author: PETTIGREW, J.

text:
    Maxine Hughes DICKENS v. LOUISIANA CORRECTIONAL INSTITUTE FOR WOMEN, State of Louisiana.
    No. 2011 CA 0176.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      Richard L. Greenland, Covington, LA, for Plaintiff-Appellant Marine Hughes Dickens.
    James D. “Buddy” Caldwell, Attorney General, Valencia J. Vessel, Assistant Attorney General, Baton Rouge, LA, for Defendant-Appellee State of Louisiana through the Department of Public Safety and Corrections.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

| ¿This is an appeal from the Eighteenth Judicial District Court’s judgment sustaining defendant’s exception raising the objection of lack of subject matter jurisdiction and dismissing, with prejudice, plaintiffs claim. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Maxine Hughes Dickens, an inmate at the Louisiana Correctional Institute for Women in St. Gabriel, Louisiana (“LCIW”), filed a petition seeking damages for personal injuries she allegedly sustained on June 4, 2008, when she slipped and fell while serving handicapped trays in the kitchen of LCIW. In response to plaintiffs claims, the State of Louisiana, through LCIW, filed an exception raising the objection of lack of subject matter jurisdiction and, alternatively, a motion to dismiss. The State argued that because plaintiff had not exhausted her administrative remedies, the provisions of La. R.S. 15:1171, et seq., the Corrections Administrative Remedy Procedure (“CARP”), required that her claims be dismissed with prejudice. In support of the exception, the State submitted the affidavit of Rhonda Z. Weldon, a paralegal employed by the Department of Public Safety and Corrections, who indicated as follows: “After a review of the entire administrative proceedings, as maintained in the normal course of business by the Department of Public Safety and Corrections, she was unable to locate an ADMINISTRATIVE REMEDY PROCEDURE filed by Plaintiff, MAXINE HUGHES DICKENS, DOC # 111604.” Acknowledging plaintiffs argument that she had initiated an administrative remedy request through previous correspondence with LCIW staff but was denied, the State also submitted copies of three letters from plaintiff to LCIW staff concerning the June 4, 2008 incident. The State maintained that because these letters did not contain the phrase “This is a request for administrative remedy,” the letters did not qualify as a request for administrative remedies. The State also submitted a copy of a letter dated October 3, 2008, to plaintiff from “A.W. C.Moore” wherein plaintiff was advised as follows: “I have spoken to your provider and to the kitchen staff. There is no reason to change your job.” The final exhibit introduced by the State was a document bearing plaintiffs signature dated August 12, 2003, indicating that on said date, plaintiff |swas issued a copy of the “Lost Property Claim/Administrative Remedy Procedure” rules by LCIW staff. The State asserts this evidences plaintiffs knowledge of CARP.

Plaintiff filed an opposition to the State’s exception, arguing that her “written correspondence to the warden, assistant warden and others [satisfied] her duty to initiate the administrative remedy procedure available to her.” Plaintiff further alleged that the “fact that the State and [LCIW] failed to pursue the administrative remedy available to [her] by way of hearing or other procedures or remedies” should not be held against her because the State “failed to [properly] advise [her] of her duty to follow the provisions as set forth in [La. R.S.] 15:1171 et seq.”

The matter proceeded to a hearing before the trial court on November 9, 2009, at which time the trial court heard arguments from both sides. The trial court sustained the State’s exception raising the objection of lack of subject matter jurisdiction, dismissed plaintiffs claim with prejudice, and signed a judgment accordingly. The plaintiff subsequently filed a motion for rehearing on the exceptions, which was granted by the trial court. Following a second hearing on April 14, 2010, the trial court again sustained the State’s lack of subject matter jurisdiction exception, dismissing plaintiffs claim with prejudice. In oral reasons for judgment, the trial court stated as follows:

I have no indication as to ... [plaintiffs] educational background here. However, I have been able to observe her in Court and she appears to be a very intelligent person. By no means is she a dumb person. By no means does she appear to suffer from any learning disability that I can detect just talking to her here in Court. She’s sitting in a facility serving time for whatever.... I don’t know how long, but I know it is long enough to read that Administrative Procedure Handbook. I read that just now in a matter of seconds. And, it’s very clear. Any request for administrative proceeding shall contain this phrase. It has to be there.... You have to say that, I am requesting an Administrative Procedure Remedy or however they say it. But, it’s in there. You had a copy of it, didn’t you? Did you not have a copy of the book? ... And, I think that the letter of the law has to be followed in order for you to prevail in this matter.... Must as any other person who comes in this court has to follow the law, so do you. And, that’s just the way it goes. So, I don’t find that the request for administrative remedy procedure is done in proper form. I can’t even say based on the letter that’s what it’s a request for. It basically says, I was hurt, I need a new job, you know. That’s basically what I read right there. So, I can’t say that just from the letter it’s a specific request for an ARP. So, that being the case, I don’t find that the procedure was properly followed in this case, which is inappropriate in this case.

|4The trial court signed a judgment in accordance with its findings on May 12, 2010. It is from this judgment that plaintiff has appealed, arguing that the trial court erred in sustaining the State’s exception raising the objection of lack of subject matter jurisdiction and dismissing her claim with prejudice.

SUBJECT MATTER JURISDICTION

Jurisdiction is the legal power and authority of a court to hear and determine an action of the parties and to grant the relief to which they are entitled. La.Code Civ. P. art. 1. Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute or the value of the right asserted. La.Code Civ. P. art. 2. The issue of subject matter jurisdiction addresses the court’s authority to adjudicate the cause before it. The issue may be raised at any time and at any stage of an action. McPherson v. Foster, 2003-2696, p. 8 (La. App. 1 Cir. 10/29/04), 889 So.2d 282, 288. If a lack of subject matter jurisdiction is not apparent on the face of the plaintiffs petition, then the onus is on the defendant to offer evidence in support of the exception. La.Code Civ. P. art. 930; Crockett v. State Through Dept. of Public Safety and Corrections, 97-2528, p. 5 (La.App. 1 Cir. 11/6/98), 721 So.2d 1081, 1084, writ denied, 98-2997 (La.1/29/99), 736 So.2d 838.

DISCUSSION

At the outset, we note that the majority of plaintiffs appeal brief focuses on whether the provisions of CARP are constitutional pursuant to the holding of Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, whether the Louisiana Legislature properly amended CARP so as to remove all of the constitutional problems, and whether the provisions of CARP effectively shorten the prescriptive period for tort claims by inmates from a period of one year to ninety days. However, the challenge to the constitutionality of CARP is first raised by plaintiff on appeal. The constitutionality of a statute must first be questioned in the trial court and must be specifically pled. Willows v. State, Dept. of Health & Hospitals, 2008-2357, p. 10 (La.5/5/09), 15 So.3d 56, 63. Hence, the | .^constitutionality of CARP is not an issue before us in this review. Rochon v. Young, 2008-1349, p. 4 (La.App. 1 Cir. 2/13/09), 6 So.3d 890, 892, writ denied, 2009-0745 (La.1/29/10), 25 So.3d 824, cert. dismissed, — U.S. -, 130 S.Ct. 3325, 176 L.Ed.2d 1216 (2010).

Thus, the only viable argument that plaintiff is left with on appeal is that her letters to LCIW staff constituted sufficient notice such that she complied with the administrative remedy procedures set forth in CARP. Louisiana Revised Statutes 15:1172 provides, in relevant part:

B. (1) An offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained.
(3) The department is authorized to establish deadlines for the procedures and processes contained in the administrative remedy procedure provided in LAC 22:1.325.
C. If an offender fails to timely initiate or pursue his administrative remedies within the deadlines established in Subsection B of this Section, his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.

Section 325 of Title 22, Part I of the Louisiana Administrative Code, outlines the rules and procedures to be followed in formally addressing inmate complaints in adult institutions in Louisiana. The Code requires inmates to use the procedure set forth | ^therein, the two-step ARP, before they can proceed with a suit in federal or state court. LAC 22:I.325(A)(1). With regard to the procedure for filing an ARP, LAC 22:I.325(F) provides, in pertinent part, as follows:

2. Initiation of Process. Inmates should always try to resolve their problems within the institution informally, before initiating the formal process. This informal resolution may be accomplished through discussions with staff members, etc. If the inmate is unable to resolve his problems or obtain relief in this fashion, he may initiate the formal process.
a. The method by which this process is initiated is by a letter from the inmate to the warden. For purposes of this process, a letter is:
i. any form of written communication which contains this phrase:
“This is a request for administrative remedy;” or
ii. Form ARP-1 at those institutions that wish to furnish forms for commencement of this process.
b. No request for administrative remedy shall be denied acceptance into the administrative remedy procedure because it is or is not on a form; however, no letter as set forth above shall be accepted into the process unless it contains the phrase:
“This is a request for administrative remedy.”

