not new. Over a hundred years ago, the courts of this country had the acumen of holding corporations vicariously liable for punitive damages and noted the folly of requiring corporate culpability independent of the employee’s culpability:

A corporation is an imaginary being. It has no mind but the mind of its servants; it has no voice but the voice of its servants; and it has no hands with which to act but the hands of its servants. All its schemes of mischief, as well as its schemes of public enterprise, are conceived by human minds and executed by human hands; and these minds and hands are its servants’ minds and hands. All attempts, therefore, to distinguish between the guilt of the servant and the guilt of | fithe corporation; or the malice of the servant and the malice of the corporation; or the punishment of the servant and the punishment of the corporation, is sheer nonsense; and only tends to confuse the mind and confound the judgment. Neither guilt, malice, nor suffering is predicable of this ideal existence, called a corporation. And yet under cover of its name and authority, there is in fact as much wickedness, and as much that is deserving of punishment, as can be found anywhere else. And since these ideal existences can neither be hung, imprisoned, whipped, or put in the stocks, — since in fact no corrective influence can be brought to bear upon them except that of pecuniary loss, — it does seem to us that the doctrine of exemplary damages is more beneficial in its application to them, than in its application to natural persons. If those who are in the habit of thinking that it is a terrible hardship to punish an innocent corporation for the wickedness of its agents and servants, will for a moment reflect upon the absurdity of their own thoughts, their anxiety will be cured.... There is but one vulnerable point about these ideal existences, called corporations; and that is, the pocket of the monied power that is concealed behind them; and if that is reached they will wince. When it is thoroughly understood that it is not profitable to employ careless and indifferent agents, or reckless and insolent servants, better men will take their places, and not before.

Goddard v. Grand Trank Ry., 57 Me. 202, 223-24 (1869) (emphasis added). Thus, when an employee is culpable and is liable for punitive damages, the corporate employer is always culpable as well because the corporate employer acts only through its employees.

Even if one entertains the idea that the employer is an innocent party the result must be, nevertheless, the same. The majority states that La.Civ.Code art. 2315.4 “is clearly aimed at the offending person’s behavior and none other.” That an insurer has been held liable for punitive damages assessed against its insured makes the majority’s observation erroneous. See Sharp v. Daigre, 555 So.2d 1361 (La.1990); Creech v. Aetna Cas. & Sur. Co., 516 So.2d 1168 (La.App. 2 Cir.1987), writ denied, 519 So.2d 128 (La.1988). “LSA-C.C. art. 2815.4 has a dual purpose, to penalize (and therefore deter) the drunk driver, as well as to provide damages for the victim of such | (¡driver.” Sharp v. Daigre, 545 So.2d 1063, 1064-65 (La.App. 1 Cir.1989), aff'd, 555 So.2d 1361 (La.1990) (citing Morvant v. U.S. Fid. & Guar. Co., 538 So.2d 1107 (La.App. 5 Cir.), writ denied, 541 So.2d 875 (La.1989)). As I have mentioned before, a different set of policy considerations applies when it comes to employers as opposed to co-conspirators, and those considerations are similar to those which hold an insurer liable for punitive damages.

The court explained:

Although the purpose of punitive damages is to punish and deter, the injured party receives the benefit of such payment and from the plaintiffs standpoint, punitive damages are additional compensation for the egregious conduct inflicted upon him.
It is true that the purpose of punitive damages is to discourage egregious conduct. However, deterrence is one of the complex of purposes that is said to lie at the heart of all tort law, not merely that aspect labeled “punitive.”

Creech, 516 So.2d at 1173 (citation omitted).

Unlike the case of co-conspirators, the focus, when it comes to insurers and employers, is not on whose culpable conduct caused the injury but on who is responsible to pay the damages once the injury occurred. Even if I accepted the premise that the employer is an innocent party, the employer is still liable just like the innocent insurer is. This is because once the injury occurs in the manner that our legislature has deemed atrocious, reprehensible, and outrageous by way of providing for punitive damages between the two innocent parties: the victim and the insurer or the victim and the employer, the party who is more capable to bear the loss should do so. In this case, it is the employer.

Both employers and insurers accept the responsibility to pay for the culpable conduct of their employees and insureds, respectively. Like an insurer who |7chooses to insure a particular risk, an employer chooses to employ a particular person. The only difference is that the insurer accepts the responsibility contractually, and the employer does so by virtue of hiring the person. Again, if the employer were indeed culpable and not simply deemed to be so, then the plaintiff would be able to proceed directly against the employer and would not need to rely on a theory of vicarious liability.

