author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. William Earl BURNEY, Jr., Appellant.
    No. 47,056-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 2012.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert Randall Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

[ William Earl Burney, Jr., entered a Crosby plea to one count of possession with intent to distribute 200 grams or more, but less than 400 grams, of cocaine. Burney was subsequently sentenced to 12 years’ imprisonment at hard labor, to be served consecutively with any other sentence he was obligated to serve. Burney appeals the denial of a motion to suppress evidence. We affirm.

Facts

On March 4, 2010, the state filed a bill of information charging Burney with one count of possession with intent to distribute 200 grams or more but less than 400 grams of cocaine, a Schedule II Controlled Dangerous Substance in violation of La. R.S. 40:967(A)(1), one count of conspiring to distribute a Controlled Dangerous Substance in violation of La. R.S. 40:979, and one count of possession of counterfeit money with the intent to deceive another person in violation of La. R.S. 14:72.2. The charges stemmed from evidence discovered in a warrantless search of the vehicle driven by Burney during a January 14, 2010, traffic stop on Interstate 20. Burney filed two motions to suppress the evidence and any statements he made on the grounds that his detention and the following warrantless search were in violation of his Fourth Amendment rights.

The state presented the testimony of Louisiana State Trooper Adam Holifield, who initiated the traffic stop, and James Walter McLamb II, a former Caddo Parish Sheriffs Office deputy assigned to the K-9 unit. 12Holifield testified that at approximately 7:54 a.m. on January 14, 2010, he was on active patrol traveling eastbound on Interstate 20 when he observed a red sports utility vehicle in front of him drift over the solid white fog line with its passenger side tires. The vehicle traveled in that manner for 75 to 100 feet before all its tires returned to the travel lane. As a result of the improper lane usage, Holifield testified that he initiated the stop at mile post 30.5.

Once the subject vehicle stopped, Holi-field directed the driver to the rear of the vehicle. The defendant exited the vehicle and presented a Mississippi driver’s license identifying him as “William Burney.” After being advised of the reason for the stop, Burney admitted that he had crossed onto the shoulder because he got nervous when he saw the officer’s vehicle behind him. Burney further explained that he was traveling to Jackson, Mississippi, to introduce his girlfriend, the passenger in the vehicle, to his mother. Burney also told Holifield that the vehicle had been rented by the passenger’s mother in the Houston area. Holifield testified that during this initial exchange, he observed Bur-ney’s carotid artery pulsating and beads of sweat forming on his forehead despite the 38 temperature. Holifield also stated that Burney kept repeating the officer’s questions before answering them, that his voice was cracking and he kept shifting from side-to-side. Holifield interpreted all of these to be signs of the defendant’s nervousness about the encounter.

Holifield then approached the passenger, Sunnie Dalai, who was still seated in the vehicle. Dalai produced a Texas driver’s license and identified | ¡¡herself as Bur-ney’s girlfriend. She said that they were traveling from Houston to Vicksburg, Mississippi, to visit some friends. During the interview, Holifield indicated that Dalai avoided making eye contact, rapidly played with her hands and shifted her feet back and forth on the floorboard. When Holi-field asked Dalai about the strong air freshener smell emanating from the vehicle, Dalai told him that it was a liquid air freshener made by a friend which could “cover up just about anything.”

Given all these circumstances, Holifield decided to run a criminal history check on both individuals as he checked on the status of Burney’s driver’s license. The check revealed that Dalai had no prior criminal history but that Burney had arrests for possession of controlled dangerous substances in 2003 and 2009.

Having concluded that there was a “strong probability that some type of criminal activity was afoot,” Holifield called for backup before asking Burney for permission to search the vehicle. The defendant refused permission, so Holifield informed him that he was going to request a K-9 to conduct an open air sniff of the exterior of the vehicle. Holifield was subsequently joined by Trooper Dowden. Knowing that “their” K-9, Reko, was in training in Baton Rouge, Holifield asked the dispatcher to check Bossier City and Bossier Parish for K-9 unit availability. When none were available, Dowden contacted Deputy McLamb with the Caddo Parish Sheriffs Office who indicated that he could be on the scene in approximately 25 minutes. Dalai then indicated to the officers that as it was her mother who had rented the vehicle, she was willing to give consent to a Lsearch. Having already been refused consent by the defendant, Holifield decided to wait for the K-9 unit.

While they waited, Burney and Dalai sat in the back of Holifield’s patrol unit with a blanket and water which they had retrieved from their SUV. They were not handcuffed and the patrol unit’s door remained open. According to Holifield, McLamb arrived approximately 30 minutes after being called by Dowden. McLamb explained to Burney and Dalai why he had been called to the scene and that his dog, Diesel, would be conducting an open air search around the exterior of the vehicle. According to Holifield, at this point both subjects admitted to McLamb that they had smoked marijuana in the vehicle between Houston and their present location.

During the open air search, McLamb testified that Diesel showed a positive response to the presence of narcotics. Holi-field and McLamb both testified that when the subjects were informed of the positive response, Dalai asked whether the dog was alerting “just” to the presence of marijuana. Holifield and McLamb testified that they then conducted a search of the interi- or of the vehicle which revealed “gleanings” of a vegetable material consistent with marijuana on the floorboard of the vehicle. Inside the zipper compartment of a duffel bag, Holifield discovered what appeared be $2,680.00 in cash rolled up in a man’s white sock. The currency was subsequently determined to be counterfeit.

McLamb conducted the search of the rear cargo area where he found a shopping bag containing a small heart-shaped pillow and two candles, one 15white and one orange. Upon removing the candles from the bag, McLamb noticed the label on the bottom of the white candle was rolled up, revealing a dirt-like substance beneath it melted into the wax. Both officers testified that in their training and experience, drug couriers used all forms of “containers” to transport drugs, including hollowed-out candles. Accordingly, McLamb used a pocket knife to scrape the bottom of the candle and discovered that the dirt-like substance was in fact coffee grounds. Knowing coffee grounds were often used in an effort to mask the odor of narcotics, McLamb cut deeper into the candle where he found a white powdery substance wrapped in aluminum foil. The substance was subsequently determined to be 263 grams of cocaine.

As to the timing of the events, Holifield testified that the initial stop of the defendant’s vehicle took place at 7:54 a.m. He stated that McLamb was called to the scene at approximately 8:20 a.m. and arrived between 25 and 30 minutes later. The dashcam video of the traffic stop was also introduced into evidence. It depicts the subject vehicle as it begins to pull over on the side of the Interstate and the initial contact between Holifield, Burney and Da-lai. While none of the audible audio recording contradicts Holifield’s testimony as to his exchanges with the subjects, the passing traffic makes it hard to make out everything that is said. Holifield then returns to his unit where he can be heard calling in the subjects’ identifications for a criminal check.

Because the video does not bear a time stamp, all that can be determined is the time elapsed from when the recording begins. The | (¡information on the defendant’s prior arrests is not returned until approximately 21 minutes into the recording. Two minutes later, the defendant can be heard refusing consent to search the vehicle. Holifield and another officer, presumably Dowden, can then be heard trying to track down an available K-9 unit until approximately 28 minutes into the recording. At this point it appears the audio is silent until about one hour and five minutes into the recording when approximately one minute of audio can be heard and is then silent again until the subjects are alerted about the K-9 unit’s positive response. The drug dog is first seen on the recording at approximately one hour and ten minutes into the video as he is led by a deputy in an open-air search of the exteri- or of the vehicle. The officers can then be seen conducting a search of the vehicle during which they discover the narcotics-filled candles.

After hearing the testimony, the court took the matter under advisement to view the recording of the traffic stop and to allow the parties time to file memoranda. On December 7, 2010, the court denied both of defendant’s motions to suppress.

On March 25, 2011, defendant entered a Crosby plea to the charge of possession with intent to distribute 200 grams or more but less than 400 grams of cocaine in which he reserved his right to appeal the denial of his motions to suppress evidence. In exchange, the state agreed to dismiss all other charges pending against Burney. On June 28,- 2011, Burney was sentenced to 12 years at hard labor, consecutive with any other sentence he is obligated to serve. The instant appeal followed.

1 gDiscussion

In his first argument, Burney contends that the circumstances confronted by Holi-field during the traffic stop did not support a conclusion that there was a reasonable probability that criminal activity was involved so as to justify a 70-minute detention of Burney prior to the free-air dog sniff. Burney argues that the inconsistencies in his and Dalai’s stories were alone insufficient to justify the length of the detention and that the otherwise suspicious conduct of the two was nothing more than “typical reactions” to a stressful situation or cold weather. Burney also contends that for 43 of the 70 minutes that he was illegally detained, Holifield was doing nothing to further his investigation.

When the constitutionality of a warrant-less search and seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. Lee, 46,742 (La.App.2d Cir.12/14/11), 79 So.3d 1278.

The right of every person to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and by Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified under one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Tatum, 466 So.2d 29 (La.1985); State v. Lee, supra.

The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lee, supra.

The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. State v. Lee, supra; State v. Birgans, 45,982 (La.App.2d Cir.1/26/11), 57 So.3d 478, writ denied, 10-2561 (La.11/4/11), 75 So.3d 917; State v. Khalfani, 43,647 (La.App.2d Cir.10/29/08), 998 So.2d 756, writ denied, 09-0267 (La.11/6/09), 21 So.3d 305.

