author: GREMILLION, Judge.

text:
    Theodore S. CARMICHAEL, et ux. v. The BASS PARTNERSHIP, et al.
    Nos. 11-845, 11-669.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Mark D. Sikes, Attorney at Law, J. Bradley Duhe, Ottinger, Hebert, LLC, Lafayette, LA, for Defendant/Appellee, Wiil-ischild Oil & Gas Corp.
    Nancy Scott Degan, Roy Clifton Cheat-wood, Adam Bennett Zuckerman, Baker Donelson Bearman, New Orleans, LA, for Defendant/Appellee, Samson Resources Co.
    James J. Davidson, III, Christopher Joseph Piaseeki, Davidson, Meaux, et ah, Lafayette, LA, John Michael Veron, Alonzo P. Wilson, Bice, Palermo & Veron, Lake Charles, LA, Virgil Russell Purvis, Jr., Attorney at Law, Jonesville, LA, for Plaintiffs/Appellees, Theodore S. Carmichael, Judy Chiasson Carmichael.
    Michael Gonzales Durand, Karen Daniel Ancelet, Onebane Law Firm, APC, Lafayette, LA, for Defendant/Appellee, Nuevo Energy Co.
    W. Gerald Gaudet, Mary McCrory Hamilton, Hoai T. Hoang, Voorhies & Labbe, Lafayette, LA, for Defendant/Appellee, Harry H. Cullen, et al.
    Guy Earl Wall, Wall, Buffington & Cook, LLC, Harahan, LA, Paul Edward Buffing-ton, Jonathan Robert Cook, Wall & Bull-ington, New Orleans, LA, for Defendant/Appellee, Bass Brothers Enterprises, Inc. BEPCO, L.P.
    Gerald Francis Slattery, Jr., David Stephen Landry, Colleen Carr Jarrott, Schully, Roberts, Slattery, New Orleans, LA, for Defendant/Appellee, Continental Land & Fur Company.
    Phillip A. Wittmann, Daria B. Diaz, Nicholas J. Wehlen, Jackie M. McCreary, Stone, Pigman, Walther, New Orleans, LA, for Defendant/Appellant, BOPCO, L.P., The Bass Partnership.
    George Areeneaux, III, Jamie D. Rhymes, Penny L. Malbrew, Liskow & Lewis, Lafayette, LA, for Defendants/Ap-pellees, Black Hawk Oil Company, 1987— II STEA Limited Partnership, 1987 — IV STEA Limited Partnership.
    David Lyman Browne, Attorney at Law, New Orleans, LA, for Defendant/Appellee, Torch Energy Services, Inc.
    Ryan M. Seidemann, Attorney General’s Office, Megan K. Terrell, AAG, Civil Division, Baton Rouge, LA, for Defendant/Ap-pellee, State of Louisiana, Attorney General’s Office.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ]This appeal involves complex oil and gas litigation associated with the remediation of a well site. This matter is consolidated with 11-669, a supervisory writ filed on behalf of Harry H. Cullen. The trial court granted summary judgment dismissing defendant-appellants, The Bass Partnership and BOPCO, LP’s, third-party demand for defense and indemnity against Harry H. Cullen. The consolidated writ involves the trial court’s denial of Cullen’s summary judgment filed against Bass for reimbursement for all costs incurred as a result of having to defend the third-party demand. The issues presented in the main appeal and the supervisory writ involve the same contract (the Letter Agreement). For the following reasons, we reverse the summary judgment in favor of Cullen in the main demand and deny Cullen’s supervisory writ.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, the plaintiffs, Theodore and Judy Carmichael, sued The Bass Partnership and BOPCO, LP (collectively Bass), among numerous others, claiming they breached a 1984 mineral lease and contaminated their property, known as the Hebert No. 1 Well. Bass undertook restoration of the property to regulatory standards, and the plaintiffs’ claims were settled. Before the settlement, Bass filed a third-party demand against Cullen to enforce a defense and indemnity obligation it alleges was incorporated in the February 10, 2000 assignment agreement in which the mineral lease and some property was assigned from Cullen to Bass.

Bass claims it is entitled to be reimbursed for its costs in defending the suit against plaintiffs and for the funds it paid in the settlement because Cullen was the lessee and owned an interest in the lease during the time the contamination occurred.

Following a hearing on Cullen’s motion for summary judgment, the trial court found in his favor noting that Cullen’s indemnity obligation was limited to 12ownership or title obligations whereas Bass’s obligation extended to location restoration. The trial court found that “had the parties intended that [Cullen] be responsible for location restoration or obligations arising out of operations on the property, they could have included that language in the contract.” Thus, Bass’s third-party demand against Cullen was dismissed. Bass now appeals and assigns as error:

1. The trial court erred in misinterpreting the assignment in granting Cullen’s motion for summary judgment.
2. The trial court erred in limiting Cullen’s indemnity obligation to title problems.
3. The trial court erred in failing to distinguish between location restoration and damages.
4. The trial court erred in ruling that liability could only be imposed by “operation” of the property.
5. Alternatively, the trial court erred by granting summary judgment because the assignment was ambiguous and the trial court decided disputed issues of material fact.

In January 2011, Cullen filed a motion for summary judgment on his cross-claim filed against Bass and sought reimbursement for all costs, including court costs and attorney fees, incurred as a result of having to defend the third-party demand filed by Bass. Bass filed numerous memo-randa opposing Cullen’s motion for summary judgment. Following an April 2011 hearing, the trial court denied Cullen’s motion for summary judgment. It rendered written reasons encompassing the written reasons it set forth in a minute entry which stated that, “Generally, indemnity agreements do not cover and do not encompass indemnity for the cost of enforcing the indemnity agreement, and this particular agreement does not specifically say that it would cover costs and attorneys’ fees for enforcing the indemnity agreement.” Cullen, in his supervisory writ to this court, assigns as error:

|¾1. The trial court’s erroneous application of the incorrect principle of law to his claim against Bass.
2. The trial court erred in failing to employ the rules of contract interpretation to the letter agreement between himself and Bass.
3. The trial court erred in failing to consider unique equitable principles present in this case.

In light of our ruling below reversing summary judgment, we deny the writ. As a result of our reversal of summary judgment in favor of Cullen, Cullen is no longer dismissed as a party to the suit since there is no final judgment. Thus, there is no danger of irreparable injury to Cullen that would warrant granting his supervisory writ in the consolidated matter (11-669). See La.Code Civ.P. art. 2201; Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). Cullen can appeal the trial court’s ruling regarding its findings pertaining to the Letter Agreement once the matter has been tried.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admission on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ |4denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

DISCUSSION

In 2003, the Carmichaels acquired a tract of land in Acadia Parish consisting of approximately 368 acres. The Carmicha-els acquired a 2/3’s ownership interest in the minerals on and beneath the land. In their petition they complain that the land was damaged by the various defendants prior to their acquisition of it. In 1984, the previous owners (the Heberts) entered into a mineral lease with Cullen. In April 1985, Cullen executed an “Assignment of Interests and Oil, Gas, and Mineral Leases” assigning a portion of his interest in the mineral lease, including the Hebert No. 1 Well, to The Stone Petroleum Corporation (not a party in this appeal) and Bass Partnership. Over the 1980s and 1990s many assignments were made to various parties. In March 2000, Continental Land and Fur Company assigned a portion of its mineral interest to Bass partnership and in February 2010, Cullen assigned his mineral interest to Bass. At the time the Carmichaels filed suit, Bass Enterprises Production Company and/or BEPCO, LP were listed operators of the Hebert No. 1 Well.

The Carmichaels alleged that the land surface and the ground “was contaminated, polluted, and impregnated with oils, grease, naturally occurring radioactive materials (NORMS), and other hazardous and dangerous chemicals, equipment, pipes, tanks, and related appurtances used and/or generated during the oil and gas exploration and production activities” that required remediation and restoration of the land. The Carmichaels further claimed contamination of the water and nuisance and trespass to their property. In addition to claims for breach |sof contract, the Carmichaels asserted a claim for restoration pursuant to the mineral code, for exemplary - damages, for damages for trespass, and for attorneys fees. Various motions were filed over the years by multiple parties including multiple cross-claims for defense and indemnity against Bass and claims by Bass against various entities that it was owed indemnity.

In July 2010 Bass filed a “Motion for leave to file petition for declaratory judgment and third party demand ánd incorporated memorandum” against Cullen, urging that the Carmichaels claims fell within Cullen’s obligations to Bass as set forth in the Letter Agreement and Assignment and Bill of Sale. A later supplemental and amended petition filed by Bass in August 2010 asserted claims against Cullen for indemnity, contribution, and reimbursement for any and all amounts it was required to pay.

In September 2010, Cullen filed an answer and asserted a cross-claim against Bass asserting his right to indemnity pursuant to the terms of the Letter Agreement. Other parties filed motions for summary judgment against Bass based on identical Letter Agreements they entered into with Bass. Cullen filed a motion for summary judgment against Bass in October 2010 based on the terms in the Letter Agreement. Similarly, in October 2010, Bass filed a motion for summary judgment against Cullen based on the terms in the Letter Agreement. Following a November 2010 hearing, the trial court granted summary judgment in favor of Cullen.