The majority quotes Ross, 828 So.2d 546, at some length regarding the object of punitive damages. As explained above, the object of deterrence is achieved if the exemplary “damages will encourage employers to exercise closer control over their servants for the prevention of outrageous torts.” W. Page Keeton et al., PRos-ser & Keeton on the Law of Torts § 2 (5th ed.1984). Yet, I also note that the majority fails to recognize that punitive damages have a “hybrid nature.” 6 Saul Litvinoff, Louisiana Civil Law Treatise § 7.2 (1999). “Deterrence is only one aspect of exemplary damages.” Sharp, 545 So.2d at 1068. “It is true that the purpose of punitive damages is to discourage egregious conduct. However, deterrence is one of the complex of purposes that is said to lie at the heart of all tort law, not merely that aspect labeled ‘punitive.’ ” Creech, 516 So.2d at 1173 (citation omitted). See also 6 |sSaul Litvinoff, Louisiana Civil Law Treatise § 7.2, 7.7 (1999) for a discussion on the nature of punitive damages.

Moreover, in our legal system where the plaintiff bears her attorney costs, it is difficult to maintain that compensatory damages adequately compensate the victim. Thus, punitive damages, in addition to punishing the tortfeasor, help defray the plaintiffs legal expenses as well as “solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation, or other aggravations of the original wrong.” Sharp, 545 So.2d at 1064 (quoting Black’s Law Dictionary 352 (5th ed.1979)). Therefore, holding the employer vicariously liable for the punitive damages assessed against its employees acting in the course and scope of their employment achieves all of the goals of punitive damages.

For the foregoing reasons, I respectfully dissent.

      . In fact, insurers have been held to an even higher standard. Thus, a plaintiff may recover punitive damages against the insurer under the uninsured motorist coverage. In the case of uninsured motorist, the insurer never knows against whom it is insuring. Nevertheless, the insurer is liable for the punitive damages because "compensation for the victim plaintiff is an aspect of LSA-C.C. art. 2315.4, which is just as important as is deterrence.” Sharp, 545 So.2d at 1065 (quoting Morvant, 538 So.2d at 1109).

      . Under the majority’s reasoning, I cannot see how the corporate employer could ever be culpable or liable for any damages, compensatory or exemplary. This is because when one states that a corporation is culpable it means not that the corporation has acted in a particular manner, because it is impossible for it to do so, but it means that its agents/employees acted so. I believe it is safe to assume that when faced with any liability, a corporation (again, thorough its other employees and agents) would attempt to shift the responsibility from itself and onto the employees claiming innocence. If we follow the majority’s reasoning to its logical conclusion, then a corporate defendant would never be liable for anything. When the majority stresses the lack of evidence of Stanford’s contribution to Vidrine's intoxication, the majority implicitly requires an impossibility. "Stanford’s behavior” will always be through its employees only. Thus, because "Stanford” never really acts, it will be liable for neither compensatory nor punitive damages. Instead, only Stanford’s employees will be liable.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Timothy D. PERKINS.
    No. 10-554.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 29, 2010.
    Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for the State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant Timothy D. Perkins.
    Court composed SYLVIA R. COOKS, OSWALD A. DECUIR and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

I , FACTS AND PROCEDURAL HISTORY

Timothy D. Perkins (Defendant) was convicted by a jury of attempted distribution of cocaine, a violation of La.R.S. 14:27 and La.R.S. 40:967(A)(1). This court affirmed that conviction in State v. Perkins, 07-423 (La.App. 3 Cir. 10/31/07), 968 So.2d 1178. We declined to address issues related to Defendant’s sentence in that appeal finding such issues were not properly before the court. Defendant was tried and convicted on these charges in the Fourteenth Judicial District Court under Docket Number 5949-05. Defendant was also billed as a multiple felony offender, second offense, under a different docket number in the Fourteenth Judicial District Court, Docket Number 17386-06. After the jury verdict was rendered in Docket Number 5949-05, Defendant filed a motion for new trial in that matter on November 21, 2006. Following the hearing on January 5, 2007, the trial court denied Defendant’s motion for new trial in Docket Number 5949-05, and immediately proceeded to hear the habitual offender charge under Docket Number 17386-06. As this court noted in Perkins, 968 So.2d at 1183, the state requested the court proceed with Defendant’s sentencing under the habitual offender charge:

‘Only as it relates to habitual offender second and the offense of distribution of cocaine.’ When the trial court asked the defendant’s attorney if he had any response, the attorney responded ‘No, Judge.’ The trial court then sentenced the defendant as an habitual offender.

The trial court found the state proved Defendant was a second offense habitual offender and sentenced him accordingly. This court found in Perkins, 968 So.2d at 1184, that “all sentencing issues are found in” Docket Number 17386-06 and therefore this court had no jurisdiction in the appeal under Docket Number 5940-05 to consider sentencing issues. The Louisiana Supreme Court first denied writs in State v. Perkins, 07-2408 (La.5/9/08), 980 So.2d 688 concerning Docket Number 5949-05, Fourteenth Judicial District Court. Subsequently, the Louisiana Supreme Court ^granted writs in State v. Perkins, 09-0651 (La.1/22/10), 25 So.3d 139, and remanded, ordering the district court to grant defendant an out-of-time appeal on his habitual offender adjudication and sentence under Docket Number 17386-06 and to appoint counsel to represent him on appeal, denying Defendant’s application “in all other respects.” Id.