The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is the two-step formulation articulated in Terry v. Ohio, supra; State v. Lee, supra; State v. Khalfani, supra; State v. Pena, 43,321 (La.App.2d Cir.7/30/08), 988 So.2d 841. The court must determine whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, supra.

InFor a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur. State v. Lee, supra; State v. Bir-gans, supra; State v. Pena, supra. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048; State v. Lee, supra. The determination of reasonable suspicion for an investigatory stop, or probable cause for arrest, does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Landry, 98-0188 (La.1/20/99), 729 So.2d 1019; State v. Pena, supra; State v. Arnold, 34,194 (La.App.2d Cir.12/6/00), 779 So.2d 840. Therefore, when an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The objective standard is indifferent to the relatively minor nature of a traffic violation. State v. Lee, supra; State v. Stowe, 44,815 (La.App.2d Cir.10/28/09), 25 So.3d 945.

In stopping a vehicle on reasonable suspicion, an officer has the right to conduct a routine license and registration check and may engage in conversation with the driver and any passenger while doing so. State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90; State v. Lee, supra.

La. C. Cr. P. art. 215.1(D) states that, in conducting a traffic stop, “an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigátion of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.”

Thus, if a police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. State v. Lee, supra; State v. Stowe, supra. In order to further detain a suspect, however, the officer must have articulable facts giving rise to a reasonable suspicion of some separate illegal activity that would justify further detention of the suspect. State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879; State v. Lee, supra. In making that determination, the totality of the circumstances must be taken into account. State v. Kalie, supra; State v. Lee, supra. The circumstances must be judged by an objective standard such that the facts available to the officer at the moment of seizure or the search would warrant a man of reasonable caution in the belief that the action taken was appropriate. State v. Kalie, supra; State v. Lee, supra. There is no bright line rule for when a detention lasts too long and each instance must be assessed in view of the surrounding circumstances. State v. Arnold, supra. Factors which may give rise to reasonable suspicion include the demeanor of the suspect and unlikely and inconsistent accounts regarding travels. State v. Miller, 00-1657 (La.10/26/01), 798 So.2d 947; State v. Kalie, supra; State v. Lee, supra; State v. Birgans, supra. The presence of an air freshener in a vehicle has also been considered a factor which may give rise to reasonable suspicion. State v. Lee, supra; State v. Thompson, 543 So.2d 1077 (La.App. 2d Cir.1989), writ denied, 551 So.2d 1335 (La.1989). Outstanding warrants and criminal records may also be considered in this inquiry. State v. Lee, supra; State v. Khalfani, supra; State v. Pena, supra.

The lawfulness of the initial stop in the case sub judice has not been challenged by defendant. Nevertheless, crossing the fog line onto the shoulder and out of one’s lane of travel has repeatedly been recognized as a lawful reason for a traffic stop. See State v. Miller, supra; State v. Stowe, supra. Trooper Holifield, therefore, had grounds for a lawful traffic stop during which he was permitted to converse with and check the licenses of both the driver and passenger.

The inconsistencies in Burney’s and Dalai’s explanations regarding their travels, obvious nervousness, strong odor of air freshener and Burney’s criminal record, all allowed a permissible shift in Holi-field’s focus sufficient to create a reasonable suspicion that criminal activity was afoot. This reasonable suspicion justified extending the stop so that Holifield could continue to investigate the matter more thoroughly.

After detaining the occupants of the vehicle, and receiving no consent to search the vehicle, the officer diligently pursued a means to investigate by calling for a K-9 unit that would likely dispel or confirm his suspicions. The trooper’s decision to call for the dog justified the extension of the duration of the stop. State v. Lee, supra; State v. Birgans, supra. The |12record shows that the officers had some difficulty in locating a drug dog, which legitimately delayed the search. Holifield testified, and the recording of the stop confirms, that once consent to search was refused, a search for an available K-9 unit commenced immediately. Once secured, however, an additional 30 to 40 minutes elapsed before the unit arrived due in part to the fact that the only available unit was from the Caddo Parish Sheriffs Office. There is no suggestion that the delay was the result of any lack of diligence on the part of the investigating officers. While defendant complains that there was an approximate 43-minute span when Holifield was not investigating or doing anything to further the investigation, this time elapsed between the refusal of consent and arrival of the K-9 unit. Having been refused consent and not yet' having probable cause to conduct a warrantless search, Holifield acted as diligently in pursuing a means of investigation as the circumstances allowed. This assignment is therefore without merit.

Burney next relies on the plain view doctrine to argue that the officers did not have probable cause to dig into the candles solely on the basis that one of the candles appeared dirty.

Once a K-9 alerts on the vehicle, the officers have probable cause to search the vehicle without first obtaining a warrant. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Lopez, supra; State v. Kalie, supra. Police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). Whether certain containers fall within the scope of that search is not determined by the nature of the container, but rather by the object of the search and the places in which there is probable cause to believe it may be found. United States v. Ross, supra. Probable cause means “a fair probability that contraband or evidence of a crime will be found.” Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Thompson, supra. It must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act. State v. Thompson, supra; State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179.

Burney’s reliance on the plain view doctrine is misplaced. Rather, the crucial inquiry is whether the officers had probable cause to believe that narcotics, the object of their search, could be found in the candles. The evidence at trial demonstrated that a K-9 had alerted on the vehicle and that when the subjects were informed of the alert, Dalai’s response suggested to the officers the presence of some contraband other than marijuana. These facts, coupled with the discovery of marijuana gleanings and a substantial amount of money, legitimately raised a fair probability in the minds of the officers that more contraband or evidence of a crime would be found. This | ^justified their continued search of the vehicle and its contents. It was within the body of the vehicle that McLamb legitimately came across an open shopping bag containing two candles which appeared to have been tampered with. From their experience, both officers knew that drugs were sometimes carried in candles. This knowledge and the discovery of a foreign substance melted into the bottom of the candle raised adequate suspicion of the presence of drugs in the minds of the officers and justified additional investigation of the candle. For these reasons, Burney’s argument that the mere discovery of a dirty candle was insufficient to justify any further intrusive search of the candle is without merit.

Decree

For the foregoing reasons, Burney’s conviction and sentence are affirmed.

AFFIRMED.

      . The guilty plea, made in accordance with State v. Crosby, 338 So.2d 584 (La.1976), reserved Burney's right to appeal the denial of a motion to suppress the cocaine seized.

        . While defendant correctly points to the fact that consent was refused at the 23 minute mark and the drug dog did not appear in the video until the one hour and ten minute mark, it is also noteworthy that it was not until the 28 minute mark that an available K-9 unit was located. The dog’s appearance in the video may not accurately reflect the time of the unit's arrival on the scene. McLamb explained that he initially approached the subjects to explain why he had been called and the procedure involved in the open air dog sniff and the record is silent as to the amount of time that elapsed during this encounter.


source: Caselaw Access Project

author: PETERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Bill Eric WINTERS. State of Louisiana v. Bill Eric Winters.
    Nos. KA 11-581, KA 12-205.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant/Appellee, Bill Eric Winters.
    Allan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellant/Appel-lee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PETERS, Judge.

hOn June 7, 2009, the State of Louisiana (state) charged the defendant, Bill Eric Winters, by bill of information with simple burglary, a violation of La.R.S. 14:62, and with possession of cocaine, a violation of La.R.S. 40:967. On the morning of trial, the state severed the possession of cocaine charge and the matter proceeded to trial on the simple burglary charge. The jury convicted the defendant of simple burglary on April 6, 2010, and on November 18, 2010, the trial court sentenced the defendant to serve seven years at hard labor.

Four days later, on November 22, 2010, the state charged the defendant as an habitual offender pursuant to La.R.S. 15:529.1. The trial court subsequently adjudicated the defendant as an habitual offender and sentenced him to serve twelve years at hard labor without the benefit of probation, parole, or suspension of sentence.

The defendant appealed his simple burglary conviction, asserting four assignments of error. In a separately filed appeal, the state asserted one assignment of error directed at the sufficiency of the sentence imposed in the habitual offender proceedings. We consolidated these appeals by order dated February 22, 2012. For the following reasons, we remand the matter to the trial court for a hearing to address the defendant’s jury challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in a manner consistent with this opinion. In doing so, we pretermit consideration of the remaining issues raised on appeal pending the outcome of the Batson hearing.

DISCUSSION OF THE RECORD

There is little dispute concerning the facts in this matter. While on patrol on Sunday morning, June 7, 2009, Officer Forrest Blanton of the Lafayette Police |2Pepartment, was ordered to proceed to 210 Coolidge Street. He arrived around 7:40 a.m. and observed a brown bicycle laid up against a wooden railing at the entrance to the Oncologies, Incorporated business office. Officer Nathan Thorton joined him, and he and Officer Thorton found the front office door unlocked and the lights inside off. Standing in the foyer of the office, Officer Blanton heard “rustling in one of the offices.” When he looked down a long hallway in the direction of the noise, he observed the defendant peering into the hallway from one of the offices. He and Officer Thorton took the defendant into custody and initially charged him with unauthorized entry of a place of business. When they physically searched the defendant, they found that he was in possession of some “snacks and things.”

