author: KNOLL, Justice. KIMBALL, C.J., VICTORY, J.,

text:
    Dr. Kaleem ARSHAD and Nadeem S. Arshad, individually and on behalf of Decedent Dr. Jameela Arshad v. The CITY OF KENNER, the City of Kenner Police Department, Nick Congemi in his Capacity as Police Chief for the City of Kenner, Officer Gerald Miller, Officer Ryan Krummel, Officer Kimberlyn Bright, Sergeant Emile Sanchez, Gemini Insurance Company and Clarendon American Insurance Company.
    Nos. 2011-CC-1579, 2011-CC-1814.
    Supreme Court of Louisiana.
    Jan. 24, 2012.

      Frilot, LLC, James H. Brown, Jr.; Preis & Roy, PLC, Edward Frederick Kohnke, IV, for Applicant (No. 2011-CC-1579).
    Hufft & Hufft, APLC, Patrick Hillary Hufft; Jeansonne & Remondet, LLC, Michael J. Remondet, Jr.; Naquin & Ward, Aub Atkins Ward, for Respondent (No. 2011-CC-1579).
    Frilot, LLC, James H. Brown, Jr.; Jean-sonne & Remondet, LLC, Michael J. Re-mondet, Jr.,; Preis & Roy, PLC, Edward Frederick Kohnke, IV, for Applicant (No. 2011-CC-1814).
    Hufft & Hufft, APLC, Patrick Hillary Hufft; Naquin & Ward, Aub Atkins Ward, for Respondent (No. 2011-CC-1814).
   KNOLL, Justice.

11 This civil case involves the prohibition against jury trials in suits against a political subdivision under the Louisiana Governmental Claims Act, La.Rev.Stat. § 13:5101 et seq., and presents the problematic issue of whether, under La.Rev.Stat. § 13:5105(D), a political subdivision may waive the prohibition against jury trials on a case-by-case basis, as opposed to a blanket waiver. In resolving this issue, the viability of Jones v. City of Kenner, 338 So.2d 606 (La.1976), has again been raised, and thus, we must further determine whether a bifurcated trial is necessary in a suit against a political subdivision and its insurer if the political subdivision has not waived the prohibition, the insurer’s liability is vicarious, not independent, and there are no other nongovernmental defendants.

Plaintiffs, Dr. Kaleem Arshad and Na-deem Arshad (“plaintiffs”), initially requested a jury trial in their petition for damages. Shortly before trial, however, they filed a motion to strike the jury. In response, defendant, the City of Kenner |2(“City”), enacted a resolution waiving the prohibition against jury trials in this specific case and filed a request for a jury trial. The District Court granted the City’s request, finding La.Rev.Stat. § 13:5105(D) permits a political subdivision to waive the prohibition against jury trials on a case-by-case basis. The Court of Appeal reversed, holding the City’s resolution was a prohibited special law because it waived the prohibition against jury trials only in this single case. We granted writs to address the correctness vel non of the appellate court’s decision. Arshad v. City of Kenner, 11-1814 (La.10/12/11); 74 So.3d 712; Arshad v. City of Kenner, 11-1579 (La.10/12/11); 74 So.3d 712. For the following reasons, we find the plain language of La.Rev.Stat. § 13:5105(D) does not permit a political subdivision to waive the prohibition against jury trials in a single case. We further find a political subdivision’s insurer is not entitled to trial by jury where the political subdivision has not waived the prohibition, and the insurer’s liability is vicarious, not independent. Therefore, in suits against a political subdivision and its insurer where there are no other nongovernmental defendants, a bifurcated trial is unnecessary. To this extent we overrule our earlier decision in Jones. Accordingly, we affirm the judgment of the Court of Appeal, but for different reasoning.

FACTS AND PROCEDURAL HISTORY

On January 11, 2008, plaintiffs filed suit against the City, the Kenner Police Department, Nick Congemi, former Chief of Police for the City, and several City police officers (collectively “Kenner defendants”), as well as the City’s liability insurers, Gemini Insurance Company (“Gemini”) and Clarendon American Insurance Company (“Clarendon”) (collectively “insurers”). Plaintiffs allege City police officers falsely arrested decedent, Dr. Jameela Ar-shad, subjecting her to ^unnecessary force and battery, and improperly left decedent unattended in a police car, where she died. Plaintiffs’ petition for damages requested trial by jury. The Kenner defendants and Gemini filed an answer pleading “all procedural and substantive offenses available to them under the ‘Louisiana Governmental Claims Act,’ LSA-R.S. 13:5101 et seq.” In its answer, Clarendon pled these defenses, but also stated “[t]his lawsuit is governed by the provisions of LSA-R.S. 13:5105 which prohibits trial by jury against a political subdivision.”

Plaintiffs’ suit was scheduled for a June 13, 2011 jury trial by the trial court’s pretrial order signed August 16, 2010. Plaintiffs subsequently filed jury charges on April 6, 2011, and, at a pretrial conference, indicated they would be filing additional jury charges. Further, plaintiffs filed motions in limine concerning what evidence should be submitted to the jury. Plaintiffs, however, never posted a jury bond.

On June 1, 2011, twelve days before trial, plaintiffs moved to strike the jury demand. The following day, the Kenner City Council enacted Resolution No. B-16142 (the “Kenner Resolution”) pursuant to La.Rev.Stat. § 13:5105(D) waiving the prohibition against trial by jury “in the matter of Dr. Kaleem Arshad et al. v. City of Kenner.” On June 7, 2011, the Kenner defendants and the insurers filed a motion opposing plaintiffs’ motion to strike and requested a jury trial as to all issues.

After a hearing on both parties’ motions, the District Court granted plaintiffs’ motion to strike and granted the Kenner defendants’ request for a jury. The District Court found the Kenner defendants had fulfilled the requirements of La.Rev.Stat. § 13:5105(D) by enacting the Kenner Resolution and filing a jury request within ten days of the filing of plaintiffs’ motion to strike.

|4The Court of Appeal, Fifth Circuit, granted a supervisory writ and reversed the decision of the District Court. Relying on Edwards v. Daugherty, 97-1542 (La.App. 3 Cir. 3/10/99); 729 So.2d 1112, writ denied, 99-1393 (La.9/17/99); 747 So.2d 1105, the court found a political subdivision cannot grant the right to trial by jury to “a particular litigant in one civil action, and deny it to all others in the same or similar action. That is a violation of the prohibition of passing special laws found in La. Const. art. III, § 12(A).” Arshad v. City of Kenner, 11-608, p. 2 (La.App. 5 Cir. 6/15/11). Further, defendants allowed plaintiffs to “rely on the fact that no resolution to waive a jury trial had been issued and that the Kenner defendants’ motion for jury trial would be denied.” Id. at 3. Accordingly, the appellate court held the Kenner Resolution was in violation of La. Rev.Stat. § 13:5105(D) and due process and therefore invalid. Id.

DISCUSSION

In order to resolve the issues before us, we must examine whether a political subdivision may waive the prohibition against jury trials on a case-by-case basis under the Louisiana Constitution and La.Rev. Stat. § 13:5105(D). Moreover, we must determine, in light of our decision in Jones v. City of Kenner, 338 So.2d 606 (La.1976), whether a political subdivision’s insurer is entitled to a jury trial when the political subdivision has not waived the prohibition. We turn first to our constitutional analysis.

I. La. Const. art. III, § 12(A)

As a general rule, there is no right to a jury trial in civil suits against a political subdivision. The Seventh Amendment of the United States Constitution, ensuring the right to civil jury trials “according to the rules of the common law,” is directly applicable only to the federal government. Rudolph v. Massachusetts Bay Ins. Co., 472 So.2d 901, 903 (La.1985). The United States Supreme Court has |5held the right to jury trials in civil cases is not so fundamental to the American system of justice as to be required of state courts by the due process clause of the Fourteenth Amendment. Id. Similarly, there is no provision in our state constitution guaranteeing the right to a civil jury trial. Riddle v. Bickford, 00-2408, p. 5 (La.5/15/01); 785 So.2d 795, 799.

In Louisiana, the right to a jury trial in a civil case is provided for by statute, namely La.Code Civ. Proc. art. 1731(A), which states “[ejxcept as limited by Article 1732, the right of trial by jury is recognized.” In turn, La.Code Civ. Proc. art. 1732 provides a trial by jury shall not be available in several enumerated categories, including “[a]ll cases where a jury trial is specifically denied by law.” La.Code Civ. Proc. art. 1732(6). La.Rev.Stat. § 13:5105(A) states:

No suit against a political subdivision of the state shall be tried by jury. Except upon a demand for jury trial timely filed in accordance with law by the state or a state agency or the plaintiff in a lawsuit against the state or state agency, no suit against the state or a state agency shall be tried by jury.

In 1996, the Legislature amended La.Rev. Stat. § 13:5105 and added subsection D, providing in relevant part:

Notwithstanding the provisions of Subsection A, a political subdivision, by general ordinance or resolution, may waive the prohibition against a jury trial provided in Subsection A of this Section. ...

We first note political subdivisions have differed in their response to subsection D, with some enacting resolutions waiving the prohibition against jury trials in all cases, and others only waiving the prohibition in a single case. In the | (¡present case, the Court of Appeal held a political subdivision cannot waive its right to a nonjury trial under La.Rev.Stat. § 13:5105(D) in a single case as this would constitute a prohibited special law.

Article III of the Louisiana Constitution prohibits the Legislature from passing a local or special law regarding certain enumerated subjects, including criminal and civil actions. La. Const. art. III, § 12(A)(3). Although the Constitution does not define “local” or “special,” our jurisprudence has distinguished “local or special laws” from “general laws,” which “ ‘operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification.’ ” Deer Enter., LLC v. Parish Council of Washington Parish, 10-0671, p. 5 (La.1/19/11); 56 So.3d 936, 942 (quoting Polk v. Edwards, 626 So.2d 1128, 1134 (La.1993)). The prohibition on local and special laws “‘is intended to reflect a policy decision that legislative resources and attention should be concentrated upon matters of general interest, and that purely local matters should be left to local governing authorities.’” Kimball v. Allstate Ins. Co., 97-2885, p. 4 (La.4/14/98); 712 So.2d 46, 50 (quoting H. Alston Johnson III, Legislative Process, 36 La. L.Rev. 549, 549 (1976)).

