author: SUSAN M. CHEHARDY, Judge. GUIDRY, Judge,

text:
    Harry J. BROCK, III and Amy L. Brock, individually and on behalf of their minor daughter, Cassie Brock v. Victor J. CARONNA.
    No. 08-CA-370.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Craig P. Hart, Tammy L. Karas, Cov-ington, LA, for Defendant/Third-Party Plaintiff/Appellant, Victor J. Caronna.
    Kathleen E. Simon, Porteous, Hainkel & Johnson, Covington, LA, for Third-Party Defendant/Appellee, Farmers Insurance Exchange.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

|2This is a personal injury suit by the parents of a teenage girl for damages arising from the rape of their daughter. The defendant filed a third-party demand against his homeowners’ insurer for indemnification under its policy. The trial court granted a summary judgment dismissing the third party demand and the defendant/third-party plaintiff appeals. We affirm.

STATEMENT OF THE CASE

Harry J. Brock, III and Amy L. Brock (“the Brocks”) filed suit against Victor J. Caronna (“Caronna”), individually and on behalf of their minor daughter (“Plaintiff’). The Brocks alleged that Caronna had been their daughter’s dog-training advisor and mentor; that on March 14, 2005 he came to the Brock family home in St. Charles Parish while their sixteen-year-old daughter was there alone, and he forcibly raped their minor daughter in her bedroom. They asserted claims pursuant to La.C.C. art. 2315, 2815.7, and 2316 for intentional and negligent infliction of emotional and mental anguish, unauthorized touching of the minor, sexual harassment, and forcible rape. They sought compensatory and punitive damages for mental anguish, emotional distress, embarrassment, medical expenses, pain and suffering, loss of consortium, and any other damages to be proven at trial.

|3Caronna answered, admitting he is of the age of majority but denying the other allegations of the petition. He filed a third party demand against his homeowners insurer, Farmers Insurance Exchange (“Farmers”), in which he alleged that Farmers is obligated to indemnify him against any liabilities he may have to any third parties, including payment and satisfaction of any and all liabilities to third parties arising out of the claims made in this lawsuit.

Farmers denied the allegations of the third party demand and pleaded the terms and conditions of its policy. Farmers raised specific affirmative defenses and policy exclusions in denial of coverage and denial of a duty to defend. Farmers asserted that at the time of the sexual assault at issue, Caronna was insured under a Special Form Homeowners — Preferred policy issued by Farmers, which did not afford coverage for the incident made the basis of this lawsuit. Farmers asserted it had specifically denied both coverage and a defense to Caronna, under the policy exclusions for bodily injury or property damage that is expected or intended by the insured, or arising out of sexual molestation, corporal punishment, or physical or mental abuse.

Farmers filed a Motion for Summary Judgment, seeking to have the third-party demand against it dismissed on the basis that the claims are specifically excluded from coverage under its policy. In support of the motion Farmers submitted a statement of material facts of which there is no genuine issue to be tried, which listed the following matters among others :

1. Caronna is a person of full age of majority residing in St. Tammany Parish, Louisiana;

2. According to the petition for damages, on March 14, 2005, Caronna came to the Brocks’ home when their minor daughter was home alone;

|43. Caronna proceeded to forcibly rape the minor child in the bedroom of her residence through vaginal intercourse;

4. Farmers is not a named defendant in the petition for damages;

5. Caronna is the sole named defendant;

6. At all times herein, Caronna had a Special Form Homeowners-Preferred policy issued by Farmers on which Caronna is listed as the named insured;

7. The policy is the best evidence of its contents, including the terms, provisions, conditions, applications, exclusions, and limitations of liability and coverage contained therein;

8. The Farmers policy provides no coverage for “bodily injury” which is expected or intended by the “insured” or “arising out of sexual molestation, corporal punishment or physical or mental abuse.”

9. Caronna can provide no evidence that the Farmers policy provides coverage for any damages arising out of the events of March 14, 2005;

10.Caronna can provide no evidence that the Farmers policy owes any duty to defend him under the policy for the litigation arising out of the events of March 14, 2005 in St. Charles Parish, Louisiana.

In opposition Caronna argued that although intentional acts may not be covered under the policy, the plaintiffs also allege negligence. In addition, he asserted, the acts alleged in the petition have yet to be proven and, in the absence of proof of the occurrence of the acts, it is premature to speculate as to the intent or state of mind of the defendant at the time of the alleged act. Caronna asserted it is his intent to establish through discovery that the acts complained of in the petition were consensual. He asserted that under the policy, Farmers has an obligation to defend him even if the suit is groundless, false or fraudulent. He argued that he |fihas never admitted guilt, no case has been proven against him, the facts alleged have not been proven, and he rigorously denies them.

Caronna filed a Statement of Disputed Material Facts that set forth the following: (1) The acts complained of in the petition are disputed by the defendant; (2) The policy of insurance issued to defendant by Farmers provides coverage for the acts complained of in the petition; (3) Farmers owes a duty to defend and indemnify Car-onna for the plaintiffs’ claims; and (4) Caronna can provide evidence that the Farmers policy provides both coverage and a duty to defend related to the assertions in the petition for damages.

Caronna attached an affidavit, in which he stated he had entered a plea of no contest in connection with the charges arising from the alleged incident involving the Brocks’ minor daughter that allegedly occurred on March 14, 2005. He denied the facts stated in the petition for damages and in Farmers’ statement of facts filed in conjunction with the motion for summary judgment.

At the hearing on the motion for summary judgment, the court gave the following oral reasons for granting the motion: “It’s clear from the language of the policy that coverage is excluded. And plaintiffs counsel was astute in not even filing that. Regardless of what they alleged in their petition, be it intentional or not, it’s still a sex crime. They’re still excluded. To defend such is excluded.”

In the written judgment, the court found there is no genuine issue as to any material fact as to Farmer’s motion for summary judgment that there is no coverage under the policy of insurance issued by Farmers to Caronna for his actions as set out in the original Petition for Damages and as alleged in his Third Party Demand and that no duty to defend Caronna exists under the Farmers policy at issue.

Caronna appeals.

DLAW AND ANALYSIS

Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Waguespack v. Richard Waguespack, Inc., 06-0711, p. 3 (La.App. 1 Cir. 2/14/07), 959 So.2d 982.

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. The movant bears the burden of proof. If the movant meets this initial burden, the burden then shifts to plaintiff to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Thereafter, if plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law. [Citations omitted.]

Champagne v. Ward, 2003-3211, pp. 4-5 (La.1/19/05), 893 So.2d 773, 776.

A genuine issue is a triable issue, an issue on which reasonable persons could disagree. Champagne, 2003-3211 at p. 5, 893 So.2d at 777. Further, a material fact is one whose existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Id.

“Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is ‘material’ for summary judgment purposes can be seen only in light of the substantive law applicable to the case.” Richard v. Hall, 2003-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137.

In Ledbetter v. Concord General Corp., 95-0809, pp. 3-4 (La.1/6/96), 665 So.2d 1166, 1169, judgment amended, 95-0809 (La.4/18/96), 671 So.2d 915, the supreme court set forth the following legal axioms concerning the interpretation of insurance policies:

17An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. The parties’ intent, as reflected by the words of the policy, determine the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written.
Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. However, the rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. [Citations omitted.]

The policy in this case defines “bodily injury” as “bodily harm, sickness or disease, including required care, loss of services and death that results.” It defines “occurrence” as “an accident ... which results, during the policy period, in: a. ‘Bodily injury1...; or b. ‘Property damage.’”

In Section II — Liability Coverages, Coverage E — Personal Liability, the policy states,

If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury”... caused by an “occurrence” to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the “insured” is legally liable ...; and
2. Provide a defense at our expense ..., even if the suit is groundless, false or fraudulent....

In Section II — Exclusions the policy provides,

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to “bodily injury” or “property damage”:
a. Which is expected or intended by the “insured”;
k. Arising out of sexual molestation, corporal punishment or physical or mental abuse....

¡¡¡Assignment of Error No. 1

Caronna first asserts the trial court erred by “relying on mere allegations of rape in the absence of any evidence in the record regarding same.” Caronna contends that whether the act was a rape is a disputed material fact and, hence, it is not a basis for summary judgment.

Farmers responds that Caronna presented only an affidavit denying all allegations of the petition, and advising that he had entered a plea of no contest “in connection with the charges arising from the alleged incident involving Cassie Brock.” Caronna provided no other documents or evidence in opposition to the motion for summary judgment.

Caronna does not dispute that an act of sexual intercourse took place between Car-onna and Plaintiff. He does not deny that Plaintiff was a minor at the time of the incident, and he admitted in his answer that he is a person of the age of majority. Under Louisiana law, his having sexual intercourse with Plaintiff even with her consent could be considered molestation of a juvenile at a minimum, or indecent behavior with a juvenile, or felony carnal knowledge of a juvenile. The allegations of the petition place the act within the more serious categories of sexual battery and rape.