The officers then had the dispatcher contact the alarm company providing security for the office to have someone with a key come to the scene because the building remained unsecured. John Ferguson responded to the request and, upon his arrival at the scene, he walked through the building with the officers. They observed no pry marks around the door and found no tools on the premises to suggest a physical break-in. However, the did find that the automatic-lock door had not functioned properly; it left the plunger stuck inside, causing the door to be unlocked. They freed the plunger and secured the door. At the request of the officers, Mr. Ferguson performed a cursory examination of' the office space to determine if anything was missing or out of place. He did not notice any equipment missing, but did notice that “[sjome cabinets and drawers were opened and had been rummaged through.”

Mr. Ferguson testified the office is not open on Sunday, no employees are present on Sunday, and the building houses the company’s accounts receivable | ..department and serves other corporate functions. On Monday after the •■Sdnday break-in, Mr. Ferguson asked the employees at the Coolidge Street office to check for anything that might be missing. While he never received a direct report addressing this request, Kimberly Smith, one of the employees at the Coolidge Street office, testified that when she arrived for work on Monday, her desk drawer was open and “some Gobstoppers and some special dark chocolate” were missing from her desk, and her calendar on her desk had been moved. However, Ms. Smith did not provide the officers with a statement concerning the candy until July 28, 2009, or some forty-eight days after the incident.

Officer Thorton testified that the snacks found on the defendant at the time of his arrest included Gobstopper candy. Although both officers recalled the snacks found on the defendant, neither officer took those items into evidence. In fact, according to Officer Thorton, they were left at the scene.

In his appeal, the defendant asserts (1) that the evidence is insufficient to support his conviction of simple burglary, (2) that the trial court erred in not considering his complaint of ineffective assistance of counsel, (3) that the trial court erred in refusing to consider his Batson challenges, and (4) that the trial record is incomplete, thereby depriving him of his constitutional right to a complete record on appeal. In its appeal, the state asserts that the trial court erred in sentencing the defendant to an illegally lenient sentence in the habitual offender proceedings.

We find merit in the defendant’s third and fourth assignments of error. These findings require that we pretermit the remaining assignments of error and remand this matter to the trial court for further proceedings consistent with this opinion.

^OPINION

In his third and fourth assignments of error, the defendant asserts that the trial court erred in refusing to consider his challenges pursuant to Batson, and that the lack of a complete record on this issue deprives him of his constitutional right to a complete record on appeal.

The record initially provided this court did not contain the transcript of the jury selection process. Pursuant to the defendant’s request, this court ordered that the record be supplemented with the voir dire transcript, which was subsequently provided. The defendant apparently believed that the supplemental transcript would include a discussion of the peremptory challenges, but it does not. The record as supplemented contains a portion of the proceedings associated with the jury selection process, but is itself incomplete.

The supplemental record establishes that the jury selection process began with the selection of twenty-four potential jurors for interrogation concerning their qualifications to serve. The defendant’s third assignment of error arises from the fact that, during the jury selection process, the defendant’s trial counsel moved to Bat-son challenge four potential jurors peremptorily excused by the state: Tray Ar-ceneaux, Felton Landry, Kimberly Taylor, and Demetria Batiste. Nothing in the record establishes the race of these four jurors or, for that matter, the race of any of the other twenty.

The record does establish that Mr. Ar-ceneaux is a twenty-three-old unmarried construction worker and a high school graduate. Mr. Landry did not state his age, but he is married and works offshore as a roustabout. He has a tenth-grade education and he and his wife have no children. Ms. Taylor is twenty-seven years old, has three children (the oldest is eight) and is separated from her husband. [sAt the time of trial, she was unemployed. Ms. Batiste is thirty-four years old and the mother of two children, ages eighteen and eleven. At the time of trial, she was unemployed and enrolled in cosmetology school.

During the voir dire process, all of the jurors were questioned by the trial court, the state’s attorney, and the defendant’s trial counsel concerning their ability to serve. The responses provided were generally appropriate to the inquiries. However, when the state’s attorney propounded a hypothetical question whether stealing should be excused if the intent was to feed the perpetrator’s children, Mr. Arceneaux did not respond. Ultimately, however, he stated that he could return a verdict based on the evidence presented and could follow the instructions as to the applicable law. Ms. Taylor had some concerns about her ability to render judgment if the defendant did not take the stand in his own defense. Still, she indicated that she could return a verdict based on the evidence presented without regard to whether the defendant took the stand. Although she too stated that she could return a verdict based on the evidence presented, Ms. Batiste stated that she believed stealing food to feed one’s children was an excuse for theft.

After the round of questioning was completed, the trial court summoned the parties to the jury deliberation room for a discussion outside the presence of the prospective jurors. The transcript of the exchanges in the jury deliberation room relating to individual jurors is incomplete. It begins with the exercise of challenges for cause by each side, is silent concerning the peremptory challenge phase, and ends with a short discussion concerning the defendant’s Batson challenge. Specifically, the transcript reads as follows:

[RECESS]
[IN JURY DELIBERATION ROOM OUTSIDE THE PRESENCE OF PROSPECTIVE JURORS]
UTHE COURT: All right, gentlemen, let’s proceed. Any challenges for cause, Mr. Haney [counsel for the state]?
MR. HANEY: Yes, Your Honor. Ms. Babin, Loretta Babin. She seemed unsure and the incident she and her daughter had with the police officers — I don’t think—
THE COURT: Granted. Mr. McCann [counsel for the defendant]?
MR. MCCANN: Ms. Katie Christensen. She indicated she could be a better judge if the defendant testified—
THE COURT: Granted.
MR. HANEY: Will we be able to back strike—
THE COURT: — yes, we’ll see — yes.
[AFTER ALL CHALLENGES WERE MADE BY THE STATE AND DEFENSE, THE DEFENSE MOVED FOR BATSON CHALLENGES]
MR. MCCANN: I have to challenge— make the Batson challenge on Tray Ar-ceneaux, Felton Landry, Kimberly Taylor, and Demetria Batiste.
MR. HANEY: Judge, there is no racial intent—
MR. MCCANN: I believe they should be questioned individually.
THE COURT: Denied. Denied. I note your objection for the record.

Thus, • the entire on-the-record discussion concerning peremptory challenges is nonexistent. That being the case, we have no way of knowing what, if anything, was said relative to racial makeup of the jury pool, reasons for exercising individual preempto-ry challenges, or the trial court’s response to any such discussions.

The court minutes also shed little additional light on the events in the jury deliberation room. Those minutes provide the following with relation to the jury selection process:

JjAT THE REQUEST OF THE COURT, 24 PROSPECTIVE JURORS WERE SEATED IN THE JURY BOX AND QUESTIONED BY THE VOIR DIRE AND THEIR DISPOSITIONS ARE BELOW:
JOHNNY SHANKLIN ACCEPTED
TRAY ARCENEAUX EXCUSED BY STATE
FELTON LANDRY EXCUSED BY STATE
KATIE CHRISTENSEN EXCUSED FOR CAUSE
BERNARD HARRIS EXCUSED BY DEFENSE
REBECCA NAQUIN ACCEPTED
TAMMY ATWOOD EXCUSED BY DEFENSE
LENA HILL EXCUSED BY STATE
KIMBERLY TAYLOR ACCEPTED (BACKSTRIKE)
DEMETRIA BATISTE EXCUSED BY STATE
TODD VENABLE ACCEPTED
MARTHA SIMON ACCEPTED
HARRY BROWN JR EXCUSED BY STATE
LORETTA BABIN EXCUSED FOR CAUSE
VALARIE STANDEFER ACCEPTED
THOMAS EASTERDAY EXCUSED BY DEFENSE
MELINDA SANDERS EXCUSED BY DEFENSE
ALLEN DEVILLIER ACCEPTED
SHONNA BORUSSARD EXCUSED BY DEFENSE
ALFREDO MENDOZA ACCEPTED — ALTERNATE # 1
SANDY DUHON EXCUSED — NOT NEEDED
JUDE BOUDREAUX EXCUSED — NOT NEEDED
DAWN LOUVTERE EXCUSED — NOT NEEDED
TAMMY BUTLER EXCUSED — NOT NEEDED
OUTSIDE THE PRESENCE OF THE POTENTIAL JURORS, BEFORE CHALLENGES WERE MADE BY STATE AND DEFENSE, THE STATE CHALLENGED FOR CAUSE, LORETTA BABIN AND GAVE ARGUMENTS, TO WHICH THE COURT GRANTED. THE DEFENSE THEN CHALLENGED FOR CAUSE, KATIE CHRISTENSEN AND GAVE ARGUMENTS, TO WHICH THE COURT GRANTED.
AFTER CHALLENGES WERE MADE BY STATE AND DEFENSE, THE DEFENSE MOVED FOR A BATSON CHALLENGE, ON POTENTIAL JURORS, TRAY ARCENEAUX, FELTON LANDRY, KIMBERLY TAYLOR, AND DEMETRIA BATISTE AND GAVE ARGUMENTS. THE STATE THEN PRESENTED ARGUMENTS REGARDING THE DEFENSE’S BATON[SIC] CHALLENGES.
THE DEFENSE THEN REQUESTED THAT THOSE POTENTIAL JURORS BE INDIVIDUALLY QUESTIONED AND PRESENTED ARGUMENTS, TO WHICH THE COURT DENIED BUT NOTED THE DEFENSE’S OBJECTION.

| sFrom the minutes, we do know that, in addition to the two jurors that were excused for cause, the state exercised peremptory challenges against three men and two women (including the four at issue in the Batson challenge), and the defendant’s trial counsel exercised peremptory challenges against two men and three women. The minutes also assert that the state presented arguments regarding the defendant’s Batson challenges. However, the record does not support this assertion.