Accordingly, this Court has defined “special law” as “one that confers particular privileges, or imposes peculiar disabilities or burdensome conditions in the exercise of a common right upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law.” Id., 97-2885 at 6; 712 So.2d at 52 (citations omitted). Generally, a special law “operates upon and affects only a fraction of the persons or a portion of the 17property encompassed by a classification, granting privileges to some persons while denying them to others.” Id. (citing Huntington Odom, General and Special Laws in Louisiana, 16 La. L.Rev. 768, 770 (1956)). A law, however, will not be deemed special if there is “a substantial difference between the class created and the subjects excluded, and there is a reasonable basis for the distinction.” Id.

The Court of Appeal relied on Edwards v. Daugherty, 97-1532 (La.App. 3 Cir. 3/10/99); 729 So.2d 1112, writ denied, 99-1393 (La.9/17/99); 747 So.2d 1105, hold-tag waiver of the prohibition against jury trials on a case-by-case basis would violate the prohibition against special laws. In Edwards, plaintiffs filed a tort action against numerous parties, including the Sheriff of Calcasieu Parish. The Sheriff filed a motion for a jury trial, attaching a resolution waiving his right to a nonjury trial “in the above-captioned matter.” Id., 97-1532 at 3, 15; 729 So.2d at 1117, 1122. The Third Circuit held a waiver under La.Rev.Stat. § 13:5105(D) is ineffective unless the political subdivision “makes a blanket waiver against a jury trial in all suits, not merely a specific proceeding.” Id., 97-1532 at 13; 729 So.2d at 1121 (emphasis in original). According to the court, to interpret the statute as permitting waiver on a case-by-case basis “would require [the court] to declare it a special law.” Id., 97-1532 at 16; 729 So.2d at 1123.

The law would allow a political subdivision, an extension of the state, to select which civil action it desired to try by jury out of all civil cases filed against it by plaintiffs alleging similar or same causes, without any justification or reason. As such, it would violate Art. III, § 12(A)(3) of the Louisiana Constitution “which prohibits the legislature from passing a special law which affects any particular lawsuit.”

Id., 97-1532 at 16-17; 729 So.2d at 1123 (quoting Kimball, 97-2885, p. 8; 712 So.2d at 53).

We find this reasoning unpersuasive. Article III of the Louisiana Constitution pertains only to the powers and limitations of the Legislature; Article 18VI addresses local governments and contains no such prohibition on local or special laws. Further, Article III, § 12(A) explicitly states “the legislature shall not pass a local or special law ....” (emphasis added). Reading the prohibition on local and special laws to apply to political subdivisions as “extensions of the state,” is not appropriate, as the purpose of the rule is to keep the legislature focused on general matters, with local governments handling local matters.

Although our decision in Kimball v. Allstate Insurance Co., 97-2885 (La.4/14/98); 712 So.2d 46, concerned a blanket waiver by a political subdivision rather than a waiver for a specific case, its reasoning concerning the application of Article III, § 12(A) is relevant to the present matter. In Kimball, the Court first examined a separate subsection of the statute, La.Rev. Stat. § 13:5105(C), which enacted a blanket waiver on the prohibition against jury trials for the City of Baton Rouge and East Baton Rouge Parish. The Court held this portion of the statute constituted a special law because it singled out the City/Parish from all other political subdivisions for special treatment. Id., 97-2885 at 7; 712 So.2d at 52. Further, the Court noted Article III, § 12(A) prohibits “the legislature from passing a local or special law which affects any particular lawsuit,” and La.Rev.Stat. § 13:5105(C) would affect not just an individual lawsuit, but all lawsuits involving the City/Parish.

The Court, however, held a similar waiver enacted by resolution of the Metropolitan Council of the City of Baton Rouge/Parish of East Baton Rouge was permissible under La.Rev.Stat. § 13:5105(D). We found La.Rev.Stat. § 13:5105(D) was not a local or special law, as “[i]t applies to every possible locality throughout the state as well as to every political subdivision.” Id., 97-2885 at 20; 712 So.2d at 61. Our discussion in Kim-ball, regarding whether La.Rev.Stat. § 13:5105(D) was an unconstitutional delegation of legislative power under La. |9Const. art. XII, § 10(C), is also instructive to the instant case. The Court determined La.Rev.Stat. § 13:5105(D) was not an improper delegation of power because

[t]he ability of a private party, in a suit between private litigants, and of a political subdivision, in a suit against it, to elect whether or not to request a jury trial, is not an exercise of legislative power by these parties but rather results from an exercise of legislative power — the legislature’s decision to allow these parties to make this type of tactical decision for themselves.

Id., 97-2885 at 19; 712 So.2d at 60 (emphasis in original). There is a critical difference between the two waivers in Kimball: one was an act of the Legislature and the other an act by the local government. While the blanket waiver by the Legislature failed as a special law, a similar waiver by the City/Parish was constitutionally permissible. Accordingly, we reject the reasoning of the Edwards court suggesting a political subdivision enacting a waiver by resolution could be acting as an extension of the Legislature. Under Kimball, when the Legislature grants authority broadly to all political subdivisions, and a political subdivision acts on this authority, it is not an act of the Legislature and does not implicate Article III, § 12(A).

Thus, we conclude the Kenner Resolution, as an act by a political subdivision and not the Legislature, does not fall under the constitutional prohibition of special laws.

II. La.Rev.Stat. § 13:5105(D)

Although we find the present case does not implicate the prohibition on special laws, this determination does not end our inquiry into whether La.Rev.Stat. § 13:5105(D) permits waiver on a case-by-case basis. The Kenner defendants maintain the language of the statute does not prohibit political subdivisions from waiving their right to a nonjury trial in a single lawsuit. Specifically, the Kenner | indefendants argue the Legislature provided for waiver by either “general ordinance or resolution.” As- resolutions deal with “matters of a special or temporary character,” political subdivisions can enact a waiver for a single case. See James v. Rapides Parish Police Jury, 236 La. 493, 497-98, 108 So.2d 100, 102 (1959) (distinguishing “ordinances” from “resolutions”).

As this presents an issue of statutory interpretation, we begin our analysis with a discussion of the applicable rules. The interpretation of any statutory provision starts with the language of the statute itself. In re Succession of Faget, 10-0188, p. 8 (La.11/30/10); 53 So.3d 414, 420. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written. ABL Mgmt., Inc. v. Bd. of Supervisors of Southern Univ., 00-0798, p. 6 (La.11/28/00); 773 So.2d 131, 135. Words and phrases shall be read within their context and shall be construed according to the common and approved usage of the language. La.Rev.Stat. § 1:3. Further, when interpreting a statute, the court should give it the meaning the Legislature intended. ABL Mgmt., Inc., 00-0798 at 6; 773 So.2d at 135. We presume every word, sentence, or provision in a law is intended to serve some useful purpose, some’effect is given to each such provision, and no unnecessary words or provisions were employed. McGlothlin v. Christus St. Patrick Hosp., 10-2775, p. 11 (La.7/1/11); 65 So.3d 1218, 1228. Consequently, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. Id.

La.Rev.Stat. § 13:5105(D) states in its entirety:

Notwithstanding the provisions of Subsection A, a political subdivision, by general ordinance or resolution, may waive the prohibition against a jury trial provided in Subsection A of this Section. Whenever the jury trial prohibition is waived by a political subdivision, and a jury trial is demanded by the political subdivision |nor the plaintiff in a suit against the political subdivision or against an officer or employee of the political subdivision, the demand for a jury trial shall be timely filed in accordance with law. The rights to and limitations upon a jury trial shall be as provided in Code of Civil Procedure Articles 1731 and 1732.

The Third Circuit in Edwards, examining the plain language of the statute, concluded La.Rev.Stat. § 13:5105(D) prohibits waiver on a case-by-case basis. Specifically, the court based its decision on the provision “[wjhenever the jury trial prohibition is waived by a political subdivision, and a jury trial is demanded by the political subdivision or the plaintiff in a suit against the political subdivision ... the demand for a jury trial shall be timely filed in accordance with law.” (emphasis added). According to this language, the statute envisions a very specific scenario: when the political subdivision waives its right to a nonjury trial, either the plaintiff or the political subdivision may request trial by jury. See Edwards, 97-1542 at 15-16; 729 So.2d at 1123. Once the waiver occurs, the parties are on equal footing with regards to demanding a jury trial. If the right was waivable on a ease-by-case basis, however, “[pjlaintiff could never request a jury trial if the [political subdivision] did not will it; but, the [political subdivision] could demand trial by judge or jury in any case.” Edwards, 97-1542 at 16; 729 So.2d at 1123. In other words, plaintiff would never truly be in a position to demand a jury trial, as the option would always remain with the political subdivision. If this was the intended meaning of La.Rev.Stat. § 13:5105(D), there would be no reason to even mention the plaintiff in the statute. Such a reading would render an essential portion of the statute “meaningless.” Id., 97-1542 at 15; 729 So.2d at 1123; see SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 12 (La.6/29/01); 808 So.2d 294, 302. (“Courts should give effect to all parts of a statute and should not adopt a statutory construction that makes any part superfluous or meaningless”).

| ^Defendants maintain the statute actually provides for two different scenarios: (1) a waiver occurs in a single case, and only the political subdivision can request a jury; or (2) a blanket waiver occurs and both the political subdivision and the plaintiff may request a jury. But this reading is not supported by the plain language of the statute; under a literal application of La.Rev.Stat. § 13:5105(D), once the prohibition is waived, either party can demand a jury. See Pumphrey v. City of New Orleans, 05-979, p. 14 (La.4/4/06), 925 So.2d 1202, 1211 (“[A] court must give effect to the literal application of the language of a statute, including its grammatical construction, except in the rare case where such application will produce absurd or unreasonable results.”). The only scenario provided for in La.Rev.Stat. § 13:5105(D) is for a blanket waiver, offering both plaintiff and the political subdivision equal opportunity to request a jury.

