author: PETTIGREW, J. McDONALD, J.,

text:
    NATIONAL INTERSTATE INSURANCE COMPANY v. Loyette COLLINS, et al.
    No. 2008 CA 0693.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.
    Rehearing Granted May 5, 2009.

      Douglas K. Williams, Lervette J. Blair, Scott N. Hersgens, Baton Rouge, LA, for Plaintiff/Appellee, National Interstate Insurance Company.
    Kirk A. Williams, Baker, LA and Vincent J. DeSalvo, Baton Rouge, LA, for Defendants/Appellants, Donna Plain, Individually and as Natural Tutrix of the Minor Children, Dandre Turner, Antonio Turner, Justin Turner and Erica Turner; Mycatosh Graham, Individually and as Natural Tutrix of the Minor Child, Christopher Carter; Barbara Godchaux, Individually and as Natural Tutrix of the Minor Children, Christian Godchaux and Michael Taylor; Carolyn Johnson, Individually and as Natural Tutrix of the Minor Children, Antonio Johnson and Kyla Johnson; Ashley Johnson; Kathleen Cage; Attlah Darensbourg; Janice Carter, Individually and as Natural Tutrix of her Minor Grandchildren, Jason Carter, Asher Smith, and Samantha Parker; Johnny Carter; Reginald Hamilton; Linda Omuemu, Individually and as Natural Tutrix of the Minor Child, Raven Omuemu; Shawn DuPree, Individually and as Natural Tutor of the Minor Children, Jessika DuPree, Shasnzee DuPree, and Shawn DuPree; Gwen DuPree; Kathleen Gabe; Wanda Jackson; Tinnen Uolightfrotxos; Loyette Collins; Individually and as Natural Tutrix of the Minor Children, Lahairoi Collins, Leal Collins, David Collins, and Leah Collins; D. Coleman, Individually and as Natural Tutor/Tutrix of the Minor Child, Qshailya George; Samuel Edo, Individually and as Natural Tutor of the Minor Children, Stacy Edo, Shanice Edo, Shondell Edo, and Shamuel Edo; Inez Davis, Individually and as Natural Tutrix of the Minor Child, Tatiana Jackson; and Earlene Johnson, Individually and on Behalf of her Minor Child, Amber Johnson.
    Before WHIPPLE, GUIDRY, PETTIGREW, MCDONALD and HUGHES, JJ.
   PETTIGREW, J.

| ..¡Defendants in concursus appeal a district court judgment granting National Interstate Insurance Company’s Motion to Dismiss and denying their Motion for Summary Judgment. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This litigation arises out of a motor vehicle accident occurring on or about July 30, 2005, near Doddrige, Arkansas. On that date, Cynthia Bourgeois, a bus driver for American International Travel, Inc. d/b/a Dixieland Tours and Cruises (“Dixieland”), was traveling northbound on U.S. Highway 71 when a vehicle driven by Douglas Vanderbilt of Texarkana, Arkansas crossed the center line of the highway and collided head-on with Dixieland’s bus. Defendants in concursus (“defendants”) were all passengers on the bus. Defendants and Ms. Bourgeois allegedly sustained injuries as a result of the accident.

National Interstate Insurance Company (“National Interstate”) provided a commercial automobile liability insurance policy in favor of Dixieland, which provided $5,000,000.00 per occurrence in liability coverage. National Interstate contends that Norman Augusta, Dixieland’s Chief Executive Officer and Chairman, completed and signed an uninsured/underinsured (“UM”) waiver form prescribed by the Louisiana Commissioner of Insurance, selecting and initialing Coverage Option 2, to reject UM coverage at the same limits as the liability coverage set forth in the policy held by National Interstate. As such, Mr. Augusta filled in the selected amount of UM coverage |4for each person and each accident. He specifically entered $25,000.00 for each person and $50,000.00 for each accident as the desired amount. National Interstate contends that in further completion of the form, Mr. Augusta then printed and signed his name on the waiver form as the legal representative of Dixieland. The policy number, YPP 1368460-03, was entered on the form. Lastly, the form was dated.

Many of the injured bus passengers made demand upon and/or filed suit against National Interstate. As such, National Interstate filed a Petition For Con-cursus in the 19th Judicial District Court naming as defendants all of the bus passengers who had filed suit against it in that court. National Interstate admitted that it owed the proceeds under its policy, but was faced with competing claims for those proceeds. National Interstate asserted that the total amount of UM coverage available for this accident is $50,000.00 and asked that the district court allow it to deposit that amount into the registry of the court and for an order requiring the defendants in concursus to assert their respective claims to these funds contradictorily against each other. On August 4, 2006, the district court signed an order allowing National Interstate to deposit $50,000.00 into the registry of the court.

lijOn September 10, 2007, National Interstate filed a Motion to Dismiss in the concursus proceeding, requesting that it be dismissed and discharged from further obligation or liability as administrator of the policy at issue and from any other liability to defendants. In opposition to National Interstate’s motion, defendants filed a Motion for Summary Judgment seeking a determination that the UM waiver form executed by Dixieland was invalid, thereby establishing UM coverage in an amount equal to the liability limits of $5,000,000.00. Defendants asserted that the UM waiver form was invalid because Norman Augusta did not indicate that he was signing in a representative capacity for Dixieland and because the name of the insured company, Dixieland, was not noted on the form.

Ms. Bourgeois filed an opposition to National Interstate’s Motion to Dismiss in federal court in Arkansas and in the con-cursus proceeding.

On November 26, 2007, National Interstate’s Motion to Dismiss and defendants’ Motion for Summary Judgment came for hearing in |fithe state court con-cursus action. The district court granted National Interstate’s Motion to Dismiss and denied defendants’ Motion for Summary Judgment, finding that the UM waiver at issue is valid as a matter of law. The district court certified the December 5, 2007 judgment as a final judgment pursuant to La.Code Civ. P. art. 1915, finding there is no just reason for delay. Defendants appealed.

ISSUE PRESENTED FOR REVIEW

In connection with this appeal, there is only one issue for review and consideration: (1) whether the trial court erred as a matter of law in finding that the UM waiver form at issue was valid, notwithstanding that the insured company name did not appear anywhere on the form and the legal representative for the insured company did not state that he was signing the waiver in a representative capacity.

LAW AND DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. Duncan, 2006-363 at p. 3, 950 So.2d at 546. The summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish those ends. La. Code Civ. P. art. 966(A)(2). Appellate courts review 17summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 2002-0852, p. 5 (La.App. 1st Cir.5/9/03), 849 So.2d 675, 679, unit denied, 2003-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judg ment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

In Louisiana, UM coverage is provided for by statute and embodies a strong public policy. Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987); A.I.U. Ins. Co. v. Roberts, 404 So.2d 948, 949 (La.1981). The object of UM insur ance is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor not covered by adequate liability insurance. Tugwell v. State Farm Ins. Co., 609 So.2d 195, 197 (La.1992); Henson v. Safeco Ins. Companies, 585 So.2d 534, 537 (La.1991); Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 578 (La.1982).