When a Batson challenge is asserted, the proponent bears the burden of presenting a prima facie showing of purposeful discrimination in the selection of the jury. The burden then shifts to the opponent to show a non-discriminatory basis for its peremptory challenge. The trial court then determines whether the proponent has carried his burden of proving purposeful discrimination. State v. Nelson, 10-1724 (La.3/13/12), 85 So.3d 21. However, as stated in State v. Sparks, 88-17, p. 40 (La.5/11/11), 68 So.3d 435, 470, “[t]he [Supreme] Court did not formulate any particular requirements for determining whether a defendant established a pri-ma facie case. Rather, the Court expressed confidence in the trial judges’ ability to determine the establishment of a prima facie case.” In State v. Draughn, 05-1825, pp. 24-26 (La.1/17/07), 950 So.2d 583, 602-03, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), the supreme court stated:

[T]he Supreme Court further clarified its Batson analysis with regard to Bat-son’s first step in Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), and its analysis of Batson’s third and final step in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Our review of the defendant’s claim is informed by the Supreme Court’s pronouncements in Johnson and Miller-El.
Johnson reiterated that “a prima facie case of discrimination can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives ‘rise to an inference of discriminatory purpose.’” Johnson, 545 U.S. at 169, 125 S.Ct. 2410, citing Batson, 476 U.S. at 94, 106 S.Ct. at 1712. In Johnson, the Supreme Court quoted Batson’s explanation of what constitutes a prima facie case:
[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Id. at 96, 106 S.Ct. 1712 (citations omitted) (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953)). (Emphasis supplied).
Johnson, 545 U.S. at 169, 125 S.Ct. 2410.
Johnson makes clear that the burden of production in the first Batson step is squarely on the defendant.

Given the record before us, it is clear that, with the exception of Ms. Batiste, the responses from these potential jurors do not indicate any race-neutral basis for excluding them from the jury. Thus, the record suggests the possibility that a Batson violation exists.

A similar situation occurred in State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, where the equal protection challenge was gender-related. After the state struck several male potential jurors, the defendant objected, and the trial court denied the objection without comment. The Louisiana Supreme Court held:

Because it is impossible to meaningfully review whether the defendant proved his claim that the prosecutor im-permissibly struck male jurors solely because of their gender, we find it necessary to remand the matter to the trial court for an evidentiary hearing at which the court is to require the prosecutor to present gender-neutral reasons for the strikes. The trial court is then to make a final determination ' of | Tnwhether the defendant has met his burden of proving purposeful discrimination. If the trial court finds that the defendant cannot meet his burden under the applicable law, the defendant’s conviction and sentence are affirmed. In the event that the trial court determines that the prosecutor did exercise the peremptory challenges in a discriminatory manner in violation of the Equal Protection Clause, the trial court is to grant the defendant a new trial. Both parties’ right to appeal from any adverse decision regarding the J.E.B. [v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ] claims is reserved.

Id. at 451.

Here, the transcript does not indicate any off-the-record discussion that may have concerned the peremptory or Batson challenges. The minutes indicate which jurors were accepted and excused by the parties, but the transcript jumps from the point of causal challenges to the Batson reference after peremptory challenges were made and decided. Obviously, a discussion took place concerning the peremptory challenges because the minutes indicate which potential jurors were excused by which party. However, neither the minutes nor the transcript contain that discussion or indicate whether any basis for each challenge was stated. Neither the minutes nor the transcript indicates the race of any of the potential jurors. What does appear in the record indicates the potential for a Batson violation. Further, the trial court erred when it failed to make the three-step Batson analysis when the defendant made his challenge and was denied the opportunity to present a prima facie showing of purposeful discrimination by the state. Unless the missing portion of the transcript can be furnished and shows the defendant in fact had that opportunity, this court, like the Givens court, must remand the matter for an evidentiary hearing to conduct the Batson analysis.

DISPOSITION

Pursuant to the procedure set forth in State v. Clark, 97-1064 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, writ granted and case remanded in light of supplemental filing, 98-1180 (La.9/25/98), 726 So.2d 2, and State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866, we pretermit consideration of the remaining assignments of error and remand this matter to the trial court with instructions to (1) conduct an evidentiary hearing on the Batson issue within thirty days and (2) lodge an appellate record, containing the transcript of the hearing, within fifteen days of the hearing.

REMANDED WITH INSTRUCTIONS.


author: PETERS, J.

text:
    CALCASIEU PARISH SCHOOL BOARD v. Mary MILLER, et al.
    Nos. CW 11-1107, CA 12-48.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Christopher M. Trahan, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Plaintiff/Appellee, Calcasieu Parish School Board.
    Darren A. Patín, Shailendra U. Kulkar-ni, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for Defendant/Applicant, Louisiana Citizens Property Insurance Corporation.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

hOne of the defendants in this litigation, Louisiana Citizens Property Insurance Company, appeals the grant of a summary judgment in favor of the Calcasieu Parish School Board on the issue of insurance coverage. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

This litigation arises out of a December 4, 2008 accident involving Katherine Kunz-weiler, an employee of the Calcasieu Parish School Board (School Board). On that day, while working as an art teacher at Washington Magnet High School in Calca-sieu Parish, Ms. Kunzweiler sustained personal injuries when she was knocked down by a student while attempting to break up an altercation between the student and another student. In the matter now before us, the School Board is attempting to recover, from the offending student’s mother and the homeowner’s insurance policy issued to her by Louisiana Citizens Property Insurance (Louisiana Citizens), benefits it paid to Ms. Kunzweiler under the Louisiana Workers’ Compensation Act.

The underlying facts are not in dispute. On the morning of December 4, 2008, two female students in Ms. Kunzweiler’s class, Keiarea Miller (Keiarea) and a female student identified in the record as “Shondell,” began a verbal altercation. Ms. Kunzweiler, who was in an adjacent room when the verbal altercation began, entered the room to investigate and positioned herself between the two students. At some point after Ms. Kunzweiler entered the room, Keiarea moved aggressively toward Shon-dell. As Keiarea came in contact with Ms. Kunzweiler, she grabbed her teacher’s upper arms and forcefully moved her aside, causing Ms. Kunzweiler to fall to the floor.

| ..Because of the injuries sustained by Ms. Kunzweiler, the School Board began paying her workers’ compensation and medical benefits. On November 20, 2009, the School Board instituted suit against Mary Miller, as natural mother and natural tutrix of Keiarea, and Louisiana Citizens. The insurer met the suit by filing, among other pleadings, a motion for summary judgment wherein it asserted that the homeowner’s policy issued to Ms. Miller did not provide coverage for the damages claimed by the School Board. In response to Louisiana Citizens’ motion, the School Board filed a motion for summary judgment of its own seeking a judgment declaring that the Louisiana Citizens’ policy did provide coverage for the damages sustained.

At the June 14, 2011 hearing on the summary judgment motions, the trial court rejected Louisiana Citizens’ motion and took the School Board’s motion under advisement. On June 21, 2011, the trial court issued written reasons for judgment granting the School Board’s motion and, on the next day, executed a judgment encompassing both rulings.

Louisiana Citizens timely filed an application for supervisory writs addressing the denial of its motion for summary judgment and perfected an appeal addressing the grant of summary judgment to the School Board. On January 26, 2012, this court granted Louisiana Citizens’ application for supervisory writs for the limited purpose of consolidating that writ application with Louisiana Citizens’ appeal.

OPINION

Both summary judgments address the interpretation of the same policy language. The policy includes a standard form declarations section together with | specific endorsements which alter some of the declaratory language of the standard form.

Our supreme court has set out the principles to be used in interpreting insurance policies:

