author: PAUL A. BONIN, Judge.

text:
    Byron BOLDEN and Rodney Reed v. FEDEX GROUND PACKAGE SYSTEM, INC., and Joey Joubert.
    No. 2010-CA-0940.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 16, 2011.

      Lloyd N. Frischhertz, Jr., Marc L. Frischhertz, Dominick F. Impastato III, Frischhertz & Associates, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Tracy E. Kern, Jennifer L. Englander, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

hTogether Byron Bolden and Rodney Reed filed a wide-ranging petition against FedEx Ground Package Systems, Inc., in which they sought damages and other relief based on a host of instances of wrongful conduct. They allege a variety of claims related to the execution, implementation, and termination of Operating Agreements they signed with FedEx Ground as well as provisions of those agreements relative to remedies. FedEx Ground filed a combination dilatory exception of prematurity and a motion to stay based on identical provisions in both Operating Agreements requiring arbitration of any dispute concerning termination.

The trial judge granted the exception and the stay, but did not expressly dismiss the suit. Mr. Bolden and Mr. Reed filed an appeal from the court’s ruling.

First, because we find that the ruling is not an appealable judgment, we convert the plaintiffs’ appeal to a writ application. Second, because we find that the scope of the arbitration provision is limited and that the trial judge failed to appropriately determine which issues in dispute are within the scope of the arbitration provision, we grant the writ application, reverse the trial court’s ruling, and remand to the district court with instructions. We explain in detail our ruling.

_ki

In this Part we explain why the trial court’s ruling is not an appealable judgment and why we can only review this matter under our supervisory jurisdiction. Our discussion of the procedural posture of the case presages the substantive discussion, which we will address in subsequent Parts.

In this case, the trial judge granted FedEx Ground’s Exception of Prematurity as well as its Motion to stay without further explanation. In the judgment, the trial court ordered, adjudged and decreed “that Defendants’ Exception of Prematurity/Motion to stay is granted, and Plaintiffs are ordered to arbitrate their claims in accordance with the terms of the Operating Agreements, during which these proceedings are stayed. Defendants’ Exception of Improper Cumulation of Parties is denied at this time as moot.”

The Louisiana Constitution of 1974 provides for our appellate jurisdiction and our supervisory jurisdiction. See La. Const, art. 5, § 10(A). “Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” La. C.C.P. ART. 2082. As we have observed, “the difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the appellate court while the latter is invocable by the litigant as a matter of right.” Livingston Downs Racing Ass’n, Inc. v. Louisiana State Racing Com’n, 96-1215 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216.

“A final judgment is appealable in all cases in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.” La. C.C.P. art. 2083 A. “A judgment that determines the merits in whole or in part is a final judgment.” La. C.C.P. art. 1841. “No appeal may be taken | .¡¡from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.” La. C.C.P. art. 1911.

“A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.” La. C.C.P. art. 1841; Collins v. Prudential Ins. Co. of America, 99-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829. “An interlocutory judgment is appealable only when expressly provided by law.” La. C.C.P. art. 2083 C; see, e.g., La. C.C.P. art. 3612 B (relating to the denial or the granting of a preliminary injunction), or La. C.C.P. art. 592 A(3)(b) (relating to certification in class actions). If not expressly provided by law, there is no right to appeal an interlocutory judgment. See, e.g., La. C.C.P. art. 968 (“An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.”).

The judgment which Mr. Bolden and Mr. Reed “appeal” is not a final judgment. The judgment did not dismiss any party. See La. C.C.P. art. 1915 A(l). The judgment does not even purport to dismiss some, much less all, of the claims of the plaintiffs. See La. C.C.P. art. 1915 B(l). “If the dilatory exception pleading prematurity is sustained, the premature action, claim, demand, issue or theory shall be dismissed.” La. C.C.P. art. 933 A (emphasis added). If the trial judge in this case had actually intended that all issues were arbitrable, the sustaining of FedEx Ground’s dilatory exception of prematurity as to all of the plaintiffs’ claims would have resulted in a final appealable judgment because it would have determined the whole of the merits. See La. C.C.P. ART. 1911. But because he did not dismiss all claims, the judgment has only determined the merits |4“in part.” The judgment does not qualify as a partial final judgment, which is appealable, because does not meet any of the requirements of La. C.C.P. art. 1915 A, and it has not received from the trial court a designation as a final judgment because “there is no just reason for delay.” La. C.C.P. art. 1915 B(l).

Had the trial judge in this case granted the exception of prematurity and entered the dismissal as required by Article 933 as to some of the plaintiffs’ claims, we would be faced with a partial judgment which has not been designated as final. A partial judgment which requires designation as a final judgment by the trial court but does not receive such a designation is not an appealable judgment. See La. C.C.P. art. 1915 B(2) (“In the absence of such a determination and designation, [any such order or decision] ... shall not constitute a final judgment for the purpose of an immediate appeal.”) Such an undesignated judgment, like an interlocutory judgment, “may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” La. C.C.P. art. 1915 B(2); see, e.g., Regions Bank v. Weber, 10-1169, p. 1 (La.App. 4 Cir. 12/15/10), 53 So.3d 1284 (“An interlocutory judgment may be reconsidered or revised upon proper motion at any time until the rendition of a final judgment.”), citing to Magallanes v. Norfolk Southern Railway Co., 09-0605, p. 4 (La.App. 4 Cir. 10/14/09), 23 So.3d 985, 988. See also Roger A. Stetter, Louisiana Civil Appellate Procedure, § 3:20 (2010-2011 ed.) (“Any partial judgment that does not dismiss a party and that is not expressly authorized by Article 1915 is interlocutory in character rather than final.”).

In Collins, the Louisiana Supreme Court explained the review of interlocutory judgments as they pertain to arbitration orders:

LMost courts addressing arguments about whether a judgment concerning arbitration is final or interlocutory distinguish between cases where the only issue before the court is a request to determine the availability of arbitration and cases where the court is asked to resolve other issues, such as the merits of the controversy. The first category of cases are often termed “independent proceedings” and judgments in such proceedings are considered final and ap-pealable because nothing else is before the court. The second category of cases are termed “embedded proceedings” in which a party has asked for relief beyond an order compelling or prohibiting arbitration. Orders compelling arbitration in embedded proceedings are considered interlocutory and are not immediately appealable.

Collins, 99-1423, p. 6, 752 So.2d at 829, n. 8 (citations omitted). The court noted that although an interlocutory judgment ordering arbitration is not subject to an immediate appeal, an aggrieved party under these circumstances is not entirely barred from relief. “In a ease where the trial judge has committed a clear error in ordering arbitration, supervisory relief might be appropriate based upon the facts and circumstances of a particular case.” Collins, 99-1423, p. 9, 752 So.2d at 831. The court concluded, however, that “in keeping with our policy favoring arbitration, such relief should be granted only sparingly.” Id.

| RThus, the proper procedural vehicle to seek review of this judgment, whether denominated a partial judgment which is not designated as final or an interlocutory judgment which is not immediately appealable, is by an application for supervisory relief. See Lalla v. Calamar, N.V., 08-0952, p. 6 (La.App. 4 Cir. 2/11/09), 5 So.3d 927, 931. “A court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time, according to the discretion of the court.” Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

Thus, we can exercise our discretion to consider this judgment under our supervisory authority. We have converted appeals of nonappealable interlocutory judgments to applications for supervisory writs in cases where the motions for appeal were filed within the thirty-day period allowed for the filing of applications for supervisory writs. See, e.g., Ordoyne v. Ordoyne, 07-0235 (La.App. 4 Cir. 4/2/08), 982 So.2d 899; Ganier v. Inglewood Homes, Inc., 06-0642 (La.App. 4 Cir. 11/8/06), 944 So.2d 753; Rule 4-3, Uniform Rules-Courts of Appeal.

Judgment in this case was rendered on March 4, 2010, and the plaintiffs filed their motion for appeal on March 16, 2010; accordingly we convert their appeal to a timely-filed application for supervisory relief. We now turn to the particular facts giving rise to the claims in this case.

II

FedEx Ground operates through a system of independent contractors who contract to pick up and deliver packages shipped by FedEx Ground customers. Mr. Bolden and Mr. Reed, operating out of FedEx Ground’s terminal in St. Rose, Louisiana, contracted with FedEx Ground to provide pickup and delivery services. In order to commence work as drivers for FedEx Ground, prospective drivers must sign an Operating Agreement, obtain a delivery truck that meets FedEx Ground’s specifications, and either purchase a delivery route from another driver or obtain a route directly from FedEx Ground. Mr. Bolden and Mr. Reed each signed one-year Operating Agreements, which automatically renew each year, subject to the possibility of non-renewal or termination under specified conditions. Section 11.2 of each Operating Agreement provides:

This Agreement shall automatically renew for successive terms of one year each after expiration of the initial term unless Contractor or FedEx Ground provides the other 17party notice of non-renewal in writing at least 30 days prior to the expiration of the initial term or any successive renewal term.

Both plaintiffs’ Operating Agreements provide that issues of termination or constructive termination of the Agreement shall be submitted to arbitration. Each plaintiffs’ Operating Agreement contains the following clause:

12.3 Arbitration of Asserted Wrongful Termination. In the event FedEx Ground acts to terminate this Agreement (which acts shall include any claim by Contractor of constructive termination) and Contractor disagrees with such termination or asserts that the actions of FedEx Ground are not authorized under the terms of this Agreement, then each such disagreement (but no others) shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ...

(emphasis added)

Additionally, each Operating Agreement contains a choice of law provision stating: “This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.” Mr. Bolden and Mr. Reed ask that we find that this arbitration clause is “unconscionable” under Pennsylvania law. However, because of a dearth of evidence and confusion of findings in the lower court, we are unable to reach this question. We instead examine the factual circumstances surrounding the plaintiffs’ claims in order to review the action of the trial court in subsequent Parts.

Ill

As the facts giving rise to the claims of Mr. Bolden are distinct from those of Mr. Reed, we discuss each plaintiffs circumstances in some detail.