UM coverage is determined not only by contractual provisions, but also by applicable statutes. Duncan, 2006-363 at p. 4, 950 So.2d at 547. Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability policy/ even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. Id.

|RThe UM statute is to be liberally construed and a rejection of the coverage provided by law must be clear and unmistakable. Roger, 513 So.2d at 1130. The insurer bears the burden of proof that a rejection of coverage or a selection of lower limits has been legally perfected.,

In this appeal, defendants assert that the UM waiver form was ineffective because Norman Augusta signed the waiver form, individually, and without any statement as to his representative capacity in relation to the corporate insured. Moreover, the corporate insured is not identified anywhere on the form. In support of their argument that the waiver form executed in this case was invalid, defendants rely upon Duncan, a recent statement by the Louisiana Supreme Court concerning the requirements necessary to the validity of a UM waiver. Defendants also rely upon our decision |flin Cohn v. State Farm Mut. Auto. Ins. Co., 2003-2820 (La.App. 1st Cir.2/11/05), 895 So.2d 600, writ denied, 2005-1000 (La.6/17/05), 904 So.2d 705, which predates Duncan, and on Perry v. American Home Assurance Co., 2006-1956 (La.App. 1st Cir.6/8/07), 958 So.2d 1216 (unpublished), which postdates Duncan.

In Duncan, the supreme court specifically held that a UM waiver form that failed to contain the policy number on the designated line was invalid. In closely examining the waiver form promulgated by the Commissioner of Insurance, the supreme court found that the prescribed form requires six tasks, all pertinent in rejecting UM coverage, as follows: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen, then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date. Duncan, 2006-363 at pp. 11-12, 950 So.2d at 551.

In Duncan, the supreme court cited with approval our decision in Cohn, 2003-2820 at p. 5, 895 So.2d at 602. Duncan, 2006-362 at p. 14, 950 So.2d at 553. The UM waiver form at issue in Cohn was missing a complete policy number and the name of the insurance company, and the insured company representative failed to | vindicate that she was signing in a representative capacity. We held, citing Roger v. Estate of Moulton, 513 So.2d 1126, 1131 (La.1987), that “[t]he expression of a desire not to have UM coverage, however clear, does not necessarily constitute a valid rejection if the expression of rejection does not meet the formal requirements of law.” Cohn, 2003-2820 at p. 4, 895 So.2d at 602.

Herein, National Interstate seeks to distinguish Cohn by emphasizing that several pieces of information were missing from that form. Also, National Interstate argues that defendants inappropriately place emphasis on guidelines published in bulletins issued by the Commissioner of Insurance, which are advisory only. National Interstate argues that the majority in Duncan made no mention of these bulletins, much less took the position that these bulletins are the law in Louisiana.

Likewise, National Interstate seeks to distinguish this Court’s unpublished opinion in Perry, where we invalidated UM waiver forms. The UM waiver forms in Perry were missing the date on one form, the insured’s printed name on the other form, and the policy number on two different forms. The forms also contained blank lines for the insured company name. Again, National Interstate points out that the forms in Perry were missing several pieces of pertinent information.

11 ¡Recently, our brethren in the Fifth Circuit Court of Appeal addressed the validity of a UM waiver form in which Raymond Johnson signed his name without indicating that he was signing in his capacity as legal representative of the company. Johnson, v. Folse, 2007-1031, 2007-1032 & 2007-1033 (La.App. 5th Cir.5/27/08), 986 So.2d 110, writ denied, 2008-1377 (La.9/26/08), 992 So.2d 991. Raymond Johnson also failed to print his name or the policy number in the blanks provided on the form. The fifth circuit held that because Raymond Johnson signed his name without indicating that he was signing in his capacity as legal representative of the company, and because he left blank the printed name of the insured or legal representative in the space above the signature line, the form was ambiguous.

Pertinent to the supreme court’s opinion in Duncan, our opinions in Cohn and Perry, and the fifth circuit’s opinion in Johnson was the fact that the rejections of UM coverage were not clear and unmistakable, and thereby did not entitle the insurers to a rebuttable presumption that the insureds knowingly rejected UM coverage. Duncan held that compliance with the form prescribed by the commissioner of insurance is necessary for the UM waiver to be valid. The insurer cannot rely on the insured’s intent to waive UM | igcoverage to cure a defect in the form of the waiver. Duncan, 2006-363 at p. 14, 950 So.2d at 553.

Because we find the signatory’s capacity is uncertain on the face of the form, we hold that the waiver is deficient and UM coverage is afforded under the policy equal to the liability coverage set forth in the policy. Accordingly, the judgment of the trial court granting National Interstate’s Motion to Dismiss and denying defendants’ Motion for Summary Judgment is reversed. Costs of this appeal are assessed to National Interstate Insurance Company-

REVERSED.

McDONALD, J., dissents and assigns reasons.

GUIDRY, J., concurs.

McDONALD, J.,

dissenting:

hi respectfully dissent from the majority in this matter. The issue presented in this appeal is whether a UM waiver form signed by a legal representative of the named insured is “properly completed” by the “legal representative” of the “named insured” if the signature does not include the representative capacity of the signatory (or if the face of the form does not have an affirmative statement indicating that the signatory is signing on behalf of the named insured). The report concludes that a signature/form lacking such designation creates uncertainty on the face of the UM waiver form and is not a valid waiver of UM coverage in the amount of the policy’s bodily injury limits. I disagree with this conclusion.

La. R.S. 22:680 does not set out the manner in which a legal representative must perfect his signature. The latest Supreme Court decision concerning what constitutes a “properly completed and signed form” pursuant to La. R.S. 22:680 is Duncan. In determining what is required under the statute to constitute a “properly completed and signed” form, Duncan examined the prescribed form and determined that the blanks on the form entail six tasks, all of which are pertinent to a valid UM waiver. In essence, the Supreme Court concluded that the statute requires the completion of all six tasks in order for an insurer to be entitled to the rebuttable presumption provided in La. R.S. 22:680(l)(a)(ii).

| gThe specific task examined in Duncan was “filling in the policy number” and Duncan held “the failure to fill in the policy number on the form prescribed by the commissioner of insurance invalidates the UM waiver.” Duncan’s holding does not address the task at issue here — “printing the name of the named insured or legal representative” and “signing the name of the named insured or legal representative”. However, the Supreme Court provided some discussion on the relevance of the six tasks in the context of how completing these tasks establishes evidence of a knowing waiver of UM coverage. This dicta provides guidance in this matter. The Supreme Court stated:

The commissioner of insurance, in drafting the form, requires six tasks, all of which we find to be pertinent in rejecting UM coverage. The insured initials the selection or rejection chosen to indicate that the decision was made by the insured. If lower limits are selected, then the lower limits are entered on the form to denote the exact limits. The insured or legal representative signs the form evidencing the intent to waiver UM coverage and includes his or her printed name to identify the signature. Moreover, the insured dates the form to determine the effective date of the UM waiver. Likewise, the form includes the policy number to demonstrate which policy it refers to. Thus, the policy number is relevant to determination of whether the insured waived UM coverage for the particular policy at issue.

In exercising his authority under La. R.S. 22:680 to prescribe the UM waiver form, the Commissioner included a notice immediately above the signature, policy number, printed name of signatory and date lines. The notice states “[t]he choice I made by my initials on this form will apply to all persons insured under my policy”. By signing the form, printing his name, filling in the policy number and dating the waiver form, a signatory— whether it is the named insured or its/his legal representative — clearly indicates that he intends for the selection he initialed to apply to the policy identified by the policy number. Had the Commissioner determined that to effectuate a valid UM waiver the insured’s legal representative must include |3a designation that the signature was made in a representative capacity, the Commissioner would have included that requirement as an additional task on the prescribed form. The Commissioner did not do so. The only additional task the Supreme Court identified that the Commissioner requires from the signatory, in the signature portion of the waiver form, is for the signatory to print his name, date the form, and to include the number of the policy. By submitting a UM waiver form that addressed each required task, Dixieland met its burden and established that it is entitled to the rebuttable presumption “that the insured knowingly ... selected a lower limit”.

