text:
    Roger C. PRICE v. Venetia MICHAELS, Warden; et al.
    No. 2010-CI-0502.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Price, Roger C.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 558,433; to the Court of Appeal, First Circuit, No. 2009 CA 1401.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. James JONES v. STATE of Louisiana.
    No. 2010-KH-0504.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Jones, James; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 8302-05; to the Court of Appeal, Third Circuit, No. KA 09-1453.

Denied.


text:
    STATE of Louisiana v. Robert Henry ELZY, Jr.
    No. 2010-K-1281.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Elzy Jr., Robert Henry; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 106864; to the Court of Appeal, First Circuit, No. 2009 KA 2263.

Denied.


text:
    STATE ex rel. Malcolm WINN v. STATE of Louisiana.
    No. 2010-KH-1291.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Winn, Malcolm; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 456-755; to the Court of Appeal, Fourth Circuit, No. 2010-K-0569.

Denied.


text:
    STATE of Louisiana v. Edward WILLIAMS, IV.
    No. 2010-KP-1435.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Williams IV, Edward; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 377430; to the Court of Appeal, First Circuit, No. 2010 KW 0283.

Denied.


text:
    STATE of Louisiana v. Wayne DELAGARDELLE, Jr.
    No. 2010-KP-1485.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Delagarclelle Jr., Wayne; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 04-8168; to the Court of Appeal, Fifth Circuit, No. 10-KH-282.

Denied.


text:
    STATE of Louisiana v. Jamie JOHNSON.
    No. 2010-KP-1505.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Johnson, Jamie; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Franklin, 5th Judicial District Court Div. C, No. 2004-380F; to the Court of Appeal, Second Circuit, No. 45624-KW.

Denied.


text:
    STATE of Louisiana v. Joseph COSIMINI.
    No. 2010-KP-1600.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Cosimini, Joseph; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. G, No. 21531; to the Court of Appeal, First Circuit, No. 2010 KW 0545.

Denied.


text:
    STATE of Louisiana v. Keith JENKINS.
    No. 2010-KO-1926.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Jenkins, Keith; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 476-958; to the Court of Appeal, Fourth Circuit, No. 2009-KA-1665.

Denied.


text:
    STATE of Louisiana v. Daniel L. PEGUES.
    No. 2010-KO-2058.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Pegues, Daniel L.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 6894-07; to the Court of Appeal, Third Circuit, No. 09-1089.

„ . , Denied.


text:
    STATE of Louisiana v. Robert WILLIAMS.
    No. 2010-KO-2083.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Williams, Robert; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 08-1883; to the Court of Appeal, Fifth Circuit, No. 10-KA-51.

Denied.


text:
    STATE of Louisiana v. James JONES.
    No. 2010-KO-2132.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Jones, James; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. 0, No. 8302-05; to the Court of Appeal, Third Circuit, No. 09-1453.

Denied.


text:
    STATE of Louisiana v. Louis LAMONICA.
    No. 2010-K-2135.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Lamonica, Louis; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. H, No. 502,220; to the Court of Appeal, First Circuit, No. 2009 KA 1366.

Denied.


text:
    STATE of Louisiana v. George Earl WHITE, Jr.
    No. 2010-K-2136.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re White Jr., George Earl; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Grant, 35th Judicial District Court Div. 0, No. 08-079; to the Court of Appeal, Third Circuit, No. 09-1500.

Denied.


text:
    STATE of Louisiana v. Carl J. PELLEGRIN.
    No. 2010-KO-2308.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Pellegrin, Carl J.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 464,660; to the Court of Appeal, First Circuit, No. 1010 KA 0286.

Denied.


text:
    STATE of Louisiana v. Ceionne BROCK.
    No. 2010-KO-2324.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Brock, Ceionne; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 320-613; to the Court of Appeal, Fourth Circuit, No. 2009-KA-1294.

Motion denied. Writ denied.


text:
    STATE ex rel. Tyrone D. INGRAM v. STATE of Louisiana.
    No. 2010-OK-2413.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Ingram, Tyrone D.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 422,169; to thé Court of Appeal, First Circuit, No. 2004 KA 1602.

Denied. Because relator has previously exhausted direct review of his conviction and sentence in the court of appeal and in this Court, he must first file any additional claims for relief in a application for post-conviction relief directed to the court in which he was convicted, La.C.Cr.P. art. 926, subject to the time limits imposed by La.C.Cr.P. art. 930.8.


text:
    Susan Henderson MONTGOMERY v. ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND.
    No. 2010-C-2535.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Montgomery, Susan Henderson; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 2008-8619; to the Court of Appeal, Fourth Circuit, No. 2009-CA-1670.

Denied.

VICTORY, KNOLL and GUIDRY, JJ., would grant.


text:
    STATE of Louisiana v. Demond TAYLOR.
    No. 2010-KK-2555.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, Nos. 493-630, 493-601; to the Court of Appeal, Fourth Circuit, No. 2010-K-1223.

Denied.

KNOLL, GUIDRY and CLARK, JJ., would grant.


text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, in the Interest of P.B. v. Michael REED.
    No. 2010-C-2611.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Reed, Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, Jefferson Parish Juvenile Court, No. 2007-NS-1169; to the Court of Appeal, Fifth Circuit, No. 10-CA-410.

Denied.

KNOLL, J., would grant.


text:
    Franklin BIANCHINI v. Joshua D. MORAN, XYZ Insurance, Vickie M. Moran, QRS Insurance, Imperial Fire & Casualty Insurance Company, as the Uninsured/Underinsured Motorist Carrier of Franklin Bianchini, and Cambridge, as the Uninsured/Underinsured Motorist Carrier of Fedex Freight System.
    No. 2010-C-2817.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Discover Property & Casualty Insurance Company; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 113-316-E; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0817.

Denied.

VICTORY and WEIMER, JJ., would grant.


text:
    Philip M. BAPTISTE, et al. v. Langdon H. STONE, et al.
    No. 2010-C-2819.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Baptiste, Phillip M.; Phillip M. Baptiste Ins. Agency Inc.; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2005-04658; to the Court of Appeal, Fourth Circuit, No. 2010-C-0116.

Denied.

KNOLL, J., would grant.


text:
    Anthony N. JOHNSON and Bernadette Johnson v. 1425 DAUPHINE, L.L.C.
    No. 2011-C-0001.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Johnson, Anthony N. et al.; Johnson, Bernadette; —Plaintiff(s); Applying For Writ of Certiorari and/pr Review, Parish of Orleans, ADR Inc., No. 08-683; Civil District Court Div. D, No. 2008-10691; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0793.

Denied.


text:
    Philip F. COSSICH, Jr., individually and as a Member and Chairperson of The Plaquemines Parish Charter Commission, James F. Gasquet, III, Individually and as a Member and Vice Chairperson of the Plaquemines Parish Charter Commission, Robert L. Lobrano, et al. v. PLAQUEMINES PARISH GOVERNMENT, William H. Nungesser, in his Capacity as Plaquemines Parish President, Plaquemines Parish Council, Don Beshel, Keith Hinkley, Jerry Hodnett, Stuart J. Guey, Jr., Anthony Buras, Burghart Turner, John J. Friedman, Lynda G. Banta, and Marla Cooper, etc.
    No. 2011-C-0003.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Plaquemines Parish Council; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 56-885; to the Court of Appeal, Fourth Circuit, No. 2009-CA-1522.

Denied.


text:
    STATE of Louisiana v. Monica M. ROMERO.
    No. 2011-KK-0004.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Romero, Monica M.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. B, Nos. 09-MISD-094414, 09-FELN-024578; to the Court of Appeal, First Circuit, No. 2010 KW 1931.

Denied.


text:
    POLARIS ENGINEERING, INC. v. PELICAN REFINING COMPANY, LLC.
    No. 2011-CC-0005.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re James River Insurance Company; Maryland Casualty Company; —Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2006-2137; to the Court of Appeal, Third Circuit, No. CW 10-01354.

Denied.


text:
    POLARIS ENGINEERING, INC. v. PELICAN REFINING COMPANY, LLC.
    No. 2011-CC-0006.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Polaris Engineering, Inc.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2006-2137; to the Court of Appeal, Third Circuit, No. CW 10-01354.

