author: GAIDRY, J.

text:
    UNIVERSAL PLACEMENT INTERNATIONAL, INC. v. LOUISIANA WORKFORCE COMMISSION, American Federation of Teachers, Louisiana Federation of Teachers, and Avoyelles Parish Filipino Teachers.
    No. 2011 CA 1353.
    Court of Appeal of Louisiana, First Circuit.
    July 26, 2012.

      Murphy J. Foster, III, Yvonne R. Olinde, Baton Rouge, LA, Don Alan Hernandez, Pasadena, CA, for Plaintiff/Appellant Universal Placement International, Inc.
    Daniel McNeil, Washington, D.C., Larry Samuel, New Orleans, LA, for Defendant/Appellee American Federation of Teachers.
    Michael R.D. Adams, Linda Law Clark, Baton Rouge, LA, for Defendant/Appellee Louisiana Workforce Commission.
    Jerold Edward Knoll, Marksville, LA, for Defendant/Appellee Avoyelles Parish Filipino Teachers.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

|3In this suit involving the application of Louisiana’s Private Employment Services law, an out-of-state employment agency appeals a judgment dismissing its petition for judicial review of a decision of the Louisiana Workforce Commission. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Universal Placement International, Inc. (“Universal”), operates an employment service in California. Pursuant to placement contracts between Universal and Filipino teachers, in exchange for the payment of fees by the teachers, Universal helped to place the teachers in Louisiana school districts, procured and transmitted all necessary immigration documents, arranged housing, signed lease agreements, and assisted in obtaining financing for the Filipino teachers’ expenses. Although Universal was licensed to do business in Louisiana, Universal did not have a license to operate a private employment service in Louisiana, as required by La. R.S. 23:104.

In September 2009, the Louisiana Federation of Teachers and the American Federation of Teachers filed a complaint with the Louisiana Workforce Commission alleging that Universal was in violation of the Private Employment Service law, La. R.S. 23:101-121. The Louisiana Workforce Commission conducted a hearing, after which the hearing officer concluded that Universal was in fact operating a private employment service in the state of Louisiana without a license to do so. In addition to failing to have a license in violation of La. R.S. 23:104, the hearing officer also found that Universal violated the Private Employment Service law by: charging a|/‘marketing fee,” in violation of La. R.S. 23:111(B)(2); collecting placement fees from teacher-applicants prior to the actual commencement of work, in violation of LAC 40:XV.107(A)(5); collecting fees from teacher applicants who did not ultimately commence work on the job procured by Universal, in violation of La. R.S. 23:lll(B)(3)(e) and LAC 40:XV.107(A)(6); requiring the teachers it placed to pay employment services fees for the first twenty-four months of employment, in violation of La. R.S. 23:lll(B)(3)(a); and failing to adjust its fees upward or downward based upon the actual gross earnings of the applicant, in violation of La. R.S. 23:111 (B)(3)(b) Universal was ordered to pay a fine and litigation expenses and to refund placement fees paid by the Filipino teachers. | .^Universal filed a petition for judicial review, and after a hearing, the district court affirmed the decision of the Louisiana Workforce Commission. Universal has appealed, assigning the following trial court errors:

1. The hearing officer’s conclusion that Universal was subject to the provisions of Louisiana’s Private Employment Services law was arbitrary and capricious and not supported and sustainable by a preponderance of the evidence.
2. The hearing officer’s decision to award refunds to the teachers exceeded the Louisiana Workforce Commission’s statutory authority and was an abuse of discretion.
3. The Louisiana Workforce Commission’s denial of Universal’s application for a license based upon the lack of an in-state presence was unconstitutional.
4. The Louisiana Workforce Commission’s denial of Universal’s application for a license based upon Universal’s collection of a fee before an applicant starts a job was improper.

DISCUSSION

The Louisiana Administrative Procedure Act provides for judicial review of administrative adjudications. Louisiana Revised Statutes 49:964(G) provides:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or | fi(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Pursuant to paragraph (G)(6), the district court is a fact finder that weighs the evidence and makes its own conclusions of fact by preponderance of the evidence. MultiCare, Inc. v. State, Dept. of Health & Hospitals, 00-2001, p. 4 (La.App. 1 Cir. 11/9/01), 804 So.2d 673, 675. Accordingly, while this court does not defer to the district court’s legal conclusions, we do defer to the district court’s factual determinations and use a manifest error standard of review where the legislature has empowered the district court with the function of fact finding. Id.

Universal first alleges that the hearing officer’s finding that it was operating an employment service in this state was arbitrary and capricious and not supported by a preponderance of the evidence. Universal admits that it operates an employment service in the State of California. However, Universal argues that because it provides other services not envisioned or contemplated by Louisiana’s Private Employment Service law, it was error to conclude that “simply because the Filipino teachers were placed in Louisiana and because Universal contracted with certain Louisiana school districts, Universal qualifies as a ‘private employment service’ ” under Louisiana law.

The starting point for the interpretation of any statute is the language of the statute itself. LaMartina v. Louisiana Patient’s Compensation Fund, 07-2281 (La.App. 1 Cir. 7/21/08), 993 So.2d 249, 253. When a law is clear |7and unambiguous and does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in the search of the intent of the legislature. La. C.C. art. 9. Furthermore, the words of a law must be given their generally prevailing meaning. La. C.C. art. 11; Glasgow v. PAR Minerals Corporation, 10-2011 (La.5/10/11), 70 So.3d 765, 768. Louisiana Revised Statutes 23:101 defines an “employment service” as a person who, for a fee, either “[ojffers or attempts to procure, directly or indirectly, employment for an applicant or candidate” or “[pjrocures or attempts to procure an employee for an employer.” Giving the words of the statute their generally prevailing meaning, the definition of “employment service” contained in La. R.S. 28:101 is clear and unambiguous, and therefore no further interpretation will be made in search of the intent. There is no doubt that Universal offered to procure employment for applicants (the Filipino teachers) or that they sought to procure employees for employers (the Louisiana school districts). The statutory definition is clear, and the fact that Universal offers other services to its applicants is immaterial. Accordingly, we find no error in the conclusion that Universal meets the definition of an employment service in La. R.S. 28:101.

Universal also argues that although it operates an employment service in California, it does not operate an employment service “in this state” so as to fall under the licensing requirement of La. R.S. 23:104. However, Universal’s director, Hothello “Jack” Navarro, testified that he solicited Louisiana school districts and submitted proposals to supply teachers for them, both by telephone and in person in Louisiana. Universal cited a Louisiana Attorney General Opinion stating that the law does not require all employment-service related activities to be conducted in or from a licensed |semployment service office. For instance, telephone contact from a car or out-of-town interviewing could not be conducted from a licensed employment service office. While it may be true that an employment service may have to conduct certain activities from outside of its licensed office, Universal had no license in Louisiana, and was clearly operating an employment service in Louisiana by offering to procure employees for employers here. As such, its activities would fell under the licensing requirements of La. R.S. 23:104.

Universal next argues that because the hearing officer lacked authority to award refunds in derogation of valid contractual agreements, La. R.S. 49:964(G)(2) permits this Court to reverse and set aside the hearing officer’s findings. The contracts between Universal and the Filipino teachers, which were executed outside of Louisiana, contained a provision stating that the contracts would be governed by and construed in accordance with the laws of the State of California. Universal alleges that because the contracts are valid under California law, and regardless of the licensing issue, the contracts must be construed as valid and enforceable. Furthermore, Universal alleges that the penalty for violating La. R.S. 23:104 can only be as set forth in La. R.S. 23:113 (“A person who acts as an employment service without a license as provided in this Part shall be punished by a fine of not less than fifty nor more than one thousand dollars per violation, by imprisonment for not more than six months, or both.”); if the legislature had intended for the validity or enforceability of the contracts to be affected by the failure of the employment service to obtain a license, it could have provided for that in the statute, but it did not do so. Finally, Universal argues that although La. R.S. 23:108(C) provides discretionary grounds for |flthe issuance of a refund, a refund was not appropriate under the circumstances of this case.

The hearing officer’s findings specifically state that while the Louisiana Workforce Commission is without authority to nullify the contracts between Universal and the Filipino teachers, this does not divest the Workforce Commission of its legislative mandate to regulate and license private employment services:

The State of Louisiana was not a party to the contract with the teachers and it cannot be bound or prevented from exercising its sovereign power under the statutory scheme because the parties included a California choice of law provision in the contract. The parties confuse the question of Louisiana’s remedial power to order refunds and levy penalties in accordance with the statutory scheme with the question of whether the contract is null. Simply stated, a choice of law provision in a contract between private parties has no effect on this Commission[’]s regulatory powers granted it by statute.