Mr. Bolden signed an Operating Agreement with FedEx Ground on October 10, 2007, authorizing him to work as a contract driver for FedEx Ground for a one-year term. Prior to the expiration of the term, Joey Joubert of FedEx Ground | ^informed Mr. Bolden that his contract would not be renewed at the end of the term. Mr. Bolden then sold his route to his wife, Valerie Bolden, and he arranged to begin driving for other contract drivers, including Mrs. Bolden, after the expiration of his contract. Mr. Bolden was soon informed that his name had been removed from the approved driver list and he would not be able to drive for other contract drivers.

Mr. Reed purchased a ground route and signed an Operating Agreement with FedEx Ground on April 8, 2008, authorizing him to work as a contract driver for a term of one year. Mr. Reed’s contract, like Mr. Bolden’s, provided that the Agreement would automatically renew for successive one-year terms unless certain conditions were met. Mr. Reed’s contract was terminated on August 24, 2009, his route was redistributed to another driver, and his name was removed from the list of approved drivers. FedEx Ground’s brief asserts that, prior to initiating this lawsuit, Mr. Reed filed for arbitration.

During a short trial of FedEx Ground’s Exception of Prematurity/Motion to Stay, on February 26, 2010, the district judge informed the parties that the claims would need to go to arbitration and that no live testimony would be necessary because both parties had submitted affidavits. The judge ruled on March 4, 2010, to stay the district court proceedings pending the results of arbitration. Although the judge issued written reasons for judgment on March 11, 2010, he noted only that he was adopting FedEx Ground’s Memorandum in Support of the Exception of Prematurity and Alternative Motion to Stay as well as its Reply Memorandum in response to Plaintiffs Opposition to that exception and motion in toto.

J¿V

Federal, Louisiana, and Pennsylvania law favor arbitration. See discussion, Part IV B, post. On the one hand, FedEx Ground is entitled to enforce a valid arbitration clause. On the other hand, Mr. Bolden and Mr. Reed may only be forced to arbitrate those issues that they have agreed to send to arbitration.

The trial judge here seems to have made inconsistent rulings. If the judge has sent all issues to arbitration, he should have said so and subsequently dismissed the case as required By La. C.C.P. art. 933 A. If the trial judge has instead stayed some of the issues pending resolution of other, arbitrable issues, he should delineate those issues which are arbitrable and those which are not.

A

Neither party suggests that we resolve this issue under George Engine Co., Inc. v. Southern Shipbuilding Corp., 350 So.2d 881 (La.1977). George Engine, which has been questioned but never overruled, held that a party may attack the validity of a contract that contains an arbitration clause on the grounds that the contract was void ab initio. Id. at 885. Although their petition contains allegations that they were fraudulently induced into signing the Operating Agreements, the plaintiffs focus their argument on the unenforceability of the arbitration clause itself under Pennsylvania law, an argument that was not addressed by the trial court. When the plaintiffs raised the issue of unenforceability of the arbitration clause under Pennsylvania law, the trial judge simply said, “If the Fourth [Circuit] sends it back we’ll deal with it then. I think it needs to go to arbitration.”

IiqB

Consequently, the trial court stayed the proceedings and ordered the case to arbitration without specifying which issues are subject to the stay and which issues are arbitrable. This gives rise to a question of the arbitrability of the claims that the district court failed to consider.

We are presented with what has been termed a “substantive” question of arbitra-bility that is appropriately decided by the trial court — as opposed to a “procedural” question of arbitrability, which is to be decided by the arbitrator. See Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., 03-1662, p. 9 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 390 (“[A] disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court ... ‘[Procedural’ questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator to decide.”).

The determination as to whether to stay the proceedings and/or to compel arbitration is a question of law. Billieson v. City of New Orleans, 02-1993, p. 3 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 560, citing Hennecke v. Canepa, 96-0772 (La.App. 4 Cir. 5/21/97), 700 So.2d 521. Review of questions of law is simply to determine whether the trial court was legally correct or incorrect. Cangelosi v. Allstate Ins. Co., 96 0159, p. 3 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360.

The Louisiana Supreme Court, in Aguil-lard v. Auction Management Corp., adopted the United States Supreme Court’s interpretation of federal arbitration law, Innoting that “even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration.” Aguillard v. Auction Management Corp., 04-2804, p. 25 (La.6/29/05), 908 So.2d 1, 18. Louisiana courts have recognized that the Louisiana Binding Arbitration law, La. R.S. 9:4201-4217, is virtually identical to the Federal Arbitration Act, 9 U.S.C. §§ 1-14, and both federal and state jurisprudence hold that any doubt as to whether a controversy is arbitrable should be resolved in favor of arbitration. Lakeland, 03-1662, pp. 8-9, 871 So.2d at 387. Pennsylvania law also approvingly cites the principle that doubts as to arbitrability should be resolved in favor of arbitration. See Lytle v. CitiFinancial Services, Inc., 810 A.2d 643, 656-57 (Pa.Super.2002) (citing Bank One, N.A. v. Coates, 125 F.Supp.2d 819, 828-29 (S.D.Miss.2001), aff'd, 34 Fed.Appx. 964 (5th Cir.Miss.), 2002 WL 663804, 2002 U.S.App.LEXIS 7759 (2002)).

In Howsam v. Dean Witter Reynolds, Inc., the United States Supreme Court explained the proper mode of resolving the “question of arbitrability.” “The question of whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (emphasis and internal citations omitted). In explaining that the phrase “question of arbitrability” has a limited scope, the Supreme Court stated:

The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to 1^the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.

Howsam, 537 U.S. at 83-84, 123 S.Ct. 588 (emphasis added).

The Louisiana Supreme Court, in Breaux v. Stewart Enterprises, Inc., reiterated the precept from Collins, supra, that the trial courts are the proper entities to determine arbitrable matters:

Before a district court may compel arbitration, the trial judge must make two preliminary determinations. First, the trial judge must ensure that a valid arbitration agreement between the parties exists. Second, the judge must decide whether the dispute at issue falls within the scope of the agreement.

Breaux v. Steward Enterprises, Inc., 04-1706, p. 1 (La.10/08/04), 883 So.2d 983, 983 (emphasis added; quoting Collins, 99-1423, pp. 9-10, 752 So.2d 825, 831. On review, a trial court’s judgment which compels arbitration is reviewed under the same two-prong test: 1) whether there is a valid arbitration agreement and 2) whether the dispute falls “within the scope” of the agreement. Lakeland, 03-1662, p. 9, 871 So.2d 380, 388. The trial judge failed to make these preliminary determinations. We discuss this failure and its confusing impact on this litigation — particularly because it involves a narrow arbitration clause — in the subsequent Parts.

lisC

The district court stayed the proceedings and indiscriminately ordered the parties to proceed to arbitration. The issue is whether the trial judge acted prematurely in staying and ordering to arbitration all issues in the proceedings without first determining which issues were arbitrable under this limited arbitration clause.

In this case, the trial judge issued the stay and ordered arbitration, stating:

So, now let’s go to — and therefore, everything else is stayed until the arbitrator comes back.
And another thing is this; everything you raise, all of the issues in dispute, you raise can be considered by an arbitrator. That’s what he does.

It is difficult for us to discern what the trial court has ordered to proceed to arbitration and what has been stayed. The judge appears to have stayed some of the issues while simultaneously sending “everything [the plaintiffs] raise” to arbitration. Compounding this confusion is the fact that the trial court adopted two of FedEx Ground’s memoranda in toto as its reasons for judgment. These memoranda provide various assertions upon which the trial court made no specific ruling: for example, FedEx Ground claims that Mr. Reed, who has already instituted arbitration proceedings, is barred from now disputing the validity of the arbitration agreement. FedEx Ground also asserts in its memoranda that the plaintiffs have been improperly cumulated. When the attorney for FedEx Ground requested that the trial judge rule on the Exception of Improper Cumulation, the judge said, “But I think all that’s stayed until the arbitrator comes back.” The judge’s language suggests that he contemplated that not all issues in the matter |14were arbitrable, and yet he did not specify which of the plaintiffs’ claims fell within the scope of the arbitration agreement.

Our court has rejected the notion that simply because an arbitration clause appears in an Operating Agreement, the law requires referral to an arbitrator for any further decision. In Metro Riverboat Associates, Inc. v. Bally’s Louisiana, Inc., 97-1672, pp. 5-6 (La.App. 4 Cir. 1/14/98), 706 So.2d 553, 556-557, our court stated:

La. R.S. 9:4202 makes clear that court proceedings will be stayed when “brought upon any issue referable to arbitration” and then only if the court is “satisfied that the issue involved ... is referable to arbitration.” This statute gives recognition to the fact that under Civil Code article 3102, “[p]arties may submit either all their differences, or only some of them in particular” to arbitration. If the parties to a contract have explicitly agreed to submit all disputes to an arbitrator, then a determination that the contract is valid will necessarily suffice to require enforcement of the arbitration clause. However, if the parties’ agreement to arbitrate is limited to particular issues or types of disputes, the language of 9:1202 expressly requires the court, rather than the arbitrator, to further determine whether the particular issue in dispute is within the scope of the arbitration clause. We find that the agreement to arbitrate in this case is limited, so that the trial court was required to determine if the dispute herein was within the scope of that agreement, (emphasis added)

This statement was echoed in Lorusso v. Landrieu, 02-2346, pp. 5-6 (La.App. 4 Cir. 5/21/03), 848 So.2d 656, 659 (citing Metro Riverboat):

This court has held that in cases where “the parties have contracted to submit all disputes to arbitration, then the | ^determination that the contract is valid will necessarily suffice to require enforcement of the arbitration clause.” However, if the parties’ agreement to arbitrate is limited to particular issues or types of disputes, the language of 9:4.202 expressly requires the court, rather than the arbitrator, to further determine whether the particular issue in dispute is within the scope of the arbitration clause, (emphasis added)

But in Lontsso, in contrast with Metro Riverboat, we found that the trial judge erred in failing to order arbitration because the arbitration clause stated that it covered dispute resolution of “any other grievance” arising out of the agreement. Lorusso, 02-2346, p. 6, 848 So.2d at 659. Under the narrower arbitration clause in Metro Riverboat, we found that because the arbitration clause covered only specific disputes that may arise under the agreement, the district court must first determine what particular issues lie within the scope of the arbitration clause. Metro Riverboat, 97-1672, p. 6, 706 So.2d at 557.

