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

text:
    STATE of Louisiana v. Generio ALLEN.
    No. 2011-KA-0693.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 4, 2012.
    Amended Order Jan. 20, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Michael Redmann, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Kenneth J. Beck, Gretna, LA, Robert G. Harvey, Sr., New Orleans, LA, for Appel-lee, American Bankers Insurance Company.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   ORDER

MAX N. TOBIAS, JR., Judge.

|2The motion for designation of five-member panel filed by Generio Allen and American Bankers Insurance Company (“ABIC”) on 15 December 2011 has been considered. We considered the five-judge issue before we rendered and issued our original opinion of 23 November 2011.

La. Const, art. V, § 8 B, as amended in 2010, states:

A majority of the judges sitting in a case shall concur to render judgment. However, in civil matters only, when a judgment of a district court or an administrative agency determination in a workers’ compensation claim is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority shall concur to render judgment.

Since 1982, this court of appeal has consistently and as custom held that review of a judgment or order coming to this court from the Criminal District Court for the Parish of Orleans would only be heard by a three-judge panel and that no five-judge panel would be empaneled when the vote was 2-1 to reverse the trial court regardless of whether the judgment or order sounded in criminal law or civil law. This is consistent -with what the Louisiana Supreme Court held before it became divested of part of its direct criminal appellate jurisdiction by the 1982 constitutional amendment. It is well-settled that while an action to forfeit a bail |sbond is a civil proceeding and subject to the rules of civil procedure, it is treated as a criminal proceeding for the purpose of appellate jurisdiction. State v. Kaereher, 380 So.2d 1365, 1366 (La.1980). It is also settled that an action to annul a judgment of forfeiture is criminal for appellate purposes. Gennuso v. State, 339 So.2d 335 (La.1976); State v. Johnson, 342 So.2d 863 (La.1977). Although bail bonds are private contracts they are an integral part of the criminal justice system and all proceedings involving them have been considered merely incidental to the underlying criminal proceedings. See La.C.Cr.P. arts. 311-343; State v. Armstrong, 364 So.2d 558 (La.1978).

La.C.Cr.P. art. 922 states in pertinent part:

Within fourteen days of rendition of the judgment of the supreme court or any appellate court, in term time or out, a party may apply to the appropriate court for a rehearing ... [a] judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made....

See also La. C.C.P. art. 2166; La. Unif. Rules, Cts. of App., Rule 2-18.2 (both addressing the fourteen-day limitation for an application for rehearing).

The motion of ABIC, which sounds and reads as an application for rehearing before a five-judge panel of this court, is untimely as a matter of law and rule of court. Thus, we find we are currently without jurisdiction to address the motion.

As stated above, we were aware before we handed down our decision on 23 November 2011 that the trial court judgment was rendered by the Criminal District Court for the Parish of Orleans to which, under La. Const. V, § 8, no five-judge panel is applicable when one judge of a three-judge court of appeal panel dissents. We noted that the trial court judgment relating to a bail bond forfeiture was civil in nature (La. R.S. 15:83), but that all matters relating to bail bonds are set forth in the Code of Criminal Procedure and its ancillaries (La.C.Cr.P. art. 311, et seq.) and in Orleans Parish are heard in the Criminal District Court, not Civil District Court. This irregularity flies in the face of La. Const, art. V, § 32, which states

Except for provisions relating to terms of office as provided elsewhere in this Article, and notwithstanding any other contrary provision of this constitution, the following courts and officers in Orleans Parish are continued, subject to change by law; the civil and criminal district courts; the city, municipal, traffic, and juvenile courts; the clerks of the civil and criminal district courts; the civil and criminal sheriffs; the constables and the clerks of the first and second city courts; the register of conveyances; and the recorder of mortgages.

[sit further conflicts with the provisions of law specifying the jurisdiction of the Civil District Court (La. R.S. 13:1137 and 13:1140) and Criminal District Court (La. R.S. 13:1336). See, La.C.Cr.P. art. 349.5 C; see also, La. Const, art. V, |fi§ 16.

The court is mindful of the problem. For example, in a juvenile matter from Orleans Parish Juvenile Court, if the court of appeal reviews the adjudication of a juvenile as delinquent and the decision is split 2-1 for reversal, no five-judge panel is convened albeit an adjudication is civil but the underlying issue is criminal in nature. That is, we read La. Const, art. V, § 8 literally and have determined that a juvenile court is not a district court for purposes of the constitutional provision.

We acknowledge the issue is not presently perfectly clear, but this explanation clarifies the current practice in this court of appeal. (Because of the split jurisdiction between civil and criminal courts in Orleans Parish that will end when the new Forty-First Judicial District Court for the Parish of Orleans comes into existence on 1 January 2015, most problems will disappear.) Of course, the Supreme Court of Louisiana can vacate our decision of 23 November 2011 in this |7case and remand the matter to this court of appeal for consideration by a five-judge panel, assuming that the movers timely (within thirty days) seek writs of review of our 23 November 2011 decision.

Accordingly, it is ordered that the motion of Generio Allen and ABIC for designation of a five-member panel is denied.

MOTION FOR DESIGNATION DENIED.

|,AMENDED ORDER

IT IS ORDERED that the order of this court of January 20, 2012 be amended to read as follows:

IT IS ORDERED that the motion of the State of Louisiana to publish this court’s order of January 4, 2012 is granted; the Clerk of this court is directed to cause the order of January 4, 2012 to be published in the same manner as an opinion of this court on an appeal.

      . Prior to 1 July 1982, the courts of appeal had only civil jurisdiction.

      . Stated another way, a proceeding to forfeit a bail bond is a civil proceeding arising out of a contract under private signature between a surety for the accused/defendant and the state. Upon default of the conditions of the bail bond, a money judgment may be rendered against the principal and surety in soli-do in favor of the state. However, while the proceeding is civil in nature, judicial review of a proceeding to forfeit a bond lies to the court having jurisdiction over the criminal case. See State v. Kaereher, 380 So.2d 1365, 1366 (La.1980); State v. Johnson, 342 So.2d 863 (La.1977); Gennuso v. State, 339 So.2d 335 (La.1976). See also Marr’s Criminal Jurisprudence, § 298 at 447 (2d ed.1923), Accordingly, except for those cases where the proper court for review is the district court (see R.S. 13:1896 relative to review of city court conviction), the Supreme Court had jurisdiction to review judgments relating to bond forfeitures in criminal proceedings.
      Although jurisprudence interpreting the 1921 Constitution gave the state, the defendant, and the surety the right to appeal to the Supreme Court from judgments relating to bond forfeitures based on the nature of the offense charged in the bill of information or indictment, the Supreme Court interpreted the provisions of the 1974 Constitution differently. After 31 December 1973, a case was appealable to the Supreme Court if "a law or ordinance has been declared unconstitutional,” La. Const. Art. V, § 5(D)(1), or if "the defendant has been convicted of a felony or a find exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.” La. Const. Art. V, § 5(D)(2). Neither of these provisions authorizes an appeal from a judgment relating to a bond forfeiture. Although it speaks in terms of "a case,” La. Const. Art. V, § 5(D)(2) only permitted an appeal by a defendant from a felony conviction and from a fine and sentence imposed. State v. Kaercher, 380 So.2d at 1366-67. Since they do not directly involve either a conviction or sentence, a judgment by lower court either refusing to forfeit or forfeiting a bond in criminal proceedings, regardless of whether the matter relates to a pre-conviction or post-conviction action, is not included in the right of appeal.

      . This is so because if this court through inadvertence issued an opinion that should have been heard by a five-judge panel, but was only heard by a three-judge panel, no final opinion would be have been issued — a result not intended by the court.

      . La. R.S. 15:83 states in pertinent part: "As criminal bail bonds are contractual and civil in nature, their creation and enforcement are governed both by the laws applicable to civil contracts and by the laws set forth in the statutes and code articles governing criminal procedure.”

      . La. R.S. 13:1137 states in pertinent part: "The civil district court for the Parish of Orleans has the same civil jurisdiction as the district courts throughout the state, except as otherwise provided by law.”

      . La. R.S. 13:1140 states in pertinent part:
      Pursuant to the authority vested by Sections 16, 18 and 32 of Article V of the Constitution, the civil district court for the parish of Orleans is hereby vested with jurisdiction of certain cases previously under the jurisdiction of the Orleans Parish Family Court, it being the intent of this Section that all facets and cases involving domestic relation problems hereafter shall be filed and heard before a single court, namely, the civil district court for the parish of Orleans which court shall have exclusive original jurisdiction over all cases involving domestic relations problems, more specifically the following, to wit:
      (1) Actions for divorce, annulment of marriage, establishment or disavowal of paternity of children, alimony, support of children, custody by habeas corpus or otherwise, visitation rights, and all matters incidental to any of the foregoing proceedings.
      (2) The issuance, modification, or dissolution of conservatory writs for the protection of community property.

