author: PETTIGREW, J. KUHN, J., McCLENDON, J.,

text:
    MANH AN BUI v. FARMER’S INSURANCE EXCHANGE.
    No. 2010 CA 1571.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.
    John B. Lambremont, Sr., Wesley P. Hebert, Baton Rouge, LA, for Plaintiff-Appellant Manh An Bui.
    Valerie Briggs Bargas, Baton Rouge, LA, for Defendant-Appellee Farmers Insurance Exchange.
    Before KUHN, PETTIGREW, McClendon, welch, and HIGGINBOTHAM, JJ.
   PETTIGREW, J.

Lin this matter, plaintiff challenges the trial court’s grant of summary judgment in favor of his homeowner’s insurer and dismissing his claim for coverage. For the reasons that follow, we hereby vacate and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On August 28, 2009, Manh An Bui, plaintiff herein, filed the instant litigation in the 19th Judicial District for the Parish of East Baton Rouge claiming that his home and residence located at 1173 Sherwood Forest Boulevard, Baton Rouge, Louisiana, was damaged as a result of Hurricane Gustav, which impacted south Louisiana on or about August 29, 2008. Mr. Bui also alleged that Farmers Insurance Exchange (“Farmers”), defendant herein, was the underwriter of a policy of homeowner’s insurance covering the aforementioned residence. Despite timely notice and adequate proof of claim, Mr. Bui alleged Farmers arbitrarily and capriciously failed to pay for damage sustained to his residence as a result of Hurricane Gustav.

Mr. Bui further alleged that although Farmers purportedly cancelled his homeowner’s policy in June of 2008, on the grounds that he failed to maintain the premises, Farmers arbitrarily and capriciously failed to refund his unearned premium until August 2009.

On October 9, 2009, Farmers filed an answer denying all of the allegations of Mr. Bui’s petition. Farmers further alleged that Mr. Bui’s “policy was cancelled and his premium refunded as provided for in Louisiana law.”

On March 15, 2010, Farmers filed a motion for summary judgment on the grounds that Mr. Bui’s homeowner’s policy had been cancelled prior to the hurricane. In support of its motion, Farmers also filed a memorandum and attached the following exhibits: an affidavit of Cheryl Jordan, Record Management Coordinator with Farmers; a copy of the Notice of Cancellation, effective August 8, 2008; a proof of mailing for said Notice; together with a complete copy of the Farmers’ policy that was issued to Mr. Bui.

Mr. Bui responded by filing on May 7, 2010, a memorandum in opposition to Farmers’ motion for summary judgment. In an affidavit attached thereto, Mr. Bui attested |sto the fact that on or about September 1, 2008, his residence was damaged as a result of Hurricane Gustav, and his residence was in the same, or substantially the same, condition, from May 19, 2008 through Oct. 31, 2008. Mr. Bui further attested to the fact that he did not receive any notice, either written or oral, that his homeowner’s policy was being can-celled prior to September 1, 2008. Mr. Bui stated that he continued to remit premiums to Farmers as required by the policy through September 8, 2008 and beyond, and that he did not receive a refund for premiums paid under the policy prior to September 1, 2008.

According to his affidavit, Mr. Bui, his wife, Van Pham, and his three children, Michelle Bui, age 13, Matthew Bui, age 7, and Madison Bui, age 3, were the only occupants of the residence from May 19, 2008, through September 1, 2008, and to the best of Mr. Burs knowledge, none of these persons received any notice of cancellation regarding the homeowner’s policy issued by Farmers.

Mr. Bui also attached an affidavit of his wife, Van Pham, who attested to the same facts — that she resided at the insured premises from May 19, 2008 through Oct. 31, 2008; that she did not receive any notice, either written or oral, that the homeowner’s policy was being cancelled prior to September 1, 2008; that the residence was damaged on September 1, 2008, as a result of Hurricane Gustav; that the residence was in the same, or substantially the same condition, from May 19, 2008 through Oct. 31, 2008; that her husband, Mr. Bui, and their three children, Michelle Bui, age 13, Matthew Bui, age 7, and Madison Bui, age 3, were the only occupants of the residence from May 19, 2008, through September 1, 2008, and to the best of Mrs. Pham’s knowledge, none of these persons received any notice of cancellation regarding the homeowner’s policy issued by Farmers.

In response to Mr. Burs opposition to its previously filed motion for summary judgment, Farmers filed a reply memorandum on May 13, 2010, and attached as additional exhibits, a second affidavit executed by Cheryl Jordan, together with attachments to said affidavit, as well as a second copy of an endorsement attached to Mr. Burs policy, which had previously been provided in connection with the filing of Farmers’ [^motion for summary judgment. In its reply memorandum, Farmers’ contended that pursuant to the terms of its policy, Mr. Bui’s homeowner’s coverage was subject to cancellation for any reason if said policy had been in effect for less than sixty days at the time of cancellation.

On May 14, 2010, Mr. Bui obtained leave of court to file a supplemental and amending memorandum in opposition to Farmers’ motion for summary judgment. Mr. Bui amended his original memorandum and affidavit to state that he only made one payment to Farmers for six-months of homeowner’s coverage, and that despite receiving payment, Farmers did not issue a pro-rated refund upon its alleged cancellation of the policy. Mr. Bui claimed that because he did not receive a notice of cancellation, or a pro-rated refund of his homeowner’s premium, he believed he still had an effective homeowner’s insurance policy. Mr. Bui also moved for a continuance of the hearing on Farmers’ motion for summary judgment on the ground that two business days before the hearing on its motion, Farmers shifted its argument to a completely new clause in the insurance policy in dispute and asserted new grounds in support of its motion for summary judgment.

On May 17, 2010, a hearing was held on Mr. Burs motion for a continuance and Farmers’ motion for summary judgment. The trial court denied Mr. Burs motion for a continuance on the grounds that Farmers had previously submitted a copy of its entire policy in connection with its original motion for summary judgment. After hearing argument on Farmers’ motion for summary judgment, the trial court assigned oral reasons and granted Farmers’ motion for summary judgment. A judgment in accordance with the trial court’s ruling and dismissal of Mr. Bui’s suit was signed on June 1, 2010. From this judgment, Mr. Bui has taken the instant appeal.

ISSUES PRESENTED FOR REVIEW

In connection with his appeal in this matter, Mr. Bui has raised the following issues for consideration by this court:

1. Can a trial judge grant summary judgment on a cancellation of insurance case where affidavits in the record back the insured’s assertion that he never received a cancellation notice prior to his loss?
|fi2. Does a homeowner’s carrier act in bad faith in cancelling coverage for one alleged reason, which reason is shown on its notice of cancellation, and then, after suit is filed, defend its cancellation on another reason not shown on the notice of cancellation?
3. Can a trial judge grant summary judgment on a claim for penalties and attorney fees regarding an untimely refund of unearned premium claim, where the record contains affidavits showing that the insured did not receive any refund or premium prior to the loss he sustained some sixty-plus days after the alleged cancellation?

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sug ar Coop, Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La. App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

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

| fiIn determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Morial New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

DISCUSSION

Louisiana law provides that the cancellation of insurance policies by an insurer is governed by La. R.S. 22:887 (formerly La. R.S. 22:636) which provides, in pertinent part, as follows:

A. Cancellation by the insurer of any policy which by its terms is cancella-ble at the option of the insurer, or of any binder based on such policy, may be effected as to any interest only upon compliance with either or both of the following:
(l)(a) Written notice of such cancellation must be actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than thirty days prior to the effective date of the cancellation except when termination of coverage is for nonpayment of premium.
C. The affidavit of the individual making or supervising such a mailing shall constitute prima facie evidence of such facts of the mailing as are therein affirmed.

|7Our supreme court has noted that “[t]he purpose of notice of cancellation is to make known to the insured that his policy is being terminated and to afford him sufficient time to obtain other insurance protection.” Broadway v. All-Star Insurance Corporation, 285 So.2d 536, 539 (La.1973). This precept has become strong public policy requiring prior notice of the cancellation of an insurance policy in order that an insured might be afforded sufficient time to obtain new coverage. Collins v. State Farm Insurance Company, 2008-0790, p. 10 (La.App. 4 Cir. 10/14/08), 997 So.2d 51, 57, writ denied, 2008-3012 (La.2/20/09), 1 So.3d 499, citing Rachuba v. Hickerson, 503 So.2d 570, 571 (La.App. 4 Cir.1987).