In the instant case, plaintiff maintains on appeal that she “filed a complaint and notified the proper authorities within the time supplied and complied with all the other provisions of the statute with the exception that she did not state verbatim in her letters that ‘this is a request for Administrative Remedy Procedure’.” As further support for her position, plaintiff refers to her testimony at the April 14, 2010 rehearing before the trial court. During her testimony, plaintiff acknowledged that while she did not include the phrase “this is a request for Administrative Remedy Procedure” in her letters, she did clearly write “ARP” on the outside of all of the envelopes in which the letters were delivered. When asked why she would have done so, plaintiff replied, “Because I’m asking for Administrative Remedy Relief.”

|7On cross examination, the following exchange took place between plaintiff and counsel for the State:

Q. ... [A]t the last hearing the State submitted into evidence “Exhibits A through C”. That’s actually the affidavit from Wanda Weldon stating that no Administrative Remedy Procedure had been submitted ... from [plaintiff]. We also have ... “Exhibit B” which are the actual correspondences that [plaintiff] submitted to LCIW during this time.... And here is also “Exhibit C” which is [plaintiffs] signature dated August 12, 2003, which states that she actually did receive the Administrative Remedy Procedure guidelines stating ... what she had to do in this instance. And, if you recall ... in these guidelines it’s stated that your correspondence had to be written to the warden of the prison; is that correct?
A. Yes.
Q. Okay. Can you look in this exhibit and tell me who your letters had been written to?
A. Assistant Warden Moore, Warden— Ms. McWilliams, she is over the infirmary, and Warden Leger.
Q. Okay, correct. So, also in your administrative procedure guidelines, it states that ... your letters should contain the phrase, “this is a request for Administrative Remedy Procedure.” Is that phrase anywhere in the letters that you wrote?
A. My letters are clearly asking—
Q. Can you look in here, ma’am, and tell me if that phrase is in those letters?
A. I don’t think that phrase is in the letters.

Our review of the record and the statutes setting forth the procedures for obtaining administrative remedy indicates that the trial court was correct in sustaining the State’s exception raising the objection of lack of subject matter jurisdiction and dismissing plaintiffs claim. The statutes governing administrative remedies clearly require a properly captioned letter or a letter at least containing the introductory phrase explaining the reason for the letter, “This is a request for administrative remedy.” A letter to the warden is the proper vehicle to obtain administrative remedy, but the letter must be timely, and it must contain the required statutory phrase. None of plaintiffs letters to LCIW staff meet the criteria mandated by the applicable statutes. As previously stated, plaintiff admitted that the letters she wrote following the June 4, 2008 incident did not include the required phrase “This is a request for administrative remedy.” Accordingly, the record is 18devoid of any administrative review or decision. Because plaintiff failed to exhaust her administrative remedies prior to filing suit, the trial court lacked subject matter jurisdiction to consider her claim. Walker, 2009-0821 at 4, 29 So.3d at 577.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s judgment sustaining the State’s exception raising the objection of lack of subject matter jurisdiction and dismissing plaintiffs claim with prejudice. All costs associated with this appeal are assessed against plaintiff, Maxine Hughes Dickens.

AFFIRMED.

      . While the constitutionality of CARP is not properly before us for review, we feel compelled to point out that plaintiffs arguments on these issues ignore the legislature's amendment to CARP subsequent to the Pope decision. In Pope, the court held that certain provisions of CARP were unconstitutional to the extent that they divested the district courts of original jurisdiction over tort actions filed by inmates against the Department of Public Safety and Corrections and its employees. Pope, 99-2559 at 13, 792 So.2d at 721. The unlawful provisions essentially allowed the Department of Public Safety and Corrections to adjudicate its own delictual liability in tort actions, and required the district courts to give manifest error deference to such adjudications. Id. Subsequent to Pope, the legislature amended portions of CARP by 2002 La. Acts No. 89 § 2, effective April 18, 2002. As part of the new procedure enacted, an offender is required to initiate administrative remedies for delictual actions within 90 days of the date of injury or damage. If initiation is untimely, the delictual claim is considered abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. La. R.S. 15:1172. Moreover, once an administrative decision regarding a delictual action is rendered, the prisoner then has the right to file his claim as an original civil action in district court. La. R.S. 15:1177(C). Walker v. Appurao, 2009-0821, p. 3 n. 2 (La. App. 1 Cir. 10/23/09), 29 So.3d 575, 577 n. 2, writ denied, 2009-2822 (La.3/5/10), 28 So.3d 1010. We also pretermit any discussion of whether the provisions of CARP unconstitutionally reduce an inmate’s liberative prescriptive period for tort actions from one year to ninety days as compared to other persons seeking a. tort remedy, as that issue is not properly before us for review.

      . Effective April 20, 2002, the DPSC promulgated a new adult ARP that utilizes a two-step system of review, rather than the three-step review formerly used. LAC 22:1.325(G); Edwards v. Bunch, 20071421, p. 5 n. 4 (La.App. 1 Cir. 3/26/08), 985 So.2d 149, 153 n. 4.

      . The envelopes do not appear in the record before us.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    Roosevelt McQUIRTER & John Hayes v. Robert ROTOLO, MICOR Communications Baton Rouge Inc., and XYZ Insurance Company.
    No. 2011 CA 0188.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      Dana B. Brown, Kris A. Perret, Baton Rouge, LA, for Plaintiffs-Appellees Roosevelt McQuirter and John Hayes.
    John Christopher Alexander, Sr., Baton Rouge, LA, for Defendant-Appellee Micor Communications, Inc.
    Brian K. Abels, Mark D. Boyer, Denham Springs, LA, for Defendant-Appellant Cox Communications Louisiana, L.L.C.
    Jay Russell Sever, Karl H. Schmid, Jennifer M. Morris, New Orleans, LA, for Defendant-Appellee Scottsdale Insurance Company.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

12This appeal considers whether insurance coverage is provided under the terms of a commercial general liability (“CGL”) policy for a claim advanced by an “additional insured,” where coverage is afforded for “contractual liability” that is “assumed” in an “insured contract,” but coverage is excluded if “‘bodily injury’ or ‘property damage’ ” arise out of the use of an auto owned or operated by an insured under the “aircraft, auto or watercraft” exclusion. The trial court granted summary judgment in favor of defendant-appellee, Scottsdale Insurance Company (“Scottsdale”) and against cross-claimant, Cox Communications Louisiana, L.L.C. (“Cox”). We amend the judgment to expressly provide that Cox’s cross-claim against Scottsdale is dismissed and, as amended, we affirm the judgment.

I. PROCEDURAL AND FACTUAL BACKGROUND

As alleged in their petition, plaintiffs, Roosevelt McQuirter and John Hayes, were injured in an automobile accident that occurred on October 11, 2004. While the vehicle that plaintiffs occupied was stopped at an intersection controlled by a red light traffic signal, it was struck in the rear by a vehicle driven by Robert Rotolo. In 2005, plaintiffs filed suit against defendants, Rotolo, MICOR Communications, Inc. (“Micor”), Scottsdale, and Cox Communications Louisiana, L.L.C. (“Cox”). Plaintiffs alleged that their injuries were caused by the sole negligence or fault of Rotolo’s failure to stop, failure to maintain control, and his inattention. The petition further alleged that Rotolo was Micor’s agent and employee, who was acting in the course and scope of his employment when the ^accident occurred. Plaintiffs also alleged that Scottsdale had a CGL policy in favor of Micor that insured against Roto-lo’s negligent acts, and that Micor and Rotolo were acting as agents of Cox and within the course and scope of their employment with Cox.

Micor answered the petition, generally denying plaintiffs’ claims, and filed its own motion for summary judgment, wherein Micor asserted that it had no liability for the alleged negligent conduct of Rotolo. Cox also answered the petition, denying most of plaintiffs’ allegations, but admitting those allegations that asserted Rotolo was in the course and scope of his employment with Micor when the accident occurred and that the Scottsdale policy insured Micor against the negligent acts of Rotolo.