Pursuant to La. R.S. 23:108, in cases of violations of the provisions of the Private Employment Services law, a fine of not more than five hundred dollars can be levied against the employment agency, reasonable litigation expenses may be awarded, and a refund to the applicant may be ordered. The remedies awarded by the hearing officer in this matter addressed violations of Louisiana’s Private Employment Services law; they did not affect the validity of the contracts. The issuance of a refund in accordance with statutory provisions did not exceed the authority given to the Workforce Commission. This assignment of error is without merit.

Universal next argues that the denial of its license application based upon the lack of an in-state presence is unconstitutional. In November 2009, after the filing of the complaint against Universal with the Louisiana hnWorkforce Commission, Universal applied for a private employment service license in Louisiana. This application was denied. Universal alleges that because one reason given for the denial of its license was its failure to maintain an office in Louisiana and designate an individual as the on-site manager, the denial was unconstitutional, and the hearing officer’s findings should be reversed. However, the only reference to any constitutional issue in Universal’s petition for judicial review is the following:

Universal submits ... that the pertinent statutes and regulations are unconstitutional as applied in this case and, as such, the findings of the hearing officer should be reversed and set aside.

The judgment on judicial review of the administrative decision which is on appeal herein states:

The Court affirms the decision of the Louisiana Workforce Commission except with respect to constitutional issues, which are cognizable by this Court in its original jurisdiction, and it is preserved there over to the appellant.

Because the constitutional issues were not ruled upon by the court, and because this matter can be disposed of on non-constitutional grounds, we need not address the constitutionality of the Louisiana Private Employment Services law. See Ring v. Dept. of Transp. & Development, 02-1367 (La.1/14/03), 835 So.2d 423, 427-28.

Universal’s final assignment of error is that the Louisiana Workforce Commission’s denial of its application for a license based upon the contractual provision requiring a teacher applicant to pay a fee prior to actual commencement on a job was improper. Universal does not allege that it does not violate LAC 40:XV.107(A)(5), which provides that no employment service shall charge or receive a fee from an applicant prior to the actual commencement of work on a job procured by the employment service. Rather, Universal argues that due to the nature of the services it |,,provides, it should be exempt from this requirement. Universal cites no authority for its position that it should be exempt from the rules which are rooted in public policy considerations and which apply to all other private employment services in Louisiana. Thus we find no error in the finding that Universal violated the prohibition against charging a fee prior to the commencement of work.

DECREE

For the reasons set forth herein, the judgment of the district court on judicial review is affirmed. Costs of this appeal are assessed to appellant, Universal Placement International, Inc.

AFFIRMED.

      . La. R.S. 23:104 provides, in pertinent part: "No person, company, corporation, or partnership shall operate, solicit, or advertise an employment service in this state unless licensed by the director.”

      . La. R.S. 23:111(B)(2) provides:
      No employment service shall charge any fee for the registration of applicants or candidates for employment or for assistance or job referrals, or require applicants or candidates to subscribe to any publication or to any photographic, postal card, or letter service, or to contribute to the cost of advertising.

      . LAC 40:XV. 107(A)(5) provides, in pertinent part:
      A. No employment service ... shall engage in the following conduct:
      5. charge or receive a fee from an applicant prior to the actual commencement of work on a job procured by the employment service....

      . La. R.S. 23:111(B)(3)(e) provides, in pertinent part:
      (e) [A]n employment service shall not receive a fee from an applicant who does not commence work on a job procured by the employment service.

      . LAC 40:XV.107(A)(6) provides, in pertinent part:
      A. No employment service ... shall engage in the following conduct:
      6. ... an employment service shall not receive a fee from an applicant who does not commence work on a job procured by the employment service.

      . La. R.S. 23:lll(B)(3)(a)provides:
      Where the procured employment is one for which the applicant is to be paid a salary, the fee charged the applicant will be based on the employment service’s schedule of fees as applied to the first year’s gross earnings of the applicant.

      .La. R.S. 23:111(B)(3)(b) provides, in pertinent part:
      Where procured employment is one for which the applicant will be paid on a straight commission basis, or on the basis of a salary plus other remuneration, or a drawing account or guarantee against commission, the fee charged the applicant shall be based on the employment service’s schedule of applicant fees applied to the first year’s gross earning of the applicant as estimated by the employer. At the conclusion of the first year of employment and upon proper proof of actual gross earnings of the applicant, said fee shall be adjusted upward or downward as is appropriate, provided that under no circumstances will overtime pay be included in gross earnings. Any request for adjustment in fees must be made in writing by the agency or employee within sixty days after one year of employment or termination, whichever is sooner.

      . La. Atty. Gen. Op. 91-126, 1991 WL 575124 (La.A.G.1991).

      . La. R.S. 23:108(B)(1).

      . La. R.S. 23:108(B)(2).

      .La.R.S. 23:108(C).


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    FARMER’S SEAFOOD COMPANY, INC., et al. v. STATE of Louisiana, through the DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STATE POLICE, and State of Louisiana, through the Louisiana Gaming Control Board.
    No. 2011 CA 1919.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 8, 2012.
    Rehearing Denied Sept. 10, 2012.

      Christopher L. Whittington, Allison U. Rovira, Karl J. Koch, Baton Rouge, LA, for Plaintiffs-Intervenors-Appellees Security Plus, Inc. d/b/a Security Plus, Daiquiri Express, Inc. d/b/a Lil Jeaux’s, Waffle Iron, Inc. d/b/a Cajun Jeaux’s, Vineeni/Be-glis Parkway, Inc. d/b/a Super Saver Travel Express Center, Jaqueline Palermo, and Burt Vincent.
    James D. “Buddy” Caldwell, Attorney General, Ashley C. Wimberly, Katie D. Chabert, Assistant Attorneys General, E. Wade Shows, Special Assistant Attorney General, Baton Rouge, LA, for Defendants-Appellants State of Louisiana, through the Department of Public Safety and Corrections, Office of State Police, and State of Louisiana, through the Louisiana Gaming Control Board.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

li>The Louisiana Gaming Control Board (the Board) and the State of Louisiana, through the Department of Public Safety and Corrections, Office of State Police (collectively, the defendants), appeal a judgment dismissing their exceptions and granting a preliminary injunction to inter-venors Security Plus, Inc., d/b/a Security Plus; Daiquiri Express, Inc., d/b/a Lil Jeaux’s; Waffle Iron, Inc., d/b/a Cajun Jeaux’s; Vincent/Beglis Parkway, Inc., d/b/a Super Saver Travel Express Center; Jacqueline Palermo; and Burt Vincent (collectively, the Security Plus interve-nors). For the following reasons, we reverse the judgment and dismiss the intervention.

FACTUAL AND PROCEDURAL BACKGROUND

The principal action in this lawsuit was filed by Farmer’s Seafood Company, Inc. (Farmer’s), seeking injunctive relief from certain pending administrative actions in which the Board threatened to deny renewal of its license as a non-gaming supplier to Louisiana riverboat casinos and to find that all of its owners were unsuitable to do business with the gaming industry, due to Farmer’s employment of a convicted felon, Gus Mijalis. The Board’s actions were based on LSA-R.S., 27:28(H)(1) and LAC 42:XIII.2901(B)(1) and (B)(2)(A), which set out the “suitability” requirements for persons and entities involved in the casino gaming industry. Farmer’s claimed that the statute and regulations were unconstitutional, because they were vague and impermissibly delegated legislative authority over gaming to an administrative agency. After a hearing, the district court found the challenged statute and regulations were unconstitutional and granted Farmer’s a preliminary injunction prohibiting the defendants’ actions. On direct appeal to the Louisiana Supreme Court, the declarations of unconstitutionality were vacated and set aside, and the matter was transferred to this court for consideration of the merits of Farmer’s request for a preliminary injunction. See Farmer’s Seafood Co., Inc. v. State ex rel. Dep’t of Pub. Safety, 10-1534 (La.9/3/10), 44 So.3d 676 (per curiam).

This court affirmed the district court’s grant of the preliminary injunction, finding Isthat Farmer’s had made a prima facie showing that the statutory scheme did not prescribe sufficient standards to guide the Board in the execution of the legislative policy, thereby allowing the Board to exercise legislative authority. Similarly, the challenged regulations exceeded the legislature’s grant of authority to the Board and were inconsistent with the statutory scheme. Farmer’s had thereby made a showing that it was likely to prevail on the merits, in that the statute and regulations were an unconstitutional violation of the separation of powers principle and could not be enforced against it as a matter of law. See Farmer’s Seafood Co., Inc. v. State ex rel. Dep’t of Pub. Safety, 10-1746 (La.App. 1st Cir.2/14/11), 56 So.3d 1263, 1272-73. The principal action was remanded to the district court for further proceedings to be conducted as expeditiously as possible.