In its opinion in Broadway, the supreme court noted the language “mailed to the insured” that appears in La. R.S. 22:887 A(l)(a),(formerly La. R.S. 22:636), “connotes a completed process, the transmission of the notice through the United States mails.” Broadway, 285 So.2d at 539. The court went on to hold that “[a]n interpretation which permits a deposit in the mails to conclusively terminate coverage undermines the purpose of the notice.” Id.

Our supreme court in Broadway, reiterated its earlier holding in Skipper v. Federal Insurance Co., 238 La. 779, 116 So.2d 520 (1959), that proof of the deposit in the mails creates only a prima facie presumption of delivery under La. R.S. 22:636 (currently La. R.S. 22:887). Broadway, 285 So.2d at 539. Recalling its holding in Cuccia v. Allstate Insurance Company, 262 La. 545, 263 So.2d 884 (1972), the court stated that the mailing of a notice of cancellation to an insured only created a re-buttable presumption that could be rebutted by proof of non-delivery. Broadway, 285 So.2d at 539-540.

It is apparent that Farmers presented prima facie evidence in accordance with the statute to show that the cancellation notice was mailed to Mr. Bui according to the requirements of the law. Farmers further urges application of the holding of Freeman v. Audubon Insurance Group, 2008-0856, pp. 2-3 (La.App. 4 Cir. 4/1/09), 11 So.3d 509, 510-511, writ denied, 2009-0987 (La.6/19/09), 10 So.3d 743, wherein the Fourth Circuit held that an insurer properly notified its insured of its cancellation of insured’s homeowner’s policy, despite insured’s contention that he never received notice oflRcancellation. The court found the facts to be distinguishable from its earlier decision in Collins, based upon the insured’s acknowledgement that he was responsible for the payment of premiums, and that he received a refund of the unused portion of his premium shortly after the date of cancellation. We find Freeman to be inapposite.

Mr. Bui opposed the motion for summary judgment with sworn affidavits executed by himself and his wife attesting to the fact that neither had received notice, either oral or written, of Farmer’s cancellation of Mr. Bui’s homeowner’s policy. Additionally, Mr. Bui attested to the fact that he did not receive a refund for premiums paid under the policy prior to the date of loss.

In deciding a motion for summary judgment, the court cannot make credibility determinations and must assume that all of the affiants are credible. Cate Street Investments, L.L.C. v. American Central Insurance Company, 2003-2760, p. 10 (La. App. 1 Cir. 6/25/04), 897 So.2d 13, 18, citing Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234. Inasmuch as summary judgments deprive the litigants of the opportunity to present their evidence to a jury, they should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. Cate Street Investments, 2003-2760 at pp. 10-11, 897 So.2d at 18, citing Williams v. Storms, 01-2820, p. 10 (La.App. 1 Cir. 11/8/02), 835 So.2d 755, 763. As this matter presents credibility determinations that cannot be resolved on a motion for summary judgment, the trial court erred in its grant of summary judgment.

CONCLUSION

For the above and foregoing reasons, we hereby reverse the trial court’s grant of summary judgment and remand this matter to the trial court for further proceedings consistent with this opinion. All costs associated with this appeal shall be assessed against Farmers.

REVERSED AND REMANDED.

McCLENDON, J., concurs and assigns reasons.

KUHN, J., dissents with reasons.

KUHN, J.,

dissenting.

hi disagree with the majority’s reversal of the grant of summary judgment in favor of Farmers Insurance Exchange (Farmers) and would affirm the trial court’s dismissal of Mr. Bui’s claim for coverage. Mr. Bui has failed to rebut Farmers’ showing of entitlement to dismissal from this lawsuit.

The court in Johnson v. Louisiana Farm Bureau Cas. Ins. Co., 2011-0476 (La.5/6/11), 60 So.3d 607, granted certiora-ri to resolve conflicts amongst the circuits concerning written notice requirements under La. R.S. 22:1335. The court resolved the conflict on the question of whether the statute required actual delivery of the notice of non-renewal or simply mailing for the cancellation to be valid. The issue presented by the appellant in this case is his assertion that he must simply rebut the presumption of mailing. But in doing so appellant fails to recognize his burden of proof set forth in La. C.C.P. art. 966.

The Johnson court stated that there are only two relevant considerations on the issue of non-delivery of the notice: (1) nondelivery as evidence of non-mailing (appellant has not disputed the mailing but only that he has not received the mailing); and (2) improper mailing (an issue not addressed at all by appellant).

| ^.Similarly to La. R.S. 22:1335, La. R.S. 22:887 addresses notice to the insured of cancellation of policies although the latter provides for policies cancelable at the option of the insurer rather than nonrenewal of a policy. La. R.S. 22:887 A(l)(a) specifies that written notice of cancellation must be actually delivered or mailed to the insured not less than thirty days prior to the effective date of the cancellation. Subsection A(3) provides that where written notice of cancellation or nonrenewal is required and the insurer elects to mail the notice, the running of the time period between the date of mailing and the effective date of termination of coverage shall commence upon the date of mailing. Subsection B explains that the mailing of any such notice is effectuated by depositing it in a sealed envelope, directed to the addressee at his last address as known to the insurer or as shown by the insurer’s records, with proper prepaid postage affixed, in a letter depository of the United States Post Office. And according to the plain language of Subsection C, the affidavit of the individual making or supervising such a mailing shall constitute prima facie evidence of such facts of the mailing as are therein affirmed.

Farmers presented the affidavit of Cheryl Jordon, its representative, stating that notice of cancellation was mailed to Mr. Bui’s address on July 1, 2008, advising Mr. Bui that his homeowner’s insurance would be cancelled effective August 8, 2008. Additionally, the notice and proof of mailing was admitted into evidence showing the cancellation notice was sent to 1173 Sherwood Forrest Drive, Baton Rouge, LA, 70815-5328. Indeed, Mr. and Mrs. Bui’s sworn affidavits confirm that Farmers sent the notice to thejjcorrect address. Thus, under La. R.S. 22:887 C Farmers established prima facie evidence of the fact of the mailing.

Mr. Bui responded to that showing by Farmers with his affidavit and that of his wife attesting that they never received oral or written notice of cancellation. Neither of these affidavits addresses the two relevant considerations of non-delivery discussed by the court in Johnson. As such, Mr. Bui has offered nothing to demonstrate that he can meet his burden of proof as required by La C.C.P. art. 966. Thus, he has not established a relevant issue of material fact, and the judgment must be affirmed.

Moreover, I note that subsequent to his affidavit, Mr. Bui admitted that he had made misrepresentations in that affidavit. Specifically, Mr. Bui’s memorandum in response to Farmers’ supplemental memorandum stated that Mr. Bui did not continue to make payments on his premium; but that instead, he had made a single payment for a six-month period of coverage. The statement in Mr. Bui’s sworn affidavit, indicating that he had continued to make payments subsequent to the date that Farmers mailed notice, was an attempt by plaintiff to introduce facts to rebut the prima facie showing defendant had made under La. R.S. 23:887 A(l)(c). By recanting his affidavit testimony, Mr. Bui casts further doubt on his ability to overcome the presumption of notice, and the trial court was entitled to reject all the statements contained in his and his wife’s sworn affidavits. As such, Mr. Bui has further demonstrated his inability to meet his burden of proof at trial.

For these reasons, there is no coverage and Farmers was correctly dismissed from the lawsuit. Accordingly, I dissent.

McCLENDON, J.,

concurs and assigns reasons.

| TPelivery of the notice of cancellation to an insured is not required under LSA-R.S. 22:887 in order for an insurer to effectively cancel an insurance policy. Rather, the statute only requires that the notice be mailed to the insured, and the affidavit of the individual making such a mailing constitutes prima facie evidence of such facts of the mailing as are affirmed therein. LSA-R.S. 22:887(C). Although the presumption is rebuttable, I question whether the mere denial of receipt by the insured creates a genuine issue of material fact absent other affirmative evidence of non-mailing or improper mailing. However, I am constrained to agree with the majority based on Johnson v. Louisiana Farm Bureau Cas. Ins. Co., 11-0476 (La.5/6/11), 60 So.3d 607, wherein the court, addressing nonrenewals pursuant to LSA-R.S. 22:133s, indicated:

[A]n insurer has a prima facie burden to prove that it mailed a required renewal notice, which creates a presumption the insured received notice. However, the insured may rebut this presumption, typically by testifying the notice was never delivered. This is a factual determination to be made by the trial court. [Emphasis added.]