The facts in this case clearly demonstrate the inequity resulting from legislation that allows a commercial bus tour company, such as Dixieland, that services many guest passengers during a trip, to have a commercial automobile policy with a limit of $5,000,000.00 per accident in bodily injury liability coverage, but to select only $50,000.00 in UM coverage. However, the Legislature has enacted legislation that allows an insured to do so. The report attempts to fix this legislatively created inequity by imposing a task on the signatory that is not required by the Legislature, the Commissioner, or the Supreme Court.

The record before the court reveals that National Interstate submitted a UM waiver, prescribed by the Commissioner of Insurance, that addresses each of the six required tasks identified in Duncan. Accordingly, National Interstate is entitled to a rebuttable presumption that Dixieland knowingly selected lower limits. The defendants did not produce any evidence that Norman Augusta was not the legal representative of Dixieland, that the policy number shown on the UM waiver is not for the policy at issue in this matter, or that the UM waiver was altered or modified after Norman Augusta completed it. In addition to establishing that it was entitled to the rebuttable | .^resumption, National Interstate also submitted the affidavit of Norman Augusta, attesting to his position as Dixieland’s Chief Executive Officer and Chairman since 1995 and that he completed the blanks on the UM waiver form. Mr. Augusta states that it was his intention to do exactly what he did when he completed the waiver form. He intended to choose a lower limit of $50,000.00 in UM coverage and that is what he did. There is no dispute over his intentions in this regard. Thus, National Interstate has shown that there are no genuine issues of material fact that Dixieland rejected UM coverage in the amount of the policy limits for bodily injury liability coverage and selected lower limits for UM coverage, and that it is entitled to summary judgment as a matter of law.

For these reasons I respectfully dissent and would affirm the judgment of the trial court.

      . Cynthia Bourgeois, the bus driver, filed suit in federal district court in Arkansas, whereas the bus passengers instituted several suits in the 19th Judicial District Court for the Parish of East Baton Rouge.

      . Subsequently, National Interstate amended its Petition for Concursus to add Cynthia Bourgeois as a defendant.

      . Ms. Bourgeois also filed in federal district court a Motion for Summary Judgment, which contained, in essence, alternative motions, as follows: (1) a Motion to Declare Insurance Coverage and Limits of National Interstate Insurance Company in Favor of Plaintiff and (2) a Motion for Stay/Injunction of the Parallel State Court Proceedings. Ms. Bourgeois requested that the federal court interpret National Interstate’s policy of insurance under Arkansas law rather than Louisiana law, to reject the UM waiver as invalid, and to stay the state concursus action. The Honorable Harry F. Barnes, U.S.D.C. for the Western District of Arkansas, rendered a Memorandum Opinion and Order dated November 8, 2007, on the Motion for Summary Judgment filed by Ms. Bourgeois in that action. After conducting a choice-of-law analysis, Judge Barnes determined that Louisiana law should apply to interpret the policy of insurance at issue. Judge Barnes agreed with National Interstate that the UM waiver form complied with the UM form promulgated by the Louisiana Commissioner of Insurance and the requirements set forth by the Louisiana Supreme Court in Duncan v. U.S.A.A. Ins. Co., 2006-363 (La. 11/29/06), 950 So.2d 544. As such, the court determined that UM coverage in the amount of $50,000.00 was applicable to the case. Thereafter, Ms. Bourgeois entered into a Consent Judgment with National Interstate in lieu of proceeding with the hearing on National Interstate’s Motion to Dismiss in state court. The Consent Judgment provided in pertinent part, that the claims of Ms. Bourgeois are dismissed, with prejudice, against National Interstate and that National Interstate is relieved of any further obligation and liability as administrator of Policy No. YPP-1368460-03 and from any further responsibilities, duties, or liabilities to Ms. Bourgeois, and allowed Ms. Bourgeois to withdraw, in an amount to be determined by the district court, from the policy proceeds deposited into the registry of the court by National Interstate.

      . The record does not contain oral or written reasons for the district court’s determination that there was no just reason for delay. On de novo review of the matter, we note that the December 5, 2007 judgment determined the main issue in this matter (z.e. the validity of the UM waiver form). The denial of a motion for summary judgment is interlocutory and, therefore, not appealable as a final judgment. See Young v. City of Plaquemine, 2004-2305 (La.App. 1st Cir. 11/4/05), 927 So.2d 408. However, because the merits of the motion are subsumed in the district court's ruling, which also grants the insurer’s Motion to Dismiss and releases it from the litigation, our review necessarily encompasses the arguments made in defendants’ motion for summary judgment. Since the issue of the validity of the UM waiver is the subject of both the Motion for Summary Judgment and the defense raised to the Motion to Dismiss, we find that the certification of the December 5, 2007 judgment was proper. See R.J. Massinger, Inc. v. Rosenblum, 2004-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122-1123.

      . Louisiana Revised Statutes 22:680(l)(a)(ii), in effect at the time the waiver at issue was signed, reads:
      Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

      . In support of its burden of proof, National Interstate introduced into evidence the UM waiver form at issue along with an affidavit by Norman Augusta to the effect that as Chief Executive Officer and Chairman for American International Travel, Inc., d/b/a Dixieland Tours, he was empowered to and did execute the waiver form and knowingly selected UM coverage in an amount lower than the liability limits of the policy.

      . After this UM form was executed, the insurance agent sent the form to State Farm. State Farm unilaterally amended the waiver by writing “Beebe’s Pest and Termite Control, Inc.” over Annette Beebe's name and checking off the box for State Farm Mutual Automobile Insurance Company. Cohn, 2003-2820 atpp. 4-5, 895 So.2d at 602.

      . In a writ disposition, the fifth circuit found that the blank line for the policy number was not a fatal defect, because the policy number was pre-printed on the form, citing Carter v. State Farm Mutual Automobile Insurance Co., 2007-1294 (La. 10/5/07), 964 So.2d 375. Johnson, 2007-1031 at p. 13 n. 3, 986 So.2d at 118 n. 3.

      . We note that we are not bound by the federal district court's judge's interpretation of Louisiana law and ruling concerning the validity of the UM waiver form. Ms. Bourgeois voluntarily acquiesced in that ruling by not appealing it and by additionally entering into a consent judgment with National Interstate in the state court concursus proceeding.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Christian DELO REYES and Karen Serpas v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Clinton Poche, Jamieson Poche and William T. Poche.
    No. 2008-CA-0769.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2009.
    Rehearing Denied March 24, 2009.
    Writ Denied June 5, 2009.
    David W. Bernberg, Henna Ghafoor, The Law Office of David W. Bernberg, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    D. Russell Holwadel, Johnston Hoefer Holwadel & Eldridge, L.L.C., New Orleans, LA, for Defendants/Appellees, Liberty Mutual Fire Insurance Company and Clinton Poche.
    (Court composed of Judge DENNIS R. BAGNERIS, SR, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| tThe instant litigation arises from a disputed fact pattern where it is alleged that the defendant/appellee, Clinton Poche, backed out of a parking space, making contact with the vehicle occupied by the plaintiffs/appellants, Christian Delo Reyes and Karen Serpas, causing injuries. At the conclusion of a two day jury trial, a verdict was returned on behalf of the defendant driver and his insurer, Liberty Mutual.