In January 2010, Scottsdale filed a motion for summary judgment, wherein it asserted that the policy issued to Micor contained an “aircraft, auto or watercraft exclusion” (the “auto exclusion”) that precluded coverage for “‘bodily injury or ‘property damage’ arising out of the ownership, maintenance, use ... of any ‘auto’ ... owned or operated by ... any insured.” Thus, Scottsdale maintained that the terms of the policy excluded coverage for plaintiffs’ injuries and sought a judgment that dismissed plaintiffs’ claims against it with prejudice. On July 19, 2010, the trial court granted. Scottsdale’s motion for summary judgment, ruling that the Scottsdale policy issued to Micor for the period August 5, 2004 to August 5, 2005, provided no coverage for the claims brought by plaintiffs “because such are precluded under the policy’s ... [a] uto [ejxclusion....”

|4In June 2010, Cox filed a cross-claim against both Micor and Scottsdale, asserting that Cox was entitled to a defense and indemnity from Micor based on the terms of a December 15, 2003 installation and repair agreement. Pursuant to this agreement, Micor, as “contractor,” agreed to perform the “installation and/or repair of equipment for the reception of cable and telecommunications services” for Cox. Based on the indemnification provision of this agreement, Cox alleged that Micor owes a defense and indemnification to Cox for the claims asserted against it in the main demand. Cox alleged that the Scottsdale policy, which insured MICOR, as the “named insured,” and Cox, as an “additional insured” provided coverage for an “insured contract.” Cox alleged that: 1) the installation and repair agreement qualified as an “insured contract” under the policy terms, and 2) coverage is provided to Cox under the “insured contract” exception from the “contractual liability” exclusion. Cox prayed for judgment in its favor against both Micor and Scottsdale “for defense and full indemnification,” including attorney fees and all court costs, together with legal interest from date of judicial demand until paid.

lfiIn response, Scottsdale filed a motion for summary judgment, seeking the dismissal of the claim asserted against it in Cox’s cross-claim. Scottsdale urged that the “auto exclusion” contained within its policy precluded coverage for Cox’s claim for defense and indemnification, because the alleged liability arose out of the use of an automobile by Rotolo, an “insured” under the policy based on the allegations of plaintiffs’ petition.

In its opposition memorandum, Cox contends that although plaintiffs’ claims may be excluded by the “auto exclusion,” Cox’s claims against Micor based on Cox’s “insured contract” are not excluded, and thus Scottsdale is liable to Cox for defense and indemnification.

Following a hearing on the matter, the trial court signed an October 15, 2010 judgment in favor of Scottsdale, which granted its motion for summary judgment seeking the dismissal of Cox’s cross-claim. The judgment further states, in pertinent part:

The claims brought by [Cox] are precluded by the application of the [“auto exclusion”] in the [CGL] insurance policy issued by [Scottsdale] to [Micor]. The underlying claims against [Cox] brought by [plaintiffs] specifically allege facts which, even if proven true, would result in liability that is specifically and unambiguously precluded by the [auto exclusion.]
... [T]he parties will bear their respective attorney’s fees and costs....

Cox has appealed, asserting that the trial court erred by interpreting the Scottsdale policy to exclude coverage for the claims asserted in its cross-claim against Micor.

I aII. ANALYSIS

The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though granting of the summary judgment does not dispose of the entire case. La. C.C.P. art. 966(E); North American Treatment Systems, Inc. v. Scottsdale Ins. Co., 05-0081, p. 19 (La.App. 1st Cir.08/23/06), 943 So.2d 429, 442-43, writs denied, 06-2918 & 06-2803 (La.2/16/07), 949 So.2d 423 & 424. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137.

Our supreme court recently addressed the insurer’s duty to defend in Arceneaux v. Amstar Corp., 10-2329, p. 9 (La.7/1/11), 66 So.3d 438:

As explained in Yount v. Maisano, 627 So.2d 148, 153 (La.1993), “the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims.” “The insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage.” “Thus, if assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit.” The allegations of the petition are 17liberally construed to determine whether they set forth grounds which bring the claim within the insurer’s duty to defend. [Citations omitted.]

The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the “eight-corners rule,” under which an insurer must look to the “four corners” of the plaintiffs petition and the “four corners” of its policy to determine whether it owes that duty. Henly v. Phillips Abita Lumber Co., 06-1856, p. 5 (La.App. 1st Cir.10/3/07), 971 So.2d 1104, 1109.

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Henly, 06-1856 at p. 4, 971 So.2d at 1108. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

An insurer has the burden of proving that a loss comes within a policy exclusion. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1252 (La.1993). Additionally, exclusionary clauses in an insurance policy are strictly construed. Calogero v. Safeway Insurance Company of Louisiana, 99-1625, p. 6 (La.1/19/00), 753 So.2d 170, 173. This strict construction principle applies, however, only if the ambiguous |spolicy 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. Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 9 (La.5/22/07), 956 So.2d 583, 590. If the wording of the policy is clear and expresses the parties’ intent, the policy must be enforced as written. This rule is applicable even to policy provisions that limit the insurer’s liability or place restrictions on policy obligations, unless the provision conflicts with statutes or public policy. Anderson v. State Farm Fire & Cas. Ins. Co., 10-0036, p. 7 (La.App. 1st Cir.7/16/10), 42 So.3d 1140, 1145.

The determination of whether a contract is clear or ambiguous is a question of law. Moreover, when a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Sims, 07-0054 at pp. 9-10, 956 So.2d at 590. An insurance policy, including its exclusions, should not be interpreted in an unreasonable or 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. North American Treatment Systems, Inc., 05-0081 at p. 20, 943 So.2d at 443. If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. The court should not strain to find ambiguity where none exists. Ramho v. Walker, 97-2371, p. 5 (La.App. 1st Cir.11/6/98), 722 So.2d 86, 89, writ denied, 98-3030 (La.1/29/99), 736 So.2d 840.

loThe pertinent provisions of Scottsdale’s CGL policy provides coverage as follows:

SECTION 1 — COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any ‘suit’ seeking damages for “bodily injury” or property damage’ to which this insurance does not apply. ...
2. Exclusions
This insurance does not apply to:
b. Contractual Liability
“Bodily injury” or “property damage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
(2) Assumed in a contract or agreement that is an “insured contract”, provided the “bodily injury” or “property damage” occurs subsequent to the execution of the contract or agreement ....
g. Aircraft, Auto Or Watercraft
“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or [inloaned to any insured. Use includes operation and “loading or unloading”.
This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the “occurrence” which caused the “bodily injury” or “property damage” involved the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft that is owned or operated by or rented or loaned to any insured.
This exclusion does not apply to:
(1) A watercraft while ashore on premises you own or rent;
(2) A watercraft you do not own that is:
(a) Less than 26 feet long; and
(b) Not being used to carry person or property for a charge;
(3) Parking an “auto” on, or on the ways next to, premises you own or rent, provided the “auto” is not owned by or rented or loaned to you or the insured;
(4) Liability assumed under any “insured contract” for the ownership, maintenance or use of aircraft or watercraft; or
(5) “Bodily injury” or “property damage” arising out of the operation of ... [cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers] or [air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment.].
SECTION II — WHO IS AN INSURED
1. If you are designated in the Declarations as:
d. An organization other than a partnership, joint venture or limited liability company, you are an insured....
2. Each of the following is also an insured:
lna. ... your “employees”....

According to the petition, Rotolo acted in the course and scope of his employment with Micor. Assuming this fact is true, Rotolo, as an employee of Micor, was “an insured” under the policy. Further, Cox and Scottsdale do not dispute that the accident at issue arose out of Rotolo’s “use” of a vehicle. On appeal, Cox takes the position that “although plaintiffs’ claims may be excluded by the policy, Cox’s claims against MICOR are not [excluded], and thus Scottsdale is liable to Cox for defense and indemnification.” Cox urges that “the policy provides coverage for an ‘insured contract,’ excepting insured contracts from the contractual liability exclusion of the policy.” Cox asserts that the installation and repair agreement constitutes an “insured contract.” Alternatively, Cox argues that the Scottsdale policy is ambiguous, and that the policy language should be construed in its favor.

Scottsdale maintains on appeal that the exception providing coverage for “insured contracts” does not resurrect coverage for a claim that is not covered based on the auto exclusion. Scottsdale urges that the exception clearly applies only to the contractual liability exclusion, and the exception “does not ‘create’ coverage.”