As such, whether the behavior was an intentional act and/or sexual molestation is not a genuine issue of material fact for purposes of the coverage issue. We find no merit to this assignment.

| ¡Assignment of Error No. 2

Caronna next argues that the trial court erred by “relying on the existence of a nolo contendere plea.” He asserts the trial court erred in relying on his nolo con-tendere plea, because his affidavit simply states, “[I]n connection with the charges arising from the alleged incident involving Cassie Brock that allegedly occurred on or about March 14, 2005, I entered a plea of No Contest.” He points out he did not state the charge to which he entered the plea, and he did not plead so to rape.

Caronna asserts further that evidence of a nolo contendere plea is not admissible in a civil matter and, therefore, the plea should not have been made an issue on the record. He argues that even if the plea were admissible, it would not necessarily be conclusive of guilt because a trial on the merits would be needed to evaluate the evidence and determine how much weight to afford the plea.

We find no merit to this assignment. Neither the written judgment nor the oral reasons for judgment make any reference to Caronna’s plea or to any criminal proceedings. There is nothing to indicate the plea had any part in the court’s determination. Further, Caronna himself brought up the plea by mentioning it in his affidavit.

Finally, even if the trial court did consider the plea and even if such consideration was error, “[rjegardless of the trier of fact’s reasons, if a judgment is correct, it should be affirmed.” Bergeron v. Watkins, 98-0717, p. 5 (La.App. 1 Cir. 3/2/99), 731 So.2d 399, 402.

Assignment of Error No. 3

In his third assignment of error, Caronna argues the trial court erred by applying the intentional injury exclusion in the absence of any evidence in the record regarding Plaintiffs injuries. He asserts that without evidence in the record 11 nregarding Plaintiffs injuries, no determination can properly be made as to what injuries are excluded from coverage by the intentional injury exclusion.

The policy language does not require that the act be intended or expected, but rather than the injuries and medical expenses be intended. He argues one could intend a particular act and still have coverage if he or she did not intend the damages caused by the action.

Child molestation is a rare instance in which a factual determination of negligence or intentional conduct is inappropriate as a practical matter. It cannot result from careless conduct and only occurs as a result of a deliberate act by the perpetrator. Molestation of a child is a deliberate act, and, therefore, is an intentional act. Because the relator’s policy excludes coverage for bodily injury intended or expected by the insured, there is no coverage under the policy. [Citations omitted.]

Wallace v. Cappel, 592 So.2d 418 (La.App. 1 Cir.1991), writ denied 593 So.2d 651 (La.1992).

Regardless of any claims referring to negligence, under the facts set forth in the petition all damages arise from Caronna’s act of sexual intercourse with the minor Plaintiff. That act by its very nature was intentional.

“Louisiana jurisprudence recognizes as a matter of law that the act of child molestation is of itself a deliberate and intentional act.” Belsom v. Bravo, 94-876, p. 4 (La.App. 5 Cir. 4/25/95), 658 So.2d 1304, 1306, writ denied, 95-1327 (La.9/1/95), 659 So.2d 737.

Accordingly, the intentional act exclusion applies to preclude coverage. We find no merit to this assignment.

Assignment of Error No. 4

Caronna’s fourth assignment is that the trial court erred by applying the sexual molestation, corporal punishment or physical or mental abuse exclusion in the absence of any evidence regarding same in the record.

InThe coverage defense is raised based on allegations in the petition: A court must examine the well-pleaded allegations of the plaintiffs petition to determine whether the plaintiffs allegations unambiguously exclude coverage. Suire v. Lafayette City-Parish Consolidated Government, 04-1459, p. 18 (La.4/12/05), 907 So.2d 37, 52.

The insurance policy in this case states that if a claim is made or a suit is brought against an insured for damages because of bodily injury caused by an occurrence to which this coverage applies, Farmers will pay for the damages for which the insured in legally liable, and provide a defense even if the suit is groundless, false or fraudulent. The key to coverage, however, is that there must be an “occurrence” to which the coverage applies. By its nature, an act of sexual intercourse by an adult with a minor to whom he is not married is an occurrence excluded from coverage.

There is no merit to this assignment.

Assignment of Error No. 5

In his fifth and final assignment, Caron-na contends the trial court erred by granting summary judgment with respect to the plaintiffs’ injuries grounded in negligence in the absence of any evidence regarding same in the record and in the absence of any policy language excluding negligence. He argues the trial court erred in granting summary judgment because the petition includes a number of claims based on negligence, so even if the intentional injury exclusion was properly found to apply, the policy language does not exclude injury resulting from negligence.

The nature of the occurrence — sexual intercourse by an adult with a minor— is the basis for the determination of coverage or lack of coverage. That determination applies regardless of whether injuries arose from negligence or | ^intention. As stated in our discussion of Assignment of Error Nos. 3 and 4, above, the claims made in the petition are excluded because they arise from an “occurrence” to which the policy’s coverage does not apply. Accordingly, there is no merit to this assignment.

No reasonable insured could expect there to be coverage under a liability insurance policy for such a despicable act as rape, sexual battery, or “date rape.” Louisiana Civil Code article 2323(C) embodies the public policy of this state that an intentional tortfeasor cannot invoke the contributory negligence of his victim as a defense to a claim for damages.

Doe v. Breedlove, 2004-0006, p. 16 (La.App. 1 Cir. 2/11/05), 906 So.2d 565, 575.

For the foregoing reasons, we affirm the judgment. Costs of this appeal are assessed against the appellant, Victor J. Car-onna.

AFFIRMED.

GUIDRY, J., concurs with reasons.

GUIDRY, Judge,

concurs with reasons.

hi concur in the result reached by the majority in this case. The insurance coverage and defense issues raised herein are being considered pretrial, on the allegations of the Plaintiffs’ petition. The Plaintiffs are alleging that the Defendant, an adult, forcibly raped their minor daughter causing her injuries for which he is liable. The policy in question clearly and unequivocally excludes coverage for bodily injury “[ajrising out of a sexual molestation, corporal punishment or physical or mental abuse.... ” Therefore, the third party demand by the Defendant against his homeowner’s insurer was properly dismissed by summary judgment upon finding that under the allegations of the petition coverage was unambiguously excluded.

      . We have omitted some items that were con-elusions of law rather than statements of fact.

      . La.R.S. 14:81.2.

      . La.R.S. 14:81.

      . La.R.S. 14:80.

      . La.R.S. 14:43.1.

      . La.R.S. 14:42-14:43.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Althea and Earl HARRINGTON v. Dorothy M. WILSON and Allstate Insurance Company. Althea and Earl Harrington v. Myron Henry and State Farm Mutual Automobile Insurance Company.
    Nos. 08-CA-544, 08-CA-545.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Wayne E. Garrett, Attorney at Law, New Orleans, LA, for Appellee, Althea and Earl Harrington.

      Kevin T. Phayer, Attorney at Law, Me-tairie, LA, for Appellant, Prudential Property and Casualty Insurance.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, the injured driver’s under-insured motorist insurer seeks review of the judgment in favor of the plaintiffs. For the following reasons, we vacate the judgment in part; amend the judgment, and affirm as amended.

Althea Harrington was involved in two automobile accidents in 2002; one accident on February 14, 2002, and another on March 14, 2002. On February 13, 2003, Mrs. Harrington and her husband, Earl, (hereinafter “the plaintiffs”) filed suit for the February accident against the driver, Dorothy Wilson, and her liability insurer, Allstate Insurance Company.

On March 10, 2003, a second and separate petition for damages was filed by the plaintiffs for the March accident against the driver, Myron Henry and his liability insurer, State Farm Mutual Automobile Insurance Company. On September 29, 2003, the plaintiffs added defendant, Prudential Insurance Company, their underinsured motorist insurance carrier, (hereinafter “Prudential”) for each of the respective accidents.

On October 14, 2003, the defendants, Myron Henry and State Farm, compromised their portion of the claim and were dismissed from the suit, with a preservation of plaintiffs’ rights against Prudential. On April 12, 2007, plaintiffs compromised their claim against Dorothy Wilson and Allstate Insurance Company and again reserved their rights against their underinsured motorist carrier, Prudential.

On September 12, 2007, trial commenced. At trial, the parties stipulated that Althea and Earl Harrington, in each of the consolidated actions, would limit their recovery to $49,999.99, exclusive of interest and costs, thereby rendering the matter triable by judge pursuant to La. C.C.P. art. 1732. The parties further stipulated that, on the date of each accident, the plaintiffs had underinsured motorist insurance coverage with Prudential Insurance Company in the amount of $100,000.00 for each accident. Finally, the parties stipulated that each driver at fault in the underlying case had liability coverage of $10,000.00 and defendant, Prudential, would be entitled to a credit of $10,000.00 in each case against any recovery plaintiffs may receive in either matter.

At trial, the plaintiffs, Althea and Earl Harrington, testified. The remaining testimony was by deposition. Further, the parties, by joint stipulation, submitted documentary evidence including medical records and bills.

Our review of the record reveals that Althea Harrington was in an automobile accident on February 14, 2002. In that accident, Mrs. Harrington’s vehicle was rear-ended by another vehicle when Mrs. Harrington was on her way to work that morning. She testified that, after that accident, she felt pain in her neck. She went to work as always but, because her pain became more severe, she presented for treatment in the emergency room that afternoon.