The distinction between broad and narrow arbitration clauses is important here. The FedEx Ground arbitration clause at issue is a narrow one — covering only issues of termination or constructive termination “but no others.” The clause does not require that all issues arising under the Operating Agreement be submitted to arbitration. Moreover, the plaintiffs’ claims arise out of two distinct sets of circumstances. Mr. Bolden’s claim arises out of the non-renewal of his contract, whereas Mr. Reed’s claim arises out of the termination of his contract. Both plaintiffs, however, assert claims that could reasonably be interpreted as falling within the arbitration clause as issues of termination or constructive termination. Both plaintiffs allege in the petition that they were fraudulently induced into signing the Operating Agreement, and they both claim breach of contract and intentional/negligent interference with contract. Mr. Jou-bert, the other named 11fidefendant, was not a party to the contracts at issue. Additionally, Mr. Reed alleges that he is owed damages for conversion. None of these distinctions were acknowledged by the trial court in the proceedings below.

V

We acknowledge that the United States Supreme Court has set forth a presumption of arbitrability. In AT & T Technologies, Inc. v. Communications Workers of America, the Court explained that “where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986).

But as one commentator has noted:

When parties so tailor the arbitration clause that it is applicable only in a clearly defined situation, it indicates that the parties intended to limit the arbitra-ble issues to those specified. Where an arbitration provision is narrowly crafted, a court cannot presume, as it might if the provision were drafted broadly, that the parties agreed to submit all disputes to arbitration. Parties are not bound to arbitrate on an all-or-nothing basis but may choose to submit discrete issues to the arbitrator. Accordingly, an arbitration agreement should reflect, with specificity, which issues are to be subject to an arbitrator’s decision.

Larry E. Edmonson, Domke on Commercial Arbitration § 8:14 (3d ed.2010) (emphasis added).

We recognize our duty to defer to the trial judge. However, the trial judge in this case simply ordered that “everything else” was stayed pending arbitration and | ]7also found that all of the issues raised by the plaintiffs could be considered by the arbitrator. Without more, we are unable to reconcile these statements. Accordingly, we reverse and remand this matter in order for the trial judge to make specific findings according to the terms of the arbitration clause and the admissible evidence, and to rule on the exception and motion in a manner consistent with this opinion.

REMAND INSTRUCTIONS

The trial court is directed to conduct the hearing on the defendants’ combined Exception of Prematurity/Motion for Stay anew. The trial judge shall consider the evidence offered and, before ruling, shall make specific findings with respect to the issues we set forth. The trial judge shall make individualized findings respecting the claims raised by Mr. Bolden and respecting the claims raised by Mr. Reed.

With regard to each plaintiff and his claims, the trial, judge shall determine by the application of Pennsylvania law: (1) whether there exists in the Operating Agreement a valid arbitration agreement between the plaintiff and the defendants, (2) which of the individual plaintiffs claims fall within the scope of the arbitration clause, and (3) whether the individual plaintiffs claims against Mr. Joubert are within the scope of the arbitration clause even though Mr. Joubert is not signatory to the Operating Agreement. Additionally, the trial judge shall make a finding whether Mr. Reed has already instituted arbitration proceedings and, if so, whether such action precludes him from attacking the validity of the arbitration clause.

After the trial judge has made all findings necessary, he shall1 make an appropriate ruling. If the trial court determines that all of an individual plaintiffs |1sclaims are arbitrable, it shall order arbitration, deny the stay, grant the exception of prematurity, and dismiss the proceedings as to that plaintiff. If the trial court determines that none of an individual plaintiffs claims are arbitrable, it shall deny the exception of prematurity and the motion to stay. If the trial court determines that some but not all of an individual plaintiffs claims are arbitrable, then it shall identify which claims are arbitrable and which are not, order the arbitration of the identified arbitrable claims, sustain the exception of prematurity as to those claims and deny it as to all others, and grant a stay of the proceedings as to the non-arbitrable claims pending conclusion of arbitration.

DECREE

We convert the appeal of Mr. Bolden and Mr. Reed to an application for supervisory relief. We grant the writ and we reverse the trial court’s ruling of March 4, 2010, and remand the matter with instructions to the trial court.

WRIT GRANTED; REVERSED AND REMANDED.

      . The holding in George Engine seemingly contradicts the United States Supreme Court's holding in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). The Louisiana Supreme Court in George Engine explained its diversion from Prima Paint, stating that Prima Paint involved an interpretation of the Federal Arbitration Act while George Engine was focused on the Louisiana Arbitration Law. For further discussion of these two cases and their divergent treatment of claims of fraud in the inducement of a contract containing an arbitration clause, see Long v. Jeb Breithaupt Design and Build Inc., 44,002, p. 14 (La.App. 2 Cir. 2/25/09), 4 So.3d 930, 939.

      . An example of a gateway matter for the trial court to decide is the question of whether an arbitration contract is binding on parties who did not sign the contract. First Optioits of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-946, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).

      . Pennsylvania law, which would ultimately apply to interpret the contract, utilizes the same two-part test:
      We review a trial court’s denial of a motion to compel arbitration for an abuse of discretion and to determine whether the trial court’s findings are supported by substantial evidence. Flender Corp. v. Tippins International, Inc., 830 A.2d 1279 (Pa.Super.Ct.2003). In doing so, we employ a two-part test to determine whether the trial court should have compelled arbitration. Callan v. Oxford Land Development, Inc., 858 A.2d 1229 (Pa.Super.Ct.2004). The first determination is whether a valid agreement to arbitrate exists. D & H Distributing Co. v. National Union Fire Ins. Co., 817 A.2d 1164 (Pa.Super.Ct.2003). The second determination is whether the dispute is within the scope of the agreement. Id. Smay v. E.R. Stuebner, Inc., 2004 PA Super 493, 864 A.2d 1266, 1270 (Pa.Super.Ct.2004).

      . Another complication arises on an eviden-tiary matter. At trial on the exception, evidence was submitted in the form of affidavits from each party. Both Mr. Bolden and Mr. Reed swore to adhesionary circumstances surrounding the signing of their Operating Agreements. These affidavits were contradicted by affidavits from FedEx Ground. The trial judge declined to hear live testimony at the hearing; he noted that such testimony would reflect nothing more than the contents of the affidavits. However, FedEx Ground complained in its Reply Memorandum in Support of its exceptions that these affidavits were filed untimely and thus inadmissible. This memorandum was adopted by the trial judge in his reasons for judgment. From these circumstances we cannot determine whether the trial judge considered the plaintiff's affidavits and found them incredible or whether the trial judge — pursuant to the adopted memoranda' — did not consider them because they were untimely.

      . See Saavedra v. Dealmaker Developments, LLC, 08-1239, p. 7 (La.App. 4 Cir. 3/18/09), 8 So.3d 758, 763, n. 5; Regions Bank v. Weber, 10-1169 (La.App. 4 Cir. 12/15/10), 53 So.3d 1284.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Charlotte LUCAS, Ron Lucas, Gilbert Lucas and Adam Lucas, individually and on behalf of their Deceased Husband and Father, Respectively, Lois Gilbert Lucas v. HOPEMAN BROTHERS, INC., Uniroyal, Inc., Foster Wheeler Corporation, Crown Cork and Seal Company, Inc., Viacom, Inc., Eagle, Inc., Reilly Benton Company, Inc., Charles Johnson, General Electric Corporation, and Minnesota Mining and Manufacturing Company.
    No. 2010-CA-1037.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 16, 2011.

      Julie A. Ardoin, Damon R. Pourciau, Ardoin Law Firm, Kenner, LA, for Plaintiffs/Appellants.
    Blaine A. Moore, Louis O. Oubre, Kaye N. Courington, Jennifer H. McLaughlin, Duncan Courington & Rydberg, L.L.C., New Orleans, LA, for Hopeman Brothers, Inc. and Charles N. Johnson, Jr.
    John J. Hainkel III, Angela M. Bowlin, Sheri S. Faust, James H. Brown, Jr., John Cazale, Peter R. Tafaro, Andrew M. Maes-tri, Frilot LLC, New Orleans, LA, for Foster Wheeler, LLC and CBS Corporation, A Delaware Corporation, F/K/A Viacom, Inc., Successor by Merger to CBS Corporation, F/K/A Westinghouse Electric Corporation.
    Thomas L. Cougill, Kenneth R. Royer, Jeanette S. Riggins, Diane M. Sweezer, Jamie M. Zanovec, Jennifer D. Zajac, Will-ingham Fultz & Cougill, LLP, Houston, TX, for Reilly-Benton Company, Inc.
    Court composed of CHARLES R. JONES, TERRI F. LOVE, and MAX N. TOBIAS, JR., Judges.

      . While the testimony of Mouton states that he and the decedent worked with Hopeman Brothers employees on both U.S. Coast Guard Cutters and Destroyer Escorts, Hopeman Brothers did not perform any work onboard Destroyer Escorts at Avondale because Hope-man Brothers did not have the joinery contract for such work aboard these vessels. Consequently, any exposure the decedent would have had as a result of Hopeman Brothers’ work with asbestos-containing products would have had to occur onboard a U.S. Coast Guard Cutter.

   MAX N. TOBIAS, JR., Judge.

Iiln this wrongful death action, the plaintiffs appeal the trial court’s granting of summary judgment in favor of the defendants, Hopeman Brothers, Inc. and Charles N. Johnson, Jr. (collectively “Hopeman Brothers”); CBS Corporation (“Westinghouse/CBS”); Foster Wheeler, LLC (“Foster Wheeler”); and Reilly Benton Company, Inc. (“Reilly Benton”), and dismissing the plaintiffs’ claims against them with prejudice. For the following reasons, we affirm the trial court’s judgment in part, reverse in part, and remand the case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Charlotte Lucas, Ron Lucas, Gilbert Lucas, and Adam Lucas (collectively, the “Lucases”), in this matter are, respectively, the spouse and adult children of the deceased, Lois G. Lucas (the “decedent”). The Lucases filed this suit in January 2004 alleging that the decedent contracted asbestosis from his occupational exposure to asbestos-containing materials from various contractors, | ¿product manufacturers, and product suppliers during his employment at Avondale Shipyards, Inc. (“Avondale”) as a pipefitter helper from 1966 to 1975, and subsequently died from the disease in January 2003.