Assuming that the contractual indemnity exclusion does not bar coverage in the instant case based on the terms of the installation and repair agreement, we conclude that the policy clearly excludes coverage for Cox’s claims based on the broad wording of the “auto exclusion.” Although Cox’s cross-claim seeks | ^indemnification from Scottsdale, the cross-claim arises out of the plaintiffs’ claims for injuries sustained in the October 2004 automobile accident. The automobile exclusion is unambiguous and operates to broadly bar coverage for bodily injury or property damage “arising out of the ... use ... of any ... ‘auto’ ... operated by ... any insured.” Reading the policy as a whole, the contractual indemnity exclusion has no bearing on the interpretation or the application of the automobile liability exclusion. The policy is not made ambiguous simply because the contractual indemnity exclusion does not apply to the facts presented. The result is logical and equitable, as most exclusions from insurance policies are designed to eliminate risks which should be covered under other policies. William Shelby McKenzie and H. Alston Johnson, III, Louisiana Civil Law Treatise: Insurance Law and Practice, Vol. 15, § 188, p. 525 (3rd Ed.2006). The risk associated with the operation of automobiles is such a risk that was not intended to be covered by a CGL policy. The unambiguous exclusion imposes a reasonable limitation on the policy and must be given effect. See Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 6 (La.5/22/07), 958 So.2d 634, 639. The wording of the exception set forth in paragraph 4 of the auto exclusion additionally supports our conclusion that the parties intended to exclude coverage for bodily injury or property damages “arising out of the ... use ... of any ... ‘auto’ ... operated by ... any insured.” This exception provides that the auto exclusion does not apply to liability assumed under an “insured contract” for the use of an “aircraft” or a “watercraft.” Noticeably, this exception does not reference an “auto.”

| laThus, we conclude that Scottsdale met its burden of proving that the claims at issue fall within the auto exclusion. This exclusion does not conflict with any relevant statutes or public policy and, as such, it is enforceable. The trial court correctly determined that Scottsdale was entitled to judgment in its favor as a matter of law.

III. CONCLUSION

For these reasons, we affirm the trial court’s October 15, 2010 summary judgment in favor of Scottsdale and against Cox. We amend the judgment to expressly provide that Cox’s cross-claim against Scottsdale is dismissed and, as amended, we affirm the judgment. Appeal costs are assessed against Cox.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Scottsdale was initially identified as XYZ insurance Company and was later identified in an amending and supplemental petition. Cox was named as a defendant in plaintiffs' first supplemental and amending petition for damages.

      . Plaintiffs alleged that the Scottsdale insurance policy inured to their benefit under Louisiana's Direct Action Statute, La. R.S. 22:1269.

      . This judgment is not on review in this appeal.

      .The "INDEMNITY” provision of this agreement states as follows, in pertinent part:
      [Micor] shall indemnify, defend and hold harmless Cox ... from any and all claims, liabilities, demands, losses, costs ..., expenses and liabilities of any nature whatsoever in connection with or resulting from [Micor’s] or [Micor's] Personnel’s acts or omissions, the fulfillment of [Micor's] obligations ... and/or the breach of any Applicable Laws by [Micor] or its Personnel. [Micor] shall cooperate in the defense of any claims for which indemnification is available and shall furnish such records, information, and testimony and attend such conferences, discovery, proceedings, hearings, trials, and appeals, as may be requested by Cox.

      . The "additional insured" endorsement lists Cox in the “Schedule” as an "Additional Insured” organization, and further states, "WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations.... ”

      . Rotolo's alleged conduct of driving an automobile and colliding into the rear of the vehicle occupied by plaintiffs is essential to plaintiffs' theory of liability and the duty allegedly breached by him flows from his “use” of the automobile. Edwards v. Horstman, 96-1403, p. 7 (La.2/25/97), 687 So.2d 1007, 1012.


author: McClendon, j. WELCH, J.,

text:
    Lewis F. JUREY v. Harry T. KEMP, Dallas & Mavis Specialized Carrier Co., L.L.C., Great American Insurance Company, Liberty Mutual Fire Insurance Company and State Farm Mutual Automobile Insurance Company. Clarence E. Jurey & Dorothy B. Jurey v. Harry T. Kemp, Dallas & Mavis Specialized Carrier Co., L.L.C, Great American Insurance Company, Liberty Mutual Fire Insurance Company and State Farm Mutual Automobile Insurance Company.
    Nos. 2011 CA 0142, 2011 CA 0143.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2011.

      James F. Ledford, Baton Rouge, LA, for Plaintiffs/3rd Appellants Clarence E. Ju-rey & Dorothy B. Jurey.
    Robert T. Myers, Metairie, LA, for Defendant/Appellee Harry T. Kemp.
    Nelson W. Wagar, III, Sarah Ney, Me-tairie, LA, for Defendant/1 st Appellant Great American Insurance Co.
    Charles A. Schutte, Jr., Keith S. Giardi-na, Baton Rouge, LA, for Defendants/Ap-pellees Dallas & Mavis Specialized Carrier, L.L.C. & Liberty Mutual Fire Insurance Co.
    John T. Roethele, Denham Springs, LA, for Defendant/Appellee State Farm Mutual Automobile Insurance Co.
    Karl E. Krousel, Baton Rouge, LA, for Plaintifi/2nd Appellant Lewis F. Jurey.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McClendon, j.

|3This is an appeal from the granting of and denial of motions for summary judgment on the issue of insurance coverage. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 17, 2008, an automobile accident occurred between a 2002 Lincoln Town Car being driven by Lewis Jurey, one of the plaintiffs, and a 2001 Peterbilt Tractor, which was pulling a 50' flatbed trailer, being driven by Harry T. Kemp, a named defendant. At the time of the accident, Kemp was leaving Baker Metal Works where he had just picked up the flatbed trailer.

Kemp was an independent contractor with Dallas & Mavis Specialized Carrier Co., LLC (D & M). D & M, through a policy issued by Liberty Mutual Fire Insurance Company (Liberty Mutual), maintained coverage for the operation of the tractor while Kemp was engaged in performing transportation services for D & M. As an independent contractor, Kemp was responsible for maintaining non-trucking liability (“bobtail”) insurance for operation of the equipment outside the scope of performing transportation services for D & M. The Great American Insurance Company (Great American) provided Kemp “bobtail” coverage.

In consolidated actions, Lewis Jurey and his guest passengers, Clarence Jurey and Dorothy Jurey, filed suit, alleging that they sustained bodily injuries in the accident. They named Kemp, D & M, Liberty Mutual, and Great American, among others, as defendants.

Thereafter, Liberty Mutual filed a motion for declaratory relief, or in the alternative, a motion for summary judgment, asserting that its policy did not provide coverage because Kemp was not engaged in performing transportation services for D & M and that the bobtail policy issued by Great American should apply. D & M also filed a motion for summary judgment, asserting that Kemp was not in the course and scope of his employment at the time of the accident, and, |4as such, D & M was not vicariously liable for Kemp’s negligence. In response, Great American filed a cross-motion for summary judgment, alleging that Kemp was involved in transportation services for D & M at the time of the accident such that the policy issued by Liberty Mutual, rather than its “bobtail” policy, provided coverage for the accident.

Following a hearing, the trial court granted the motions for summary judgment filed by Liberty Mutual and D & M, and denied the cross-motions filed by Great American. In so ruling, the trial court indicated that Kemp was “not making a haul for [D & M]” nor was he “on duty or under any dispatch” at the time of the accident, but rather was “on his own time.” The trial court further indicated that this accident is “exactly what the bobtail [policy issued by Great American] is required to cover and what it’s intended to cover.”

Great American and plaintiffs (hereinafter collectively referred to as “Great American”) have appealed, assigning the following errors:

A. The Trial Court erred in granting summary judgment in favor of Liberty Mutual Fire [Insurance] Company on the basis that Kemp was not involved in transportation duties at the time of the Accident.
B. The Trial Court erred in denying summary judgment in favor of Great American Insurance Company.
C. The Trial Court erred in concluding that Great American Insurance Company, and not Liberty Mutual Fire [Insurance] Company, provides liability insurance with respect to the Accident in light of the numerous genuine issues of material fact.