According to the medical records for West Jefferson Medical Center, Mrs. Harrington complained of soreness in her neck and lower back. She reported that, on that date, she had been the seat-belted driver of an automobile that was hit from 14behind while stopped. The emergency-room physician, Dr. Harry Vorhaben, ordered an x-ray of Mrs. Harrington’s cervical spine, which showed no “acute ... abnormality apparent.” Dr. Vorhaben diagnosed the plaintiff with a strain of the neck and lumbar region, prescribed anti-inflammatory medication, and recommended follow-up with her primary care physician.

According to the billing records for Westbank Medical Associates, Mrs. Harrington had an office visit with her internist, Dr. Indumeet Bhatia, on March 9, 2002. Unfortunately, the notes from that visit are not included in the exhibits presented by the parties at trial.

On March 14, 2002, Mrs. Harrington was in a second automobile accident. In that accident, Mrs. Harrington’s vehicle was side-swiped by another vehicle when Mrs. Harrington was on her way to work that morning. She testified that, after that accident, she felt pain in her neck and her ankle. She sought treatment in the emergency room on the next night for “pain and swelling at the ankle,” which the doctor’s notes reflect she sustained when she “fell from a chair and twisted her right ankle” earlier that day. The emergency room physician, Dr. Jack Pomerantz, ordered an x-ray of the ankle, ruled out any fracture, and diagnosed a right ankle sprain.

On March 19, 2002, Mrs. Harrington visited Dr. Bhatia complaining of a sprained ankle from an “automobile accident on 3/14.” Mrs. Harrington reported that she “twisted her foot while trying to get out of the car” when her car was sideswiped. Dr. Bhatia diagnosed an ankle sprain and anxiety resulting from the accident. Dr. Bhatia excused the plaintiff from work for one week. Dr. Bhatia also referred the plaintiff to an orthopedist with Jefferson Orthopedic Clinic, Dr. Thomas Cashio.

| ¡¡That same day, Dr. Cashio saw Mrs. Harrington, who reported that she injured her ankle when another vehicle sideswiped her car. Dr. Cashio observed swelling and tenderness, noted that x-rays of her foot and ankle were “unremarkable,” and fitted her with an ankle support.

On March 26, 2002, Mrs. Harrington returned to Dr. Bhatia complaining of pain in her ankle, neck and back. Dr. Bhatia observed that Mrs. Harrington had restricted range of motion of her neck, and her neck, back and ankle were all “tender.” Dr. Bhatia diagnosed Mrs. Harrington with “cervical & lumbar strain” and “ankle sprain;” continued her medications; and referred her for physical therapy for her neck, back, and ankle. The medical record of that visit indicates that Mrs. Harrington’s first physical therapy session was scheduled for March 28, 2002. Further, Dr. Bhatia’s notes indicate “3-28-02 6 wks. out of work.”

On April 16, 2002, Mrs. Harrington returned to Dr. Bhatia for follow-up. On that date, Mrs. Harrington reported that her ankle and back were better as a result of physical therapy. That day, Dr. Bhatia released Mrs. Harrington to return to work with lifting restrictions. The medical records from West Jefferson Medical Center indicate that Mrs. Harrington attended 19 physical therapy sessions in April and May 2002.

On June 4, 2002, Mrs. Harrington returned to Dr. Bhatia for follow-up. Mrs. Harrington reported that she was “feeling better” although her ankle was still diagnosed as a sprain. Dr. Bhatia also noted that Mrs. Harrington was allowed to return to full duty with lifting restriction. On August 19, 2002, Mrs. Harrington | ^returned to Dr. Bhatia for her yearly physical and reported “walking two miles every day & feels good.”

On March 5, 2003, Mrs. Harrington returned to Dr. Bhatia complaining of swelling in her head and neck. Dr. Bhatia ordered a CT scan, with and without contrast, of the neck and chest. On March 7, 2003, Mrs. Harrington underwent a CT scan of the neck, which was negative for abnormalities. On March 10, 2003, Mrs. Harrington underwent a CT scan of the chest, which showed no evidence of abnormality.

On April 28, 2003, Dr. Bhatia referred Mrs. Harrington for an orthopedic evaluation with Dr. Mark Juneau of the Bone and Joint Clinic. On April 29, 2003, Dr. Juneau examined Mrs. Harrington, who complained of continuing pain in her neck and shoulder, which she had experienced since a motor vehicle accident one year earlier. Dr. Juneau ordered and reviewed plain x-rays of the cervical spine and observed “cervical spondylosis primarily [at] C5-6.”

Dr. Juneau ordered an MRI, which was performed on May 6, 2003. According to the radiologist, Mrs. Harrington’s MRI revealed that she had “multilevel degenerative disc disease without impingement on the spinal cord,” with severe degeneration and mild “bilateral foraminal stenosis” at levels C5-6 and severe degeneration with moderate “bilateral foraminal stenosis” at C6-7. On April 28, 2003, Dr. Bhatia also ordered physical therapy but it is unclear from the medical records if Mrs. Harrington received physical therapy pursuant to that order.

Mrs. Harrington returned to Dr. Juneau on May 12, 2003 with continued complaints of “numbness and pain in the left side of her neck [which] radiates down her arm to her shoulder.” He noted that her symptoms had persisted even [7after physical therapy. That day, Dr. Juneau referred Mrs. Harrington for a neurosurgical evaluation because “this has been going on for a year with no relief.”

On June 19, 2003, Dr. John Steck, a neurologist, examined Mrs. Harrington. On that date, Dr. Steck noted that Mrs. Harrington reported that she has had pain in her neck that radiates to her left shoulder and arm since she was in two automobile accidents a little “over a year ago.” When Dr. Steck reviewed the May 2003 MRI, he found it was “a fairly unremarkable study with no evidence of spinal steno-sis, no evidence of nerve root compression and no evidence of disc herniation.” In the end, Dr. Steck noted “probable mild cervical strain” and referred Mrs. Harrington to a physician that specializes in pain management, Dr. Meda Colvin.

On June 24, 2003, Dr. Colvin examined Mrs. Harrington and observed bilateral neck pain with radiation into her shoulders. Dr. Colvin opined that “[t]he patient seems to be in a chronic pain cycle that was initiated by her motor vehicle accidents and now she has transitioned into more of a chronic pain with decrease in appetite, mood problems, and sleep problems.” Dr. Colvin also noted that Mrs. Harrington reported three motor vehicle accidents in 2002. Dr. Colvin ordered Mrs. Harrington to continue on her previous medications and added antidepressants, to treat her chronic pain syndrome.

On July 22, 2003, Mrs. Harrington returned to Dr. Colvin for a follow-up appointment. Mrs. Harrington reported that she felt much improved because she was sleeping and eating better. Dr. Colvin ordered continued prescription therapy for the chronic pain syndrome.

On September 24, 2003, Mrs. Harrington returned to Dr. Colvin complaining of continued pain after returning to work when the school year began. 18That day, Mrs. Harrington wrote, on the “Brief Pain Inventory” that she completed on every visit to Dr. Colvin, she wanted to “stop the pain were[sie] my life can been[sic] back to normally[sic].” Upon examination of Mrs. Harrington, Dr. Colvin found “musculo-skeletal tender points in bilateral trapezius as well as bilateral rhomboids,” or tenderness in the muscles of the upper back and shoulder area. Dr. Colvin prescribed occupational therapy for the neck pain and continued prescription therapy, including Lidoderm patches.

On September 29, 2003, Mrs. Harrington began physical therapy as ordered by Dr. Colvin at Crescent City Physical Therapy. At her initial evaluation, Mrs. Harrington reported bilateral neck and shoulder pain, which began “about a year ago” after being in motor vehicle accidents. According to the records, Mrs. Harrington had thirteen physical therapy sessions in the fall of 2003.

On October 31, 2003, Mrs. Harrington returned to Dr. Colvin with reports of “doing much better.” Mrs. Harrington still exhibited “myofascial tenderness in the bilateral trapezii,” or pain in the muscles of her upper back, but her mood was elevated. Throughout this time period, Mrs. Harrington was still taking prescription medications for muscle spasms, pain, and depression associated with her chronic pain syndrome.

Eventually, Mrs. Harrington sought treatment from a second orthopedist, Dr. James Todd because Dr. Juneau was “not doing anything” about her pain. On November 30, 2004, Dr. Todd examined Mrs. Harrington, who reported that, after two motor vehicle accidents in 2002, she had been experiencing radiating back and neck pain for two years. She reported that, during the day, her pain was manageable with medication but was worse at night.

On December 1, 2004, Mrs. Harrington underwent a second MRI, which, according to the radiologist, revealed, “Disc protrusions are noted at the C-3-4, C5-j63 and C6-7 levels effacing the ventral thecal sac ... There is no compression upon the spinal cord ... No appreciable neurocompressive disease, midline, lateral recess or forami-nal stenosis is noted.”

On December 7, 2004, Mrs. Harrington returned to Dr. Todd with complaints of consistent neck pain and lower back pain. Dr. Todd reviewed the most recent MRI film and noted that the “cervical spine demonstrates disc protrusions at C3-4, C5-6 and C6-7 with no neurocompressive disease.” After reviewing the MRI, Dr. Todd recommended formal physical therapy and continued prescription therapy, with follow-up in four weeks.