Denied.


text:
    James and Rebecca WALLACE, Sandra Quillin, George and Dellarene Hodges, and Raphael and Dianne Orgeron, Individually and on behalf of all others similarly situated v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION and Anpac Louisiana Insurance Company.
    No. 2011-C-0007.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Wallace, James et al.; Wallace, Rebecca; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 52-975; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0647.

Denied.

KNOLL, J., would grant.


text:
    Lisa PREMEAUX v. The TORO COMPANY, M.A. Allen Real Estate, Inc., Valley Builders, Inc., ABC Insurance Company, XYZ Insurance Company and 123 Insurance Company.
    No. 2011-CC-0018.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Valley Builders, Inc.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. C, No. 80,831; to the Court of Appeal, First Circuit, No. 2010 CW 1535.

Denied.


text:
    Gary LONG v. AMERICAN SECURITY INSURANCE COMPANY.
    No. 2011-C-0026.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Long, Gary; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2007-9496; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0026.

Denied.


text:
    Howard F. DUSON, Jr. and Virginia J. Duson v. BINTLIFF PROPERTIES LIMITED PARTNERSHIP, et al.
    No. 2011-CC-0029.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Crown Central LLC; Ci*own Central Petroleum Corporation; —Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. J, No. 84,253; to the Court of Appeal, Third Circuit, No. CW 10-01181.

Denied.


text:
    Claude Edward SPARKS and Linda G. Sparks v. UNITED TITLE & ABSTRACT, LLC and First American Title Insurance Company.
    No. 2011-C-0030.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Sparks, Claude Edward et ah; Sparks, Linda G.; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 531,645; to the Court of Appeal, Second Circuit, No. 45,766-CA.

Denied.


text:
    Raymon Lee HARTZO and Debra Elaine Hartzo v. AMERICAN NATIONAL PROPERTY AND CASUALTY INSURANCE COMPANY and Allstate Insurance Company.
    No. 2011-C-0041.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re ANPAC Louisiana Ins. Co.; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 523,390; to the Court of Appeal, First Circuit, No. 2010 CA 0247.

Denied.


text:
    STATE of Louisiana v. Wayne C. PALMORE (In re Stuart Weg).
    No. 2011-KK-0044.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Weg, Stuart; —Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 494-551; to the Court of Appeal, Fourth Circuit, No. 2010-K-1408.

Denied.


text:
    Pamela SKINNER, et al. v. CHRISTUS ST. FRANCES CABRINI HOSPITAL, et al.
    No. 2011-C-0045.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Skinner, Estate of, Robert W.; Skinner, Pamela et al.; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 220,689; to the Court of Appeal, Third Circuit, No. 10-817.

Denied.

JOHNSON, J., would grant.


text:
    Earl BRASSEAUX v. Donald J. PENNY, ABC Insurance Company, Walter D. Pray and/or Dub’s Tree Care & Removal, Inc., Carl Ferguson and/or Ferguson Tree Care, L.L.C., James A. Teague Rental Equipment, Inc., and/or Teague Rental Equipment, Ozark Insurance Company, Def Insurance Company and-GHI Insurance Company, USAgencies Casualty Insurance Company, Inc., Colony Insurance Company, Western World Insurance Company, et al.
    No. 2011-CC-0050.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Western World Insurance Company; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 569,981; to the Court of Appeal, First Circuit, No. 2010 CW 1652.

Denied.

CLARK, J., would grant.


text:
    Alfreda Ruth TAYLOR, et al. v. WAL-MART STORES, INC., et al.
    No. 2011-CC-0052.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Claims Management, Inc.; Wal-Mart Louisiana, LLC; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. C-2009-0220; to the Court of Appeal, Third Circuit, No. CW 10-01255.

Denied.


text:
    Gerald John ROUSSEAU v. Rebecca Dufrene BADEAUX and Patricia Badeaux Rousseau.
    No. 2011-C-0054.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Rousseau, Gerald John; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. E, No. 28,992; to the Court of Appeal, First Circuit, No. 2010 CA 0832.

Denied.


text:
    Martin PETITJEAN II, et al. v. SAMSON CONTOUR ENERGY E & P, LLC, et al.
    No. 2011-C-0057.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Petitjean II, Martin et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. E, No. 200810299J; to the Court of Appeal, Third Circuit, No. 10-496.

Denied.


text:
    STATE of Louisiana v. Kelly A. LANDRY.
    No. 2011-KK-0067.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Landry, Kelly A.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. G, Nos. 24,656, 94,555; to the Court of Appeal, First Circuit, No. 2010 KW 1981.

Denied.


text:
    STATE ex rel. Angelo A. GONZALEZ v. STATE of Louisiana.
    No. 2011-KH-0186.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Gonzalez, Angelo A; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 10-CR5-107523; to the Court of Appeal, First Circuit, No. 2010 KW 1794.

Denied.


text:
    Angela LIVINGS v. ACADIAN AMBULANCE SERVICE, INC.
    No. 2011-CC-0056
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   In re Acadian Ambulance Service, Inc.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 2010-3500; to the Court of Appeal, Third Circuit, No. CW 10-01220.

Granted. The definition of medical malpractice set forth in La.R.S. 40:1299.41(A)(13)includes the “loading and unloading of a patient.” Accordingly, the judgment of the district court is reversed, and relator’s' exception of prematurity is granted.


author: WHIPPLE, J. McCLENDON, J.,

text:
    Janet Sue MULLER v. COLONY INSURANCE COMPANY and William H. Muller.
    No. 2010 CA 0688.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 9, 2010.

      William T. Lowrey, Jr., Keith L. Richardson, Baton Rouge, LA, for Plaintiff/Ap-pellee, Janet Sue Muller.
    Rodney J. Lacoste, Jr., New Orleans, LA, Paul D. Palermo, John M. Herke, Metairie, LA, for Defendant/Appellant, Colony Insurance Company.
    Before CARTER, WHIPPLE, GAIDRY, McDonald, and McClendon, jj.
   WHIPPLE, J.

|2In this appeal, an insurance company challenges the trial court’s ruling, which found that the commercial general liability policy at issue provided coverage for the plaintiffs injuries. Plaintiff has answered the appeal, challenging issues of allocation of fault and quantum. For the following reasons, we amend and affirm.

FACTS AND PROCEDURAL HISTORY

Janet Sue Muller is a sole proprietor doing business as Sno-Mobile of Louisiana, a snow-party business. Conducting a snow party entails creating snow from shaved ice, spreading the snow on a tarp with a rake or squeegee, and coordinating snow games. Normally, conducting a snow party is a two-person job, and Janet, her son and his wife, her daughter and her daughter’s husband, and her daughter-in-law’s mother and brother all assisted in conducting snow parties for Janet’s business. Janet’s husband, William Muller, periodically performed minor maintenance work on the ice-shaving machines, but he rarely assisted in actually conducting snow parties.

On December 24, 2005, Janet’s son and his wife were scheduled to conduct a snow party at an apartment complex in Baton Rouge. However, when her son informed Janet that he and his wife could not conduct the party, Janet asked her husband William to assist her with the party. William’s responsibilities at the party included positioning the truck and trailer with the ice-shaving equipment and shaving the ice into snow, while Janet was responsible for spreading the snow on the tarp. Janet was also trying to keep the children off the tarp until they had finished creating and spreading the snow.

|sWhen William began shaving the ice, he encountered a problem with the ice-shaving machine. Specifically, the belt connected to the top and bottom pulleys was squealing, thus requiring William to remove the protective guard or cover from the machine to tighten the belt. After tightening the belt, William started the machine again to test it, and when he was satisfied that the machine was again working properly, he resumed shaving the block ice into snow. However, after adjusting the belt, William failed to replace the protective cover over the pulley mechanism of the ice-shaving machine.

Meanwhile, Janet, who had not seen William remove the protective cover from the machine and who was unaware that he had removed it, began walking toward the location where William was shaving ice in order to spread the snow he had shaved toward the middle of the tarp. However, as she approached the back of the truck where William was working, Janet slipped on the tarp and reached out to grab onto the truck to steady herself. Instead of grabbing onto the truck, Janet apparently reached beyond the side panel of the truck, and her right hand became entangled in the pulley or belt, which was no longer shielded by the guard or cover. As a result of the accident, Janet’s right small finger and ring or long finger were seriously injured, with the small finger being traumatically amputated at the base of the finger. Janet subsequently underwent numerous surgeries and now has permanent disability of her right hand.