In analyzing insurance polices, certain elementary legal principles apply. First and foremost is the rule 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. LeBlanc v. Aysenne, 05-0297, p. 3 (La.1/19/06), 921 So.2d 85, 89; Edwards v. Daugherty, 03-2103, p. 11 (La.10/1/04), 883 So.2d 932, 940; Cadwallader v. Allstate Insurance Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580; Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763.
According to those rules, the responsibility of the judiciary in interpreting insurance contracts is to determine the parties’ common intent. See, LSA-C.C. art. 2045; Edwards, 03-2103, p. 11, 883 So.2d at 940; Cadwallader, 02-1637 at 3, 848 So.2d at 580; Blackburn v. National Union Fire Insurance Co. of Pittsburgh, 00-2668, p. 6 (La.4/3/01), 784 So.2d 637, 641. Courts begin their analysis of the parties’ common intent by examining the words of the insurance contract itself. See, LSA-C.C. art. 2046; Succession of Fannaly v. Lafayette Insurance Co., 01-1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137; Blackburn, 00-2668 at 6, 784 So.2d at 641 (“[T]he initial determination of the parties’ intent is found in the insurance policy itself.”). In ascertaining the common intent, words and phrases in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See, LSA-C.C. art. 2047; Edwards, 03-2103 at 11, 883 So.2d at 940-941; Cadwallader, 02-1637 at 3, 848 So.2d at 580; Succession of Fannaly, 01-1355 at 3, 805 So.2d at 1137.
An insurance contract is to be construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See, LSA-C.C. art. 2050; Hill v. Shelter Mutual Insurance Co., 05-1783, p. 3 (La.7/10/06), 935 So.2d 691, 694; Succession of Fannaly, 01-1355 at 4-5, 805 So.2d at 1137; Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1029. Neither should an insurance policy be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. LeBlanc, 05-0297, at 3, 921 So.2d at 89; Edwards, 03-2103 at 11, 883jjSo.2d at 941; Cadwallader, 02-1637 at 3, 848 So.2d at 580; Peterson, 98-1712 at 5, 729 So.2d at 1028.
When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and courts must enforce the contract as written. See, LSA-C.C. art. 2046; Hill, 05-1783 at 3, 935 So.2d at 694; Peterson, 98-1712 at 4-5, 729 So.2d at 1028. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Cadwallader, 02-1637 at 4, 848 So.2d at 580; Succession of Fannaly, 01-1355 at 4, 805 So.2d at 1138. The rules of contractual interpretation simply do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clarity the parties’ intent. Edwards, 03-2103 at 12, 883 So.2d at 941; Succession of Fannaly, 01-1355 at 4, 805 So.2d at 1138; Peterson, 98-1712 at 5, 729 So.2d at 1029.
Nevertheless, if, after applying the general rules of contractual interpretation to an insurance contract, an ambiguity remains, the ambiguous contractual provision is generally construed against the insurer and in favor of coverage. See, LSA-C.C. art. 2056; Succession of Fannaly, 01-1355 at 4, 805 So.2d at 1138; Peterson, 98-1712 at 5, 729 So.2d at 1029. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Edwards, 03-2103 at 12, 883 So.2d at 941; Cadwallader, 02-1637 at 4, 848 So.2d at 580; Carrier v. Reliance Insurance Co., 99-2573, p. 12 (La.4/11/00), 759 So.2d 37, 43. This strict construction principle applies, however, only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Edwards, 03-2103 at 12, 883 So.2d at 941; Cadwallader, 02-1637 at 4, 848 So.2d at 580; Carrier, 99-2573 at 12, 759 So.2d at 43.
The determination of whether a contract is clear or ambiguous is a question of law. Edwards, 03-2103 at 12-13, 883 So.2d at 941; Cadwallader, 02-1637 at 4, 848 So.2d at 580; Louisiana Insurance Guaranty Association, 93-0911 at 7, 630 So.2d at 764. Moreover, when a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Robinson v. Heard, 01-1697, p. 4 (La.2/26/02), 809 So.2d 943, 945; Peterson, 98-1712 at 5, 729 So.2d at 1029.

Sims v. Mulhearn Funeral Home, Inc., 07-54, pp. 7-10 (La.5/22/07), 956 So.2d 583, 588-90.

The pertinent language of the standard form portion of Louisiana Citizens’ policy addressing personal liability and medical expense issues reads as follows:

SECTION II — LIABILITY COVERAGES
A. Coverage E — Personal Liability
If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which an “insured” is legally liable. Damages include prejudgment interest awarded against an “insured”, and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when our limit of liability for the “occurrence” has been exhausted by payment of a judgment or settlement.
B. Coverage F — Medical Payments To Others
We will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing “bodily injury”. Medical expenses means reasonable charges for medical, surgical, x-ray, dental, ambulance, hospital, professional nursing, prosthetic devices and funeral services. This coverage does not apply to you or regular residents of your household except “residence employees”. As to others, this coverage applies only:
2. To a person off the “insured location”, if the “bodily injury”:
b. Is caused by the activities of an “insured”;

This coverage language is limited by the exclusion section of the policy.

SECTION II — EXCLUSIONS
IfiE. Coverage E — Personal Liability and Coverage F — Medical Payments To Others
Coverages E and F do not apply to the following:
1. Expected Or Intended Injury
“Bodily injury” or “property damage” which is expected or intended by an “insured” even if the resulting “bodily injury” or “property damage”:
a. Is of a different kind, quality or degree than initially expected or intended; or
b. Is sustained by a different person, entity, real or personal property, than initially expected or intended.
However, this Exclusion E.l. does not apply to “bodily injury” resulting from the use of reasonable force by an “insured” to protect persons or property;

The problem in the interpretation of the policy language is that the Louisiana Citizens policy contains an endorsement entitled “SPECIAL PROVISIONS— LOUISIANA” which rewrites some of the language governing liability coverage and exclusions from that coverage. Of significance to the matter before us is the fact that the endorsement completely rewrote and replaced the language of Coverage E-Personal Liability and Coverage F— Medical Payments To Others found in the standard form policy. This endorsement reads as follows:

E. Coverage E-Personal Liability and Coverage F-Medical Payments to Others
Paragraph 1. Is replaced by the following in all forms and Endorsement HO 24 73:
1. Expected Or Intended Injury
With respect to loss:
|7a. Caused by fire; which is expected or intended by the “insured” even if the “bodily injury” or “property damage”:
(1) Is of a different kind, quality, or degree than initially expected or intended; or
(2) Is sustained by a different person, entity, real or personal property, than initially expected or intended.
However, this Exclusion E.l.a. does not apply to “bodily injury” resulting from the use of reasonable force by the “insured” to protect persons or property.
b. Caused by a peril other than fire and with respect to all “insureds” covered under this policy which is expected or intended by one or more “insureds” even if the “bodily injury” or “property damage”:
(1) Is of a different kind, quality, or degree than initially expected or intended; or
(2) Is sustained by a different person, entity, real or personal property, than initially expected or intended.
However, this Exclusion E.l.b. does not apply to “bodily injury” resulting from the use of reasonable force by one or more “insured” to protect persons or property.

(Emphasis added.)

In its June 20, 2011 reasons for granting the School Board’s motion for summary judgment on the coverage issue, the trial court stated the following:

Section II, Coverage E is the personal liability coverage of the policy. Paragraph E provides exclusions to coverage E. The language of paragraph 1 of paragraph E was clear in the original policy, but is not so clear in the substituted paragraph 1 (“Special Provisions— Louisiana”). The lack of clarity is due to the use of the phrases “With respect to loss,” “caused by fire” and “caused by a peril other than fire.... ” A “loss” is not a liability. It is an insured loss, as in a Sect. 1 fire or other property loss. Likewise, a “peril” is not a liability. As a result, the School Board correctly argues that the attempt to use the “expected or intended injury” language as a liability exclusion fails because it is placed in the context of a “loss” or “peril.”

Louisiana Citizens asserts that this language excludes coverage for any injury derived from the intentional act of an insured where bodily injury of any |skind was expected or intended by an insured. However, we agree with the trial court that, due to the Louisiana-specific provision’s use of the terms “loss” and “peril,” this language does not exclude liability caused by an expected or intended injury.

Under the policy’s exclusion language, as amended by the Louisiana-specific provision, liability coverage and medical payments to others would not be provided “[w]ith respect to loss ... [claused by a peril other than fire and with respect to all ‘insureds’ covered under this policy which is expected or intended by one or more ‘insureds’.... ” “Peril” is not defined in the policy, nor is it used in Section Two, which sets out liability coverage. However, it is used extensively in Section One, which sets out property coverage. In that section, there is a subsection on “PERILS INSURED AGAINST,” which states that loss to property is covered when it is caused by any of the following “perils”: fire, lightning, windstorm, hail, explosion, riot, civil commotion, aircraft, vehicles, smoke, vandalism, malicious mischief, or theft.

Thus the language at issue, “[claused by a peril other than fire ...,” would seem to refer to the sorts of perils that are referenced elsewhere in the policy, not the sort of incident that resulted in Ms. Kunzweiler’s injuries.

Louisiana Citizens argues that the language in the Louisiana Special Provisions E.l.b.(l) and (2) demonstrates that the exclusion applies because it specifically discusses “bodily injury” and “property damage” that “[i]s of a different kind, quality, or degree than initially expected or intended; or (2) [i]s sustained by a different person, entity, real or personal property, than initially expected or intended.” However, this language does not establish the content of |nthe exclusion; it only forecloses having it not apply when there are allegations of misplaced intent.

Based on our review of the policy language, we find that the policy’s Louisiana-specific “expected or intended injury” exception language is ambiguous. Consequently, the trial court did not err in denying Louisiana Citizens’ motion for summary judgment and granting summary judgment in favor of the School Board.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s denial of Louisiana Citizens Property Insurance Corporation’s motion for summary judgment and its grant of summary judgment in favor of the Calca-sieu School Board. We assess all costs of this appeal and writ application to Louisiana Citizens Property Insurance Corporation.

AFFIRMED.

      . With regard to liability coverage, the endorsement merely changes paragraph A(l) of SECTION II — LIABILITY COVERAGES to read "Pay up to our limit of liability for the damages for which an "insured” is legally liablef.]” This particular change does not affect the analysis required in this opinion.


author: COOKS, Judge.

text:
    Josie Stokes WEATHERLY v. FONSECA & ASSOCIATES, LLC, et al.
    No. 11-1323.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      David J. Ayo, James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendants/Ap-pellees, Fonseca & Associates, LLC; R.J. Fonseca, Jr.; Standard Title, LLC; Mitchell R. Landry; Continental Casualty Company.
    Stan Gauthier, II, Michael G. Johnston, II, Lafayette, LA, for Plaintiff-Appellant, Josie Stokes Weatherly.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   COOKS, Judge.

hThe Plaintiff appeals the judgment of the trial court granting the Defendants’ motion for summary judgment and dismissing Plaintiffs claim as perempted. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2004, Josie Stokes Weatherly and her husband purchased a tract of land in Breaux Bridge, Louisiana. Soon after, they placed a mobile home on the property, put in a concrete driveway, and made other improvements.