On December 9, 2004, Mrs. Harrington began physical therapy at the Bone and Joint Clinic. On her first visit, she reported that she had had back and neck pain for three years since a rear-end collision. Mrs. Harrington also reported that she had been to physical therapy twice since her accident with “no significant long term pain relief.” On that date, the physical therapist noted that Mrs. Harrington reported “aching and sticking” pain in her neck and upper back area that radiated into both arms. The physical therapist also observed tenderness and increased muscle tightness in the “bilateral cervical ... posterior shoulder girdle,” with decreased range of motion in the patient’s neck and upper torso. The physical therapist created a plan of therapy consisting of three visits per week for eight weeks.

On January 13, 2005, Mrs. Harrington returned to Dr. Todd complaining of continued neck and back pain. Mrs. Harrington reported that the physical therapy and medications are not relieving the pain. Dr. Todd continued physical therapy with follow-up in three weeks.

|inOn February 3, 2005, the physical therapist discharged Mrs. Harrington from treatment after 19 visits because her insurance did not pay for more than 60 days of physical therapy for one diagnosis. In the discharge summary, the physical therapist noted that the patient had made good progress toward her goals of decreased pain and increased activity.

On February 10, 2005, Mrs. Harrington returned to Dr. Todd reporting improvement. Mrs. Harrington had completed her physical therapy and was taking her medications as needed. Dr. Todd instructed Mrs. Harrington to continue with her home exercise therapy program and follow-up as needed.

On February 24, 2005, however, Mrs. Harrington presented with resumed cervical and lumbar spine pain. Although she did not have limited range of motion, neurological deficiencies, or muscle spasm, Dr. Todd did note that Mrs. Harrington’s MRI “showed an annular tear and small disc bulge at L5-S1.” Dr. Todd opined that the next step in treatment was an epidural steroid injection.

On April 7, 2005, Dr. Jeffrey Borchardt, who treated Mrs. Harrington’s back and neck pain at Meadowcrest Hospital’s Pain Management Clinic, performed a cervical epidural steroid injection procedure on Mrs. Harrington. Dr. Borchardt diagnosed Mrs. Harrington with cervical steno-sis at C6-7 with radicular symptoms. According to his notes, Dr. Borchardt thought that Mrs. Harrington tolerated the procedure well.

On May 2, 2005, Mrs. Harrington presented to Dr. Alexis Waguespack, an orthopedist who specializes in spinal surgery, for evaluation. According to Dr. Wagues-pack’s notes, Mrs. Harrington reported severe neck and arm pain subsequent to “multiple rear-ending accidents.” Mrs. Harrington reported that ^conservative treatment, including physical therapy and epidural steroid injections, did not provide “long term improvement.”

Dr. Waguespack reviewed the plaintiffs May 2003 MRI and the radiologist’s report on that test. Dr. Waguespack found degenerative disc changes at “3-4, 5-6 and 6-7,” with “thecal sac effacement” from a bulging disc at 5-6 and 6-7, which concurred with the radiologist’s impression. Dr. Waguespack explained that “thecal sac effacement” means that the disc bulge “is pushing on the [spinal] cord.” Based on the abnormality on the MRI scan paired with the failed conservative treatment, Dr. Waguespack opined that the bulging disc was causing Mrs. Harrington’s pain and recommended an anterior cervical fusion at C5-6 and C6-7 to eliminate the abnormality. Dr. Waguespack stated that the bulging disc could have been caused by trauma, or by pre-existing arthritis of the neck, i.e., stenosis, exacerbated by trauma.

On May 31, 2005, Dr. Alexis Wagues-pack performed a cervical fusion on Mrs. Harrington, which she tolerated without complications. On June 10, 2005, Mrs. Harrington reported that her pain decreased after surgery. Although she had complaints of pain in September and October of 2005, her pain levels appear to have improved in 2006. Overall, Mrs. Harrington has “improvement from her preoperative complaints” according to Dr. Wagues-pack.

Mrs. Harrington testified that her last employment was May 25, 2005, as a cook for Jefferson Parish Head Start. She had, however, been doing only light cooking and paperwork at her job since 2002 because she could not lift the heavy pots used for most hot meals after her accidents in 2002. Although she has been released back to work, she testified that she has been unsuccessful in finding a job after revealing that she has a previous history of back injury.

112The trial judge took the matter under advisement. On November 28, 2007, after considering the submitted exhibits and post-trial memorandums, the trial judge found Althea Harrington’s total damages to be $263,143.34. In light of the stipulation by plaintiffs to damages of less than $50,000.00 and crediting Prudential $10,000.00 for the liability coverage, the court awarded Althea Harrington $49,999.99 for each accident. The trial judge also awarded Earl Harrington $5,000.00 for his loss of consortium for each accident.

On January 8, 2008, defendant, Prudential Insurance Company, filed a petition for suspensive appeal in the consolidated matter, which was granted by the trial court. On appeal, Prudential raises four assignments of error: first, the trial court was manifestly erroneous when it found that as a result of the two accidents, the plaintiff incurred injuries to her ankle and her neck, which required surgery, and found that plaintiff had sustained $100,000.00 in general damages; second, the trial court was manifestly erroneous when it found medical damages of $115,154.00 when there was insufficient proof of these damages; third, the trial court was manifestly erroneous when it found “lost wages” in the amount of $47,989.34 as there was insufficient proof of these damages; and, fourth, the trial court was manifestly erroneous and committed legal error when it awarded $49,999.99 in damages to Althea Harrington in each case and, in addition, found plaintiffs husband, Earl Harrington, was entitled to $5,000.00 for his loss of consortium in each case, when plaintiffs stipulated the total amount of damages for both plaintiffs was $49,999.99 or less in each case.

In a personal injury action, the plaintiff must prove by a preponderance of the evidence that the claimed injuries resulted from the accident at issue. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/22/95), 650 So.2d 757. If the medical testimony establishes that it is more probable than not that subsequent | ^injuries were caused by the trauma suffered in the incident, the burden of proof is satisfied. A presumption of causation will aid a plaintiff in meeting this burden, if before the accident, the injured person was in good health, but, commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be reasonable possibility of a causal connection between the accident and the disabling condition. Housley v. Cerise, 579 So.2d 973 (La.1991). To rebut this presumption, defendant must show that some other particular incident could have caused the injury in question. This is a factual issue, reviewed by an appellate court under the manifest error standard. Maranto v. Goodyear Tire & Rubber Co., supra.

The factfinder is not precluded from making determinations regarding the credibility of witnesses and respect should be given to those conclusions. Mosley v. Pennzoil Quaker State, 37,199 (La.App. 2 Cir.7/23/03), 850 So.2d 1100. After weighing and evaluating the medical testimony, the trier of fact may accept or reject the opinion expressed by the medical expert. The factfinder should evaluate the expert testimony by the same rules which are applicable to other witnesses and the trial court is not bound by expert testimony. Id. Further, the treating physician’s testimony must be weighed in light of other credible evidence. Green v. Louisiana Coca Cola Bottling Co., Ltd., 477 So.2d 904 (La.App. 4th Cir.1985), writ denied, 478 So.2d 910 (La.1985).

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the supreme court announced a two-part test for the reversal of a factfinder’s determinations: first, the appellate court must find from the record that a ^reasonable factual basis does not exist for the finding of the trial court, and, second, the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). The Mari test dictates that a reviewing court must do more than simply review the record for some evidence, which supports or controverts the trial court’s finding. Id.

Although a reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was reasonable. See generally, Housley, supra; Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). “The reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley, supra (quoting Sistler, 558 So.2d at 1112). In sum, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

On appeal, Prudential argues that the trial judge was manifestly erroneous in finding in favor of plaintiffs because there was a “dramatic conflict” between the plaintiffs testimony and the medical history reflected in her medical records. Prudential argues that the records reflect that plaintiff had been fully released to work in June 2002, plaintiff reported that she was “pain-free” in August 2002, plaintiff was involved in another accident in December 2002, and did not complain of neck and back pain until March 2003. We cannot agree with Prudential’s assertion that such conflicts exist in this record. As we noted above, plaintiff continually sought treatment for pain in her upper back, neck and shoulder from |1sFebruary 2002 until May 31, 2005, when her fusion was performed. In most of the records presented, plaintiff informed the health care professional that her pain began after two motor vehicle accidents in early 2002. After review of the record, we find that the trial judge did not err when he found that Mrs. Harrington’s injuries were causally connected to the motor vehicle accidents at issue. Further, we cannot say that the trial judge was clearly wrong in crediting Mrs. Harrington’s testimony that the onset of her neck, upper back, and shoulder pain was after the February 2002 accident and that the March 2002 accident exacerbated the pain and that pain continued until her cervical fusion in 2005.

Prudential also asserts that Dr. Waguespack testified that plaintiffs back injury that required surgery was not connected to her 2002 automobile accidents. We find that Prudential mischaracterizes Dr. Waguespack’s testimony. Dr. Wag-uespack assented when asked a hypothetical question, during her deposition, which did not accurately reflect the facts of this case. Moreover, our review of the medical records reveals that there is no disagreement among the medical experts that Mrs. Harrington’s 2003 MRI and her 2004 MRI show “no appreciable detrimental change” “in the interval between the two exams,” except further degeneration of the disc at C6-7 “causing more acquired spinal steno-sis.” In sum, the only difference between the two MRIs is degeneration caused by normal arthritis or stenosis. We cannot say, therefore, that the trial judge was clearly wrong in finding that the medical evidence supports the finding that the injuries sustained in the 2002 accidents at issue necessitated the 2005 cervical fusion. Accordingly, we find no merit in defendant’s argument regarding causation.