Johnson, 11-0476 at p. 2, 60 So.3d at 607-08 [citing Nolan v. Mabray, 10-0373, p. 8 (La.11/30/10), 51 So.3d 665, 671]. The court further noted that “evidence of nondelivery is relevant only as far is it evidence of non-mailing or improper 12mailing, which is an issue for the fact finder to resolve.” Johnson, 11-0476 at p. 2, 60 So.3d at 607-08. Therefore, I must respectfully concur.

      . Pursuant to Acts 2008, No. 415, § 1, the Louisiana State Law Institute was directed to redesignate the provisions of Title 22, formerly comprised of R.S. 22:1 to 22:3311, into a new format and numbering scheme comprised of R.S. 22:1 to 22:2371, without changing the substance of the provisions.
      Section 2 of Act 415 directed the Law Institute to change any citations, Chapters, Parts, Subparts, or other references contained in the existing provisions of Title 22 of the Louisiana Revised Statutes of 1950 or in any other Title or Code of the Revised Statutes to reflect the new citations, Chapters, Parts, Subparts, or other references found in Act 415.
      Section 3 of Act 415 provided that the changes brought about by the Act would become effective on January 1, 2009.

      . While Johnson addressed nonrenewals under LSA-R.S. 22:1335, the provisions regarding notice are substantially the same as those found under LSA-R.S. 22:887.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    Robb HARRELSON v. Bestaff ARCADIA.
    No. 2010 CA 1647.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      William Ken Hawkins, Ponchatoula, LA, for Plaintiff-Appellant, Robb Harrelson.
    Jeffrey C. Napolitano, Jennifer M. Sullivan, Metairie, LA, for Defendant-Appel-lee, Bestaff Arcadia.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

|2Robb Harrelson appeals from an amended judgment of the Workers’ Compensation Judge (WCJ) denying Harrel-son’s motion for penalties and attorney fees arising out of his employer’s alleged failure to timely fund the Medicare Set>Aside (MSA) account portion of the parties’ settlement agreement. For the reasons set forth, we affirm the amended judgment.

FACTS

On August 24, 2004, Harrelson injured his shoulder while working for Bestaff Arcadia (Bestaff). Harrelson and Bestaff eventually entered into a full and final settlement agreement where Bestaff agreed to pay Harrelson $125,000.00, with $42,010.00 of that amount to be placed in a MSA account to cover future medical expenses and $82,990.00 to be paid in one lump sum. The parties filed a joint petition for settlement that contained a paragraph outlining the terms of the MSA portion of the settlement as follows:

[Bestaff] and insurer agree that, if CMS [the Centers for Medicare & Medicaid Services] requires that additional money he placed into the [MSA] in this case, [Bestaff]/insurer will, at its option, pay all such additional amounts and comply with all Medicare requirements regarding such, or will withdraw the proposal for a [MSA], and the claim for future medical care will remain open. (Emphasis added.)

On December 10, 2009, the WCJ entered an order approving the parties’ joint petition and settlement agreement. The order specifically provided that Harrelson “shall recover from [Bestaff] in solido the amount of $125,000.00 with $42,010.00 of this amount being placed in a MSA for future medical treatment relative to the August 24, 2004 accident[.]” (Emphasis added.) The WCJ also ordered Harrelson to execute a receipt and release to Rbecome “effective upon negotiation of the settlement funds” by Harrelson or his attorney. Additionally, the WCJ signed a separate order dismissing Harrelson’s litigation on December 10, 2009.

Bestaff immediately submitted a settlement check in the amount of $82,990.00 to Harrelson, with assurances that the balance of $42,010.00 for the MSA funding would be “forwarded shortly.” CMS received Bestaffs insurance adjusting company’s MSA proposal on December 27, 2009, but did not approve the $42,010.00 MSA amount until January 27, 2010. After Bestaff received notice of CMS’s approval, Bestaff issued a check for the balance of the funds to Harrelson a few days later on February 2, 2010.

Harrelson filed a motion to enforce the settlement judgment on February 25, 2010, asserting that he was due statutory penalties and attorney fees pursuant to LSA-R.S. 23:1201 G, because Bestaff failed to pay the full amount of the settlement within thirty days of the final, nonap-pealable judgment. Bestaff opposed the motion, maintaining that the MSA portion of the settlement agreement contained a valid suspensive condition that prevented the judgment from being enforced until the uncertain event of CMS’s approval of the actual MSA funding amount occurred. Bestaff 14argued that payment of the MSA funding could not have occurred prior to CMS’s approval, which was an uncertain event and the timing of the approval was completely out of Bestaffs control. Further, Bestaff asserted that it timely paid Harrelson the $42,010.00 MSA funds within thirty days after it received approval of the funds from CMS. At the May 14, 2010 hearing on Harrelson’s motion, the parties submitted the matter to the WCJ on briefs, and the matter was taken under advisement.

On June 9, 2010, in an amended final judgment, the WCJ denied Harrel-son’s motion requesting penalties and attorney fees for Bestaffs failure to timely fund the MSA portion of the settlement agreement. The WCJ concluded that Bes-taff had not violated LSA-R.S. 23:1201 G, and issued written reasons finding that the settlement agreement between the parties clearly contained a suspensive condition regarding whether to fund the MSA amount of $42,010.00. The WCJ reasoned that the settlement agreement’s suspen-sive condition must be honored even though the final order/judgment approving the settlement did not expressly track the suspensive condition language contained in the actual settlement agreement. Harrel-son appeals, asserting the WCJ erred in failing to assess the statutory penalties and attorney fees. Harrelson also requests additional attorney fees, costs, and interest for this appeal.

STANDARD OF REVIEW

In workers’ compensation cases, our standard of review to be applied to findings of fact is the manifest error-clearly wrong standard. Dean v. Southmark Construction, 03-1051 (La.7/6/04), 879 So.2d 112, 117. However, when legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo standard of review applies. Brantley v. Delta Ridge Implement, Inc., 41,190 (La.App.2d Cir.6/28/06), 935 So.2d 308, 314. We also use the de novo standard of review for determining if the WCJ was legally correct when interpreting statutes pertaining to workers’ compensation, because the interpretation of a statute is a question of law. Lirette v. Patterson Services, Inc., 05-2654 (La.App. 1st Cir.11/17/06), 951 So.2d 223, 226. This case involves the interpretation of a statute and the determination of whether that statute was violated; thus, we review de novo the WCJ’s statutory interpretation, while using the manifest error standard of review for the WCJ’s factual findings regarding any statutory violation.

ANALYSIS

The WCJ essentially held that the order approving the settlement agreement between the parties was subject to the requirement that a MSA account be funded, which at the time of the order had not been approved by CMS. We agree and find no manifest or legal error with this finding. The record contains correspondence from CMS to the insurance adjusting company on behalf of Bestaff dated January 27, 2010. That letter provided in bold-face type: “Approval of this [MSA] is not effective until a copy of the fínal executed workers’ compensation settlement agreement, which must include this approved IMSAJ amount, is received by CMS at the following address.” (Emphasis added.) Shortly after CMS’s approval letter was | (¡received, the check for the $42,010.00 MSA amount was issued to Harrelson, well within thirty days of the occurrence of the suspensive condition, which was CMS’s approval. The approval by CMS was an uncertain event that once it occurred made the WCJ’s order approving the entire settlement agreement final and enforceable. In other words, the right to enforce Bestaffs conditional obligation to fund the MSA account contained in the settlement agreement did not arise until the fulfillment of the suspensive condition when CMS approved the MSA funding. The settlement agreement simply could not be enforced until the suspensive condition was met. See LSA-C.C. art. 1767. See also Hampton, Inc. v. Hampton, 97-1779 (La.App. 1st Cir.6/29/98), 713 So.2d 1185, 1190; Washington National Ins. Co. v. Brown, 94-1346 (La.App. 1st Cir.4/7/95), 654 So.2d 724, 728 n. 4. Further, based upon our review of the settlement agreement, there is no language, express or otherwise, that compels us to construe it as requiring Bes-taff to pay the MSA funds prior to CMS approval.

Additionally, we find that the timing of this uncertain event — CMS approval — was completely out of Bestaffs control since the payment of the MSA funds was entirely dependent upon whether CMS approved the funding. The record indicates that Bestaffs $42,010.00 proposal for funding the MSA account was received well within thirty days from the WCJ’s order approving the settlement agreement. However, CMS did not approve the request until a month later. Furthermore, even if we assumed arguendo that the WCJ’s order approving the parties’ settlement agreement with a suspensive condition was a final and nonappealable judgment on the day it was signed by the WCJ, we conclude that penalties for nonpayment within thirty days are not owed in this instance because Bes-taffs nonpayment was the result of “conditions over |7which the employer had no control.” See LSA-R.S. 23:1201 G. Therefore, for this additional reason, we find that the WCJ did not err in denying statutory penalties and attorney fees in this case.