In late 2006, Weatherly decided she wanted to build a house on the property. To that end, she sold the mobile home, secured financing, and contracted with Manuel Builders to build the house. On May 29, 2007, a closing on the loan was scheduled with Mitchell Landry. In connection with the closing, a title opinion was prepared.

We surmise, in 2007, while construction of the house was ongoing, Manuel Builders discovered a pipeline running across the property and became aware that Gulf South Pipeline, LP had a pipeline servitude on the site. Weatherly was told construction would have to stop.

Weatherly then obtained counsel, Mickey Mason, who sent a letter to Mitchell Landry informing him he was representing Weatherly. On November 2, 2007, Mason wrote another letter to Landry requesting his “ ‘position’ on this entire matter.”

On June 19, 2008, Weatherly filed suit in St. Martin Parish against Fonseca & Associates, LLC, R.J. Fonseca, Jr., Standard Title, LLC, and Mitchell Landry (hereafter referred to as the Attorneys). Weatherly alleged the Attorneys were liable because the title opinion prepared in connection with the closing did not disclose the existence of the pipeline servitude. Weatherly also named Manuel Builders as a defendant, alleging it was negligent for building the house within the | gpipeline servitude. On September 10, 2009, Manuel Builders filed a cross-claim against the Attorneys.

The Attorneys responded with an Exception of Improper Venue and Improper Cumulation of Actions. After a hearing, the district court concluded St. Martin Parish was a parish of improper venue and granted the Exception of Improper Venue. The district court ordered venue transferred to Lafayette Parish. On December 1, 2008, the matter was filed in Lafayette Parish. Weatherly did not immediately appeal the judgment granting the Exception of Improper Venue.

After the matter was transferred, the Attorneys filed their answer to Weatherly’s petition and Manuel Builder’s cross-claim. Weatherly subsequently amended her petition to add the Attorneys’ insurer as a party defendant. The parties then began engaging in discovery.

On September 4, 2009, the Attorneys filed a Motion for Summary Judgment contending Weatherly’s claim and Manuel Builders’ cross-claim were both perempted under La.R.S. 9:5605. Weatherly filed an opposition contending her claim was timely, because the peremptive period did not begin running until January 22, 2008, when her counsel obtained a copy of the title opinion. Manuel Builders also filed an opposition contending its cross-claim was one for indemnity, and thus, timely.

The Attorneys’ summary judgment motion was heard on October 19, 2009. After hearing argument and receiving evidence from the parties, the trial court took the matter under advisement. The trial court, at its request, was provided a copy of the transcript of the venue hearing in St. Martin Parish. The transcript indicated the district court judge in St. Martin Parish ordered the matter transferred rather than dismissed at Weatherly’s request. While the Attorneys’ motion for summary judgment was still under advisement, Weatherly filed a Motion and Order For Devolutive Appeal in Lafayette Parish seeking an appeal of the St. Martin Parish |svenue judgment. The Lafayette Parish district court judge denied Weatherly’s motion.

On November 4, 2009, the Lafayette Parish district judge rendered written reasons granting the Attorneys’ Motion for Summary Judgment. Because Manuel Builders was still a defendant, Weatherly filed an unopposed Motion to Amend Judgment to designate it as final for purposes of appeal. The trial judge signed an amended judgment designating the judgment as final. Weatherly appealed to this court.

In Weatherly v. Fonseca & Associates, LLC, 10-238 (La.App. 3 Cir. 10/6/10), 48 So.3d 391, this court affirmed the dismissal of Weatherly’s claim as perempted. This court relied on the case of Burns v. Goudeau, 04-821 (La.App. 3 Cir. 11/10/04), 888 So.2d 1031, wherein we found peremption had run under similar circumstances. Weatherly argued we should reconsider the issue because the Burns opinion did not address La.Code Civ.P. art. 121, which provides authority for transferring cases to a proper venue in the interest of justice. Weatherly contended the finding in Burns rendered La.Code Civ.P. art. 121 meaningless. However, we found La.Code Civ.P. art. 121 works just as intended when prescription is involved, but is of no use when the issue is peremption. Thus, we found no merit in that argument.

Weatherly then applied for writs to the Louisiana Supreme Court, which granted writs, stating as follows: “Writ granted. The case is remanded to the district court for reconsideration in light of this Court’s recent decision of Land v. Vidrine, 10-1342 (La.3/15/11), 62 So.3d 36.” Weatherly v. Fonseca & Associates, LLC, 10-2461 (La.6/17/11), 63 So.3d 1027.

On remand, in compliance with the supreme court’s writ instructions, the trial court issued a “Reconsideration Ruling After Remand.” The trial court noted it considered the St. Martin Parish venue ruling in connection with her original ^preemption ruling, stating “[ajlthough not specifically stated in the written ruling which was issued, there is clearly no independent basis for venue in St. Martin Parish as to the attorney defendants.” A judgment in accordance with this reasoning was entered, again granting the Attorneys’ Motion for Summary Judgment and dismissing Weatherly’s claim as perempt-ed. This appeal followed.

ANALYSIS

The remand by the supreme court required the trial court to reconsider its ruling in light of Land, 62 So.3d 36. In Land, the plaintiffs, residents of East Baton Rouge Parish, filed a legal malpractice action in East Baton Rouge Parish against an attorney whose office was located in Lafayette Parish. The attorney filed a declinatory exception of improper venue, contending Lafayette Parish was the proper venue insofar as Lafayette was the parish of his domicile, the locale of his legal office, and the location where the relevant legal documents were drafted. The East Baton Rouge Parish district court granted the attorney’s exception of improper venue and transferred the case to the district court in Lafayette Parish. Once the matter was transferred to Lafayette Parish, the defendant filed an exception of per-emption, contending suit was not filed in a parish of proper jurisdiction and venue within one year pursuant to the provisions of La.R.S. 9:5605(A). The Lafayette Parish district court reasoned it was compelled to follow the East Baton Rouge district court venue ruling as the “law of the case.” Thus, because the East Baton Rouge Parish district court found venue was improper in East Baton Rouge Parish and the Lafayette Parish district court believed it was unable to review that ruling, the Lafayette Parish district court concluded the filing in Lafayette Parish was untimely on its face. The Lafayette Parish district court found the cause of action was barred by peremption and granted the attorney’s exception.

On appeal to this court, we relied on M & L Indus., L.L.C. v. Hailey, 05-940 (La.App. 3 Cir. 3/1/06), 923 So.2d 869, in Land, to find the plaintiffs, by not applying for supervisory writs to the Louisiana First Circuit Court of Appeal on the venue ruling, failed to timely seek review of the issue and essentially waived any objection they had to the ruling. Thus, we.found the issue was not reviewable on appeal. As to the peremption ruling, we concluded plaintiffs’ claim for malpractice was not filed in a parish of proper venue within one year from the date of the alleged act of malpractice. Finding plaintiffs failed to meet their burden of proving the claim was not perempted, we affirmed the Lafayette Parish district court’s peremption ruling. Land v. Vidrine, 09-1418 (La.App. 3 Cir. 4/7/10), 30 So.3d 1188.

The supreme court granted writs to determine whether the plaintiffs waived their right to seek review of a venue ruling when they did not apply for writs, and, of relevance to this appeal, whether the Lafayette Parish district judge could consider venue anew for purposes of peremption. Land v. Vidrine, 10-1342 (La.11/12/10), 49 So.3d 875.

Pertinent to this appeal, the supreme court in Land discussed whether a transferee court in addressing peremption has to determine for itself whether the court transferring jurisdiction was a parish of proper jurisdiction. The court held:

The trial court that is tasked with determining whether the case is perempted must consider all the grounds for per-emption, including whether the case was timely filed in a court of proper venue. As we previously stated, the “law of the case doctrine” is not applicable in the instant situation. In the absence of a legal barrier precluding consideration of the issue, we find the East Baton Rouge Parish trial court’s venue ruling should have been merely presented as evidence in support of the defendant’s exception of peremption, not as a conclusion of law. The Lafayette Parish trial court is required to rule on venue only for purposes of deciding whether the cause of action is still viable; the determination, however, has no practical bearing on the actual choice of forum. In other words, the venue decision, when considered in the context of an exception of peremption, does not alter the location of the current and/or future proceedings of the ease. If the Lafayette Parish trial court finds that venue was proper in East Baton Rouge Parish, then it is required to deny the defendant’s exception of per-emption and proceed with the trial in Lafayette Parish. Alternatively, if the Lafayette Parish trial court finds that venue was improper in East Baton Rouge, then it is required to continue its | fianalysis of whether the filing in Lafayette Parish was timely. If the case was not timely filed in Lafayette Parish, the exception of peremption must be granted and the case dismissed. Thus, the only venue ruling in this case that is subject to review by the Louisiana Third Circuit Court of Appeal is the venue finding that is incorporated into the per-emption ruling by the Lafayette Parish trial court. This procedure ensures that the appellate courts are only considering judgments within their jurisdiction.