CONTRACT INTERPRETATION

A panel of this court recently summarized the pertinent law regarding contract interpretation in CLK Co., L.L.C. v. CXY Energy, Inc., 07-834, pp. 8-10 |6,(La.App. 3 Cir. 12/19/07), 972 So.2d 1280, 1286-87, writs denied, 08-0140, 08-0207 (La.3/14/05), 977 So.2d 932, 937 (citations omitted):

Whether a contract is ambiguous is a question of law. Appellate review of a question of law simply requires the appellate court to determine whether the trial court’s conclusion was correct.
The goal of contract interpretation is to determine “the common intent of the parties.” La.Civ.Code art. 2045. The intent of the parties to a contract must be determined in accordance with “the plain, ordinary, and popular sense of the language used in the agreement and by giving consideration on a practical basis to the instrument in its entirety.” When the words of a contract are clear, explicit, and lead to no absurd consequences, the contract must be interpreted within its four corners and cannot be explained or contradicted by parol evidence. However, when a word in a contract is not clear, testimony or other evidence may be considered to determine the parties’ intent and interpret the contract. ... [This] rule applies to contacts involving immovable property.
“The words of a contract must be given their generally prevailing meaning,” and “[w]ords of art and technical terms must be given their technical meaning when the contract involves a technical matter.” La.Civ.Code art. 2047. Additionally, “[w]ords susceptible of different meanings must be interpreted as having the meaning that conforms to the object of the contract.” La.Civ. Code art. 2048. Pursuant to La.Civ. Code art. 2049, a “provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.”

The January 18, 2000 letter agreement (Letter Agreement), which was drafted by Bass, states in part:

Gentlemen:
This is to verify our conversation of this date whereby Bass Enterprises Production Co. (hereinafter referred to as “Bass”) and Harry H. Cullen (hereinafter referred to as “Cullen”) have agreed that Cullen will forfeit its interest in the Hebert no. 1 Well and associated leasehold interest, as well as further leasehold interests obtained by Bass and Davis Petroleum Corp. in the above prospect, according to the following terms and conditions:
1. For Ten Dollars ($10.00 and other good and valuable consideration, the receipt of which is hereby acknowledged, Cullen agrees to convey to Bass all of its right, title and interests in and to the Hebert No. 1 Well, the MT 3 RF SUA and the other properties described in numerical paragraph five |7(5) below and/or in Exhibit “A” hereto (hereinafter the “properties”). As to the Properties, Bass hereby agres [sic] to assume Cullen’s share of plugging liability and Cullen’s share of the responsibility for location restoration. As the term is used in this agreement, location restoration shall include but not be limited to removal and disposal of any and all materials or substances including naturally occurring radioactive material (“NORM”) used in or produced in connection with operations relating to the Properties.
2. The Effective Date of transfer will be 7:00 a.m. local time on February 1, 2000.
7. Within fifteen (15) days after the execution hereof, Cullen will pay to Bass $22,171.00 and will deliver to Bass a mutually acceptable assignment and bill of sale of the Properties. Payment of this sum shall relieve Cullen of any further payment obligations relating to costs and expenses incurred with regard to remediation on the Properties.
8. Bass shall assume all responsibility for the Properties as of the Effective Date, and agrees and convenants to protect, defend, release, indemnify and save Cullen harmless from and against any and all costs (including court costs and attorney fees), claims, demands, judgments, causes of action and other liability of whatsoever kind arising out of or incident to the ownership, operation, plugging, abandoning and location restoration of the Properties from and after the Effective Date. In addition, Bass shall protect, defend, release, indemnify and save Cullen harmless from and against any an [sic] all costs (including court costs and attorneys fees), claims demands, judgements [sic], causes of action and other liability of whatsoever kind relating to the demands for release of leases referred to in paragraph four (4) above and to any additional such demands pertaining to the Properties and directed to the parties hereto.
9. Except as to the demands for release of leases referred to in paragraph four (4) above, Cullen agrees and covenants to protect, defend, release, indemnify and save Bass harmless from and against any and all costs (including court costs and attorney fees), claims demands, judgments cause of action and liability of whatsoever kind arising out of or incident to the ownership of Cullen of the Properties prior to the Effective date.

We find that the trial court’s analysis is flawed. The trial court stated in its written reasons for judgment:

IsThey point out that Bass’ indemnity obligations specifically apply to “location restoration” as well as to claims “arising out of or incident to the ownership, operation, plugging, abandoning” of the property, whereas defendants’ in cross-claim [Cullen and others] indemnity obligations are only for claims arising out of or incident to the ownership prior to the effective date. Had the parties intended that the defendants in cross-claim be responsible for location restoration or obligations arising out of the operation of the property, they could have included that language in the contract.
The Court finds that under the Letter Agreements, Bass is obligated to defend and indemnify the defendants in cross-claim for the claims in this lawsuit.

The trial court interpreted the lack of the words “operation, plugging, abandoning, and location restoration” following the word “ownership” in paragraph nine to mean that Cullen did not agree to indemnify Bass for those costs. However, pursuant to the Letter Agreement and Bill of Sale, Cullen was never in a position to conduct operations, plugging, or abandoning (since the lease was sold), or location restoration.

A plain reading of the remainder of the paragraph, that Cullen agrees to protect, defend, release, indemnify and save Bass harmless from and against “other liability of whatsoever kind ” that arises “prior to the effective date” of the assignment can be construed as encompassing any claims arising out of any cause during the time period before the effective date of the agreement. We do not find that use of the term “ownership,” without more, limits Cullen’s responsibility to title problems. It cannot be discerned from the agreement; thus, granting summary judgment in Cullen’s favor was inappropriate based solely on the Letter Agreement. We find the Letter Agreement is ambiguous, and that genuine issues of material fact exist regarding the parties intent.

When the intent of the parties is not clear from the four corners of the document, we look to parol evidence. In Sloane v. Davis, 619 So.2d 585, 590 (La.App. 3 Cir.), writ denied, 629 So.2d 355 (La.1993), we stated:

19When it is impossible to gather the intention of the parties from a written contract, the court should permit introduction of extrinsic evidence. As a general rule parol evidence is admissible, as between the parties, to explain ambiguous terms of descriptive meaning found in contracts. The intention of the parties must be ascertained; and when that intention cannot be determined without an explanation of the situation and nature of the thing conveyed in the contract, courts are free to examine the parties’ prior use of such terms or dealings on the same subject matter, the meaning generally afforded such terms when both are used in the same instrument, and other special facts peculiar to the oil and gas industry which may be helpful in arriving at the parties’ true intent in so working the agreement.

In CLK Company, L.L.C., v. CXY Energy, Inc., 07-834 (La.App. 3 Cir. 12/19/07), 972 So.2d 1280, we quoted Blanchard v. Pan-OK Prod. Co., Inc., 32,764 (La.App. 2 Cir. 4/5/00), 755 So.2d 376, 381, writ denied, 00-1297 (La.6/23/00), 765 So.2d 1043 (citations omitted) in which the appellate court stated;

A contract is considered ambiguous on the issue of intent when it lacks a provision bearing on that issue or when the language used in the contract is uncertain or is fairly susceptible to more than one interpretation. These rules are applicable even to contracts involving rights in immovable property, such as mineral rights.

In considering the parol evidence in this record to determine the true intent of the parties in the form of affidavits and deposition testimony, we still find that a genuine issue of material fact exists. The deposition testimony submitted in support of the motions for summary judgment does little to assist us in determining the true intent of the parties. The record before us establishes that the complex issues surrounding the well, the parties’ knowledge of what they were purchasing and/or selling and for what price/consideration are factually disputed. While the record is replete with contested facts related to some issues, it is devoid of facts relating to others. For example, there was no testimony about what damage occurred to the property in relation to the effective date of the Letter Agreement. There was no testimony regarding what the parties agreed to regarding | ^indemnification. Given these genuine issues of material fact, the matter should not have been resolved summarily.

Accordingly, the trial court’s grant of summary judgment in favor of Harry H. Cullen is reversed and we remand this case for further proceedings consistent with this opinion. Cullen’s supervisory writ is denied as there is no danger of irreparable harm.

REVERSED AND REMANDED; WRIT DENIED.

      . We note that the Carmichaels did not sue Cullen. The claims against Cullen arise solely from Bass' third-party demand against Cullen seeking defense and indemnity.

      . The trial court also granted summary judgment in favor of three other third-party defendants based on Letter Agreements using the same language as the one Bass entered into with Cullen. Although the other parties are not a party to the appeal, one of the third-party defendants, Continental Land and Fur, submitted a letter on its behalf on October 7, 2011, urging that, although they were not requesting consolidation of the cases, we consider the issues in the cases together. The letter notes that counsel conferred with Cullen, who did not oppose joint consideration, but that Bass did oppose joint consideration. We are sympathetic to this request. Joint consideration seems like the judicially efficient means to address what would become identical issues on appeal. Nevertheless, the only parties to this appeal are Cullen and Bass and we cannot consider Continental’s claim for joint consideration.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    CITY OF ALEXANDRIA v. RATCLIFFE CONSTRUCTION COMPANY, LLC, Ashe Broussard Weinzette Architects, LLP and Witsell Evans & Rasco, P.A.
    No. 11-1200.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 2012.