Discovery in this matter ended on 25 December 2009. Defendants, Hopeman Brothers, Westinghouse/CBS, Foster Wheeler, and Reilly Benton, separately filed motions for summary judgment seeking dismissal from the case contending that, despite the passage of four years from the inception of this suit, the plaintiffs had been unable to put forth evidence demonstrating that they will be able to satisfy their burden of proving at trial that Lucas worked with or around products sold and/or supplied by any one of them that was a substantial contributing factor to his alleged development of asbestosis.

In opposition to the defendants’ respective motions for summary judgment, the Lucases offered the following items of evidence:

1. Social Security records of the decedent, Lois G. Lucas.
2. A Letter dated 26 December 1975 by decedent’s physician, Dr. Edward J. Punery.
8.The decedent’s Petition for Workmen’s Compensation Benefits filed in 1976.
4. A judgment dated 24 March 1977 authorizing the parties to enter into a compromise settlement and agreement for workmen’s compensation benefits.
5. The decedent’s death certificate.
6. A Disputed Claim for Compensation form dated 12 January 2004.
7. The Petition for Damages and Wrongful Death filed by the plaintiffs.
[s8. A Notice of Hearing and Pre-Hearing Order dated 3 December 2004 issued by the Administrative Law Judge of the U.S. Department of Labor.
9.An Agreed Compensation Order dated 28 June 2005 issued by the Administrative Law Judge of the U.S. Department of Labor.
10. A Notice of Trial issued on 4 March 2009 in the instant matter.
11. A Notice of Signing of Judgment signed on 11 September 2009.
12. The Motion for Summary Judgment filed by Hopeman Brothers, Inc. and Charles N. Johnson, Jr. and Statement of Uncontested Material Facts.
13. The Hopeman Brothers, Inc.’s responses to the plaintiffs’ requests for admissions and interrogatories.
14. The sworn testimony of Charles N. Johnson, Jr. taken on 5 February 1996 and 7 February 1996 in the matter of “Re: Ferrel Waguespack, Sr. v. AMEC Plant Services, Inc., Fluro-Daniel Services Corp.,” Office of Workers’ Compensation, State of Louisiana, No. 94-07469, District 05.
15. The reports of Dr. James Milette dated 3 December 1992 and 26 September 1995.
16. The sworn testimony of Dennis J. Perk taken on 18 November 1996 in the matter of “Jefferson Parish Asbestos Cases (MLF) v. Eagle, Inc., et al,” Twenty-Fourth Judicial District, Parish of Jefferson, No. 462-477.
17. The sworn testimony of Wilton David Mouton taken on 3 December 2008 in the matter of “Wilton David Mouton v. Flexitallic, Inc., et al,” Civil District Court for the Parish of Orleans, No. 95-13330.
18. The sworn testimony of Wilton David Mouton taken on 3 Decern-ber 2008 in the matter of “Charlotte Lucas, et al v. Hopeman Brothers, Inc., et al,” Civil District Court for the Parish of Orleans, No. 04-1127.
19. The sworn testimony of John Bowman taken on 20 September 1995 in the matter of “In re Asbestos Plaintiffs, et al v. Borden, Inc., et al,” Civil District Court for the Parish of Orleans, no. 91-18397, Flight Number 5.
20. The sworn testimony of John Bowman taken on 25 January 1996 in the matter of “Ferrell Waguespack, Sr. v. AMEC Plant Services, et al.”
21. The sworn testimony of Warren K. Watters taken on 2 August 1996 in the matter of “In re Asbestos Plaintiffs, et al v. Borden, Inc., et al,” Civil 4District Court for the Parish of Orleans, No. 91-18397, Flight Number 6.
22. Various correspondence between Foster Wheeler Corporation and Avondale Shipyards occurring between 1964 and 1967 with attached American Bureau of Shipping Certificates for equipment, including piping, tubing, and other Foster Wheeler equipment to become part of the boilers on vessels at Avon-dale.
23. The sworn testimony of Golzie J. Danos, Jr. taken on 22 March 2004 in the matter of “Golzie and Faye Danos v. Avondale Industries, Inc., et al.”
24. The sworn testimony of Rudy J. Walker, Sr. taken on 8 May 2003 in the matter of “Rudy and Joan Walker v. Avondale Industries, Inc.”
25. The sworn testimony of Luther Dempster taken on 24 March 1994 in the matter of “Luther Dempster, et al v. Avondale Industries, Inc. et al,” Civil District Court for the Parish of Orleans, No. 93-7438.
26. A partial transcript of the proceedings held on 19 March 1996 in the matter of “In re: Asbestos Plaintiffs only on Behalf of Plaintiff, Merlin Charlot v. Borden, Inc., et al,” Civil District Court for the Parish of Orleans, No. 91-18397 c/w 93-16575.
27. The sworn testimony of Lawrence P. Delhommer taken on 12 July 1984 and 10 December 1986 in the matter of “Lawrence P. Delhommer v. Johns-Manville Corporation, et al,” Civil District Court for the Parish of Orleans, No. 83-12872.
28. An unofficial partial transcript of the proceedings in connection with the trial on the merits held on 12, 14 and 16 January 2004 1/12/04 in the matter of “Gerald Dufrene, et al v. Avondale Industries, Inc., et al,” Civil District Court for the Parish of Orleans, No. 00-1941.
29. The sworn testimony of Steve Du-frene taken on 4 August 1997 in the matter of “Steve J. Dufrene and Charlene T. Dufrene v. Avondale Industries, Inc., et al,” Civil District Court for the Parish of Orleans, No. 97-04976 c/w 93-16888.
30. The sworn testimony of Maurice K. Ockmond taken on 1 June 1995 in the matter of “Douglas R. Abadie v. Metropolitan Life Insurance Company, et al,” Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 424-010.
31. The sworn testimony of Allen Rad-er taken on 31 October 1995 in the matter of “Luther Dempster, et al v. Avondale Industries, Inc., et al,” Civil District Court for the Parish of Orleans, No. 93-7488.
| k32. The sworn testimony of Lester Adams taken on 13 February 1995 in the matter of “Douglas R. Abadie v. Metropolitan Life Insurance Company, et al,” Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 424-010.
33. The sworn testimony of Lester Plaisance taken on 24 May 1994 in the matter of “In re: Asbestos Plaintiffs v. Borden, Inc., et al,” Civil District Court for the Parish of Orleans, No. 91-18387, Flight Number 2.
34. The sworn testimony of Irvin Joseph Grabei’t taken on 8 March 2005 in the matter of “Irvin Joseph Grabert v. Northrop Grumman Ship Systems, Inc. (formerly Avondale Industries, Inc.), et al,” Civil District Court for the Parish of Orleans.

The defendants’ motions argued that despite the numerous exhibits submitted by the plaintiffs, except for the deposition testimony of Wilton David Mouton, the evidence is of no consequence because not one of these witnesses has any personal information as to the work history or job activities actually performed by the decedent at Avondale. Additionally, the defendants argued that the plaintiffs failed to produce evidence establishing that the decedent worked with or was exposed to any specific asbestos-containing product that they manufactured, sold, supplied, distributed, and/or installed at Avondale.

The trial court granted summary judgment in favor of each of the defendants finding there was insufficient evidence to overcome the plaintiffs’ burden of proof at trial. The Lucases have appealed that ruling contending the trial court committed reversible error by either weighing conflicting evidence or making credibility determinations, thereby misapplying the appropriate standard for granting summary judgment in favor of the defendants. Additionally, the Lucases aver that the trial court erred by failing to infer the decedent’s proximity to asbestos-containing products during his years at Avondale as supported by ^circumstantial evidence contained in the record. They request that this court reverse the trial court judgment and remand the case for a trial on the merits.

STANDARD OF REVIEW

As we have often stated, “[o]ur review of this grant of summary judgment is de novo but governed by La. C.C.P. art. 966.” McAskill v. American Marine Holding Co., 07-1445, p. 2 (La.App. 4 Cir. 3/4/09), 9 So.3d 264, 266; see also Shambra v. Roth, 04-0467, p. 2 (La.App. 4 Cir. 9/29/04), 885 So.2d 1257, 1259. Summary judgments are favored and “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 opponents’ favor.” Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. Summary judgments “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, scrutinized equally, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). On a motion for summary judgment, however, the trial court cannot make credibility determinations. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 16 (La.2/29/00), 755 So.2d 226, 236. “It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised.” Knowles v. McCright's Pharmacy, Inc., 34,559, p. 3 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 103. “Additionally, the weighing of conflicting evidence has. no place in summary judgment procedure.” Id.

“A fact is material if it is essential to the plaintiffs cause of action under the applicable theory of recovery and, without the establishment of the fact by a ^preponderance of the evidence, the plaintiff could not prevail.” Danos v. Avondale Indus., Inc., 07-1094, p. 3 (La.App. 4 Cir. 7/2/08), 989 So.2d 160, 162. “Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute.” Id. Thus, to determine if the trial court erred in granting the summary judgment motions by Hopeman Brothers, Westinghouse /CBS, Foster Wheeler, and/or Reilly Benton, respectively, we are required to determine whether any genuine issues of material fact remain as to the liability of any one or more of the defendants.

DISCUSSION

The decedent was employed by Avon-dale for approximately nine years as a pipefitter’s helper from 1966 to 1975. During a portion of that time, from 1967 through 1972, he was assigned to assist Avondale pipefitter, Wilton David Mouton. It is undisputed that Mouton provides the only eyewitness evidence in this case with respect to the tasks that the decedent allegedly performed as a pipefitter’s helper during his employment at Avondale. According to Mouton, he and the decedent performed plumbing tasks for new construction and repair work on a variety of vessels, including Destroyer Escorts and U.S. Coast Guard Cutters. Such work was allegedly performed throughout the various vessels, including the engine rooms, living quarters, and galley spaces. Mouton stated that this plumbing work included maintenance and repair on pumps, gaskets, and valves, in addition to running water lines to the bathrooms and staterooms. Mouton testified that, on occasion, the plumbing repair work would necessitate the removal of alleged | sasbestos-containing wallboard as well as ceiling tiles in order to get to leaking pipes.