      .La. R.S. 13:1336 reads as follows:
      A. The criminal district court for the Parish of Orleans shall have exclusive jurisdiction of the trial and punishment of all crimes, misdemeanors, and offenses committed within the parish of Orleans if the jurisdiction is not vested by law in some other court.
      B. The judges of the criminal district court for the Parish of Orleans shall have power to act as committing magistrates in all felony charges and to hold preliminary examinations, with authority to bail, or discharge, or to hold for trial, in all cases before said court. They also may adopt all necessary rules with respect thereto.
      C. (1) Pursuant to the authority vested by Sections 16 and 32 of Article V of the Constitution, the criminal district court for the Parish of Orleans is hereby vested with additional jurisdiction of certain cases previously under the jurisdiction of the civil district court for the Parish of Orleans as provided for in Paragraph (2) of this Subsection.
      (2) The criminal district court for the Parish of Orleans shall have exclusive jurisdiction over civil commitment proceedings when the court determines a mentally defective defendant, who is under the jurisdiction of the court on pending criminal charges but is incapable of standing trial, is a danger to himself or others, and is unlikely in the foreseeable future to be capable of standing trial.

      . La.C.Cr.P. art. 349.5 states:
      A surety, in an action in nullity or to set aside a bond forfeiture, may cumulate two or more cases that are similarly situated by the facts and legal issues as one cumulative action. The actions cumulated shall be mutually consistent and employ the same form of procedure. The action may be by summary proceedings in the section of the criminal court where those cases are pending, or by an ordinary civil- proceeding when the action is within the jurisdiction of the court and in the proper venue. The surety has the burden of proving that the cumulation of the actions is appropriate and in the interest of justice.

      . La. Const, art. V, § 16 states:
      (A) Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker's compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.
      (B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.

      .We do not find that Mr. Allen is a proper party to this case as to the issue of the forfeiture of the bond. He did not appeal the decision of the trial court and did not intervene, file a brief, or appear as an amicus in the appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Madelyn C. Hannan, Wife of/and Albert C. BURNS, Jr. v. BARBARA ENTERPRISES, INC. (BEI), Praetorian Specialty Insurance Company, Louisiana Citizens Fair Plan and Tara O’Meallie.
    No. 2011-CA-1328.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2012.
    F. Sherman Boughton, Eric Shuman, Michelle L. Miller, McGlinchey Stafford, PLLC, New Orleans, LA, for Plaintiff/Appellant.
    Bradley Joseph Luminais, Jr., Jason Paul Foote, Chopin Wagar Richard & Kutcher, L.L.P., Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

11 Albert C. Burns, Jr. and his wife, Madelyn C. Hannan, (collectively hereinafter, “the Burnses”), appeal a judgment of the trial court granting the motion for summary judgment of Praetorian Specialty Insurance Company (“Praetorian”). For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

The Burnses own property located at 3233 Canal Street in New Orleans. They alleged that their property, which housed an office on the bottom floor and a rental unit on the upper floor, sustained damages during Hurricane Katrina. They entered into a contract with Barbara Enterprises, Inc. (“BEI”) to repair the dam ages.

The Burnses’ petition for damages alleged that BEI failed to perform the contractual work provided in a workmanlike manner and to complete several tasks outlined in the contract. They further stated that BEI’s actions “rendered the subject structure unusable and in danger of collapse.” Praetorian issued an insurance policy to BEI. The petition alleged that Praetorian is liable as the liability insurer of BEL

| .¿Praetorian filed a motion for summary judgment alleging that the insurance policy it issued did not cover the damages alleged. They contended that they issued a standard commercial general liability (“CGL”) policy that excludes coverage for poor and/or faulty workmanship. Specifically, Praetorian noted that Sections 2.k, 2.m, and 2.n excluded coverage for the damages alleged by the Burnses.

Section 2.k of the Praetorian insurance contract states that coverage is excluded for “ ‘[pjroperty damage’ to ‘your work’ arising out of it or any part of it.” Section 2.m states that coverage is excluded for:

“Property damage” to “impaired property” that has not been physically injured, arising out of:
(1) A defect, deficiency, inadequacy or dangerous condition in “your product” or “your work”; or
(2) A delay or failure by you or any acting on your behalf to perform a contract or agreement in accordance with its terms.
This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to “your product” or “your work” after it has been put to its intended use.

And Section 2.n provides that coverage is excluded for:

Damages claimed for any loss, cost of expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of:
(1) ‘Your product”;
(2) ‘Your work”; or
(3) “Impaired property”;
if such product, work, or property is withdrawn or recalled from the market or from use by any person or organization because of known or suspected defect, deficiency, inadequacy, or dangerous condition in it.

| -¡Praetorian noted that the Burnses’ expert, Edmond H. Pepper (“Pepper”), testified that, other than having to repair and/or replace BEI’s poor and/or faulty workmanship, no additional damage was sustained to the property as a result of the work performed by BEI.

The Burnses opposed the motion for summary judgment, arguing that the faulty work of BEI on the foundation piers resulted in additional damage to the property. They asserted that the structure is in imminent danger of collapse and is unusable as a result of the BEI’s faulty work on the piers. The Burnses attached in opposition several depositions and Pepper’s affidavit dated after his deposition. They asserted that Pepper’s affidavit was executed after Pepper was presented with new additional evidence and finds that the work performed by BEI resulted in additional damage to the property.

After oral argument, the trial court granted the motion for summary judgment, dismissing the Burnses’ claims against Praetorian.

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether the summary judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183.

The Supreme Court said in Bonin v. Westport Ins. Corp., 05-0886, pp. 4-6 (La.5/17/06), 930 So.2d 906, 910-11:

Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. 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. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art. 2045. Words and phrases used in an insurance policy are |4to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art. 2047.
An insurance policy should not 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. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes.
If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. That strict construction principle, however, is subject to exceptions. One of these exceptions is that the strict construction rule applies 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. [Internal case citation omitted.]

Liability under a CGL policy is only as provided in the policy and its attached endorsements. The parties are free to select the types of risks to be covered. First Mercury Syndicate, Inc. v. New Orleans Private Patrol Service, Inc., 600 So.2d 898, 900 (La.App. 4th Cir.1992). An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, pp. 11-12 (La.4/11/00), 759 So.2d 37, 43.

|fiThe Burnses agree that remediation of faulty workmanship is not covered by the policy, and therefore if no other damage was suffered, no liability on the party of Praetorian exists.

Consistent jurisprudence interpreting commercial general liability policies holds that these exceptions [“work” and “product” exclusions] unambiguously exclude coverage for damage to the work or product itself or for repair or replacement of the insured’s defective work or product. This is based on the principle that general liability policies are not intended to serve as performance bonds.

McMath Const. Co., Inc. v. Dupuy, 03-1413, p. 7 (La.App. 1 Cir. 11/17/04), 897 So.2d 677, 682.

I.

In their first assignment of error, the Burnses assert that the trial court erred in granting summary judgment because they suffered damages other than repair or replacement of BEI’s faulty work. They allege that they suffered economic loss due to the loss of use of their property because the property was a viable income-producing property prior to the BEI’s faulty work. In support of their argument, they cite Stewart Interior Contractors, L.L.C. v. MetalPro Industries, L.L.C., 07-0251 (La.App. 4 Cir. 10/10/07), 969 So.2d 653.

In Stewart, a general contractor hired a subcontractor, Stewart Interior (“Stewart”), to install metal stud framing and sheetrock in connection with the construction of a building. Stewart in turn hired MetalPro to manufacture and supply the studs. Sometime after installation, Stewart learned that the studs did not meet specifications; the studs damaged the sheetrock, tape and joint compound, interi- or paint finishes, vinyl base boards, and carpet. MetalPro’s CGL insurer filed a motion for summary judgment, alleging that their policy excluded coverage for |fithe damage alleged by Stewart. This court determined that the work product exclusion applied to exclude coverage for any damages that were caused exclusively as a result of, or during the removal and repair of, the steel studs. Thus, we affirmed the granting of summary judgment on that issue in favor of the insurer.

However, this court went on to state:

[T]o the extent Stewart has alleged and can prove damages for loss of use, and property damages caused by the steel studs that were occasioned to property other than the steel studs and unrelated to their removal and/or repair, then the ‘impaired property1 exclusion does not apply to preclude coverage for these specific items of damages.