      Eugene J. Radcliffe, Montgomery, Barnett, L.L.P., Baton Rouge, LA, for Plaintiff/Appellant, City of Alexandria.
    Albert Dale Clary, S. Brooke Barnett, LaToya D. Jordan, Long Law Firm, L.L.P., Baton Rouge, LA, for Defendants/Appellees, Ashe Broussard Wein-zette Architects, LLP and Witsell Evans & Rasco, PA.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

| jThis appeal is before this court as a result of the trial court’s granting of summary judgment in favor of appellees and dismissing appellant’s claims against ap-pellees for damages from negligence allegedly resulting from a defective design. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This suit involves the design and construction of the Coughlin Saunders Performing Arts Center (hereafter the Center) located in Alexandria, Louisiana, which opened in August of 2004. On June 29, 2009, the City of Alexandria filed suit against Ratcliffe Construction Company, LLC, who built the Center. Also named as defendants were the architects of the Center, Ashe Broussard Weinzette Architects, LLP and Witsell Evans & Rasco, PA (hereafter the Architects).

The City alleged that subsequent to the Center’s completion, it “sustained rainwater intrusion in several locations, through its masonry wall systems.” The City contended the rainwater intrusion and corresponding damage was the direct result of the defective workmanship of Ratcliffe Construction and the negligent design of the Architects. The City requested damages and attorney fees.

After the damage was discovered, the Architects investigated the cause of the rainwater intrusion and made recommendations for repair. The City then hired a consultant, Quick & Associates, to inspect the building and determine the cause of the rainwater intrusion and to assess the design and quality of workmanship.

On October 2, 2006, Quick & Associates issued a written report of its findings. It concluded the leaks were a direct result of the faulty workmanship and poor supervision by the masonry subcontractor and general contractor. Quick & Associates also found that the design of the Center was in accordance with industry standards.

12Quick & Associates determined that repairs and remedial work would be necessary in order to mitigate the damages and eliminate any rainwater intrusion in the future. It was recommended that the original project architects prepare and issue remedial drawings based on the original construction plans and details. Despite the pending suit for damages, the Architects then prepared and issued remedial drawings to the City.

Relying on the conclusions reached by Quick & Associates, the Architects filed a motion for summary judgment contending there was no genuine issue regarding the material fact that their design of the center met applicable industry standards and was not defective. Additionally, the Architects asserted the City could not recover attorney fees in any event, because neither the contract between the parties nor a statute provided for the recovery of attorney fees.

The City opposed the motion for summary judgment, arguing it was inappropriate at that stage of the litigation because adequate discovery had not yet been conducted.

After a hearing on the motion, the trial court found summary judgment in favor of the Architects was “warranted in this matter because the City’s own consultant and expert opined that the design of the Center was not defective.” The trial court further found the summary judgment was not premature, noting the Architects obtained an opinion letter from the City’s expert stating that the design of the Center was not defective, and the City failed to produce any expert testimony and/or reports to the contrary. The trial court also found the City could not recover attorney fees, because the contract did not provide for the recovery of attorney fees in this matter. The City appealed the trial court’s judgment, arguing summary judgment was inappropriately granted.

|,o ANALYSIS

In Dinger v. Shea, 96-448, pp. 4-5 (La.App. 3 Cir. 12/11/96), 685 So.2d 485, 488-89, we set forth the standard of appellate review of summary judgments:

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Potter v. First Federal Sav. and Loan Ass’n, 615 So.2d 318 (La.1993). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A fact is “material” if its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute. Cormier v. Wise, 93-1434 (La.App. 3 Cir. 6/1/94), 638 So.2d 688. A fact is “at issue” if there exists any reasonable doubt as to its existence. Durrosseau v. Century 21 Flavin Realty, Inc., 594 So.2d 1036 (La.App. 3 Cir.1992).
In the past, any doubt regarding the existence of material facts was to be resolved against granting the summary judgment, even if grave doubts existed as to a party’s ability to establish disputed facts at trial. Penton [v. Clarkson, 93-657 (La.App. 1 Cir. 3/11/94)], 633 So.2d 918. The amendment does not change the law regarding burdens of proof, as the mover is still required to prove the absence of a genuine issue and his entitlement to judgment. Short v. [Gijfin ], 96-0361 (La.App. 4 Cir.8/21/96); 682 So.2d 249; Walker v. Kroop, 96-0618 (La.App. 4 Cir. 7/24/96); 678 So.2d 580. However, it now appears, based on the new language of section (C), that in order to rebut a showing made by the mover of the nonexistence of a genuine issue of material fact, the nonmoving party will be held to a higher standard of proof, i.e., a non-moving party must sufficiently establish the existence of proof of an essential element of his claim on which he is to bear the burden of proving at trial.
See also Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323.

This court in Weill Construction Co. v. Thibodeaux, 491 So.2d 166, 171 (La.App. 3 Cir.1986), discussed what was necessary to attach liability to design professionals, such as architects:

Architects are held liable for damages incurred by the owner by whom they are employed when their plans and specifications are faulty and defective as a result of their neglect in exercising care and skill. In the absence of an express contractual provision to the 14contrary, an architect’s obligation does not guarantee a perfect plan or a satisfactory result. There is no assurance that miscalculations will not occur. Liability is considered to rest only on uns-killfulness or negligence and not upon mere error of judgment. The ordinary care and reasonable skill by virtue of which architects’ preparations of plans and specifications are to be evaluated in determining whether they are guilty of negligence, must be the same care and skill required by others engaged in the same profession in the same locality. Maloney v. Oak Builders, Inc., 224 So.2d 161, 168 (La.App. 4th Cir.1969), modified, 256 La. 85, 235 So.2d 386 (La.1970).

At trial, the party alleging liability on an architect must establish the local prevailing standards for architectural compliance and prove a failure to meet this standard through expert testimony. “Unless lay persons can infer negligence by applying common sense standard, expert testimony is required to establish the applicable standard of care. Failure to submit expert testimony to prove the standard of care is a ‘fatal omission.’” Greenhouse v. C.F. Kenner Associates Ltd. Partnership, 98-496, p. 5 (La.App. 4 Cir. 11/10/98), 723 So.2d 1004, 1008, citing Carter v. Deitz, 556 So.2d 842, 843 (La.App. 4 Cir.1990).

In this case, the Architects filed their Motion for Summary Judgment on the grounds that the City’s own expert, Quick & Associates, submitted a written report concluding the Architects’ design was not defective. The trial court then specifically noted in its written reasons for judgment that “the City has not produced any expert testimony and/or reports to the contrary.” Thus, due to this “fatal omission” on the part of the City, the trial court granted the Architects’ Motion for Summary Judgment. After reviewing the record, we find no error in the trial court’s grant of summary judgment.

The Architects’ Motion for Summary Judgment set forth the absence of any evidence in the record to establish any breach of the applicable standard of care. The burden then shifted to the City to put forth some evidence to establish it could satisfy its evidentiary burden at trial. In reviewing the City’s Opposition to the Architects’ Motion for Summary Judgment, the City did not provide any ^supplemental expert report, expert testimony or expert affidavit to contradict that of Quick & Associates that the Architects did not breach the applicable standard of care.

The City also argues summary judgment was inappropriate because the written report prepared by Quick & Associates was privileged communication between the City’s attorneys and its consultant (Quick & Associates) in preparation for litigation, and should not have been submitted in support of the Architects’ Motion for Summary Judgment. The trial court found the letter was not privileged. We agree.

Pursuant to La.Code Civ.P. art. 1425(D)(1), “a party may, through interrogatories, deposition, and a request for documents and tangible things, discover facts known and opinions held by a person who has been identified as an expert whose opinions may be presented at trial.” The plain wording of this statute provides that an expert’s conclusions are discoverable and not privileged. Further, we note, as the trial court did, that the Quick report was given to the Architects by the City. A fact the City acknowledges it did “as a courtesy.” Therefore, any purported privilege, were it deemed to exist, was waived.

The City also alleged that it set forth “twenty-eight (28) issues outlined in the City’s certified discovery responses” which demonstrate genuine issues of material fact that should have precluded summary judgment. The City further argues the affidavit of its attorney details these alleged issues and satisfies its burden of proof to establish it could satisfy its evi-dentiary burden of proof at trial. We disagree. As set forth earlier, the City has failed to provide any expert opinion establishing that the Architects did not comply with the applicable standard of care in their design of the Center. The discovery responses and affidavit of its attorney, who is not qualified as an expert regarding the standard of care applicable to | ^architects, does not and cannot establish the standard of care and breach of that standard in this case.