It is scientifically proven, and legislatively recognized, that a causal relationship exists between asbestos exposure and the occurrence of asbestosis. See Rando v. Anco Insulations, Inc., 08-1163, 08-1169, pp. 15-16 (La.5/22/09), 16 So.3d 1065, 1080. In the case at bar, the Lucases contend that they presented a bevy of evidence to the trial court showing that genuine issues of material fact exist regarding whether the decedent was sufficiently exposed to the various asbestos-containing products that were either manufactured, supplied, sold, and/or installed by the respective defendants and that the trial court improperly weighed this evidence, and/or improperly made credibility determinations based on this evidence, when it granted the defendants’ motions for summary judgment.

Contrariwise, the defendants aver that the sworn testimony the Lucases presented regarding the decedent’s alleged exposure to asbestos-containing products is irrelevant because none of the deponents had any personal information as to the work history or job activities actually performed by the decedent while he was at Avondale. According to the defendants, the plaintiffs’ summary judgment evidence — at best — establishes only that at some point in time between 1967 through 1972, Hopeman Brothers, Westinghouse/CBS, Foster Wheeler, and Reilly Benton were among a number of manufacturers and suppliers of asbestos-containing products to Avondale. Each of the defendants argue that the Lucases have failed to provide any evidence specifically establishing that the decedent was actually exposed to their particular product(s) at a given location at Avondale | nduring his exact years of employment, which substantially contributed to his alleged contraction of asbestosis.

The courts know “through years of litigation that industrial asbestos-related diseases have a latency period of 10 to 40 years.” Danos, 07-1094, p. 4, 989 So.2d at 168. As a result, witnesses to the exposure of the asbestos are often elderly or deceased. “Consequently, litigants are often forced to use depositions and transcripts from other proceedings to bolster their position.” Danos, 07-1094, p. 4, 989 So.2d at 163. We find this case presents such a situation.

As noted above, in order to determine whether the trial court erred in granting the motions for summary judgment in favor of Hopeman Brothers, Westinghouse/CBS, Foster Wheeler, and/or Reilly Benton, we must determine whether any genuine issues of material fact remain. The following discussion sets forth our determinations with respect to each of the four defendants involved in this appeal.

Hopeman Brothers

Hopeman Brothers was a joiner contractor at Avondale from the early 1960s through the 1990s. As a joiner contractor, Hopeman Brothers was responsible for outfitting the interior spaces of various vessels; in particular, U.S. Coast Guard Cutters. Hopeman Brothers’ work included the installation of comfort and fire insulation, joiner paneling, furniture, furnishings, and shelving units. The Lu-cases contend that Hopeman Brothers employees were present at Avondale onboard Coast Guard Cutters working with asbestos-containing products to which the | indecedent was exposed and that this exposure was a significant contributing factor in his contraction of asbestosis. The Lucases aver that Hopeman Brothers was negligent in the handling of asbestos products, specifically the handling and installation of asbestos-containing wallboard, in the vicinity of the decedent when he worked at Avondale.

According to Hopeman Brothers, it was the end-user of asbestos-containing products on ships constructed at Avondale, including Marinite wallboard manufactured by Johns-Manville and Micarta wallboard manufactured by Westinghouse/CBS, when the use of asbestos-containing products was mandated by plans and specifications provided to Hopeman Brothers by Avondale. The plaintiffs allege that, in completing this work, Hopeman Brothers cut and installed Micarta decorative wallboard supplied by Westinghouse/CBS. Though Hopeman Brothers concedes that the wallboard it cut and installed on Coast Guard Cutters at Avondale contained asbestos, it argues that the Lucases have failed to set forth any evidence that Hope-man Brothers was cutting and/or installing this wallboard at the same time that the decedent was also working onboard a Coast Guard Cutter or that the decedent was otherwise exposed to wallboard handled, cut, or installed by Hopeman Brothers while at Avondale.

Because Mouton is the only eyewitness who can testify as to the decedent’s work activities and his alleged exposure to asbestos at Avondale, Hopeman Brothers looks solely to Mouton’s deposition testimony and contends it is Incompletely devoid of any reference to Mouton, or the decedent, being in an area when Hopeman Brothers’ work with joiner panels or wallboard took place. Although Mouton testified that he (and the decedent) “constantly” worked side-by-side with Hopeman Brothers employees, Hopeman Brothers argues that Mouton’s testimony limits Hopeman Brothers’ activities to work on flooring, doors, and ceiling tiles. Specifically, Hopeman Brothers concentrates on the following portion of Mouton’s testimony taken in his own case:

Q. And on the cutters, can you tell me if you remember what kind of work Hopeman employees would be doing while you were around?
A. Pretty much flooring, repairing doors that wouldn’t close properly.
Q. Anything else other than flooring and repairing doors?
A. From what I could recall.
Q. So, of the other things that you initially listed that you remember Hopeman doing as a company, you think pretty much the only thing would — you would have been around would have been flooring and repairing doors?
PAUL LEGER:
Object to the form.
A. Yes.
BY BLAINE MOORE:
Q. Okay.
A. Yes.

Thus, according to Hopeman Brothers, the only issue is whether its employees used or installed ceiling and/or floor tiles containing asbestos upon the Coast Guard Cutters, not whether Hopeman Brothers used or installed asbestosjcontaining12 wallboard. We disagree. While Mouton did testify as quoted above in his own asbestos ease, he testified as follows in the instant case:

THE WITNESS:
With Hopeman Brothers, they — they installed all this framework, all the— all the metal, and — and the ceiling tiles, and the — the walls (indicating). If we had a leak while — while the shop was — some of these rooms are completed, and they start up equipment while the ship is not on sea trial. It’s still sitting in the yard. You have a leak. Everything ain’t perfect. They’ll test the line, and they’ll have a leak. So we had to go in there and remove this.
Q. When you say “this,” you’re talking about the ceiling—
A. The ceiling—
Q. tile?
A. Yeah. Not the framework. I mean we couldn’t cut all that. We just— you’d get — you’d get Hopeman Brothers to come cut that down if you had to cut. But you’d remove the ceiling. You’d remove a piece of Sheetrock if there was Sheetrock, or whatever they had.
Q. But the pi — the—the piping ran along the ceiling?
A. Yes, sir.
Q. Steam piping?
A. Steam.
Q. Water piping?
A. Water, steam, electrical lines—
lisQ- Okay.
A. —everything ran in the ceiling.

(Emphasis supplied.)

We find Mouton’s deposition testimony in the instant case clearly suggests that he and the decedent were around Hopeman Brothers employees while they were installing “walls,” or otherwise, wallboard. While Mouton did not specifically state Hopeman Brothers employees installed “wallboard” or “Micarta,” he does testify that he and the decedent were present and working side-by-side with Hopeman Brothers employees on the vessel and in an area where Hopeman Brothers was, among other things, installing walls. It is undisputed that the “walls” Hopeman Brothers installed on these vessels contained asbestos.

Applying the legal precepts attendant to determining whether evidence is sufficient to defeat a motion for summary judgment, we find Mouton’s testimony establishes that it was more probable than not that the decedent was exposed to asbestos-containing wallboard used and installed by Hopeman Brothers. We further find Mouton’s testimony creates a genuine issue of material fact upon which reasonable minds could differ as to whether the decedent’s exposure to the asbestos-containing wallboard installed by Hopeman Brothers was a significant contributing factor in his contraction of asbestosis and that the trial court erred in ruling otherwise. Accordingly, we reverse the trial court’s dismissal of the Lucases’ claims against Hopeman Brothers and Charles Johnson and remand the matter for further proceedings.

| uWestinghouselCBS

CBS, formerly Westinghouse, supplied Micarta wallboard to Hopeman Brothers, which Hopeman Brothers then used in the joinery work it performed on various vessels at Avondale, including U.S. Coast Guard Cutters. It is undisputed that the Micarta wallboard supplied by Westinghouse/CBS to Hopeman Brothers contained asbestos.

The plaintiffs acknowledge that Hope-man Brothers, in addition to installing Mi-carta wallboard manufactured by Westinghouse aboard the vessels at Avondale, also installed wallboard manufactured by others, including Johns-Mansville and UN-ARCO. Nonetheless, the plaintiffs seek to hold Westinghouse/CBS liable for substantially causing and/or contributing to the decedent’s asbestosis as a result of his exposure to asbestos from the Micarta wallboard they contend Hopeman Brothers was using in the performance of its work at a time and in an area of the Coast Guard Cutters where the decedent was also working.

To prevail in an asbestos ease, the plaintiffs must show, by a preponderance of the evidence, that the decedent was exposed to asbestos from the defendant’s product, “and that he received an injury that was substantially caused by that exposure.” Vodanovich v. A.P. Green Indus., Inc., p. 3 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, 932. “When multiple causes of injury are present, a defendant’s conduct is a cause in fact if it is a substantial factor in generating the plaintiffs harm.” Id.; Quick v. Murphy Oil Co., 93-2267, p. 8 (La.App. 4 Cir.9/20/94), 643 So.2d 1291, 1294.

“There can be more than one cause in fact of an accident as long as each cause bears a proximate relation to the harm that occurs and it is substantial in nature.” Vodanovich, p. 3, 869 So.2d at 932. “A plaintiff seeking to recover under 11fieither negligence or strict” products liability “theories must prove that the negligent act or defect complained of was a cause-in-fact of the injury.” Id.

In Quick v. Murphy Oil Co., supra, we found that:

When evaluating liability in an asbestos claim, we apply traditional theories of tort liability (for example negligence and products liability) which require proof of causation. See Cole v. Celotex Coiy., 599 So.2d 1058 (La.1992); Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5 th Cir.1983), cert. den., 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984). Asbestos cases typically involve multiple defendants and courts have analyzed the cases under concurrent causation, a doctrine which “proceeds from the assumption that more than one defendant substantially contributed to the plaintiffs injury.” 210 E. 86 th Street Corp. v. Combustion Engineering, Inc., 821 F.Supp. 125, 150 (S.D.N.Y.1993).

93-2267, p. 8, 643 So.2d at 1294.