On July 25, 2006, Janet filed suit against William, alleging that he was negligent in causing the accident, and Colony Insurance Company (“Colony”), alleging that it had issued an insurance policy insuring William from liability for his negligence herein. Thereafter, Colony and Janet filed cross-motions for partial summary judgment on the issue of insurance ^coverage, with Colony contending that the policy did not provide coverage to William for Janet’s injuries which were incurred within the course of operating Janet’s business and with Janet contending the Colony policy did provide coverage for William’s alleged negligent acts.

Following a hearing on the motions, the trial court rendered judgment, granting Janet’s motion for summary judgment and denying Colony’s motion. Although Colony filed a writ application with this court, seeking review of the trial court’s finding of coverage, this court denied the writ application on the basis that an adequate remedy existed on appeal after the rendition of final judgment on the merits.

Also, William filed an exception of no right of action in response to Janet’s suit against him, averring that because he is Janet’s husband, he was statutorily exempt from liability pursuant to LSA-R.S. 9:291, which provides that a wife cannot sue her husband in .tort for negligent injury while married. Thereafter, on joint motion of Janet and William, the trial court rendered judgment dismissing without prejudice Janet’s claims against William, while reserving her right to proceed against Colony. Accordingly, the matter ultimately proceeded to trial against Colony only.

Following a bench trial, the trial court found that William and Janet were both negligent in causing the accident and assessed 40% fault to William and 60% fault to Janet. The court further found that Janet had suffered $140,000.00 in general damages, in addition to past- medical expenses, all of which it found to be related to the accident, with those amounts to be reduced by Janet’s comparative fault. However, the court found that Janet had failed to prove her entitlement to any future medical expenses. Accordingly, the trial court entered judgment in favor of Janet and against Colony in the amounts of $56,000.00 (representing general Isdamages of $140,000.00 reduced by Janet’s percentage of fault) and $18,889.41 (representing $47,223.53 in medical expenses reduced by Janet’s percentage of fault).

Janet then filed a motion for new trial, contending that the trial court’s. finding that she was 60% at fault in causing the accident was not suppoi'ted by the evidence presented at trial. Following a hearing on the motion, the trial court rendered judgment granting the motion for new trial and reapportioning fault 50% to Janet and 50% to William. • Accordingly, the judgment granting the motion for new trial awarded Janet $70,000.00 in general damages (representing a 50% percent reduction for her comparative fault) and $23,611.77 in past medical expenses (also representing a 50% percent reduction for her comparative fault).

From these judgments, Colony appeals, assigning as error the trial court’s finding that Colony’s policy provided coverage to William for his negligence in causing the injuries sustained by Janet, a named insured. Janet answered the appeal, contending that: (1) the trial court erred in casting her with any fault for the injuries she suffered; (2) the trial court erred in failing to award an adequate amount of general damages considering the nature and extent of her injuries; and (3) the trial court erred in failing to award Janet any sum for future medical expenses.

DISCUSSION

Coverage under the Colony Policy

(Colony’s Assignment of Error)

In its sole assignment of error, Colony challenges the trial court’s finding that the commercial general liability (CGL) policy issued by Colony provided coverage to William for his negligence in causing the injuries sustained by Janet, its named insured. An insurance contract or policy is a |ficonventional obligation that constitutes the law between the parties to the contract, the insured and the insurer. Grace v. Crespo, 2007-0397 (La.App. 1st Cir.9/19/07), 970 So.2d 1007, 1012, writ denied, 2007-2010 (La.12/7/07), 969 So.2d 636. The goal of judicial interpretation of a policy’s wording is to determine the intent of the contracting parties. See LSA-C.C. art. 2045; Grace, 970 So.2d at 1012. If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. Sanders v. Ashland Oil, Inc., 94-1469 (La.App. 1st Cir.5/5/95), 656 So.2d 643, 647, writ denied, 95-1797 (La.11/3/95), 661 So.2d 1389. However, any ambiguous provisions in an insurance contract must be construed in favor of coverage to the insured and against the insurer who issued the policy. Moreover, exclusionary clauses in insurance contracts are strictly construed against the insurer. Sanders, 656 So.2d at 647.

Thus, in determining whether the Colony policy affords coverage to William for Janet’s injuries, we must examine the applicable policy provisions. Regarding coverage provided by the policy, Section I of the policy, entitled “Coverages,” provides, in pertinent part, as follows:

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies.

With regard to who is considered an insured under the policy, the Declarations page of the Colony commercial general liability policy designates the insured as Sue Muller d/b/a “Snomobile of Louisiana.” Additionally, section II of the Colony policy, entitled “Who is an Insured,” defines “insured,” in pertinent part, as follows:

1. If you are designated in the Declarations as:
|7a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. [Emphasis added.]

With regard to whether William comes within the definition of an insured under subsection l.a. of Section II of the Colony policy, we first note that Janet is designated as the insured on the Declarations page, and it also is undisputed that William is Janet’s spouse and was her spouse at the time of the accident in question. Moreover, the evidence presented at trial clearly establishes that the incident at issue arose out of the conduct of Janet’s business, Sno-Mobile of Louisiana. William was acting in the conduct of Janet’s business when he removed the guard or cover from the pulley mechanism of the ice-shaving machine in an effort to adjust the machine so he could create snow for the party. Accordingly, under subsection l.a. of Section II of the Colony policy, William qualifies as an insured.

Nonetheless, Colony argues that isolating this portion of the insurance contract to find that the Colony policy insured William for the losses suffered by Janet ignores not only the remainder of the provision defining an insured, but also the intent of the policy as a whole. Specifically, Colony asserts that William should not be afforded coverage because: (1) the true intent of the policy was to protect an insured from damages caused to third parties; and (2) he was a “volunteer worker” as defined by the policy.

Regarding the intent of the policy, Colony first asserts that CGL policies are designed to protect the insured from losses caused to third parties and are not designed to cover damages sustained by an insured as the result of negligence of another insured. Thus, Colony contends, a finding of coverage herein would pervert the true intent of the policy. In support of its | ^argument that CGL policies are not designed to cover an insured for his negligence in causing damages to another insured, Colony relies upon the Fourth Circuit case of First Mercury Syndicate, Inc. v. New Orleans Private Patrol Service, Inc., 600 So.2d 898 (La.App. 4th Cir.), writ denied, 608 So.2d 169 (La.1992). In First Mercury Syndicate, an insurer which is-súed a CGL policy to a closely held family corporation filed suit seeking a declaratory judgment that its CGL policy did not provide coverage in a separate suit filed by one of the minority shareholders. In that separate suit, a minority shareholder of the corporation sued the corporation and the other shareholders, alleging that he was wrongfully discharged as president and subsequently removed as director and that, as a result, he suffered a loss of wages and benefits. First Mercury Syndicate, Inc., 600 So.2d at 899-900.

In appealing the trial court’s finding that the CGL policy provided coverage, the CGL insurer argued: (1) that the discharge of the minority shareholder was an intentional act and, thus, not considered an “accident” pursuant to the policy’s definition of an “occurrence”; and (2) that the Employers Liability Exclusion endorsement, which excluded coverage for employment-related claims, also applied to preclude coverage in the suit by the former corporate president. First Mercury Syndicate, Inc., 600 So.2d at 900.

In reversing the trial court’s finding of coverage, the Fourth Circuit did not specifically adopt either of the arguments of the CGL insurer, but rather determined that its “reading of the insurance policy in its entirety” led to the conclusion that the CGL policy did not provide coverage. First Mercury Syndicate, Inc., 600 So.2d at 900. While not citing any specific provision of the policy, the court held that “[t]he clear intent of the policy was to protect the owners and shareholders ... from losses caused to third |9parties related to the conduct of their security guard business.” First Mercury Syndicate, Inc., 600 So.2d at 900. The court concluded that the acts allegedly committed by the other officers and shareholders in terminating the president’s employment and removing him from the board were not acts directly related to the conduct of - the corporation’s security guard business, but rather were acts related to the control of the corporation. First Mercury Syndicate, Inc., 600 So.2d at 901.