Finally, the City argues the grants ing of summary judgment was premature because the trial court had not yet issued a Scheduling Order setting a cutoff date for submission of its expert report. The City argues “requiring an expert report merely because another party has filed a motion is improper.” . We disagree.

This court in LeCroy v. Byrd Regional Hospital, 10-904, pp. 13-14 (La.App. 3 Cir. 4/30/08), 981 So.2d 897, 905-06, discussed a similar situation:

Louisiana Code of Civil Procedure Article 966(A)(1) provides that a defendant is able to move for summary judgment “at any time.” Further, La.Code Civ.P. art. 966(C)(1) provides that “[ajfter adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.”
The provision for adequate discovery does not grant a party an absolute right to delay a decision on a motion for summary judgment until all discovery is complete. West v. Watson, 35,278 (La.App. 2 Cir. 10/31/01), 799 So.2d 1189, writ denied, 01-3179 (La.2/8/02), 809 So.2d 140. Unless the party opposing the motion for summary judgment shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there are no genuine issues of fact. Advance Products & Systems, Inc. v. Simon, 06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied, 07-26 (La.3/9/07), 949 So.2d 444. The abuse of discretion standard is used to determine if the trial court allowed adequate time for discovery. Id.
Prime Income Asset Mgmt., Inc. v. Tauzin, 07-1380, pp. 13-14 (La.App. 3 Cir. 4/30/08), 981 So.2d 897, 905-06.

We also note this Court’s decision in Dupree v. Louisiana Medical Mutual Insurance Co., 11-366, p. 2 (La.App. 3 Cir. 10/5/11), 74 So.3d 880, 882, which also was a professional liability case, wherein we affirmed the trial court’s finding that the plaintiffs reliance on the scheduling order was held to be a “misplaced strategic move.” Further, while a Scheduling Order was not issued by the trial court, the City was ordered by the trial court on July 1, 172010 to show cause why the Motion for Summary Judgment should not be granted. The City failed to show cause by failing to meet its burden of establishing it could satisfy its evidentiary burden at trial. Thus, the trial court’s grant of summary judgment was not premature.

DECREE

For the foregoing reasons, the judgment of the trial court granting the Architects’ Motion for Summary Judgment is affirmed. Costs of this appeal are assessed to appellant, the City of Alexandria.

AFFIRMED.


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

text:
    STATE of Louisiana v. Freddie BANKS.
    No. 2011-KA-0903.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2012.
    Rehearing Granted in Part April 9, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Freddie Banks.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, Jr., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

| Freddie Banks (“Banks”), the defendant/appellant, appeals his guilty plea and resulting sentence to one count of possession with the intent to distribute cocaine, contending that the trial court erred by denying his motion to suppress the evidence. For the reasons that follow, we affirm.

On 17 December 2010, the state charged Banks with one count of possession with the intent to distribute cocaine, a charge to which he subsequently entered a plea of not guilty. The court heard and denied his motions to suppress the evidence and statement on 24 February 2011. Banks objected and sought supervisory review in this court, but this court denied his application, finding that Banks would have an adequate remedy on appeal if he was ultimately convicted. State v. Banks, 11-0353, unpub. (La.App. 4 Cir. 4/1/11), writ denied, 11-0700 (La.4/8/11), 62 So.3d 64.

On remand to the trial court, Banks withdrew his prior plea of not guilty on 20 May 2011 and entered a plea of guilty as charged, reserving his right to appeal the denial of his motion to suppress the evidence pursuant to State v. Crosby, 338 So.2d 584 (La.1976). On 24 May 2011, the court sentenced Banks to serve two years at hard labor, with the recommendation that he be allowed to participate in |2any vocational, educational, or drug rehabilitation program offered during incarceration. This appeal followed.

Because Banks entered a plea of guilty, the facts of the case are determined from the suppression hearing. Officer Athena Monteleone testified that she arrested Banks on 15 December 2010, on Bienville Street near North Claiborne Avenue in New Orleans. Officer Monteleone testified that she was driving a police unit, following another officer in a separate unit, when she made a U-turn on Bienville Street. As she turned, she saw a truck ■with very heavy front-end damage stopped at a stop sign on the corner. She noticed that the truck did not have a brake tag (inspection sticker), and the driver of the truck, Banks, was not wearing a seat belt. She shone her spotlight on the truck, and the other officer stopped her police unit behind Banks’ truck.

Officer Monteleone exited her police unit and walked toward Banks’ truck. She testified that at first Banks had his hands on the steering wheel, but as she approached him, he dropped his hands to his lap, and his shoulders began moving up and down as if he was doing something inside the truck. Officer Monteleone testified that she ordered him several times to show his hands, but he would not comply. She stated that as she got up to the truck, she looked inside and noticed that the buttons of the fly on Banks’ jeans were undone and the fly was open. She asked him to produce his driver’s license, registration for the truck, and proof of insurance. Banks admitted that he had no identification with him, and he indicated that he could not remember his social security number. She ordered him to get out of the truck, placed him on her police vehicle, and started to frisk him. She stated that his fly was still open, and she could feel an unusual bulge in the crotch area of his pants. She testified that she put Banks in handcuffs to await the arrival of a Rmale officer to complete the frisk; she was concerned that the bulge may have been drags.

Officer Monteleone testified that Officer Brian Bissell soon arrived and frisked Banks, and who also felt the bulge. She stated that Officer Bissell then seized thirty-seven individually-wrapped pieces of crack cocaine from Banks’ pants. Officer Monteleone arrested Banks and advised him of his Miranda rights. After she put Banks in the back of her police unit, she asked him why he was selling crack cocaine. She testified that he replied that he did so because his daughter’s birthday was approaching. Officer Monteleone testified that the result of a field test on the substances seized from Banks was positive for cocaine. She testified that $105 was also seized from Banks in denominations of $1, $5, and $10 bills. She also issued Banks a citation for the traffic offenses.

On cross-examination, Officer Montel-eone testified that Banks’ truck was stopped at a stop sign facing the street that she was traveling down, and as she turned, the headlights on her unit illuminated the track. She testified that the stop occurred at approximately 1:15 a.m., and she admitted that part of the reason why she noticed the truck was the time of night. She denied drawing a gun when she walked up to Banks’ truck. She admitted that Banks did not try to flee, and she stated that he was the only person in the truck. Officer Monteleone testified that she felt the bulge in Banks’ jeans during the frisk and that Officer Bissell arrived within a few minutes to complete the frisk. She also stated that she originally was unsure if the bulge in Banks’ jeans was a weapon.

On redirect, Officer Monteleone formally identified Banks as the man she arrested that morning, and she testified that Banks’ truck was stopped at the stop sign in a traffic lane when she saw him.

|4The state introduced the results of the field test and the traffic citation that Officer Monteleone issued to Banks.

Errors Patent

A review of the record for patent errors reveals that the trial court failed to order that the appellant’s two-year sentence be served at hard labor without benefit of parole, as mandated by La. R.S. 40:967 B(4)(b), which provides that the sentence for conviction for possession with the intent to distribute cocaine is two to thirty years at hard labor, the first two years of which must be served without benefit of parole, probation, or suspension of sentence. Thus, the sentence imposed by the court is illegally lenient. However, as per La. R.S. 15:301.1 A and State v. Williams, 00-1725, pp. 10-12 (La.11/28/01), 800 So.2d 790, 798-99, the sentence is deemed to have been imposed with these restrictions of benefits, even when the trial court fails to delineate them. Thus, no need exists for this court to correct the sentence. See State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

Assignment of Error

In his sole assignment of error, Banks contends that the trial court erred by denying his motion to suppress the evidence. Specifically, he argues that the drugs were seized from him pursuant to an investigatory stop, and there was no indication that the officer knew that the bulge that she felt in his pants was contraband. Indeed, the officer testified on cross-examination that she was not sure if what she felt was contraband or a weapon. Banks asserts that the officer could not then seize the bulge containing the cocaine because it was not immediately apparent to her that the bulge was contraband, and thus its seizure cannot be justified under the “plain feel” exception to the warrant requirement.

|fiPer La.C.Cr.P. art. 703 D the state had the burden of showing any evidence seized in the absence of a warrant was lawfully seized. State v. Brown, 09-0722, p. 8 (La.App. 4 Cir. 2/10/10), 32 So.3d 939, 945; see also State v. Wells, 08-2262 (La.7/6/10), 45 So.3d 577. It is well-settled that an appellate court should review a trial court ruling under a deferential standard with regard to factual determinations, while legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751. Moreover, a trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. Wells, p. 5, 45 So.3d at 581.