The first element of proof under either negligence or products liability is causation. See Dixie Drive It Yourself System v. Am. Beverage Co., 242 La. 471, 137 So.2d 298 (1962). In Dixie Drive It Yourself System, the Court stated that “conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm.” Id., 242 La. at 482, 137 So.2d at 302. The court stated that negligent conduct is a substantial factor if the ham would not have occurred without the conduct, i.e., but for defendant’s conduct, the plaintiff would not have sustained injury. Id. The court thereby equated the two concepts of substantial factor and necessary antecedent. Rando, 08-1163, 08-1169, p. 32, 16 So.3d at 1089, citing Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363, 373 (1970).

Quick makes it clear that a plaintiffs burden of proof against multiple defendants in a long-latency case is not relaxed or reduced because of the degree of | ^difficulty that might ensue in proving the contribution of each of the defendant’s product to the plaintiffs injury. Thus, in an asbestos case, “the claimant must show that he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.” In re Asbestos v. Bordelon, Inc., 96-0525, p. 30 (La.App. 4 Cir. 10/21/08), 726 So.2d 926, 948.

In the case at bar, the decedent’s exposure to Westinghouse/CBS’ asbestos-containing products, ie. the Micarta wallboard, must constitute a substantial factor in having caused his asbestosis in order for the plaintiffs to prevail. In short, a finding that Westinghouse/CBS’s conduct or product was a contributing factor alone is insufficient to support liability in this case.

While the plaintiffs have established that the decedent was more probably than not exposed to asbestos-containing wallboard installed by Hopeman Brothers, we find the plaintiffs have failed to show that Westinghouse/CBS’s product was a cause in fact of the decedent’s harm. Specifically, we find the plaintiffs have failed to set forth sufficient proof that it was more probable than not that the wall-boarfl to which the decedent was actually exposed was Micarta wallboard supplied by Westinghouse/CBS, or that the Micarta wallboard (as opposed to Maranite or UN-ARCO) was a substantial factor in having caused his asbestosis. “A plaintiff must establish his claim to a reasonable certainty, [sic] mere possibility, and even unsupported probability, are not sufficient to support a judgment in the plaintiffs’ favor.” Vondanovich, 03-1079, p. 5, 869 So.2d at 934. Accordingly, summary judgment in favor of Westinghouse/CBS was appropriate and we affirm this portion of the trial court’s judgment.

Foster Wheeler

|17The Lucases allege that the decedent was exposed to asbestos at a time when insulation work was being performed on boilers manufactured by Foster Wheeler at Avondale. While the plaintiffs offer a plethora of evidence which places Foster Wheeler and its boilers at Avondale, there is no record evidence that insulators were involved in the operation of the boilers or that work on these boilers involved the dissemination of any asbestos-containing dust fibers. Moreover, the evidence does not substantiate that the work being performed on Foster Wheeler boilers was conducted during the timeframe involving the decedent or in such a manner so as to expose the decedent to asbestos.

Our de novo review of the various documents and depositions attached to the Lu-cases’ opposition to the motions for summary judgment indicate that at least three manufacturers and/or suppliers of boilers were at Avondale during the alleged time-frame wherein the decedent was employed as a pipefitter, including: Foster Wheeler, Babcock and Wilson, and Combustion Engineers. However, not one of these depositions places the decedent on a specific vessel, at a specific time, working on or in the vicinity of a Foster Wheeler boiler, or even suggests that he was otherwise exposed to asbestos in relation to the boilers.

Additionally, the deposition testimony of Mouton indicates that the boilers came pre-assembled and were merely set into place on the vessel obviating the need for insulators in the operation of the boilers at Avondale. And while Mouton identified Foster Wheeler as one of the manufacturers of the boilers upon which he did repair work involving asbestos, these boilers were associated with Mouton’s work at. Nine Mile Point when he was employed by LP & L, not Avondale.

At best, the evidence submitted by the plaintiffs merely confirms that Foster Wheeler boilers were somewhere at Avon-dale, on some of the vessels being | ^constructed and/or repaired, during some of the years of the decedent’s employment. As previously stated, in an asbestosis case, the plaintiff has the burden of establishing at trial that he had significant exposure to asbestos-containing products “to the extent the exposure was a substantial factor in bringing about his injury” or disease. Bordelon, 96-0525, p. 30, 726 So.2d at 948. The mere physical presence of asbestos-containing materials at a particular job site is insufficient to find liability. See Abram v. Epic Oil Co., 05-0626, p. 6 (La.App. 4 Cir. 6/28/06), 936 So.2d 209, 213, quoting Roberts v. Owens-Corning Fiberglass Corp., 03-0248, p. 12 (La.App. 1 Cir. 4/2/04), 878 So.2d 631, 642.

We find the appellate record completely devoid of evidence linking the decedent’s alleged asbestos exposure to any insulation work performed on Foster Wheeler boilers. Consequently, the Lucases have failed to provide evidence which would defeat Foster-Wheeler’s motion for summary judgment. We, therefore, affirm that portion of the trial court’s judgment dismissing the Lucases’ claims against Foster Wheeler.

Reilly Benton

The Lucases contend that the decedent was exposed to asbestos as a result of working with or around half round insulation containing asbestos that was sold and/or supplied by Reilly Benton. Reilly Benton does not deny that it sold and/or supplied insulation materials to Avondale at various times, some of which contained asbestos, including calcium silicate products. However, Reilly Benton contends that evidence of a mere physical presence of asbestos-containing materials is insufficient to establish liability. We agree.

| min support of their assertions of liability against Reilly Benton, the plaintiffs first rely on a portion of Mouton’s deposition testimony wherein he describes the insulation that was purportedly being removed in work conducted on an oil tanker — a vessel upon which Mouton testified that the decedent was not working. Mouton was unable to identify the brand name of any of the insulation materials he claims to have removed while at Avondale. Mouton further testified regarding the decedent installing insulation, or blankets, while at Avondale, but Mouton could not state who manufactured the blankets nor does Mouton’s testimony establish that the blankets actually contained asbestos.

The testimony of Warren Watters, President of Reilly Benton, does not substantiate the Lucases’ claim that the decedent was exposed to asbestos-containing calcium silicate insulation and cloth supplied by Reilly Benton. First, it is indisputable that Reilly Benton was merely one of numerous vendors that sold calcium silicate products to Avondale. Next, Watters testified that while the Reilly Benton materials containing asbestos sold to Avondale varied from year to year, they may have comprised fifty percent of the total products that were sold.

We agree with Reilly Benton that the evidence does nothing more than place the decedent at a worksite with products that were made by multiple manufacturers and supplied by multiple vendors, but does not specifically place him around asbestos fibers emanating from a product Reilly Benton sold and/or supplied to Avondale. The record lacks evidence upon which reasonable minds could differ substantiating that the decedent was exposed to asbestos-containing products sold and/or supplied by Reilly Benton. Consequently, we agree with the trial court that even if all factual inferences reasonably drawn from the record evidence were construed in favor of the plaintiffs, the Lucases will still be unable to satisfy their |2pburden of proving that the decedent was exposed to an asbestos-containing product sold and/or supplied by Reilly Benton such that it would have been a substantial contributing factor in the development of the decedent’s asbestosis. Accordingly, we affirm the trial court’s judgment summarily dismissing the Lucases’ claims against Reilly Benton.

CONCLUSION

For the foregoing reasons, we conclude the trial court erred in granting summary judgment in favor of Hopeman Brothers. Therefore, we reverse the trial court’s judgment dismissing the plaintiffs’ claims against Hopeman Brothers and remand this case to the trial court for further proceedings. We affirm the judgment of the trial court granting summary judgment in favor of Westinghouse/CBS, Foster Wheeler, and Reilly Benton.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . CBS Corporation is a Delaware corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric Corporation.

      . This case has been resolved as to all other named defendants.

      .Asbestosis is an irreversible condition featuring inflammation and scarring of the lung caused by prolonged exposure to quantities of asbestos, a material once widely used in construction, insulation, and manufacturing. When asbestos is inhaled, fibers penetrate the breathing passages and irritate, fill, inflame, and scar lung tissue.

      . On 3 December 2008, Mouton testified by deposition in both his own personal asbestos case entitled, "Wilton David Mouton v. Flexitallic, Inc., et al,” as well as in the instant case.

      . Micarta/Marinite is an asbestos board construction material composed of two sheet products joined together. Two sheets of Mi-carta, a high pressure decorative laminate, are bound to both sides of a sheet of Marinite. Together the Micarta and Marinite were used as one product as fire-safe wall partitions in ship construction. Hopeman Brothers also installed a similar wallboard onboard these vessels manufactured by UNARCO.

      . The evidence contained in the record shows the ceiling tiles installed by Hopeman Brothers onboard the Coast Guard Cutters did not contain asbestos. The affidavit of Charles Johnson, former Executive Vice President of Hopeman Brothers, attests that ''[a]ll of the ceiling tiles on the Unites States Coast Guard Cutters were constructed of aluminum and not of any asbestos-containing material.” The Lucases did not present any evidence to refute this purported fact.

      . The record indicates that Reilly Benton was merely one of numerous vendors that sold calcium silicate products to Avondale.


author: PAUL A. BONIN, Judge. LOMBARD, J.,

text:
    STATE of Louisiana v. Jerrold J. FRANCIS. State of Louisiana v. Jerrold Francis.
    Nos. 2010-KA-1149, 2010-KA-1150.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 16, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

li During a frisk following a Terry stop, police officers seized cocaine from Jerrold Francis. The officers arrested Mr. Francis for possession of cocaine, a violation of LA. R.S. 40:967 C, and for resisting an officer, a violation of LA. R.S. 14:108. During pretrial proceedings, Mr. Francis filed a motion to suppress the evidence, asserting that the stop-and-frisk was unconstitutional and that the cocaine seized should be excluded from evidence. After the district judge denied his motion, Mr. Francis entered pleas of guilty to both offenses. But he reserved his right to appeal the denial of his motion to suppress the evidence. See State v. Crosby, 338 So.2d 584 (La.1976).