However, the Fourth Circuit then went further in its analysis and additionally concluded that the insurer was not required to provide coverage where all the parties to the litigation were insured under the same policy, holding that “[a]s a matter of law and policy, co-insured parties to a policy are barred from recovering- under such policies.” First Mercury Syndicate, Inc., 600 So.2d at 901. Thus, the appellate court concluded that the CGL policy did not provide coverage in the separate suit by one shareholder and former officer against the corporation and other shareholders and officers. First Mercury Syndicate, Inc., 600 So.2d at 901-902.

With regard to the Fourth Circuit’s conclusion in First Mercury Syndicate that the allegedly wrongful acts therein were not directly related to the conduct of the corporation’s business, we note that the facts of the instant case are readily distinguishable. As stated above, William was clearly acting in the conduct of Janet’s business when he removed the guard or cover from the pulley mechanism of the ice-shaving machine. Thus, First Mercury Syndicate is factually distinguishable from the instant case.

Moreover, to the extent that the Fourth Circuit’s opinion sets forth a blanket statement therein that “[a]s a matter of law and policy, co-insured parties to a policy are barred from recovering under such policies,” we disagree with and decline to follow this holding. Indeed, as succinctly |10noted by Professors McKenzie and Johnson in- analyzing the. First Mercury Syndicate case and the above-quoted statement therein: “This statement is clearly wrong. There is no statutory or jurisprudential bar that prevents an injured party, solely because he is also an insured, from recovering under a liability policy based upon the fault of another insured.” William Shelby McKenzie & H. Alston Johnson, III, Insurance Law and Practice, 15 La. Civ. Law Treatise § 182, pp. 492-493 (3d ed.2006). Professors McKenzie and Johnson further noted:

Numerous intrafamily claims under automobile and personal liability coverages involve liability claims by an insured. Instead of barring such claims, Louisiana law actually fosters them by depriving the insurer of the right to assert interspousal and intrafamily immunity and exempting such suits from the requirement that the insured be named as a party, in a direct action.

William Shelby McKenzie & H. Alston Johnson, III, Insurance Law and Practice, 15 La. Civ. Law Treatise § 182, at p. 493 n. 19. See e.g. Doughty v. Insured Lloyds Insurance Co., 576 So.2d 461 (La.1991), wherein a wife recovered damages for the death of her son from the CGL insurer which insured her husband’s business, even though the wife was also insured under the CGL policy as the spouse of the named insured.

While Colony acknowledges that the First Mercury case “may have overstated” the law in holding that co-insured parties to a policy are barred from recovering under such policies, Colony nonetheless argues that First Mercury was correct in its statement that-the clear intent of the CGL policy was to protect the insureds from damages caused to third parties, rather than to other insureds. However, the intent of the parties to an insurance policy as to the extent of coverage is determined from the particular language of the policy itself. Highlands Underwriters Insurance Company v. Foley, 96-1018 (La.App. 1st Cir.3/27/97), 691 So.2d 1336, 1340. The clear and | nunambiguous language of the CGL policy at issue herein provides coverage for the negligence of William, as the spouse of Janet, the named insured, for the conduct of Janet’s business, Sno-Mobile of Louisiana. There is nothing in the language of subsection 1(a) of Section II of the Colony policy, the subsection granting coverage to the spouse of the named insured, that limits such coverage where the damages are sustained by another insured under the policy.

Moreover, we note that Section IV of the policy addresses the commercial general liability conditions of the policy and makes it clear that, subject to the limits of the policy, each insured has separate coverage as if each were separately insured with a distinct policy of insurance. See Sanders, 656 So.2d at 648. Specifically, section IV, subpart 7, entitled “Separation of Insureds,” provides that “[e]xcept with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insurance, this insurance applies: ... as if each Named Insured were the only Named Insured; and ... Separately to each insured against whom claim is made or ‘suit’ is brought.” (Emphasis added). Therefore, under the clear wording of the Colony insurance contract, subject to the limits of liability, each insured, including William, as Janet’s spouse, with respect to the conduct of the snow party business, is entitled to coverage under the policy. See Sanders, 656 So.2d at 648. Thus, this provision further negates Colony’s argument that it was not the intent of the policy provide coverage to an insured for losses suffered by another insured.

Accordingly, we find no merit to Colony’s argument that CGL policies are designed only to protect the insured from losses caused to third parties and are not designed to cover damages sustained by an insured as the |, ¿result of negligence of another insured, and, accordingly, that a finding of, coverage ■ herein would pervert the true intent of the policy. The clear wording of the CGL policy at issue dictates a different result.

Turning to Colony’s second argument in support of its contention that coverage should not be afforded for William’s negligence, Colony assei'ts that because William was a “volunteer worker” as defined in .the policy, coverage for his negligence in injuring the named insured is precluded under the policy. The language upon which Colony relies for this contention is contained in subsection 2,a.(1)(a) of Section II, “Who is an Insured,” which provides as follows:

2. Each of the following is also an insured:
a. Your “volunteer workers” only while performing duties related to the conduct of your business, or your “employees”, other than either your “executive officers” (if you are an organization other than a partnership, joint venture or limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these “employees” or “volunteer workers” are insureds for:
(1) “Bodily injury” or “personal and advertising injury”:
(a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), to a co-“employee” while in the course of his or her employment or performing duties related to the conduct of your business, or to your other “volunteer workers” while performing duties related to the conduct of your business[.]

Pursuant to this policy language, the Colony policy also insures volunteer workers, but that coverage is restricted or limited in that it does not extend to bodily injury to the named insured. Colony asserts that this language of subsection 2.a. of Section II excludes coverage herein because Janet, the named insured, was injured by William, when he was acting as a | ls“volunteer worker” in the conduct of Janet’s business. However, we note at the outset that subsection 2. of Section II provides that “[e]ach of the following is also an insured” under the policy. It provides coverage, in addition to that coverage already provided in subsection l.a. of Section II, to certain individuals including volunteers, albeit more restricted or limited than the coverage afforded in subsection l.a. of Section II.

In the instant case, coverage for William’s negligence derives from subsection l.a. of Section II, as the spouse of the named insured in the conduct of the named insured’s business. The coverage afforded in subsection l.a. of Section II is not restricted or limited to exclude coverage for injury to the named insured, as is the coverage provided in subsection 2.a. Because coverage for William’s negligence is derived from his status as Janet’s spouse, it derives independently from his role as a volunteer worker. Consequently, coverage is afforded for William’s negligence pursuant to subsection l.a., and it is thus unnecessary to determine if William would “also” be an insured under subsection 2.a., which provides more limited coverage. Accordingly, we likewise find no merit to Colony’s argument that the CGL policy does not provide coverage for William’s negligence because he was acting as a volunteer worker. The trial court correctly determined that the CGL policy issued by Colony herein provides coverage for Janet’s injuries caused by William’s negligence in the conduct of the business of Sno-Mobile of Louisiana.

Fault of Janet

(Assignment of Error No. 1 in Answer to Appeal)

In her answer to the appeal, Janet challenges several findings by the trial court, including the trial court’s apportionment of fault. Specifically, she avers that the trial court erred in finding that she was comparatively 114negligent in causing her own injuries and, alternatively, in assigning her 50% fault.

To prove that a plaintiff is comparatively negligent, the defendant must prove that the plaintiff was contributorily negligent and that such negligence was a proximate cause of the resulting injury. Derouen v. Mallard Bay Drilling, LLC, 2000-1268 (La.App. 1st Cir.6/22/01), 808 So.2d 694, 704. Thus, in determining whether Janet .was comparatively negligent in causing her own injuries, the trial court had to determine whether she failed to act as a reasonably prudent person under the- circumstances, whether her conduct was a cause-in-fact of her injuries, and whether the risk of the injury she sustained was within the scope of protection afforded by the duty she breached. See Moory v. Allstate Insurance Company, 2004-0319 (LaApp. 1st Cir.2/11/05), 906 So.2d 474, 478, writ denied, 2005-0668 (La.4/29/05), 901 So.2d 1076.