This reading of the statute is supported by our decision in Beauclaire v. Greenhouse, 05-0765 (La.2/22/06); 922 So.2d 501. In Beauclaire, plaintiff was injured in a vehicular accident with an Avoyelles Parish school bus. Following the accident, but prior to plaintiff filing suit, the Avo-yelles Parish School Board passed a resolution waiving the prohibition against jury trials. Id., 05-0765 at 2;. 922 So.2d at 503. In turn, plaintiff claimed La.Rev. Stat. § 13:5105(D) violated the equal protection clause of the Louisiana Constitution. The Court first noted the effect of a La.Rev.Stat. § 13:5105(D) waiver:

Waiver of the prohibition against a jury-trial by the political subdivision effectively places the parties in an equal status in their right to access a jury trial. Prior to waiver, both parties are bound by the provision of LSA-R.S. 13:5105(A) which bans jury trials against political subdivisions of the state. Once the jury trial prohibition is waived in accordance with Section D, either party may demand a jury trial.... Execution of a waiver by a political subdivision returns the |1sparties to the status occupied if the prohibition provided in Section A did not exist.

Id., 05-0765 at 9; 922 So.2d at 507. The Court concluded there was no violation of the equal protection clause, as the waiver by the school board was in place at the time plaintiff filed suit. Thus, “[a]t the time suit was filed either party was entitled to request a jury trial ... both parties had equal access to a jury trial, and [were] treated the same.”

We also find additional language in the státute indicates a blanket waiver is required. La.Rev.Stat. § 13:5105(D) provides a political subdivision may waive the prohibition against a jury trial “by general ordinance or resolution.” (emphasis added). As noted in our discussion of Article III, § 12(A), the term “general” is used in contradistinction to the term “special.” See Deer Enter., LLC, 10-0671 at 5; 56 So.3d at 942. Thus, an ordinance or resolution is general in nature when it affects the entire community, as opposed to a special ordinance or resolution which “grant[s] franchises or special privileges to persons or corporations.” See 5 Eugene McQuillin, The Law of Municipal Corporations § 15.10 (3d ed.2004) (distinguishing general and special ordinances); ef. Deer Enter., LLC, 10-0671 at 5; 56 So.3d at 942 (defining general and special laws).

We also note when the Legislature added La.Rev.Stat. § 13:5105(D) to the Louisiana Governmental Claims Act in 1996, the initial version of the bill amending the Act, provided a political subdivision could waive its right to a nonjury trial by “ordinance or resolution.” H.R. 27, 66th Leg. 1st Extraordinary |HSess. (La.1996). A subsequent version of the bill added the word “general” to “ordinance or resolution.” H.R. 239, 66th Leg. 1st Extraordinary Sess. (La.1996). This change evidences a clear intent by the Legislature to prevent political subdivisions from waiving the prohibition by special ordinances or resolutions. See Deculus v. Welbom, 07-1888, p. 6 (La.10/1/07); 964 So.2d 930, 934. The use of the word “general” further supports an interpretation of the statute, requiring a waiver as to all parties, rather than just in a specific case.

The Kenner defendants propose the use of both “ordinance” and “resolution” in the statute indicates the Legislature intended political subdivisions to have two options; a political subdivision can waive the prohibition in all cases through a “general ordinance” or waive the prohibition on a case-by-case basis through a resolution. This Court and various commentators have distinguished “ordinances” and “resolutions” by noting “ ⅛ resolution deals with matters of a special or temporary character; an ordinance prescribes some permanent rule of conduct or government to continue in force until the ordinance is repealed.’ ” James, 286 La. at 497-98, 108 So.2d at 102 (quoting McQuil-lin, supra, § 15.02). The proper connotation to be placed on a word in a statute, however, does not depend on an isolated definition attributable to it; instead, the word and the context in which it is used shall be considered. David v. Our Lady of the Lake Hosp., 02-2675, p. 11 (La.7/2/03); 849 So.2d 38, 46. We must also consider the law in its entirety to determine its meaning and intent, and construe the provision in a manner consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. SWAT U, 00-1695 at 12; 808 So.2d at 302.

Here, the Legislature deliberately added “general” to describe the method of waiver, and there are reasons the Legislature could have provided for waiver by both ordinance and resolution, which would not conflict with this provision. See | nMcGlothlin, 10-2775 at 11; 65 So.3d at 1228. First, the charters of some political subdivisions contain specific provisions as to what actions by the political subdivision must be enacted through an ordinance and what actions may be passed by either an ordinance or resolution. See, e.g., Breaux v. Lafourche Parish Council, 02-1422, p. 7-8 (La.App. 1 Cir. 5/9/03); 851 So.2d 1173, 1177-78; Eubanks v. City of Opelousas, 590 So.2d 740, 743 (La.App. 3 Cir.1991). By providing the option of acting by either ordinance or resolution, the statute allows political subdivisions to comply with the dictates of their individual charters. Additionally, given a choice, a political subdivision could prefer to act by resolution, as a resolution generally does not require the same “formalities [and] solemnities” as an ordinance. McQuillin, supra, § 15.02; see 2 SandRA M. Stevenson, Antieau on Local GoveRnment Law, § 25.10 (2d ed.2009).

Therefore, we find, under La. Rev.Stat. § 13:5105(D), a political subdivision may only waive their right to a nonju-ry trial through an ordinance or resolution waiving the right in all cases, not in a specific suit. Because the Kenner Resolution waived this right only in the instant case, it is invalid under La.Rev.Stat. § 13:5105(D) and the Kenner defendants are not entitled to a trial by jury.

III. Jones v. City of Kenner

The Kenner defendants argue the Court of Appeal erred in reaching the issue of the validity of the Kenner Resolution because, under Jones v. City of Kenner, 338 So.2d 606 (La.1976), the prohibition on trial by jury does not extend to the City’s insurers, Gemini and Clarendon. Thus, trial by jury was required for the insurers in the instant case, regardless of any action by the City. In turn, plaintiffs contend there is no separate triable issue particular to the insurers, as Gemini’s and Clarendon’s liability depends solely on the negligence of the Kenner defendants. Under these circumstances, requiring a bifurcated trial, where the Kenner ^defendants’ liability is determined by a judge and the insurers’ liability is determined by a jury is wasteful and duplica-tive.

After the Legislature’s 1960 adoption of the forerunner to the Louisiana Governmental Claims Act, which provided “[n]o suit against the state or other public body shall be tried by jury,” courts considered whether in a suit against the state or other political body, the liability of other nongovernmental defendants could be tried by jury. See Fontenot v. Patterson Ins., 080414, p. 6 (La.12/12/08); 997 So.2d 529, 533. Following conflicting decisions by the courts of appeal, this Court initially held jury trials are prohibited against any defendant in a case in which a public body is a party to the principal demand. Jobe v. Hodge, 253 La. 483, 493, 218 So.2d 566, 570 (1969). In Champagne v. American Southern Insurance Co., 295 So.2d 437 (La.1974), however, this Court concluded the liability of nongovernmental defendants could be tried to a jury, while the liability of the public body was tried to the trial judge. Id. at 439. The Champagne court noted La.Code Civ. Proc. art. 1731 recognized the right to jury trial with only certain express exceptions. Id. While the statute prohibited jury trials against the state and other public bodies, there was no express prohibition for nongovernmental defendants who were parties to the suit. Id.

In 1975, the Legislature enacted La.Rev. Stat. § 13:5105, prohibiting jury trials in suits against the state, a state agency, or a political subdivision. Acts 1975, No. 434, § 1. Subsequently, in Jones, plaintiff brought suit against the City of Kenner and its liability insurer. Following Champagne, we found, while La.Rev.Stat. § 13:5105 expressly stated a jury trial is not available to a political subdivision, “it does not extend this exemption from jury trial to the public body’s liability insurer.” Id. at 607. Thus, plaintiffs could not be deprived of their right to a trial against a defendant-insurer because a governmental defendant was joined as 117a party “despite any identity or substantial similarity of the issues against both.” Id. In such cases, as in Champagne, there is to be one trial with the jury deciding issues as to the nongovernmental defendant and the judge as to the governmental defendant. Id. at 608.

In the years since our decision, appellate courts have differed greatly in their approach to Jones. While some courts have strictly applied Jones’s rule requiring a bifurcated trial for a political subdivision and its insurer, other courts have extended the prohibition on jury trials to the insurer when its liability was vicarious, not independent. Generally these courts have found a bifurcated trial was unnecessary where the insurer’s liability was simply contingent on the liability of its insured.

Since our decision, this Court has not returned at length to the issue raised in Jones, and we have never specifically addressed whether a political subdivision’s insurer is entitled to a trial by jury where the political subdivision has not waived its right to a nonjury trial under La.Rev.Stat. § 13:5105(D). In Powell v. Regional Transit Authority, 96-0715 (La.6/18/97); 695 So.2d 1326, however, we addressed a similar issue, whether there should be a bifurcated trial when there were two 1^defendants: a political subdivision, which was only vicariously liable, and its employee. Under these circumstances, we found

separate trials of each defendant with separate triers-of-fact serve no useful purpose except to accord the employee of the targeted defendant his or her arguable statutory right to a jury trial. On the other hand, separate trials promote the substantial possibility of inconsistent decisions on the liability of the employee, with the additional possibility of inconsistent quantum awards.

Id., 96-0715 at 8; 695 So.2d at 1330-31. We find this reasoning equally compelling in the present case. Where an insurer’s liability is vicarious and there is no independent claim against the insurer, separate triers of fact serve no useful purpose, as the insurer’s liability is merely contingent on the political subdivision’s liability. In such cases, where the only triable issues are a political subdivision’s negligence and the extent of damages, the jury would not assess any issue separate and distinct from the political subdivision’s liability. Thus, an additional trier of fact in these cases would provide no benefit, but only unnecessarily complicate the proceedings, and tend to create an absurdity.