DISCUSSION

Liberty Mutual issued an insurance policy (number AI2-791-001377-107) to Transport Industries, L.P., and pursuant to a Named Insured Endorsement, added D & M to Item 1 of the Declarations as a named insured. The Liberty Mutual policy providing coverage to D & M provides, in pertinent part:

1. Who is An Insured
|sThe following are “insureds”:
a. You for any covered “auto”.
b. Anyone else while using with your express or implied permission a covered “auto” you own, hire or borrow, except:
(1) The owner, or any “employee”, agent or driver of the owner, or anyone else from whom you hire or borrow a covered “auto”.
(2) Your “employee” or agent if the covered “auto” is owned by that “employee” or agent or a member of his or her household.
* * *
c. The owner or anyone else from whom you hire or borrow a covered “auto” that is a “trailer” while the “trailer” is connected to another covered “auto” that is a power unit, or, if not connected, is being used exclusively in your business.
d. The lessor of a covered “auto” that is not a “trailer” or any “employee”, agent, or driver of the lessor while the “auto” is leased to you under a written agreement if the written agreement does not require the lessor to hold you harmless and then only when the leased “auto” is used in your business as a “motor carrier” for hire.
e. Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.

At the time of the accident, the parties do not dispute that Kemp’s tractor was leased to D & M pursuant to a lease agreement between the parties. The parties, however, disagree as to whether the flatbed trailer was included in the lease. Even assuming that the trailer was part of the lease, in order for the Liberty Mutual policy to provide coverage, subsection (c) referenced above requires that the trailer must be connected to a “covered auto.” Therefore, in determining whether Liberty Mutual afforded coverage for the accident at issue, the initial inquiry is whether the tractor was a “covered auto” — i.e., whether Kemp ^was using the tractor in D & M’s business as required under subsection (d) referenced above at the time of the accident.

The language in the policy requiring that the covered auto be “used in your business” is unambiguous. Although the application of the endorsement to these facts may pose difficult questions, the difficulty of the questions does not create an ambiguity. Mahaffey v. General Sec. Ins. Co., 543 F.3d 738, 741 (5th Cir.2008). Because the language is unambiguous, the issue is properly resolved as a matter of law on a motion for summary judgment. Id.

At the time of the accident, Kemp was off-duty and was not in the process of performing any transportation services for D & M when he decided to pick the trailer up from Baker Metal Works in order to free up space in the shop for Baker Metal Works’ owner. Kemp was not under D & M’s control or on standby for any deliveries and was free to go where he pleased. In addition, Kemp was not paid for his trip to or from Baker Metal Works and did not request or seek any reimbursement or payment in connection with this trip.

Appellants contend that at the time of the accident, however, Kemp was on a trip for the business of D & M because he was having requisite maintenance performed on the trailer. Appellants note that the lease agreement required Kemp to “maintain the Equipment in proper operating condition and in full compliance with applicable governmental regulations.” A few days prior to the accident, Kemp had taken the trailer to Baker Metal Works to have a door welded on the front, so it would be easier to access the wiring for the trailer’s lights and air lines for the trailer’s brakes. Baker Metal Works also replaced some of the decking boards on the trailer. Kemp testified that it was important for him to maintain his equipment pursuant to the terms of the lease and in order to 17maintain a good working relationship with D & M. Kemp concludes that Liberty Mutual’s policy provides coverage because he was maintaining the equipment in accord with the terms of the lease agreement as required by D & M.

Several pertinent cases have addressed whether an independent truck owner/lessor was “in the business of’ the motor carrierfiessee such that the liability insurance secured by a motor carrier/lessee, as opposed to the bobtail insurance secured by a truck owner/lessor, should apply. In LeBlanc v. Bailey, 97-0388 (La.App. 4 Cir. 10/1/97), 700 So.2d 1311, writ denied, 97-2988 (La.2/6/98), 709 So.2d 743, the fourth circuit found that an independent trucker’s drive home after completion of his deliveries for the day on behalf of the motor carrier/lessee was more of a personal nature rather than a work-related function such that bobtail insurance coverage, as opposed to the liability insurance secured by the motor carrier/lessee, was the primary policy that applied. In Mahaffey, 543 F.3d at 743, however, the federal court, applying Louisiana law, found that the bobtail insurance policy did not provide coverage where an independent truck driver had been asked to remain in the area of the motor carrier/lessee’s business to be available to pick up a load when one became available. See also Robinson v. Guillot, 07-1260 (La.App. 3 Cir. 4/30/08), 980 So.2d 906 (unpublished), writ denied, 08-1162 (La.9/19/08) 992 So.2d 943. However, we have found no Louisiana case specifically addressing the question of when having leased equipment serviced falls within the scope of the business of the carrier. Assuming, without deciding, that the trailer was included in the lease, we must determine as a matter of law whether Kemp’s trip to and from Baker | sMetal Works to have the work performed on the trailer constituted the business of D & M. The facts here are undisputed.

In this context, the proper inquiry is whether Kemp was acting within the scope of the lease agreement with D & M. See National Continental Ins. Co. v. Empire Fire & Marine Ins. Co., 157 F.3d 610, 612 (8th Cir.1998). To the extent that Kemp was executing his contractual duties, he would be acting “in the business of’ D & M. Id. We must therefore examine the terms of the lease to ascertain whether Kemp was fulfilling a contractual duty in having the work performed by Baker Metal Works.

The lease agreement required Kemp to “maintain the Equipment in proper operating condition and in full compliance with applicable governmental regulations.” Kemp acknowledged that adding the welded door to his trailer was not required by Department of Transportation (“DOT”) specifications or by D & M. He further indicated that the door provided no economic benefit to D & M, but rather was something he wanted to have done for his own benefit. Kemp also indicated that he chose to have some of the decking boards replaced, although the work was not required by DOT or by D & M. Nothing in the record explains how any of the work performed on the trailer furthered D & M’s business. Moreover, Kemp acknowledged that prior to the accident, D & M was unaware that he was having any work done to the trailer. In light of the foregoing, there is no showing that the improvements were required under the terms of the lease agreement between Kemp and D & M. Rather, it appears that these improvements were merely done for the convenience of the owner. Cf. Freed v. Travelers, 300 F.2d 395 (7th Cir.1962) InCwherein the carrier/lessee’s insurance policy applied when the independent truck driver was involved in an accident while bringing the vehicle to be serviced-when the lease agreement required the independent truck driver to maintain the tractor “in good running order and condition” and “hold (it) ready at all times for the services of the Lessee” and the carrier/lessee did not urge that the major repair to the rear of the tractor was not necessary to its continued operation) and National Continental Ins. Co., 157 F.3d 610 (wherein the carrier/lessee’s insurance policy applied when the service contract required the driver’s tractor pass periodic inspections and comply with federal standards such that driving the vehicle to a shop for a front end alignment between dispatch orders was “in the business of’ the earrier/lessee because the federal regulations required “[a]ll axles ... be in proper alignment”). Unlike the contrasted cases, under the terms of the lease agreement here, Kemp’s trip to Baker Metal Works was not undertaken in the business of the employer.

Appellants also urge that the Federal Motor Carrier Safety Act-90 Endorsement applies herein. See 49 U.S.C.A. § 13501, et seq. However, the endorsement only applies to interstate travel and does not apply to the intrastate trip at issue herein. See 49 U.S.C.A. § 13501, 1 and Branson v. MGA Ins. Co., Inc., 673 So.2d 89 (Fla.App. 5 Dist.), review denied, 680 So.2d 421 (Fla.1996).

CONCLUSION

In light of the foregoing, we conclude that the trial court did not err in granting summary judgment in favor of Liberty Mutual and denying summary judgment as to Great American. Therefore, we affirm the district court’s September 17, 2010 judgment. Costs of this appeal are assessed to The Great American Insurance Company.

AFFIRMED.

WELCH, J., dissent and assigns reasons.

WELCH, J.,

dissenting.

hi respectfully dissent. I believe that Kemp qualifies as an insured under an endorsement to the Liberty Mutual policy which expands the list of insured persons to include those who use any covered auto “by or for” the named insured. This endorsement is entitled “Hired Autos Specified as Covered Autos You Own,” and modifies the motor carrier coverage form. It modifies the schedule’s description of “auto” to include “any auto you lease, rent, or hire.” It also states that any auto described in the schedule will be considered a covered auto the insured owns and not a covered auto the insured hires. It further provides:

B. CHANGES IN LIABILITY COVERAGE:
The following is added to WHO IS AN INSURED:
While any covered “auto” described in the Schedule is rented or leased to you and is being used by or for you, its owner or anyone |2else from whom you rent or lease it is an “insured” but only for that covered “auto.”