On June 16, 2011, the Security Plus intervenors filed a petition to intervene as plaintiffs, alleging that all of them, in one way or another, participated in the video gaming industry as licensees or, in one case, as an applicant for a license. They further alleged that the defendants were using an administrative process to deny and/or revoke their licenses, based on the suitability requirements for video poker gaming set out in LSA-R.S. 27:310(B)(l)(a), (b), and (c), LSA-R.S. 27:310(D), and LAC 42:XI.2417(B)(1) and (2), all of which they alleged were unconstitutional. They sought a preliminary injunction to prohibit the administrative proceeding from progressing against them and, ultimately, a permanent injunction against the defendants.

On July 26, 2011, the defendants moved to modify the preliminary injunction entered in the principal action, which prohibited them from proceeding with the pending administrative actions against Farmer’s and its owners, stating that they wished to dismiss all current administrative actions against Farmer’s and its owners. The defendants promised that when they received the requested modification of the injunction, they would dismiss the administrative actions and issue a renewal of the non-gaming supplier permit held by Farmer’s. On August 15, 2011, Farmer’s filed a motion and order to dismiss the principal action with prejudice, stating that it had |4settled and compromised the disputes that had prompted the original litigation. That same day, the district court granted the motion and ordered the principal action dismissed with prejudice.

The defendants immediately filed a motion to dismiss the intervention on the grounds that the Security Plus intervenors had not obtained leave of court to intervene before the principal action was dismissed, leaving no lawsuit into which they could intervene. They also filed declinato-ry exceptions raising the objections of prematurity, unauthorized use of summary proceedings, non-conformity of the petition, and vagueness and ambiguity of the petition, and peremptory exceptions raising the objections of no cause of action and no right of action. The Security Plus in-tervenors opposed the exceptions and the motion to dismiss.

After a hearing on September 12, 2011, the district court denied the defendants’ motion and exceptions and granted the Security Plus intervenors’ petition for a preliminary injunction, prohibiting the defendants from proceeding with the pending administrative actions against the Security Plus intervenors. The final judgment, signed on September 19, 2011, also fixed security in the amount of $15,000 to be paid by the intervenors into the registry of the court, pursuant to LSA-C.C.P. art. 3610. The Security Plus intervenors filed a verification of security deposit, stating that a cash bond security in the amount of $15,000 had been paid into the registry of the court on September 27, 2011.

The defendants filed an appeal of the district court’s judgment rendered in open court on September 12, 2011, and signed on September 19, 2011. They also filed an application for supervisory writs, seeking relief from the district court’s denial of their exceptions, expedited consideration of the writ, and a stay of further proceedings in the district court until their appeal could be decided by this court. Acting on the writ | ¿application on October 20, 2011, a panel of this court denied the request for a stay as premature, because the defendants had filed a motion to stay with the district court, and a hearing on that motion was set for October 24, 2011. The panel referred the writ application concerning the denial of the defendants’ exceptions to the panel of this court assigned to handle the merits of the appeal. See Farmer’s Seafood Co., Inc. v. The Louisiana Gaming Control Board, 11-1861 (La.App. 1st Cir. 10/20/11) (unpublished writ action). Eventually, because the district court had stayed its proceedings for only 30-day increments, the defendants moved this court for reconsideration of their stay request. That motion was granted, and this court ordered the stay of the district court proceedings to remain in effect until this court had ruled on the pending appeal. See Farmer’s Seafood Co. Inc. v. The Louisiana Gaming Control Board, 11-1919 (La.App. 1st Cir.3/27/12) (unpublished action on civil motion).

In this appeal, the defendants assign as error the district court’s denial of their exceptions and failure to dismiss the petition to intervene, urging that a party cannot intervene in a proceeding challenging the constitutionality of a statute by alleging the unconstitutionality of a different statute. They also contend that the district court erred in granting the Security Plus intervenors’ request for a preliminary injunction, because they had not proven, and could not prove, their entitlement to injunctive relief on the basis of the unconstitutionality of the video poker gaming statutes and regulations.

DISCUSSION

Louisiana Code of Civil Procedure article 1091, authorizing interventions by third persons in a pending action, provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

IfjAn intervention is an incidental demand that may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed. See LSA-C.C.P. arts. 1031(B) and 1033. This lawsuit was initiated by Farmer’s as a petition for injunctive relief. Although the defendants opposed the petition and sought its dismissal by filing an opposition memorandum and exceptions, they did not file an answer to the petition. The matter proceeded to a hearing on Farmer’s request for a preliminary injunction, and the district court granted that request and declared the challenged statute and regulations unconstitutional. The ruling on unconstitutionality was vacated by the supreme court and the case was remanded to this court, which affirmed the district court’s granting of the preliminary injunction. The intervention was filed shortly after this court’s decision was rendered, before any answer was filed by the defendants, before any final judgment on the main demand, and before the principal action was dismissed. Therefore, the filing of the petition of intervention was timely and did not require leave of court.

However, that does not answer the question of whether the intervention, with or without leave of court, was proper. In Mike M. Marcello, Inc. v. Louisiana Gaming Control Bd., 04-0488 (La.App. 1st Cir.5/6/05), 903 So.2d 545, 548-19, this court reviewed the jurisprudential requirements for intervention, noting as follows:

It is well settled by jurisprudence that the requirements for intervention are twofold: the intervenor must have a jus-ticiable interest in, and connexity to, the principal action, and the interest must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights. A “justiciable interest” is defined as “the right of a party to seek redress or a remedy against either [the] plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it.” The right, if it exists, must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights. (Citations omitted).
It is also well settled that an interve-nor takes the proceedings as [it] finds them, and [it] cannot substitute [itself] for one of the parties and urge matters that enlarge the issues or modify the basic procedural nature of the principal demand by way of intervention. The intervenor cannot change the issue between the parties, and can raise no new one. [It] must take the suit as [it] finds it without raising issues between the defendant and the plaintiff that they have not themselves raised. The |7intervenor’s rights are confined to joining or resisting either the plaintiff or the defendant, or to opposing both. LSA-C.C.P. art. 1091. The reason why the intervenor’s rights are so limited is because [it] always has [its] own remedy by a separate action to inject new issues. (Citations omitted).

In the case before us, the Security Plus interveners seek injunctive relief to prevent the defendants from taking administrative actions against them that will result in the denial or non-renewal of licenses allowing them to participate in the lucrative business of video poker gaming. They certainly have a justiciable interest, in that they seek a remedy against the same parties who were defendants in the principal action, and those defendants have a real interest in opposing that interest. However, while that interest might give the intervenors a cause of action against the defendants, the real question is whether the intervenors have a justicia-ble interest in the principal action. The principal action alleged that certain statutes and regulations dealing with riverboat casino gaming were unconstitutional. The plaintiffs in the principal action were only interested in those statutes and regulations; they had no interest in any other gaming statutes or regulations. If the principal action had proceeded to a final judgment in favor of Farmer’s and its owners, finding that permanent injunctive relief was required because the challenged riverboat casino gaming statutes were unconstitutional, that judgment would have had no effect at all on the Security Plus intervenors’ claims regarding video poker gaming statutes and regulations. A permanent injunction prohibiting the defendants’ administrative actions against Farmer’s and its owners would not require the defendants to halt their administrative actions against the Security Plus interve-nors.

The Security Plus intervenors have raised a totally new issue in their intervention, namely, whether certain video poker gaming statutes and regulations are unconstitutional, such that their enforcement would be unlawful. They have attempted to inject issues that the plaintiff in the principal action did not raise against the defendants. Therefore, the intervention lacks the requisite connexity to the principal action, and was improper. The Security Plus intervenors have their own remedy by a separate action to raise their issues regarding video poker gaming statutes |8and regulations.

Having so found, the district court’s judgment of September 19, 2011, must be reversed and the Security Plus intervention dismissed. We express no opinion as to the merits of the claims brought by the Security Plus intervenors concerning the unconstitutionality of the challenged video poker gaming statutes and regulations or their entitlement to injunctive relief.

CONCLUSION

For the above reasons, the judgment of September 19, 2011, is reversed. The Security Plus intervention is dismissed, at intervenors’ costs. Pursuant to LSA-C.C.P. art. 3610, the security deposited in the registry of the court shall be used, to the extent necessary, to indemnify the defendants for the payment of costs incurred and any damages sustained by them due to being wrongfully enjoined. All costs of this appeal are assessed to the intervenors.

MOTION TO CORRECT INTERVE-NORS’ BRIEF GRANTED. JUDGMENT REVERSED AND RENDERED.