Id., p. 17, 969 So.2d at 665.

The Burnses argue that BEI’s actions destroyed the utility of the building as a commercial office and residential rental unit. Thus, they assert summary judgment should not have granted because they have a viable claim for damages for loss of use.

Contrariwise, Praetorian argues that the Burnses failed to submit any evidence beyond their self-serving allegations to support their claim of economic loss.

On a motion for summary judgment, once the mover negates a necessary element of the non-moving party’s claim, the burden then shifts to the non-moving party to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; the non-moving party is not allowed to rely on the allegations of its pleadings in opposition to a properly supported motion for summary judgment.

Sims-Gale v. Cox Communication of New Orleans, 04-0952, p. 4 (La.App. 4 Cir. 4/20/05), 905 So.2d 311, 813.

|7The Burnses bore the burden of proving economic loss. Here, the Burnses failed to submit any proof beyond a self-serving allegation that the property produced income. This assignment of error is without merit.

II.

The Burnses’ second assignment of error asserts that genuine issues of material fact exist precluding summary judgment. They assert that a genuine issue involves the question of economic loss suffered because BEI’s work rendered the property unusable. However, the Burnses submitted no evidence to support their allegation that they have suffered economic loss.

Next, the Burnses assert that a genuine issue of fact exists as to whether the building suffered additional damage beyond repair and/or remediation of because of BEI’s faulty work product. Their opposition to the summary judgment noted that the policy contained several exclusions, but argued that the products-completed operations hazard provision provides coverage for the damages alleged. Section 16 of the policy provides:

“Products-completed operations hazard”:
a. includes all ‘bodily injury’ and ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product’ or ‘your work’ except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned. However, ‘your work’ will be deemed completed at the earliest of the following times:
|s(a) When all of the work called for in your contract has been completed.
(b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site.
(c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.
Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.

The Burnses assert that they sustained property damage arising from BEI’s work other than replacement of the misaligned piers, and that BEI abandoned the project. Thus, they argue coverage is provided under the product-completed operations hazard provision. They assert that Praetorian’s argument that Pepper testified that the building sustained no additional damage beyond that required to repair BEI’s faulty work product was refuted by Mr. Pepper’s affidavit.

Pepper appeared for deposition on 16 August 2010. He signed an affidavit on 15 May 2011 that averred that he reviewed an inspection report performed by S.Z.S. Consultants, Inc. (“S.Z.S.”) prepared in' 2007, prior to BEI beginning any work on the structure. Based on the S.Z.S. report, he opined that the building was not level prior to BEI beginning repairs, but structurally, the building was sound. He further opined “that once BEI completed its work on the foundations and placed the structure back on the piers, the building began its structural decline.” He next opined that the “misaligned piers undermined the structural stability of the building.” Further, he stated that the structural stability of the building was also damaged by BEI’s removing jacks and plywood and that BEI’s failure to (a) properly enclose the rear portion of the building after its demolition and (b) cover | ¡Roles made by removing the chimneys resulted in water intrusion and additional water damage to the interior of the building.

The Burnses had another expert, Donald Makofsky, who testified that as a result of work performed by BEI, the structure: “[fit’s racked, it’s bowed, it’s leaning, the walls are separating, there’s areas that are unlevel due to the — the floors are sagging, the walls are bowing out. It’s not like we’re talking about the bathroom. We’re talking about the whole thing, the whole building.”

Thus, we find that the Burnses produced sufficient factual support to establish that they will be able to meet their burden of proof at trial on the issue of the additional damages caused by BEI, other than the repairing/replacing of the faulty work itself.

III.

Accordingly, we affirm the judgment granting the motion for summary judgment filed by Praetorian as to the claim for economic loss; however, we reverse the judgment granting summary judgment filed by Praetorian as to the claims of no additional damage under the products-completed operations hazard provision. We remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . The signed contract is on a standard AIA Document Form A105-1993.

      . It is readily apparent that at the time the Burnses and BEI entered into the contract, the structure was unoccupied and that no income was being produced by the property.

      . "Products-completed operations hazard” is frequently referred to by its acronym, "PCOH."


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Janeene C. GERHOLD, Wife of/and Alexander Gerhold, III v. William H. GILES, Progressive Insurance Company and Markel American Insurance Company.
    No. 2011-CA-0992.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2012.

      Ermence DeBose-Parent, New Orleans, LA, Karla M. Baker, Baker Law Firm, L.L.C., Metairie, LA, for Plaintiffs/Appellants, Janeene and Alexander Gerhold.
    Nat G. Kiefer, Jr., Kiefer & Kiefer, Me-tairie, LA, for Defendants/Appellees, William H. Giles and Progressive Security Insurance Company.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   DENNIS R. BAGNERIS, SR., Judge.

| plaintiffs, Alexander Gerhold, III and his wife, Janeene C. Gerhold, appeal the judgment of the district court granting a Motion To Enforce Settlement in favor of the defendants, William Giles and Progressive Security Insurance Company. Because the judgment in which the plaintiffs seek review is interlocutory, we hereby convert the appeal to a writ application, and consider plaintiffs’ arguments under our supervisory jurisdiction. Finding that the district court did not err in granting the Motion To Enforce Settlement, we hereby affirm.

FACTS AND PROCEDURAL HISTORY

On November 5, 2008, Alexander Ger-hold’s motorcycle struck the side of William Giles automobile at the intersection of Oleander Street and South Carrollton Avenue in New Orleans, Louisiana. On January 12, 2009, Mr. and Mrs. Gerhold filed suit against Mr. Giles and his insurer, Progressive Security Insurance Company, and Markel American Insurance Company, their UM/UIM carrier.

On February 8, 2009, plaintiffs’ prior attorney, Raymond Pelleteri, Jr., sent a letter to Mr. Giles’ attorney, Mr. Nat Kiefer, offering to settle for Progressive’s | -¿policy limits of $25,000 plus court costs. Specifically, the February 3rd letter states, in pertinent part, as follows:

In response to our recent telephone conversation, please be advised that I have met with my clients and have been authorized by them to extend the following offer to settle. In return for a full and final release of all claims against your insured, William H. Giles, Progressive will agree to pay the full policy limits, which you indicated to be $25,000.00, plus court costs.
This settlement will, of course, be contingent upon my clients being provided with a certified copy of Mr. Giles’ policy and a sworn affidavit that there are no other liability policies covering Mr. Giles for the negligence asserted in the Petition.
⅜ * *
Because of the serious nature of my client’s injuries, coupled with the amount of medical bills incurred to date, this offer will only remain open until 5:00 p.m. on Friday, February 20, 2009. If the offer is not accepted by that date and time it is withdrawn and we will proceed to secure a personal judgment against Mr. Giles.

On February 5, 2009, Mr. Pelleteri wrote to Progressive’s attorney, Sean Wagner, as well as to Mr. Kiefer, advising them of the court costs paid to date in regard to the settlement of this matter.

On February 6, 2009, Mr. Kiefer emailed a letter to Mr. Pelleteri advising that (1) Progressive agreed to accept plaintiffs’ settlement offer of $25,000 plus court costs; (2) advising that he ordered a certified copy of the policy and would obtain an affidavit from Mr. Giles; (3) that “per our agreement, plaintiff agrees to assume liability for any and all liens;” and (4) requesting the amount of court costs and payee information for the settlement check.

liiOn February 9, 2009, Mr. Kiefer mailed the following per the settlement agreement: (1) Progressive’s settlement check for the policy limits of $25,000 and $533.72 for court costs; (2) an original and two copies of Receipt and Release and Partial Motion to Dismiss Mr. Giles and Progressive from this matter; (3) the Affidavit of Mr. Giles dated February 9, 2008; and (4) a certified copy of the Progressive policy. However, by letter dated March 9, 2009, Mr. Pelleteri advised Mr. Kiefer that his clients refused to sign the settlement documents and that he had been discharged as plaintiffs’ counsel. On March 10, 2009, Mr. Pelleteri filed a Petition For Intervention.

On March 24, 2009, Mr. Giles and Progressive filed a Motion To Enforce Settlement based upon the fact that the correspondence exchanged between counsel for the parties clearly established the terms of the settlement, the terms of the settlement had been satisfied, and the matter was in fact settled.