The trial court thereafter issued an order dated January 27, 2010 granting Defendant an out-of-time appeal to his adjudication under the habitual offender charge and the sentence imposed thereunder. Defendant now seeks review of his sentence imposed under the enhancement provisions as a second offense felony offender. He asserts two assignments of error: (1) that the trial court erred in imposing sentence without waiting twenty-four hours following the denial of Defendant’s motion for new trial and (2) that the sentence imposed is excessive.

LEGAL ANALYSIS

Defendant relies on the provisions of La.Code Crim. P. article 873 in support of his first assignment of error. Article 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

The State argues in brief that because the motion for new trial was filed under the docket number for the original conviction, and sentence was imposed under a different docket number for the habitual offender proceeding, the provisions of Article 873 regarding the twenty-four hour time frame between the denial of the motion for new trial and sentencing do not apply. We must reject that argument. The Louisiana Supreme Court, in reversing our court’s dismissal of an appeal, expressly instated (emphasis added):

Although that order of appeal carried only the docket number for the charged offense and not the separate docket number given the subsequent habitual offender proceeding, the order necessarily encompassed both defendant’s conviction and sentence. Habitual offender proceedings do not charge a separate crime but are a part of the original proceeding leading to conviction, State v. Alexander, 325 So.2d 777, 779 (La.1976).

State v. Means, 09-1716, p. 2 (La.4/9/10), 32 So.3d 805, 806.

If, as our State Supreme Court has stated, habitual offender proceedings are a part of the original proceeding, the trial court could not properly proceed to sentencing immediately after denying Defendant’s motion for new trial without waiting the required twenty-four hours. It is of no moment that the habitual offender charge is under a different docket number.

Although Defendant does not argue that he has been prejudiced in any way by the trial court’s failure to wait the requisite twenty-four hours before proceeding with sentencing, we are bound by the Louisiana Supreme Court’s ruling on this issue. In State v. Augustine, 555 So.2d 1331 (La.1990) the Louisiana Supreme Court held:

The last issue before us concerns the mandatory delays specified in La. C.Cr.P. art. 873 which must be observed before sentence can be imposed. Art. 873 first provides for a three day delay between conviction of the defendant and sentencing. (The original provision provided for a 24-hour delay. That was amended to three days in the 1966 Code of Criminal Procedure. 1966 La. Acts No. 310, § 1). The second requires a 24-hour delay between the denial of a new trial or judgment for acquittal, and sentencing. These statutorily mandated delays have been respected in a long line of opinions. State v. Mistich, 186 La. 174, 171 So. 841 (1937) called a sentence “premature and therefore void,” because the sentence was imposed within the then 24r-hour delay required between conviction and sentence. In State v. George, 218 La. 18, 48 So.2d 265 (1950), cert. denied, 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684 (1951), the Court also addressed that same 24-hour delay, and found that “if [defendant] is denied the right to this delay, any sentence so imposed is void.”
More recent decisions of this Court include a per curiam opinion in State v. Hampton, 274 So.2d 383 (La.1973), and a pair of decisions ^authored by Justice Marcus, State v. Young, 337 So.2d 1196 (La.1976) and State v. Hutto, 349 So.2d 318 (La.1977). These cases all involved a violation of the delay between denial of a new trial motion and sentencing. In Hutto and Young, the Court found that the sentence was “illegally imposed” when, just as in this case under review, both of those defendants were sentenced within 24 hours after denial of new trial motions, with neither having waived the delay. These are only a few of such decisions by this Court holding that violation of art. 873 requires remand for resentencing.
“Article 873 uses mandatory language in requiring that twenty-four hours elapse between the overruling of a motion for new trial and sentencing when the defendant is convicted of a felony.... The legislature in effect has said that a failure to comply with article 873 in the absence of an express waiver by the defendant affects substantial rights.”
State v. White, 483 So.2d 1005 (La.1986), Dennis, J., dissenting in part.
Only the majority opinion in State v. White, 404 So.2d 1202 (La.1981) can possibly be considered at variance with this rule. But even that case is largely distinguishable from this one. We held in White (over the protest of two dissenting justices) that the statutory mandate of the 24-hour delay was not so imperative as to require a resentencing where the defendant could not show that he suffered prejudice from the violation. State v. White, however, was before us on an errors patent review (no assignments of error urged by the defendant on this issue), and the defendant was not challenging the penalty imposed.
In.the case before us, Augustine did not expressly waive the delay as required by art. 873 (nor did he plead guilty); and he does challenge the penalty on this appeal.
Furthermore, there is no assurance that this is a “useless formality for reim-position of sentence,” as was the majority’s conclusion in White. For all we know, a reimposition might result in a sentence less than 40 years for this man, who was 18 years old at the time of the offense, who robbed his victim with a racing starter’s pistol, and who did not have any prior convictions at the time of the offense.
The fact that defendant Augustine has already served 18 of his 40 years before the appeal was reviewed is no reason to deny him the treatment afforded the defendants Hutto, Young, Hampton, Scott, George, Mistich and others (citations to these cases above), who were ordered resentenced shortly after conviction.
The suggestion that the defendant was not harmed because his sentence was in fact not unconstitutionally excessive is not meritorious. | ¡¡Constitutional excessiveness of sentence and illegal imposition of sentence are quite separate and distinct matters. A sentence illegally imposed, even one not constitutionally excessive, is null, and constitutes no valid premise for continued incarceration. Furthermore, the district court (upon resentencing) is not bound by the sentence previously imposed, whereas this Court is bound by a legally imposed sentence which is not unconstitutionally excessive.