For Kemp to be insured under this provision, the tractor he was driving at the time of the accident must be a “covered auto” that was leased to D & M. It is undisputed that the tractor was under lease to D & M at the time of the accident. Further, the schedule of covered autos contains two symbols designating the covered autos — 72 and 73. Symbol 72 includes “owned autos used in operations other than those trucking operations that are subject to operating authority granted to the Insured by regulatory authority.” Symbol 73 describes “any auto except those described by Symbol 72.” Liability coverage extends to all autos designated by symbols 72 and 73. Reading all of the provisions together, I would find that a covered auto includes all autos owned by the named insured and all autos hired or leased by the named insured, which includes the tractor leased by D & M from Kemp.

Next, in order for Kemp to be an insured under the policy, the covered auto must have been used by him “by or for D & M.” Pursuant to the term of the lease agreement which incorporated DOT regulations, D & M had the exclusive possession, control, and use of the leased motor vehicle for the duration of the lease agreement. I would find that the leased vehicle was being used by Kemp “for” D & M whenever that use furthered D & M’s business interests and was not a purely personal use of the covered vehicle by Kemp. As D & M’s business is transportation, I would find that any use of the leased equipment that falls within the scope of D & M’s trucking business to constitute a use by Kemp “for” D & M.

In this case, the evidence showed that Kemp used his covered auto to bring his trailer to Baker Metal Works to have boards replaced on the bed of his trailer and for the installation of a metal box that would make it easier for him to access the wires and air lines that went to the trailer’s brakes and running lights. Kemp | .^explained that he had wanted to make the modification for some time and the situation presented itself when he had to replace the decking on the trailer. He further stated that the improvement to the trailer was done to make it easier for him to maintain the trailer because he would only have to flip the lid of the box to get to the air lines and wiring harness, whereas previously, he had to pull all of the lines and wires out of the front of the trailer, leaving him little room to work on these items if he had to. I find that the installation of boards on the deck of the trailer that holds cargo being shipped for D & M, along with the installation of an accessory to the trailer that made it easier to maintain and repair the trailer’s brakes and lights is clearly trucking-related, and as such, furthered the commercial interest of D & M in keeping the leased vehicle and equipment in safe and proper running condition. The mere fact that the work done to the trailer may have made operating, repairing, and maintaining the leased vehicle more convenient to Kemp does not mean that the work did not serve D & M’s business interests. The possibility that a vehicle owner’s interest may coincide with those of the lessee does not diminish the benefits the lessee received from the owner’s actions. See National Continental Insurance Company v. Empire Fire & Marine Insurance Company, 157 F.3d 610, 613 (8th Cir.1998).

Moreover, even under the test employed by the majority in determining whether Kemp’s activity constituted a “business use” of the vehicle, I would find Kemp to be an insured under the policy. In replacing the decking on the trailer and the installation of an accessory to house the brake’s wires, Kemp was executing his contractual duty to maintain the leased equipment, and therefore, his trip to and from Baker Metal Works in his covered auto to have the work performed on the trailer constituted the business of D & M.

Pursuant to the lease agreement, Kemp was obligated to maintain the | equipment in proper operating condition. Kemp was further obligated to furnish all maintenance, repairs, and other items necessary for the safe and efficient operation of the equipment and lease agreement vests the choice of locations and persons to perform any necessary repairs solely in Kemp. The lease further stipulates that in the event the equipment leased includes a trailer, Kemp was responsible for the periodic safety inspection of the trailer and accessorial equipment furnished by him. I do not believe it could fairly be said that the replacement of decking boards, which holds the transported cargo, and the installation of an accessory making it easier to perform maintenance on the leased equipment do not constitute vehicle maintenance. Because I believe that Kemp was executing his contractual duty to maintain the leased equipment, I would find that he was carrying out the business of D & M when he drove the trailer to and from Baker Metal Works for the replacement of decking boards and the installation of a box to house the trailer’s electrical wires and lines. Accordingly, I conclude that the Liberty Mutual trucking policy provides coverage for the accident sued upon.

For the above reasons, I would reverse the judgment of the trial court and deny Liberty Mutual’s motion for summary judgment. I would further find that the exclusion in Great American’s non-trucking bobtail policy, denying coverage when the vehicle is used for the benefit or to further the commercial interest of D & M, is applicable in this case, and I would grant Great American’s motion for |fisummary judgment and dismiss it from this litigation.

      . "Bobtailing” is a term generally used in the trucking industry to describe a tractor being operated without a trailer.

      . Great American has not appealed the summary judgment granted in favor of D & M. Liberty Mutual avers that because the trial court granted D & M’s motion for summary judgment and found that Kemp was not performing services for D & M at the time of the accident, review of that issue is precluded on appeal pursuant to LSA-R.S. 13:4231(3) insofar as that judgment is now final. However, under the circumstances presented herein, we find it unnecessary to address this issue.

      . The “express or implied” language is added by the Louisiana Change endorsement.

      . Similarly, we note that the bobtail policy issued to Kemp by Great American does not provide coverage if the “covered auto” was being used "for the benefit of or to further the commercial interest of [D & M]“ or "while being used for the purpose of traveling to or from any location where the covered auto is regularly garaged or any terminal or facility of [D & M]."

      .The contractual language at issue in Mahaf-fey was "in the business of.”

      . Kemp indicated that he had originally planned to go to a farmer's meeting, but instead chose to go to Baker Metal Works to retrieve the trailer.

      . The court also noted that the driver was free to go where he pleased, was not subject to the motor carrier/lessee’s control or paid for his time or mileage, and was not under dispatch or standby for further deliveries. LeBlanc, 700 So.2d at 1314.

      . In Mahaffey, the trucker was involved in an accident driving to his motel. The court noted that unlike driving home after completing deliveries as was the driver in LeBlanc, the driver in Mahaffey was "driving to a motel far from home in order to sleep to be adequately rested, when asked to remain in the area to see if a load becomes available,” which the court found "is a work-related function for a commercial driver because commercial drivers are required to have a certain number of rest hours between hauls.” Mahaffey, 543 F.3d at 743.

      . Additionally, we note that the maintenance on Kemp's trailer had been completed and he was returning home at the time of the accident. Cf. Empire Fire and Marine Ins. Co. v. Liberty Mut. Ins. Co., 117 Md.App. 72, 699 A.2d 482, cert. denied, 348 Md. 206, 703 A.2d 148 (1997), wherein the lease agreement between the independent truck driver and the motor carrier/lessee required the truck driver to maintain "all additions, accessories, and equipment ... in good safe operating and mechanical condition.” Empire Fire and Marine Ins. Co., 699 A.2d at 488. The court found that even if the trucker's stop at a dealership to obtain parts for a toolbox attached to the exterior of the leased tractor was in "furthering the business of the ... carrier, once he purchased the parts for the toolbox, his business with the ... carrier was complete. He was in the area of his ‘home terminal’ and heading home.” 699 A.2d at 496-97.

      . While National Liberty insists that the trailer was not part of the leased equipment, the undisputed facts of this case indicate otherwise. While none of the three trailers owned by Kemp are listed on the equipment schedule, the evidence on the motion for summary judgment demonstrated that Kemp’s trailers, in addition to the tractor that pulled them, were leased to D & M by Kemp. Therefore, I disagree with National Liberty’s attempt to bring the trailer outside the scope of the lease agreement and would find that any provision in the lease relating to the maintenance of the trailer applicable in this case.

      . The mere feet that Kemp did not request reimbursement for the work performed at Baker Metal Works is of no moment as Kemp testified that he was responsible for all maintenance on his vehicle and was never reimbursed by D & M for maintenance work.


author: CHANDLER, Justice,

text:
    John FLETCHER, John McConnon and Tom Leader v. DIAMONDHEAD INCORPORATORS.
    No. 2010-AN-00117-SCT.
    Supreme Court of Mississippi.
    Oct. 27, 2011.
    Rehearing Denied Jan. 19, 2012.

      David Neil McCarty, William Michael Kulick, Ocean Springs, Oliver E. Diaz, Jr., attorneys for appellants.
    John Preston Scanlon, Jerry L. Mills, Ridgeland, attorneys for appellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. John Fletcher, John McConnon, and Tom Leader (collectively, “Fletcher”) appeal an order of the Chancery Court of Hancock County incorporating the City of Diamondhead, Mississippi. Fletcher argues that the chancery court lacked jurisdiction over the petition for incorporation because it did not include two-thirds of the signatures of the qualified electors residing in the proposed incorporation area, and notice was improper. Fletcher also argues that objectors to the incorporation were denied the right of cross-examination at the hearing, and that the second chancellor’s failure to order a new trial was an abuse of discretion.