Banks does not argue that the stop was illegal. Indeed, once Officer Monteleone saw that the truck did not have a brake tag and that Banks was not wearing a seat belt, she was justified in conducting a traffic stop and could detain Banks pursuant to the observed traffic violations. Banks also does not argue that the officer could not frisk him. Given the fact that he hid his hands as the officer approached his truck, moved his shoulders up and down as if he were trying to hide or reach for something, and failed to heed her repeated orders to show his hands, the officer was reasonably justified in believing that Banks may have been armed when she ordered him out of the truck. Moreover, he admitted that he did not have any identification, and his fly remained open. See State v. Jones, 99-0861 (La.App. 4 Cir. 6/21/00), 769 So.2d 28; State v. Lazard, 08-0677 (La.App. 4 Cir. 12/10/08), 2 So.3d 492; State v. Smiley, 99-0065 (La.App. 4 Cir. 3/3/99), 729 So.2d 743; State v. Denis, 96-0956 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295.

Banks argues, however, that the cocaine could not have been lawfully seized pursuant to the “plain feel” exception to the warrant requirement because Officer | BMonteleone testified that she did not know what the bulge was in his pants. As noted in Jones:

If in the course of a frisk pursuant to La.C.Cr.P. art. 215.1(B) an officer feels an object whose contour or mass makes its identity as contraband immediately apparent, the officer may seize it under the “plain feel” exception to the warrant requirement. Fortier, [99-0244 (La.App. 4 Cir. 1/26/00), 756 So.2d 455], citing Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993) and this court’s decision in State v. Anderson, 96-0810 (La.App. 4 Cir. 5/21/97), 696 So.2d 105; State v. Williams, 98-3059, pp. 6-7 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 145-146.

State v. Jones, p. 14, 769 So.2d at 39. See also State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284; State v. Bradley, 03-1518 (La.App. 4 Cir. 1/28/04), 867 So.2d 31. This court discussed the “immediately apparent” prong of this exception in Denis, at pp. 8-9, 691 So.2d at 1300:

However, just as the “plain view” doctrine requires that an object’s incriminating character be immediately obvious when seen, the “plain feel” doctrine requires the tactile discovery of “an object whose contour or mass makes its identity immediately apparent.” Dickerson at 375, 113 S.Ct. at 2137, 124 L.Ed.2d at 346. Thus, in State v. Parker, 622 So.2d 791 (La.App. 4th Cir.), writ denied, 627 So.2d 660 (1993), the seizure of a matchbox containing cocaine detected during a pat-down search was found not to fall within the “plain feel” exception because there was no evidence that a matchbox’s shape was identifiable as contraband. In contrast, in State v. Stevens, 95-501 (La.App. 5th Cir.3/26/96), 672 So.2d 986, the seizure of drugs in a matchbox detected during a lawful pat-down was upheld because the officer testified that her prior experience indicated that most street-level crack dealers carried their drugs in a matchbox. Similarly, where testimony establishes that an object detected during a pat-down was immediately identifiable as a “crack pipe,” suppression of the cocaine residue contained within the pipe is not required. State v. Lavigne, 95-0204 at p. 9, 675 So.2d at 778; State v. Livings, 95-251, pp. 5-6 (La.App. 3d Cir.11/15/95), 664 So.2d 729, 733, writ denied, 95-2906 (La.2/28/96), 668 So.2d 367.

17Here, Officer Monteleone testified that she did not know what was making the bulge in Banks’ pants, most likely because she did not want to conduct a full frisk on Banks, who is of the opposite sex. For this reason she called for backup and had Officer Bissell frisk Banks. Officer Bissell did not testify at the hearing, and it is unknown if it was “immediately apparent” to him that the bulge contained cocaine. Thus, Banks is correct in his assertion that the state failed to prove that the cocaine was lawfully seized pursuant to the “plain feel” exception to the warrant requirement.

However, a separate basis exists for the seizure of the cocaine. Once Banks admitted that he did not have any identification with him, he thusly admitted that he was driving the truck without a license. At that point, Officer Monteleone had probable cause to arrest him for driving without a license. See State v. Parker, 06-0053 (La.6/16/06), 931 So.2d 353; State v. Mathieu, 07-1579 (La.App. 4 Cir. 6/25/08), 988 So.2d 803; State v. Dowell, 03-1143 (La.App. 4 Cir. 9/24/03), 857 So.2d 1098. Incidental to an arrest, an officer may search an arrestee and seize any evidence in his possession. See Id. Because Officer Monteleone had probable cause to arrest Banks, she could search him incidental- to this arrest and find the cocaine, as well as the money. Therefore, no basis existed for the trial court to suppress the evidence. Banks’ claim has no merit.

Conclusion

Although the state did not show that the evidence seized from Banks fell within the “plain feel” exception to the warrant requirement, it was admissible because Officer Monteleone had probable cause to arrest the appellant once he ^admitted that he was driving his truck without carrying a valid license. Pursuant to an arrest for this violation, she could search him and seize the cocaine. The trial court did not err by denying the appellant’s motion to suppress the evidence.

Accordingly, we affirm Banks’ plea of guilty plea and his sentence.

AFFIRMED.

ON APPLICATION FOR REHEARING

We grant a rehearing in this case. We delete footnote number 1 from our original opinion. See also State v. Sherman, 05-0779 (La.4/4/09), 931 So.2d 286. In all other respects, we reaffirm our opinion of March 21 2012.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Vincent E. JOHNSON v. MOTIVA ENTERPRISES, LLC, Anastasia Coleman, Mike Johnson and Corey E. Bazile.
    No. 11-CA-949.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Richard P. Voorhies, III, Richard C. Stanley, Jennifer L. Thornton, Michelle M. West, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Mary S. Johnson, Jill T. Losch, Ingrid M. Kemp, Attorneys at Law, Mandeville, LA, Chad J. Moliere, S. Suzanne Mahoney, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

|aPlaintiff appeals the trial court’s judgment granting defendant’s exceptions of no right and no cause of action determining that plaintiff is precluded from pursuing an action against defendant in tort because defendant is entitled to statutory employer status as provided in La. R.S. 23:1061(A)(3). The trial court failed to rule on the issue raised of whether La. R.S. 23:1061(A)(3) is constitutional. For the reasons discussed below, we vacate the trial court judgment and remand this matter for consideration and determination of the constitutionality of La. R.S. 23:1061(A)(3).

FACTS

On June 10, 2010, plaintiff, Vincent E. Johnson, filed suit against defendants Mo-tiva Enterprises, LLC (hereinafter “Moti-va”), Anastasia Coleman, Mike Johnson, and Corey Bazile, for damages arising out of exposure to toxic chemicals while working at Motiva’s refinery in Norco, Louisiana. Plaintiff alleges that, on January 16, 2010, while working as an environmental cleanup truck driver, he reported to the Motiva Norco refinery to perform tank siphoning and cleaning services. Plaintiff alleges that Motiva’s employees’ negligence caused the vacuum |4line from the tank to spray hazardous and toxic chemicals on plaintiffs person resulting in severe and disabling personal injuries.

On August 16, 2010, defendants filed exceptions of no right of action and no cause of action, asserting that plaintiff is precluded from pursuing an action in tort against defendant but is rather limited to his claims under the Louisiana Worker’s Compensation Act (LWCA). Motiva argues that it is granted statutory employer status through its contract with plaintiffs direct employer as provided by La. R.S. 23:1061(A)(3). Defendants attached to their exceptions the contract between Shell Oil Company (Shell) and AbClean, Inc. filed under seal.

On November 8, 2010, plaintiff filed a First Supplemental and Amending Petition, adding his three minor children as plaintiffs and asserting their loss of consortium claims. The supplemental petition further sought a declaratory judgment on the issue of the constitutionality of La. R.S. 23:1061(A)(3). On December 6, 2010, defendants filed Exceptions to the Supplemental and Amending Petition, re-urging all exceptions to the original petition and asserting an additional exception of no cause of action as to the constitutionality issue of 23:1061(A)(3).

The trial court took the matter under advisement and rendered judgment on April 8, 2011, with written reasons, granting defendants’ exceptions of no cause of action and no right of action. The written reasons for judgment indicate the trial judge found that a valid contract exists between Motiva and AbClean, Inc. and, therefore, Motiva is entitled to statutory employer status as provided by La. R.S. 1523:1061(A)(3). The trial court refused to consider the constitutionality of the statute, finding that the matter could be determined on non-constitutional grounds. Plaintiff timely appeals the judgment.

DISCUSSION

We will begin by addressing plaintiffs argument that La. R.S. 23:1061(A)(3) is unconstitutional. Plaintiff argues that La. R.S. 23:1061(A)(3) violates his constitutional guarantees of due process, equal protection under the law, and access to the courts for an adequate remedy for injuries. He argues the 1997 amendment to the statute permits AbClean, Inc. and Shell to contract away his otherwise vested right to sue Motiva in tort for the injuries sustained. Plaintiff further claims that the statute at issue allows for disparate treatment among employees based upon whether their employers entered into a written contract with a principal regarding statutory employer status.