      . This judgment amended an earlier one signed on September 14, 2011, in which the security deposit was fixed at $20,000. On the district court’s own motion, amendments may be made to judgments prior to the lapse of time for filing a motion for appeal and by consent of the parties. See Villaume v. Villaume, 363 So.2d 448, 451 (La.1978); LaBove v. Theriot, 597 So.2d 1007, 1010 (La.1992); Caldwell v. Leche, 08-0790 (La.App. 1st Cir.9/23/08), 994 So.2d 679, 682 n. 8, writ denied, 08-2859 (La.2/6/09), 999 So.2d 787. The record does not indicate the parties consented to the amended judgment; however, the defendants did not assign the amendment as error, and it was made prior to the lapse of the appeal delays.

      . The Security Plus intervenors filed a brief in this appeal and later filed a motion to correct their original brief. We grant the motion to correct the brief by substituting the revised pages 4 and 5.


text:
    GEORGE S. MAY INTERNATIONAL COMPANY v. ARROWPOINT CAPITAL CORPORATION f/k/a Royal Indemnity Company and SunAlliance Insurance Group.
    No. 2011 CA 1865.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 10, 2012.

      Robert E. Couhig, Jr., Jonathan P. Lemann, Claire E. Pontier, Couhig Partners, L.L.C., New Orleans, LA, for Plaintiff-Appellant Patrick D. Cavanaugh of High Ridge Partners, as Assignee of George S. May International, Co., and In-tervenor-Appellant Harnek Chahal.
    John C. Tollefson, Tollefson, Bradley, Ball, & Mitchell, L.L.P., Dallas, TX, for Defendants-Appellees Arrowpoint Capital Corporation f/k/a Royal Indemnity Co. and SunAlliance Company.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

|2Appellants, George S. May International Company (GSM) and Harnek Chahal, challenge a summary judgment granted in favor of the defendants, SunAlliance Insurance Group and Arrowpoint Capital Corporation f/k/a Royal Indemnity Company (collectively, Royal), finding that Royal had no duty to defend GSM or Chahal in a separate lawsuit filed against them in the 24th Judicial District Court for the Parish of Jefferson and further denying the claims for bad faith damages against Royal filed by GSM and Chahal. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Commercial Flooring and Mini Blinds, Inc. (Commercial Flooring) entered into a contract with GSM, a national management consulting firm, in which GSM was to provide management services to Commercial Flooring for the purpose of developing an organized plan for management of its company. In accordance with this contract, GSM sent Harnek Chahal and another one of its staff executives to Louisiana to provide management training to the employees and operators of Commercial Flooring, including Julie Ferrara.

As part of the management services GSM was providing, Mr. Chahal was required to interview and evaluate employees of Commercial Flooring regarding their assigned duties and tasks so as to place them in positions that would best utilize their individual abilities, as well as the needs of Commercial Flooring. In an alleged attempt to further that goal, Mr. Chahal requested that Mrs. Ferrara meet with him on a specific Friday evening in his hotel room in order to discuss company business and to have dinner. Mrs. Fer-rara declined to attend this meeting, stating that she was unavailable on that Friday night. Mr. Chahal then contacted Mrs. Ferrara the next day on her cell laphone and advised her that it was necessary that they meet that evening for counseling on a personal level. Mrs. Ferrara again stated that she was unavailable; however, because Mr. Chahal appeared to become angry at her refusal, she agreed to meet with him on Sunday morning of that weekend in the lobby of his hotel.

Once they met in the lobby, Mr. Chahal attempted to move the interview up to his hotel room, but Mrs. Ferrara declined. Mr. Chahal then suggested that they should start the meeting off with a hug, after which, and without her consent, he grabbed Mrs. Ferrara’s arm and kissed her on the cheek. Mr. Chahal again proposed that they go to his room, but Mrs. Ferrara refused his advances, ended the meeting, and left the hotel. Thereafter, Mr. Chahal allegedly gave a negative evaluation of Mrs. Ferrara to her employer, Commercial Flooring. According to Mrs. Ferrara, this negative evaluation, which was negative solely because of her refusal of Mr. Chahal’s unwanted advances, caused her to be denied a promotion at work.

On April 26, 2004, Mrs. Ferrara and her husband filed suit against GSM, Mr. Cha-hal, and various other defendants, including Royal, which had provided a commercial general liability (CGL) policy to GSM that was in effect at the time of the incident involving Mr. Chahal. That underlying suit, which sought damages for the sexual harassment, battery, and fraudulent acts and misrepresentation allegedly committed by Mr. Chahal, has apparently been resolved and is not before this court; however, in June 2005, Royal denied coverage to GSM and Mr. Chahal and refused to provide them with a defense to that suit. Thereafter, GSM filed suit against Royal, contending that Royal breached its duty to defend GSM in the underlying suit filed by the Ferraras. In addition, GSM contended that Royal breached its fiduciary duty and was in bad faith in denying it a defense. Mr. Chahal eventually intervened in this suit and joined GSM in asserting claims against Royal.

Royal responded by filing a motion for summary judgment, contending that the CGL policy had excluded coverage for the incident at issue and the damages sought by the Ferraras and that, therefore, Royal had not been required to provide GSM and Mr. Chahal a defense to the Ferraras’ lawsuit. After a hearing, the trial court granted LRoyal’s motion for summary judgment and dismissed GSM’s petition, as well as Mr. Chahal’s petition for intervention, with prejudice, with each party to bear its own costs. This appeal by GSM and Mr. Chahal followed.

APPLICABLE LAW

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. 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. West v. Clarendon Nat’l Ins. Co., 99-1687 (La.App. 1st Cir.7/31/00), 767 So.2d 877, 879. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Lee v. Grimmer, 99-2196 (La.App. 1st Cir.12/22/00), 775 So.2d 1223, 1225. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Perry v. City of Bogalusa, 00-2281 (La.App. 1st Cir.12/28/01), 804 So.2d 895, 899.

Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Doiron v. Louisiana Farm Bureau Mut. Ins. Co., 98-2818 (La.App. 1st Cir.2/18/00), 753 So.2d 357, 362 n. 2. In seeking a declaration of coverage under an insurance policy, Louisiana law places the burden on the plaintiff to establish every fact essential to recovery and to establish that the claim falls within the policy coverage. Ho v. State Farm Mut. Auto Ins. Co., 03-0480 (La.App. 3rd Cir.12/31/03), 862 So.2d 1278, 1281, citing Pierce v. Aetna Life and Cas. Ins. Co., 572 So.2d 221, 222 (La.App. 1st Cir.1990). Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, |swhen applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002,1010.

Generally, the insurer’s obligation to defend suits against its insured is broader than its obligation to indemnify for damage claims. Henly v. Phillips Abita Lumber Co., 06-1856 (La.App. 1st Cir.10/3/07), 971 So.2d 1104, 1109. The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the “eight-corners rule,” under which an insurer must look to the “four corners” of the plaintiffs petition and the “four corners” of its policy to determine whether it owes that duty. Id. The insurer’s duty to defend suits brought against its insured is determined by the factual allegations of the injured plaintiffs petition, with the insurer being obligated to furnish a defense unless it is clear from the petition that the policy unambiguously excludes coverage. Id.; see also Yount v. Maisano, 627 So.2d 148, 153 (La.1993). Thus, assuming the factual allegations of the petition are true, if there could be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Henly, 971 So.2d at 1109; Prestaae v. Clark, 97-0524 (La.App. 1st Cir.12/28/98), 723 So.2d 1086, 1092, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800. In making this determination, the factual allegations of the petition are to be liberally interpreted in deciding whether they set forth grounds that bring the claim within the scope of the insurer’s duty to defend the suit brought against its insured. Henly, 971 So.2d at 1109; Yount, 627 So.2d at 153; Motorola, Inc. v. Associated Indem. Corp., 02-0716 (La.App. 1st Cir.6/25/04), 878 So.2d 824, 836, writs denied, 04-2314, 2323, 2326, and 2327 (La.l 1/19/04), 888 So.2d 207, 211, and 212.

DISCUSSION

In granting Royal’s motion for summary judgment, the trial court determined that Royal never had any duty to defend or indemnify GSM or Mr. Chahal in the lawsuit filed against them by the Ferraras. The trial court further determined that Royal had “reasonably denied coverage and did not provide a defense for the allegations made in 16[the lawsuit.]” In its reasons for judgment, the trial court specifically stated:

The exclusion at issue clearly provides that employment-related practices[,] which includes harassment[,] are excluded from coverage. It applies whether the insured may be liable as an employer or in any other capacity. There is no restriction on who is being harassed. It is the nature of the acts[,] not how the actor is related to the victim or the capacity in which the actor is committing the acts that matters.... The court also does not believe that the additional claims of negligence made by the sexual harassment plaintiff against GSM’s employee triggers coverage. This additional claim of tortious behavior all stems from the sexual harassment claim and thus is excluded from coverage.