Augustine, 555 So.2d at 1333-34 (footnote omitted).

Like Augustine, Defendant did not expressly waive the delay in sentencing, he did not plead guilty, and he does challenge the sentence imposed. The sentence must be vacated and the case remanded for resentencing. In light of our decision Defendant’s second assignment of error is moot and will not be considered.

SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.


author: GUIDRY, J.

text:
    Bridget HOAGBOON v. Brandie CANNON, GEICO General Insurance Company, and AAA Insurance.
    No. 2010 CA 0909.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 29, 2010.

      James P. DeSonier, Mandeville, LA, for Plaintiff/Appellant, Bridget Hoagboon.
    Bradley J. Luminals, Jr., Metairie, LA, for Defendant/Appellee, Automobile Club Inter-Insurance Exchange.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

12Appellant, whose vehicle was rear-ended by a following motorist, appeals the judgment of the trial court dismissing her claims against her insurer as being outside the scope of her economic only uninsured/underinsured motorist (EOUM) coverage. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

As a result of an accident on the Causeway Bridge in Jefferson Parish that occurred on October 30, 2006, Bridget Hoagboon filed a petition against Brandie Cannon, GEICO General Insurance Company as the liability insurer of Ms. Cannon, and Automobile Club Inter-Insurance Exchange (Automobile Club) as her EOUM insurer, which Ms. Hoagboon incorrectly identified in her petition as “AAA Insurance.” Ms. Hoagboon eventually settled her claims against Ms. Cannon and Ms. Cannon’s insurer, and the case proceeded to trial against Automobile Club solely on Ms. Ploagboon’s claims for future loss of wages and future medical expenses. Ms. Hoagboon also sought an assessment of penalties and attorney fees against Automobile Club for allegedly wrongfully denying her claim for such damages.

In lieu of a formal trial, the parties submitted the matter on written memoran-da with attached documentary evidence. Following consideration of the parties’ submissions, the trial court rendered judgment in favor of Automobile Club, finding that, based on the express language of Automobile Club’s EOUM policy, Ms. Hoagboon was not entitled to payment for her claims for future loss of wages and future medical expenses. Consequently, the trial court denied Ms. Hoagboon’s claims for future loss of wages and future medical expenses, without prejudice, and denied her related request for penalties and attorney fees, with prejudice, in a judgment signed February 4, 2010, taxing three-fourths of the court costs to Automobile Club and one-fourth to Ms. Hoagboon. It is from this ^judgment that Ms. Hoag-boon appeals, asserting that the trial court erred in: (1) failing to award future medical expenses; (2) failing to award future loss of wages; (3) failing to award penalties and attorney fees; and (4) taxing her with one-fourth of the court costs.

DISCUSSION

The primary issue raised in this appeal is whether the trial court legally erred in its interpretation and application of Automobile Club’s EOUM policy. See Butler v. Allen, 00-1726, p. 3 (La.App. 1st Cir.9/28/01), 808 So.2d 746, 748, writ denied, 01-2924 (La.2/1/02), 808 So.2d 331.

According to the Automobile Club EOUM policy issued to Ms. Hoagboon, coverage is only provided for “economic-only damages,” which are defined in the policy as “payments to reimburse an injured person for documented dollar loss due to an accident.” The policy goes on to specify “economic-only damages” as “medical bills, funeral expenses, wages lost from missing work including use of sick leave, bills for necessary replacement services, and reimbursement to an employer to reinstate sick leave.” Based on this policy language, the trial court found that, because Ms. Hoagboon’s claims for future loss of wages and future medical expenses were not incurred and documented, she was not entitled to payment for those claims.

Generally, an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Hebert v. Webre, 08-0060, p. 4 (La.5/21/08), 982 So.2d 770, 773. Thus, if the wording of the policy is clear and explicit and leads to no absurd consequences, the agreement should be enforced as written. See Hebert, 08-0060 at 4, 982 So.2d at 773; see also La. C.C. art. 2046. Moreover, insurers have the right to limit coverage in any manner desired, so long as the limitations are clearly and unambiguously set forth in the contract and are not in conflict with statutory | .provisions or public policy. Anderson v. State Farm Fire & Casualty Insurance Company, 10-0036, p. 6 (La.App. 1st Cir.7/16/10), 42 So.3d 1140, 1144.

Nevertheless, an insurance policy issued in Louisiana is considered to contain all the standard provisions required by statute. Marcus v. Hanover Insurance Co., Inc., 98-2040, p. 4 (La.6/4/99), 740 So.2d 603, 606; see La. R.S. 22:863(A). According to La. R.S. 22:863(B):

No insurance contract shall contain any provision inconsistent with or contradictory to any such standard provision used or required to be used, but the commissioner of insurance may approve any provision which is in his opinion more favorable to the insured than the standard provision or optional standard provision otherwise required. No endorsement, rider, or other documents attached to such contract shall vary, extend, or in any respect conflict with any such standard provision, so as to make the resulting effective provision less favorable to the insured than such standard provision.