Prudential also argues that the trial judge erred in awarding $100,000.00 for neck and back injuries that require a cervical fusion. The fact-finder has vast discretion in determining a general damages award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). In reviewing an award of general damages, the court of appeal is required to focus on the total award and not on each individual item. Richard v. Teague, 92-17 (La.App. 3 Cir. 5/4/94), 636 So.2d 1160. An award for damages must be reviewed in a light most favorable to the party who prevailed at trial. Harvey v. State, Dept. of Transportation and Development, 00-1877 (La.App. 4 Cir. 9/26/01), 799 So.2d 569, 576, writ denied, 02-0003 (La.3/15/02), 811 So.2d 910. An appellate court may not overturn an award for damages unless it is so out of proportion to the injury complained of that it shocks the conscience. Id. at 577. Upon review, we see no abuse of the trial court’s vast discretion in a general damages award of $100,000.00 for neck and back injuries sustained in two accidents that eventually require cervical fusion. See generally Cooper v. Lacorte, 99-1726 (La.App. 4 Cir. 1/31/01), 775 So.2d 704.

In its second assignment of error, Prudential asserts that the trial judge erroneously awarded medical expenses of $115,154.00 because the record does not contain medical bills for Dr. Waguespack or Meadowcrest Hospital. A plaintiff may recover past medical expenses that he incurs as a result of an injury due to the fault of another. To recover medical expenses, the plaintiff must prove that, more probably than not, the medical treatment was necessitated by the accident. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App. 2 Cir.12/19/01), 803 So.2d 1039, writ denied, 02-0493 (La.4/26/02), 814 So.2d 558; Collins v. Shelter Mutual Insurance Company, 36,528 (La.App. 2 Cir.12/11/02), 833 So.2d 1166.

Here, the trial court awarded past medical expenses in the amount of $115,154.00 for Mrs. Harrington’s medical treatments from February 2002 through May 2005. We agree that Mrs. Harrington demonstrated, through medical testimony, that more probably than not, the subsequent medical treatment was necessitated by the trauma suffered in the accidents.

|17To sustain her burden of proof for an award of past medical expenses, however, Mrs. Harrington should have attached copies of the medical bills for all treatment. Teague v. Barnes, 519 So.2d 817 (La.App. 5th Cir.1988); Trinity Universal Ins. Co. v. Normand, 220 So.2d 583 (La.App. 3 Cir.1969). Here, the record includes bills for treatment from Westbank Medical Associates, West Jefferson Medical Center, and two MRIs, totaling $9,625.00. Prudential is correct in pointing out that the record is devoid of proof of the expenses for Dr. Waguespack or Meadowcrest Hospital. Accordingly, we vacate the judgment awarding past medical expenses for Dr. Waguespack and Meadowcrest Hospital. We affirm the trial court’s award for past medical expenses in the amount of $9,625.00.

In its third assignment of error, Prudential argues that the trial court erred in its award of “lost wages.” We disagree. The amount of lost wages do not have to be precisely proven, they must only be shown with “reasonable certainty.” Pertuit v. State Farm Ins. Co., 04-176 (La.App. 5 Cir. 6/29/04), 877 So.2d 1101, 1106-1107. A trial court’s award for lost wages is subject to the manifest error standard of review. Id. (citing Ploger v. Reese, 01-2243 (La.App. 4 Cir. 5/22/02), 819 So.2d 1114). In this case, plaintiffs presented evidence from her previous employer, Jefferson Parish Head Start, regarding her salary and benefits. Based on that testimony, the trial judge found that the plaintiff had incurred lost earnings totaling $47,989.34. We see no reason to disturb that finding.

Finally, Prudential asserts, and the plaintiffs agree, that, based on the stipulated limitation of damages, the trial court erred in awarding $10,000.00 to Mr. Harrington for loss of consortium. We, therefore, vacate the trial court’s award of damages to Earl Harrington.

| lsBased on the foregoing, we affirm the trial court’s finding that the plaintiffs injuries were causally connected to her 2002 motor vehicle accidents and affirm the award of $100,000.00 for general damages. Further, we affirm the trial court’s award of $47,989.34 in lost earnings. We must lower the award of medical expenses to $9,625.00. We also vacate the loss of consortium award to Earl Harrington. In conclusion, we amend the total damages award to $157,614.34, and affirm as amended, subject to the credit of $10,000.00 previously paid on each of the accident policies, and further subject to the stipulated amount in controversy: $49,999.99 on each accident. Costs of the appeal are taxed against Prudential Insurance Company.

AFFIRMED IN PART; VACATED IN PART; AMENDED AND AFFIRMED AS AMENDED.

      . On October 20, 2005, the two lawsuits were consolidated for trial.

      . The weight limitation reflected in the doctor's notes for that date is not readable.

      . It is undisputed that Mrs. Harrington did not continue her first course of physical therapy after May 31, 2002 because her insurance benefits were exhausted and her health insurer denied approval for further therapy.

      . The weight limit listed in the doctor’s notes in illegible.

      . Mrs. Harrington did not work for Jefferson Parish Head Start during the summer months of June and July because the school board’s policy is that all cooks are "furloughed” when school was not in session.

      . At trial, Mrs. Harrington agreed that she had been in a minor automobile accident in December of 2002. She testified that a "guy was trying to get in between another car and he tapped my car in the back.” Mrs. Harrington further testified that that incident did not aggravate her pain.

      . See fn. 5, supra.

      . Although the document contains the date "2-3-04,” we conclude that the date of the patient’s discharge from therapy was more likely February 3, 2005 since her physical therapy with this particular facility did not begin until December 9, 2004.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    CHICAGO PROPERTY INTERESTS, L.L.C. and Zoe Aldige’, Individually and on Behalf of those Similarly Situated v. Aaron BROUSSARD and Jefferson Parish.
    No. 08-CA-526.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      E. Carroll Rogers, R. Glenn Cater, Dar-leen M. Jacobs, Bridgette D. Kaczmarek, Michael Delesdernier, Kenny M. Charbon-net, Robert J. Caluda, Richard M. Martin, Jr., Attorneys at Law, New Orleans, LA, for PlaintiffiAppellant.
    Karen M. Dicke, George D. Fagan, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12Plaintiffs/appellants Zoe Aldige’ and Chicago Property Interests, L.L.C., representing that they are proceeding in their personal and representative capacity, appeal the grant of summary judgment as to defendant/appellee National Union Fire Insurance Company (“National Union”). For the foregoing reasons, we affirm.

This lawsuit and appeal arise out of Hurricane Katrina’s passage over Louisiana in August 2005. On August 28, 2005, as Katrina was nearing the Louisiana coast, Jefferson Parish President Aaron Broussard ordered approximately 226 water pump operators to evacuate Jefferson Parish for Washington Parish and other locations throughout Louisiana. When the pump operators left their stations, the pumps were turned off. On August 29, Katrina made landfall in Plaquemines Parish, and caused major flooding to both the east and west banks of Jefferson Parish.

laOn October 14, 2005, plaintiffs Zoe Al-dige’ and Chicago Property Interests, L.L.C. filed a petition for damages naming Jefferson Parish and Aaron Broussard as defendants. The plaintiffs alleged that Jefferson Parish’s failure to operate the pumps for some twelve hours during Katrina’s passage over Louisiana was the principal cause of the flooding in the parish and that Parish President Broussard violated Jefferson Parish policy by forcing the pump operators to leave their stations. The plaintiffs also alleged that the damage would not have occurred had Broussard not made the decision to evacuate the pump operators. In addition, the plaintiffs sought to define a putative class of plaintiffs as all Jefferson Parish east bank residents whose property was flooded as a result of the non-operation of the drainage pumps during or following the passage of Hurricane Katrina. This lawsuit was eventually consolidated with six additional suits alleging that the plaintiffs’ property in Jefferson Parish had flooded during and following Hurricane Katrina due the actions of Jefferson Parish and Aaron Brous-sard. The other six consolidated matters were filed on October 25, 2005 (plaintiff Levy), November 4, 2005 (plaintiff Loga), December 1, 2005 (plaintiff Schmidt), December 16, 2005 (plaintiff Kaczmarek), August 28, 2006 (plaintiffs Brown and Cason), and August 29, 2006 (plaintiff Manard).