We also note the significant possibility of inconsistent decisions. One reason for the reluctance by lower courts to strictly apply Jones may be the practical difficulties inherent in bifurcated trials, particularly the difficulty of resolving conflicting verdicts by the two triers-of-fact. In Thornton v. Moran, 343 So.2d 1065 (La.1977), this Court, in remanding such a case to the court of appeal, directed it to “resolve the differences in the factual findings between the jury and the judge ... and ... render a single opinion based on the record.” Subsequently, courts of appeal have applied varying standards to reconciling verdicts, with some courts employing manifest error review, others the de novo standard, and still 119others in recent cases adopting more complex rules for reviewing conflicting results. Fontenot, 08-0414 at 7-8; 997 So.2d at 534; see, e.g., McDaniel v. Carencro Lions Club, 05-1013, p. 14-15 (La.App. 3 Cir. 7/12/06); 934 So.2d 945, 960, writ denied, 06-1998 (La.11/3/06); 940 So.2d 671; Eppinette v. City of Monroe, 29,366, p. 7-8 (La.App. 2 Cir. 6/20/97); 698 So.2d 658, 665; Aubert v. Charity Hosp. of La., 363 So.2d 1223, 1226-27 (La.App. 4 Cir.1978), writ denied, 365 So.2d 242 (La. 1978); see also Benjamin D. Jones, Comment, Conflicting Results: The Debate in Louisiana Courts Over the Proper Method of Appellate Review for Inconsistent Verdicts of Bifurcated Trials, 56 Loy. L.Rev. 995, 1011-1026 (2010). We have also noted, where reasonable minds could differ with respect to the evidence, a motion for judgment notwithstanding the verdict could not be used as a procedural tool to reconcile conflicting decisions. Davis v. Witt, 02-3102, p. 10 n.14 (La.7/2/03); 851 So.2d 1119, 1126 n. 14 (“This is clearly not the function of a JNOV.”). Further, the difficulty in reconciling conflicting verdicts undercuts the policy of having separate triers of fact for a political subdivision and its insurer because one of the verdicts will be changed in the process, as the Second Circuit has noted:

[Reconciliation] changes one of the verdicts of the two triers-of-fact (most likely the jury’s verdict) which may be reasonably supported by the evidence and not manifestly erroneous. Thus, if a jury’s verdict, which is not manifestly erroneous, may ultimately be “restructured” and overruled by such reconciliation by the trial judge or appellate court, then the rule of Jones requiring the use of two fact finders in the first place is defeated.

Tellis v. Lincoln Parish Police Jury, 40,365, p. 6-7 (La.App. 2 Cir. 12/14/05); 916 So.2d 1248, 1252, writ denied, (La.4/24/06); 926 So.2d 542. While the issue of the correct standard of appellate review for conflicting verdicts is not before us, we are cognizant of the practical difficulties inherent in bifurcated trials in reaching our decision.

| ¡^Therefore, we find a political subdivision’s insurer is not entitled to trial by jury where the political subdivision has not waived the prohibition, and the insurer’s liability is vicarious, not independent. A bifurcated trial is not necessary in such suits where there are no other nongovernmental defendants. Accordingly, we expressly overrule Jones to this extent. In the present case, no party asserts any independent basis for the insurers’ liability; Gemini and Clarendon would only be held liable if the Kenner defendants are held liable. As we noted earlier, the Ken-ner Resolution was an ineffective waiver under La.Rev.Stat. § 13:5105, and thus, neither the Kenner defendants nor the insurers are entitled to a trial by jury.

CONCLUSION

In summary, we find the plain language of La.Rev.Stat. § 13:5105(D) does not permit a political subdivision to waive the prohibition against jury trials in a single case. We further find a political subdivision’s insurer is not entitled to a trial by jury where the political subdivision has not waived the prohibition pursuant to La.Rev. Stat. § 13:5105(D), and the insurer’s liability is vicarious, not independent. As the City did not enact an effective waiver under the statute, neither the Kenner defendants nor the insurers are entitled to a jury trial. Consequently, we affirm the judgment of the Court of Appeal, but for different reasoning.

DECREE

For the foregoing reasons, the judgment of the Court of Appeal is hereby affirmed.

AFFIRMED.

KIMBALL, C.J., concurs in part, dissents in part and assigns reasons.

VICTORY, J., dissents and assigns reasons.

KIMBALL, C.J.,

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

hi concur with the majority’s finding that the plain language of La. R.S. 13:5105(D) does not permit a political subdivision to waive the prohibition against jury trials in a single case. However, I respectfully dissent from the majority’s finding that a political subdivision’s insurer is not entitled to a trial by jury where the political subdivision has not waived the prohibition pursuant to La. R.S. 13:5105(D), and the insurer’s liability is vicarious, not independent. For the following reasons, I believe the political subdivision’s insurers are entitled to a trial by jury in this case.

It has long been the stance of this Court that the right of a litigant to a jury trial is fundamental in character and the courts will indulge every presumption against a waiver, loss, or forfeiture thereof. Champagne v. American Southern Ins. Co., 295 So.2d 437, 439 (La.1974). Louisiana Code of Civil Procedure article |21731(A) states, “Except as limited by Article 1732, the right of a trial by jury is recognized.” Relevant to the instant case is La. C.C.P. art. 1732(6), which provides a jury trial shall not be available in “[a]ll cases where a jury trial is specifically denied by law.” Louisiana Revised Statute 13:5105(A) clearly provides for an instance where a jury trial against a political subdivision of the state is denied by law. However, the majority opinion fails to cite any law or any other provision under La. C.C.P. art. 1732 which would prevent an insurer of a political subdivision from demanding a jury trial.

The majority provides no legal basis for expressly overruling any portion of this Court’s decision in Jones v. City of Kenner, wherein this Court held the plaintiffs could not be deprived of a jury trial against a defendant-insurer because a governmental defendant was joined as a party despite any identity or substantial similarity of the issues against both. 338 So.2d 606, 607 (La.1976). The majority cites this Court’s decision in Powell v. Regional Transit Authority in support of its finding that bifurcated trials serve no useful purpose and only promote the possibility of inconsistent decisions. 96-0715 (La.6/18/97); 695 So.2d 1326. |..However, the majority’s reliance on the particular language quoted from Powell appears to be misplaced. In Powell, this Court addressed whether there should be a bifurcated trial when there were two defendants: one defendant was an employee of a political subdivision, and the other defendant was the political subdivision, which was only vicariously liable for its employee’s actions. After initially stating the language quoted in the majority’s opinion, this Court in Powell went on to find the lower court failed to recognize the legislá-ture had in fact provided a solution in its 1998 amendment of La. R.S. 9:5101, which read in conjunction with La. R.S. 9:5105, extended the prohibition of jury trials against political subdivisions to its employees assuming the employee’s actions arose out of the discharge of his official duties or within the course and scope of his employment. As this Court pointed out in Powell, the basis for the denial of a jury trial against the political ^subdivision's employee was one in law pursuant to La. C.C.P. art. 1732(6). Unlike Powell, there is no such applicable law in this case which would prohibit the political subdivision’s insurers from requesting a jury trial.

As articulated by the majority, I am well aware of the practical difficulties which are inherent in bifurcated trials. However, it appears the legislature is as well, as evidenced by its 1998 amendment to La. R.S. 9:5101, which extended the prohibition against jury trials to employees of political subdivisions. It is the role of the legislature to enact legislation which would limit the right to trial by jury afforded by La. C.C.P. art. 1731. Since a political subdivision’s insurer’s right to a jury trial has not specifically been denied by law, in my opinion, the majority erred in overruling Jones to the extent it found a political subdivision’s insurer is not entitled to a trial by jury where the political subdivision has not waived the prohibition pursuant to La. R.S. 13:5105(D), and the insurer’s liability is vicarious, not independent.

For the reasons stated herein, I respectfully concur in part and dissent in part.

VICTORY, J.,

dissents.

|,I dissent from the majority opinion because in my view, La. R.S. 13:5105(D) permits a political subdivision to waive the prohibition against jury trials on a case-by-case basis. If the legislature had intended to prohibit a political subdivision from waiving the prohibition on-a case-by-case basis, it would not have worded La. R.S. 13:5105(D) to allow the prohibition to be waived by “resolution,” as resolutions deal with “matters of a special or temporary character.” James v. Rapides Parish Police Jury, 236 La. 493, 497-98, 108 So.2d 100, 102 (1959) (distinguishing “ordinances” from “resolutions”). Further, the statute allows the political- subdivision to “waive the prohibition against a jury trial ...” La. R.S. 13:5105(D) (emphasis added). The use of the singular, “a jury trial,” clearly indicates the legislature’s intent to allow a waiver in a single case. In addition, I disagree with the majority’s reasoning that the legislature must have intended to only allow blanket waivers because they wanted the 12parties to be on equal footing with regards to demanding a jury trial. Private parties and political subdivisions are simply not on equal footing in trials against the political subdivision from the outset by virtue of La. R.S. 13:5105(A), which prohibits private parties from demanding a jury. It is within the political subdivision’s sole discretion to allow a jury trial under La. R.S. 13:5105(D), whether this is done by blanket waiver or for a single case. Simply put, the parties are not on equal footing prior to the waiver or after.

Finally, in determining whether La. R.S. 13:5105(D) violated La. Const. art. VI, § 25, the Court in Kimball concluded that “[t]he adoption of a resolution, pursuant to a statute giving the political subdivision the power to adopt it, which allows for that political subdivision to ivaive the prohibition of R.S. 13:5105(A) and elect on a case-by-case basis whether it desires a jury trial,” does not violate La. Const. art. VI, § 25. Kimball v. Allstate Ins. Co., 1997-2885, (La.4/14/98), 712 So.2d 46, 61-62 (emphasis added). Although the specific question of whether the statute allowed waiver on a case-by-case basis was not at issue in Kimball, this statement can be seen to reflect the Court’s interpretation of La. R.S. 13:5105(D) at that time.

As La. Const. art. III, § 12(A), prohibiting “special laws,” applies only to the powers and limitations of the Legislature, and not political subdivisions, Op. at 482-84, I see no reason why the statute cannot be applied as written to allow the City of Kenner to enact a resolution waiving the prohibition against jury trials in this specific case.

For the above reasons, I respectfully dissent.

      . We note the initial writ application was filed by the City alone, but a second writ application was filed by all defendants. Both writ applications have been consolidated in this proceeding.