At some point during jury deliberations a verdict was returned. According to the trial judge, she noticed the response to question number one on negligence was invalidly answered. Consequently, the trial judge entered the jury deliberation room without a court reporter or counsel for the parties and engaged the jurors in dialogue. The only record of this meeting is a description outlined by the trial judge after the jurors were dismissed. Her account is as follows:

THE COURT: Let me put this on the record just so we can continue to be thorough. The jury returned the verdict form with the question: Do you find the defendant, Clinton Poche, was negligent? The answer was no. So say seven of 12 jurors. They proceeded then to questions two and three.
| gQuestion two: Was Clinton Poche’s negligence a legal cause of Christian Delo Reyes’ injury [sic]? They said no. So say 12 of 12 jurors.
As to question number three: Was Clinton Poche’s negligence a legal cause of Karen Serpas’ injuries? They said no. So say 12 of 12 jurors. I might have on that verdict come into the courtroom and said they rendered a verdict because they reached 12 of 12 on those two critical questions, but because they did not reach nine of 12 on question number one, that’s when I went back in there and said to them that they should reach nine of 12 on the first question. They agreed to do that.
I shared this with you when I went in to talk with them before they returned the verdict. The question they asked me when I went in was to redefine negligence for them. I redefined negligence for them. I redefined negligence as conduct which falls below the standard of reasonableness for people in similar circumstances. That’s how I answered that question. One of the jurors then said will you confirm — and I told them I had to really be careful about answering your questions, but you ask them and I’ll decide whether I can answer them. One question was can we know the amount of the settlement that was received by the plaintiff. I said no. I don’t even know that.
The next question was — let me stop for a second. That question with respect to the amount of settlement was said before they ever began deliberating so that was the first time I went into the room. This round I again admonished them that I have to be careful of answering their questions and just really referred them back to the jury charges, so the juror said can you confirm for me that in deciding negligence the plaintiff basically has to prove that beyond a doubt. That was the question asked of me. I said I’m going to direct you to the jury charges where I said that every element of a party’s case has to be proved by a preponderance of the evidence. I did not instruct you on beyond a reasonable doubt which is a different standard. That was the extent of my answer on that question. And I shared all of this with you all before they came back with their jury verdict so that if you all had any objections, I could go back and clear it up. There were no objections to that.
* * * * * *
That was prior to their reaching an announced verdict. They then five or ten minutes later said we have a verdict. ...

[¡¡The general rule is that it is improper for the trial judge to engage in ex parte communication with the jury. See La. C.C.P. art. 1796 and Jones v. Black, 95-2530 (La.6/28/96), 676 So.2d 1067. There are exceptions to the general rule, as discussed by this Court in Brooks v. Wiley, 2007-1035 (La.App. 4 Cir. 6/4/08), 985 So.2d 1269. The trial judge in Brooks conducted an ex parte discussion with jurors regarding scheduling options for continued deliberations. This Court acknowledged the mandate of La. C.C.P. art. 1796 regarding the delivery of additional instructions to the jury, but also recognized that there are times when the trial judge is called upon to have communications with jurors in more of an administrative capacity such as managing the deliberation schedule, lunch, and breaks. Ultimately this Court concluded that the ex parte communication the trial judge had with the Brooks’ jurors was more managerial in nature and had no impact on the verdict, therefore did not constitute reversible error. Even though those types of communications have been deemed harmless, all ex parte communication with jurors is discouraged in order to protect the integrity of the process.

In contrast, the Supreme Court, this Court and other circuit courts have consistently held that ex parte communications with jurors addressing legal issues such as delivering additional jury instructions constitutes reversible error. See Jones, supra, Carpenter v. Hannan, 2001-0467, (La.App. 1 Cir. 3/28/02), 818 So.2d 226, Lawson v. Straus, 1998-2096 (La.App. 4 Cir. 12/8/99), 750 So.2d 234|4and Owens v. Con-cordia, 95-1255 (La.App. 3 Cir. 6/25/97), 699 So.2d 434. Under a strikingly similar set of facts, the Carpenter, supra, court examined this issue. In Carpenter, an appeal was taken from a jury verdict rendered after the trial court judge had entered the deliberation room on more than one occasion having ex parte, off the record communications with the jurors and presenting them with a revised verdict form. Id. Just as in the case sub judice, the trial judge dictated an account of the meetings into the record for counsel. On appeal the First Circuit characterized the judge’s actions as “impairing the administration of impartial justice” to an extent that warranted a new trial. Id.

Likewise, we find that the trial judge’s actions in the present case constitute reversible error. Based upon the trial judge’s account of the conversations in this matter, she entered the jury deliberation room on more than one occasion and the ex parte dialog between the trial judge and the jurors included additional explanations of jury charges. These communications regarding legal issues were not recorded and are precisely what the courts have universally deemed reversible error, see Jones, supra, Ca,rpenter, supra, and Owens, supra.

Upon a finding that reversible error has occurred, the only remaining question is whether, reviewing the record de novo, this Court can make the crucial determinations necessary to render judgment. See Jones, supra. The plaintiffs complain of debilitating injuries, similar to injuries sustained in a previous automobile accident, while the defendants are contesting the issue of negligence as well as causation. We find the allegations and defenses in the case sub judice are of a nature that necessitates the witnesses’ credibility be taken into account to such a 15degree that rendering a just verdict on a cold record would not be possible. Thus, we remand the matter for a new trial.

Finally, we address the appellees argument that whether the trial judge’s ex parte communications were in error is of no consequence because the appellants failed to object on the record. According to the uniform rules, Courts of Appeal, Rule 1-3, this Court will not review issues raised for the first time on appeal, “unless the interest of justice clearly requires otherwise.” We find that under the facts and circumstances of this case, it is in the interest of justice to allow the parties the right to appeal.

Accordingly, the trial court judgment is vacated and the case is remanded for new trial.

TRIAL COURT JUDGMENT VACATED; REMANDED FOR NEW TRIAL.

      . Art. 1796. Additional instructions
      A. If the jury, after retiring for deliberation, desires to receive information on any point of law, they shall be conducted to the courtroom.
      B. After giving notice to the parties, the court may give the appropriate instructions.
      C. The court, after giving notice to the parties, may recall the jury after they have retired: (1) To correct or withdraw and erroneous instruction.
      (2) To clarify an ambiguous instruction.
      (3) To inform the jury on a point of law which should have been covered in the original instructions.
      (4) To give such further instructions as may be appropriate.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Donald JONES.
    No. 08-KA-1158.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, LA, for Plaintiff/Appellee.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   EDWARD A. DUFRESNE, JR., Chief Judge.

1 ¡¡On January 30, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Donald Jones, with issuing a worthless check to Acoustical Ceiling Supply in the amount of $18,697.66, in violation of LSA-R.S. 14:71. At the arraignment, defendant pled not guilty. However, on June 23, 2008, defendant withdrew his original plea of not guilty and pled guilty as charged. On that same date, the trial judge sentenced defendant to imprisonment at hard labor for two years, suspended the sentence, and placed him on active probation for four years. The trial judge also ordered defendant to comply with general and special conditions of probation, including payment of restitution to the victim in the amount of $18,697.66 and District Attorney’s fees in the amount of $3,739.53. Defendant now appeals.

In his sole assignment of error, defendant challenges the validity of his guilty plea. He asserts that the trial judge erred in accepting the plea as knowing and voluntary when the judge failed to explain the right against self-incrimination before asking defendant to plead guilty and confess judgment. Defendant claims that his guilty plea should be set aside because the trial judge mentioned his right against self-incrimination only once and did not explain it to him. Alternatively, defendant contends that this matter should be remanded for an evidentiary hearing. The State responds that defendant was informed of his right against selfjinerimina-tion3 and knowingly and voluntarily waived that right, and therefore, his guilty plea should not be set aside.