On May 18, 2009, plaintiffs’ new counsel, Ms. Ermence DeBose-Parent filed a memorandum opposing Mr. Giles and Progressive’s Motion To Enforce Settlement. Specifically, plaintiffs argue that the letters between counsel cannot be considered a valid compromise, and alternatively, even if they can be so considered, plaintiffs never consented to settle for the amount alleged. Attached to the opposition memorandum are affidavits of Mr. and Mrs. Gerhold wherein they state that they never agreed to settle the matter with Progressive and Mr. Giles for $25,000, that they “never saw a copy of the letter proposing the settlement until after we discharged Mr. Pelleteri,” and that they “made it clear to Mr. Pelleteri, from the beginning, that we would be, at the very least, seeking reimbursement of all medicals used as a result of this accident, as demonstrated by our producing to Mr. Pel-leteri the first medical bill in December, 2008, which exceeded $160,000.”

14Mr. and Mrs. Gerhold were deposed on July 15, 2009. Mr. Gerhold testified in his deposition that he acknowledged receiving the February 3rd letter and that Mr. Pel-leteri had in fact carbon copied him on the letter. Further, Mr. Gerhold testified that he did not have any contact with Mr. Pel-leteri after receiving the February 3rd letter until he went to his office to execute the settlement documents, at which time he told Mr. Pelleteri, for the first time, that he did not want to settle and that he was not signing the settlement documents.

Mr. Pelleteri was deposed on April 1, 2010. In his deposition, Mr. Pelleteri explained his proposed settlement plan as follows:

Q. Okay. I’m going to show you a letter, dated February 3, 2009, which I marked as “Exhibit 1,” and ask if you can identify that document?
A. Yes, I prepared that letter.
Q. All right. And who is the letter to?
A. It was to you. “Mr. Kiefer.”
Q. And what was the gist of the letter?
A. Well, the gist of the letter was essentially — a return for release of the action against Mr. Giles if Progressive would pay their full policy limits and certify that there was no other insurance available to Mr. Giles, and that Mr. and Mr. [sic] Gerhold would dismiss their case against Mr. Giles.
Q. And Progressive?
A. Yes, who was the insured [insurer]. Q. Would you agree pursuant to the February 3, 2009 letter, you as counsel of record on behalf of the Gerholds, made a settlement offer to Mr. Giles and Progressive that if Progressive would pay their policy limits of $25,000 plus court costs, that your clients would agree to release Mr. Giles and Progressive and dismiss the claim against them, assuming Progressive would pay the limits and provide the information you requested?
15A. By the date certain?
Q. Which was what?
A. February 20, 2009.
Q. What was your thinking and reasoning as to why you put a specific date on the offer in which you indicated that Progressive would not accept this proposal on or behalf [sic] February 20, '09 at 5:00 p.m. that the offer would be withdrawn, and that you would proceed to secure personal judgment against Mr. Giles? What was your reasoning behind that?
A. My reasoning was that, number one: I was only aware of the total of $75,000 worth of insurance. At the time the letter was written, Progressive’s official position on the case as far as I could determine was that they were denying liability. When the letter was sent, it was with the hope that Progressive would continue that position and expose their insured to an excess judgment. That was my reasoning.
Q. Okay. When you say it was your hope, why was it you hope that Progressive would not accept the proposal before the deadline? What would be the effect of that?
A. I think there would have been a good case for Progressive being arbitrary and capricious, and I think there would be an excellent action by Mr. Giles over and against Progressive for not paying the policy limits when they had the opportunity to do so....
Q. And by hoping you would trap them into missing the deadline, you felt that was in your clients’ best interest because therefore they may have a chance for Mr. Gerhold to collect 100 percent of his damages?
A. What his claim was worth.

Mr. Pelleteri also testified that he had the consent of his clients to send the settlement proposal set forth in the February 3, 2009 letter to Mr. Giles and Progressive. Specifically, Mr. Pelleteri testified as follows:

|fiQ. Now, Mr. Pelleteri, this is an important question as it relates to this case. In your February 3, '09 letter, you indicated that you had met with your clients and they had authorized you to make this settlement offer to Mr. Giles and Progressive, is that a true statement?
A. When I sent that letter, that was my belief.
Q. Did you have the consent and authority of your client when you sent this letter to propose this settlement?
A. I believe I did.
Q. And what did you base that on?
A. Well, I had met with Mr. and Mrs. Gerhold a third time — well, I made a third visit to their house with Mr. and Mrs. Gerhold before this letter was sent, and I laid out what I thought the situation was. I would say we spent a good 45 minutes to an hour talking this over. They asked questions about it, I was frank and I told them: The problem here is Progressive’s attorney is pretty experienced, and I don’t know if this is going to go, but I do believe this is the best shot.
Q. You’re talking about the trap plan?
A. The trap plan yes. I don’t think I described it as a trap plan, but that is what I was trying to do.
Q. Do you have a date when you met with them that third time before you sent the February 3, 2009 letter?
A. It was shortly before then, but I can’t recall a specific date.
Q. When you met with them a third time, and this is before you sent the February 3, 2009 letter and you laid out for them the fact that you were going to offer the 25,000 with a deadline in the hope that Progressive would not accept it? As their attorney, you had no question that they had agreed and consented to you sending this February 3, '09 letter?
A. That was my belief. All I can say is that was my belief based upon the conversation with Mr. and Mrs. Gerhold.
|7Q. Okay. Prior to your receipt of the February 9, '09 letter with the enclosures, which we’ve marked as Exhibit 4, had you ever received any contact from either Mr. or Mrs. Gerhold advising you that you did not have their authority and consent as their counsel to enter into the settlement agreement as per your letter of February 3, '09?
A. I don’t recall any contact with Mr. and Mrs. Gerhold until I called them to tell them that I had gotten confirmation from you on behalf of Progressive that the settlement that we had put out there was accepted. That’s when Mr. Gerhold said he couldn’t settle for that. So that was it.
Q. Would it be fair to say that this indication from the Gerholds that they did not want to go forward with the settlement only came about after the settlement agreement had been reached between the parties?
A. I would say that’s an accurate statement.

On December 17, 2010, a hearing was held on the Motion To Enforce Settlement. However, the district court kept the hearing open to allow Progressive to submit either an affidavit or deposition testimony from Mr. Pelleteri as to whether the initial settlement offer made by Mr. Pelleteri on behalf of plaintiffs included the outstanding medical lien and whether the Mr. Kiefer’s acceptance letter changed the terms of the agreement. On March 11, 2011, Progressive submitted a supplemental memorandum that included an affidavit of Mr. Pelleteri wherein he confirmed that the scope of the initial settlement offer did in fact include the liens and that he had the authority and consent of Mr. and Mrs. Gerhold to enter into the settlement negotiations. Specifically, Mr. Pelleteri’s affidavit states as follows:

(4) The settlement offer I made in my letter dated February 3, 2009 for the policy limits plus court costs did | sin fact encompass any and all outstanding medical liens and/or privileges being asserted against any available insurance proceeds ...
(6) In defendants’ acceptance dated February 6, 2009, counsel for defendants, Nat G. Kiefer, Jr., correctly set forth our agreement in which he stated that following:
“As per our agreement, plaintiff agrees to assume liability for any and all liens.”
(7) Defendants’ acceptance letter dated February 6, 2009 did not in any way change the terms and/or conditions set forth in my settlement letter dated February 3, 2009 since my original settlement offer for the policy limits included the plaintiffs assuming any and all liability for any outstanding liens.

On April 8, 2011, after a hearing, the trial court granted Mr. Giles and Progressive’s Motion to Enforce Settlement.

APPELLATE JURISDICTION

Before reaching the merits of this appeal, we first must address the jurisdictional issue of whether the trial court’s judgment is a final judgment for purposes of immediate appeal under La. C.C.P. art. 1915. Mr. Giles and Progressive argue that plaintiffs’ appeal should be dismissed as they have no right to appeal the district court’s April 21, 2011 judgment since it did not dispose of the entire matter, did not include the dismissal of any parties, and did not include any designation by the district court that said judgment was final and that there was no just reason to delay the appeal. We agree.

The April 21, 2011 judgment only granted the defendants’ Motion To Enforce Settlement; the judgment is devoid of any language dismissing any of the parties and the judgment does not dispose of the entire matter. Further, the trial court did not certify the judgment as final for purposes of appeal under La. C.C.P. |9art. 1915. As such, the proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appeal-able is an application for supervisory writ. La. C.C.P. art. 2083. Because the plaintiffs timely filed their appeal within the delays allowed for applying for supervisory writs we hereby convert plaintiffs’ appeal to an application for supervisory writ and will consider the plaintiffs’ arguments under our supervisory jurisdiction.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Reversal of findings of fact on appeal requires that: (1) the appellate court find from the record that no reasonable factual basis exists for the trial court’s finding, and (2) the appellate court determine that the record establishes the finding is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Trans. and Development, 617 So.2d 880 (La.1993).