Land, 62 So.3d at 42.

Based on its holding in Land that a transferee court has to make a determination whether the transferor court was a parish of proper venue, the supreme court granted Weatherly’s writ and remanded the case back to the trial court “for reconsideration in light of [the] decision in Land....”

To comply with the supreme court’s order, the Lafayette Parish district judge issued a “Reconsideration Ruling After Remand.” The trial judge noted that in opposing the motion for summary judgment, Weatherly “did not argue venue was independently proper as to the attorney defendants,” but rather “claimed venue in St. Martin Parish was proper as to one of the defendants, Manuel Builders, and therefore under [La.Code Civ.P. art.] 73 was proper as to the attorney defendants.” The trial judge found Manuel Builders and the attorneys were not joint obligors. She also noted she had considered the St. Martin Parish venue ruling in connection with her original peremption ruling. She explained: “Although not specifically stated in the written ruling which was issued, there is clearly no independent basis for venue in St. Martin Parish as to the attorney defendants.” The prior ruling granting the motion for summary judgment was reaffirmed, and a judgment so reflecting was rendered.

We find the Lafayette Parish district court’s “Reconsideration Ruling After Remand” sufficiently complied with the supreme court’s reconsideration order. Thus, the only issue before this Court is whether this reconsideration ruling concluding St. Martin Parish was a parish of improper venue is correct.

[ 7However, a review of Weatherly’s brief reveals there is no assignment of error nor discussion relating to the issue of venue in St. Martin Parish. On remand, Weatherly did not raise any issue regarding the nature of the petition filed, i.e., whether it sounds in contract or tort, or both; and whether any exception to the ordinary venue provisions ought to apply in this case. See La.Code Civ.P. art. 74.1, which provides “[a]n action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained”; La.Code Civ.P. art. 76.1, which provides “[a]n action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.” We have been cautioned many times that our role is not to supply issues for review.

The arguments made by Weatherly in brief reassert the same arguments made in the previous appeal before this court. Although acknowledging we previously considered the arguments urged now and the supreme court granted writs on other grounds, i.e., the venue issue, in brief Weatherly states she “respectfully disagrees with this Honorable Court’s original decision and accordingly suggests that same be reviewed.... ”

Searching for an explanation for Weath-erly’s failure to raise the venue issue, we asked at oral argument whether any new evidence was presented to establish the proper venue on remand. Weatherly’s counsel acknowledged none had been presented and continued “full speed ahead” with the same arguments he presented in the first appeal to this court. Rather than address the venue issue, counsel for Weatherly argued (1) La.Code Civ.P. art. 121’s reference to the “interests of justice” prevents peremption from running in this case and (2) because suit was filed and service obtained prior to the expiration of the peremptive period, even though deemed to have been filed in an improper venue, if the matter has been | ^transferred to a court of proper venue, the expiration of the peremptive period does not affect a pending lawsuit.

The record establishes the trial court’s ruling on the venue issue was not challenged below or on this appeal. Weatherly’s failure to advance any argument whatsoever on that issue constitutes an abandonment of that issue. Louisiana Uniform Rules-Courts of Appeal, Rule 2-12.4. As a result, we can only consider the broader peremption question accepting as unchallenged the trial court’s finding that venue was improper in St. Martin Parish. We reiterate our holding in our previous appeal, citing with approval the opinion in Burns, that La. Code Civ.P. art. 121 does not allow us to avoid the consequences of peremption in the interests of justice when a suit has been filed in a court of improper venue. We also find La.R.S. 9:5605 requires that suit be filed in a court of competent jurisdiction and proper venue within one year. The date of service is irrelevant.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiff-appellant, Josie Stokes Weatherly.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Wayne GUILLOT and Susan Guillot v. Reece GUILLOT, Benjamin Guillot, Guillot Farms, and ABC Insurance Company.
    No. 12-109.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.
    Jeffery F. Speer, J. Louis Gibbens, III, Jason E. Fontenot, Doucet-Speer, APLC, Lafayette, LA, for Plaintiffs/Appellants, Wayne and Susan Guillot.
    Charles C. Garrison, Caffery, Oubre, Campbell & Garrison, L.L.P., New Iberia, LA, for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company.
    James M. Dill, The Dill Law Firm, APLC, Lafayette, LA, Steven J. Bienvenu, Falgoust, Caviness and Bienvenu, L.L.P., Opelousas, LA, for Defendants/Appellees, Reece Guillot and Benjamin Guillot.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| tin this personal injury case, Plaintiffs, Wayne and Susan Guillot, appeal the judgment of the trial court granting summary judgment in favor of Louisiana Farm Bureau Mutual Insurance Company, Louisiana Farm Bureau Casualty Insurance Company, and Southern Farm Bureau Casualty Insurance Company (collectively Farm Bureau), relative to the issue of liability insurance coverage. For the following reasons, we affirm.

FACTS

Plaintiff, Wayne Guillot, and Defendant, Reece Guillot, are brothers. Wayne and Reece are also former partners in their family’s farming operation known as Cleveland Guillot and Sons Farms (Guillot Farms). Reece and his son, Benjamin Guillot, continue to work for Guillot Farms; however, Wayne left the employ of Guillot Farms some time before the incident at issue occurred.

Wayne and his wife, Susan, filed suit against Reece, Benjamin, Guillot Farms, and their insurer, Farm Bureau, for damages that Wayne allegedly “sustained arising out of an assault and battery that occurred on or about March 16, 2008[.]” According to the Petition for Damages, the alleged assault and battery occurred after Wayne “sought to recover a crawfish boat he owned and [which] was apparently abandoned in a crawfish field[J” Wayne asserted that he “loaded the crawfish boat onto a trailer and proceeded toward[ ] his home near the intersection of [Louisiana Highway] 18 and [Louisiana Highway] 92[J” The petition further alleged that:

1 ^Subsequent to [Wayne] recovering his crawfish boat, [Reece] began to follow [Wayne’s] vehicle and trailer, along Highway 92 in Acadia Parish, State of Louisiana. As [Wayne] neared the intersection of Highway 13 and Highway 92 in Acadia Parish, the son of [Reece], [Benjamin], acted in concert and with his father to form a road block near the intersection[,] and[,] thereafter, [Benjamin] violently and intentionally rammed his vehicle into the driver’s side of [Wayne’s] vehicle, forcing [Wayne] off the roadway.
[]
[Wayne] was forced to the side of the road and partially entered a ditch where he was able to maneuver his vehicle around the vehicle operated by [Benjamin,] and [Wayne] continued to proceed toward[ ] his home in order to avoid any further altercation. After [Wayne] attempted to leave the defendants’ road block, [Reece] and [Benjamin] pursued [him] to his home ... and thereafter exited their vehicles to assault, accost, and severely beat [Wayne], causing severe and debilitating injuries to [him].

Wayne asserted that, at the time of the incident, Reece and Benjamin were in the course and scope of their employment with Guillot Farms and that all three were insured by Farm Bureau. Farm Bureau denied liability insurance coverage under seven policies of insurance in effect at the time of the incident at issue.

Wayne and Sandra filed a Motion for Summary Judgment on the Issue of Insurance Coverage on January 14, 2010. Relying upon Breland v. Schilling, 550 So.2d 609 (La.1989), they argued:

There is no question that these brothers were involved in a dispute over a piece of Guillot Farms’ ordinary business, namely a crawfish boat. A heated exchange between the brothers resulted in an emotional, but physical outburst, by Reece against his brother, [Wayne]. The blow[,] intended as a typical jab between disagreeing brothers, resulted in damages far in excess of anything expected, desired, intended[,] or reasonably envisioned. As such, Farm Bureau’s coverage applies[,] and this Court should grant this Motion for Summary Judgment[ ] as a matter of law.

Wayne and Sandra asserted the supreme court’s ruling on the question of liability for an intentional act was addressed in Breland and supports their contention that Farm Bureau’s policies provide liability insurance coverage of the incident at issue.

| sFarm Bureau filed a Cross-Motion for Summary Judgment on March 5, 2010, seeking a ruling that its liability and umbrella insurance policies did not provide coverage in this case. At the time of the subject incident, Farm Bureau had in effect the following seven policies of insurance: (1) an automobile policy issued to Reece (A353369); (2) an automobile policy issued to Guillot Farms (C706670); (3) a homeowner’s policy issued to Reece (HO250745); (4) a homeowner’s policy issued to Benjamin (H0452349); (5) a farm liability policy issued to Guillot Farms (GF106682); (6) an umbrella policy issued to Reece (UM806692); and, (7) an umbrella policy issued to Guillot Farms (UM804269). Farm Bureau asserted that Wayne and Sandra’s reliance upon Bre-land is flawed because “the applicable policy language in this instance is totally different from that in other cases relied upon by [Wayne and Sandra].” Citing Fontenot v. Duplechine, 04-424 (La.App. 3 Cir. 12/8/04), 891 So.2d 41, Farm Bureau argued:

[In distinguishing the Breland case, the court in Fontenot held that the policy at issue plainly states that the exclusion applies “even if ... such bodily injury ... is of a different kind or degree than intended or reasonably expected.” Pursuant to this language, once one intentionally inflicts an injury upon another, there is no coverage even though the extent of the injury is greater than that intended by the perpetrator. Fontenot, supra at p. 45.