A guilty plea is not considered valid unless it is freely and voluntarily made. Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. State v. Lemon, 05-567 (La.App. 5 Cir. 2/14/06), 923 So.2d 794, 799. There also must be an express and knowing waiver of those rights, State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), and the waiver must be on the record, which must unequivocally show that the waiver was free and voluntary. State v. Ursin, 98-435 (La.App. 5 Cir. 10/28/98), 720 So.2d 1248, 1249. While it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea. State v. Halsell, 403 So.2d 688 (La.1981); State v. Hebert, 02-884 (La.App. 5 Cir. 12/30/02), 838 So.2d 30, 32.

Having reviewed the entire record, we find that defendant knowingly and voluntarily waived his constitutional rights, including his right against self-incrimination, prior to defendant’s entry and the court’s acceptance of his guilty plea. After defendant entered his guilty plea, the trial judge began his colloquy with defendant as follows:

Court: Okay. Mr. Jones, in this matter, your attorney has indicated to me that he has advised you of your rights (1) to a trial by jury, (2) to confront your accusers, and (3) against self-incrimination, and that by entering your plea of guilty you are waiving or giving up these rights. He has also indicated to me that you have advised him that you understand these things, is that correct?
Defendant: Yes, sir.

|4The trial judge then inquired as to defendant’s age and educational background, and explained to him the nature of the charge, the maximum sentence that could be imposed, and the actual sentence that would be imposed if his plea was accepted. The judge further informed defendant that he had the right to trial by jury, the right to hire an attorney of his choice, and that if he could not afford an attorney, one would be appointed for him. The judge also advised defendant of his right to confront his accusers and to compel testimony on his behalf and his right to an appeal. The judge told defendant that if the court accepted his plea, he did not have the right to assert any allegations or defects, such as an illegal arrest, an illegal search and seizure, an illegal confession, or an illegal lineup. He went on to advise defendant that he had the right to waive any trial by jury and be tried by the court alone. Throughout the colloquy, the trial judge asked defendant if he understood that by pleading guilty, he was waiving all these rights, and defendant answered affirmatively. During the colloquy, the trial judge also informed defendant that no one could force him to plead guilty, and in response to questioning, defendant affirmed to the trial judge that no one had forced, threatened, or coerced him into pleading guilty.

Towards the end of the colloquy and prior to accepting defendant’s guilty plea, the trial judge questioned defendant and his attorney about the waiver of rights form. Defendant’s attorney affirmed to the trial judge that he read and signed the form. Defendant also affirmed, in open court, that he read and signed the form, and that he initialed all the paragraphs of the form. After this thorough colloquy, the trial judge accepted defendant’s plea based upon his satisfaction that defendant understood his rights and the consequences of his guilty plea.

| ¿Additionally, the record contains “Defendant’s Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty” form. Defendant initialed each section of the form, including the introductory paragraph which acknowledges that his attorney advised him of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. In addition, defendant signed the form acknowledging that he was advised of his rights, that he was satisfied with the explanation of those rights, and that his act of pleading guilty was a knowing, intelligent, free, and voluntary act on his part. Defendant’s attorney also signed the form attesting that he informed defendant of his rights and was satisfied that defendant knowingly, willingly, intelligently, and voluntarily entered his plea, knowing the consequences.

Based on the foregoing, we find that defendant’s plea colloquy along with the well-executed waiver of rights form constitutes a sufficient affirmative showing that defendant knowingly waived his privilege against self-incrimination. See State v. Cole, 04-615 (La.App. 5 Cir. 3/1/05), 900 So.2d 15, 24 and State v. Hebert, 838 So.2d at 34, where this court, under similar circumstances, found that the defendants were fully apprised of their rights and entered their guilty pleas knowingly and voluntarily.

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals that the commitment does not reflect the specific payment schedule for restitution. The trial judge signed an order setting restitution as follows: “1) Accoustical Ceiling Supply be paid 37 payments of $500.00 and one final payment of $197.66; and 2) Jefferson Parish DA’s office be paid 7 payments of $500.00 and one final payment of $239.53.” To avoid any confusion regarding payment of restitution, we remand the matter for correction of the commitment to reflect the specific payment schedule.

Accordingly, we hereby affirm defendant’s conviction and sentence and remand the matter for correction of the commitment.

CONVICTION AND SENTENCE AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Joseph LAGUERRE v. Alfredo MENDEZ and the State of Louisiana, through Governor Blanco, and/ through the Department of Public Safety and Corrections and/through the Louisiana State Police and/ through its Secretary, Richard Stalder.
    No. 08-CA-784.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      Gregory D. Guth, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    James D. “Buddy” Caldwell, Attorney General, Baton Rouge, Louisiana, Paul B. Deal, Michael C. Keller, Phyllis E. Glazer, Assistant Attorneys General, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| .¿This is an appeal from a judgment of the trial court sustaining defendant’s exceptions of no right and no cause of action. For the reasons stated herein, we affirm. Facts

Plaintiff, Joseph Laguerre, filed the instant petition for damages alleging he was involved in an automobile accident with a hit and run driver on January 3, 2007. Plaintiff alleges that he subsequently discovered that the vehicle involved in the accident was owned by Alfredo Mendez and that plaintiff located this vehicle near the accident scene. Plaintiff notified the Louisiana State Police who investigated the accident and had the vehicle towed to an impound yard on the basis of abandonment.

In his petition, plaintiff named as defendants the owner of the vehicle, Alfredo Mendez, as well as the Louisiana State Police. Plaintiff alleged that |sthe failure of the Louisiana State Police to perform any further investigation of the accident beyond the impoundment of the vehicle deprived him of his right to recover for his injuries sustained in the accident. Plaintiff alleges that the State Police officers were obligated to perform a follow-up investigation to locate and cite the driver of the hit and run vehicle.

The State of Louisiana, through the Department of Public Safety and Corrections, responded to this petition with peremptory exceptions of no right and no cause of action. The State submitted a copy of its initial police report for this accident and argued that the police had a duty to the public-at-large to investigate' the accident but had no duty to perform a follow-up investigation as alleged by plaintiff. Following a hearing, the trial court sustained the exceptions and dismissed plaintiffs claims against the State. This appeal followed.

Law and Discussion

The Louisiana Supreme Court set forth the rule of law on the exception of no right of action in Lotúsiana Paddlewheels v. Louisiana Riverboat Gaming, 94-2015 (La.11/30/94), 646 So.2d 885 at 888:

An action can only be brought by a person having a real and actual interest which he asserts. La.C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La.C.C.P. art. 927(5). The function of the'exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Baily[Bailey] Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation.

14A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. The inquiry is whether the plaintiff has any law, statutory, jurisprudential, or arising from general principles of fault, to support his claim. Verdin v. Rogers, 03-1457, p. 4 (La.App. 5 Cir. 4/27/04), 873 So.2d 804, 807, writ denied, 04-1231 (La.9/24/04), 882 So.2d 1128.

The exception of no cause of action was discussed in Eclipse Telecommunications Inc. v. Telnet Intern. Corp., 01-271, p. 3 (La.App. 5 Cir. 10/17/01), 800 So.2d 1009, 1011, citing City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748 as follows:

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. The burden of showing that the plaintiff has stated no cause of action is upon the exceptor. The public policy behind the burden is to afford the party his day in court to present his evidence. The exception is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are' made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff.
A court of appeal reviews de novo a lower court’s ruling sustaining an exception of no cause of action because the exception raises a question of law and because the lower court’s decision is generally based only on the sufficiency of the petition. The question is whether, in the light most favorable to the plaintiff, the petition states any valid cause of action for relief.