On June 29, 2007, the plaintiffs filed a Class Action Administrative Master Petition for Damages (the “Class Action Petition”). The Class Action Petition named as putative plaintiffs “[a]ll parties and/or entities residing or owning property in the Parish of Jefferson, State of Louisiana, who may have sustained injuries, losses, and/or damages as a result of the August 2005 flooding caused and/or contributed to by the non-operation of the pumping and drainage systems during and/or following Hurricane Katrina.” The plaintiffs again alleged that President Broussard acted in a negligent manner and that the parish’s failure to |4operate the pumps was the principal cause of the flooding in Jefferson Parish. In the Class Action Petition, the plaintiffs sought recovery for fourteen categories of damages. These included damages for contamination of property, loss of use of property, increased living expenses, displacement costs, diminution of property value, ecological damages, loss of income, lost profits, lost business opportunity, inconvenience, mental anguish, emotional distress, bodily harm, and past and future medical expenses. The plaintiffs also added several defendants to each of the consolidated matters, including National Union Fire Insurance Company of Pittsburgh, Pa. (“National Union”), an insurer of Jefferson Parish

National Union had issued a “Public Officials and Employees Liability Insurance Policy” in which the named insured was Jefferson Parish and the policy period was from November 24, 2004 to November 24, 2005 (the “National Union policy”). The National Union policy obligated National Union to:

[P]ay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages from any claim or claims first made against the Insured and reported in writing to the Company during the Policy Period for any Wrongful Act of the Insured or of any other person for whose actions the Insured is legally responsible, but only if such Wrongful Act occurs during or pri- or to the Policy Period and solely in performing or failing to perform duties of the Public Entity.

However, these terms were modified by “Endorsement # 2” to the National Union policy, which required National Union to:

[P]ay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as Damages resulting from any Claim first made against the Insured during the Policy Period or the Discovery Period (if applicable) and reported to the Company pursuant to the terms of this policy for any Wrongful Act of the Insured in the performance of duties for the Public Entity.

Endorsement # 2 also contained a lengthy list of exclusions. “Exclusion (d)” to Endorsement # 2 states:

This policy does not apply to any Damages or Claim ... (d) Arising Out Of (1) bodily injury to, or sickness, disease, emotional distress or death of any | r,person, (2) damage to or destruction of any property, including the loss of use thereof, (3) any allegation relating to the foregoing exclusions (d)(1) through (d)(2) that an insured negligently based on an alleged practice, custom, or policy and including, without limitation, any allegation that the violation of a civil right caused or resulted from such Damages or Claim

The term “Arising Out Of’ is defined in Endorsement # 2 . as “originating from, having its origin in, growing out of, flowing from, incident to or having a connection with, whether directly or indirectly.” Thus, Endorsement #2 legally obligated National Union to pay “Damages” resulting from any “Claim” for “Wrongful Acts” made against the insured but Exclusion (d) specifically excluded “Claims” and “Damages” that “Arise Out Of’ bodily injury, property damage, and loss of use thereof.

On October 26, 2007, National Union filed a Consolidated Motion for Summary Judgment alleging that the plaintiffs’ claims against it were specifically excluded by Endorsement #2 and Exclusion (d) and that the National Union policy did not provide Jefferson Parish with coverage as a matter of law. Hearing on the motion was set for January 11, 2008. Following a hearing on the motion, the trial court issued a judgment granting National Union’s motion for summary judgment. This timely appeal followed.

The plaintiffs assign three assignments of error to the proceedings below. First, the plaintiffs argue that the trial court erred in finding that the Exclusion (d) provided no coverage for their injuries. Second, they allege that the trial court erred in not construing the National Union policy as a “liability” policy. Third, the plaintiffs argue that the trial court erred in finding Exclusion (d) valid and applying it to excluding their claims.

Appellate courts review summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. See, e.g., Prince v. K-Mart Corporation, 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248. Summary judgments are currently favored in the law and the rules should therefore be liberally applied. Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865, 866, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636. It is well settled that a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Ekere v. Dupont Chemical Plant, 99-1027 (La.App. 5 Cir. 2/16/00), 757 So.2d 33, 34, writ denied, 00-778 (La.4/28/00), 760 So.2d 1181. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183.

FIRST ASSIGNMENT OF ERROR

In their first assignment of error, the plaintiffs aver that the trial court erred in finding that Exclusion (d) excluded their alleged injuries from coverage. The plaintiffs argue that they are seeking recovery for several categories of damages not covered by Exclusion (d), including increased living expenses, extended displacement costs, loss of income, lost profits, lost business opportunities, and inconvenience. We disagree.

It is manifest in Louisiana law that an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Hebert v. Webre, 2008-0060 (La.5/21/08), 982 So.2d 770, 773. Words and phrases used in an insurance policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. Mayo v. State Farm Mutual Automobile Insurance Company, 03-1801 (La.2/25/04), 869 So.2d 96, 99. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written. Succession of Fannaly v. Lafayette Insurance Co., 01-1355 (La.1/15/02), 805 So.2d 1134, 1137. However, if the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally construed in favor of coverage. Vintage Contracting, L.L.C. v. Dixie Building Material Company, Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 26. An insurer seeking to avoid coverage through summary judgment must prove that some exclusion applies to preclude coverage. Smith v. Reliance Insurance Co. of Illinois, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010, 1014.

By the terms of Endorsement # 2, “Damages” was defined as a “monetary judgment or settlement agreed to with the consent of the company,” a “Wrongful Act” was defined as “any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty, including misfeasance, malfeasance, and nonfeasance,” and a “Claim” was defined as a “judicial proceeding alleging a Wrongful Act that is filed ... and which seeks Damages.” Therefore, any damage originating from, having its origin in, growing out of, flowing from, incident to or having a connection with property damage, loss of use of property, or bodily harm is expressly excluded from the National Union policy.

A comprehensive review of the original, supplemental and Class Action Petitions reveals that every category of damages the plaintiffs allege directly or indirectly had its origin in the passage of Hurricane Katrina and the subsequent property damage and bodily harm allegedly suffered by the plaintiffs. This is particularly true given the broad scope of the term “Arising Out Of’ as defined in Exclusion (d). For example, if a putative plaintiff suffered increased living ^expenses or displacement costs, it was because his or her property was directly or indirectly damaged in the flood that followed Hurricane Katrina. We find that the plain, ordinary interpretation of the definition of “Arising Out Of’ and Exclusion (d) is sufficient to exclude all of the plaintiffs’ alleged categories of damages. Consequently, this assignment of error has no merit.

SECOND ASSIGNMENT OF ERROR

In their second assignment of error, the plaintiffs allege that the trial court erred in not construing the National Union policy as a “liability” policy. Specifically, the plaintiffs claim that the National Union policy was a “general liability” policy which contemplated that National Union would defend suits under a general negligence “wrongful act” standard. In addition, the plaintiffs argue that Exclusion (d) of the National Union policy is so “blatantly universal” so as to be “directly contrary” to the original policy coverage statement.

As the plaintiffs note, the caption of án insurance policy is pertinent in determining the nature of the policy. See, e.g., Quinlan v. Liberty Bank and Trust Co., 575 So.2d 336, 338 (La.1990). However, the character of a document, including a contract of insurance, is determined by examining the entire document and not merely the document’s title. See, e.g., Vogt v. Vogt, 02-0066 (La.App. 5 Cir. 10/29/02), 831 So.2d 428, 432 (quoting Smith v. McKeller, 93-1944 (La.App. 1 Cir. 6/24/94), 638 So.2d 1192).

In legal parlance, the term “liability insurance” is used in a broad and narrow sense. See, e.g., Quinlan, 575 So.2d at 348 (on rehearing). When the term is used in a broad sense, it includes contracts of indemnity against loss and contracts of insurance against liability. Id. In the narrow sense, “liability insurance” refers to contracts of insurance against liability as opposed to contracts of indemnity against loss. See Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987). Under a contract |9of insurance against liability, the insurer must make payment once the insured is found liable for any loss, that is, even if the insured has not paid. Quinlan, 575 So.2d at 348 (on rehearing). Under a contract of indemnity against loss, the insurer must indemnify the insured only after the insured has suffered actual loss, meaning that after the insured has paid or been compelled to pay, his action lies against the insurer by way of indemnity. Id. If the policy is one of insurance against liability, coverage attaches when liability attaches, however, if the policy is one of indemnity against loss, coverage attaches only when the insured suffers an actual loss and defense costs are paid. See, e.g., Meloy, 504 So.2d at 839. Thus, an insurer’s duty to defend an insured in a contract of insurance against liability arises when the pleadings against the insured disclose a possibility of liability under the policy. Id. No such duty exists in a contract of indemnity against loss. Id.

A thorough reading of the National Union policy leads us to conclude that the policy is an indemnity policy rather than a liability policy. As aforementioned, Endorsement #2 of the National Union policy obligated National Union to pay “on behalf of the Insured all sums which the Insured shall become legally obligated to pay as Damages resulting from any Claim.” “Damages” was defined in Endorsement #2 as a “monetary judgment or settlement agreed to with the consent of the company” and a “Claim” was defined as a “judicial proceeding alleging a Wrongful Act that is filed ... and which seeks Damages.” Therefore, to be liable under its policy, National Union must pay a monetary judgment or settlement resulting from a judicial proceeding alleging a wrongful act. Put differently, National Union can be liable under the policy only after the insured suffers an actual loss and defense costs have been paid, which is a hallmark of an indemnity policy. Meloy, 504 So.2d at 839. This Court is also cognizant of the fact that Black’s Law Dictionary defines a “comprehensive general liability policy” | lflas an “insurance policy ... that covers damages that the insured becomes legally obligated to pay to a third party because of bodily injury or property damage.” Black’s Law DictionaRY 809 (7th ed.1999). As discussed above, Exclusion (d) by its own terms does not obligate National Union to pay a third party for bodily injury or property damage. Thus, coverage has not yet attached under the National Union policy, and there is no duty on the part of National Union to defend third party claims under a general negligence standard.