In this appeal, GSM and Mr. Chahal acknowledge that there was no factual dispute in the underlying cross-motions for summary judgment. Instead, the issue revolved around the legal effect of an Employment-Related Practices Exclusion (ERPE) contained within an endorsement to the CGL policy. This ERPE provided:

A. The following exclusion is added to Paragraph 2., Exclusions of Section 1 Coverage A Bodily Injury And Property Damage Liability:
This insurance does not apply to:
“Bodily injury” to:
(1) A person arising out of any:
(a) Refusal to employ that person;
(b) Termination of that person’s employment; or
(c) Employment-related practices, policies, acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person; or
(2) The spouse, child, parent, brother or sister of that person as a consequence of “bodily injury” to that person at whom any of the employment-related practices described in Paragraphs (a), (b), or (c) above is directed.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.
B. The following exclusion is added to Paragraph 2., Exclusions of Section
1 Coverage B Personal And Advertising Injury Liability:
This insurance does not apply to:
“Personal and advertising injury” to:
(1) A person arising out of any:
|7(a) Refusal to employ that person;
(b) Termination of that person’s employment; or
(c) Employment-related practices, policies, acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person; or
(2) The spouse, child, parent, brother or sister of that person as a consequence of “personal and advertising injury” to that person at whom any of the employment-related practices described in Paragraphs (a), (b), or (c) above is directed.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

(Some emphasis added).

Section V of the insurance policy further defined “bodily injury” as bodily injury, sickness, or disease sustained by a person, including death resulting from these at any time. In addition, “personal and advertising injury” was defined in the policy to mean:

[IJnjury, including consequential “bodily injury”, arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor;
d. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services;
e. Oral or written publication, in any manner, of material that violates a person’s right of privacy;
f. The use of another’s advertising idea in your “advertisement”; or
g. Infringing upon another’s copyright, trade dress or slogan in your “advertisement”.

In addition to the pertinent provisions of the CGL policy, the factual allegations of the Ferraras’ petition are also relevant to a determination of whether Royal owed a duty to defend. According to their original petition, Mr. Chahal was sent to Jefferson Parish to interview and evaluate employees of Commercial Flooring regarding their assigned duties and tasks. The petition further states:

J£-
The purpose of the interviews was to place Commercial Flooring personnel (e.g., Julie Ferrara) in positions that would best utilize their individual abilities and the needs of Commercial Flooring.
8.
On or about Friday May 23, 2003, Mr. Chahal attempted to schedule the interview of petitioner and urged Mrs. Fer-rara to meet with him at his hotel room to discuss “company business” and to have dinner. According to Mr. Chahal, petitioner should meet with him as he instructed in order that a “trust” be established between them. Mrs. Fer-rara told Mr. Chahal that she was not available on Friday night.
9.
On the next day, ... Mr. Chahal called Mrs. Ferrara on her cellular telephone claiming that it was necessary that they meet that evening or night for “counseling on a personal level.” Again, Mrs. Ferrara postponed this meeting[,] citing personal reasons[,] but due to Mr. Chahal’s insistence and apparent anger, she scheduled to meet with him on Sunday morning in the lobby of his hotel.
10.
On or about Sunday May 25, 2003, Julie Ferrara left her husband to meet with Mr. Chahal. After meeting at the hotel, Mrs. Ferrara suggested that they discuss business at a coffeehouse, which suggestion was declined by Chahal. Mr. Chahal implied that he was recommending that Mrs. Ferrara be promoted to Operations Manager[,] but he insisted that further discussions concerning her promotion take place in his hotel room[,] which offer was declined by your petitioner. Ultimately they met in the lobby of Chahal’s hotel[,] which was located in Jefferson Parish.
11.
Julie Ferrara chose a table and sat with her back to the lobby at which time Mr. Chahal stated, “Let’s start out with a hug.” Subsequently, Mr. Chahal committed a battery on Julie Ferrara when[,] against her wishes, he grabbed her arm and kissed her on the cheek and again suggested that they go to his room. Mrs. Ferrara again refused Mr. Chahal’s advances[,] and after Mr. Cha-hal became very upset and excitable[,] Julie Ferrara ended the meeting and left the hotel.
13.[]
At all times relevant hereto, Mr. Cha-hal was employed by [GSM] as a Senior Staff Executive and was acting in the course and scope of his employment. Accordingly, [GSM] is answerable for the damage caused by Mr. Chahal. Louisiana Civil Code articles 2815 and 2320.

Mrs. Ferrara later filed a third supplemental and amending petition, in which she alleged:

lf|23.
During the relevant days when [GSM] and Harnek Chahal were performing their services for Commercial Flooring, Harnek Chahal stated to Patrick Rooney (Julie Ferrara’s boss and Commercial Flooring’s Owner) that Ms. Ferrara was incapable of performing as a top manager for his company because Julie was basically “garbage.”
24.
The disparaging and slanderous comments made by Mr. Chahal, on behalf of his employer, were in stark contrast to the earlier statements told to Mr. Rooney by Mr. Chahal where Mr. Chahal had expressed to Mr. Rooney that petitioner was “a diamond in the rough” and was the “star” Commercial Flooring needed.
25.
What Mr. Chahal failed to tell Mr. Rooney [was] that in between his “diamond in the rough” statements^] which were made on a Friday, and the “garbage” statements[,] which were made on the following Monday, Mr. Chahal had attempted to coerce Petitioner into his hotel room under the guise of reviewing a. proposed Commercial Flooring organizational chart. The chart, which Chahal drafted, placed petitioner in a high level management position at Commercial Flooring. During the Sunday meeting at the hotel, Petitioner refused Mr. Cha-hal’s sexual advances and became upset, confused and depressed by the incident.
26.
It is alleged that the slanderous and defamatory comments made by Mr. Chahal to Mr. Rooney on Monday were made during the scope and course of Mr. Chahal’s employment with [GSM;] however, petitioner alleges that the context of Mr. Chahal’s defamatory statements were not employment related because (1) they were made because Julie Ferrara refused Mr. Chahal’s sexual advances, (2) they were an attempt by Chahal to protect his own credibility and job, (3) were made to justify and disguise his inappropriate actions toward petitioner^] which had been witnessed by a co-worker, and (4) they were not based on an evaluation of petitioner.
27.
Plaintiff further avers that the comments made by the [GSM] representative to Mr. Rooney were disparaging, slanderous, libelous and a violation of
Petitioner’s right to privacy[,] and his words have unexpectedly and unintentionally caused Ms. Ferrara to be humiliated by her family members, her employer, and co-workers and has caused her to sustain severe and personal injuries[,] which are permanent and continuing.

If the allegations of the petition are taken as true, Mr. Chahal clearly assaulted Mrs. Ferrara and committed a battery upon her, while acting in the course and scope of his employment for GSM. Moreover, the petition alleges that Mr. Chahal gave Mrs. Ferrara a negative evaluation in retaliation for her refusal of his unwanted sexual 110advanees during their meeting, which resulted in her failure to obtain a promotion. These allegations, if interpreted liberally, clearly establish some liability on the part of GSM and Mr. Chahal for the damages sustained by the Ferraras. Thus, the only issue remaining to be decided in order to determine whether Royal owed GSM and Mr. Chahal a duty to defend the underlying lawsuit is whether the policy unambiguously excluded coverage for Mr. Chahal’s actions.

An insurance policy is an agreement between the parties and should be construed according to the general rules of interpretation of contracts as set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577, 580. When interpreting insurance contracts, the court’s responsibility is to determine the parties’ common intent. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763; see LSA-C.C. art. 2045. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Ledbetter v. Concord Gen. Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, 1169, decree amended, 95-0809 (La.4/18/96), 671 So.2d 915.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. Such intent is to be determined in accordance with the general, ordinary, plain, and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. Ledbetter, 665 So.2d at 1169; see LSA-C.C. art. 2047. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. Ledbetter, 665 So.2d at 1169. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or to achieve an absurd conclusion. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions on the policy obligations they contractually assume. Campbell v. Market American Ins. Co., 00-1448 (La.App. 1st Cir.9/21/01), 822 So.2d 617, 623, writ denied, 01-2813 (La.1/4/02), 805 So.2d 204. In an action under an insurance contract, the insured bears the burden of proving the existence of the policy and coverage. Tunstall v. Stierwald, 01-1765 (La.2/26/02), 809 So.2d 916, 921. However, the insurer bears the burden of proving policy limits or exclusions. Id.

The appellants’ primary argument on appeal is that Mrs. Ferrara had no past, present, or potential employment relationship with GSM and that, therefore, the ERPE was inapplicable. While Louisiana courts have addressed the general applicability of the ERPE, they have not addressed this specific issue. However, a review of the language of the ERPE demonstrates that it does not limit its applicability to those individuals who have an employment relationship with the insured. Instead, the ERPE applies to “bodily injury” or “personal and advertising injury” to a “person,” but nothing in the ERPE requires that the injured person be an employee of the insured.