CONCLUSION

For the outlined reasons, we grant Bes-taffs motion to strike portions of Harrel-son’s brief referencing comments that are not contained in the appellate record. We affirm the WCJ’s amended judgment denying statutory penalties and attorney fees in this case, and we deny Harrelson’s request for additional attorney fees for this appeal. All costs of this appeal are assessed to Robb Harrelson.

MOTION TO STRIKE GRANTED; AMENDED JUDGMENT AFFIRMED.

      . A final judgment may be amended by the trial court at any time to alter the phraseology of the judgment, but not the substance. See LSA-C.C.P. art. 1951(1). It is undisputed, and we agree, that the amended judgment in this case merely altered the phraseology, not the substance, of the original judgment issued the previous day.

      . Louisiana Revised Statutes 23:1201 G provides, in pertinent part:
      If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, ... unless such nonpayment results from conditions over which the employer had no control.... The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate. (Emphasis added.)

      . Suspensive conditions are provided for in LSA-C.C. art. 1767, which states in part:
      A conditional obligation is one dependent on an uncertain event.
      If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.

      .Bestaff filed a motion in this court to strike comments contained in Harrelson’s brief that are not found in the record. An appellate court must render its judgment upon the record on appeal. See LSA-C.C.P. art. 2164. Arguments of counsel contained in appellate briefs and references to facts and issues that are not currently before the court are not considered record evidence. In re Succession of Badeaux, 08-1085 (La.App. 1st Cir.3/27/09), 12 So.3d 348, 352, writ denied, 09-0822 (La.5/29/09), 9 So.3d 166. Consequently, to the extent that Harrelson's brief references comments and facts that are not part of the appellate record before us, Bestaffs motion to strike is granted.

      . See Hayes v. Louisiana State Penitentiary, 06-0553 (La.App. 1st Cir.8/15/07), 970 So.2d 547, 563-564, writ denied, 07-2258 (La.1/25/08), 973 So.2d 758, where we held that the determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding shall not be disturbed absent manifest error.

      . The parties do not dispute, and we agree, that LSA-R.S. 23:1201 G applies to nonpayment of awards payable under the terms of consent judgments or settlement agreements that cannot be appealed. See Trahan v. Coca Cola Bottling Co. United, Inc., 04-0100 (La.3/2/05), 894 So.2d 1096, 1108-1109; Sims v. BFI Waste Services, L.L.C., 06-1319 (La.App. 1st Cir.5/16/07), 964 So.2d 998, 1005. The question is when the settlement agreement becomes final and nonappealable. As previously discussed, we find that the settlement agreement was not enforceable until the separate uncertain event of the MSA funding approval occurred.

      . We are aware that the Fourth Circuit has held in MacFarlane v. Schneider Nat. Bulk Carriers, Inc., 07-1386 (La.App. 4th Cir.4/30/08), 984 So.2d 185, 191, that the wording of LSA-R.S. 23:1201 G expressly provides that "any award payable under the terms of a final, nonappealable judgment” makes no exceptions or limitations with respect to MSA funding. However, we find the MacFarlane case distinguishable in that CMS’s approval of the MSA funding was apparently not an issue in that case. The facts and procedural history outlined in MacFar-lane, state that "[t]he settlement agreement also provided that [the employer] was to provide tier funding of a previously established Medicare Set-Aside account (“MSA”), which was to be funded by an initial lump sum payment[.]” Id., 984 So.2d at 187. (Emphasis added.) The Fourth Circuit specifically held that there was "no dispute that [the employer] was required to fund the MSA in the amount of [the initial lump sum payment].” Id., 984 So.2d at 191. Therefore, in MacFarlane, the employer's initial lump sum payment for funding the MSA was due within thirty days of the WCJ's order approving the joint petition for settlement and compromise, and penalties and attorney fees were appropriate since the funding took place after the required thirty days.


author: GAIDRY, J.

text:
    Kimberly HULBERT v. DEMOCRATIC STATE CENTRAL COMMITTEE OF LOUISIANA and Louisiana Democratic Mayoral Campaign Committee.
    No. 2010 CA 1910.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Larry E. Demmons, Ross M. Molina, New Orleans, LA, for PlaintiffyAppellant Kimberly Hulbert.
    Randolph A. Piedrahita, Baton Rouge, LA, for Defendant/Appellee Democratic State Central Committee of Louisiana and Louisiana Democratic Mayoral Campaign.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|2In this case involving a claim for unpaid wages, penalties, and attorney’s fees, the trial court ordered the defendants to pay the plaintiffs unpaid wages, but denied her claim for penalties and attorney’s fees on the basis that she was an independent contractor rather than an employee. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Kathleen Hulbert, was hired by the Louisiana Democratic Mayoral Campaign Committee (“Mayoral Campaign Committee”) in November or December of 2008 to perform fundraising and event-planning services pursuant to a verbal agreement that she would be paid $3,000.00 per month for those services. Ms. Hulbert later entered into a written agreement entitled “Independent Contractor Agreement” with the Mayoral Campaign Committee which provided that she would perform fundraising and event-planning services from February 11, 2009 until February 11, 2010 for a payment of $5,000.00 per month. The Independent Contractor Agreement contained an item entitled “Relationship of Parties,” which provided:

Contractor is an independent contractor of the Committee. Nothing in this Agreement shall be construed as creating an employer-employee relationship, as a guarantee of future employment or engagement, or as a limitation upon the Committee [sic] sole discretion to terminate this Agreement at any time without cause.

In addition to the $5,000.00 fee to be paid bimonthly, the Independent Contractor Agreement provided for reimbursement of pre-approved expenses, as well as a monthly technology per diem and payment of gas expenses. No insurance was provided to Ms. Hulbert, she had no vacation or sick leave, she had no 401 (k) plan, and no taxes were withheld from her | .¡checks. The agreement also provided that Ms. Hulbert was free to engage in other independent contracting activities.

Although the agreement provided for Ms. Hulbert to be paid on the first and fifteenth of each month, Ms. Hulbert was not always paid on time. Defendants alleged that the Democratic Mayoral Campaign Committee was a new entity and would only have the funds to pay Ms. Hulbert if Ms. Hulbert raised the money through her fundraising efforts. Britton Loftin, the Executive Director of the Democratic State Central Committee of Louisiana, testified that he negotiated Ms. Hul-bert’s contract with her and that she was aware that she needed to raise enough money to cover her fees. When Ms. Hul-bert was paid, it was by the Democratic State Central Committee of Louisiana, who did so as a loan to the Democratic Mayoral Campaign Committee. Ms. Hul-bert prepared invoices for her services, which were submitted to defendants for payment. The invoices, which Ms. Hul-bert prepared for herself on her own form, list her job description as “Independent Contractor,” and lists the Louisiana Democratic Party as the “Customer.”

Ms. Hulbert terminated the Independent Contractor Agreement on April 3, 2009 and made a demand for her unpaid wages, but was not paid. On June 24, 2009, she filed a petition seeking unpaid wages, penalties, and attorney’s fees in accordance with La. R.S. 28:631 & 632. The defendants argued that Ms. Hulbert was not entitled to recover under La. R.S. 23:631 & 632 because she was an independent contractor, not an employee.

After a trial, the court found that the law and evidence clearly supported the conclusion that Ms. Hulbert was an independent contractor and not an employee. Therefore, the court found that although Ms. Hulbert was entitled to be paid for the work she performed under the contract, she [4was not entitled to penalties and attorney’s fees under La. R.S. 23:632. Ms. Hulbert appealed, asserting that the trial court’s conclusion that she was an independent contractor was manifestly erroneous and that, as an employee, she is entitled to penalties and attorney’s fees.

DISCUSSION

Ms. Hulbert’s claim for penalties and attorney’s fees was made under Louisiana Revised Statutes 23:632, which provides for the payment of penalty wages where unpaid wages are not paid in accordance with the provisions of La. R.S. 23:631, in the amount of ninety days wages at the employee’s daily rate of pay, or full wages from the time of the employee’s demand for payment until the wages are paid, whichever is less, plus reasonable attorney’s fees. In order to recover penalties and attorney’s fees under this statute, Ms. Hulbert had the burden of proving that she is an employee, rather than an independent contractor. Hillman v. Comm-Care, Inc., 01-1140, p. 9 (La.1/15/02), 805 So.2d 1157, 1163.