An appellate court may not consider a constitutional challenge unless it was “properly raised and pleaded in the trial court below.” Vallo v. Gayle Oil Co., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65; Williams v. State, Dept. of Health and Hospitals, 95-0713, p. 4 (La.1/26/96), 671 So.2d 899, 901; State v. Hatton, 2007-2377, p. 13 (La.7/1/08), 985 So.2d 709, 718. The record of the trial court proceeding should be such that an appellate court’s review can determine whether “the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality.” Vallo, 94-1238, p. 8 (La.11/30/94), 646 So.2d at 865; see also Williams v. Jackson Parish Hosp., 31,492 (La.App. 2 Cir. 1/13/99), 729 So.2d 620, 624, writ denied, 99-0458 (La.4/1/99), 742 So.2d 558. In this case, the constitutional issue, although briefed and argued at hearing, was considered by the trial court to be pretermitted.

1 (¡Jurisprudence instructs that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the decision of the case or controversy. Ring v. State, Dept. of Transp. & Dev., 2002-1367, p. 4 (La.1/14/03), 835 So.2d 423, 426; State v. Fleming, 2001-2799, p. 4 (La.6/21/02), 820 So.2d 467, 470. In this case, the determination of whether La. R.S. 23:1061(A)(3) is constitutional is dispositive of the seminal issue on appeal of whether the defendant is entitled to the tort immunity as provided in the statute.

As such, we find that plaintiffs constitutional claim has not been adjudicated by the trial court and therefore is not properly before this court. Accordingly, we vacate the judgment on appeal and remand this case to the trial court for a ruling on the constitutionality of La. R.S. 23:1061(A)(3).

JUDGMENT VACATED; MATTER REMANDED TO TRIAL COURT

      . The record indicates that Mike Johnson was not served and did not make an appearance.

      . Defendants also filed exceptions of improper venue, vagueness or ambiguity, nonconformity of the Petition, and lis pendens. These exceptions are not at issue in the instant appeal.

      . La. R.S. 23:1061(A)(3) provides:
      Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.


author: CLARENCE E. McMANUS, Judge.

text:
    Charles STOLL, III and Gertrude Hurt v. ALLSTATE INSURANCE COMPANY, State Farm Mutual Automobile Insurance Company and Charles Fury.
    No. 11-CA-1006.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Daniel W. Nodurft, Attorney at Law, Chalmette, LA, Robiehaux Law Firm, J. Van Robiehaux, Jr., Brian D. Page, Reneé Robiehaux, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Law Offices of Harold G. Toscano, James A. Stapp, Attorney at Law, Frederick A. Miller & Associates, Sherona G. Alexis, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| ¡¡Plaintiffs, Gertrude Hurt and Charles Stoll III filed suit against Charles Fury and his motor vehicle liability insurer and Hurt’s uninsured/underinsured motorist liability insurer for damages allegedly sustained in a car accident. The matter was heard at a two day trial before a jury. At the end the plaintiffs’ case, counsel’s motion for a directed verdict in favor of plaintiffs on the issue of liability was granted. At the conclusion of trial the issue of damages was presented to the jury who found that plaintiff incurred damages of $0.00 as a result of the accident. In accordance with the jury’s findings, the trial court rendered judgment in favor of defendants, dismissing plaintiffs’ suit with prejudice. Thereafter, plaintiffs filed motions for new trial, additur or judgment notwithstanding the verdict, which were denied by the trial court. This appeal followed.

THE ACCIDENT

The accident at issue occurred on May 8, 2007 at the intersection of Ames and La-palco Boulevards in Marerro, Louisiana. Ms. Hurt was driving her vehicle with Mr. Stoll as a guest passenger. Ms. Hurt stopped at the intersection, and waited for traffic to clear so that she could execute a right hand turn. Mr. Fury was in the vehicle directly behind Ms. Hurt, in a standard transmission pickup truck. He testified that as he turned his head to view traffic coming behind them, his foot |4slipped off the clutch and his truck rolled into Ms. Hurt’s car. Both parties moved their vehicles off the roadway and the police were called.

Ms. Hurt testified that she did not see Fury’s truck prior to the impact. She stated that the impact was hard, and that it caused her to rise off of her seat. She also further testified that her car was not damaged before the impact. After the impact, her trunk was buckled and her bumper was damaged. She had the car repaired at Allstate Collision Center. The final repair bill was $2332.17.

After the collision, Mr. Stoll called the police and an officer arrived 20-30 minutes later. The officer spoke to her and to Mr. Fury, and then Mr. Stoll walked with him over to' where the accident occurred to describe how it happened.

Mr. Stoll also testified that the impact was hard enough to lift him off his seat, and that the top of his head hit the top of the car. Mr. Stoll also testified that he walked over to the scene of the accident with the investigating officer.

Mr. Fury testified that immediately pri- or to the accident he was looking at plaintiffs bumper, and he noticed that it was torn and that the K in B-U-I-C-k was missing. He then turned his head to check the traffic and at that time his foot slipped off of the clutch. Mr. Fury also testified that he did not see Mr. Stoll walked over to the scene of the accident with the investigating officer.

Officer William Hotard testified that he investigated the accident. There were no complaints of injuries and he saw only minor damage to plaintiffs car and no damage to defendant’s truck. His report indicated that he spoke to Ms. Hurt and to Mr. Fury, but there was no indication that he spoke to Mr. Stoll.

All parties admitted that Ms. Hurt and Mr. Stoll did nothing to cause the accident. Neither party reported injury at the scene, nor was an ambulance called.

JjMEDICALS — MS. HURT

The plaintiffs have been in a relationship for 7 years, and they resided in the same house. Mr. Stoll did not drive, as he suffered from epilepsy. Accordingly, they tried to schedule their appointments at the same time, so that Ms. Hurt could transport them both.

Ms. Hurt testified that immediately after the accident she felt shaken up. The next morning she woke up in pain, and she went to see her primary care physician, Dr. Libby Ellent. Ms. Hurt stated that she had a headache, her neck hurt and her back hurt. Dr. Ellent sent her for an X-ray and prescribed muscle relaxers. The x-ray was taken the next day, May 9th, and showed no abnormalities. Ms. Hurt also testified that despite being raised off her seat during the accident impact, she suffered no bruising where her seat belt had been.

Within the next two weeks, Ms. Hurt was referred to Dr. Michael Chambers, by her attorney. She treated with Dr. Chambers for the next 8 months. At trial, Dr. Michael Chambers was qualified as an expert in general practice medicine. He testified that he specialized in people that had been injured in accidents, and that many of his clients were involved in litigation. He first saw Ms. Hurt on May 21, 2008, three weeks after the accident. At this time, she had already been seen by an emergency room physician and her primary care physician. On her first visit, she complained of bilateral neck pain, upper and lower back pain, kidney pain, and anxiety. On examination, she complained of moderate to severe pain on range of movement and exhibited evidence of muscle spasms. He diagnosed cervical strain, lumbar strain, and post traumatic headaches. At this time he recommended treatment two to three times weekly consisting of moist heat, electrical muscle stimulation and ultrasound massage.

|fiDespite treatment, four months post accident, Ms. Hurt still reported severe pain. On examination Dr. Chambers found only some muscle tenderness. He referred her for an MRI. The MRI showed a possible contained subligamentous herniation at L3 — 1, L4-5, and L5-S1. These results matched her description of pain. He stated that while many people had bulging discs, a herniation would mostly likely result from trauma. He further stated that the only trauma that he was made aware of was the May 7, 2008 automobile accident. In October of 2008, he recommended that she consult a neurosurgeon. In December of 2008, Ms. Hurt reported that she had seen Dr. Bradley Bartholomew, a neurosurgeon.

Ms. Hurt’s last visit to Dr. Chambers was on January 21, 2009, and which time she requested that she be discharged from his care. Dr. Chambers stated that at that time, he had exhausted all of his treatment options and nothing else to offer her. In his opinion, Ms. Hurt was not exaggerating or speaking mistruths about her symptoms. Dr. Chambers further stated that he was aware that she had a law suit pending.

In December of 2008, Ms. Hurt was referred by her attorney to Dr. Bradley Bartholomew, a neurosurgeon. At trial, Dr. Bradley Bartholomew was qualified as an expert in neurosurgery. He testified that he first saw Ms. Hurt on December 8, 2008. She complained of constant back pain, a heavy feeling in both legs with occasional numbness, neck pain and occasional headaches. Strength, sensory feeling and reflexes in her arms and legs were normal. The straight leg test, which tests possible herniated discs in the lumbar spine foramen was normal. He felt no spasms in her back or neck, but he noted tenderness in the neck and lower back at the L4-5, L5-S1 levels. She had loss of motion extensions because of her complaints of pain. In her history, Ms. Hurt related to him that she had been in an automobile accident on May 7th. He further related that she stated no previous 17issues with her neck or back. Dr. Bartholomew also reviewed the MRI that had been taken. His findings were that she had multiple abnormalities, any or all of which could have been contributing to her pain.

As Dr. Bartholomew explained, Ms. Hurt was complaining of lumbar pain, and there were abnormalities on the MRI. Her pain could be caused by any of the following; the discs, the facet joints or muscle sprain or strain. He recommended a facet block, which was performed on August 9, 2009. Dr. Bartholomew next saw Ms. Hurt on September 1, 2009 and she reported that that facet block had given about 25% relief, for only two or three days. Accordingly, he could rule that out as a source of pain. A disco gram was not performed, as Ms. Hurt indicated she was not willing to undergo surgery in the event the results were positive.