The language of the ERPE does require that the injury to the person arise out of:

(1) the refusal to hire the injured person;

(2) the termination of the injured person’s employment; or (3) an “employment-related” activity of the insured directed at the injured person. Obviously, under the facts of this case, only the third category of injury is subject to our review.

In this regard, Mr. Chahal’s alleged actions took place during a meeting that he scheduled for the purpose of discussing “company business.” Part of his assignment for GSM was to interview the employees of Commercial Flooring, including Mrs. Ferrara, in order to determine their strengths and weaknesses, so as to place them in positions that would best utilize their individual abilities, as well as the needs of Commercial Flooring. It was during one such interview that Mr. Chahal allegedly sexually harassed Mrs. Ferrara and committed an assault and battery upon her. Furthermore, it was in his capacity as a representative of GSM, while providing an employment evaluation of Mrs. Ferrara, that Mr. Chahal allegedly defamed Mrs. Ferrara by advising her supervisor that Mrs. Ferrara was “garbage.” Clearly, these actions took place in the context of Mr. Chahal’s employment with GSM and were directed at Mrs. Ferrara. Therefore, there 112can be no dispute that these actions were “employment-related” acts by an employee of the insured that are unambiguously excluded from coverage pursuant to the terms of the ERPE. Moreover, the exclusion to coverage applies “[w]hether the insured may be liable as an employer or in any other capacity.” (Emphasis added). Since GSM was not the employer of Mrs. Ferrara, its liability “in any other capacity” is excluded from coverage. Accordingly, Royal owed GSM and Mr. Chahal no duty to defend them in the lawsuit filed by the Ferraras.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, which granted summary judgment in favor of SunAlliance Insurance Group and Arrowpoint Capital Corporation f/k/a Royal Indemnity Company and dismissed the petition of George S. May International Company and the petition for intervention filed by Harnek Cha-hal. All costs of this appeal are assessed to appellants, Harnek Chahal and Patrick D. Cavanaugh of High Ridge Partners, as Trustee-Assignee of George S. May International Company.

AFFIRMED.

CARTER, J., concurs.

      . SunAlliance Insurance Group was sued in its capacity as the parent company to Arrow-point Capital Corporation f/k/a Royal Indemnity Company. For purposes of this opinion, we will refer to both defendants collectively as Royal.

      . Commercial Flooring has its registered agent and principal place of business in Jefferson Parish.

      .Since the filing of the petition in this matter, GSM has ceased all business operations and gone into liquidation. Therefore, its claim in this matter is now being pursued by Patrick D. Cavanaugh of High Ridge Partners, as the original trustee-assignee. In this opinion, we will continue to refer to the plaintiff as GSM.

      . GSM and Mr. Chahal filed cross-motions for summary judgment, which were denied by the trial court.

      . The original petition does not contain a paragraph 12.

      . Mr. Ferrara initially sought damages for loss of consortium. He subsequently died before the lawsuit was resolved, and Mrs. Ferrara amended the petition to assert a survival action on behalf of her deceased husband.


author: COOKS, Judge. AMY, J.,

text:
    Jeannie Hurst SIMMONS, et al. v. SABINE RIVER AUTHORITY OF LOUISIANA, et al.
    No. 11-1146.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 15, 2012.
    Andrew L. Plauche, Jr., G. Bruce Par-kerson, Scott H. Mason, Plauche Maselli Parkerson L.L.P., New Orleans, LA, for Defendant/Relator Associated Electric & Gas Insurance Services, Ltd.
    John Sturgeon, Sturgeon & Boyd, Ferri-day, LA, Donald T. Carmouche, Victor L. Marcello, John H. Carmouche, William R. Coenen, III, John S. DuPont, III, Brian T. Carmouche, D. Adele Owen, Talbot, Car-mouche & Marcello, Baton Rouge, LA, for Plaintiffs/Respondents Jeannie Hurst Simmons, et al.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   COOKS, Judge.

| ^Relator, Associated Electric & Gas Insurance Services, Ltd. (hereafter Associated), seeks supervisory writs from the district court judgment denying its motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

This case involves survival and wrongful death actions filed by Plaintiffs-Relators, Jeannie Hurst Simmons, and her daughters, Tressa and Brianna. Jeannie Simmons was married to Kyle Simmons, and they had three children together, Tressa, Brianna and Christopher.

In March 2001, the Sabine River Authority of Louisiana (hereafter SRA), which operated the Toledo Bend Dam pursuant to a license issued by the Federal Power Commission, made a decision to open the flood gates of the dam. This allegedly led to catastrophic flooding of the Sabine River downstream from the dam.

Plaintiffs contend they, and other residents of the flooded area, were required to depend entirely on their own means of transportation to reach land. On March 22, 2001, Kyle Simmons used a 14-foot long aluminum boat to transport his daughters to school, bringing along his young son, Christopher. On the return trip home after dropping the girls off, Kyle and Christopher were thrown from the boat and killed. Plaintiffs alleged this unfortunate accident occurred because Kyle was unable to negotiate the swollen Sabine River in his small boat.

Plaintiffs filed suit against various defendants, including the SRA and Associated, which is the excess insurer of the SRA. Plaintiffs allege the SRA was negligent in the following particulars: (1) its decision to release water from the floodgate; (2) its failure to warn Plaintiffs of the potential for flooding; and, (3) its failure to provide alternate transportation for Plaintiffs. Plaintiffs allege that Associated is liable to them as an excess insurer of the SRA. Although Plaintiffs |4settled their claims against the SRA and its primary insurer, their claims against Associated, as excess insurer, are still pending.

Associated filed a motion for summary judgment, arguing Plaintiffs’ claims are preempted by federal law and, alternatively, that the SRA neither owed nor breached a duty to Plaintiffs. The trial court denied Associated’s motion for summary judgment, and Associated sought writs to this court for a review of that ruling. For the following reasons, finding no error in the trial court’s ruling, we deny the writ application.

ANALYSIS

The law is clear that federal preemption “fundamentally is a question of congressional intent.” English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990). In Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986) (citations omitted), the United States Supreme Court stated:

Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, e.g., where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for states to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.

Associated argues Plaintiffs’ state law claims are preempted by the Federal Power Act (FPA), 16 U.S.C. § 791a et seq., which Associated contends vests the Federal Power Commission (FPC) and its successor agency, the Federal Energy Regulatory Commission (FERC), with exclusive authority to issue licenses to and regulate hydropower facilities in navigable waters. Citing California v. F.E.R.C., 495 U.S. 490, 110 S.Ct. 2024,109 L.Ed.2d 474 (1990), and First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143 (1946), Associated contends, while the FPA grants the federal government exclusive control over the |sengineering, economic and financial aspects of the federally licensed hydroelectric projects, 16 U.S.C. § 821 permits states to regulate the appropriation of water for irrigation or municipal purposes. Thus, because a federal license was issued for the operation of the Toledo Bend Project, Associated contends that federal preemption extends to any regulations pertaining to the engineering, economic, and financial aspects for the Toledo Bend Project. Associated further argues the state’s only authority with regard to the Toledo Bend Project is limited to regulations relating to property rights, which it insists are not implicated here because Plaintiffs are not making any property damage claims.

Plaintiffs counter that their claims are not barred by federal preemption. They argue the application of Louisiana’s personal injury laws have nothing to do with the engineering, economic, or financial aspects of the Toledo Bend Project, noting specifically that Associated has been unable to cite any cases holding that a state’s personal injury laws are preempted by the FPA.

With regard to the issue of preemption, this Court, in Badon v. R.J. Reynolds Tobacco Co., 05-1048, pp. 7-8 (La.App. 3 Cir. 7/12/06), 934 So.2d 927, 933, stated:

Pursuant to the Supremacy Clause of Article VI of the United States Constitution, state law may be preempted by federal provisions if Congress has either enacted a clear expression of that intent or it has legislated so comprehensively in a field that it has left no room for state regulation. Epoch Wellsite Servs. v. Ortego, 03-547 (La.App. 3 Cir. 11/5/03), 858 So.2d 827 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984)), writ denied, 03-3348 (La.2/13/04), 867 So.2d 693. Additionally, preemption will be found when it is impossible to comply with both the federal and state provisions or when application of state law stands as an obstacle to the accomplishment and execution of Congress’s full objectives and purposes. Id.

We also held in Epoch Wellsite Servs. v. Ortego, 03-547, p. 2 (La.App. 3 Cir. 11/5/03), 858 So.2d 827, 829, writ denied, 03-3348 (La.2/13/04), 867 So.2d 693, that “there is a strong presumption against federal preemption.”

| (Although the FPA authorizes the FERC to regulate and issue licenses for hydropower facilities in navigable waters, that alone is not sufficient to support a finding that Plaintiffs’ wrongful death and survival claims are preempted by the FPA. The courts have held “[federal law will override state law under the Supremacy Clause when (1) Congress expressly preempts state law; (2) Congressional intent to preempt may be inferred from the existence of a pervasive federal regulatory scheme; or (3) state law conflicts with federal law or its purposes.” Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir.2002) (citing English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990)); see also Villas at Parkside Partners v. City of Farmers Branch, Tex., 675 F.3d 802 (5th Cir.2012).