In the instant case, the National Union policy contained a general obligation which was modified by Endorsement #2. An insurer may change or amend coverage by an endorsement attached to the policy. Sea Trek, Inc. v. Sunderland Marine Mut. Ins. Co., Ltd., 99-893, p. 8 (La.App. 5 Cir.2000), 757 So.2d 805, 810. If an attachment to the policy conflicts with the terms of the policy, the attachment will control. Id. If coverage is provided for in the policy, but then excluded in the attachment to the policy, coverage will be excluded. Id.

Thus, Endorsement #2 and by extension Exclusion (d) controls, rather than the original policy coverage statement referred to by the plaintiffs. The plaintiffs’ assertion that Exclusion (d) eliminates all coverage afforded under the National Union policy and thereby creates a patently absurd result is likewise without merit. Rather, Exclusion (d) excludes coverage for certain “Damages” or “Claims,” including those that “Arise Out Of’ bodily injury or property damage.

The Plaintiffs also allege in this assignment of error that Exclusion (d) of the National Union policy essentially “excludes all people and all things from any coverage whatsoever.” This Court is not unmindful of the fact that the National Union policy provides coverage for a seemingly minute variety of “Wrongful Acts” by public officials. In fact, we have searched the jurisprudence from across the United States for similar policies and have found only one instance where a |n court held that a similar policy may provide coverage to a public officer or entity. In a sublime stroke of irony, it was this very Court that held so in Clulee v. Bayou Fleet, Inc., 04-CA-106 c/w 04-CA-107 (La.App. 5 Cir. 5/26/04), 875 So.2d 878. In Clulee, this Court held that summary judgment was inappropriate where the plaintiffs argued that parish officials were negligently enforcing zoning laws with respect to a sand pit and alleged coverage under a “Public Officials and Employees Liability Policy.” We note that a cogent and powerful argument can be made that any damage the Clulee plaintiffs suffered “arose out of’ property damage or loss of use of said property. With regard to the National Union policy, one category of damages which would arguably not be excluded would be purely economic damages. For example, were the plaintiffs to allege that the parish president arbitrarily and capriciously failed to reopen the parish after public services had been restored, the plaintiffs could argue that they suffered a loss of business opportunity, assuming that they suffered no property damage.

In any event, Jefferson Parish officials are free to provide themselves with whatever insurance coverage they see fit. They chose the National Union policy. Accordingly, this assignment of error has no merit.

THIRD ASSIGNMENT OF ERROR

In their third assignment of error, the plaintiffs allege that the trial court erred in finding Exclusion (d) valid and applying it to excluding their claims. Specifically, the plaintiffs argue that the application of Exclusion (d) creates an inherent ambiguity in the National Union policy because it directly conflicts with the general policy provisions of Endorsement # 2. Thus, the argument follows, the ambiguity must be resolved in favor of the plaintiffs.

| iaAn insurance policy should not be interpreted in a strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. See, e.g., Cugini, Ltd. v. Argonaut Great Cent. Ins. Co., 04-795 (La.App. 5 Cir. 11/30/04), 889 So.2d 1104, 1112. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Chesser v. Royal & Sunalliance Ins. Co., 05-678 (La.App. 5 Cir.2006), 926 So.2d 612, 615. However, any ambiguity in insurance policy provisions must be narrowly construed to afford coverage in favor of the insured. Gottsegen v. Hart Property Management, Inc., 02-129 (La.App. 5 Cir. 5/29/02), 820 So.2d 1138, 1141. The determination of whether a contract is clear or ambiguous is a question of law. Mayo, 869 So.2d at 100.

As we discussed above, the National Union policy’s general obligation, was modified by Endorsement # 2, which was in turn narrowed by Exclusion (d). Thus, the terms of Exclusion (d) control where they conflict with Endorsement # 2. See, e.g., Sea Trek, 757 So.2d at 810. The National Union policy clearly denominates Endorsement #2 as general and Exclusion (d) as specific. The intent of the parties to the National Union policy to establish specific exclusions to general coverage is plain beyond doubt. See, e.g., La. C.C. arts. 2045, 2046. In addition, the Civil Code contemplates that a contract of general scope may include provisions pertinent to specific situations. La. C.C. art. 2052. Accordingly, this assignment of error is without merit.

| ^CONCLUSION

For the foregoing reasons, the trial court’s grant of summary judgment as to National Union is affirmed. Costs to be paid by appellant.

AFFIRMED.

      . The “Public Officials and Employees Liability Policy” in Clulee only excluded coverage for "intentional acts.”


author: MADELINE JASMINE, Judge Pro Tempore. GUIDRY, J.,

text:
    STATE of Louisiana v. Mike ALVAREZ.
    No. 08-KA-558.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, GREG G. GUIDRY, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

|2The Defendant, Mike Alvarez, appeals his conviction of possession of cocaine, and his subsequent sentence of ten years at hard labor as a second felony offender. For the reasons that follow, we vacate the conviction and sentence.

In February of 2007, the Defendant was charged with possession with intent to distribute cocaine in violation of La.R.S. 40:967(A), and with possession of a firearm while in possession of cocaine in violation of La.R.S. 14:95(E). He pled not guilty, and filed various motions including a motion to suppress the evidence. The motion to suppress was denied. The Defendant was tried by a jury in February of 2008, and found guilty of the lesser charge of possession of cocaine. He was acquitted on the firearms charge.

The Defendant was sentenced to five years at hard labor, which was later enhanced to ten years after a habitual offender hearing in which he was found to be a second felony offender.

|3On appeal, the Defendant asserts that the trial judge erred in failing to grant his motion to suppress the evidence, and that his sentence is excessive.

FACTS

On the evening of February 1, 2007, two Jefferson Parish Sheriffs Office (JPSO) Reserve Officers, Sergeant Tim Mistretta, Captain Claude Wood, Jr., and JPSO Deputy Eric Lentz were patrolling the Wood-mere Subdivision of Jefferson Parish in separate marked police cars. During their patrol, Sergeant Mistretta and Captain Wood stopped an individual for a traffic violation. Deputy Lentz arrived shortly after to offer assistance.

Sergeant Mistretta testified that he noticed defendant standing at the entry of an alleyway between two apartment complexes watching him conduct a traffic stop. Sergeant Mistretta explained that every time he made eye contact with the defendant, the defendant would “back off’. Captain Wood testified that the defendant was going in and out between the two buildings and was fidgety.

Deputy Lentz testified that he noticed the defendant loitering between two apartment buildings. Deputy Lentz explained that he wanted to conduct an interview with the defendant out of concern for the other officers’ safety to find out what the defendant was doing and why he was walking around in a nervous manner. Deputy Lentz testified that he asked the defendant to come over to talk to him and defendant responded “Me”; when he repeated the request, defendant responded “Huh.” Deputy Lentz and Captain Wood testified that when they approached the defendant from different directions, the defendant turned and fled. The officers chased him.

The officers testified that as they pursued the defendant, they saw the defendant remove a gun from his waistband and throw it into bushes in an |4alleyway between apartment buildings. The defendant then ran into an apartment and slammed the door shut. Officers Wood and Lentz then kicked the door down and entered the apartment. Sergeant Mistret-ta followed the other officers into the apartment. After a struggle, the defendant was handcuffed. The defendant was informed that he was under arrest and he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When Deputy Lentz searched the defendant, he recovered a small bag containing a white rock substance from the defendant’s pants pocket. This substance tested positive for cocaine.

The defendant told the officers that he lived at the apartment with his girlfriend. He then signed a form consenting to a search of the residence.

During the search, Deputy Lentz discovered several bags of rock-like objects inside the freezer in the kitchen. These items tested positive for cocaine. Also found were a razor with some white powdery substance on the end consistent with cocaine, and clear sandwich bags consistent with those used to wrap the drug. No drug paraphernalia was found, although the officers found magazines with 9 mm bullets, and two empty ammunition boxes.

The defendant testified. He stated that on the evening of the incident, Willie Hodges and Levita Jackson arrived at his apartment to watch a basketball game. At that time, he saw a black male dressed in black standing in the alleyway outside the apartment. Shortly after they arrived, Hodges and Jackson left to pick up something to eat. About five minutes later, the police kicked his door in and entered his apartment. He said he did not struggle, that he cooperated and got on the floor when they entered with guns drawn. After the officers handcuffed him, he complied with the officers’ request to sign a form consenting to the search of his | ¡¡apartment. Although they searched the apartment, he denied that they searched him.

The defendant denied knowing where the crack came from, and asserted he was not aware of any drugs in his home. The defendant said Ariana Paul lived with him at the time, and claimed that the freezer in which the drugs were found belonged to Ariana’s mother. He said that both her parents had a drug problem.

The defendant denied that he was chased down an alleyway, or that he discarded a gun. He testified that there were no bushes near his apartment and there was no ammunition in his house.