Louisiana Revised Statutes 23:631 & 632 contain no definition of the term “employee.” The distinction between an employee and an independent contractor is a factual determination that must be decided on a case-by-case basis, and this determination is subject to the manifest error standard of review. Jeansonne v. Schmolke, 09-1467, p. 5 (La.App. 4 Cir. 5/19/10), 40 So.3d 347, 354.

In determining whether an independent contractor relationship exists, the court considers the following factors, which are indicative of an independent contractor relationship:

1. a valid contract exists between the parties;
2. the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;
|s3. the contract calls for specific piecework as a unit to be done according to the contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
4. there is a specific price for the overall undertaking; and
5. the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.

Tower Credit v. Carpenter, 01-2875, p. 6 (La.9/4/02), 825 So.2d 1125, 1129, citing Hickman v. Southern Pacific Transport Company, 262 La. 102, 117, 262 So.2d 385, 390-91 (1972).

The principal test in determining whether a relationship is an employer-employee relationship or a principal-independent contractor relationship is control over the work. However, it is not the supervision and control actually exercised which is significant, but whether, from the nature of the relationship, the right to exercise such control exists. Jeansonne, 10-0437, p. 5, 40 So.3d at 354. The essence of the employer-employee relationship is the right to control, although that one factor is not necessarily controlling and the court should consider the totality of the circumstances in deciding whether an employer-employee relationship exists. Jeansonne, 10-0437, pp. 5-6, 40 So.3d at 354-55.

Ms. Hulbert first argues on appeal that since she did not sign a written contract with the defendants until February of 2009, after she had already been working for several months, and since the court must find that a valid contract existed between the parties in order to conclude she was an independent contractor, the court’s conclusion that she was an independent 1 ficontractor from December 2008 through February 10, 2009 is manifestly erroneous. We disagree.

While Ms. Hulbert is correct that a valid contract is essential to finding an independent contractor relationship, we disagree that the contract must be written to be valid. Ms. Hulbert cites no authority for her proposition that an independent contractor agreement must be written to be valid, and we can find none. Although Ms. Hulbert did not enter into a written contract with the defendants at the time she began performing fundraising and event-planning services for them, neither party disputes that the parties contracted to have Ms. Hulbert perform fundraising and event-planning services for a fee of $3,000.00 per month. It is clear that there was a meeting of the minds and that a valid oral contract was confected.

Ms. Hulbert next argues that the work being done was not of an independent nature because Mr. Loftin supervised and directed all of her work. Ms. Hulbert testified at trial that she was required by Mr. Loftin to come into the office every day, told by Mr. Loftin whom to call, required to have everything she sent out approved by Mr. Loftin, and given a schedule of events to attend by Mr. Loftin. On the other hand, Mr. Loftin testified that Ms. Hulbert came into the office only sporadically and was not required to do so. He explained that he did not supervise and direct Ms. Hulbert’s work; rather, he passed along donor lists and leads on potential donors and attempted to provide guidance to help her to get her fundraising efforts off the ground. Clearly the court was presented with conflicting testimony on this issue and made a credibility call, choosing to believe Mr. Loftin’s testimony regarding the independent nature of Ms. Hulbert’s work and the amount of direction and supervision exercised by Mr. Loftin. The trial 17court’s choice between conflicting testimony based upon a credibility determination cannot be clearly wrong.

Ms. Hulbert next argues that she was not hired to perform “specific piecework,” but rather was hired to perform general fundraising duties and was expected to perform administrative duties like answering phones and taking messages. She alleges that “specific piecework” would have involved being hired to attend a specific fundraiser or call on a specific donor. Ms. Hulbert points to various emails in evidence as proof that she was expected to perform a variety of other non-fundraising activities; however, Mr. Loftin testified that Ms. Hulbert was not hired to do administrative duties in the defendant’s office, and he explained the context of the emails, which was that he was offering suggestions to guide her in her floundering fundraising attempts. In support of her argument, Ms. Hulbert cites Adams v. Greenhill Petroleum Corp., 93-795 (La. App. 5 Cir. 1/25/94), 631 So.2d 1231, 1234, writ denied, 94-0477 (La.4/4/94), 635 So.2d 1114, where the court found that a contract which was “very general in nature and ... best described as a general services contract” did not call for specific piecework. However, Adams is factually distinguishable from Ms. Hulbert’s situation. In Adams, a worker was hired to perform a variety of tasks including crane and forklift operations, cutting grass, cleaning up, spreading shells, and moving pipe racks. He was paid different prices for different tasks, but none of the tasks were provided for under the contract, which merely provided, “This agreement shall control and govern all work performed by Contractor [Lafitte] for Company [Greenhill] under subsequent verbal and/or written work orders .... ” Id. On the other hand, Ms. Hulbert was hired only to fundraise and plan events for the Democratic Mayor’s Campaign Committee, for a set period of time, for a set flat fee. We do not agree that |sfor her job to have involved “specific piecework,” the contract would have to be for one specific task, e.g., calling on a single donor. We find no error in the conclusion that Ms. Hulbert’s contract called for specific piecework.

Ms. Hulbert’s next argument is that she was not paid a specific price for the overall undertaking, since she was paid bimonthly. Under the contract, Ms. Hulbert would be paid a set price, per month, in bimonthly installments, for twelve months. She seems to argue that the only way a person performing work under a contract can be an independent contractor is if they are paid in one lump sum. However, she cites no authority which supports her argument, and we do not believe that the contract failed to provide a set price for the undertaking.

Ms. Hulbert next argues that, according to the contract between the parties, she was an at-will employee who could be fired at any time, and therefore she could not be an independent contractor. The Independent Contractor Agreement between Ms. Hulbert and the defendants provides that “The Committee may terminate the use of Contractor services at any time without cause and without further obligation' to Contractor except payment due for services prior to date of such termination.” The right to terminate without cause, where no term of employment is prescribed, is characteristic of an employer-employee relationship. Hickman, 262 La. at 119, 262 So.2d at 391. However, as explained above, there are a number of factors the court must consider in determining whether an independent contractor relationship exists; no one factor is controlling, and the court must consider the totality of the circumstances. Jeansonne, 10-0437, pp. 5-6, 40 So.3d at 354-55.

Finally, we note that whether Ms. Hul-bert was an employee or an independent contractor is a close question. However, upon hearing the evidence, the trial court made a factual determination that Ms. Hulbert was Ran independent contractor. While we may have ruled differently had we reviewed this case de novo, the trial court’s determination that Ms. Hulbert was an independent contractor is a factual determination that we do not find manifestly erroneous or clearly wrong. As such, the trial court judgment must be affirmed.

CONCLUSION

The judgment appealed from is affirmed. Costs of this appeal are to be borne by plaintiff, Kimberly Hulbert.

AFFIRMED.

CARTER, C.J., concurs.


author: McClendon, j. WHIPPLE, J.,

text:
    Erica BATISTE, Individually and on behalf of her minor children, Hiram Batiste, Ladasha Batiste, Alicia Batiste, and Jamarious Batiste, and Audrey Taylor on behalf of Lacey Taylor, and Ransom Taylor v. Monica DUNN, Matthew Bazile, Allstate Insurance Company and Imperial Fire and Casualty Insurance Company.
    No. 2010 CA 1812.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Erik M. Tadda, Jeremy S. Hader, Baton Rouge, LA, for Plaintiffs/Appellants Audrey Taylor, on behalf of Lacey Taylor, and Ransom Taylor.
    Byron A. Richie, Shreveport, LA, for DefendanUAppellee Imperial Fire & Casualty Insurance Company.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

lain this appeal, the plaintiffs challenge a trial court judgment in favor of the insurer, determining that an automobile liability insurance policy issued to the owner of the vehicle involved in an accident did not afford uninsured/underinsured motorist (UM) coverage to guest passengers injured in the accident. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 24, 2008, Hiram Batiste, La-dasha Batiste, Alicia Batiste, Jamarious Batiste, Lacey Taylor, and Ransom Taylor were guest passengers in a vehicle owned and operated by Erica Batiste, when they were involved in an automobile accident in Tangipahoa Parish with a vehicle driven by Matthew Bazile and owned by his mother, Monica Dunn. Ms. Batiste, individually and on behalf of her minor children, Hiram Batiste, Ladasha Batiste, Alicia Batiste, and Jamarious Batiste; and Audrey Taylor, on behalf of Lacey Taylor; and Ransom Taylor, filed a petition for damages on August 10, 2009, against Ms. Dunn; Ms. Bazile; Ms. Dunn’s automobile liability insurer, Allstate Insurance Company (Allstate); and Ms. Batiste’s automobile liability insurer, Imperial Fire and Casualty Insurance Company (Imperial). Imperial filed an answer admitting that it issued an automobile liability insurance policy to Ms. Batiste, which also included UM coverage benefits.