After a review of the record, we find the trial court did not err in denying Associated’s motion for summary judgment because questions of fact existed whether the factors necessary for total federal preemption are present in this case.

For conflict preemption to apply, compliance with both the federal and state provisions must be impossible or the state law must serve to impede federal objectives. We are not convinced from the present record that any conflict exists between state tort laws and the FPA or that state law hinders any congressional objectives. While Associated notes that 16 U.S.C. § 803(c) specifically provides for property damage claims arising out of the operation of a federally licensed hydro-electric project, Plaintiffs are not seeking property damages. Associated also directs our attention to Simmons v. Sabine River Authority, No. 2:10 CV 1846, slip op., 2012 WL 1458088 (W.D.La.4/26/12). In Simmons, the United States District Court for the Western District of Louisiana found plaintiffs’ claims for property damage resulting from the release of flood waters from the dam in 2009 was preempted. 17Associated has not established that Congress has expressed a similar intent to preempt state tort law.

The more troublesome question here is whether field preemption exists in this case, i.e., does the scope of the FPA “manifest[s] the intention to occupy the entire field of regulating” hydro-electric projects. Napier v. Atl. Coast Line R.R. Co., 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432 (1926). Field preemption exists when Congress “has legislated so comprehensively in a field that it has left no room for state regulation.” Badon, 934 So.2d at 933 (citations omitted). Associated argues field preemption applies here because the FPA evidences a legislative intent to preempt the field of hydro-electric power insofar as state laws pertain to the “engineering, economic, and financial aspects” of the Toledo Bend Project. Plaintiffs counter it is absurd to suggest that Congress intended to preempt all state law personal injury claims by authorizing FERC to issue a license to the Toledo Bend Dam. Plaintiffs also argue the assertion that Congress intended a broad “field preemption” to apply to the FPA are not supported by the jurisprudence. They point this court to the case of Hendricks v. Dynegy Power Marketing, Inc., 160 F.Supp.2d 1155, 1156-57 (S.D.Cal.2001), wherein the court was called upon to interpret whether Congress intended the FPA to entirely occupy the field of energy production:

On its face, Plaintiffs’ complaint alleges only violations of state law. The Court concludes that Congress did not intend for the federal government to entirely occupy the field with the Federal Power Act, thereby completely preempting Plaintiffs’ state law claims and convert ing them into federal questions. Further, although Plaintiffs’ claims might conceivably be cast in federal terms, a plaintiff is the master of his or her own claims; the Court need not recast Plaintiffs’ state causes of action into federal causes because Plaintiffs’ claims can all be resolved with reference to or resolution of substantial federal questions or issues.

(Emphasis added.)

1 sAssociated has cited no provision of the FPA or the operating license issued to the SRA that speaks to personal injury actions. Further, Plaintiffs point to several provisions in the power sales agreement entered into between the SRA and FERC which delineate the considerable power granted the SRA in operating the dam. Article V of the agreement provides, “The Authorities shall have the right to operate the reservoir ... to control properly the flow of the Sabine River for the purposes of performing the Authorities’ statutory functions.” One of the statutory functions is set forth in La.R.S. 38:2325(10)(c), which provides the SRA shall have the power to control the waters of the Sabine River “for the prevention of devastation of lands from recurrent overflow and the protection of life and property in such district from uncontrolled flood waters.”

The action taken by the SRA, the release of water from the floodgate, arguably was not made with any concern for the “development, transmission, and utilization of power across, along, from, or in” Toledo Bend Lake, which Section 4(e) of the FPA described is the purpose of FERC’s issuing licenses for hydro-electric projects. It reasonably can be argued this decision more so comports with the mandate of La.R.S. 38:2325(10)(c), i.e., that the SRA control the waters of the Sabine River “for the prevention of devastation of lands from recurrent overflow and the protection of life and property in such district from uncontrolled flood waters.” (Emphasis added.) At a bare minimum, there are questions of fact as to whether the decision in this instance, to open the dam and release the floodwater, is governed by the SRA’s statutory obligations under state law or fall exclusively within the regulations of FERC pursuant to the FPA.

Shortly after oral argument in this matter, Associated filed a supplemental brief with this court directing our attention to a recent decision by the United States Supreme Court, Kurns v. Railroad Friction, — U.S. —, 132 S.Ct. 1261, — L.Ed.2d —(2012), wherein the Court found state law claims for defective design and failure to warn fell within the lfllocomotive equipment regulation preempted by the Locomotive Inspection Act (LIA), as that field was defined by Napier. Associated maintains this case definitively holds that field preemption applies to state tort claims in all areas regulated by federal statute. An examination of the Kurns opinion indicates it stops far short of Associated’s contention, and its holding is more properly limited to a single statute addressing locomotive safety. In Kurns, the court’s decision was based on its earlier ruling in Napier, which specifically involved the LIA (or in that case, its predecessor the BIA, Boiler Inspection Act). We note Justice Kagan’s concurring opinion in Kums cast “doubt [that the] Court would decide Napier [ ] in the same way today” and that “[v]iewed through the lens of modern preemption law, Napier is an anachronism.” Id. at 1270. Particularly relevant here is Justice Kagan’s comment that under more recent jurisprudence, “Congress must do much more to oust all of state law from a field. See, e.g., New York State Dept. of Social Servs. v. Dublino, 413 U.S. 405, 415, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973) (rejecting preemption even though Congress had enacted a ‘detailed’ and ‘comprehensive’ regulatory scheme).” Id.

Justice Sotomayor, concurring in part and dissenting in part (and joined by two other justices), also believed “the Court might decide Napier differently today.” Id. at 1271. She noted the LIA’s lack of an express preemption clause, and noted “our recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Id., (quoting Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 617, 117 S.Ct. 1590, 1618, 137 L.Ed.2d 852 (1997) (Thomas, J., dissenting)).

ImHere there are no similar decisions involving the FPA and its grant of authority to FERC to regulate the operation of hydro-electric projects. The law therefore, to us, is not as clear as that present in Kums, which the majority therein found was controlled by the 85-year old holding in Napier which specifically involved the field of locomotive safety. When that factor is added to the clear presumption that exists against preemption, we find the decision in Kums is not on all fours with the present case and does not mandate the granting of Associated’s motion for summary judgment as a matter of law.

Associated also argues, in the alternative, that even if Louisiana law applies to this case, Plaintiffs’ claims should still be dismissed because Associated’s insured, the SRA, did not breach a duty owed to Plaintiffs. Associated argues, quoting Pitre v. Louisiana Tech University, 95-1466, p. 11 (La.5/10/96), 673 So.2d 585, 591, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996) (citations omitted), “[i]f the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff.” Associated contends the SRA owed no duty to Kyle and Christopher Simmons because the dangerous condition caused by the flooding was obvious.

Even if the condition presented by the floodwater was considered an obvious danger, it does not preclude recovery on Plaintiffs’ part. In Socorro v. City of New Orleans, 579 So.2d 931, 941 (La.1991), our supreme court noted a defendant’s “duty [is] separate and apart from any knowledge the plaintiff had or should have |n had of the danger he was encountering.” Instead, “the plaintiffs knowledge and conduct is considered only to determine the extent of his comparative negligence.” Id.

In any event, a motion for summary judgment is inappropriate to dismiss a negligence action when questions of fact exist regarding the duties owed and any breach of the same. “Questions of negligence are generally inappropriate for disposition by summary judgment.” Cobb v. Delta Exports, Inc., 03-38, p. 4 (La.App. 3 Cir. 6/4/03), 847 So.2d 739, 742, writs denied, 03-1906, 03-1936 (La.10/31/03), 857 So.2d 483, 485.

DECREE

For the foregoing reasons, the writ application is denied.

WRIT DENIED.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting.

hi respectfully dissent from the majority decision as I find that, largely, the plaintiffs’ petition is preempted by federal law. While the plaintiffs focus here on the personal injury aspect of their suit, it is clear that the plaintiffs’ petition alleged that the Sabine River Authority’s purported fault in the accident stems from its operation of its facilities, namely, “opening the flood gates of the Dam on March 1, 2001 to such a degree to foreseeably create catastrophic flooding of the lands, homes, and businesses of downstream residents.” The plaintiffs also alleged that the SRA failed to: “adopt and/or implement appropriate policies and procedures for the operation of the flood gates of the Dam and the power generation facility at the Dam that would effectively avoid the creation of catastrophic flooding”; maintain an adequate detention capacity in the Reservoir to store excess rainfall; forecast rainfall; and thereafter timely obtain and utilize data related to that rainfall; maintain sufficient outflow capacity of the lower Sabine River; and that it failed to pre-release water from the Toledo Bend Reservoir. Each of these claims focus on the SRA’s operations.