In finding that Janet was comparatively negligent in causing her own injuries, the trial court found that Janet, as the owner of Sno-Mobile of Louisiana, had assigned her husband William to operate the ice-shaving machine and that Janet “was trying to do everything else” and was “somewhat in a hurry” when the accident happened. Ultimately, the trial court concluded that although William was actively at fault in causing the accident, Janet, as the owner of the business, was the person responsible for ensuring that the ice-shaving machine was being operated safely, which it was not at the time of the accident. Accordingly, the trial court, on motion for new trial, assigned Janet 50% fault for her passive fault in failing to 11sensure that the ice-shaving equipment was operated safely.

We find no manifest error in the trial court’s finding that Janet was also at fault in causing her own injuries. The record demonstrates that Janet was the sole proprietor of Sno-Mobile of Louisiana and that William was not involved in conducting, coordinating, or supervising the snow parties for Janet’s business. Indeed, except on rare occasions, William did not even attend the snow parties to assist Janet, and on the few occasions that he did attend, the only job he performed was shaving ice.

Janet, on the other hand, was involved in every aspect of her snow party business. Although she did not personally conduct every snow party for the business, when she did conduct a party, she took responsibility for coordinating with the customer regarding the placement of the tarp on which the ice is shaved, spreading the shaved ice over the tarp, supervising the children at the parties to ensure that they stay away from the truck, trailer, and ice-shaving machine, and conducting snow games with the children. It is clear from the record before us that Janet was responsible for conducting the party in a safe manner, and while she acknowledged that the ice-shaving machine can be dangerous and that operating the machine without the guard was unsafe, she further acknowledged that she did not oversee or supervise the operation of the machine at all. Janet further admitted that although she had approached the truck with the ice-shaving machine a number of times before the accident, she failed to observe that the guard had been removed because she was distracted and “completely” absorbed' in other things going on with the party. Considering the foregoing, we are unable to find manifest 11Berror in the trial court’s determination that Janet was also negligent in causing her own injuries.

Moreover, with regard to the trial court’s apportionment of 50% fault to Janet, in considering the factors set forth in Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La.1985), we cannot conclude that the trial court was manifestly erroneous in assessing 50% fault to Janet. See Duzon v. Stallworth, 2001-1187 (La.App. 1st Cir.12/11/02), 866 So.2d 837, 862, writs denied, 2003-0589, 2003-0605 (La.5/2/03), 842 So.2d 1101, 1110. Clearly, Janet’s conduct in slipping and attempting to grab onto the side of the truck resulted from mere inadvertence. However, while she was aware that the operation of the ice-shaving machine was dangerous, she made no attempt to monitor or oversee its operation during the party to ensure that it was being operated safely. While William’s actions in operating the ice-shaving machine without replacing the guard were perhaps more directly related to the accident, Janet’s failure to monitor the operation of the ice-shaving machine for safety created a substantial risk that someone could be seriously harmed by the exposed mechanisms of the machine. Moreover, despite William’s experience with mechanical equipment, Janet was the person responsible for the overall safety of the event and the party with experience in conducting the snow parties. Thus, she was the party in a superior position to monitor the operations and demand that safety precautions be observed. - Moreover, from the record before us, it does not appear that there were any extenuating circumstances that required Janet to proceed in haste in retrieving a squeegee or rake to move the snow to the center of the tarp. Accordingly, we cannot conclude that the trial court’s assessment of 50% fault to Janet was manifestly erroneous.

117General Damages

(Assignment of Error No. 2 in Answer to Appeal)

In this assignment of error, Janet contends that the trial court abused its discretion in awarding her only $140,000.00 in general damages for her injuries. A plaintiff is entitled to recover for all damages necessary to compensate for the physical injuries suffered. Hymel v. HMO of Louisiana, Inc., 2006-0042 (La.App. 1st Cir.11/15/06), 951 So.2d 187, 204, writ denied, 2006-2938 (La.2/16/07), 949 So.2d 425. General damages are those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification or intellectual or physical enjoyment, or other losses of life or of lifestyle, which cannot really be measured definitively in terms of money. Hymel, 951 So.2d at 204-205.

The discretion vested in the trier of fact in awarding general damages is great, and even vast, such that an appellate court should rarely disturb such an award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The initial inquiry on appeal is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the much discretion of the trier of fact. Youn, 623 So.2d at 1260. Reasonable persons frequently disagree about the measure of damages in a pai'ticular case. Thus, it is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn, 623 So.2d at 1261.

|lsIn the instant case, Janet suffered a traumatic amputation of the right small finger at the base of the finger as well as injury to the right ring finger. She underwent surgery on the day of the accident, during which 15 procedures were performed on the two fingers. These procedures included debridement of the wounds, reattachment of the small finger, and implantation of fixation devices in both fingers. Janet initially remained hospitalized from December 24, 2005 until December 29, 2005. Despite efforts to reattach the right small finger, the tip of that finger did not survive. Thus, Janet had to undergo a second surgery on January 27, 2006, to amputate the tip of the right small finger.

On March 6, 2006, Janet underwent a third surgery to remove pins previously placed in the two fingers to facilitate healing of fractures and for debridement and a skin graft on the small finger. Thereafter, Janet, who is right-hand dominant, began developing problems with her left hand, such as numbness and tingling of the thumb and index finger. Her treating orthopedic surgeon diagnosed her condition as compression of the median nerve of the wrist, i.e., the nerve inside the carpal tunnel, otherwise known as carpal tunnel syndrome. Notably, he attributed this diagnosis to overuse of the left hand due to the injury to Janet’s right hand. Janet also developed contractures of the tendons in the right hand, which resulted from the flexor tendon retracting into the palm with the amputation of the small finger. Because of these problems, Janet was forced to undergo a fourth surgery on August 28, 2006, to release the contractures in the right hand and for carpal tunnel release on the left hand.

Since her accident, Janet -has suffered from pain in the right hand, and because of the nerve damage caused by the accident and surgeries, Janet has also developed hypersensitivity in the right hand. During her medical | ^treatment, Janet underwent extensive physical therapy, which she described as very painful, to combat the cont-ractures and the hypersensitivity. Nonetheless, she still suffers from limited range of motion and hypersensitivity in the right hand. Additionally, Janet has limited strength in her hand. As a result of Janet’s permanent loss and disability, her treating orthopedic surgeon assigned Janet a 15% whole person impairment rating.

Because of the pain and hypersensitivity in the right pain, Janet constantly guards that hand and has difficulty using the hand. Operating any type of machinery that vibrates, such as an automobile or vacuum cleaner, causes Janet pain, and she is no longer able to play the piano, which she did for her church.

Considering the foregoing and the record as a whole, as well as the vast discretion accorded the trier of fact in awarding general damages, we cannot say that the trial court abused its discretion in awarding Janet $140,000.00 in general damages. While Janet’s injuries are clearly serious and her pain is ongoing and while the award is seemingly on the low side for such injuries, we are unable to say the award was abusively low, given the trial court’s vast discretion.

However, because we conclude for the reasons set forth below that the trial court erred in failing to award Janet the cost of future surgery for trigger finger release, we find merit to her claim that she is entitled to damages for future pain and suffering that she will experience in conjunction with that surgery. Considering the condition of Janet’s hand, especially her hypersensitivity issues, the pain she hás experienced' in recovering from past surgeries, and the record as a whole, we amend the general damages award on appeal to award an additional sum of $15,000.00 for future pain and suffering related to the future trigger finger release surgery.

| go Future Medical Expenses

(Assignment of Error No. 3 in Answer to Appeal)

Janet further contends that the trial court erred in failing to award her any sum for future medical expenses. She avers that she should have been awarded sums for future treatment for possible recurrence of a trigger finger and for any increase in post traumatic arthritis in her right hand.

Although future medical expenses are by nature speculative, like any other element of damage, they must be established to some degree of certainty. Daigle v. United States Fidelity and Guaranty Insurance Company, 94-0304 (La.App. 1st Cir.5/5/95), 655 So.2d 431, 440. An award for future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost. Hymel, 951 So.2d at 206. In such a case, the court should award all future medical expenses which the medical evidence establishes that the plaintiff, more probable than not, will be required to incur. An appellate court should not set aside an award for future medical expenses absent an abuse of the trier of fact’s discretion. Hymel, 951 So.2d at 206.

In the instant case, the trial court did not award Janet future medical expenses, finding that there was not enough certainty in her treating physician’s testimony about future treatment to support such an award. Based upon our review of the record, while we conclude that the trial court erred in failing to award Janet the cost of future surgery for trigger finger release, we cannot conclude that the trial court was manifestly erroneous in refusing to award any other sums for future medical expenses.