DISCUSSION

In their sole assignment of error, plaintiffs argue the trial court erred in holding that the letters between the attorneys constitute a valid compromise and that even if it is a compromise, the compromise should be rescinded because (1) counsel failed to fully clarify and agree upon the terms of the agreement; and (2) plaintiffs refused to sign the settlement documents.

ImLouisiana Civil Code Article 3071 defines a compromise as “a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” A compromise “shall be in writing or recited in open court,” and may be contained in two writings rather than one. See La. C.C. art. 8072, 2007 Revision Comment (c). Further, compromises are favored in the law and the burden of proving the invalidity of such an agreement is on the party attacking it. Elder v. Elder & Elder Enterprises, Ltd., 2006-0703, p. 4 (La.App. 4 Cir. 1/11/07), 948 So.2d 348, 351.

In the instant case, plaintiffs argue that because they did not sign the Receipt and Release actually releasing Mr. Giles and Progressive from further liability, there is no settlement to enforce. Further, plaintiffs allege that the settlement documents do not reflect the intent of the parties and do not satisfy the requirements for a valid compromise. However, the evidence indicates that the plaintiffs did in fact offer to settle their claims against Mr. Giles and Progressive in writing in exchange for Progressive’s policy limits plus court costs as long as they were provided with a certified copy of the Progressive policy and an affidavit from Mr. Giles attesting to the fact that he had no other insurance that would provide coverage for the sued upon claims. In turn, Progressive accepted the plaintiffs’ offer in writing. Mr. Pelleteri’s affidavit confirms that the initial settlement offer made by him on behalf of the plaintiffs included the outstanding medical liens. From reviewing the depositions and affidavits in the record, we find no manifest error in the district court’s finding that plaintiffs’ prior attorney, Mr. Pelleteri, had the authority and consent of his clients to enter into the settlement agreement with Mr. Giles and Progressive and that the parties had reached a valid, enforceable settlement agreement.

|nFor the foregoing reasons, we convert this appeal to an application for supervisory writ. We grant the application for writ, and affirm the judgment of the trial court, which granted Mr. Giles and Progressive’s Motion To Enforce Settlement.

APPEAL CONVERTED TO A WRIT APPLICATION; WRIT APPLICATION GRANTED; JUDGMENT AFFIRMED

      . The judgment was signed on April 21, 2011. Plaintiffs' notice of appeal was filed on May 17, 2011 and the district court signed the order granting the appeal on May 19, 2011.


author: MAX N. TOBIAS, JR, Judge.

text:
    Timothy E. COLLINS v. Michael DOWNES and State Farm Mutual Automobile Insurance Company.
    No. 2011-CA-1124.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2012.
    Jerry L. Hermann, Kopfler & Hermann, L.C., Houma, LA, for Plaintiff/Appellant.

      David V. Batt, Bradley S. Groce, Lob-man, Carnahan, Batt, Angelle & Nader, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY C. LOBRANO).
   MAX N. TOBIAS, JR, Judge.

_JjThe plaintiff, Timothy Collins (“Mr. Collins”), appeals the granting of a motion for summary judgment in favor of the defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), which dismissed Mr. Collins’ claim for underin-sured motorist benefits upon application of Ohio law to the insurance policies at issue. For the following reasons, we affirm.

On 26 September 2009, while stopped at Tchoupitoulas Street near its intersection with Girod Street in New Orleans, Mr. Collins, a permissive user of an automobile owned by Dayna Pleasant (“Ms. Pleasant”) and insured by an automobile liability policy issued by State Farm, was rear-ended by a vehicle driven by the defendant, Michael Downes, also insured by State Farm.

Mr. Collins timely filed a suit for personal injuries naming as defendants, Mr. Downes and State Farm. Mr. Collins also named State Farm as a defendant in its capacity as the uninsured/underinsured motorist and excess liability insurer of the vehicle he was operating at the time of the accident that was owned by Ms. Pleasant. Specifically, Mr. Collins alleged that State Farm provided uninsured/underinsured motorist (“UM/UIM”) benefits in the amount of |¾$100,000.00 on the underlying automobile liability policy, and excess insurance in the form of a personal liability umbrella (“PLU”) policy on the same vehicle affording $1 million coverage for the injuries he sustained in the accident.

State Farm tendered its $100,000.00 liability limits to Mr. Collins under the terms of the auto liability policy it issued to Mr. Downes. State Farm, as automobile liability and excess insurers of Ms. Pleasant, moved for summary judgment on the basis that both the UM/UIM and PLU policies issued to Ms. Pleasant were Ohio contracts of insurance that did not provide coverage to Mr. Collins for his loss. Specifically, State Farm argued that (1) the automobile liability policy issued to Ms. Pleasant provided UM/UIM limits of $100,000.00/$300, 000.00, but contained a clause that reduced the UM/UIM limits by the amount of liability coverage tendered on behalf of the tortfeasor; and (2) in her PLU policy application, Ms. Pleasant rejected UM/UIM coverage.

Mr. Collins opposed State Farm’s motion and, thereafter, filed his own motion for summary judgment, alleging that (1) he was a Louisiana resident, (2) the accident occurred in Louisiana, (3) the defendant driver was a Louisiana resident, and (4) because Ms. Pleasant had transferred her residence and domicile from Ohio to Louisiana prior to the subject accident and was, therefore, a Louisiana resident and domiciliary on the date of the accident, Louisiana law should apply to the State Farm policies at issue affording coverage. Because Louisiana UM/UIM law generally does not permit application of reduction clauses, Mr. Collins argued the reduction clause should not be enforced.

|sThe trial court denied Mr. Collins’ motion for summary judgment and ruled in favor of State Farm on its motion, dismissing Mr. Collins’ claims against it with full prejudice. In doing so, the court determined that, without evidence that State Farm was given proper notice and had knowledge that Ms. Pleasant was living in Louisiana, and that her vehicle was primarily garaged in Louisiana rather than in Ohio when it renewed the policies in June 2009, the policies are to be deemed Ohio policies and Ohio law applies. From that judgment, Mr. Collins appealed.

Appellate courts review a grant of summary judgment de novo applying the same criteria applied by district courts to determine if summary judgment is appropriate. Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776.

The sole issue presented for appellate review is whether Louisiana or Ohio law applies to the interpretation of Ms. Pleasant’s automobile liability policy and/or PLU policy issued by State Farm. In a multistate case, the appropriate starting point is to first determine that a difference between Louisiana’s law and the law of the foreign state exists, and then to conduct a choice-of-law analysis. Champagne, p. 22 (La.1/19/05), 893 So.2d 773, 786. In the case at bar, the applicable Ohio statute, Ohio R.C. 3937.18(C), provides:

The policy limits of the [UM/UIM] coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.

14 Under Louisiana law, reduction clauses are not enforceable when doing so would preclude full recovery by a UM/UIM insured, to which the insured would otherwise be entitled under Louisiana’s UM/ UIM law. La. R.S. 22:1295. See Zuviceh v. Nationwide Ins. Co., 00-0773, p. 7 (La.App. 1 Cir. 5/11/01), 786 So.2d 340, 345-46; Francis v. Travelers Ins. Co., 581 So.2d 1036, 1043 (La.App. 1st Cir.1991).

In Champagne, supra, the Court held that Louisiana law does not automatically apply to UM/UIM claims under a policy issued in another state, even though a Louisiana resident is involved in the accident. Rather, pursuant to La. C.C. arts. 3515 and 3537, a choice-of-law analysis is necessary. See Champagne, p. 2, 893 So.2d at 775.

La. C.C. art. 3515 provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies and upholding the justified expectations of parties and minimizing he adverse consequences that might follow from subjecting a party to the law of more than one state.

La. C.C. art. 3537 provides:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of ^negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

Louisiana’s law, as set forth above, affords the balancing of competing interests between states. Article 3515 instructs the court to examine the relationship of each state to the parties and the dispute. Article 3537 invites analysis of the nature, type, and purpose of the contract. The objective of these provisions is to identify the state whose policies would be most seriously impaired if its laws were not applied to the issue at hand. See La. C.C. arts. 3515 and 3537; Champagne, p. 22, 893 So.2d at 786. In the case at bar, the law of the state applicable to the insurance contract and its UM/UIM and excess coverage is determined by evaluating the strength and pertinence of the relevant policies of Louisiana and Ohio in light of the factors set forth in La. C.C. arts. 3515 and 3537. Champagne, id.