Any policy provision that narrows or restricts statutorily-mandated coverage will not be enforced, because an insurer is not at liberty to limit its liability and impose conditions upon its obligations that conflict with statutory law or public policy. Marcus, 98-2040 at 4, 740 So.2d at 606.

The statutory requirements for EOUM coverage are provided in La. R.S. 22:1295(l)(a)(i), which states, in pertinent part:

Insurers may also make available, at a reduced premium, the coverage provided under this Section [ie., uninsured motorist coverage] with an exclusion for all noneconomic loss. This coverage shall be known as “economic-only” uninsured motorist coverage. Noneconomic loss means any loss other than economic loss and includes but is not limited to pain, suffering, inconvenience, mental anguish, and other noneconomic damages otherwise recoverable under the laws of this state.

In Butler, 00-1726 at 6, 808 So.2d at 750, this court considered this statutory language and explained that the EOUM coverage authorized by statute | fallows the insured to recover only special damages.” Thus, any provision providing for a restriction of this coverage is in derogation of the statute. Cf. Fisher v. Morrison, 519 So.2d 805, 810 (La.App. 1st Cir.1987). Future loss of wages and future medical expenses are special damages claims. See Angeron v. Martin, 93-2381, p. 2 (La.App. 1st Cir.12/22/94), 649 So.2d 40, 42; Cottle v. Conagra Poultry Company, 06-1160, p. 3 (La.App. 3d Cir.3/14/07), 954 So.2d 255, 257.

Thus, considering the statutory language, Automobile Club’s EOUM provision restricts the coverage provided by statute by imposing the condition that any economic damages claimed must first be incurred and documented to be covered under the policy. As such, this more restrictive language contained in the EOUM policy is contrary to the statute and thus unenforceable. Cf. Fisher, 519 So.2d at 810; Mednick v. State Farm Mutual Automobile Insurance Company, 09-183, pp. 6-7 (La.App. 5th Cir.1/26/10), 31 So.3d 1133, 1137. However, for the following reasons, we conclude that the trial court did not err in denying Ms. Hoagboon’s claims for future loss of wages and future medical expenses based on her failure to meet her burden of proving her entitlement to such damages.

Awards for both future loss of income and future medical expenses are inherently speculative and not susceptible of being calculated with mathematical 1 ^certainty. See Menard v. Lafayette Insurance Company, 09-1869. p. 13 (La.3/16/10), 31 So.3d 996, 1006; Jenkins v. State ex rel. Department of Transportation and Development, 06-1804, p. 36 (La.App. 1st Cir.8/19/08), 993 So.2d 749, 772, writ denied, 08-2471 (La.12/19/08), 996 So.2d 1133. Nevertheless, awards for future loss of wages cannot be based purely on speculation, conjecture, and probabilities, nor simply on the difference between the plaintiffs earnings before and after a disabling injury. See Jenkins, 06-1804 at 41, 993 So.2d at 775; Levy v. Bayou Indus. Maintenance Services, Inc., 03-0037, p. 4 (La.App. 1st Cir.9/26/03), 855 So.2d 968, 973, writs denied, 03-3161 and 03-3200 (La.2/6/04), 865 So.2d 724 and 727. Rather, the award is predicated upon the difference between a plaintiffs earning capacity before and after a disabling injury, usually as established by projections from a financial expert that have a factual basis in the record. Levy, 03-0037 at 5, 855 So.2d at 973. The record before us does not contain any such evidence to support Ms. Hoagboon’s claim of future loss of income.

Likewise, in order to recover future medical expenses, the appellate record must establish that future medical expenses will be necessary and inevitable. An award of future medical expenses will not be supported in the absence of medical testimony establishing that they are indicated and setting out their probable cost. Jenkins, 06-1804 at 43, 993 So.2d at 776. There is no evidence in the record before us that it is more probable than not that it will be necessary and inevitable for Ms. Hoagboon to incur future medical expenses, and in the absence of such evidence, Ms. Hoagboon’s claim for future medical expenses must fail.

|7In order to establish a cause of action for penalties and/or attorney fees and costs under La. R.S. 22:1892, a claimant must show that (1) an insurer has received satisfactory proof of loss, (2) the insurer failed to tender payment within thirty days of receipt thereof, and (3) the insurer’s failure to pay is arbitrary, capricious, or without probable cause. See La. R.S. 22:1892(B)(1); Guillory v. Lee, 09-0075, p. 30 (La.6/26/09), 16 So.3d 1104, 1126. Statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense, especially when there is a reasonable and legitimate question as to the extent and causation of a claim, and bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubt exists. Guillory, 09-0075 at 32, 16 So.3d at 1127.