Dr. Bartholomew next saw Ms. Hurt on October 14, 2010, slightly over one year later. At that time, she complained of back pain more than neck pain. Ms. Hurt had obtained no treatment for her back during the interim. At this point, Dr. Bartholomew would recommend treatment for chronic back strain. Without treatment, Ms. Hurt would suffer chronic pain, but with treatment, the pain should decrease to a bearable level. Dr. Bartholomew also stated that the next step would be a discogram, however because of her weight she would have to undergo a medical examination for health risks before the test could be performed.

At trial, it was also discussed that Ms. Hurt suffered from polycystic kidney disease and that she had a Tarlov cyst on her spine. Dr. Bartholomew opined that these were incidental findings.

Ms. Hurt testifies that at the time of trial, her back continues to be painful all the time; however she takes only Ibuprofen because she does not want to get addicted to pain killers. She further testified that she goes to work, but does not do anything else. She is no longer able to clean house, go to the grocery store, go to IsParades or dance with Mr. Stoll, and cannot stand for more than 30 minutes at a time.

Ms. Hurt also introduced evidence to show that she had incurred $13,198.00 in medical bills up until the time of trial. The amount of these bills was not disputed by defendants.

MEDICALS — MR. STOLL

Charles Stoll testified that he was diagnosed with epilepsy at age 11. The medications for his epilepsy would make him drowsy and cause memory loss, and therefore he was unable to work and he did not drive. Prior to the accident, he had suffered a prior ankle injury for which he had surgery.

Mr. Stoll stated that two days after the accident, he went to the West Jefferson General Hospital Emergency Room with complaints of pain in his neck, back and left extremities. At that time a CT scan was done. He also testified that despite being lifted off his seat when the accident occurred to the degree that he banged his head on the car interior ceiling, he had not suffered any bruising where his seatbelt had been.

On recommendation of his attorney, Mr. Stoll sought treatment with Dr. Chambers. Dr. Chambers stated that he first saw Mr. Stoll on May 21, 2008. At that time he complained of headaches, pain in his left upper jaw, shoulders, back, ribs, left ankle and groin and testicles. His responses on examination ranged from mild to severe pain. Dr. Chambers recommended treatment with moist heat, electric muscle stimulation and ultrasound massages. He also prescribed Lasix, micro K, Vicodin and Flexeril. By his fourth visit, Mr. Stoll was no longer exhibiting muscle spasms. By August, he complained of pain in his shoulders, neck and back; all other symptoms had resolved.

| ¡After treatment proved to be unsuccessful in relieving Mr. Stoll’s pain, Dr. Chambers ordered a lumbar MRI. The results showed a protrusion at L5-S1. The results also revealed a subligamentous herniation of L2-3. Because of a lack of injury in Mr. Stoll’s history, he opined that these findings were caused by the automobile accident. There were other findings consistent with degenerative disc disease. Subsequently, Mr. Stoll also requested that he be discharged from care after he began treatment with Dr. Bartholomew.

Dr. Chambers stated that he did not believe that Mr. Stoll was exaggerating his symptoms and he did not find him to be a malingerer. On cross-examination, Dr. Chambers stated that Mr. Stoll did not mention his epilepsy and did not relate having struck his head during the accident.

Dr. Bartholomew stated that he first saw Mr. Stoll on December 4, 2008. At this visit he complained of low back pain with sporadic pain down his left leg and ankle, and neck pain with sporadic pain down his left bicep. Mr. Stoll did relate that he was an epileptic, however he did not tell of his prior ankle surgery. Dr. Bartholomew stated that, based on Stoll’s history as related to him, Stoll’s complaints were legitimate and related to the accident. Dr. Bartholomew further noted that some of the abnormalities in the MRI were degenerative, which the accident caused to accelerate. Mr. Stoll also underwent a facet block on August 19, 2009, however it failed to relieve any of his symptoms.

As with Ms. Hurt, due to Mr. Stoll’s continued complaints of pain, the next step would be the discogram and possible surgery. And as with Ms. Hurt, because of Mr. Stoll’s size, a medical examination for health risks would have to be performed. At the time of trial, Dr. Bartholomew recommended treatment for chronic back pain.

11ftDr. Jameson a neurologist, testified that she treats Mr. Stoll for his epilepsy, and usually sees him every six months. She saw him in September of 2007, pre-accident, at which time he exhibited symptoms of depression. She next saw him in September of 2008, at which time he again seemed depressed. He did not report being in a car accident, or hitting his head, to her at that time. On his next visit, in February of 2009, he told her about the car accident and his treatment with Dr. Bartholomew. Dr. Jameson reported no exacerbation of his epileptic condition as a result of the accident.

Mr. Stoll testified that as of the time of trial, he could not do many of the things he used to be able to do or that they would take him considerably longer. He further testified that as a result of his years of medication due to his epilepsy, he has a high tolerance to medications and therefore the pain medications do not work well.

Mr. Stoll also introduced evidence at trial to show that he incurred medical bills of $19,544.00 in connection with his treatment. The amount was not disputed by defendants.

DISCUSSION

In this appeal, the plaintiffs allege that the jury committed manifest error in failing to award damages in light of the directed verdict of liability and in the absence of any controverting evidence that plaintiffs’ injuries were the result of the accident. Plaintiffs further allege that the trial court erred in failing to grant their motions for new trial, or judgment notwithstanding the verdict, or an additur awarding damages to the plaintiffs.

Our standard of review in this matter is governed by the following:

A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an Inappellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, 03-3024, p. 6-7 (La.7/2/04), 877 So.2d 89, 94-95; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145, reconsideration denied, 10-2071 (La.1/28/11), 56 So.3d 974.

In addition, plaintiffs also argue that the trial court erred in denying their post-trial motions for JNOV and/or additur and, in the alternative, new trial.

JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is ’ of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact.

Joseph v. Broussard Rice Mill, Inc., 00-0628, (La.10/30/00), 772 So.2d 94, 99.

Plaintiffs allege that the jury erred in finding that they suffered no damages as a result of the accident. Likewise, they allege that the trial court erred in failing to grant a JNOV on the issue of damages. The cause of the accident is not disputed in this matter, as even defendant admits his foot slipped off the clutch and his truck rolled into the back of the plaintiffs’ vehicle. However, in dispute was the whether this accident resulted in damages suffered by plaintiffs. It is well established that in cases such as this, it is the plaintiffs who bear the burden of proof:

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and the complained-of injuries. Spillers v. ABH Trucking Co., Inc., 30,332 (La.App. 2 Cir. 4/13/98), 713 So.2d 505, 509, writ denied, 98-1313 (La.6/26/98), 719 So.2d 1063; American Motorist Insurance Co. v. American Rent—All, Inc., 579 So.2d 429 (La.1991). The test for determining the causal relationship between the accident and subsequent injuries is “whether the plaintiff proved, through medical testimony, that it|12was more probable than not that the subsequent injuries were caused by the trauma suffered in the accident.” Id.

Powell v. Chabanais Concrete Pumping, Inc., 11-408 (La.App. 5 Cir. 12/28/11), 82 So.3d 548.

Plaintiffs first allege that the jury committed manifest error by failing to apply the Housley presumption in considering the causal relationship between the accident and the complained-of injuries.

The Housley presumption, set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), is a legal presumption that “a medical condition producing disability is presumed to have resulted from the accident if the injured person was in good health prior to the accident, but shortly after the accident, the disabling condition manifested itself.” Powell, supra at page.

In the record, there was no instruction on the Housley presumption given to the jury, nor was any requested by the plaintiffs. Because the record fails to show that plaintiffs objected to the lack of a Housley charge, they cannot complain of such a lack on appeal. LSA-C.C.P. art. 1793(C); Compare Dardeau v. Ardoin, 97-144 (La.App. 3 Cir. 11/5/97), 703 So.2d 695, writ denied 98-0359 (La.3/27/98), 716 So.2d 889.

We now turn to the issue of whether the jury committed manifest error in failing to award damages to the plaintiffs.

The initial inquiry 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. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion, (citations omitted).

Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

1 ¡«¡Plaintiffs’ allege that the jury erred in finding they had suffered no injury, in light of the directed verdict of liability and lack of controverting evidence that the plaintiffs’ injuries were the result of the accident. In this case, the treating physicians testified that they concluded that the plaintiffs’ symptoms were caused, at least in part, by the accident. There was nothing presented by defendants to dispute this conclusion. Accordingly, we find that the jury committed manifest error in finding that plaintiffs’ suffered no injury, and in awarding $0.00 for damages, as a result of the accident. We further find error in the trial court’s failure to grant a JNOV on the issue of damages.

After determining that an award for general damages is an abuse of the trial court’s discretion, this Court can review prior awards to determine the highest or lowest point, which is reasonably within that discretion. Mixter v. Wilson, 10-164 (La.App. 5 Cir. 12/14/10), 54 So.3d 1164, 1169.