We note that profound competing public policies and interests exist between the states of Louisiana and Ohio in this case. Louisiana has expressed as a public policy its intent to protect Louisiana residents and others when an accident occurs on Louisiana roads. The stated purpose of Louisiana’s UM/ UIM legislation is to promote full recovery for innocent automobile accident victims by mandating minimum liability insurance coverage and making coverage available when the tort-feasor is uninsured or underinsured. See Martin v. Champion Ins. Co., 95-0030, p. 3 (La.6/30/95), 656 So.2d 991, 994. Factors supporting Louisiana’s strong interest in promoting full recovery for innocent automobile victims are: (1) 16there are economic interests involved, which include costs of medical care (which are more likely to be paid if sufficient insurance exists); (2) significant involvement of the facilities of the Department of Public Safety and Corrections and the judicial system; and (3) the issuing states of the insurance policy often have credit and reduction provisions in their UM/UIM coverage, thereby reducing limits and serving to prevent full recovery by an innocent victim. See Champagne, p. 25, 893 So.2d at 788, citing Zuviceh, p. 7 (La.App. 1 Cir. 5/11/01), 786 So.2d at 345.

In further support of a strong public policy for applying Louisiana law under the UM/UIM statute, McKenzie and Johnson in Louisiana Civil Law Treatise on Insurance Law and Practice § 119 at 293, make the following expression:

Any credit reducing the UM limits by the amount of liability insurance of the adverse driver is clearly contrary to the underinsured motorist protection required by statute. The insured is entitled to recover, subject to the limits of his policy, the difference between his damages and liability insurance of the negligent motorist.

Ohio, however, also has an interest in the UM/UIM coverage issue. It has a real interest in the regulation of its insurance industry and in the contractual obligations that are inherent parts thereof. The integrity of a contract is a substantial and real interest. The fact that Congress has permitted the fifty states to have their own separate system of regulations governing insurance strongly suggests this is a legitimate public purpose. Champagne, pp. 25-26, 893 So.2d at 788; Zuviceh, p. 7, 786 So.2d at 346.

In the case at bar, State Farm and Ms. Pleasant entered into a contract that contains reduction clauses that provide, in essence, that Mr. Collins’ recovery will be reduced by the amounts previously collected from the automobile bodily injury pliability insurance contract of Mr. Downes, the owner and operator of the underinsured vehicle. This agreement was the contemplation of the contracting parties, and the bi-annual premium of $20.62 for $100,000.00/$300,000.00 of UM7 UIM coverage was assessed and computed accordingly, based on State Farm’s potential exposure under the policy, including the reduction clauses. Champagne, p. 26, 893 So.2d at 789; Zuviceh, p. 8, 786 So.2d at 346.

In support of its motion for summary judgment, State Farm submitted three affidavits to establish that the policies issued to Ms. Pleasant were negotiated and issued in Ohio. The first affidavit is in the form of a “Certificate” from State Farm issued by Sadi Chhoa dated 3 September 2010, which states that State Farm’s policy, number 248 2380-A20-35H, was issued to Ms. Pleasant of 1819 Sunny-meade Road, Xenia, Ohio, and was in effect on the date of the accident. The second affidavit is a Certificate from State Farm Fire and Casualty Company (“SFF & CC”) issued by Gloria Peck regarding the PLU policy, which states that State Farm policy, number 35-EA-5348-9, was issued to Ms. Pleasant, 1819 Sunnymeade Road, Xenia, Ohio, and was in effect on the date of the accident. The third affidavit submitted by State Farm is from Kathy Guirreri, the custodian of the automobile liability and the PLU policies issued to Ms. Pleasant. In her affidavit, Ms. Guirreri states that the State Farm and SFF & CC policies issued to Ms. Pleasant were issued in conformity with, and under the law of Ohio, and that State Farm’s and SFF & CC’s records indicate Ms. Pleasant’s address to be maintained at 1819 Sunny-meade Road, Xenia, Ohio. Mr. Guirreri also attested that in August 1996, Ms. Pleasant was offered and validly rejected, under the laws of Ohio, UM/UIM coverage in connection with her application for the PLU policy. According to Ms. Guirreri, the PLU policy issued to Ms. Pleasant did not provide |SUM/UIM coverage at any time from the date of the policy’s inception through the date of loss. Ms. Guirreri further attested that the PLU policy issued to Ms. Pleasant did not include permissive users of vehicles in the definition of “who is an insured,” but rather included only the named insured and family members whose primary residence was the household of the named insured on the policy. Thus, State Farm argues that even assuming Ms. Pleasant had purchased UM/UIM under the PLU policy, Mr. Collins would not qualify as an “insured” as he was neither a named insured nor a resident relative of Ms. Pleasant.

Mr. Collins did not submit any countervailing evidence in opposition to State Farm’s motion to refute State Farm’s position that the policies issued to Ms. Pleasant were Ohio policies, negotiated and issued in the state of Ohio. While Mr. Collins did submit an affidavit of Ms. Pleasant attesting that she has resided in Louisiana since February 2009, the affidavit does not refute that she maintained her Xenia, Ohio address with State Farm or that she ever gave State Farm notice that she had moved to Louisiana and that her car was primarily garaged in Louisiana as is required by her policy. Moreover, in brief, Mr, Collins concedes |3that, at the time of the accident, Ms. Pleasant’s vehicle continued to be registered, titled, and licensed in Ohio.

In sum, our de novo review of the record establishes the following contacts with Louisiana:

1) The accident occurred in New Orleans, Louisiana;
2) The plaintiff, Mr. Collins, is a Louisiana resident;
3) The owner of the vehicle, Ms. Pleasant, is a Louisiana resident;
4) At the time of the accident, Ms. Pleasant’s vehicle was primarily garaged in Louisiana;
5) The defendant, Mr. Downes, is a Louisiana resident; and
6)The defendant’s automobile liability insurance policy was issued to defendant in Louisiana.

Additionally, we find the record establishes the parties’ contacts with the Ohio as follows:

1) The State Farm automobile liability policy in effect on the date of the accident was issued to Ms. Pleasant in conformity with, and under the laws of the state of Ohio, [ 10and delivered to Ms. Pleasant’s address as listed at 1819 Sunnymeade Road, Xenia, Ohio;
2) Ohio is the place of negotiation and formation of the insurance contract;
8) The vehicle Mr. Collins was driving was licensed, titled, and registered in Ohio;
4) The State Farm policy maintained Ms. Pleasant’s address as Xenia, Ohio;
5) The policy premiums paid by Ms. Pleasant were based on her Xenia, Ohio address, not her Louisiana address;
6) State Farm issues insurance policies in Ohio;
7) The insurance policy issued to Ms. Pleasant insuring the vehicle Mr. Collins was driving is an Ohio policy containing provisions permitted under Ohio law.

After consideration of the above factors of this case, we conclude that Ohio has a more substantial interest in the uniform application of its laws governing insurance contracts than Louisiana, even though the accident occurred in Louisiana and involved Louisiana residents. We find that applying Louisiana law to the Ohio policies in this case would result in an abrogation of Ohio contracts. We further hold that it is more likely than not that the premiums charged for both the | n automobile liability policy and PLU policies were based on the application of Ohio law to the contracts. Employing a conflict-of-law analysis pursuant to La. C.C. arts. 3515 and 3537, we conclude that Ohio’s policies will be most seriously impaired if its law is not applied to the automobile liability and PLU policies.

CONCLUSION

Accordingly, we hold that State Farm has met its burden of establishing that Ohio has a more substantial interest in this case and that Mr. Collins has failed to present factual support for his contentions. Therefore, we affirm the trial court’s judgment holding that State Farm is entitled to summary judgment as a matter of law.

AFFIRMED.

      . Ms. Pleasant is not a party to this litigation.

      . The PLU policy was actually issued by State Farm Fire & Casualty Company, not State Farm.

      . It is undisputed that if Ohio law is applied to the policies, no coverage is available to Mr. Collins for his alleged injuries under either the State Farm automobile liability policy (which provides for a reduction and setoff of all available underlying liability insurance) or PLU policy (as Ms. Pleasant specifically rejected the UM coverage in her PLU policy application).

      . For purposes of setoff, “amounts available for payment” mean "the amounts actually accessible to and recovered by” a UM/UIM claimant. Littrell v. Wigglesworth, 91 Ohio St.3d 425, 430, 746 N.E.2d 1077, 1084 (2001).

      . Additionally, Ms. Guirreri stated that for the specific policy period that included the date of the subject accident, UM/UIM coverage under the PLU policy issued to Ms. Pleasant was no longer written by her insurer, was not available to Ms. Pleasant from her insurer, and was not offered to Ms. Pleasant by her insurer for that policy period in the immediately preceding renewal notice.