On February 17, 2010, following the compromise and settlement of all matters between the plaintiffs and Ms. Dunn, Mr. Bazile and Allstate, a Joint Motion and Order of Dismissal with Prejudice was filed and signed by the trial court. Thereafter, the remaining defendant, Imperial, filed a motion for partial summary judgment seeking a determination that its policy did not afford UM insurance coverage in connection with the automobile accident at issue to Audrey Taylor on behalf of Lacey Taylor, and Ransom Taylor. Imperial asserted that Lacey Taylor and Ransom Taylor, who were guest passengers in the vehicle insured by Imperial, were not “insured persons” under the terms of the policy for purposes of UM coverage. In support of its motion, Imperial submitted its policy |sof insurance, as well as interrogatories and answers demonstrating that neither Lacey Taylor nor Ransom Taylor were related by blood, adoption, or marriage to Ms. Batiste. Audrey Taylor, on behalf of Lacey Taylor, and Ransom Taylor, opposed the motion, arguing that they would be considered insureds under the liability portion of the policy and, therefore, were insured persons for purposes of UM coverage.

Following a hearing on April 12, 2010, the trial court granted summary judgment in favor of Imperial. Judgment was signed on April 27, 2010, in favor of Imperial finding that Audrey Taylor, on behalf of Lacey Taylor, and Ransom Taylor, were not insured for UM benefits under the policy issued by Imperial and, therefore, were not entitled to recover UM coverage from Imperial, so that their claims against Imperial were dismissed with prejudice. The trial court judgment further recognized that its ruling did not affect the UM insurance coverage as it related to the other remaining plaintiffs. This appeal by Audrey Taylor, on behalf of Lacey Taylor, and Ransom Taylor (plaintiffs) followed.

DISCUSSION

Appellate courts review the grant or denial of a motion for summary judgment de novo. Magnon v. Collins, 98-2822, p. 5 (La.7/7/99), 739 So.2d 191, 195; Lambert v. Lavigne, 04-1961, p. 3 (La.App. 1 Cir. 9/23/05), 923 So.2d 704, 706, writ denied, 05-2283 (La.3/10/06), 925 So.2d 515. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B; Lambert, 04-1961 at p. 3, 923 So.2d at 706.

14An insurance policy is a conventional obligation that constitutes the law between the insured and insurer, and the agreement governs the nature of their relationship. LSA-C.C. art. 1983; Lambert, 04-1961 at pp. 3-4, 923 So.2d at 706. The goal of judicial interpretation of a policy’s wording is to determine the common intent of the contracting parties. See LSA-C.C. art. 2045; Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580; Grace v. Crespo, 07-0397, p. 5 (La. App. 1 Cir. 9/19/07), 970 So.2d 1007, 1012, writ denied, 07-2010 (La.12/7/07), 969 So.2d 636. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. Thus, if the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Magnon, 98-2822 at p. 7, 739 So.2d at 196-97; Lambert, 04-1961 at p. 4, 923 So.2d at 706. Further, an insurance contract or policy should not be interpreted in an unreasonable manner under the guise of contractual interpretation to enlarge or restrict the applicable provisions beyond what is reasonably understood from unambiguous terms. The rules of construction simply do not authorize a manipulation or perversion of the contract’s language to create an ambiguity where none exists. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Grace, 07-0397 at p. 6, 970 So .2d at 1012.

Under Louisiana’s UM statute, automobile liability insurance must provide UM motorist coverage equal to the liability provided for bodily injury, unless UM coverage has been validly rejected or lower UM limits have been selected. See LSA-R.S. 22:1295. The purpose of the UM statute is to protect the insured against the generalized risk of damages at the hands of uninsured motorists. Howell v. Balboa Ins. Co., 564 So.2d 298, 301-02 (La.1990). Although Louisiana’s public policy strongly favors UM coverage and a liberal construction of |sthe UM statute, it is well-settled that a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy. Magnon, 98-2822 at p. 5, 739 So.2d at 195-96; Lambert, 04-1961 at p. 4, 923 So.2d at 706. In Howell, the supreme court reasoned that because UM insurance follows the person rather than the vehicle, a court must determine whether a plaintiff is an insured for liability purposes in order to determine whether he is entitled to UM coverage. Howell, 564 So.2d at 301. In other words, a claimant must be an “insured” under the policy’s auto liability coverage to be entitled to UM coverage. Magnon, 98-2822 at p. 6, 739 So.2d at 196; Lambert, 04-1961 at p. 4, 923 So.2d at 706. See also Filipski v. Imperial Fire & Cas. Ins. Co., 09-1013, p. 5 (La.12/1/09), 25 So.3d 742, 745.

With these principles in mind, we examine the applicable policy provisions. Part C of the Imperial insurance policy sets forth UM coverage and defines an “insured person” or “insured persons” as:

1. you or a person residing in the same household as you, and related to you by blood, marriage, or adoption, including a ward, stepchild, or foster child; and
2. Any person who is entitled to recover damages covered by this Part C because of bodily injury sustained by a person described in 1 above.

“You” is defined in the policy as “the person shown as the named insured on the Declarations Page, and that person’s spouse if residing in the same household and holding a valid driver’s license.” Erica Batiste is the only named insured on the declarations page and plaintiffs are not related to Ms. Batiste. Thus, under its clear terms, unlike some policies that include occupants within the definition of “insured persons” under the UM provisions of the insurance policy, the policy herein does not so provide.

However, plaintiffs argue that this language violates Louisiana’s UM statute by failing to provide UM coverage for all persons classified as a liability “insured person” and violates public policy. Plaintiffs maintain that they fit | ¿within the definition of “insured persons” under the liability portion of Imperial’s policy and, therefore, must be considered “insured persons” under the UM portion of the policy as well. They contend that Imperial is attempting to circumvent the UM statute by defining an insured person for the purposes of UM coverage differently than an insured person for purposes of liability coverage.

As previously stated, it is well-settled that UM coverage attaches to the person of the insured, not the vehicle. Howell, 564 So.2d at 301. Any determination of whether a plaintiff is entitled to UM benefits must follow a determination that the plaintiff is an insured for purposes of auto liability insurance coverage. Magnon, 98-2822 at p. 6, 739 So.2d at 196. Thus, the argument that someone is insured for UM coverage simply because they occupy an insured vehicle and sustained injury due to an uninsured motorist is clearly contrary to well-established law.

Part A of the Imperial policy sets forth the provisions for liability coverage. Under Part A, “insured person” or “insured persons” is defined as:

1. you or a relative with respect to an accident arising out of the ownership, maintenance, or use of a covered vehicle;
2. any person with respect to an accident arising out of that person’s use of a covered vehicle with the express or implied permission of you;
3. You or a relative with respect to an accident arising out of the maintenance or use of a non-owned vehicle with the express or implied permission of the owner of the vehicle; and
4. any Additional Interests Insured designated by you in your application or by a change request agreed to by us, with respect to liability for an accident arising out of the use of a covered vehicle or non-owned vehicle by a person described in 1, 2, or 3 above.

Plaintiffs argue that they were “using” the vehicle as passengers with the express permission of the named insured as defined in the policy. Thus, they contend, they were insured persons under the second definition in Part A.

The petition for damages filed in this matter provided, in pertinent part:

Petitioner, Erica Batiste, was operating and Hiram Batiste, Ladasha Batiste, Alicia Batiste, Jamarious Batiste, Lacey Taylor, and Ransom Taylor were riding as guest passengers in Erica Batiste’s 172000 Dodge Caravan, which was headed northbound on 7th Street in Poncha-toula, Louisiana in Tangipahoa Parish. Defendant, Matthew Bazile’s vehicle, a 2001 Ford Explorer owned by Monica Dunn and being operated with permission by Defendant, was traveling westbound on West Hickory Street, pulled out into Petitioner’s lane of traffic from the side street, and therefore caused a collision to occur between the two vehicles.