        . Compare Beauclaire v. Greenhouse, 05-0765, p. 2 (La.2/22/06); 922 So.2d 501, 503; Kimball v. Allstate Ins. Co., 97-2885, p. 8-9 (La.4/14/98); 712 So.2d 46, 53 (blanket waivers), with Slidell, La., Resolution R98-59 (Nov. 10, 1998), available at http://www. slidell.la.us/citycouncil/files/Resolutions/1998/ R98-59.pdf (waiving the prohibition against jury trial in Sechrest v. City of Slidell) (last visited Jan. 9, 2012); Calcasieu Parish School Board, Resolution Waiving Prohibition Against a Jury Trial in the Matter Entitled: Haley v. Calcasieu Parish School Board; Docket # 97-8729, 14th Judicial District Court (July 28, 1998), available at http://www. cpsb.org/system/policies/caps/Minutes/Added Min/98-07-28.htm (last visited Jan. 9, 2012).

      . We note the school board in Beauclaire waived the right to a civil jury trial in all cases, and this waiver was well in place before suit was filed. See Beauclaire, 05-0765 at 9; 922 So.2d at 507.

      . In Kimball v. Allstate Ins. Co., 97-2885, p. 21 (La.4/14/98); 712 So.2d 46, 61, while addressing whether a La.Rev.Stat. § 13:5105(D) waiver was unconstitutional under La. Const. art. VI, § 25, this Court stated in apparent dicta "[t]he adoption of a resolution ... which allows for that political subdivision to waive the prohibition of R.S. 13:5105(A) and elect on a case-by-case basis whether it desires a jury trial, does not ‘establish’ or ‘affect’ any ‘court’ or ‘court officer' within the meaning of this constitutional provision.” As the issue was merely whether a waiver constituted an "assertion of municipal authority into judicial procedure,” this comment made no part of the holding of the case.

      . See Tallis v. Lincoln Parish Police Jury, 40,365, p. 5-7 (La.App. 2 Cir. 12/14/05); 916 So.2d 1248, 1251-52, writ denied, 06-0152 (La.4/24/06); 926 So.2d 542; Smith v. City of Lake Charles Police Dep’t, 03-155, p. 2-3 (La.App. 3 Cir. 11/5/03); 858 So.2d 869, 871, writ denied, 03-3320 (La.2/13/04); 867 So.2d 696; Konneker v. Sewerage & Water Bd. of New Orleans, 96-2197, p. 4-5 (La.App. 4 Cir. 11/19/97); 703 So.2d 1341, 1344-45, writ denied, 97-3137 (La.2/13/98); 709 So.2d 760; Scurria v. Madison Parish Police Jury, 566 So.2d 1077, 1082 (La.App. 2 Cir. 1990); McCoy v. Ouachita Parish Police Jury, 564 So.2d 747, 749-50 (La.App. 2 Cir. 1990).

      . See Jackson v. Madison Parish Sch. Bd., 34, 228, p. 10-11 (La.App. 2 Cir. 1/24/01); 779 So.2d 59, 66; DeCourt v. Caracci, 97-393, p. 5-6 (La.App. 5 Cir. 11/12/97); 704 So.2d 42, 46, writ denied, 97-3095 (La.2/13/98); 709 So.2d 756; Doe v. Bd. of Supervisors of La. State Univ., 517 So.2d 488, 490-91 (La.App. 1 Cir.1987); Dean v. Terrebonne Parish Police Jury, 510 So.2d 82, 86 (La.App. 1 Cir.1987).

      . In Powell, we resolved this issue by looking to the 1988 amendment making the Louisiana Government Claims Act applicable to “any suit ... against an officer or employee of a political subdivision arising out of the discharge of his official duties or within the course and scope of his employment,” which had been overlooked by the trial court. Powell, 96-0715 at 8-9; 695 So.2d at 1331.

      . Under Champagne, trials involving governmental defendants and nongovernmental defendants, other than insurers of a political subdivision where the insurer's liability is vicarious, would still be tried separately, with the jury deciding issues as to the nongovernmental defendants and the judge as to the governmental defendants. See Champagne, 295 So.2d at 439.

      . La. C.C.P. art. 1732 provides:
      A trial by jury shall not be available in:
      (1) A suit where the amount of no individual petitioner's cause of action exceeds fifty thousand dollars exclusive of interest and costs.
      (2) A suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want, or failure of consideration.
      (3) A summary, executory, probate, partition, mandamus, habeas corpus, quo war-ranto, injunction, concursus, workers' compensation, emancipation, tutorship, interdiction, curatorship, filiation, annulment of marriage, or divorce proceeding.
      (4) A proceeding to determine custody, visitation, alimony, or child support.
      is) A proceeding to review an action by an administrative or municipal body.
      (6) All cases where a jury trial is specifically denied by law.

      . The majority quoted the following language from Powell:

      separate trials of each defendant with separate triers-of-fact serve no useful purpose except to accord the employee of the targeted defendant his or her arguable statutory right to a jury trial. On the other hand, separate trials promote the substantial possibility of inconsistent decisions on the liability of the employee, with the additional possibility of inconsistent quantum awards.

        Powell, 96-0715 at 8; 695 So.2d at 1330-31.

      . In Powell this Court stated:
      In 1988, the Legislature amended La.Rev. Stat. 13:5101, which had previously made La.Rev.Stat. 13:5101-5114 (now known as the Louisiana Governmental Claims Act) applicable "to any suit ... against the state, a state agency, or a political subdivision of the state.” The 1988 amendment made La. Rev. Stat. 13:5101-5114 also applicable to "any suit ... against an officer or employee of a political subdivision arising out of the discharge of his official duties or within the course and scope of his employment.” When Section 5101 after the 1988 amendment is read together with Section 5105, the prohibition of jury trials against a political subdivision in Section 5105 extends to employees of the political subdivision when the suit arose out of the discharge of the officer's or employee’s official duties or the officer or employee was in the course and scope of employment at the pertinent time. Thus any actions against both a political subdivision and its employee tried after the 1988 amendment to Section 5101 should have been tried by the judge alone without a jury.

        Powell, 96-0715 at 8; 695 So.2d at 1331.

      . Although the majority briefly refers to how Powell was ultimately resolved in footnote 7, it fails to reconcile the fact that the foundation of the Powell decision was based on legislation which provided certain instances where the prohibition of jury trials against political subdivisions extended to its employees. As stated above, the majority fails to cite any such legislation that would extend the prohibition of jury trials against political subdivisions to a political subdivision’s insurer.


source: Caselaw Access Project

license: Public Domain

text:
    In re Rebecca Lynn VISHNEFSKI.
    No. 2012-OB-1716.
    Supreme Court of Louisiana.
    July 25, 2012.
   ORDER

| Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Rebecca Lynn Vishnefski, Louisiana Bar Roll number 26965, be and she hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as she resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Marcus R. Clark Justice, Supreme Court of Louisiana


author: PAINTER, Judge.

text:
    Dana GARY v. ST. LANDRY SECURITY GUARD SERVICES, INC.
    No. 11-1445.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.
    Rehearing Denied May 16, 2012.
    H. Douglas Hunter, Attorney at Law, Opelousas, LA, for Defendant-Appellee, St. Landry Security Guard Services, Inc.
    Michael B. Miller, Attorney at Law, Jacqueline B. Manecke, Crowley, LA, for Plaintiff-Appellant, Dana Gary.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

I,Claimant, Dana Gary, appeals the judgment of the Office of Workers’ Compensation dismissing his claim based upon the finding that he did not prove that he suffered a work-related accident or injury. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Dana Gary, age 64, was employed as a night watchman by St. Landry Security Guard Services, Inc. and had been so employed for about eight months at the time of the alleged incident. He was assigned to work at Acadiana Medical Center. There was a station where he sat, and he was required to periodically make rounds through the hospital. Gary had pre-exist-ing neck and back conditions as well as other major medical conditions, which were known by his employer.

Gary contends that he was injured during the course and scope of his employment on October 11, 2008, while assisting Huey Riviere, an employee of Frey Holding Corporation, which provided laundry services to the hospital. Gary alleges that he was pulling a laundry basket when Rivi-ere pushed another laundry basket into his basket and caused him to be pushed into a wall and re-injure his neck and back. The baskets weighed between two hundred and four hundred pounds each.

Following a trial, the Workers’ Compensation Judge (WCJ) dismissed Gary’s claim finding that he had not met his burden of proving that he suffered a work-related accident or injury. Gary now appeals, asserting that the WCJ applied the wrong standard in determining whether or not there was an accident and that he was, in fact, injured in the course and scope of his employment. He also alleges the aggravation of his pre-existing neck and back conditions. Gary further asserts that the WCJ erred in not allowing Ms. Frey to testify at trial and in refusing to admit two pages of the adjuster’s log into evidence. Finally, Gary asserts that he is entitled to penalties, attorney’s fees, expenses, and interest. For the reasons that follow, we affirm the WCJ’s ruling.

1 .DISCUSSION

In Bruno v. Harbert Int'l. Inc., 593 So.2d 357, 360-61 (La.1992), the Louisiana Supreme Court stated:

As a threshold requirement, a worker in a compensation action must establish “personal injury by accident arising out of and in the course of his employment.” LSA-R.S. 23:1031 (emphasis supplied).
Despite the liberal construction of the statute afforded the worker in a compensation action, the worker’s burden of proof is not relaxed. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Rather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Id.; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991).] A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson, supra. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farms [Farm ], Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases). Indeed, the manifest error/clearly wrong standard of appellate review applies in compensation actions even when the trial court’s decision is based solely upon written reports, records or depositions. Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825 (La.1987).
Attempting to give meaning to the nebulous terms “clearly wrong” and “manifest error,” we recently enunciated the following general principles that govern an appellate court’s power to reverse a trial court’s factual findings:
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong |sstandard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. Esco [ESCO ], 549 So.2d.840, 844-45 (La.1989) (citations omitted and emphasis supplied).

The WCJ found that the subject accident was unwitnessed and applied the Bruno standard. Gary contends that this was the incorrect standard to use because the accident was witnessed by Riviere. Defendant contends that since Riviere denied having witnessed the accident, it was, in fact, an unwitnessed accident, and, therefore, the WCJ applied the correct standard. We agree with Defendant.