The allegations of plaintiffs petition indicate that the State Police investigated this traffic accident and instructed the hit- and-run vehicle be towed to an impound lot. However, plaintiff alleges that the State Police was obligated to perform a follow-up investigation to locate and arrest the |5driver of the hit-and-run vehicle as part of their non-discretionary duties. Plaintiff alleges that the failure of the State Police to perform any follow-up investigation deprived plaintiff of his chance for recovery. Further, plaintiff alleges that the duty of the State Police to perform a follow-up investigation of the hit- and-run driver extended beyond the duty to the general public and individually to plaintiff.

La. R.S. 32:398(D) sets forth the legal duty of the State Police to investigate accidents, and states in pertinent part:

It shall be the duty of the state police or the sheriffs office to investigate all accidents required to be reported by this Section when the accident occurs outside the corporate limits of a city or town, and it shall be the duty of the police department of each city or town to investigate all accidents required to be reported by this Section when the accidents occur within the corporate limits of the city or town. Every law enforcement officer who investigates an accident, as required by this Subsection, shall instruct the driver of each vehicle involved in the accident to report the following to all parties suffering injury or property damage as an apparent result of the accident:
(1) The name and address of the owner and the driver of the vehicle.
(2) The license number of the vehicle.
(3) The name of the liability carrier for the vehicle, the name, address, and telephone number of the insurance agent who procured the liability policy providing coverage for the vehicle.

The above cited statute contains no provision requiring the State Police to perform a follow-up investigation beyond its initial investigation of this accident. Further, there is no legal authority which supports plaintiffs argument that the duty extended beyond the duty to the general public and generally to plaintiff. In this case, the State Police officers complied with |fistatutory directives to investigate this traffic accident, and it was within the discretion of the officers whether to pursue the driver of that vehicle once the vehicle had been impounded. As the officers were afforded discretion as to whether to pursue the driver beyond the impoundment of the vehicle, the State is afforded immunity from plaintiffs claim that failure to do so constituted negligence. See, White v. City of Kenner ex rel. Police Dept., 08-195, p. 7 (La.App. 5 Cir. 9/16/08), 996 So.2d 294, 298, writ denied, 08-2503 (La.12/19/08), 996 So.2d 1135.

Accepting as true all of the allegations of plaintiffs petition, we fail to find that the law provides any remedy to plaintiff for his claim. Absent a valid cause of action, plaintiff also has no right of action to bring these claims against defendant. Accordingly, for the reasons assigned herein, the judgment of the trial court sustaining defendant’s exceptions of no right of action and no cause of action and dismissing plaintiffs petition is hereby affirmed.

AFFIRMED.


author: CLARENCE E. McMANUS, Judge. WICKER, J.,

text:
    Erna ENNIS v. SEARS, ROEBUCK AND COMPANY.
    No. 08-CA-235.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      Thomas A. Gennusa, II, Jack P. Ruli, Gennusa, Piacun & Ruli, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Craig R. Nelson, Christina P. Fay, Nelson Fay, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

12Plaintiff filed suit against Sears, Roebuck and Co. for injuries she received when performing maintenance while an employee of Management Cleaning Services. During the course of the proceedings Liberty Mutual Insurance Company, the employer’s workers compensation carrier, filed a petition for intervention, alleging that it had paid to plaintiff $13,069.32 in indemnity benefits and $41,030.20 in medical benefits. After trial on the merits, the trial court found that plaintiff sustained a twelve month injury and it awarded total damages in the amount of $24,000.00. The court further found that intervenor was entitled to recover workers compensation and medical benefits, which exceeded the award of damages, subject to reduction for attorney fees to plaintiffs counsel. The trial court rendered judgment against Sears and in favor of Liberty-Mutual in the amount of $16,000.00 and for plaintiffs counsel in the amount of $8,000.00.

Plaintiff appeals from this judgment of the trial court, alleging that the trial court erred in failing to find that she was totally disabled as a result of her injuries and that the quantum awards was inadequate. Defendant, Sears filed an answer, alleging that the trial court erred in finding liability for the accident. For the reasons that follow, we affirm the decision of the trial court.

| {The Accident

The accident occurred on May 10, 2002. Carl Crittenden, employed by Sears as a shipping clerk associate, testified that he was moving a cart loaded with various boxes of merchandise from the shipping area to the sales floor. The boxes were placed on a flat that was approximately 2/£ feet wide and 4 feet long. The flat had four wheels and a handle in the front middle, similar to a child’s wagon. There were no sides on the flat. The flat was loaded approximately four feet high with boxes of various sizes; the heavier ones located on the bottom and the lighter ones on the top. There was no strap of any kind securing the boxes to the flat.

There was an aisle from the receiving area to the sales floor. Partway down the aisle was an opening with two doors. Located at the two doors was a threshold, and the floor on the sales area side of the threshold was about1/1 or5,8 inch higher than the floor on the other side of the threshold into the receiving area. Near to the doors on the sales floor side, to the left, was a corridor leading into the bathrooms. The door to the ladies room was in the corridor, approximately two feet from the aisle.

Mr. Crittenden testified that on the date in question he was pulling the flat into the sales area while another Sears’ employee, Bobby Cosgrove, held the doors for him. He was in front of the flat, facing away with the flat behind him. He cleared the front wheels, and then the back wheels over the threshold. After the back wheels cleared, he heard something hit the floor. He stopped the flat, and noticed that a box had fallen off so he picked it up. Mr. Cosgrove picked up one or two boxes on the other side of the flat. After he picked up the box, Mr. Crittenden saw the plaintiff in the bathroom corridor on the other side of the flat, (on Mr. Cosgrove’s side). At first she did not say anything, so he assumed she had not |4been hit. She then told him that she was hit by the boxes, to which he responded that he did not stack the flat. At trial Mr. Crittenden stated that he did not know which of the boxes fell off or where they were located on the flat. After plaintiff stated that she was hit by the boxes, Mr. Cosgrove told her to fill out an accident report. Mr. Crittenden stated that he did not fill out an accident report, and no one from Sears asked him what had happened.

Plaintiff testified that on that date of the accident she held three jobs, one of them being with Management Cleaning Controls. Her duties were to clean various places in the store, including the Ladies and Men’s room near the shipping and receiving area. On the date of the accident, she had finished cleaning the ladies room, and was starting to pull her cart, on the other side of the ladies room door from the aisle, when she saw Mr. Crittenden. She stopped, about one foot from the aisle to allow him to pass. She had her back to the hallway. Three boxes came off the flat and struck on her back and calves. Two other boxes fell, but did not strike her. She had initial pain from the blow, but did not experience any lingering pain that day. Ms. Ennis stated that she went to the security office and filled out incident forms, one for Sears and one for Management Cleaning and then, because she had finished, she left the store. The next morning when she awoke, she experienced pain, starting at the belt line in her back and traveling down her left leg into her calf area. At the time of the accident, in addition to her job with Management Cleaning, she was also employed part time by the Jefferson Parish School Board as a food worker, and as a nighttime sitter for an elderly gentleman.

Walter Dominique, Loss Prevention Manager for Sears, took plaintiffs’ statement. He asked her if she needed medical help, to which she responded that she did not. She was upset because Mr. Critten-den had not apologized to her. Mr. Dominique then spoke with Mr. Crittenden, who stated that he did not see a box | Bfall, but that he did see the box on the floor. He also spoke with Mr. Cosgrove, but does not recall if Cosgrove told him how many boxes fell. Mr. Dominique stated that Sears had a safety manual, but that it did not instruct on how to load a flat.