Finally, the question of arbitrary and capricious behavior is essentially a factual issue, and the trial court’s finding should not be disturbed on appeal absent manifest error. Guillory, 09-0075 at 32, 16 So.3d at 1127. After a thorough review of the record before us, because we find Ms. Hoag-boon has not proven an entitlement to future loss of wages or future medical expenses, we find no error in the trial court’s determination that the assessment of penalties and attorney fees pursuant to La. R.S. 22:1892(B)(1) was not warranted.

Furthermore, although a party cast in judgment should generally be taxed with costs, the trial court may assess costs of a suit in any equitable manner. La. C.C.P. art. 1920; Cortes v. Lynch, 02-1498, p. 13 (La.App. 1st Cir.5/9/03), 846 So.2d 945, 953. It has been held that absent a showing that the prevailing party caused costs to be incurred pointlessly or engaged in other conduct justifying assessment of costs against it, a trial court abuses its discretion in assessing costs equally between parties, as all costs should be assessed against the losing party. See Polk Chevrolet, Inc. v. Webb, 572 So.2d 1112, 1116 (La.App. 1st Cir.1990), writ denied, 575 So.2d 394 (La.1991).

Ms. Hoagboon clearly did not prevail in the proceedings below, and we can find no evidence in the record before us indicating that Automobile Club needlessly incurred costs or otherwise engaged in conduct justifying assessment of costs. While we acknowledge Ms. Hoagboon’s allegation that the trial court abused its discretion in taxing her with one-fourth of the costs of the trial court proceedings, it appears that the trial court should have assessed Ms. Hoag-boon with all the costs of the proceedings below. However, because Automobile Club did not appeal or file an answer to the appeal, we are precluded from modifying the assessment of costs in its favor, since to do so would result in a modification in favor of the non-appealing party, contrary to Louisiana law. Matthews v. Consolidated Companies, Inc., 95-1925, p. 1 (La.12/8/95), 664 So.2d 1191; see La. C.C.P. arts. 2082 and 2133.

CONCLUSION

Although the trial court committed legal error in simply applying Automobile Club’s EOUM policy without considering whether its provisions comported with applicable statutory law, we nevertheless conclude that coverage of Ms. Hoagboon’s claims was not warranted based on her failure to present evidence sufficient to meet her burden of proving that she will more likely than not incur future loss of wages and future medical expenses. Hence, we affirm the judgment of the trial court in its entirety and assess all costs of this appeal to the appellant, Bridget Hoagboon.

AFFIRMED.

      . Renumbered from La. R.S. 22:680 by 2008 La. Acts, No. 415, § 1, effective January 1, 2009.

      . At the time of the Butler decision, the quoted language defining EOUM coverage was contained in La. R.S. 22:1406(D), which was later redesignated as La. R.S. 22:680 by 2003 La. Acts, No. 456, § 3, before being renumbered as La. R.S. 22:1295 in 2009. The court in Butler also explained policy reasons for enacting EOUM coverage:
      The declared legislative intent of 1997 Acts, No. 1476, known as the "Omnibus Premium Reduction Act of 1997,” was to achieve a significant reduction in the premium rates for motor vehicle insurance. The legislature intended a direct cost savings to citizens of Louisiana. The obvious reason for the lower cost of EO UM coverage is that fewer damages are covered by that type of insurance than the non-economic losses, e.g., pain and suffering, recoverable under the standard UM coverage for bodily injury. Thus, the EO UM coverage provision is meant to provide insurance coverage at a reduced rate to protect persons from suffering economic hardship in the event the tortfeasor is uninsured or un-derinsured.

        Butler, 00-1726 at 5, 808 So.2d at 749.

      . Ms. Hoagboon attempted to submit additional evidence to this court by attaching certain documents to her appellate brief. An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated. See La. C.C.P. arts. 2127, 2128 and Uniform Rules, Courts of Appeal, Rules 2-1.5 to 2-1.9. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Lee v. Twin Brothers Marine Corporation, 03-2034, p. 4 (La.App. 1st Cir.9/17/04), 897 So.2d 35, 37-38.

      . Renumbered from La. R.S. 22:658 by 2008 La. Acts, No. 415, § 1, effective January 1, 2009.


author: PETERS, J. COOKS, J., SAUNDERS, Judge,

text:
    Kirk RICHARD, et al. v. Kimberly Babin RICHARD, et al.
    No. 10-464.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2010.

      Allen A. Krake, Samuel D. Abraham, Dina F. Domangue, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Kirk Richard.
    Elizabeth Ann Dugal, Attorney at Law, Lafayette, LA, for Defendant/Appellee, Kimberly Babin Richard.
    Richard Allen Spears, Attorney At Law, New Iberia, LA, for Defendant/Appellee, Geraldine Babin.
    James “Buddy” Caldwell, Charles T. Cravins, Frank P. Trosclair, Jr., Office of Attorney General, Opelousas, LA, for Defendants/Appellees, Iberia Parish Office of Community Services, State of La., DSS, OCS, Jannenne Trahan, Brandi Derouen, Shanequa Keal-Lewis.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX and SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