Because the objective circumstances surrounding the officer’s frisk of Mr. Francis do not support a finding that the officer reasonably suspected that Mr. Francis was armed and dangerous, we find that the frisk following the stop was unreasonable and that the trial court abused its discretion in denying the motion to suppress evidence. We accordingly reverse the trial court’s ruling on the motion, vacate Mr. Francis’ guilty pleas, and remand for further proceedings. We explain our reasoning in detail in the following Parts.

Police officers Rodney Brown and Clinton Lawrence were on, as they characterize, proactive patrol late at night near the Iberville Housing Project in downtown New Orleans. They observed Mr. Francis pacing on the sidewalk near a building located at the intersection of Iberville and North Robertson streets. The building at this intersection houses a clinic and a security company — both of which were closed.

Describing himself as “curious” about why Mr. Francis was pacing in front of closed businesses, Officer Brown along with Officer Lawrence exited the police car. They walked over to Mr. Francis to ask him why he was there. As they approached, Officer Brown noticed that Mr. Francis had his right hand in his pocket. He ordered Mr. Francis to remove his hand from his pocket. Mr. Francis complied. Mr. Francis held his hand out in a manner that showed the officers that he was holding a cigarette lighter.

The officers then asked Mr. Francis for some identification, and when he told them that he had none, the officers put him on the car and patted him down. As Officer Lawrence conducted the pat down, he kicked Mr. Francis’ legs further apart, causing Mr. Francis’ body to shift. It was then that Officer Brown noticed that a clear blue plastic bag was in Mr. Francis’ right hand. Officer Brown moved Mr. Francis’ hand and saw that the bag contained six pieces of cocaine. As -the officers were placing Mr. Francis in handcuffs, Mr. Francis attempted to flee— managing to run only a few feet before the officers captured him.

Is At the hearing on the motion to suppress, when asked why he elected to pat down Mr. Francis, Officer Brown said, “he was standing there with his hand in his pocket.” Mr. Francis, however, removed his hand from his pocket when ordered to do so, revealing that he was holding a blue lighter. Officer Brown explained: “We had to check him to see if he had any type of weapons on him. We’re not going to just stand there and interact with somebody when we don’t know if they’re armed.” On cross-examination, Officer Brown noted that it was his standard procedure to pat a person down before speaking to him during a pedestrian check at night and in the dark.

Following the arrest, Officer Brown took Mr. Francis to Central Lockup, where deputies told him that he must first take Mr. Francis to University Hospital for treatment for head injuries he had sustained during his arrest.

II

Before we discuss Mr. Francis’ assignments of error regarding the validity of the Terry stop and frisk, we briefly address an evidentiary matter. Officer Brown, on direct examination, testified that he stopped Mr. Francis near the intersection of Iberville and North Robertson streets. Officer Brown identified this as a “crime area,” and counsel for the defense objected on grounds that the area’s reputation for crime was irrelevant, and counsel orally moved to strike the statement. The trial court sustained the objection but did not rule on the motion to strike.

An individual’s presence, in an area of expected crime, standing alone, is of course insufficient to support a reasonable, particularized suspicion that a person is involved in criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). But we have recognized that the reputation of |4an area is an articulable fact upon which an officer may rely in determining reasonable suspicion. See State v. Ratliff, 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254. Inquiry into the criminal character of an area is a legally relevant contextual consideration when analyzing a Terry stop. Adams v. Williams, 407 U.S. 143, 144, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Because Officer Brown’s testimony that the area in question had a reputation for criminal activity was relevant, the trial court should not have sustained the objection. In any event, we note that the trial court later articulated, in stating its reason for denying the motion to suppress, that this incident took place in the Iberville Project. In our review and evaluation of the trial court’s finding of reasonable suspicion, we accept that the stop took place in an area with a reputation for high crime and consider that as one circumstance in the totality of the circumstances surrounding the stop and frisk of Mr. Francis.

Ill

The Fourth Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, protects the right of the people “against unreasonable searches and seizures.” U.S. Const. Amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Similarly, the Louisiana Constitution protects “persons, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. Art. 1, § 5. “Reasonableness is always the touchstone in striking the balance between | legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests.” State v. Bell, 09-574, p. 14 (La. App. 4 Cir. 12/9/09), 28 So.3d 502, 512. Accordingly, our inquiry under the Fourth Amendment always centers on reasonableness. And an appellate court ultimately reviews a finding of reasonableness under the Fourth Amendment de novo standard. See State v. Pham, 01-2199, p. 4 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218.

Unless justified by narrowly drawn exceptions to the warrant requirement, searches and seizures conducted without warrants issued on probable cause are per se unreasonable. State v. Surtain, 2009-1835, p. 7 (La.3/16/10), 31 So.3d 1037, 1043, citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). To enforce the mandates of the Fourth Amendment and La. Const. Art. 1, § 5, evidence recovered pursuant to an unconstitutional search or seizure is inadmissible. Mapp, 367 U.S. at 657, 81 S.Ct. 1684; State v. Hamilton, 2009-2205, p. 3 (La.5/11/10), 36 So.3d 209, 211. At a suppression hearing, the State bears the burden of proving the admissibility of evidence seized without a warrant. La. C.Cr.P. Art. 703 D. Aside from the ultimate determination of reasonableness, a trial court’s determination of a motion to suppress evidence is entitled to great weight and will not be set aside absent an abuse of discretion. See State v. Wells, 2008-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581; see State v. Pham, supra.

With these general Fourth Amendment precepts in mind, we turn now to a specific Fourth Amendment considerations of the stop first and then of the frisk of Mr. Francis.

“A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him, his name, address, and an explanation of his actions.” LA. C.CR.P. art. 215.1 A; see also Terry, supra. “Reasonable suspicion” sufficient to effect a stop has been defined as something less than probable cause for arrest: a reviewing court must look to the facts and circumstances of each case to determine whether a detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Williams, 07-0700, p. 11 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1111.

In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy it entails and consider the totality of the circumstances in determining whether reasonable suspicion exists. State v. Marzett, 09-1080, pp. 5-6 (La.App. 4 Cir. 6/9/10), 40 So.3d 1204, 1208. The detaining officers must have knowledge of specific articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the stop. Id. The officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable, and deference should be given to the experience of the officers present at the time of the incident. Id. “A hunch or suspicion is simply insufficient to establish reasonable grounds to stop a person.” State v. Lange, 02-0477, p. 7 (La.App. 4 Cir. 11/6/02), 832 So.2d 397, 401.

“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Adams, 407 U.S. at 7145-46, 92 S.Ct. 1921. On the contrary, as the Supreme Court explained in Adams, the Terry case “recognizes that it may be the essence of good police work to adopt an intermediate response.” Id. “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Id.

Here, Officer Brown articulated a minimum of information to sufficiently establish reasonable grounds for the stop. He noted that Mr. Francis was walking back and forth in front of closed businesses at night in an area where crime occurs. Officer Brown did not say that he suspected Mr. Francis was involved in criminal activity; he was simply “curious as to why [Mr. Francis] would be right there.” When we, however, consider the fact that the officers were on proactive patrol late at night, that the stop took place in a high crime area, and that Mr. Francis’ pacing near closed businesses with his hand in his pocket, we are unable to conclude that the trial court abused its discretion in finding under the totality of the circumstances that the officers had reasonable suspicion to warrant their belief that Mr. Francis was involved in (or was about to be involved in) some kind of criminal activity. These circumstances demonstrate at least a minimal level of reasonable suspicion to interfere with Mr. Francis’ freedom of movement and to support a valid stop. Thus, we do not find that the trial court abused its discretion in finding that the officers had reasonable suspicion for the stop.

B

Importantly, we do not confuse the automatic search authorized incident to a lawful arrest as an analogue for the frisk that often accompanies a Terry stop. See United States v. Robinson, 414 U.S. 218, 225, 94 S.Ct. 467, 38 L.Ed.2d 427(1973) (recognizing the “right | swithout a search warrant contemporaneously to search persons lawfully arrested.”). A lawful detention for questioning does not automatically give the officer authority to conduct a pat-down for weapons. State v. Sims, 02-2208, p. 6 (La.6/27/03), 851 So.2d 1039, 1043 (emphasis added). “While it is true that an officer is never justified in conducting a pat-down for weapons unless the original detention itself was justified, a lawful detention for questioning does not necessarily give the officer authority to conduct a pat-down for weapons.” State v. Denis, 96-0956, p. 7 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295, 1298-99.

In Sims, the Louisiana Supreme Court explained that the “officer’s suspicion that he is in danger is not reasonable unless the officer can point to particular facts which led him to believe that the individual was armed and dangerous.” Sims, 02-2208, p. 3, 851 So.2d at 1043-44. Additionally, “the officer need not establish that it was more probable than not that the detained individual was armed and dangerous.” Id. Rather, the Louisiana Supreme Court explained, “it is sufficient that the officer establish a “substantial possibility” of danger.” Id. To determine the lawfulness of an officer’s frisk of a suspect, “courts must give due weight, not to an officer’s inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id.

In evaluating the reasonableness of the frisk, we still consider whether an officer’s frisk is “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. 1868. Although we find that the officers had reasonable suspicion to effect the stop, we nonetheless still reverse the trial court’s ruling on the motion to suppress because even if the stop was justified, the frisk which followed was not. The intrusion not only on a citizen’s movement |9but on the citizen’s dignity is qualitatively distinguished when the officer’s interaction intensifies from questioning to placing his hands on the person.

For Fourth Amendment purposes, the line drawn here is drawn on an objective basis and that line may only be crossed by the police officer when that objective basis is clear. As the United States Supreme Court articulated in Terry, “Even after a lawful investigatory stop, a police officer is justified in frisking the subject only under circumstances where a reasonably prudent man ... would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

If a law enforcement officer has legally stopped a person pursuant to Louisiana Code of Criminal Procedure Article 215.1 A, the officer may frisk the outer clothing of the person if the officer reasonably • suspects that he is in danger. La. C.CR.P. Art. 215.1 B. Additionally, if the officer reasonably suspects that the person possesses a dangerous weapon, he may search the person. Id. To frisk a person who has been detained, there must be some basis for fear for his safety or fear that the suspect is armed. State v. James, 07-1104, p. 6 (La.App. 4 Cir. 3/5/08), 980 So.2d 750, 754. “The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger.” Id.