With regard to Janet’s need for future trigger finger release, her treating orthopedic surgeon testified that Janet had been subjected to injections in the thumb for trigger finger and that 70% of patients who have 12Ta trigger finger injected will experience a recurrence of the problem. When the problem recurs, surgery is recommended, and her orthopedic surgeon testified that the cost of this surgery is approximately $8,500.00. Given the testimony clearly establishing, more probably than not, that she will suffer a recurrence of this problem, we conclude that the trial court erred in failing to find that Janet had proved future medical expenses for this surgery in the amount of $8,500.00. Thus, we will amend the judgment accordingly.

However, with regard to future treatment for any increase in post traumatic arthritis in the right hand, we note that Janet’s orthopedic surgeon testified that the risk is about 3% per year for the rest of Janet’s life and that it was “possible” that Janet, who was 64 years old at the time of his testimony, would need arthritis-related surgery. Given this testimony, we find no error in the trial court’s refusal to award any sums for this possible future treatment.

CONCLUSION

For the above and foregoing reasons, the January 11, 2010 judgment of the trial court is amended to award Janet the additional sum of $4,250.00, representing $8,500.00 in future medical expenses reduced by Janet’s 50% fault and the additional sum of $15,000.00 in general damages for future pain and suffering related to the future trigger finger release surgery, also reduced by Janet’s 50% fault. In all other respects, the judgment is affirmed. Costs of this appeal are assessed against Colony Insurance Company.

AMENDED AND, AS AMENDED, AFFIRMED.

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

McDONALD, J., concurs in part for reasons assigned by Judge McCLENDON and dissents as to the amount of the increase in general damage award.

McCLENDON, J.,

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

_JjThe policy in question is a Commercial General Liability Policy. Clearly, the purpose of this type of policy is to cover damages incurred by third parties to whom a named insured or their spouse may be liable, as opposed to damages incurred by a named insured. However, there is no statutory or jurisprudential bar that prevents an injured party, solely because he or she is also an insured, from recovering under a liability policy based upon the fault of another insured. See William Shelby McKenzie & H. Alston Johnson, III, Insurance Law and Practice, 15 La. Civ. Law Treatise § 182, p. 493 (3d ed.2006).

Under the specific language of the Colony policy at issue, an argument may be made that although Mr. Muller was not an insured in his capacity as a volunteer worker, he was an insured under the language of said policy as Mrs. Muller’s spouse. While I believe the Colony policy was not intended to provide coverage in this instance, especially given the general nature of a CGL policy, I am unable .to find the majority’s interpretation in favor of coverage in this instance so strained as to be unreasonable. See Gibbens v. Whiteside, 04-1222, p. 6 (La.App. 1 Cir. 5/6/05), 915 So.2d 866, 870, writ denied, 05-1525 (La.12/16/05), 917 So.2d 1116 (citing Cadwallader v. Allstate Ins. Co., 02-1637, p. 4 (La.6/27/03), 848 So.2d 577, 580). Further, given that ambiguous policy |2provisions must be construed against the insurer and in favor of coverage, I am constrained to conclude that the Colony policy provided coverage under these limited circumstances. Id.

However, I dissent to the extent that the majority awards additional damages. Although Dr. Peterson testified that 70 percent of patients who have a trigger finger injection will experience a recurrence of the problem, the trial court could reasonably have found that Mrs. Muller’s chance of recurrence was significantly reduced given the passage of time from the date of injury to the date of trial. Moreover, with regard to general damages, vast discretion is accorded the trier of fact in fixing such awards. LSA-C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 12 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, 172. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). In-reviewing the general damage award, I am unable to conclude that the trier of fact abused its vast discretion in assessing the amount of general damages and would affirm the trial court’s award. See Bellard v. American Cent. Ins. Co., 07-1335, pp. 29-30 (La.4/18/08), 980 So.2d 654, 674.

      . While the business name is listed as “Sno-mobile” of Louisiana in the petition, a check from an account bearing the name of the business lists the name as "Sno-Mobile" of Louisiana.

      . As stated above, the trial court initially assigned Janet 60% fault following trial, on the basis'that Janet, as the owner of the business, had a duty to see that the party was conducted safely and that while Janet was acting in haste, she acted in haste due to circumstances created somewhat by her making.

      . Significantly, the volunteer worker exception was not included under the "EXCLUSIONS" section of the policy, but rather that portion of the policy defining "WHO IS AN INSURED."

      . The trial court noted that three years had passed between the date of the accident and the date of trial.


author: WILLIAMS, J.

text:
    Shaneka Merrell CROCKETT individually and on Behalf Of Her Deceased Husband, Michael Crockett And Their Minor Children, M.C. and KC., and as Provisional Tutrix of D.J.D., T.D.C. and K.J.C. and the Estate of Michael Crockett, Plaintiffs-Appellants. v. THERRAL STORY WELL SERVICE, INC., et al., Defendants-Appellees.
    No. 45,716-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 5, 2011.

      Susan E. Hamm, for Appellants.
    Linda L. Smith, for Appellee, Therral Story Well Service, Inc,
    Nora M. Stelly, Lafayette, LA, for Ap-pellee, Gray Insurance Company.
    John C. Turnage, Shreveport, LA, for Appellees, Jeff Ensminger, Jonathan Rogers, Zachary Alford and Chris Romero.
    Michael G. Lemoine, for Appellee, Weatherford U.S. LP.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   WILLIAMS, J.

|2The plaintiff, Shaneka Crockett, appeals a summary judgment in favor of the defendants, Therral Story Well Service Company, Inc., The Gray Insurance Company, Jeff Ensminger, Jonathan Rogers, Zachary Alford and Carl Romero. The district court found that the plaintiff failed to present factual support sufficient to prove that the employer intentionally caused injury and that plaintiffs sole remedy was workers’ compensation. For the following reasons, we affirm.

FACTS

On August 28, 2007, Michael Crockett, the decedent, was critically injured while working on an oil rig in Sibley, Webster Parish. The rig was owned and operated by Therral Story Well Service Company, Inc. (“TSWS”)- Other employees of TSWS working on the rig at the time | .¡included Jeff Ensminger, Jonathan Rogers, Zachary Alford and Carl Romero, who was the supervisor on duty. The decedent was airlifted to LSU Health Sciences Center in Shreveport, where he later died as a result of his injuries. It was undisputed that decedent was injured in the course of his employment and that his wife, Shaneka Crockett, and their children have received workers’ compensation survivor benefits.

In August 2008, the plaintiff, Shaneka Crockett, individually and on behalf of the decedent, their minor children and decedent’s estate, filed a petition for damages against the defendants, TSWS, its insurer, The Gray Insurance Company (“Gray”), Ensminger, Rogers, Alford and Romero. Plaintiff alleged that TSWS and its employees intentionally forced decedent to work under dangerous conditions which they knew would cause his death and were liable under the intentional tort exception to the exclusivity provision of the Workers’ Compensation Act. In a supplemental petition, the plaintiff added as a party defendant Weatherford U.S., L.P., (‘Weatherford”), the manufacturer of allegedly defective “tongs,” a piece of heavy equipment that was in use on the oil rig at the time of the incident.

Subsequently, Gray, TSWS, and the employees, Ensminger, Rogers, Alford and Romero, filed motions for summary judgment asserting the absence of a viable intentional tort claim by which plaintiff could avoid theRexclusive remedy of workers’ compensation benefits. For the purpose of the motions, defendants did not dispute the factual allegations of plaintiffs petition, including the defendants’ failure to repair known and obvious dangerous defects in the rig and equipment, the failure to provide sufficient training, supervision and safe equipment, the failure to follow proper safety procedure and the failure to comply with OSHA requirements. In opposition to summary judgment, plaintiff filed a number of exhibits, including correspondence from plaintiffs attorney to the defendants requesting information regarding the cause of the incident and seeking a date and time in which to examine the equipment involved in the accident, a letter from Gray’s attorney that he did not possess information about the equipment, and a private investigator’s affidavit.