IjKirk Richard appeals the trial court’s grant of an exception of prescription that had the effect of dismissing all of his claims for damages against the State of Louisiana Department of Social Services, Office of Community Services; its Iberia Parish office; and three of its Iberia Parish employees: Jannenne Trahan, Brandi Derouen, and Shanequa Keal-Lewis (hereinafter referred to collectively as “the DSS defendants”). For the following reasons, we affirm the trial court’s judgment in part, reverse the trial court’s judgment in part, and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

This litigation arises from complaints by Mr. Richard’s former wife to the Iberia Parish Office of Community Services that Mr. Richard sexually abused his two children. Mr. Richard’s petition for damages asserts that he and Kimberly Babin Richard were married on July 14, 1990, and divorced on November 14, 2006. The petition further asserts that two children, S.R. (born May 23, 2001) and Z.R. (born July 9.2004), were born of the marriage and that as the marriage was coming to an end, Kimberly Richard and others “began a campaign of false accusations and manufactured false evidence in order to deprive him of access to his children.” The petition further asserts that as a result of actions by the DSS defendants, he was subsequently arrested and falsely imprisoned. According to Mr. Richard’s petition, the DSS defendants became caught up in his former wife’s campaign to falsely discredit him and, in doing so, negligently and/or intentionally breached duties owed to him as a part of their investigative obligations.

|2The DSS defendants responded to Mr. Richard’s petition by filing, among other pleadings, a peremptory exception of prescription pursuant La. Code Civ.P. art. 927(A)(1). The trial court took evidence on this exception at an October 2, 2009 hearing and, on October 19, 2009, executed a judgment granting the DSS defendants’ exception of prescription and dismissing Mr. Richard’s claims.

Two of the three individual defendants, Ms. Trahan and Ms. Deroune, testified at the October 2 hearing. Ms. Trahan, who is the supervisor of the child protection investigators working in the Iberia Parish Office of Community Services, testified that the initial investigation of Ms. Richard’s complaints terminated when the office closed its file on April 12, 2006, after transferring the matter to a foster care unit. According to Ms. Trahan, her involvement also terminated at that time, and anything that occurred thereafter occurred within the care and control of the foster care division of the DSS.

Ms. Trahan testified that a second investigation began on November 19, 2007, and was closed on May 29, 2008. In that investigation, DSS validated a complaint against Mr. Richard and reported its findings to the District Attorney’s office, but the District Attorney’s office took no further action. In fact, the foster care unit never even became involved in the second investigation.

Ms. Derouen, who is employed in the foster care unit of DSS, testified that her unit had not been involved in any activity involving Mr. Richard and/or his children since May of 2008.

The DSS defendants offered two exhibits as evidence: (1) the minutes from an August 18, 2006 hearing; and (2) the resulting interim stipulated judgment on rules. These exhibits indicate that the children were adjudicated to be in need of care and that the parents were to have joint custody. The judgment made no mention of any ^further duty that the DSS would have in relation to the Richards or the children. Mr. Richard offered as additional evidence three civil court records: the divorce proceedings, a proceeding in which Ms. Richard sought to resolve issues of visitation, and the entire record of the current proceedings.

After the trial court rendered judgment sustaining the DSS defendants’ exception of prescription and dismissing Mr. Richard’s claims for damages against these defendants, Mr. Richard perfected this appeal. In his sole assignment of error, he asserts that the trial court erred in granting the exception of prescription.

OPINION

Louisiana Civil Code Article 3492 provides that “[d]elictual actions are subject to a liberative prescription of one year” and that “[t]his prescription commences to run from the day injury or damage is sustained.” Additionally, La. Code Civ.P. art. 931 provides in pertinent part that “[o]n the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.”

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Campo v. Correa, 01-2707, p. 7 (La.6/21/02), 828 So.2d 502, 508. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo, 01-2702 at p. 7, 828 So.2d at 508; Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993). If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-83.

Carter v. Haygood, 04-646, pp. 8-9 (La.1/19/05), 892 So.2d 1261, 1267.

In his petition, Mr. Richard couched his causes of action in the guise of a | continuing tort. That being the case, prescription was not evident on the face of the pleadings, and the DSS defendants bore the burden of proof to show that the matters had prescribed. In attempting to meet that burden of proof, the DSS defendants established that they were involved in two investigations concerning Mr. Richard and his children, not one continuous investigation. We find that any cause of action involving the first investigation has prescribed, but not all of the second.

The DSS defendants presented testimony and documentary evidence to establish that their first investigation began sometime after the Richards’ marital problems began and was closed on April 12, 2006. They also presented documentation to establish that by a trial court judgment in an adjudication hearing, the children at issue in this litigation were adjudicated in need of care but custody was returned to the parents without any obligations being imposed on the DSS defendants for followup care. None of the documentary evidence offered by Mr. Richard establishes otherwise. Mr. Richard’s June 11, 2009 action for damages was clearly outside the one-year requirement of La.Civ.Code art. 3492. Therefore, the trial court did not err in granting the peremptory exception of prescription as to any claims arising from the first investigation by the DSS defendants.