Ms. Hurt established that she suffered, at the least, a soft tissue injury for which she underwent conservative treatment for almost two years and which continued to cause pain at the time of trial, three years after the accident. In the absence of a disco-gram, which Ms. Hurt had refused to undergo, it was recommended that she continue treatment for chronic back strain. Plaintiff further testified that she continued to experience pain at the time of trial.

Mr. Stoll also established that he suffered, at the very least, a soft tissue injury for which he was treated for almost two years, and that he continued to suffer pain at the time of trial. In addition, because of his prior epileptic condition, he has developed a high tolerance to pain relievers which makes them ineffective.

In Crownover v. City of Shreveport, 43,521 (La.App. 2 Cir. 9/17/08), 996 So.2d 315, the appellate court affirmed an award of $25,000.00 to the elderly plaintiff who suffered a contusion to her left shoulder and cervical strain. She was 114treated for almost one year, and still suffered pain at the time of trial three and one half years later. As a result of the pain, she was limited in her daily activities and no longer drove a car.

In Holland v. State Farm Mut. Auto. Ins. Co., 42,753 (La.App. 2 Cir. 12/5/07), 973 So.2d 134, the plaintiff was injured in a rear end collision and suffered neck and back pain and migraine headaches. At the time of trial 15 months later, she was still experiencing pain. The trial court’s award of $15,000.00 was affirmed.

In Waters v. Brookshire Grocery Co., 07-203 (La.App. 3 Cir. 11/7/07), 969 So.2d 1287, an award of $30,000.00 given to an 82 year old plaintiff who suffered a laceration to her arm and injury to her knee and back was affirmed. The plaintiff continued to suffer pain two and one half years later, at the time of trial, and injury significantly impacted her lifestyle.

In Cole v. Allstate Ins. Co., 2007-1046 (La.App. 3 Cir. 6/5/08), 987 So.2d 310, writ denied, 08-1463 (La.10/31/08), 994 So.2d 535, the appellate court found that an award of $10,000 for neck and back sprain where the neck sprain resolved itself after two years, but the plaintiff continued to suffer chronic lower back pain was inadequate and it raised the award to $30,000.00.

In Simon v. Lacoste, 05-550 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102, plaintiff suffered a soft tissue injury lasting over two years, for which he had multiple healthcare visits and epidural treatment. The appellate court found the jury award of $5,000 abusively low and raised it to $15,000.00.

In light of the above cases, we find that the lowest reasonable award to compensate Ms. Hurt in this matter is $15,000. In addition, we find that the medical expenses incurred by Ms. Hurt were- reasonably related to the accident and that she is entitled to recover her medical expenses of $13,198.00.

|ir,We also find that the lowest reasonable award to compensate Mr. Stoll is $15,000.00. In addition, we find that the medical expenses incurred by Ms. Stoll were reasonably related to the accident and that he is entitled to recover his medical expenses of $19,544.00.

For the above discussed reasons, we amend the jury verdict to award to Ms. Gertrude Hurt $15,000.00 in general damages and $13,198.00 for medical expenses incurred. We further amend the jury verdict to award to Mr. Charles Stoll general damages of $15,000.00 and medical expenses of $19,544.00. All costs are assessed against defendants, appellees.

AMENDED AND AFFIRMED


author: ROBERT A. CHAISSON, Judge.

text:
    George ROBINSON v. Lesa KELLY, Michael Kelly and State Farm Mutual Automobile Insurance Company.
    No. ll-CA-1135.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Thomas E. Campbell, Jacqueline A. Campbell, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    Wm. Ryan Acomb, Michele Trowbridge Barreca, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|PThis is an appeal by George Robinson, plaintiff-appellant, from a summary judgment dismissing his claims for automobile damages against Lesa Kelly, Michael Kelly and State Farm Mutual Automobile Insurance Company, defendants-appellees, on grounds that plaintiff did not carry liability insurance on his vehicle as required by La. R.S. 32:866. For the following reasons, we vacate the judgment and remand the matter to the parish court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The undisputed facts are these. On October 11, 2009, Mr. Robinson drove to church and parked his car on a public street near the church. Lesa Kelly collided with Mr. Robinson’s parked car causing damages estimated by State Farm, Ms. Kelly’s insurer, to be about $1,800. After church, Mr. Robinson got into the vehicle and drove home. At the time, Mr. Robinson did not have liability insurance on the car. State Farm refused to pay the claim, relying on La. R.S. 32:866, familiarly known as the “No Pay ... No Play” statute. Suit was filed |sand State Farm and its insureds urged a motion for summary judgment based on the above statute. Summary judgment was entered in the defendants’ favor and this appeal followed.

LAW AND ANALYSIS

Pursuant to La. C.C.P. art. 966(C)(1), summary judgments shall be granted where there are no material facts in dispute and the mover is entitled to judgment as a matter of law. Section (C)(2) of that article provides that where the movant will not bear the burden of proof at trial, it is sufficient to point out to the court that there is an absence of factual support for some essential element of the opposing party’s claim. Further, La. C.C.P. art. 967 provides that affidavits submitted in conjunction with, or opposed to, motions for summary judgment shall be made on personal knowledge and set forth facts that would be admissible in evidence.

In the present case, Mr. Robinson submitted an affidavit which stated that “his vehicle was legally parked — more particularly, the vehicle was in compliance with all applicable parking regulations.” The defendants argue that this affidavit is defective in that Mr. Robinson did not have personal knowledge of these facts, and further was not qualified to offer an opinion that he was “legally parked.” We disagree. The import of the affidavit is that Mr. Robinson did not observe any signs indicating that he was in a “no parking” or other restricted zone, and that his vehicle was positioned properly in the parking space. This testimony is based on personal knowledge and clearly would be admissible at trial of the matter. If defendants had information that controverted Mr. Robinson’s affidavit, they should have brought it forth in support of their claim that Mr. Robinson could not establish this fact at trial. La. C.C.P. art. 966(C)(2). We therefore reject this argument and rule that there is no factual dispute that the vehicle was legally parked in regard to all applicable parking regulations.

14There being no other facts in dispute, the issue is whether defendants are entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(1). The applicable statute is La. R.S. 32:866 which, at the time of this accident, provided, in pertinent part, that there would be no recovery for the first $10,000 of property damage for an owner or operator of a motor vehicle involved in an accident where the owner or operator did not maintain compulsory liability security. Subpart H of that statute further provides that “[t]he provisions of this Part shall not apply to any vehicle which is legally parked at the time of the accident.”

The argument of the defendants is that once a vehicle becomes uninsured, any operation of that vehicle is illegal, and the fact that the operator parks it for a time during this operation does not cure this illegality. They conclude that such a vehicle thus cannot be “legally” parked. The trial judge subscribed to this argument and found that the car was not “legally parked.” In reaching this conclusion, she stated that “I think Subpart H was enacted to cover those vehicles that happen to be parked legally at a residence because there is no insurance on the vehicle. Not to cover cars that are driven uninsured and then parked legally that are hit (sic).” She therefore applied the “No Pay ... No Play” statute and dismissed plaintiffs suit. This was clear error.

There is nothing ambiguous in the statutory language of La. R.S. 32:866. It does not apply to vehicles “legally parked” at the time of the accident. If, as defendants contend, a vehicle not covered by compulsory liability security is excluded from the category of vehicles that may be legally parked, then Subpart H of La. R.S. 32:866 is rendered wholly meaningless. Nor are we persuaded that Subpart H is intended to exempt only vehicles that are “legally parked” in front of the owner’s residence. There is simply no language in the statute that defines “legally parked” in terms of the geographical location where an uninsured vehicle Ris parked, or in terms of when it was parked in relation to its last operation. Under Subpart H, if a vehicle is parked in compliance with all applicable parking regulations at the time of the accident, then that vehicle is exempt from the “No Pay ... No Play” Rule.

Defendants rely on Dallas v. Hales, 35,883 (La.App. 2 Cir. 5/8/02), 819 So.2d 367, for the rule that when the owner parks his vehicle during a period when he is operating it without insurance, no recovery can be had up to the statutory limit; but where an owner parks his vehicle because it is not insured, and it is subsequently damaged in an accident while parked, La. R.S. 32:866 does not preclude recovery. The facts in Dallas were that the owner of an uninsured vehicle was driving on an interstate highway when it broke down. He parked the vehicle on the shoulder where it was later sideswiped. The district court ruled that the owner could not recover and the appellate court affirmed. Although the above rule was set forth in Dallas, we note that the accident in that case predated enactment of Section H of La. R.S. 32:866. The Dallas court pointed out this time sequence and stated that had the accident occurred after passage of Section H, the court would have had no choice but to rule in favor of the parked vehicle’s owner. We agree with this latter observation.

For the foregoing reasons, the summary judgment in favor of Lesa Kelly, Michael Kelly and State Farm Mutual Insurance Company, defendants-appellees, is hereby set aside, and the matter is remanded to First Parish Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.