In light of these allegations, I think it is significant that the SRA operated under operational and reservoir level guidelines approved by the FERC. As the United States Supreme Court noted in California v. FERC, 495 U.S. 490, 496, 110 S.Ct. 2024, 2028, 109 L.Ed.2d 474 (1990), “Congress clearly intended a broad federal role in the development and licensing of hydroelectric power” through the Federal Power Act. See also First Iowa Hydro-Elec. Coop. v. Fed. Power Comm’n, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143 (1946). However, the Court further noted that the FPA did not provide for the extent to which it intended to preempt concurrent state regulation of matters affecting federally licensed hydroelectric projects. California v. FERC, 495 U.S. 490, 110 S.Ct. 2024,109 L.Ed.2d 474.

Reference to the jurisprudence indicates that much of the debate surrounding the extent of the preemption provided by the FPA focuses upon 16 U.S.C. § 821, which provides:

Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws, of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.

In initially interpreting this provision, the Supreme Court, in First Iowa, 66 S.Ct. at 917, stated:

The effect of [16 U.S.C. § 821] in protecting state laws from supersedure, is limited to laws as to the control, appropriation, use or distribution of water in irrigation or for municipal or other uses of the same nature. It therefore has primary, if not exclusive, reference to such proprietary rights. The phrase ‘any vested right acquired therein’ further emphasizes the application of the section to property rights. There is nothing in the paragraph to suggest a broader scope unless it be the words ‘other uses.’ Those words, however, are confined to rights of the same nature as those relating to the use of water in irrigation or for municipal purposes.

Applying this provision to the matter before it, the Supreme Court concluded that a federally licensed hydroelectric project could not be required to obtain a state license related thereto. Id. Such a licen-sure, the Supreme Court remarked, would be at odds with the comprehensive planning authority conveyed by the FPA. Id.

The Supreme Court revisited the issue in California v. FERC, 110 S.Ct. 2024, concluding that 16 U.S.C. § 821, as interpreted in First Iowa, did not allow a state to regulate the minimum flow requirements of a federally-licensed 1 .^hydroelectric project. It explained that allowing a state to require a flow rate in competition with that prescribed by the federal requirement, “would disturb and conflict with the balance embodied in that considered federal agency determination.” Id. at 2034. To that extent, permitting the state to impose varying requirements “would be contrary to congressional intent regarding the Commission’s licensing authority and would ‘constitute a veto of the project that was approved and licensed by FERC.’” Id.

Under the facts of this case, it is clear that the Toledo Bend Project (of which the SRA dam project is part) is federally licensed. This was confirmed by the deposition testimony of Linda Curtis-Sparks, former Executive Director of the SRA. She explained that it was constructed for “water conservation, power generation, and recreation” and that the emphasis of “economic development” was later added. She denied that the dam’s purpose was flood control.

Additionally, it is clear that the SRA operated the dam and controlled the reservoir under the dictate of FERC-approved guidelines. The plaintiffs do not argue that the SRA failed to comply with those guidelines and did not present evidence in this regard. Further, the submissions include a 2003 FERC Ruling by which the FERC denied a request by a residents’ organization, the Sabine River Action Coalition, to alter the minimum reservoir operating level for the Toledo Bend Project in the event of future rainfall events. That Ruling provides, in part, that:

Our evaluation of the operation of the Toledo Bend Dam during flood-flow events determined that the severity of the flooding is dependent upon many factors, including the duration of the storm, amount of rainfall, the path of the storm, and the saturation level of the basin during the flood event. The Toledo Bend Dam was not designed as a flood control dam. Review of historical flood-flow data indicates that the construction and operation of the Toledo Bend Dam has not increased the incidence of downstream flooding. In some flood events, the dam has been beneficial by delaying the flood flows by temporarily storing a portion of the flood inflow in the reservoir. The ability of the project to pre-release flow to obtain significant reservoir storage in anticipation of high inflows is severely |4limited by the downstream development, particularly Deweyville, Texas. Therefore, to obtain flood control benefits, operation of the project would need to be changed to permanently lower the project reservoir level to provide flood control storage. Significantly lowering the reservoir to the extent necessary to provide appreciable flood control benefits would adversely impact the established reservoir recreation activities and power development.

The FERC also denied a rehearing from that ruling.

The United States District Court for the Western District of Louisiana recently considered Jeff Simmons v. Sabine River Auth. of La., 2:10-DV-1846, 2012 WL 1458088 (W.D. La. filed Apr. 26, 2012), wherein the plaintiffs sought property damages due to flooding as well as an injunction to alter the operational requirements now at issue. Citing the 2003 FERC Ruling in which it declined to alter the guidelines, the district court explained that the plaintiffs’ “claims for injunctive relief effectively amount to attempts to use state tort law to have this court mandate the changes FERC denied.” Id. It similarly rejected the plaintiffs’ monetary claims insofar as “the FPA cannot reasonably be interpreted to preserve state law claims for damages arising out of conduct which FERC has expressly declined to prohibit.” Id.

Like the claim presented in Jeff Simmons, I find that the plaintiffs in this case essentially question the SRA’s operation of its flood gates in compliance with the federally-approved policies and procedures. Here, they contend that the SRA was negligent under state tort law by failing to abide by standards other than those prescribed by the FERC, i.e., differing state standards presumably required by state negligence standards or the demands of La.R.S. 38:2325. Inherent in the plaintiffs’ argument is the premise that those standards vary from those federally-approved policies and procedures at issue. As noted in Jeff Simmons, the FERC has specifically declined to adopt those requests. Therefore, I conclude that application of state tort law, in this context and to the extent it would impose | .^differing standards, is preempted by the reasoning expressed in both First Iowa and California v. FERC.

Additionally, and although the plaintiffs chiefly question the policies and procedures followed by the SRA in this flooding event, they also asserted general negligence and, in particular, contended in their petition that the SRA should have provided transportation for those affected by the flooding event. In this regard, I find that the plaintiffs’ claims fall on an evidentiary basis.

It is clear that the plaintiffs would bear the burden of proof on these assorted and general negligence claims at trial. According to La.Code Civ.P. art. 966(C)(2), the relator, as the nonmoving party, was only required to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, as the non-moving party, the plaintiffs were required to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial.

Here, the relator points out that the plaintiffs have not supported their claims of negligence with a factual basis. Even when considered collectively, the parties’ submissions in this case do not reveal that the plaintiffs will be able to sustain their burden of proving their negligence claims at trial. Although the plaintiffs alleged that the SRA was obligated to provide alternate transportation for the children affected by the flood, they have not directed the court to any law requiring it to do so. Neither have they presented testimony indicating that such a plan, to be executed by the SRA, was customary, feasible, or reasonable given the flooded conditions. Similarly, they have not put forth evidence demonstrating in what way the SRA failed to adequately inform the residents of the hazards associated with the flooded river. The evidence indicates that these property owners knew of the likelihood of the flood, were aware of the rising, waters, evacuated, and returned to | f,their flooded property. The family members who testified acknowledged the dangers associated with attempts to navigate the swollen waterway.

In the end, the plaintiffs have only made various allegations of negligence, but have not produced any evidence in support of those claims. Therefore, in my opinion, La.Code Civ.P. art. 966(B) requires that summary judgment should have been entered as to any non-preempted claims.

For these reasons, I would grant the writ application.

      . The parties in the instant case and the parties in the Simmons v. Sabine River Authority case are not related.

      . In 1915, Congress enacted the LIA to expand the coverage of the BIA of 1911, which prohibited railroads from using a steam locomotive unless its boiler and parts were in “proper condition and safe to operate.” The LIA expanded the BIA's coverage to the “entire locomotive and all parts and appurtenances thereof.” To ensure compliance, the statute required that locomotives be inspected by the Interstate Commerce Commission (now the Department of Transportation).

      . Although Congress did not express an intent to preempt more stringent state safety regulations for locomotive workers in either the BIA or LIA, the Napier court found the intent to preempt was implied by the statute's overall purpose. However, considering the clear intent of the BI A/LI A was to protect locomotive workers, it is difficult to rationalize how preempting more stringent safety regulations advances that intent. It is ironic that the result of the Kums holding, in practical effect, means that a statute enacted approximately 100 years ago by Congress to protect locomotive workers from potentially dangerous equipment now serves to protect the manufacture of that equipment from liability should these workers suffer injury as a result of that equipment. Although Associated relies heavily on the holding in Kums, Plaintiffs could reasonably argue that case is an anachronism in the law which more recent minds may not follow in finding field preemption in other federal regulatory schemes.