Exhibits offered by the parties included copies of the Farm Bureau policies, as well as the depositions of Wayne, Reece, and Benjamin. The trial court heard both motions for summary judgment on March 21, 2011, and rendered judgment denying Wayne and Sandra’s motion for summary judgment and granting Farm Bureau’s motion for summary judgment, holding that the Farm Bureau policies did not provide coverage for Wayne and Sandra’s claims against Reece, Benjamin, and Guil-lot Farms.

|4In accordance therewith, the trial court signed a judgment dismissing the claims against Farm Bureau with prejudice on May 16, 2011. It is from this judgment that Wayne and Sandra appeal.

ISSUE

Wayne and Sandra raise one issue on appeal: “[wjhether [Farm Bureau] was entitled to judgment as a matter of law pursuant to [La.Code Civ.P. art.] 966, specifically [alleging] that there is no genuine issue of material fact regarding coverage, despite the evidence presented to the district court[.]”

Standard of Review

The governing jurisprudence relative to a motion for summary judgment and our appellate standard of review thereof have recently been reiterated by our supreme court as follows:
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363[,] p. 3 (La.11/29/06), 950 So.2d 544, 546, see [La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 2006-1181[,] p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank, 2004-0337[,] p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of Santiago, 2003-1424[,] p. 5 (La.4/14/04), 870 So.2d 1002,1006. Samaba v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83.
Mayers v. Marmet, 08-127, pp. 5-6 (La.App. 3 Cir. 5/28/08), 985 So.2d 315, 319-20, writ denied, 08-1402 (La.9/26/08), 992 So.2d 993 (footnote omitted).

Allen v. Allstate Ins. Co., 08-1451, pp. 2-3 (La.App. 3 Cir. 5/6/09), 10 So.3d 374, 377, writ denied, 09-1264 (La.9/18/09), 17 So.3d 977.

laThe sole issue before us on appeal is whether any of the Farm Bureau policies provide liability insurance coverage for the incident which occurred on March 16, 2008, and which resulted in Wayne’s bodily injury. In its oral reasons for judgment, the trial court stated:

We’re talking about the damage to Wayne Guillot’s eye. The auto policy would not provide coverage because it doesn’t involve the use of an automobile. The farm and the homeowner’s policy are excluded because of the intentional act. And the language in the policy that says “Neither the expected nor unexpected results of intentional act are covered.” In that case, the [sic] I would grant the motion for summary judgment filed by Farm Bureau and deny the motion for summary judgment filed by the plaintiff[s] because there is no genuine issue of material fact[,] and they are entitled to judgment by law.

For the reasons that follow, we agree that coverage is excluded for the reasons articulated by the trial court.

Wayne and Sandra argue that Farm Bureau’s exclusionary provisions are broad and ambiguous; therefore, the “policy language ambiguous in nature is to be construed in favor of the insured to effect and not to deny coverage. [Doerr v. Mobil Oil Corp., 00-947 (La.12/19/00), 774 So.2d 119.]” Wayne and Sandra contend that the evidence in the record supports a finding that the trial court committed manifest error in granting the motion for summary judgment in favor of Farm Bureau.

According to Farm Bureau, coverage under the automobile policies was denied for two reasons: (1) Wayne’s injuries did not arise out of an “accident;” and, (2) Wayne’s injuries did not arise out of the “use of the automobile.” The automobile policies (A353369 and C706670) each contain the following language:

PARTI. LIABILITY
Coverages A, Bodily Injury and B, Property Damage
Ifil. To pay on behalf of the insured all sums, except punitive and/or exemplary damages[,] which the insured shall become legally obligated to pay as damages:
Coverage A because of bodily injury sustained by any person, and
Coverage B because of injury to or destruction of property,
caused by accident and arising out of the ownership, maintenance or use of the automobile described on the declarations, including loading and unloading thereof[.]

Farm Bureau concedes that the comprehensive automobile policies do not have an intentional act exclusion per se. However, Farm Bureau contends that the automobile policies do not provide coverage for Wayne’s property damage claim because said damages did not arise out of an accident due to the fact that the insured deliberately blocked the road in an attempt to stop Wayne, which lead to the subsequent collision. Nor do said policies provide coverage for Wayne’s bodily injury claim because the alleged permanent injury to Wayne’s eye was not caused by an automobile; rather, it was caused by the insured, Reece, when he deliberately punched Wayne in the eye with his fist.

Farm Bureau argued that coverage under the homeowners’ and farm policies was excluded because Wayne’s alleged bodily injury resulted from intentional acts. The homeowners’ policies (HO250745 and H0452349) each contain the following exclusionary language:

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
a. resulting from intentional acts or directions by you or any insured. The expected or unexpected results of these acts or directions are not covered.

The farm policy (GF106682) issued to Guil-lot Farms, for whom both Reece and Benjamin work, contains the following exclusionary language:

IvSECTION I — COVERAGES
COVERAGE H — BODILY INJURY AND PROPERTY DAMAGE LIABILITY
2. Exclusions
This insurance does not apply to:
a. Expected or Intended Injury or Damage
“Bodily injury” or “property damage” resulting from intentional acts of any “insured” or other acts carried out at the direction of any “insured.” The expected and unexpected results of these acts or directions are not covered.

Finally, Farm Bureau asserted that coverage under the umbrella policies was excluded because Wayne’s alleged bodily injury resulted from intentional acts. The umbrella policies (UM806692 and UM804269) each contain the following endorsement:

ENDORSEMENT # 93
INTENTIONAL ACTS EXCLUSION
THIS POLICY DOES NOT APPLY TO BODILY INJURY, SICKNESS, DISEASE, DISABILITY, SHOCK, MENTAL ANGUISH, MENTAL INJURY OR PROPERTY DAMAGE RESULTING FROM INTENTIONAL ACTS OF ANY INSURED OR ACTS CARRIED OUT AT THE DIRECTION OF ANY INSURED. THE EXPECTED AND UNEXPECTED RESULTS OF THESE ACTS OR DIRECTIONS ARE NOT COVERED.

DISCUSSION

The physical altercation at issue herein allegedly caused permanent injury to Wayne’s eye. Said altercation took place outside of the automobile and did not involve the use of an automobile. Therefore, we find no manifest error in the trial court’s finding that neither of the automobile policies (A353B69 and C706670) |sissued by Farm Bureau provide liability insurance coverage for Wayne’s bodily injury claims.

The collision of Wayne and Benjamin’s vehicles allegedly caused damage to Wayne’s truck. Said collision occurred because Benjamin sought to block the road in an effort to stop Wayne, which resulted in the subsequent collision. The collision was not an accident. By the terms of the automobile policies (A353369 and C706670), neither provide liability insurance coverage for Wayne’s property damage.

Similar exclusionary language found in Farm Bureau’s homeowners’ policies and farm policy was upheld by this court in Perkins v. Shaheen, 03-1254 (La.App. 3 Cir. 3/3/04), 867 So.2d 135. In Perkins, a suit to recover damages for personal injuries caused by the intentional acts of a minor, the perpetrator’s homeowner’s policy and farm policy were written by Farm Bureau Mutual Insurance Company. The plaintiff and Farm Bureau filed cross-motions for summary judgment on the issue of coverage. The trial court granted summary judgment in favor of the plaintiff, finding that Farm Bureau’s policies provided coverage for plaintiffs injuries arising out of the negligent supervision of the perpetrator’s father. This court reversed the trial court’s judgment and granted summary judgment in favor of Farm Bureau, finding that Farm Bureau’s homeowner’s and farm liability policies excluded coverage for bodily injury which resulted from intentional acts by any insured.

In the case of Richard v. Brasseaux, 10-409 (La.App. 3 Cir. 11/3/10), 50 So.3d 282, writ denied, 10-2673 (La.1/28/11), 56 So.3d 959, this court again considered exclusionary provisions similar to the language under consideration herein. This court affirmed the trial court’s grant of summary judgment in favor of Farm Bureau, upholding its exclusionary language.

| nHaving reviewed the record and the jurisprudence, we find that the policy language excluding the expected or unexpected results of an intentional act from coverage is a valid exclusion and has been upheld in numerous instances. See Richard v. Brasseaux, 50 So.3d 282; Perkins v. Shaheen, 867 So.2d 135; Fontenot v. Duplechine, 891 So.2d 41. The Farm Bureau homeowner’s and farm liability policies unambiguously excluded coverage for Wayne’s injuries resulting from the intentional actions of Reece and Benjamin. Likewise, the umbrella policies unambiguously excluded coverage for Wayne’s injuries resulting from the intentional actions of Reece and Benjamin. Therefore, we find no coverage under the automobile, homeowners’, farm, and umbrella policies written by Farm Bureau in effect at the time of the incident at issue herein. Accordingly, we find there is no genuine issue of material fact, and the trial court’s grant of summary judgment is affirmed.

DECREE

For the foregoing reasons, the judgment of the . trial court granting Farm Bureau’s motion for summary judgment is affirmed. Costs of this appeal are assessed against Plaintiffs/Appellants, Wayne and Sandra Guillot.

AFFIRMED.

      . The homeowners’ policies were issued by Louisiana Farm Bureau Mutual Insurance Company.

      . The farm policy was issued by Louisiana Farm Bureau Casualty Insurance Company.

      .The automobile policies were issued by Southern Farm Bureau Casualty Insurance Company.