Margot Lerille testified that she worked in loss prevention at the time of the accident. She opened the store doors in the morning, and would talk to plaintiff. After the accident plaintiff spoke with her and said that she (plaintiff) was not really hurt, but was upset because Mr. Crittenden did not apologize.

The Injury

Plaintiff initially sought treatment with her internist, Dr. Nguyen, on May 16, 2002, who ordered a CT scan. The test was conducted on May 30, 2002, and showed multilevel degeneration at L4-5 and L5-S1, with spondylolisthesis at L4-5 and stenosis of the central canal. Dr. Nguyen diagnosed post contusion low back pain, degenerative low back disease, grade I spondylolisthesis and spinal stenosis. Plaintiff was prescribed medication and physical therapy. She was told to stay out of work for four weeks, except her sedentary sitting job.

Plaintiff testified that she went to the prescribed therapy, but did not improve. On August 13, 2002, she began treatment with Dr. Kewalramani, a neurologist. At that time, she complained of pain and discomfort in the lumbar region with intermittent radiation along the lower extremities. He diagnosed lumbar musculi-gamentous pain syndrome and lumbar mechanical dysfunction. He prescribed pain medication, and heat packs, and scheduled a follow-up visit. His report of that visit states that “Based on history provided by the patient onset of her problems was around May 10, 2002 when she was working and multiple boxes fell from a flat cart and struck her.”

During the course of her treatment with Dr. Kewalramani, plaintiff also underwent an EMG and nerve conduction study. The results were consistent with | filumbar radiculopathy. Dr. Kewalramani also considered the result of the MRI previously conducted. As of March, 2003, plaintiff continued to be symptomatic, and therefore Dr. Kewalramani recommended that she consult a neurosurgeon.

In June of 2003, plaintiff consulted with Dr. Stephen Pribil, a neurosurgeon. He viewed the MRI results and diagnosed Grade 1 spondylolysthesis at L4-5 with very severe lumbar stenosis, and disc herniation and collapse at L5-S1. He recommended that plaintiff undergo a lumbar interbody fusion at L4-5 and S-l levels. The surgery was performed. At six months post surgery, on February 3, 2004, Dr. Pribil’s examination revealed that the plaintiff complained of achiness, stiffness and soreness. Her strength was good. He qualified her totally temporarily dis-abler! for six additional months. At eleven months post surgery, plaintiff complained of some back pain, but no more leg pain. Dr. Pribil scheduled a Functional Capacity Examination. On August 31, 2004, Dr. Pribil noted that plaintiff was a little over one year post surgery, and that the results of the surgery were good. The FCE showed that she could lift 20 pounds, and that she should limit twists, bends and stoops. Dr. Pribil concluded that plaintiff had reached maximum medical improvement, and he released her to light duty. He opined that she could not return to her previous employment with the cleaning service. Dr. Pribil’s reports introduced at trial do not link the necessity for surgery with the accident at Sears, although at trial plaintiff testified that Dr. Pribil told her the surgery was necessary because of the injuries sustained in the accident.

Dr. Nutik performed an Independent Medical Examination of plaintiff and reviewed reports sent to him. He concluded that, based on the history plaintiff gave him, that she sustained a mild soft tissue injury. In his report, Dr. Nutik stated that it was his understanding that the boxes weighed less than seven pounds. However, there is no evidence to show the size and weight of the boxes at issue. 17Pr. Nutik did note that the plaintiff did not fall when she was struck by the boxes, and he opined that without falling, he would not have anticipated any involvement at the low back.

At trial, defendant introduced a medical history intake form that plaintiff filled out in February of 2000, almost two years before the accident. On the form, plaintiff checked that she experienced back pain. Margot Lerille testified that sometimes when she would see the plaintiff coming to work, plaintiff would walk differently, “crooked with a little limp.” On those occasions, Ms. Lerille would inquire about plaintiffs back. Plaintiff testified at trial that the pain experienced was just soreness and fatigue from manual labor, and not a resulting from any injury.

Appeal

After trial on the merits, the court found that Sears was liable for the plaintiffs injury, stating that “Mr. Carl Critten-den testified that boxes would not fall off the cart if properly stacked, which is also a matter of common sense.” In answer to this appeal, Sears alleges that the trial court erred in finding that it was liable for the accident. Sears argues that there is no liability because the accident was inevitable or unavoidable, and further that it breached no duty to plaintiff.

LSA-C.C. art. 2315 provides in pertinent part that “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” LSA-C.C. art. 2316 further states that “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

However, the doctrine of avoidable or inevitable accident relieves a person of liability as long as that person shows that he was in no way to blame for the accident. Seals v. Morris, 410 So.2d 715 (La.1981); Nalle v. State Farm Fire & Cas. Co., 97-441 (La.App. 3 Cir. 10/8/97), 702 So.2d 854, writ denied, 97-2832 (La.2/13/98), 706 So.2d 994.

While Mr. Crittenden testified that the flat was loaded correctly, he also stated that the flat was stacked four feet high, and that all the boxes were not the same size. He further admitted that the boxes were not secured to the flat in any way. Sears argues that Crittenden “followed all applicable safety policies in checking for the safety and security of the flat”, and that it was unavoidable that the boxes would fall. We do not agree. If the boxes were properly stacked and secured, they would not fall off the flat. We find no error in the trial court determination that Sears was liable for the accident.

Plaintiffs appeal alleges that the trial court erred in concluding that she suffered only a twelve month soft tissue injury, and further that the trial court’s award of $24,000.00 in total damages is inadequate.

The trial court found that, while the plaintiff was injured in the accident, that injury was a 12 month soft-tissue injury. In its judgment, the trial court stated that “This court can find no convincing evidence that the surgery which the plaintiff underwent on July 18, 2003 was causally related to the accident on May 10, 2002.” Plaintiff alleges that this finding is error; it was the accident at Sears that caused significant injuries to her back and left leg, and that her surgery and resulting damages were causally related to the accident.

The Louisiana Supreme Court, in Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557, 561, set forth the appellate standard of review as follows:

Louisiana courts of appeal apply the manifest error standard of review in civil cases. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the |flrecord establishes that the fact finder is clearly wrong or manifestly erroneous.

In this appeal, plaintiff alleges that the trial court erred in finding that the Hous-ley presumption was inapplicable. Plaintiff argues that she had no symptoms prior to the accident, and that it was the accident that caused her asymptomatic degenerative low back disease to become symptomatic, and resulted in the necessity of surgery.

In Housley v. Cerise, 579 So.2d 973 (La.1991), the Supreme Court held that a plaintiffs disability is presumed to have resulted from an accident, if: (1) the plaintiff was in good health before the accident; (2) that commencing with the accident, the symptoms of the plaintiffs disabling condition appeared and continuously manifested themselves afterwards; and (3) the medical evidence shows there is a “reasonable possibility” of a causal connection between the accident and the plaintiffs disabling condition. Id. at 980.

The medical evidence presented at trial showed that plaintiff suffered from a degenerative disc disease that predated the accident in question. Plaintiffs initial treating physician ordered a CT scan which revealed gradual spondylolisthesis at L4-5 and significant degenerative changes, and resulted in his diagnosis of degenerative low back disease, grade I spondylolisthesis and spinal stenosis. The trial court considered the fact that plaintiff suffered back pain prior to the accident, as established by her own admission to Ms. Lerille and in a 2000 intake form. He also considered the various medical records that indicated the existence of the preexisting condition. He finally noted that there was no proof to a medical probability that the plaintiffs disc condition was caused by the accident. We find no error in this conclusion. We have reviewed the medical evidence submitted and find no evidence linking the plaintiffs disc injury and resultant surgery to the |inaccident at issue. Accordingly, plaintiff has not met her burden of proving that there is a “reasonable possibility” of a casual connection between the accident and the plaintiffs disabling condition.