This court, in Bell v. Our Lady of Lourdes Regional Medical Center, 10-1554 (La.App. 3 Cir. 6/1/11), 68 So.3d 1174, found that where an alleged witness to an alleged accident denies having knowledge of such an occurrence,’ the alleged accident is considered to be unwitnessed.

In this case, Riviere unequivocally stated in his testimony that he never saw the injury, did not witness the injury, and did not cause the injury. He further testified that he did not know what happened to Gary but was aware of an allegation of injury. Accordingly, we find that the WCJ was correct in treating this as an unwit-nessed accident. Moreover, we can find no error in the WCJ’s application of the Bruno standard. The WCJ found that Gary tried to downplay his pre-existing conditions and that his evasiveness, his demeanor, his responses to questions, and the tenor of his responses cast serious doubt on his testimony, as a whole. The WCJ found Gary not to be a credible witness.

|4Riviere also testified that he was certain that the cart that he was moving did not come into contact with the cart that Gary was pushing. The WCJ noted that it would have been very difficult for the accident to occur as Gary described. Further, Gary testified that he did not initially report the incident or go to the doctor because he thought it was just a little exacerbation that would go away. The WCJ found Riviere to be a credible witness, and we find no manifest error in that finding.

After a thorough review of the record, we agree with the WCJ that the first prong of Bruno was not satisfied by Gary because there -was other evidence that discredited . and cast serious doubt on his account of events. Riviere consistently denied having witnessed any injury. Gary’s own testimony was found not to be credible. Thus, there was no manifest error in the WCJ’s determination that Gary failed to meet his burden of proving that a work-related accident occurred.

The WCJ also made two alternative findings. First, the WCJ found that any alleged accident did not arise out of Gary’s employment. Gary was assisting in moving laundry carts. This was not part of his duties as a night watchman. Second, the WCJ found that there was no exacerbation of Gary’s neck problems. However, because we affirm the WCJ’s finding that Gary failed to prove that an accident occurred, we need not address the WCJ’s alternate findings or Gary’s additional assignments of error.

DECREE

For all of the foregoing reasons, the WCJ’s ruling dismissing Gary’s claim is affirmed. All costs of this appeal are assessed to Plaintiff-Appellant, Dana Gary.

AFFIRMED.


author: TERRI F. LOVE, Judge.

text:
    J.C. WILLIAMS and Betty Williams v. ASBESTOS DEFENDANTS; Bucyrus International, Inc.; CBS Corporation (f/k/a Westinghouse Electric Corporation); the Dow Chemical Company; Entergy Louisiana, LLC; Entergy New Orleans, Inc.; Foster-Wheeler LLC (Formerly Foster-Wheeler Corporation); General Electric Company; et al.
    No. 2011-CA-0716.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2012.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Jonathan B. Clement, Lauren R. Clement, Leonard K. Fisher, III, Benjamin P. Dinehart, Roussel & Clement, La-Place, LA, for J.C. Williams and Betty Williams.
    Kevin R. Derham, Andrew Weinstock, Duplass Zwain Bourgeois Pfister & Wein-stock, Metairie, LA, for Bucyrus, International, Inc.
    John J. Hainkel, III, Angela Bowlin, James H. Brown, Jr., Peter R. Tafaro, Meredith K. Keenan, Rebecca A. Zotti, Frilot, LLC, New Orleans, LA, for Foster Wheeler, LLC.
    Marcus Brown, Cory R. Cahn, Gary M. Carter, Jr., Entergy Services, Inc., New Orleans, LA, for Entergy Louisiana, LLC & Entergy New Orleans, Inc.
    Gary A. Bezet, Barrye Panepinto Miya-gi, Robert E. Dille, Gregory M. Anding, Janice M. Culotta, Carol L. Galloway, Allison N. Benoit, Sarah K. Weissman, Kean Miller LLP, Baton Rouge, LA, for Shell Oil Company & Shell Chemical Company.
    Jamie H. Baglio, Margaret M. Joffe, A. Wendel Stout, III, Deutsch Kerrigan & Stiles, LLP, New Orleans, LA, for ANCO Insulations, Inc.
    William C. Harrison, Jr., Theodore L. White, A. Wendel Stout, III, Jennifer E. Adams, Deutsch Kerrigan & Stiles, LLP, New Orleans, LA, for Riley Power, Inc.
    Deborah D. Kuchler, McGready L. Richeson, Ernest G. Foundas, Michael H. Abraham, Francis X. deBlanc, Kuchler Polk Schell Weiner & Richeson, LLC, New Orleans, LA, for Union Carbide Corporation.
    David M. Bienvenu, Jr., John Allain Via-tor, Lexi T. Holinga, Bienvenu Bonnecaze Foco Viator Holinga APLLC, Todd S. Manuel, Kathryn C. Goodson, John M. Parker, Jr., Taylor Porter Brooks & Phillips, LLP, Baton Rouge, LA, for The Dow Chemical Company.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

It This appeal arises from the personal injury and death of J.C. Williams from asbestos-related lung cancer, asbestosis and/or other complications. J.C. Williams and his wife filed a petition against multiple defendants seeking damages from alleged asbestos exposure. After the death of J.C. Williams and multiple motions for summary judgment, the trial court dismissed two defendants, held that punitive damages were not permitted, and denied a partial motion for summary judgment regarding the applicability of comparative fault. The trial court certified all of its judgments as final and appealable. We find that the trial court erroneously made a finding of fact in determining that comparative fault principles do not apply to the case sub judice. Therefore, we grant the defendants’ writ. We find that the trial court erred by granting summary judgment in regards to the applicability of punitive damages due to the need to evaluate subjective facts for proper adjudication. Additionally, we find that the trial court erred by granting Union Carbide Corporation’s motion for summary judgment regarding causation because genuine issues of material fact exist as to whether it exposed J.C. Williams to asbestos and if the exposure was a substantial contributing factor. We also find that the trial court erred in granting Dow’s partial motion for summary judgment ^regarding causation. Therefore, we reversed and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

J.C. and Betty Williams (collectively “Plaintiffs”) filed a petition for damages, which alleged that Mr. Williams was exposed to various sources of asbestos at the workplace between 1980 and 1998, against Riley Power Incorporated (“Riley”); Bucy-rus International, Incorporated (“Bucy-rus”); Dow Chemical Company (“Dow”); Entergy Louisiana, LLC (“ELL”); Enter-gy New Orleans, Incorporated (“ENOI”); Foster Wheeler, LLC (“Foster”); General Electric Company (“GE”); Shell Chemical Company (“Shell Chem”); Shell Oil Company (“Shell”); CBS Corporation (“Westinghouse”); and Union Carbide Corporation (“UCC”). Shell Chem filed an answer and an exception of no cause of action because the Plaintiffs’ petition allegedly incorrectly named a company that does not exist and asserted that the real name of the company was Shell Chemical LP. Exceptions were also filed on behalf of UCC, Dow, ELL, ENOI, and Shell. Mrs. Williams then filed a supplemental and amended petition, following Mr. Williams’ death, adding their two children as plaintiffs. The petition also included survival and wrongful death claims. The Plaintiffs’ second supplemental and amended petition included ANCO Insulations, Incorporated (“ANCO”) as an additional defendant.

UCC, Foster, Dow, Bucyrus, Riley, and Shell filed a joint motion for summary judgment alleging that comparative fault principles apply to the Plaintiffs’ claims, that punitive damages are not permitted, and that the Plaintiffs’ could not meet their burden of product identification and causation. The Plaintiffs’ filed an opposition, which contained a statement that they dismissed claims for punitive damages against Bucyrus.

|,^Following a hearing on the motion, the trial court granted the motion for summary judgment regarding UCC and Dow, which dismissed them as parties. The motion for summary judgment regarding causation was denied as to all other defendants. The trial court further denied the partial motion for summary judgment regarding punitive damages, finding that there was no evidence of a wanton and reckless disregard for public safety in the storage, handling, and transportation of asbestos. Then, the trial court certified all of the judgments as final and appealable pursuant to La. C.C.P. art. 1915.

After the trial court’s judgment, ELL and ENOI filed a motion for joinder in the partial motion for summary judgment on punitive. damages and comparative fault, alleging that they were inadvertently omitted from the original motion for summary judgment. The trial court granted the motion for joinder. The trial court then issued a judgment denying the partial motion for summary judgment by ELL, ENOI, and ANCO in regards to both punitive damages and comparative fault. However, the trial court issued a corrected judgment the next day, which, as to UCC, Foster, Dow, Bucyrus, Riley, Shell, ELL, ENOI, and ANCO (collectively “Defendants”) granted the partial motion for summary judgment holding that punitive damages were not applicable to the case sub judice and denied the partial motion for summary judgment holding that the law of comparative fault was not applicable. The judgment was also certified as final and appealable.

The Defendants’ motion and order for a devolutive appeal of the last judgment followed. The Defendants allege that the trial court erred in finding that comparative fault does not apply because all of Mr. Williams’ alleged exposures to asbestos occurred after the passage of Louisiana’s Comparative Fault Act in 1980, which made comparative fault law applicable, as opposed to pre-1980 |4virile share principles.

The Plaintiffs also filed an order for a devolutive appeal of the first judgment dismissing Dow and UCC and of the last judgment regarding punitive damages. The Plaintiffs assert that the trial court erred in dismissing Dow and UCC and that the doctrine of punitive damages should apply.

STANDARD OF REVIEW

A motion for summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). “The burden of proof remains with the movant.” La. C.C.P. art. 966(C)(2). “[I]f the movant will not bear the burden ■ of proof at trial ... the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(C)(2). Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). Afterwards, if the non-moving party “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

Rulings on motions for summary judgment are reviewed employing the de novo standard of review. Orleans Parish Sch. Bd. v. Lexington Ins. Co., 11-0009, p. 8 (La.App. 4 Cir. 10/5/11), 76 So.3d 592, 597. “In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Coto v. J. Ray McDermott, S.A., 99-1866, p. 4 (La. App. 4 Cir. 10/25/00), 772 So.2d 828, 830. Is See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 16 (La.2/29/00), 755 So.2d 226, 236. “As this court has explained, a ‘genuine issue’ is a ‘triable issue,’ or one as to which reasonable persons could disagree.” Hogg v. Chevron USA, Inc., 09-2632, p. 6 (La.7/6/10), 45 So.3d 991, 997, quoting Champagne v. Ward, OS-3211, p. 5 (La.1/19/05), 893 So.2d 773, 777. A fact is material when “the existence or non-existence of which may be essential to a cause of action under the applicable theory of recovery.” Id. “A summary judgment is rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith.” Coto, 99-1866, p. 4, 772 So.2d at 830.