¶ 2. This Court finds that the petition for incorporation met the jurisdictional requirements, because notice was proper and the petitioners presented substantial evidence that the petition contained two-thirds of the signatures of the qualified electors residing in the proposed incorporation area. We find that the chancellor did not deny the objectors’ right of cross-examination, and the second chancellor’s decision not to order a new trial was within his sound discretion. Therefore, we affirm.

FACTS

¶ 3. On July 22, 2008, the Diamondhead Incorporators (Incorporators) filed a petition to incorporate the City of Diamond-head. On August 8, 2008, the chancery court set a hearing on September 15, 2008. On September 15, 2008, both the Incorpo-rators and individual objectors to incorporation appeared, and the chancellor called the matter up for hearing. But then the chancellor recused himself from the case due to the contested nature of the petition, and entered an order of continuance until November 3, 2008. On September 29, 2008, all the chancellors of the Eighth Chancery Court District recused themselves, and on October 8, 2009, this Court appointed Special Chancellor Kenneth Middleton to hear the case. Due to a conflict with the November 3, 2008, hearing date, Chancellor Middleton continued the hearing until January 9, 2009.

¶ 4. The hearing occurred on January 9, 2009. The Incorporators presented the testimony of several members of the Dia-mondhead Property Owners’ Association (POA) about the decision to pursue incorporation and the process of acquiring and compiling the signatures of Diamondhead residents in the petition to incorporate. The Incorporators also presented the testimony of an expert in urban planning and development. After the Incorporators rested, the court heard the sworn testimony and unsworn statements of five individuals who objected to the incorporation. These objectors proceeded pro se. The court also accepted several written statements by various Diamondhead residents who objected to incorporation. Sadly, Chancellor Middleton passed away after the hearing and before ruling on the case.

¶ 5. This Court appointed Special Chancellor Billy Bridges, who ruled on the case. Under Title 21 of the Mississippi Code, after a hearing on a petition for incorporation, a chancellor shall enter a decree declaring the creation of a municipal corporation upon a finding “from the evidence that the proposed incorporation is reasonable and is required by public convenience and necessity.” Miss.Code Ann. § 21 — 1— 17 (Rev.2007). This Court has set out factors for making this determination in Incorporation of the City of Oak Grove v. City Hattiesburg, 684 So.2d 1274, 1276 (Miss.1996) (citing City of Pascagoula v. Scheffler, 487 So.2d 196, 200-02 (Miss.1986)). In his findings of fact and conclusions of law, Chancellor Bridges applied these factors and found that incorporation of the City of Diamondhead was reasonable and required by public convenience and necessity. Chancellor Bridges granted the petition for incorporation. On January 12, 2010, he entered a final decree of incorporation of the City of Diamondhead.

¶ 6. On appeal, Fletcher does not attack the chancellor’s finding that incorporation was reasonable and required by public convenience and necessity. Rather, Fletcher argues that the chancery court lacked jurisdiction because the petition lacked the requisite number of signatures and the notice of hearing was inadequate, or that a new trial is required because Chancellor Middleton violated the objectors’ right to cross-examine the Incorpo-rators’ witnesses, and Chancellor Bridges abused his discretion by failing to hold a new hearing after Chancellor Middleton’s death.

I. WHETHER THE TRIAL COURT HAD JURISDICTION TO CONSIDER THE PETITION FOR INCORPORATION.

A. Signature requirement.

¶ 7. Mississippi Code Section 21-1-13 lists the requirements a petition for incorporation “shall” meet:

(1) it shall describe accurately the metes and bounds of the territory proposed to be incorporated and there shall be attached to such petition a map or plat of the boundaries of the proposed municipality;
(2) it shall set forth the corporate name which is desired;
(3) it shall be signed by at least two-thirds of the qualified electors residing in the territory proposed to be incorporated;
(4) it shall set forth the number of inhabitants of such territory;
(5) it shall set forth the assessed valuation of the real property in such territory according to the latest available assessments thereof;
(6) it shall state the aims of the petitioners in seeking said incorporation, and shall set forth the municipal and public services which said municipal corporation proposes to render and the reasons why the public convenience and necessity would be served by the creation of such municipal corporation;
(7) it shall contain a statement of the names of the persons the petitioners desire appointed as officers of such municipality; and
(8)it shall be sworn to by one or more of the petitioners.

Miss.Code Ann. § 21-1-13 (Rev.2007). Petitioners for incorporation have the burden to prove the sufficiency of the petition. In re City of Pearl, 279 So.2d 590, 592 (Miss.1973). “This Court reviews the chancellor’s findings for manifest error as to whether a petition for incorporation is legally sufficient.” City of Jackson v. Byram Incorporators, 16 So.3d 662 (Miss. 2009) (citing City of Pascagoula v. Scheffer, 487 So.2d 196, 199 (Miss.1986)).

¶ 8. The chancellor determined that the court had jurisdiction over the petition to incorporate the City of Diamondhead because the petition met all requisites of Section 21-1-13. In particular, the chancellor found that the petitioners had presented substantial evidence that the petition contained two-thirds of the signatures of the qualified electors in the proposed incorporation area. Fletcher challenges .the chancellor’s finding that the petition contained the signatures of two-thirds of the qualified electors in the proposed incorporation area. This Court has held that, if the chancery court determines that a petition does not contain the requisite number of signatures, it must dismiss the petition for lack of jurisdiction. Myrick v. Incorporation of Stringer, 336 So.2d 209, 211 (Miss.1976). Fletcher argues that the chancery court lacked jurisdiction over the petition because it did not include the requisite number of signatures.

¶ 9. “[T]he question of whether the two-thirds requirement ... has been met must be determined by an ascertainment of the number of persons living in the area to be annexed who [on the date the petition was filed] were registered voters in [the proposed incorporation area], and then determining whether two-thirds of that number have signed the complaint.” In re City of Ridgeland, 494 So.2d 348, 352 (Miss.1986) (discussing the two-thirds requirement for annexations). In City of Pascagoula, the incorporators of the City of Gautier canvassed the relevant area and reviewed telephone books, utility consumer rolls, and postal lists to determine the number of qualified electors in the area. City of Pascagoula, 487 So.2d at 200. Then, the incorporators aided the commissioner of elections in removing from the voter rolls the names of persons who had died or moved away. Id. In ruling on a challenge to the petition’s compliance with the two-thirds requirement, this Court stated the voter rolls and poll books are “the most viable record” from which to determine the number of qualified electors in a proposed incorporation area. Id. But this was because the incorporators in City of Pascagoula had requested purging of the voters roll before they filed the petition for incorporation. Id. The Court recognized that voter rolls and poll books may be inaccurate due to lack of notice to the clerk when registered voters die or move away. Id. “[C]ounty registration and poll books most accurately reflect the number of qualified electors. However, these records do not remain static, but must be corrected to reflect changes of residences, etc.” Id.

¶ 10. Fletcher argues that the requisite number of signatures is simply calculated as two-thirds of the number of persons listed on the voter rolls applicable to the proposed incorporation area. Fletcher argues that the certified voter rolls on the date the petition was filed and admitted into evidence show that 5,920 qualified electors lived in the Diamondhead community on that date. Two-thirds of that number is 3,947. Because the petition contained only 3,518 signatures, Fletcher argues, the petition did not comply with Section 21-1-13, and dismissal was required.

¶ 11. We reject Fletcher’s argument. As recognized in City of Pascagou-la, and as demonstrated by the evidence in this case, voter rolls are not conclusive evidence of the number of qualified electors living in the proposed incorporation area at the time the petition is filed. The co-chair of the petition subcommittee, Audrey Ramirez, testified on behalf of the Incorporators that the petition drive had extended over an eleven-month period preceding the filing of the petition. Ramirez testified that the Incorporators had obtained copies of the voter rolls for the Diamondhead East and Diamondhead West precincts. Over the eleven-month period, Ramirez kept in contact with the circuit clerk’s office about updates in voter information. She testified that, not only did the Incorporators conduct personal investigations, but they reviewed obituary notices, the United States Social Security Index, tax records, utility lists, and the POA’s membership list. She testified that the Incorporators used the voter rolls to compile a database to track those who had signed the petition, those who had objected to the petition, those who had died, and those who had moved away from Diamond-head. A copy of this database was admitted into evidence. Ramirez testified that this process revealed inaccuracies in the voter rolls: in some instances the voter rolls erroneously showed three or four different families living at the same address, persons who had died, and persons who had moved away. Ramirez also testified that the Incorporators had removed thirty-five persons who were listed on the voter rolls because a physical investigation had revealed that, actually, these persons resided outside the proposed incorporation area. This Court finds that, due to the evidence that the voter rolls listed persons who were not qualified electors because they had died, moved away, or did not reside in the proposed incorporation area, the voter rolls were not conclusive evidence of the number of qualified electors in the proposed incorporation area.