Ms. Jackson testified that she and Hodges saw a man standing in the alleyway when they arrived at the defendant’s apartment. According to Ms. Jackson, when she and Hodges left to get something to eat, their car was blocked by two police cars. At that time, she again saw someone standing in the alleyway next to the apartment building. Ms. Jackson testified that she watched as the unknown man ran through the alley when the police went to question him. She claimed that the person chased by the police was the same individual she and Hodges had seen earlier when they drove into the driveway.

At the conclusion of trial, the defendant was found guilty of possession of cocaine. He was then adjudicated a second felony offender and received an enhanced sentence of ten years. This timely appeal followed.

ASSIGNMENTS OF ERROR

On appeal, the Defendant argues that the trial court erred in failing to suppress physical evidence gathered as the result of an illegal seizure. He argues that a field stop is unjustified solely on the basis that a person is standing in front of his apartment located in a high crime area. He argues that the evidence should | (ihave been suppressed because it was recovered during an illegal investigatory stop at which the officers lacked reasonable suspicion, and he was unconstitutionally seized prior to his alleged flight.

The State responds that this Court has ruled on the suppression issue in the Defendant’s pretrial writ, and the Court need not address this issue again. The State also argues that the Defendant was not stopped at the time he fled, nor was an actual stop imminent. The State argues that the Defendant’s suspicious behavior in a high crime area and his unprovoked flight from the officers were sufficient to establish reasonable suspicion for an investigatory stop.

LAW AND DISCUSSION

This court denied defendant’s supervisory writ application from the trial court’s denial of his pre-trial motion to suppress evidence, finding the gun and the cocaine obtained in the subsequent pat-down were properly seized. This denial does not bar review of the motion to suppress in the defendant’s appeal of his conviction. See, State v. Fontenot, 550 So.2d 179 (La.1989) (per curiam); State v. Alo, 07-1007, p. 5 (La.App. 5 Cir. 4/15/08), 984 So.2d 877, 880-81. An appellate court may review the testimony adduced at trial, in addition to the testimony adduced at the suppression hearing, in determining the correctness of the trial court’s pretrial ruling on a motion to suppress. State v. Leger, 05-0011, p. 10 (La.7/10/06), 986 So.2d 108, 122, ced. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

• The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and Jjseizures. If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988 (citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); State v. Tucker, 626 So.2d 707 (La.1993)).

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal activity is recognized by LSA-C.Cr.P. art. 215.1 as well as federal and state jurisprudence. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The right to make an investigatory stop and question an individual must be based on reasonable suspicion to believe that the individual has been, is, or is about to be engaged in criminal activity. State v. Bessie, 05-284 p. 5, (La.App. 5 11/29/05), 917 So.2d 615, 619. The “reasonable suspicion” needed for an investigatory stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Burns, 04-175, p. 5 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1075-76.

The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court will consider the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. Burns, 04-175 at 5, 877 So.2d at 1076.

The Fourth Amendment’s purpose is not to eliminate all contact between police and citizens. State v. Stanfield, 05-839, p. 6 (La.App. 5 Cir. 3/14/06), 925 So.2d 710, 715. Police officers “have the right to engage anyone in conversation, |seven without reasonable grounds to believe that they have committed a crime.” State v. Johnson, 01-2436, p. 3 (La.1/25/02), 806 So.2d 647, 648 (per curiam) (quoting State v. Duplessis, 391 So.2d 1116, 1117-18 (La.1980) (citations omitted). The police need not have probable cause to arrest or reasonable cause to detain an individual each time they approach a citizen. State v. Belton, 441 So.2d 1195, 1199 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). As long as the person remains free to disregard the encounter and walk away, there has been no intrusion upon that person’s liberty or privacy which would require particularized and objective justification under the fourth amendment. Id. An officer’s request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority that indicates to the person that he is not free to leave. State v. Lewis, 00-3136, p. 3 (La.4/26/02), 815 So.2d 818, 820 (per curiam), cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002).

In State v. Tucker, 626 So.2d 707 (La.1993), the Louisiana Supreme Court, adopting the U.S. Supreme Court’s pronouncement in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), held that an individual has been “actually stopped,” i.e., seized, for purposes of La. Const, art. 1, § 5 when he submits to a police show of authority or when he is physically contacted by the police. Additionally, the Louisiana Supreme Court determined that even when an actual stop has not been effectuated, our constitution still mandates a finding that an individual has been seized if an actual stop is “imminent.” An actual stop is imminent “only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” Tucker, 626 So.2d at 712 (emphasis in original).

19In the case at bar, when the defendant chose to exercise his right to disregard Deputy Lentz’ request that he come over to talk to him, he was pursued by the officers. The two officers approaching the defendant from two different directions with a third officer standing nearby and chasing the defendant as he chose to leave indicates a stop of defendant was virtually imminent. Thus, the gun allegedly abandoned by the defendant as a direct result of the unconstitutional imminent stop of defendant should not have been used in the prosecution of defendant. Further, it was the alleged abandonment of the gun that gave the officers probable cause to arrest defendant and the search incident to this arrest that led to the discovery of cocaine in his pocket. Consequently, the cocaine should have been suppressed because it was recovered as a result of the unconstitutional imminent stop of defendant.

Further, the officers had no reasonable suspicion to justify an investigatory stop. The officers did not articulate any basis for them to believe that the defendant was committing, had committed, or was about to commit a crime. Deputy Lentz testified that the defendant was “observing our presence in a nervous fashion.” Sergeant Mistretta testified that defendant was standing there watching them conduct a traffic stop. Sergeant Mistretta explained that every time he made eye contact with the defendant, the defendant would “back off’. Captain Woods testified that the defendant was going in and out between two buildings and was fidgety. Deputy Lentz testified that he wanted to question defendant because he was walking around appearing nervous and that in doing so, Deputy Lentz admitted he was acting on “pure suspicion.” All of the officers testified that Deputy Lentz called to the defendant and asked him to come over so he could talk to him. Defendant responded “me” and Deputy Lentz repeated his request. Defendant then responded “huh”. After that Deputy Lentz and Captain Woods | inapproached defendant from two different angles and defendant fled. Deputy Lentz explained that when defendant fled, they chased him as a “natural reaction”. Sergeant Mistretta explained that when a suspect runs, he believes that a crime may have been or might be committed so he has reasonable suspicion to pursue him. All officers testified that they did not recognize defendant as having an outstanding warrant, nor did they have any information that defendant may be involved in illegal activity.

An un-particularized hunch based on the officer’s subjective beliefs or attitudes instead of a completely objective evaluation of the circumstances is insufficient to establish reasonable grounds to stop an individual. State v. Gagnon, 01-1802 p. 6 (La.App. 5 Cir. 4/10/02), 817 So.2d 167, 170. The officers did testify that the defendant was in a high crime area; however, a defendant’s mere presence in a high crime area, without more, does not provide the police with reasonable suspicion based upon articulable facts to make an investigatory stop. State v. Washington, 03-1134, p. 8 (La.App. 5 2/10/04), 866 So.2d 1058, 1062.

Because the officers did not have reasonable suspicion to stop defendant, he was free to leave and refuse to talk to them. Any evidence seized from defendant was the fruit of an illegal stop, and should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 415-416, 9 L.Ed.2d 441 (1963); State v. Stanfield, 05-839 (La.App. 5 Cir. 3/14/06), 925 So.2d 710, 717.

ERROR PATENT DISCUSSION

The record was reviewed for patent errors in accordance with La.C.Cr.P. art. 920. See, State v. Oliveaux, 312 So.2d 337, 338 (La.1975); State v. Polizzi, 05-178, p. 18 (La.App. 5 Cir. 2/14/06), 924 So.2d 303, 315.

InThis review indicates there are discrepancies in minute entries and commitments. However, because defendant’s conviction and sentence are being vacated, only the discrepancy in the minute entry for the jury trial requires correction.

The February 27, 2008, jury trial minute entry reflects that the Defendant was charged with “SCHEDULE II DIST/ WITD OF A CDS (40.-967.A).” The Defendant was actually charged with possession with intent to distribute cocaine. Further, the charge does not include the specific controlled dangerous substance involved. Additionally, the description of the charge for count two is incorrect. The minute entry reflects the Defendant was charged with “USE OF FIREARM/CDS (14-.95.E).” The Defendant was not charged with the use of firearms, but was charged with possession of a firearm while in possession of cocaine. The minute entry must be amended to correct these errors.

DECREE

For the above discussed reasons, we reverse the denial of the motion to suppress. The defendant’s conviction and sentence are hereby vacated and set aside and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

GUIDRY, J., dissents with reasons.

GUIDRY, J.,

dissents with reasons:

| ]In my opinion, the police officers had the right to make an investigatory stop and subsequent arrest and entry into the home. The Defendant’s initial suspicious actions during the officers’ unrelated investigation in the dark in a high crime area, the Defendant’s conduct in fleeing when the officers approached, and the abandonment of the gun, all provided the officers with reasonable suspicion to conduct a stop, and the subsequent probable cause to arrest and search the Defendant’s residence.

      . State v. Alvarez, 07-977 (La.App. 5 Cir. 1/7/08), - So.2d - (unpublished writ disposition).