By the plain terms of the insuring agreement, we cannot find that the accident arose out of plaintiffs’ use of the vehicle. To find that plaintiffs were “using” the vehicle simply because they were riding as guest passengers would require a strained interpretation inconsistent with the meaning of the word and beyond what could have been contemplated by the parties. Further, even were we to assume that plaintiffs were “using” Ms. Batiste’s vehicle, the accident at issue did not arise out of said use. The “use” provision is designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury. See Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080, 1084 (La.1982); Kessler v. Amica Mut. Ins. Co., 573 So.2d 476, 478 (La.1991). Clearly, the act of riding in the insured vehicle did not cause or contribute to the accident in this case. The plain unambiguous wording of the policy simply cannot be manipulated to include plaintiffs’ interpretation. Accordingly, plaintiffs are not “insured persons” under the liability portion of Imperial’s insurance policy, and thus are not entitled to UM coverage under the statute.

As a result, Imperial was entitled as a matter of law to summary judgment finding that its policy did not provide UM coverage to plaintiffs under the facts presented herein.

CONCLUSION

For these reasons, the April 27, 2010 judgment of the trial court granting partial summary judgment in favor of Imperial Fire and Casualty Insurance Company, is affirmed. Costs of this appeal are assessed to plaintiffs, Audrey Taylor, on behalf of Lacey Taylor, and Ransom Taylor.

MOTION TO SUPPLEMENT RECORD DENIED; JUDGMENT AFFIRMED.

WHIPPLE, J., dissents & assigns reasons.

WHIPPLE, J.,

dissenting.

| Louisiana Revised Statute 22:1295 governs the issuance of UM coverage and mandates, in pertinent part, as follows:

(l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom....

Thus, under Louisiana’s UM statute, LSA-R.S. 22:1295, automobile liability insurance must provide UM motorist coverage equal to the liability limits provided for bodily injury, unless UM coverage has been validly rejected or lower UM limits have been selected. Lambert v. Lavigne, 2004-1961 (La.App. 1st Cir. 9/28/05), 923 So.2d 704, 706, writ denied, 2005-2283 (La.3/10/06), 925 So.2d 515. I also agree that it is well settled that a person who does not qualify as a “liability insured” under a policy of insurance is not entitled to UM coverage under the policy inasmuch as a claimant must be an “insured” under the policy’s automobile liability coverage to be entitle to UM coverage. Cf. Lambert, 923 So.2d at 706-707 (wherein a guest passenger was not entitled to UM coverage under |2the UM provisions of the driver’s father’s umbrella policy because he did not meet the narrowly drawn definition of an “insured” for purposes of UM coverage under the umbrella policy).

As the Supreme Court has recognized, uninsured motorist coverage embodies a strong public policy in this state. Taylor v. Rowell, 98-2865 (La.5/18/99), 736 So.2d 812, 816. Moreover, the Court reiterated its earlier pronouncement in Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987), wherein the Court observed:

The object of the statute is to promote recovery of damages for innocent automobile accident victims by making UM coverage available for their benefit as primary protection when the tortfeasor is without insurance, and as additional or excess coverage when he is inadequately insured.
To carry out this objective of providing reparation for those injured through no fault of their own, this Court has held that the statute is to be liberally construed. Thus, the requirement that there be UM coverage is an implied amendment of any automobile liability policy, even one which does not expressly address the subject matter, as UM coverage will be read into the policy unless validly rejected. [Citations omitted.]

As the majority correctly notes, a determination of whether UM coverage is available turns on whether the claimant is an “insured” under the policy’s liability coverage. Here, Part A of the Imperial policy sets forth the provision for liability coverage and specifically defines an “insured person,” in pertinent part as “any person with respect to an accident arising out of that person’s use of a covered vehicle with the express or implied permission of you.” Thus, in my view, Lacey Taylor and Ransom Taylor meet the definition of “insured persons” under the terms of the Imperial policy.

Further, although the Supreme Court did observe that, at least in the context of a self-insured rental car agency, “there is no public policy against excluding guest passenger UM coverage when the guest passengers are not insureds,” see Taylor, 736 So.2d at 818, such is not the case herein, where the claimants meet the definition of “insureds” under the liability provisions of the policy at issue.

Thus, pretermitting the threshold issue of whether the majority’s interpretation of the policy renders it contra bonos mores, I respectfully dissent from the majority’s determination, through a strained interpretation of the policy, that Lacey Taylor and Ransom Taylor are not “insured persons.” For these reasons, I respectfully dissent.

      . With regard to Imperial’s motion to supplement the record with the rulings of the fourth circuit and the supreme court in the matter entitled Sharone Knight, et al. v. Navarro A. Edwards, et al., 10-1474 (La.App. 4 Cir. 1/7/11), writ denied, 11-0245 (La.3/4/11), 58 So.3d 479, said motion is hereby denied. It is inappropriate to supplement the record with matters not considered by the trial court. See Diamond B Constr. Co., Inc. v. Louisiana Dept. of Transp. and Dev., 00-1583, p. 17 (La.App. 1 Cir. 12/22/00), 780 So.2d 439, 449, writ denied, 01-0246 (La.4/20/01), 790 So.2d 633. However, see Rule 2-12.6.1 of the Uniform Rules of the Louisiana Courts of Appeal.

      . Renumbered from LSA-R.S. 22:680 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009. Redes-ignated from LSA-R.S. 22:1406(D) by Acts 2003, No. 456, § 3.

      . Our supreme court has noted that it is not the public policy of this state to protect and provide compensation to injured persons at all times and indicated that there is no public policy against excluding guest passenger UM coverage when the guest passengers are not insureds. See Taylor v. Rowell, 98-2865 (La.5/18/99), 736 So.2d 812.


author: TERRI F. LOVE, Judge.

text:
    Arsceola Joyce Brown DAVIS on behalf of the Minor Children, ZAIRE ALI ROSE and Coreion I. Jena Molette v. Ellwood PLEASANT, Charles Green, State Farm Insurance Company, DEF Company and ABC Insurance Company, et al.
    No. 2010-CA-1383.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 15, 2011.

      Robert E. Couhig, Jr., Robert E. Couh-ig, III, Couhig Partners, LLC, New Orleans, LA, for Arsceola Joyce Brown Davis on behalf of the Minor Children, Zaire Ali Rose and Coreion I. Jena Molette and Paula T. Honoré on behalf of Minor Child Unique Honoré.
    Chauntis T. Jenkins, Michele L. Trow-bridge, Porteous Hainkel & Johnson, L.L.P., New Orleans, LA, for State Farm Mutual Automobile Insurance Company.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

h State Farm appeals the trial court’s finding that the decedent’s primary residence was with its insured at the time of death. According to the testimony, the decedent resided with the insured, which would provide insurance coverage for the decedent pursuant to the insured’s uninsured motorist coverage with State Farm. However, State Farm produced documentary evidence that the decedent utilized addresses other than the insured’s for voting, identification, and employment records. The trial court found the testimony credible as to the decedent’s residence due to her lifestyle and found that the decedent resided with the insured. For the reasons that follow, we do not find that the trial court committed manifest error in finding that the decedent resided primarily with the insured and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Valerie Molette died from injuries received from a single vehicle motorcycle accident. The motorcycle was operated by Charles Green and owned by Ellwood Pleasant, both of whom were uninsured. Arsceola Molette Davis filed a petition for damages on behalf of two of Ms. Molette’s minor children, Zaire Ali Rose and Coreion I. Jena Molette, against Mr. Green, State Farm Automobile Insurance Company (“State Farm”), ABC Insurance Company, and Mr. Pleasant. The [ 2petition was amended to add Paula Honoré as a plaintiff on behalf of Ms. Molette’s third minor child, Uniqué Honoré. Louis Davis, Jr., Ms. Molette’s stepfather, was insured by State Farm with a policy of uninsured/un-derinsured motorist insurance with limits of $100,000 each person/$300,000 each accident.

The Plaintiffs filed a motion for partial summary judgment, which was followed by State Farm’s motion for summary judgment and opposition. State Farm alleged that Ms. Molette did not reside in Mr. Davis’ household and was, therefore, not covered by his insurance policy. The trial court denied the Plaintiffs’ motion for summary judgment, but granted State Farm’s motion for summary judgment and dismissed the claims with prejudice. After the trial court denied a motion for new trial, the Plaintiffs appealed. This Court reversed the trial court and remanded for further proceedings finding that the trial court erred because genuine issues of material fact existed as to whether Ms. Mol-ette was a resident of Mr. Davis’ household for insurance purposes.