With regard to the remainder of Mr. Richard’s claims for damages, the third paragraph of his petition for damages states the following:

On or about June 13, 2008, Petitioner was arrested and charged with the crime of aggravated rape of his minor children by the Iberia Parish Sheriffs Department. Prior to this, Petitioner’s rights to see and have a relationship with his children were being interfered with as a result of the gross negligence and arbitrary actions of the Office of Community Services in Iberia Parish.

(Emphasis added.)

We read this to assert two claims for damages: (1) false arrest; and (2) a continuing interference with his relationship with his children.

| sWith regard to the false arrest claim, we do not find that it has prescribed. According to Ms. Trahan, the second investigation began on November 19, 2007, and terminated on May 29, 2008, when her office, after validating the complaint, turned its findings over to the district attorney’s office and closed its file. However, Mr. Richard was not arrested for the offense validated by the investigation until June 13, 2008. Mr. Richard did not suffer injury until his arrest occurred. Murray v. Town of Mansura, 06-355 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, writ denied, 06-2949 (La.2/16/07), 949 So.2d 419, cert. denied, 552 U.S. 915, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007). Therefore, he had one year from that day in which to file suit, and his June 11, 2009 petition was timely. La.Civ.Code art. 3492. We find that the trial court erred in granting the exception of prescription and dismissing Mr. Richard’s false arrest cause of action.

The second part of Mr. Richard’s complaint as set forth in the third paragraph of his petition — his complaint that the DSS defendants negligently and/or intentionally interfered in his relationship with his children — presents a different matter entirely. Given the uncontradicted evidence that Ms. Trahan closed her file on May 29, 2008, and that the DSS defendants took no action after that time, nothing prevented Mr. Richard from filing suit within the year requirement of La.Civ. Code art. 3492. Thus, the trial court did not err in granting the exception of prescription as to this cause of action.

DISPOSITION

For the foregoing reasons, we reverse that portion of the trial court’s judgment granting the defendants’ exception of prescription and dismissing the false arrest cause of action and remand the matter to the trial court for further proceedings relating to that issue. We affirm the trial court’s judgment in all other respects. We Rassess costs of this appeal equally between the parties and, pursuant to La.R.S. 13:5112(A), set the costs for Kirk Richard at $807.25 and the costs for the State of Louisiana Department of Social Services, Office of Community Services, its Iberia Parish office, and the three Iberia Parish employees, Jannenne Trahan, Brandi Der-ouen, and Shanequa Keal-Lewis at $807.25.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

COOKS, J., concurs and assigns written reasons.

SAUNDERS, J., concurs in part, dissents in part, and assigns written reasons.

COOKS, J.,

Concurs.

hi agree that Plaintiffs claim for false arrest has not prescribed. I also believe Plaintiff sets forth allegations which are sufficient to allege a claim for malicious prosecution which is also timely made.

SAUNDERS, Judge,

concurs in part, dissents in part, and assigns written reasons.

hi concur with the majority opinion regarding prescription Richard’s claims against the DSS with one exception, the viability of Richard’s false imprisonment claim stemming from the DSS’s second investigation. The standard of reviewing the findings of fact in this decision is that of manifest error. Carter v. Haygood, 892 So.2d 1261. The trial court ruled that all of Richard’s claims against the DSS were prescribed because it found, as fact, that the DSS had taken no action and had no obligation to Richard and his children following May 29, 2008.

The majority opinion states “Mr. Richard was not arrested for the offense validated by the [second] investigation until June 13, 2008.” This statement indicates that the DSS’s second investigation was a factor in Richard’s eventual arrest. However, when reviewing the record before us, there is no evidence that the second investigation of the DSS was a cause in fact to Richard’s subsequent arrest.

Contrarily, the only evidence adduced at the hearing on DSS’s prescription exception regarding whether any action of the DSS led to Richard’s arrest on June 13, 2008, is the uncontroverted testimony of Trahan. She testified that the DSS’s second investigation, in which it validated a complaint against Richard, resulted and ended when the DSS reported its finding to the District Attorney’s office, and that the District Attorney’s office took no further action.

|2Thus, I cannot subscribe to the conclusion that Richard’s false imprisonment claim is viable against the DSS. According to Richard’s petition, he was arrested by the Iberia Parish Sheriffs Office. The record is void of evidence as to who, if anyone, spurred the sheriffs office into action. I feel that Richard, in facing the DSS’s prescription exception, failed to put forth any evidence that the DSS’s second investigation was a cause in fact of his arrest, while the DSS put forth evidence, via Trahan’s testimony, that it did nothing to cause Richard’s arrest.

Accordingly, given the standard of review, I would uphold the trial court’s finding of fact that the DSS had taken no action and had no obligation to Richard and his children following May 29, 2008. This finding, ultimately leads to what I feel to be the correct decision, that all of Richard’s claims against the DSS are prescribed. Thus, I respectfully dissent.

      . Mr. Richard named other parties as defendants, but the status of those claims is not a part of the issue now before us.

      . The initials of the children are used to protect the identity of the minor children. Uniform Rules-Courts of Appeal, Rule 5-2.