COMPARATIVE FAULT

The Defendants contend that the trial court erred in denying their partial motion for summary judgment regarding the applicability of comparative fault principles.

La. C.C.P. art. 1915(B)(1) Certification

The Court first notes that the Defendants seek appellate review of a denial of a partial motion for summary judgment, which is an interlocutory judgment. The trial court certified the judgment as final and appealable pursuance to La. C.C.P. art. 1915(B)(1). However, “[a]n interlocutory judgment is appealable only when expressly provided by law.” La. C.C.P. art. 2083(C). “An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” La. C.C.P. art. 968. Therefore, “the denial of a summary judgment cannot be certified as final and appealable.” Safeguard Storage Props., L.L.C. v. Donahue Favret Contractors, Inc., 10-0673, p. 20 (La.App. 4 Cir. 3/31/11), 60 So.3d 110, 123. Although the transcript contains a discussion between the trial court judge |6and the attorneys as to whether there was no just reason for delay, the judgment remains interlocutory. See Yokum v. Van Calsem, 07-0676, pp. 5-7 (La.App. 4 Cir. 3/26/08), 981 So.2d 725, 730.

This Court is not time-barred from converting the Defendants’ appeal into an application for supervisory review if the motion for devolutive appeal was filed within thirty days of the notice of judgment. Rule 4-3, Uniform Rules — Courts of Appeal. As both motions for appeal were filed within a few days of the notice of judgment, which was well within the thirty-day time delay for filing an application for supervisory review, we are not time-barred from conversion of the appeal. Therefore, we exercise our discretion and convert the Defendants’ devolutive appeal into an application for supervisory review and consider the merits.

Merits

The Defendants allege that the trial court erred in denying their motion for summary judgment requiring the application of comparative fault principles at a trial on the merits.

All of Mr. Williams’ alleged exposures to asbestos occurred after 1980 and he passed away in 2009. It is undisputed that Mr. Williams’ alleged asbestos exposures took place after Louisiana’s comparative fault regime became effective. Therefore, because the law of comparative fault applies, we find the Plaintiffs’ assertions regarding the applicability of La. C.C. art. 1789 and La. C.C. art. 1815 are without merit.

| yHowever, the trial court found that the exposures allegedly caused by the Defendants could not be separated in order to apply comparative fault principles. In fact, the trial court stated in its reasons for judgment that “the court finds that that [sic] damages caused by any one defendant cannot be separated from the entire harm allegedly suffered by Mr. Williams.” The trial court further stated that “due to the nature of asbestos-related disease, this court finds that the damages caused by any one defendant cannot be separated from the entire harm that the plaintiffs have allegedly suffered.” La. C.C. art. 2323 and 2324 require that fault be apportioned amongst all of the parties adjudged at fault by the factfinder.

We find that instead of determining the applicability of comparative fault as a legal question, the trial court weighed the evidence presented in the partial motion for summary judgment and opposition and made a factual finding that the Plaintiffs’ alleged damages cannot be separated by the appropriate factfinder, i.e., the jury. The trial court is precluded from making factual determinations on a | amotion for summary judgment. See Godfrey v. Boston Old Colony Ins. Co., 97-2569 (La.App. 4 Cir. 5/27/98), 718 So.2d 455, 457.

Accordingly, we find that the trial court made a factual determination that Mr. Williams’ alleged injuries are indivisible such that the comparative fault regime cannot apply. However, as stated above, the law of comparative fault applies and determining how to apply the law to the facts presented at trial is a question of fact for the jury. After weighing the testimony presented at trial, such as if he was exposed to asbestos and the length of time Mr. Williams was allegedly exposed by each defendant, the jury will then determine how Mr. Williams’ injuries can be separated in such a manner that fault may be apportioned. The factfinder will determine if the provisions of La. C.C. art. 2324(A) apply. Accordingly, we grant the Defendants’ writ, reverse the trial court’s ruling, and remand for further proceedings.

PUNITIVE DAMAGES

The Plaintiffs aver that the trial court erred in granting the Defendants’ partial motion for summary judgment regarding the applicability of punitive damages.

La. C.C.P. art. 1915(B)(1) Certiñcation

While we converted the Defendants’ appeal of a denial of a partial motion for summary judgment into an application for supervisory review, the Plaintiffs’ appeal of the granting of a partial motion for summary judgment is procedurally proper. See La. C.C.P. art. 1915(B)(1).

| Merits

The Plaintiffs assert that the former version of La. C.C. art. 2315.3 applied to Mr. Williams’ alleged asbestos exposures that occurred between September 1, 1984, through April 16, 1996. The previous version of La. C.C. art. 2315.3 was effective September 3, 1984, and repealed April 16, 1996. The former statutory provision provided that a plaintiff could recover exemplary damages if he could prove:

(1) that the defendant’s conduct was wanton and reckless by proving that ‘the defendant proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a reasonable person in his position, or that the defendant engaged in ‘highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent;’ (2) that the danger created by the defendant’s wanton or reckless conduct threatened or endangered public safety; (3) that the defendant’s wanton or reckless conduct occurred in the storage, handling or transportation of hazardous or toxic substances; and (4) that the plaintiffs injury was caused by the defendant’s wanton or reckless conduct.

Bonnette v. Conoco, Inc., 01-2767, pp. 27-28 (La.1/28/03), 837 So.2d 1219, 1237, quoting Billiot v. B.P. Oil Co., 93-1118, pp. 16-17 (La.9/29/94), 645 So.2d 604, 613. “The statute providing for exemplary damages for wanton and reckless disregard for public safety in the storage, handling or transportation of hazardous or toxic substances must be strictly construed, as it imposes a penalty.” Grefer v. Alpha Technical, 02-1237, p. 9 (La.App. 4 Cir. 8/8/07), 965 So.2d 511, 518.

The terms wantonness or recklessness applies to conduct which is so far from a proper state of mind that it is treated in many respects as if harm was intended or so obvious that defendant must have been aware of the high probability that harm would follow.

10Adams v. Marathon Oil Co., 96-693, p. 3 (La.App. 5 Cir. 1/15/97), 688 So.2d 75, 77.

First and foremost, this Court held that punitive damages may not be recovered on a claim for wrongful death. Bailey ex rel. Brown v. Exxon Mobil Corp., 11-0177, p. 3 (La.App. 4 Cir. 8/31/11), 76 So.3d 53, 55, writ denied, 11-2131 (La.11/18/11), 75 So.3d 468. Therefore, this Court must examine whether the trial court was correct in denying the recovery of punitive damages as it relates to the Plaintiffs’ survival action.

In order to justify the application of punitive damages, the Plaintiffs attempt to restate all of Mr. Williams’ alleged asbestos exposures. Further, the Plaintiffs claim that the Defendants knew asbestos was dangerous and hazardous due to publications of the Occupational Health and Safety Administration (“OSHA”), and allege that the spraying of asbestos-containing insulation was banned. However, the trial court stated, in its reasons for judgment, that “the Plaintiffs have not produced any evidence that any of the Defendants showed a wanton and reckless disregard for public safety in the storage, handling, and transportation of asbestos.”

We find that the trial court erred. This Court referenced the necessity of evaluating the defendant’s state of mind, which the plaintiff is required to prove in order to recover punitive damages. Griffin v. Tenneco Oil Co., 531 So.2d 498, 500 (La.App. 4th Cir.1988). This Court further stated “[t]he statute does not require that the plaintiff prove some specific conduct on defendant’s part which constitutes wanton or reckless disregard for his safety.” Id. The Griffin Court also espoused that the plaintiff must prove that the “alleged acts and omissions of negligence were accompanied by a conscious indifference to eonse-quences |namounting almost to a willingness that harm to the public safety would follow.” Griffin, 531 So.2d at 501.

Hence, whether or not the Defendants acted in a wanton or reckless manner pursuant to La. C.C. art. 2315.3, is a question that lends itself to the interpretation of subjective facts such as intent, motive, malice, and knowledge of the Defendants. Under the facts and circumstances of the case sub judice, the applicability of punitive damages to the Plaintiffs’ survival action is a factual issue determined by the factfinders who will weigh the testimony presented at trial, to determine if and when Mr. Williams was exposed to asbestos. These findings of fact will then determine whether the exposures fall into the time period that La. C.C. art. 2315.3 was effective. Therefore, we find that the trial court erroneously granted the partial motion for summary judgment regarding punitive damages and reverse because genuine issues of material fact exist.

Foster alleges that La. C.C. art. 2315.3 does not apply to it, regardless of the remaining defendants, because the statute “was not intended to regulate the conduct of manufacturers in relation to the quality of the products they manufactured.” The Plaintiffs averred, in the petition, that Foster was a “manufacturer, seller or distributor of asbestos or asbestos-containing products.” However, the Plaintiffs also contend and Mr. Williams testified in his deposition that Foster performed contracting work via representatives for equipment vendors at the Shell facility. A manufacturer of asbestos-containing products could also engage in La. C.C. art. 2315.3 activities. King v. E.I. Du Pont de Nemours, 850 F.Supp. 503, 507 (WD.La.1994). In King, the court rejected the idea of “broad shield” protection from the purview of La. C.C. art. 2315.3. Id. Therefore, we find that Foster’s argument of exclusion lacks merit.

jyucc

The Plaintiffs allege that the trial court erred in granting UCC’s motion for summary judgment regarding causation and dismissing their claims.

UCC contends that Mr. Williams only worked at Taft for a “very short period of time,” that he “did not work directly” with asbestos-containing materials, and that Plaintiffs’ failed to establish that Mr. Williams suffered bystander exposure.