      . Ms. Pleasant's automobile liability policy, which is contained in the record on appeal, provides, in pertinent part, the following provisions:
      CONDITIONS
      6. Premium

      ... The premium for this policy is based on information State Farm has received from you or other sources. If the information is incorrect or incomplete, or changes during the policy period, you must inform State Farm of any changes regarding the following:

      d. the location where your car is principally garaged. You agree that if this information or any other information used to determine the premium is incorrect or incomplete, or changes during the policy period, we may decrease or increase the premium during the policy period based upon the corrected, completed or changed information.
      7. Concealment or Fraud
      There is no coverage under this policy if you or any other person insured under this policy has made false statements with the intent to conceal or misrepresent any material fact or circumstance in connection with any claim under this policy.

      . Though Ms. Pleasant had been residing in Louisiana for several months prior to, and at the time of, the six-month automatic renewal of both her automobile liability and PLU policies, the evidence in the record before us indicates that she failed to notify State Farm (or SFF & CC) of her change of address from Ohio to Louisiana and/or to advise that the insured vehicle was no longer principally garaged in Ohio, but rather, was primarily garaged in Louisiana, as required by the terms of the policies. Additionally, Ms. Pleasant failed to license, title, and register her vehicle in Louisiana, as is required by all Louisiana resident motorists. See La. R.S. 32:51; La. R.S. 32:52; La. R.S. 32:402; La. R.S. 47:501; La. R.S. 32:1301; and La. R.S. 32:1304.


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Cortez C. DENSON.
    No. 2011-KA-0517.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Cortez C. Denson.
    .(Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

hThe defendant, Cortez C. Denson, appeals his conviction of distribution of cocaine and his adjudication and sentencing as a third felony offender. For the reasons that follow, we affirm.

STATEMENT OF CASE

On June 22, 2006, Mr. Denson was charged with possession with intent to distribute cocaine. The docket master reflects that he entered a not guilty plea on March 14, 2007. Following a hearing on June 15, 2007, the district court found probable cause and denied the defendant’s motion to suppress the evidence. On September 12, 2007, the State amended the bill of information to charge the defendant with distribution of cocaine. After waiving a jury trial, the defendant was found guilty as charged and was sentenced on October 18, 2007 to serve ten years at hard labor. Subsequently, the State filed a multiple bill of information charging Mr. Denson as a fourth felony offender. On August 1, 2008, for reasons discussed in appellant’s third assignment of error, Mr. Denson was adjudicated a |?third felony offender. As a result, the district court resentenced the defendant to serve twenty years at hard labor. Mr. Denson appeals his conviction and sentence as a third felony offender.

STATEMENT OF FACT

Testimony at trial and at the hearing on the motion to suppress reveals that at approximately 3:00 a.m. on March 18, 2005, Officers Monteleone and Booth were traveling along Baudin Street in a fully marked police vehicle when they observed a white male (Lutcher) approach a black male (Denson) on the corner of Baudin and South Genois Streets. Both men were nervously looking around. As the officers continued driving in the direction of the two men, they observed Lutcher hand some currency to the defendant in exchange for what appeared to be a green cigarette box. Believing that they had just witnessed a drug transaction, the officers decided to make an investigatory stop. When Lutcher saw the police vehicle, he dropped the cigarette pack, and he and Denson began walking in opposite directions.

The officers exited the vehicle. Officer Monteleone pursued and apprehended the defendant, Mr. Denson; she then handcuffed him for her safety because he was confrontational. Officer Booth first retrieved the cigarette box that was dropped by Lutcher, and she informed Officer Mon-teleone that it contained six individually wrapped pieces of what appeared to be crack cocaine. Officer Booth then pursued and apprehended Lutcher. Both suspects were arrested and had their rights read to them; neither suspect made a statement. In a search incident to the defendant’s arrest, Officer Monteleone seized $167.00, but did not find any contraband in defendant’s possession.

|sBoth officers identified Mr. Denson in court. Officer Booth also identified the evidence bag and the receipt relative to the cocaine that was seized. She noted certain damage to the items that was attributable to the flood waters following Hurricane Katrina. The cigarette box and money were not available for trial.

The State offered stipulations that Sergeant O’Neal was an expert in the analysis and identification of controlled and dangerous substances, and that the six individually wrapped pieces that had been found inside the discarded cigarette box had tested positive for cocaine. Although the defense did not accept these stipulations, defense counsel admitted that he had not objected to the State’s notice of intent to introduce the criminalist report as prima facie proof in accordance with La. R.S. 15:499, et seq. The report was then admitted into evidence.

ERRORS PATENT

A review of the record for patent errors reveals two issues warranting comment.

First, as indicated in the statement of the case, the minute entry of the defendant’s arraignment is missing from the record. However, the docket master entry dated March 14, 2007 reflects that the defendant was present in court and that he entered a not guilty plea.

Notwithstanding the discrepancy noted above, La.C.Cr.P. art. 555 provides that a failure to arraign the defendant or the fact that the defendant did not plead is waived if the defendant enters upon trial without objecting thereto, in which case he is presumed to have pled not guilty. In the instant case, the record shows that no such objection was made by the defendant’s counsel; therefore, the defendant is presumed to have pled not guilty.

14Regarding the second potential error patent, La. R.S. 40:967 requires that the first two years of appellant’s sentence be served -without the benefit of parole. In this case the district court failed to restrict parole eligibility; however, La. R.S. 15:301.1(A) self-activates the correction of this error and eliminates the need to remand for a ministerial correction of the sentence. State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799.

No other patent errors were found.

ASSIGNMENT OF ERROR NUMBER ONE

By his first assignment, appellant asserts that the district court erred by denying his motion to suppress the evidence. He specifically urges that the officers lacked reasonable cause to conduct an investigatory stop.

A police officer has the right to detain briefly and interrogate a person when the officer has a reasonable, articula-ble suspicion that the person is, has been, or is about to be engaged in criminal conduct. La.C.Cr.P. art. 215.1; Terry v. Ohio, 892 U.S. 1, 30, 88 S.Ct. 1868, 1884-5, 20 L.Ed.2d 889 (1968); State v. Tucker, 626 So.2d 707, 710 (La.1993). “Reasonable suspicion” is something less than probable cause, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of an individual’s right to be free from governmental interference. State v. Robertson, 97-2960, p. 3 (La.10/20/98), 721 So.2d 1268, 1269. Mere suspicious activity is not a sufficient basis for police interference with an individual’s freedom. State v. Williams, 421 So.2d 874, 876 (La.1982). “However, the level of suspicion need not rise to the probable cause needed for a lawful arrest.” State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049. The detaining officer must have knowledge of specific, | ¡^articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Dennis, 98-1016, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299. The police do not have to observe what they know to be criminal behavior before investigating. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Belton, 441 So.2d 1195, 1198 (La.1983). An investigative stop must be justified by some objective manifestation that the person to be stopped is or is about to be engaged in criminal activity, or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct. State v. Moreno, 619 So.2d 62, 65 (La.1993). In reviewing the totality of the circumstances, the officer’s past experience, training, and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Cook, 99-0091, p. 6 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1232.

The evidence in the instant case establishes that at approximately 3:00 a.m. on March 18, 2005, the officers observed the defendant and Lutcher approach each other while nervously looking around. The officers observed Lutcher hand the defendant currency in exchange for what appeared to be a green cigarette box. In light of their experience, both officers believed that they had just witnessed a drug transaction. Therefore, at that time, the officers had reasonable cause to conduct an investigatory stop. More importantly, Lutcher discarded the cigarette pack while the officers were driving up the street. Though the officers were planning to make an investigatory stop, they had not yet done anything to signal that intent when they saw one man drop the cigarette pack (containing cocaine) and both men walk away in opposite directions.

IfiWhen property is abandoned before any unlawful intrusion into a citizen’s right of freedom from governmental interference, it may be lawfully seized by the police. State v. Belton, 441 So.2d 1195, 1199 (La.1983). At the time the cigarette pack was discarded, the officers had not intruded on either man’s right to be free from governmental interference. Accordingly, we conclude that Officer Booth lawfully seized the cigarette pack abandoned by Lutcher, and the trial court properly denied the motion to suppress the evidence.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment, the appellant asserts there is no evidence in the record showing that the trial judge addressed him regarding his waiver of a jury trial. However, after the appellant’s brief was filed, this court ordered the court reporter to file a complete transcript, including the jury waiver, or certify on the record that no colloquy had occurred. On July 8, 2011, the court reporter filed a transcript from September 11, 2007, which contains the defendant’s waiver of his right to be tried by jury.