On remand, and following a bench trial, the trial court found that Ms. Molette was insured under Mr. Davis’ policy with State Farm in effect at the time of the accident and ordered State Farm to pay $100,000 to the minor children. The award was to be divided equally and included judicial interest from the date of judicial demand and all costs. State Farm’s appeal followed.

State Farm contends that the trial court committed manifest error by finding that Ms. Molette primarily resided with Mr. Davis and by finding that Ms. Molette was covered by State Farm’s insurance policy.

STANDARD OF REVIEW

| ¡Appellate courts review findings of fact using the clearly wrong/manifestly erroneous standard of review. Chimneywood Homeowners Ass’n, Inc. v. Eagan Ins. Agency, Inc., 10-0368, p. 5 (La.App. 4 Cir. 2/2/11), 57 So.3d 1142, 1146. During review, we “must find from the record that there is a reasonable factual basis for the finding of the trial court” and “that the record establishes the finding is not clearly wrong or manifestly erroneous.” Ardoin v. Firestone Polymers, L.L.C., 10-0245, p. 6 (La.1/19/11), 56 So.3d 215, 219. Once the review is completed, “[i]f the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse.” Id. The trial court also has a “better capacity to evaluate live witnesses as compared to our access only to a cold record, as well as the proper allocation of trial and appellate functions between the respective courts.” Fletcher v. Rein, 10-1095, p. 3 (La.App. 4 Cir. 1/19/11), 56 So.3d 1080, 1082. Thus, “when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous.” Ardoin, 10-0245, p. 6, 56 So.3d at 219.

PRIMARY RESIDENCE

State Farm asserts that the trial court committed manifest error by finding that Ms. Molette resided with Mr. Davis at the time of her death because despite the testimony, none of the documentary evidence proves she resided with Mr. Davis.

Mr. Davis’ insurance policy included the following pertinent language regarding uninsured motor vehicle coverage:

UNINSURED MOTOR VEHICLE-COVERAGE U Who Is an Insured— Coverages U and UEO
Insured — means the person or persons covered by uninsured motor vehicle coverage or “economic-only” uninsured motor vehicle coverage.
This is:
|41. the first person named in the declarations;
2. his or her spouse;
3. their relatives

(Emphasis in original). It is undisputed that Ms. Molette was not a named insured, nor was she the insured’s spouse. Thus, Ms. Molette was covered by State Farm if she was considered a relative of Mr. Davis by the insurance policy. Mr. Davis’ insurance policy’s pertinent definition of a relative was a “person related to you or your spouse by blood, marriage or adoption who resides primarily with you.” (Emphasis in original).

“Whether a person is or is not a resident of a household is a question of law as well as fact that is to be determined from all the facts of each case.” Prudhomme v. Imperial Fire & Cas. Ins. Co., 95-1502, p. 3 (La.App. 3 Cir. 4/3/96), 671 So.2d 1116, 1118; see also Berryhill v. Entergy New Orleans Inc., 05-0005 (La. App. 4 Cir. 8/3/05), 925 So.2d 12. “The intention of a person to be a resident of a particular place is determined by his expressions at a time not suspicious, and his testimony, when called on, considered in the light of his conduct and the circumstances of his life.” Id. “Although residency is dependent on the facts of each case, the principal test is physical presence with the intention to continue living there.” Id., 95-1502, p. 3, 671 So.2d at 1119.

Dwayne Franklin, Mr. Davis’ younger brother, testified that Mr. Davis asked him to move Ms. Molette from her Chalmette address to Mr. Davis’ household. Mr. Franklin thought that Ms. Molette moved after Mr. Davis married her mother, but he was “not really sure.” However, Mr. Franklin was certain that Ms. Molette was living with Mr. Davis at the time of her death. Mr. Franklin also stated that he was told that Ms. Molette would be “staying there.”

|fiCoreion, Ms. Molette’s fourteen year-old daughter at the time of trial, testified that Ms. Molette moved in with her at Mr. Davis’ household a few months before Mr. Davis and Mrs. Davis’ wedding on December 25, 2003. She stated that Ms. Molette was living there at the time of the wedding, was living there when she died, and did not reside anywhere else between the time of the wedding and her death.

On cross-examination, State Farm tried to demonstrate inconsistencies in Coreion’s statement because she stated in her deposition that her mother moved in one month before death. However, Coreion thought that her current testimony had to be correct because she remembers Ms. Molette walking her to school. Coreion also stated that she did not think she understood the questions during the deposition. Upon being questioned about her mother receiving mail at Mr. Davis’ household, Coreion testified that Ms. Molette received Coreion’s report cards at Mr. Davis’ address.

Mrs. Davis, Ms. Molette’s mother, testified that Ms. Molette moved into Mr. Davis’ household before the wedding and was residing there when she died. Mrs. Davis further stated that Ms. Molette did not live anywhere else between the wedding and her death. Mrs. Davis provided Ms. Molette’s address for her death certificate.

On cross-examination, Mrs. Davis testified that Ms. Molette was allegedly involved in criminal activity and had pending court dates at the time of her death. Ms. Davis also believed that Ms. Molette was using the older Chalmette address in order to receive food stamps even though defense counsel presented an affidavit from the Department of Social Services stating that Ms. Molette never received |fiany social services. Further, Mrs. Davis stated that she does not know why her daughter used the Chalmette address for her Louisiana identification card because she was living in Mr. Davis’ household. Mrs. Davis also testified that Ms. Molette was living in Mr. Davis’ household while working for Checkers/Rally’s and does not know why Ms. Molette would not list Mr. Davis’ household as her address.

Tyrrell Molette, Ms. Molette’s brother, testified in his deposition that Ms. Molette was living in Mr. Davis’ household at the time of her death. He stated that Ms. Molette moved into Mr. Davis’ household in November or December of 2003, and that he helped her move. Although Mr. Molette believes that Ms. Molette placed some items in storage when she moved into Mr. Davis’ household, she did not have belongings in Chalmette when she died. Lastly, Mr. Molette thought that Ms. Mol-ette was receiving mail at Mr. Davis’ household, but he was unsure as to mail at any other addresses.

Mr. Davis testified in his deposition that Ms. Molette moved into his household, from Chalmette, in December 2003 and lived there at the time of her death. He stated that his brother, Mr. Franklin, helped Ms. Molette move in and that she never moved out before she died.

State Farm presented documentary evidence to refute the Plaintiffs’ testimonial evidence that Ms. Molette resided in Mr. Davis’ household at the time of her death. The Department of Public Safety and Corrections Identification records for Ms. Molette indicated that she utilized her Chalmette address and the family’s older address on General Meyer Avenue. The records from Checkers/Rally’s, where Ms. Molette was employed when she died, contained the older General Meyer Avenue address. The Registrar of Voters records included |7Ms. Molette’s Chalmette address as well as the General Meyer Avenue address. Case documents from St. Bernard Parish reflected that Ms. Molette resided at the Chalmette address. Lastly, the police report of the accident lists Chal-mette as Ms. Molette’s address.

The trial court judge stated:

[cjlearly this is a credibility call. You were quite open in your questioning. The question is, does the Court find, as we discussed in chambers, that this testimony is contrived or stretched for the purpose of establishing a primary residence or is it simply a lifestyle which lended — loaned or lends itself to — not the structure that we might imagine for some people.
I will look at it, I will look at all the documents....

The trial court judge weighed the testimony and the documentary evidence presented. State Farm alleged that there were inconsistencies in Coreion’s statements regarding when her mother moved in; however, Coreion consistently testified that Ms. Molette was living with Mr. Davis at the time of her death. Given the conflicting documentary evidence and the abundant testimony of Mr. Davis, Mrs. Davis, Mr. Franklin, Mr. Molette, and Coreion supporting the contention that Ms. Mol-ette’s intention was to reside with Mr. Davis when she died, we do not find that the trial court committed manifest error.

DECREE

For the above mentioned reasons, we find that the trial court did not manifestly err by finding that Ms. Molette primarily resided with Mr. Davis at the time of her death and affirm.

AFFIRMED

      . State Farm was originally granted a suspen-sive appeal. However, State Farm filed an ex parte consent motion to convert suspensive appeal to devolutive appeal, which was granted. The Plaintiffs also filed a motion to dismiss appeal with this Court seeking to convert the appeal. This Court also granted the motion and converted State Farm’s suspensive appeal to a devolutive appeal.

      . This Court notes that the affidavit also states that records were destroyed during Hurricane Katrina.

      . Mr. Molette’s deposition was submitted during the bench trial.

      .Mr. Davis passed away prior to the bench trial and his deposition was submitted into the record.