Dr. Judd Shellito stated in his affidavit that “[a]ny and all exposures to asbestos would have been a significant contributing factor in J.C. Williams’ development of asbestosis and asbestos-related lung cancer.”

Mr. Williams worked at UCC’s Taft facility (“Taft”) on multiple occasions from 1988 to 1992, while employed by R and H Electric Company (“R & H”). Mr. Williams states in his perpetuated deposition testimony that he was exposed to asbestos insulation at Taft because he was working in and out at Taft on a frequent basis. Mr. Williams testified that he worked around asbestos insulation during three to four shutdowns and at least one turnaround at Taft because all of the craftsmen would work side-by-side. Mr. Williams stated that each shutdown lasted around two weeks and that a turnaround could up to last ninety days. During the turnarounds, Mr. Williams claimed that he was transported through areas where asbestos was being removed. Mr. Williams testified that he was exposed to old asbestos insulation when new insulation was installed. Overall, Mr. Williams stated that his duties at Taft varied, but that he did not handle asbestos-containing products.

Dr. Frank Parker, III, an industrial hygienist, testified that Mr. Williams was exposed to asbestos at Taft when old insulation was removed.

11RThaddeus Porada, a retiree from UCC, testified in his deposition that he possessed general knowledge regarding the turnarounds performed at Taft in the late 1980s and early 1990s. He claimed that the turnarounds would last between two to four weeks. Mr. Porada stated that Mr. Williams, as an electrician, would not have been permitted to walk through asbestos-containing insulation abatement because of barricades.

Glenn Miaño, another UCC retiree and former turnaround coordinator, testified in his deposition that “[n]o additional work would take place where asbestos abatement is taking place.” He further stated that the area would be “isolated.” As to working side-by-side with other craftsmen, Mr. Porada testified that “[i]f the work permit required isolation or if the hazards were great, then no, an electrician would not be in that area.” However, Mr. Miaño testified that he did not know Mr. Williams and could not say workers removing asbestos-containing insulation followed the proper procedures.

Dr. William Dyson testified that UCC was following or exceeding OSHA asbestos abatement standards to the best of his knowledge. He further stated that signs and ropes should have told an electrician not to walk through an asbestos abatement. If anything was not labeled as containing asbestos, then workers had to presume the material contained asbestos and have it tested. When asked about an electrician’s possible asbestos exposure from walking through Taft, Mr. Porada opined that it would not equate with “any exposure that would be meaningfully — that would be meaningful above background.”

The trial court stated in the judgment that “the plaintiffs have failed to meet their burden of proving that it was more probable than not that Mr. Williams was exposed to asbestos containing products at the Taft facility in 1992.” The trial 114court further stated that the “plaintiffs lack sufficient evidence” that Taft “was a substantial contributing factor of the plaintiffs injury.”

Indeed, “the plaintiff bears the burden of proving that the defendants’ conduct caused asbestos exposure, and that the conduct was a substantial contributing factor of the plaintiffs injury.” Vodanovich v. A.P. Green Indus., Inc., 03-1079, p. 5 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, 933. However, the record before us presents conflicting evidence regarding Mr. Williams’ alleged asbestos exposure at Taft. It is improper for the trial court to weigh evidence or make credibility determinations on a motion for summary judgment. Coto, 99-1866, p. 4, 772 So.2d at 830. Given the testimony of Mr. Williams wherein he states that he was exposed to asbestos as Taft, the expert testimony of Drs. Parker and Shellito, and the contradictory testimony presented by UCC, we find that the trial court erred in weighing the evidence presented. Juxtaposed testimony presents a genuine issue of material fact regarding whether UCC exposed Mr. Williams to asbestos and if that exposure was a substantial contributing factor to Mr. Williams’ injuries and death. Therefore, we reverse the trial court and remand for further proceedings.

DOW

The Plaintiffs aver that the trial court incorrectly granted Dow’s motion for summary judgment regarding causation.

Dow alleges that the trial court correctly granted its motion for summary judgment regarding causation because Mr. Williams’ evidence is primarily based upon hearsay. “Hearsay is a statement made out of court offered as evidence in court to prove the truth of the matter asserted by the statement.” La. C.E. art. 801. “According to LSA-C.E. art. 802, ‘[hjearsay is not admissible except as otherwise |15provided by this Code or other legislation.’” State v. Jones, 98-1055, p. 6 (La.App. 5 Cir. 2/23/99), 729 So.2d 95, 98. “Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” Id. However, the trial court must first determine the admissibility of evidence and it did not label the Plaintiffs evidence as hearsay in the judgment. La. C.E. art. 104(A) provides that:

Questions of admissibility generally. Preliminary questions concerning the competency or qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of Paragraph B. In making its determination it is not bound by the rules of evidence except those with respect to privileges.

If the trial court determines that the statements are hearsay, after consideration of La. C.E. art. 801(D)(4), the statements fall within the hearsay exceptions enumerated within La. C.E. art. 803. La. C.E. art. 803 provides that statements made under the following circumstances are not considered hearsay:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant’s then existing condition or his future action. A statement of memory or belief, however, is not admissible to prove the fact remembered or believed unless it relates to the 11fiexecution, revocation, identification, or terms of declarant’s testament.

However, the admissibility of statements is determined by the trial court. Nonetheless, the Plaintiffs’ offered more than Mr. Williams’ deposition testimony on opposition to Dow’s partial motion for summary judgment.

Mr. Williams testified that he worked for R & H as a “tagalong” with Westinghouse at Dow’s Plaquemine facility performing several duties, which included preventative maintenance. Mr. Williams stated that all trades were working side-by-side “in one spot and working together.” Simply, he testified: “[s]o in most cases this is where that exposure would come through, where everybody is piled up working together.” Mr. Williams did not allege that he personally handled insulation products. Instead, Mr. Williams opined that he was exposed to asbestos as he passed other craftsmen. Mr. Williams testified that he knew he was exposed to asbestos from speaking with other workers. While Mr. Williams was aware of safety procedures, he stated that “[i]t doesn’t always work out” and “[sjometimes it does happen where you walk through areas that are contaminated.”

Dr. Parker also believed that Mr. Williams was exposed to asbestos while working at Dow. Dr. Parker testified that Mr. Williams most likely sustained exposure at Dow because of working in the vicinity of other crafts, like “insulators ripping out asbestos.” Dr. Parker stated that although safety procedures were in place, that “from years of practice of having a procedure is not proof they’re followed.”

117Bradley Rabalais, an employee of Dow in Plaquemine, testified that the insulation was “unlikely” asbestos because of the procedures and policies in place at the facility. Mr. Rabalais also stated that it would have been a violation of standards if Mr. Williams worked side-by-side with workers removing asbestos insulation. Mr. Raba-lais testified that some areas of Dow still contain asbestos.

Roger Hudson, a retired Dow employee, testified that insulation was considered to contain asbestos until proven otherwise. Like Mr. Rabalais, Mr. Hudson stated that working side-by-side with insulators in the 1990s would have violated standards in place. Further, Mr. Hudson testified that it was “extremely improbable” that Mr. Williams was exposed to asbestos in 1998. Mr. Hudson stated that he had no personal knowledge of Mr. Williams’ work at Dow.

Leroy Balzer, Dow’s industrial hygienist, testified that materials were treated as asbestos-containing until proven otherwise. Most notably, Mr. Balzer stated that:

I do not find that Mr. Williams’ allegations of exposure to asbestos at Dow have any scientific basis nor could an allegation of occupational exposure attributable to Dow be validated to a reasonable degree of scientific probability.

Dow contends that the Plaintiffs failed to present sufficient evidence to defeat its partial motion for summary judgment; however, the. Plaintiffs submitted the testimony of Mr. Williams and the expert opinion of Dr. Parker, which contradicts Dow’s testimony from Dow employees and an expert. While the Plaintiffs may have presented more evidence of asbestos exposure by other defendants, the trial judge acts as the gatekeeper and determines what evidence is admissible. Then, the factfinder must weigh the credibility of the evidence | isadmitted at trial to determine whether Mr. Williams was exposed to asbestos while working at Dow. Therefore, we find that the trial court erroneously granted Dow’s partial motion for summary judgment and reverse for further proceedings.

DECREE

For the above mentioned reasons, we find that the trial court erroneously made a factual finding as to the applicability of comparative fault principles and grant the Defendants’ writ. We find that the trial court erroneously granted the Defendants’ motion for summary judgment regarding the applicability of punitive damages due to the required analysis of subjective facts required for proper adjudication. Additionally, we find that the trial court erred by granting UCC’s motion for summary judgment regarding causation because genuine issues of material fact exist as to whether Mr. Williams was exposed to asbestos at Taft and Dow and whether the alleged exposure was a substantial contributing factor. Therefore, we reverse and remand for further proceedings.

WRIT GRANTED; REVERSED & REMANDED

      . La. C.C.P. art. 1915(B)(1) provides:
      When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, re-conventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

      . La. C.C. art. 1789, Divisible and indivisible joint obligation, provides:
      When a joint obligation is divisible, each joint obligor is bound to perform, and each joint obligee is entitled to receive, only his portion. When a joint obligation is indivisible, joint obligors or obligees are subject to the rules governing solidary obligors or solidary obli-gees.
      La. C.C. art. 1815, Divisible and indivisible obligation, provides:
      An obligation is divisible when the object of the performance is susceptible of division. An obligation is indivisible when the object of the performance, because of its nature or because of the intent of the parties, is not susceptible of division.

      . La. C.C. art. 2323 provides, in pertinent part:
      A. ' In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a non-party, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss. B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
      La. C.C. art. 2324 provides, in pertinent part: A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
      B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfea-sor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

      . The Plaintiffs assert in that the provision in La. C.C. art. 2324(A) is applicable, which would make the defendants found liable for Mr. Williams’ death "answerable, in solido.” La. C.C. art. 2324(A).

      . La. C.E. art. 801(D) provides, in pertinent part:
      D. Statements which are not hearsay. A statement is not hearsay if:
      (4) Things said or done. The statements are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

      . La. C.E. art. 703 provides:
      The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.