A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive his right to trial by jury and elect to be tried by the judge. La.C.Cr.P. art. 780(A); State v. Lee, 2001-2082, p. 4 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, 622. The waiver must be express and is never presumed. State v. Santee, 2002-0698, p. 3 (La.App. 4 Cir. 12/4/02), 834 So.2d 533, 534. A waiver of the right to trial by jury is valid only if the defendant acted knowingly and voluntarily. State v. Kahey, 436 So.2d 475, 486 (La.1983); Santee, supra. However, while the trial judge must determine if the defendant’s |7jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. Santee, supra, at 834 So.2d at 535.

The transcript of September 11, 2007 reflects that the defendant was in court when the State informed the judge that it had been advised by defense counsel that the defendant’s trial would be a judge trial. The court then asked defense counsel whether it was correct that his client had chosen a judge trial, and counsel replied in the affirmative.

This court has considered what constitutes a knowing and intelligent waiver of the right to trial by jury in several cases and has made it clear that the preferred practice for obtaining a valid waiver of a defendant’s right to trial by jury is “for the trial judge to advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record.” State v. Richardson, 575 So.2d 421, 424 (La.App. 4 Cir.1991). See also State v. Wolfe, 98-0345, p. 6 (La.App. 4 Cir. 4/21/99), 738 So.2d 1093, 1097, and State v. Abbott, 92-2731 (La.App. 4 Cir. 2/25/94), 634 So.2d 911, 913. However, this court has also found that a knowing and intelligent waiver of a defendant’s right to a jury trial can be made even if the preferred practice of obtaining such a waiver is not followed. See State v. Santee, 2002-0693 (La.App. 4 Cir. 12/04/02), 834 So.2d 533, where this court reiterated that “the Louisiana Supreme Court has refused to mandate this method as an absolute rule.” Id. at p. 3, 834 So.2d at 535. Moreover, in both Santee and Wolfe, this court held that the defendant’s failure to object when his counsel | informed the court that a judge trial had been chosen is to be construed against the defendant in determining the validity of the waiver made while he was present in court.

In State v. Bryant, 2006-1154, p. 7 (La.App. 4 Cir. 1/10/07), 950 So.2d 37, 41, this court noted that both the Supreme Court and this court have rejected an absolute rule that would require the trial judge to personally inform a defendant of his right to a jury trial. The Bryant court found the defendant’s waiver of a jury trial to be valid where the trial court had specifically noted that defense counsel had advised it that a judge trial was defendant’s choice, and then the court had asked counsel on the record to confirm whether that was correct.

As in the cases cited above, Mr. Den-son’s counsel affirmed that Mr. Denson had chosen a judge trial. Moreover, Mr. Denson did not object either on September 11th or on the day of trial when the trial judge stated that it would be a judge trial. Also, the docket master entry dated March 14, 2007 reflects that the district court had informed the defendant at his arraignment of his right to a jury trial. Therefore, we conclude that the appellant’s waiver of a jury trial was valid.

ASSIGNMENT OF ERROR NUMBER THREE

By this assignment, the appellant cites three reasons why the district court erred in adjudicating him a multiple offender. First, he urges that the State violated the law by using two convictions entered on the same day in the multiple bill of information. The transcript of the multiple bill hearing fails to show that an objection was lodged, and no motion to reconsider the sentence was filed by counsel. Absent the filing of a timely written motion for reconsideration of sentence or the making of an oral objection at the sentencing hearing, a defendant |flis precluded from urging on appeal any ground of objection to the sentence. See La. C.Cr.P. art. 881.1(E). Thus, this claim has not been preserved for review.

Appellant next argues that the district court mistakenly informed him of the sentencing range for a triple offender and that his counsel was incompetent for failing to correct the court as to the sentencing range. He urges that this misinformation given to him by the court contributed to his decision to go forward with the multiple bill hearing.

Finally, appellant argues that it was an abuse of the district attorney’s discretion to multiple bill a drug addict based solely on drug offenses. He urges that the State’s decision to multiple bill him violated the constitutional prohibition against cruel and unusual punishment, and that his counsel should have objected. Because the appellant has couched his second and third arguments in language that accuses his counsel of being ineffective, these two claims will be considered from that perspective.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729, 737 (La.1984); State v. Johnson, 557 So.2d 1030, 1033 (La.App. 4th Cir.1990). However, in the instant case the record contains sufficient evidence for this court to rule on the merits of these claims, which may be reviewed on appeal. See State v. Seiss, 428 So.2d 444, 449 (La.1983); State v. Landry, 499 So.2d 1320, 1324 (La.App. 4 Cir.1986).

In order to succeed on his ineffective assistance of counsel claim, appellant must show that counsel’s performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record reflects that two separate multiple bills of information were filed by the State. The first multiple bill was filed on October 18, 2007 after the defendant was originally sentenced. Subsequently, an amended multiple bill of information was filed which alleged that the defendant had two prior convictions for possession of cocaine in 1996 and 2003 (cases 382-191 and 433-139), and a prior conviction for possession of heroin and possession of marijuana in 2003 (case 433-574). At the multiple bill hearing, the State was unable to prove the defendant’s identity in case number 382-191. Therefore, he was adjudicated a third felony offender rather than a fourth felony offender.

Nevertheless, the appellant urges that he was induced to proceed with the multiple bill hearing on August 1, 2008, because the district court misled him as to the sentencing range for a third felony offender.

The bill of information shows that the defendant was alleged to have distributed cocaine on March 18, 2005. In 2005, La. R.S. 15:529.1(A) provided that if the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. The maximum sentence for distribution is thirty years; therefore, the appellant herein faced a sentencing range of between twenty and sixty years as a third felony offender.

The transcript of the multiple bill hearing reflects that as a third felony offender, the district court informed the defendant that the sentencing range was Infrom twenty years to life, and that it intended to sentence him to twenty years. Although the court misinformed the defendant by telling him he could receive a life sentence, it correctly informed him that twenty years was the minimum sentence he faced, which turned out to be the sentence he received. Moreover, the record suggests a likelihood that the defendant was induced to proceed when it became apparent that the State would not be able to prove his status as a fourth felony offender because it would be unable to prove his identity in case number 382-191. The record reflects that the court at that point cautioned the defendant that if he chose to continue the hearing to another day, the State would probably find the necessary paperwork to prove his status as a fourth felony offender. The court then informed the defendant that, in that event, he would be facing a minimum sentence of thirty years. It was then that Mr. Denson chose to proceed with the hearing. Under these circumstances, the appellant has not demonstrated that he was induced into proceeding with the multiple bill hearing by misinformation provided by the trial court; nor has he demonstrated that his counsel was constitutionally ineffective.

Finally, the appellant argues that it was an abuse of the district attorney’s discretion to multiple bill him based solely on drug offenses because he is a drug addict. He urges that La. R.S. 15:529.1 as applied to recidivists whose predicate offenses were the direct result of drug addiction violates the constitutional ban on cruel and unusual punishment, citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

In Robinson, the defendant was convicted of violating a statute that made it a criminal offense to be addicted to the use of narcotics. The Court acknowledged that a state has the broad power to regulate narcotic traffic within its borders, [^including imposing criminal sanctions against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics. However, after noting that addiction is an illness, the Court held that a state law such as the one in California which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the state or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.

Unlike in Robinson, the appellant herein was not punished for his status as a drug addict. He was punished for distributing cocaine and having prior convictions for possession of cocaine, second offender marijuana possession, and possession of heroin. The Louisiana Supreme Court has repeatedly held that La. R.S. 15:529.1 is not unconstitutional on its face. See State v. Dorthey, 623 So.2d 1276, 1279 (La.1993). Moreover, the minimum sentences imposed by the statute are presumed not to be excessive. State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527. Thus, we conclude that the State did not abuse its broad discretion by filing a multiple bill against the appellant, and that appellant’s counsel should not be deemed ineffective for failing to object to the filing of the multiple bill.

CONCLUSION

For the reasons stated, we affirm the appellant’s conviction and sentence.

AFFIRMED

      . The minute entry of the arraignment is not in the record.

      . Though the minute entry of trial shows that the district court found appellant guilty of possession with intent to distribute cocaine, the trial transcript reflects that it found him guilty of distribution.

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

      . A defendant is to be tried under the statute in effect at the time of the commission of the crime. State v. Barris, 533 So.2d 89, 90 (La.App. 4 Cir.1988).