Following a hearing, the district court found that the plaintiff failed to present facts to show that the employer knew that the decedent’s particular injury was substantially certain to occur. The court noted that the intentional act exception had been narrowly construed by courts to deny claims based on safety violations and unsafe equipment at the workplace. The court also denied plaintiffs request for additional time to obtain discovery. The district court rendered judgment granting the defendants’ motions for summary judgment. The plaintiff appeals the judgment.

|.¿DISCUSSION

The plaintiff contends the district court erred in granting summary judgment. Plaintiff argues that the petition sufficiently states a cause of action for intentional tort by alleging that TSWS and the other employees were substantially certain that injury would inevitably occur to the decedent as a result of their actions, but they forced him to work under those conditions.

Ordinarily, an employee is limited to recovering workers’ compensation benefits rather than tort damages for injuries sustained on the job. This exclusive remedy rule is inapplicable when the worker’s injury is caused by the employer’s intentional act. LSA-R.S. 23:1032(B); Gallant v. Transcontinental Drilling Co., 471 So.2d 858 (La.App. 2d Cir.1985). The statutory words “intentional act” mean the same as intentional tort. Bazley v. Tortorich, 397 So.2d 475 (La.1981). In this context, the meaning of intent is that the actor either: (1) consciously desires the physical result of his act; or (2) knows that the result is substantially certain to follow from his conduct. Bazley, supra.

The phrase “substantially certain to follow” requires more than a reasonable probability that an injury will occur and the word “certain” has been defined to mean inevitable or incapable of failing. Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208. An employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement. Further, knowledge and appreciation of a risk does not constitute intent, nor does an employer’s reckless or wanton conduct constitute intentional wrongdoing for purposes of the Act. Simoneaux v. Excel Group, LLC, 06-1050 (La.9/1/06), 936 So.2d 1246; Reeves, supra.

A motion for summary judgment is the proper procedural tool to penetrate a plaintiffs general allegations that an injury resulted from an intentional tort. Gallant, supra. Summary judgment shall be granted when the pleadings, depositions and answers to interrogatories, along with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

In the present case, the plaintiff alleged in her petition that the defendants knew the decedent’s injury was substantially certain to follow from their conduct, which included the failure to install guard rails on the rig platform, the failure to provide adequate training, the failure to adequately maintain the rig, the failure to provide safe equipment and the failure to comply with OSHA regulations. For the purpose of summary judgment, the 17defendants accepted the plaintiffs factual allegations as true, but referred the court to numerous cases which found that such conduct was insufficient to constitute an intentional act. As a result, the burden shifted to plaintiff to produce factual support for her claim that defendants had committed an intentional tort.

Even assuming as true the allegations that the decedent’s employer and co-workers knew the lack of guardrails on the rig platform was a dangerous condition, that the training of employees and the maintenance of the rig was inadequate, and that the employer failed to provide safe equipment or to comply with OSHA requirements, the plaintiff failed to produce evidence to show that the decedent’s injury was an inevitable consequence of such conduct. Rather, the record contains a discovery response from TSWS indicating that there was no record that the decedent had been previously injured while working on the rig or that any other person had been similarly injured while working under the same conditions as the decedent. Nor did the plaintiff present any contradictory evidence demonstrating that the employer knew the decedent was certain to be injured as a result of the unsafe workplace.

In addition, as stated in Reeves, supra, the intentional act exception has been very narrowly construed by the courts, which have found that the |8type of employer conduct alleged by plaintiff does not form the basis for an intentional act. See Broussard v. Smith, 08-473 (La.App. 3rd Cir.12/3/08), 999 So.2d 1171 (failure to take adequate safety measures); Bergeron v. Murphy Oil, U.S.A., Inc., 05-0271 (La.App. 4th Cir.4/28/05), 903 So.2d 496 (failure to follow OSHA safety provisions); Jasmin v. HNV Central Riverfront Corp., 94-1497 (La.App. 4th Cir.8/30/94), 642 So.2d 311 (failure to provide safe workplace); Holliday v. B.E. & K. Construction Co., 563 So.2d 1333 (La.App. 3rd Cir.1990) (requiring use of defective or dangerous machinery); Erwin v. Excello Corp., 387 So.2d 1288 (La.App. 1st Cir.1980) (failure to correct a known dangerous condition).

Based upon this record, we conclude that the plaintiff has failed to present factual support to establish that she would be able to satisfy her evidentiary burden of proving that TSWS or its employees knew that the decedent’s injuries were inevitable. Thus, there is no genuine issue of material fact and the district court did not err in granting the defendants’ motions for summary judgment. The assignment of error lacks merit. In reaching the conclusion that there is no tort liability, we pre-termit a discussion of the insurance coverage issue.

Discovery

[¡/The plaintiff contends the trial court erred in denying her request for additional time for discovery. Plaintiff argues that the defendants’ failure to make the tongs used in the accident available for inspection prohibited her from conducting adequate discovery.

A defendant’s motion for summary judgment may be made at any time. LSA-C.C.P. art. 966(A). The trial court has discretion to render summary judgment, if appropriate, or to allow further discovery. Johnson v. Littleton, 45,323 (La.App.2d Cir.5/19/10), 37 So.3d 542. While parties must be given a fair opportunity to conduct discovery and present their claim, there is no absolute right to delay action on a motion for summary judgment until discovery is completed. Justiss Oil Co., Inc. v. Monroe Air Center, 45,356 (La.App.2d Cir.8/11/10), 46 So.3d 725; Johnson, supra.

In the present case, the plaintiff filed the petition for damages on August 28, 2008. Almost one year later, Gray filed the first motion for summary judgment on the grounds that plaintiff had not presented any evidence to show that TSWS knew the decedent’s injuries were substantially certain to occur. At that point, plaintiffs attorney had exchanged correspondence with Gray’s attorney, but had not issued any interrogatories or requests for production to any of the defendants or taken any depositions.

| inAlthough plaintiff asserts in her brief that she should have been given access to the tongs before deposing the decedent’s co-workers, plaintiff has not explained how inspection of the tongs would have assisted her in establishing factual support for px*oving an intentional tort. In addition, the plaintiff had received information about the rig and the equipment used at the time of the accident from documents produced by TSWS in response to Weath-erford’s discovery request.

Based upon this record, we cannot say the district court erred in finding that the plaintiff was given a reasonable opportunity to conduct discovery before the hearing on the motions for summary judgment. Thus, the court did not abuse its discretion in denying the plaintiff additional time for discovery. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment granting the defendants’ motions for summary judgment is affirmed. Costs of this appeal are assessed to the appellant, Shaneka Merrell Crockett.

AFFIRMED.


author: STEWART, J.

text:
    Miriam Stagner UPCHURCH, et al., Plaintiffs-Appellants v. STATE of Louisiana, through the LOUISIANA DEPARTMENT OF TRANSPORTATION, et al., Defendants-Appellees.
    No. 45,761-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 5, 2011.
    Rehearing Denied Jan. 20, 2011.
    J. Patrick Hennessy, Shreveport, LA, for Plaintiffs-Appellants Miriam- Stagner Upchurch, Amanda Upchurch Caporossi and John David Upchurch.
    Lunn, Irion, Salley, Carlisle & Gardner by J. Martin Lattier, Lisa D. Lobrano, for Defendant-Appellee Austin Bridge & Road, Inc.
    Bruce R. Hoefer, Jr., Ira J. Rosenzweig, New Orleans, LA, for Defendant-Appellee State of Louisiana, DOTD.
    Jennifer P. McKay, Shreveport, LA, for Defendant-Appellee City of Shreveport.
    Taylor, Porter, Brooks & Philips, Baton Rouge, LA by Margaret L. Tooke, William S. McKenzie, for DefendanL-Appellee Travelers Property Casualty Co. of America.
    Breaud & Meyers, Lafayette, LA by Andrew H. Meyers, for Defendant-Appel-lee American Guarantee & Liability Ins. Co. and Protection Services Inc.
    Michael T. Johnson, Alexandria, LA, for Defendant-Appellee Automobile Club Inter-Insurance Exchange.
    Edwin G. Preis, Jr., Catherine M. Landry, Lafayette, LA, for Defendant-Appel-lee Arch Specialty Ins. Co.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

[aPIaintiffs, Miriam Stagner Upchurch, Amanda Upchurch Caporossi, and John David Upchurch, and Defendant, Austin Bridge and Road Co., are appealing a motion for summary judgment rendered in favor of Protection Services, Inc. (“PSI”). The judgment dismissed with prejudice PSI and its insurers, Travelers Property Casualty Company of America (“Travelers”) and American Guarantee & Liability Insurance Company (“American Guarantee”). For the reasons stated herein, the trial court’s judgment granting PSI and its insurers’ motion for summary judgment is reversed.