Because we find no error in the trial court’s determination that plaintiff failed to prove that the accident necessitated the need for surgery, we further conclude that the trial court did not err in its award of damages.

The standard for appellate review for abuse of discretion in the award of general damages is difficult to express and is necessarily non-specific. Youn v. Mantime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). In Youn, this court recognized that:
[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Cone v. National Emergency Services, Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089. The trial court awarded general damages of $24,000.00 for what it concluded was a 12 month soft tissue injury. We find that the award in this case is not beyond that which a rational trier of fact could assess in this case, and therefore we do not see an abuse of discretion in the trial court’s award.

For the above discussed reasons, we affirm the decision of the trial court. Costs are to be borne equally be the parties.

AFFIRMED.

WICKER, J., concurs in part and assigns reasons.

WICKER, J.,

concurs in part and assigns reasons.

hi agree with the majority that there is no evidence linking the plaintiffs disc injury and resultant surgery to the accident at issue. I respectfully concur, however, with the majority to express my view that we are constrained from finding an abuse of discretion in the $24,000 general damage award for the 12-month soft tissue injury. In written reasons for judgment, the trial judge stated:

The parties stipulated to total medical expenses in the amount of $41,030.20, but gave no breakdown or itemization, so it is impossible for this court to accurately determine damages.

I agree. This Court has no way to determine the medical bills for the pre-surgieal period.

Accordingly, I respectfully concur in the majority opinion.


text:
    STATE of Louisiana v. Wilson JARROW.
    No. 08-KA-743.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

12Pefendant, Wilson Jarrow, was charged by bill of information with aggravated flight from an officer in violation of LSA-R.S. 14:108.1 C (Count 1); and illegal possession of stolen things valued at $500.00 or more in violation of LSA-R.S. 14:69 (Count 2). Defendant pled not guilty at arraignment.

On September 13, 2007, defendant withdrew his not guilty plea and pled guilty to both charges. As to Count 2, defendant entered an Alford plea. In accordance with a plea agreement, the district court sentenced defendant to two years at hard labor on Count 1, and six years at hard labor on Count 2. The court further ordered that the sentences be served concurrently with each other, and with defendant’s sentences in two other cases.

On the same day, the State filed a habitual offender bill of information, alleging defendant was a second felony offender. Pursuant to a sentencing |sagreement, defendant admitted to the allegations in the habitual offender bill. The district court vacated defendant’s original sentence on Count 2 and imposed an enhanced sentence of six years at hard labor. The court ordered that the sentence run concurrently with defendant’s other sentences.

On June 13, 2008, defendant filed an application for post-conviction relief in the district court. The court construed the application as a request for an out-of-time appeal, and it granted defendant an appeal in an order dated June 23, 2008.

FACTS

Since defendant entered guilty pleas in this case and there were no pre-trial motion hearings, the facts which led to the instant charges are found only in the State’s offer of a factual basis for the guilty pleas. The prosecutor made the following statement in open court:

On March the 26th of this year, the Jefferson Parish Sheriffs Office representatives saw the Defendant engaged in what appeared to be a hand-to-hand drug transaction. They went to investigate, the Defendant then took off with the vehicle, and there was a high-speed chase during which the Defendant did approximately fifty miles an hour in a twenty mile-an-hour zone and traveled against the flow of traffic forcing several vehicles to leave the road. When he eventually stopped, he fled from the vehicle and fled from the officers on foot. The vehicle had a defeated steering column.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find j4any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by ‘ “a brief referring to anything in the record that might arguably support the appeal”’ so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

In examining an appeal for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an indepen dent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel avers there are no defects in the bill of information. Counsel further notes that defendant’s convictions in this case resulted from guilty pleas, and that defendant did not preserve any issues for appeal. According to counsel, the trial court properly advised defendant of his Boykin rights, and the State gave a factual basis for the guilty plea in accordance with Alford, supra. Defendant’s guilty pleas were knowing and voluntary. Counsel points out that since defendant pled guilty in accordance with a plea agreement, and he entered his admission to the habitual offender bill pursuant to a sentencing agreement, he is not entitled to challenge his sentences on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record in which she represents that she notified defendant she had filed an Anders brief on his behalf, and that he could file a supplemental pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until November 7, 2008 to file a pro se supplemental brief. On December 9, 2008, defendant filed a pro se motion in this Court noticing his intention not to file a pro se supplemental brief in this case.

rAn independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

Defendant filed various pre-trial motions, including motions to suppress evidence, identification, and confession. The district court did not hear any of those motions. Consequently, there are no district court rulings defendant could have preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976).

The record shows the trial court properly advised defendant of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin, supra. The judge also explained to defendant the offenses with which he was charged and the sentencing ranges for those offenses. The judge ascertained that defendant understood his rights and that he wished to waive those rights and plead guilty. Additionally, defendant, his attorney, and the district court judge signed a waiver of rights form which enumerated defendant’s rights and detailed the sentence he would receive pursuant to his guilty plea.

Defendant entered an admission to the allegations in the habitual offender bill of information. The district court properly advised defendant of his right to a habitual offender hearing and his right to remain silent. Defendant stated he understood those rights and wished to waive them. Defendant also completed a |7multiple bill waiver of rights form which contained the penalty range to which he was exposed, and the sentence he would receive.

Defendant’s sentences present no issues for appeal. Both sentences are within the statutory sentencing ranges. In any case, LSA-C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In defendant’s case, the original sentences were agreed to as part of a plea bargain. Additionally, a defendant is precluded from raising a claim of excessive sentence on appeal when his sentence was imposed in conformity with a sentencing agreement set forth in the record at the time he admits to the allegations in a multiple bill. State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, defendant’s conviction and sentence are hereby affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matter was discovered:

The transcript shows the court ordered that defendant serve both sentences at hard labor, but the commitment does not explicitly show that the two-year sentence |son Count 1 was imposed at hard labor. The commitment contains only a general statement that the defendant was sentenced to imprisonment at hard labor for six years. Where the transcript and the minute entry conflict, the transcript governs. State v. Lynch, 441 So.2d 732, 734 (La.1983). We therefore remand with an order that the district court amend the commitment to conform to the transcript. See State v. Jackson, 07-975, p. 13 (La. App. 5 Cir. 4/15/08), 985 So.2d 246, 254. It is further ordered that the clerk of court of the district court transmit the original of the amended commitment to the officer in charge of the institution in which defendant is incarcerated. See LSA-C.Cr.P. art. 892 B(2); State ex rel. Stark v. State, 06-1457 (La.2/16/07), 949 So.2d 409.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The State actually charged defendant with illegal possession of stolen things valued at over $1,000.00, but there is no such monetary designation in the statute. The greatest degree designated in the statute is $500.00 or more. LSA-R.S. 14:69 B(l).

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      .The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Defendant waived his outstanding motions by pleading guilty without complaining of the trial court’s failure to hear and rule on them. State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

      . LSA-R.S. 15:529.1 D(l)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La.1983); State v. Bell, 03-217, p. 4 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90.

      .As to the charge of aggravated flight from an officer, the applicable sentencing range was zero to two years. LSA-R.S. 14:108.1 E. The sentencing range applicable to defendant, as a second felony offender, for possession of stolen things valued at $500.00 or more, was five to 20 years at hard labor, without benefit of probation or suspension of sentence. LSA-R.S. 14:69 B(l); LSA-R.S. 15:529.1 A(l)(a); LSA-R.S. 15:529.1 G.