As already stated, the reasonableness of a frisk conducted as part of an otherwise lawful investigatory stop is governed by an objective standard. The Louisiana Supreme Court has observed that, in evaluating an officer’s reasonableness, “[t]he relevant question is not whether the police officer subjectively believes he is in danger, or whether he articulates that subjective belief in his testimony at a suppression hearing.” State v. Dumas, 00-0862, pp. 2-3 (Lag/4/01),10 786 So.2d 80, 81-82. Instead, the standard of an officer’s reasonableness in frisking a detainee is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Dumas, the Louisiana Supreme Court approvingly cited Warren LaFave on the point that the test is “an objective rather than a subjective one, just as with the probable cause needed to arrest or search, and thus it is not essential that the officer actually have been in fear.” Warren R. LaFave, Search and Seizure, § 9.5(a), p. 253 (3rd ed.1996). Conversely, an officer who subjectively feels genuine fear upon every encounter would also, without more, fail to justify his search of every person he fears for a weapon. Although we do not require that the officer subjectively feel fear, we nonetheless still require some articulation of specific facts from which we can reasonably infer the danger of the situation or the dangerousness of the person stopped.

“Unless the plain language of Article 215.1 B is interpreted as authorizing an officer to frisk every pedestrian who is stopped pursuant to subsection A,” we stated in State v. Hughes, “the only way a court can determine if the officer reasonably suspected that he was in danger is to require him to express that suspicion, and explain upon what it is based.” State v. Hughes, 99-2554, pp. 7-8 (La.App. 4 Cir. 5/31/00), 765 So.2d 423, 428.

Beyond the facts recited above in Section A, ante, we can find no further support for a reasonable belief that Mr. Francis was armed or otherwise posed a danger. Although there have been cases in the past in which the facts that justify the stop will also justify the frisk, this is not one of those cases. Cf., State v. Mingo, 93-0827, p. 4 (La.App. 1 Cir. 6/24/94), 638 So.2d 1209, 1211. Because the facts | nhere only barely support a minimum level of reasonable suspicion that any criminal activity was afoot, in order to justify the officer’s reasonable belief that Mr. Francis presented a danger, we will require something more in our evaluation of the totality of the circumstances. In this case, the officer did not receive information from a confidential informant that Mr. Francis was involved in illegal activity, cf., State v. Legett, 02-0153, p. 5 (La.App. 4 Cir. 5/22/02), 819 So.2d 1104, 1107, nor did he articulate that he suspected Mr. Francis had some other connection to drugs or drug trafficking which might have supported a reasonable suspicion of danger. Cf., State v. Fortier, 99-0244, p. 7 (La.App. 4 Cir. 1/26/00), 756 So.2d 455, 460. Mr. Francis did not flee at the sight of the officers. Cf., State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989. There is also no evidence that, prior to the frisk, Mr. Francis appeared to be nervous or fidgety. Cf., State v. Francois, 00-1039, pp. 5-6 (La.App. 4 Cir. 1/10/01), 778 So.2d 673, 677-78.

Instead, Officer Brown noted that he frisked Mr. Francis “because he was standing there with his hand in his pocket.” If Mr. Francis had kept his hand in his pocket, a reasonably prudent officer might be concerned that he was concealing a weapon, and this may have sufficiently supported a pat-down, but here, Mr. Francis immediately removed his hand from his pocket when ordered to do so, revealing that he was holding a cigarette lighter. Cf., State v. Boyer, 07-0476, p. 21 (La.10/16/07), 967 So.2d 458, 472.

We begin by deferring to the experience and expertise of an officer effecting a stop and frisk. See Marzett, supra. We also recognize that the police have the right to ensure their own safety in an encounter with a suspected criminal. See Denis, 96-0956, p. 7, 691 So.2d at 1299. Here, Officer Brown testified that he has |12been on the police force for three years, but there was no further testimony about the depth or breadth of his experience. In fact, rather than connecting the need for this particular frisk with his own prior experience, Officer Brown instead stated that it was his standard procedure to frisk everyone he approached for every pedestrian encounter that took place at night. His suggestion of an automatic frisking policy is problematic.

From the facts before us and viewing all evidence according to the totality of the circumstances, we find that the trial court abused its discretion in denying Mr. Francis’ motion to suppress evidence. We find no basis for concluding that a reasonable person in the officer’s position would be warranted in the belief that Mr. Francis posed a danger. The frisk here was not based on specific facts that might indicate danger. Indeed, the officers arguably conducted a frisk on something less than a hunch: pursuant to a systematic policy of frisking anyone who is pacing in the nighttime. Such a policy, although it may be efficient, is not constitutional. In this case, the frisk was an unreasonable search under the constitution.

C

We conclude that although the officers had reasonable suspicion for the stop, the officers lacked reasonable suspicion for the frisk of Mr. Francis. Accordingly, the district court abused its discretion in denying the motion to suppress the evidence. We reverse that ruling and grant the motion to suppress. On the basis of the suppression hearing that was held, the discovery of the cocaine immediately resulted from the unlawful frisk and should have been excluded from evidence. See Wong Sun v. U.S., 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We also vacate the plea of guilty to possession of cocaine.

_biv

We now turn to address Mr. Francis’ second assignment of error. Mr. Francis contests his guilty plea for resisting an officer, a violation of La. R.S. 14:108, asserting that, because his detention was illegal, he had a right to resist the officer.

Generally, individuals in Louisiana have the right to resist an unlawful detention, including unconstitutional Terry stops and searches. See State v. Manuel, 06-0486 (La.App. 4 Cir. 11/21/06), 946 So.2d 245, 248; see also La. R.S. 14:108 A (“Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.”) The officers here frisked Mr. Francis without reasonable suspicion to do so.

We understand Mr. Francis’ argument to be that the trial court’s erroneous ruling on his motion to suppress effectively foreclosed his defense to the charge of resisting an officer, a misdemeanor. See La. R.S. 14:108 C and 14:2 A(6). The offense is triable to the judge alone, see La. Const. Art. I, § 17(A) and La.C.Cr.P. Art. 779 B, and the trial judge had already decided the lawfulness of the detention and frisk. Thus, his decision to plead guilty under Crosby and preserve his right to appeal the suppression ruling and, in effect, his guilty plea to resisting an officer. Although a plea of guilty generally waives review of all non-jurisdictional defects in pre-plea proceedings, a plea pursuant to State v. Crosby authorizes appellate review of defects in pre-plea proceedings that are objected to |14at the time of the plea. State v. Sellers, 04-1922, p. 5 (La.App. 4 Cir. 4/20/05), 902 So.2d 418, 421.

Because we conclude that the suppression ruling, based upon the evidence at the suppression hearing, is erroneous, we vacate Mr. Francis’ plea of guilty to the resisting arrest.

REMAND INSTRUCTIONS

Our decision to vacate the guilty pleas entered under Crosby necessitates that we remand the consolidated cases to the trial court for trial. As we have stated, our review in this case only extended to the evidence adduced at the hearing on the motion to suppress. Ordinarily, had Mr. Francis proceeded to trial on the merits, our review of the denial of his motion to suppress would have been expanded to include any additional relevant evidence introduced at trial. See State v. Craft, 03-1852, p. 5 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 363. Our ruling regarding the motion to suppress does not preclude, upon a showing of good cause, the prosecution requesting that the suppression hearing be re-opened for additional evidence.

DECREE

Accordingly, the trial court ruling denying Jerrold Francis’ motion to suppress is reversed and the motion is granted, the conviction and sentence are vacated and set aside and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

MURRAY, J., Concurs in the Result.

LOMBARD, J., Concurs with Reasons.

LOMBARD, J.,

Concurs and Assigns Reason.

U respectfully concur. A lawful detention for questioning does not automatically give the officer authority to conduct a pat-down for weapons. State v. Sims, 2002-2208. p. 6, 851 So.2d 1039, 1043; State v. Hunter, 375 So.2d 99, 101 (La.1979). Rather, the officer must articulate particular facts that led him to believe the individual at issue was armed and dangerous, Sims, 851 So.2d at 1043-1044. The officer admitted that the defendant in this case immediately removed his hand from his pocket when ordered to do so and, moreover, that it was simply his standard procedure to frisk everyone he stopped on the street at night. Clearly, the officer overstepped both constitutional and statutory boundaries and the trial court erred in denying the defendant’s motion to suppress.

      . Officer Brown, who testified at the hearing on the motion to suppress, did not define this term, but it is sometimes also known as "preventive patrol.” Preventive patrol purports to increase police presence in areas of expected crime in order to act as a deterrent. As O.W. Wilson, former chief of the Chicago Police Department has said, proactive or preventive patrol "is the only form of police service that directly attempts to eliminate opportunity for misconduct.” The Kansas City Preventive Patrol Experiment: A Summary Report by George L. Kelling, et al. (1974).

      . Much has been made of the phrase "high crime area,” but little has been done to define it. High crime areas have been described as "places in which the character of the area gives color to conduct which might not otherwise arouse the suspicion of an officer.” State v. Buckley, 426 So.2d 103, 108 (La.1983). It has also been qualified, as, for example, an "area in which many narcotics arrests have been made.” State v. Barney, 97-777, p. 5 (La.App. 5 Cir. 2/25/98) 708 So.2d 1205, 1207. It can be an area which is "the subject of on-going complaints.” State v. Flagg, 99-1004, p. 9 (La.App. 5 Cir. 4/25/00) 760 So.2d 522, 527. The Louisiana Fifth Circuit Court of Appeal has a practice of taking judicial notice that an area is one of high crime pursuant to LA. C.E. 201. See, e.g., State v. Burns, 04-175, p. 9 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1078; State v. Miskel, 95-584, pp. 7-8 (La.App. 5 Cir. 1/30/96), 668 So.2d 1299, 1303. The First Circuit has done the same. See State v. Sterling, 479 So.2d 641, 643 (La.App. 1st Cir.1985). Some have questioned the utility and legality of an undefined "high crime” inquiry. See, e.g., State v. Cooper, 36,472, p. 4 (La.App. 2 Cir. 10/23/02), 830 So.2d 440, 445, n. 5.