FACTS

On April 18, 2006, Miriam Stagner Up-church (“Miriam”) was involved in an automobile accident at the edge of a construction site at [4the intersection of Clyde Fant Parkway and Shreveport-Barksdale Highway. Parts of Shreveport-Barksdale Highway were under construction, as repairs were being made to the northern span of the bridge, which crossed above Clyde Fant Parkway. Upon exiting Shreveport-Barksdale Highway, Miriam came to a stop sign at the intersection with Clyde Fant Parkway. She intended to cross the southbound lanes of Clyde Fant Parkway and then turn left onto its northbound lanes. When Miriam pulled out into the southbound lanes of Clyde Fant Parkway, her vehicle collided with a southbound vehicle driven by Rishaida Trapani. Miriam was severely injured and ultimately died from complications from her injuries on August 3, 2009.

After her death, Miriam’s children, Amanda Upchurch Caporossi and John David Upchurch, substituted themselves as party plaintiffs to this action. The plaintiffs filed suit against the contractor of the construction site, Austin Bridge and Road, Inc. (“Austin Bridge”), the contractor’s insurer, Arch Specialty Insurance Company; the State of Louisiana through the Department of Transportation and Development, whose bridge was under construction; the City of Shreveport, who was the owner of the streets 1 fiat issue; PSI and its insurers, Travelers and American Guarantee. PSI was the company responsible for signs, warnings, and traffic control for the construction site.

All of the defendants filed motions for summary judgment, but the trial court granted summary judgment only in favor PSI, dismissing with prejudice it and its insurers. In its ruling, the trial court found:

1. PSI merely rented traffic control materials, including temporary signs, cones and barricades to the general contractor, Austin Bridge, for use at the subject construction site;
2. PSI did not perform any of the construction work at the site;
3. PSI did not create or engineer the traffic control plan for the site;
4. PSI did not determine the number, type and placement of the warning devices;
5. PSI did not create or engineer the signage, traffic controls or determine the speed limit for the site;
6. PSI was not required to place any signs controlling traffic at the site where the collision occurred as the area of construction was several hundred feet away from the site where the collision occurred.

The plaintiffs, as well as Austin Bridge, now appeal.

I «LAW AND DISCUSSION

In their sole assignment of error, the plaintiffs and Austin Bridge (collectively referred to as the “appellants”) assert that the trial court erred in granting the motion for summary judgment. They allege that PSI failed to perform its contractual obligations and specifically failed to place the appropriate signs reducing the speed limit from 55 miles per hour to 45 miles per hour, as was required by its contract. They believe that the trial court erred in finding that PSI did not have this contractual responsibility. Therefore, they argue that summary judgment was improperly rendered.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Duncan v. USAA Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544; Pruitt v. Nale, 45,483 (La.App. 2 Cir. 8/11/10), 46 So.3d 780. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action. The proceeding is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). The judgment sought shall be rendered forthwith if the |7pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The initial-burden of proof remains with the mover to show that genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the nonmoving party to present. evidence demonstrating that a material fact issue remains. The failure of the nonmov-ing party to produce evidence of a material factual dispute mandates the granting of the motion. Pruitt, supra.

Appellate review of the grant or denial of a summary judgment is de novo. Thus, the court uses the same criteria as the trial court in determining whether summary judgment is appropriate — whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. A “genuine issue” is a “triable issue,” that is, an issue on which reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for trial on that issue. ' A fact is “material” when its existence or nonexistence may be éssential to a plaintiffs |scause of action under the applicable theory of recovery. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002; Pruitt, supra.

A contractor owes a duty to the public beyond the literal fulfillment of the plans and specifications of its contract with DOTD. Dowden v. Mid State Sand & Gravel Co. Inc., 95-231 (La.App. 3 Cir. 11/2/95), 664 So.2d 643. Any person or firm contracting with the highway department to repair a road likewise owes a duty to the public to perform the contract in such a manner so as not to expose those using the roads to any dangers which could be prevented by the use of ordinary and reasonable care. This obligation on the part of the highway department and the contractor imposes a duty to adequately warn motorists of the existence of any dangers created by the road repairs. Hale v. Aetna Casualty & Surety Co., 273 So.2d 860 (La.App. 2 Cir.1973), writ denied, 53-389 (La.4/19/73), 275 So.2d 867. A contractor doing construction work on a public highway: has a duty to mark, barricade, or warn' the public of conditions in the construction site which pose an unreasonable risk of harm. Dowden, supra. The appellants argue this same duty applies to subcontractors, namely PSI, who was contracted to install and maintain the signs, | pwarnings and barricades that were intended to protect the public at large.

The contract between Austin Bridge, the general contractor responsible for the construction project, and PSI calls for PSI to provide and install the signage on the construction project. It included the following language:

“Subcontractor agrees to furnish all labor, materials, applicable taxes, tools, equipment, supervision and other things required to do the following portions of the Work at the prices set forth below, such portions of the Work to be called the ‘Sublet Work’:
Code Item Description 980395 713-01 Temporary Signs and Barricades 980396 S-002 Glare Paddles

Additionally, the performance portion of the Master Subcontract Agreement stated in pertinent part:

Subcontractor further agrees to perform the Sublet Work in a careful and workmanlike manner in accordance with the best construction practices and with this Agreement, and in strict accordance with the Prime Contract, and to assume and discharge all responsibilities which Contractor has assumed hnunder the Prime Contract with respect to the Sublet Work, except as otherwise provided herein.

PSI concedes that it rented, installed, and performed periodic maintenance on the barrels, cones, and signs for the construction site. It denied involvement in the traffic control plan or the establishment of the speed limits at the construction site. At the construction site, southbound motorists on Clyde Fant Parkway were channeled into one lane as they approached the intersection where the crash occurred.

When the trial court denied summary judgment as to all of the defendants except PSI and Travelers, it noted that it found genuine issues of material fact as to whether there was appropriate planning of the construction site:

Notwithstanding the fact that there is clear and perhaps considerable fault on behalf of Miriam Stagner Upchurch, arguable fault on behalf of Linda Trapani and that the accident site was beyond the construction site, there are genuine issues of material fact that favors a trial on the merits as to Austin Bridge. Specifically, the issues include whether there was appropriate planning done of the construction site (whether authorized by DOTD, or not), and whether there was potentially dangerous channeling of vehicles into one lane without any change in the 55 mile per hour speed limit and without specific warning devices. As the general contractor, Austin Bridge had the duty to appropriately mark, barricade, and/or warn.the public of conditions in or around lnthe construction site which pose an unreasonable risk of harm.

As discussed earlier, a “genuine issue” is a “triable issue,” that is, an issue on which reasonable persons could disagree. While reviewing the pictures of the site where the accident occurred, we noticed the absence of any signs indicating a change in the speed limit. The construction plan requires the speed limit to be reduced to 10 miles per hour less than the legally posted speed limit in certain areas, but we were not able to clearly determine exactly where the reduced speed limit signs would be posted. It is very possible that PSI was supposed to install a reduced speed limit sign at the accident site.

We believe that this uncertainty presents a genuine issue of material fact regarding the change in the 55 mile per hour speed limit. More specifically, the issue of whether PSI breached its duty to Austin Bridge to supply, install and service the traffic control materials in a workmanlike manner becomes a triable issue, since reasonable persons could reach more than one conclusion on the issue of whether PSI had a duty to post a reduced speed limit sign at the accident site.

It is likely that the presence of a road sign reducing the speed limit from 55 miles per hour to 45 miles per hour could have 112mitigated or prevented the accident. For these reasons, we find that the trial court erred in granting the motion for summary judgment in favor of PSI and its insurers.

CONCLUSION

For the foregoing reasons, we reverse the decision of the trial court granting PSI, Travelers, and American Guarantee’s motion for summary judgment. This matter is remanded for further proceedings. Costs are assessed to the appellees, PSI, Travelers, and American Guarantee.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.