¶ 12. In determining that the Incorpo-rators had obtained the requisite number of signatures, the chancellor relied in part on Exhibit P-12, a summary tabulation of the qualified voters residing in the proposed incorporation area gleaned from the updated database and created by Chris Watson. Exhibit P-12 showed that the total number of persons whose names had appeared on the voter rolls during the eleven-month period was 6,571. Of these voters, the Incorporators offered evidence that thirty-five lived in the precincts but outside the proposed incorporation area. The Incorporators offered evidence that 1,891 persons had died, moved away, or should have been purged from the voter rolls, leaving 4,645 qualified electors residing in the proposed incorporation area at the time the petition was filed. Of these, 3,518 signed the petition, or 75.7 percent. Chris Watson offered expert testimony that the Incorporators had used reliable methods to compile the database, and that the numbers in Exhibit P-12 were accurate. The chancellor found that the Incor-porators had taken into account deaths, moves, and all appropriate factors that would impact the number of qualified electors in the proposed incorporation area. The chancellor found that the Incor-porators had enough signatures after subtracting the signatures of thirteen persons who had requested the removal of their names from the petition. The Court finds that the chancellor did not manifestly err in finding that two-thirds of the qualified electors in the proposed incorporation area at the time of the filing of the petition had signed the petition for incorporation.

B. Notice requirement

¶ 13. Another jurisdictional requirement applicable to a petition for incorporation is that affected persons receive proper notice of the hearing on the proposed incorporation. Norwood v. Extension of Boundaries of Itta Bena, 788 So.2d 747, 751 (Miss.2001). The notice requirement is codified at Mississippi Code Section 21-1-15, which states:

After the filing of said petition, and upon request therefor by the petitioners, the chancellor shall set a day certain, either in term time or in vacation, for the hearing of such petition and notice shall be given to all persons interested in, affected by, or having objections to the proposed incorporation, that the hearing on the petition will be held on the day fixed by the chancellor and that all such persons will have the right to appear and enter their objections, if any, to the proposed incorporation. The said notice shall be given by publication thereof in some newspaper published or having a general circulation in the territory proposed to be incorporated once each week for three consecutive weeks, and by posting a copy of such notice in three or more public places in such territory. The first publication of such notice and the posted notice shall be made at least thirty days prior to the day fixed for the hearing of said petition, and such notice shall contain a full description of the territory proposed to be incorporated. However, if any of the territory proposed to be incorporated is located within three miles of the boundaries of an existing municipality, then such existing municipality shall be made a party defendant to such petition and shall be served with process in the manner provided by law, which process shall be served at least thirty days prior to the date set for the hearing.

Miss.Code Ann. § 21-1-15 (Rev.2007). The petitioners have the burden to prove that they met all statutory notice requirements. Myrick, 336 So.2d at 210. The record must contain proof that posting and publication were accomplished in compliance with Section 21-1-15. Norwood, 788 So.2d at 751 (posting); In re Town of Mantachie, 685 So.2d 724, 726 (Miss.1996) (publication). Because notice is in lieu of personal service, strict compliance with Section 21-1-15 is required. Norwood, 788 So.2d at 751.

¶ 14. In this case, the petition for incorporation was filed on July 22, 2008, and the chancellor set the hearing for September 15, 2008. All municipalities within three miles of the proposed incorporation area were served with process. As shown by the proof of publication contained in the record, the Incorporators published notice of the hearing in the Sea Coast Echo, the local newspaper, on August 13, 20, and 27, 2008, and on September 3, 2008. The record also contains the affidavit of posting of Earnest J. Knobloch, who attested that notice of hearing was posted in six public places on August 12, 2008. The chancellor found from this evidence that all required notice had been given as mandated by Section 21-1-15.

¶ 15. Fletcher concedes that the publication and posting of the September 15, 2008, hearing date complied with Section 21-1-15. But he complains that notice still was deficient because the hearing date that was published and posted was incorrect. Fletcher argues that, when no hearing occurred on September 15, 2008, because the case was continued, the Incor-porators should have published and posted notice of the new hearing date, January 9, 2009. As previously stated in the recitation of the facts, court was convened on September 15, 2008, with objectors present. The chancellor continued the hearing until November 3, 2008. This Court appointed Chancellor Middleton, who continued the hearing until January 9, 2009, due to a conflict. Fletcher argues that the Incorporators should have published and posted notice of the January 9, 2009, hearing.

¶ 16. This issue presents a question of law which is subject to de novo review. City of Jackson, 16 So.3d at 670. In Section 21-1-15, the Legislature set forth the due process requirements for providing notice of incorporation proceedings to citizens residing within a proposed incorporation area. Section 21-1-17 states that the hearing shall occur on the date noticed, except that the chancellor may continue the case in the interests of justice. Miss.Code Ann. § 21-1-17 (Rev. 2007). Specifically, Section 21-1-17 states that “[a]t the time fixed, the chancellor shall proceed to hear all evidence offered in support of said petition, together with all objections, if any, that may be presented.... The chancellor shall have the power, however, to grant such continuances as justice may require.” Miss.Code Ann. § 21-1-17 (Rev.2007). The incorporation statutes do not provide for renotice of a continued hearing. “The statutory notice having been given, [owners of property within the proposed incorporation area become] parties to the proceedings in the chancery court.” Sperry-Rand Corp. v. City of Jackson, 245 So.2d 574, 575 (Miss.1971). “This status continues through the final decree.” Id. Once proper notice of the hearing date set by the chancellor has been provided in compliance with Section 21-1-15, if the hearing is continued, then all parties have notice. Because the Incor-porators provided proper notice of the original hearing date, no further notice was required when the case was continued.

¶ 17. Fletcher cites In re City of Hattiesburg, 840 So.2d 69 (Miss.2003), for the proposition that this Court has required renotice of the hearing when a case was continued. In City of Hattiesburg, renot-ice occurred after the petitioners had filed a corrected petition after they voluntarily had dismissed their original petition. Id. at 74, 98. On appeal, the objectors argued that the notice had been insufficient to satisfy their right to due process of law. Id. This Court rejected their argument because “more than minimum notice” had been given to the citizens. Id. In so finding, the Court noted that, after the corrected petition was filed, the chancellor had entered an order providing for renot-ice of the hearing by posting and publication. Id. Contrary to Fletcher’s argument, City of Hattiesburg never held that due process requires renotice anytime an incorporation or annexation case is continued. The Court simply found that because the citizens had received more than statutory notice, their argument that they had not received due process was without merit. Id. And unlike in this case, in City of Hattiesburg, the original petition was dismissed and a corrected petition filed, and it was only then that the chancellor ordered renotice. Id. We hold that no renot-ice was required under the facts of this case.

II. WHETHER THE CHANCERY COURT VIOLATED FLETCHER’S DUE-PROCESS RIGHT TO CROSS-EXAMINE WITNESSES.

¶ 18. Fletcher argues that the chancellor violated the objectors’ right to cross-examine the Incorporators’ witnesses. Four witnesses testified for the Incorporators. After the Incorporators’ counsel tendered each witness, the chancellor directed the witness to step down. The objectors did not cross-examine the witnesses. Fletcher argues that, by directing each tendered witness to step down, the chancellor denied the objectors’ right to cross-examination.

¶ 19. The objectors had the opportunity for cross-examination after the Incorpo-rators’ counsel tendered each witness, but they did not exercise that opportunity. Fletcher’s argument rests on the premise that, because the objectors were proceeding pro se, they were unable to exercise their right to cross-examination without special direction from the chancellor. This Court has held that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Bucket v. Chaney, 47 So.3d 148, 153 (Miss. 2010) (quoting Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987)). Fletcher argues that this rule should not apply to an incorporation proceeding, because such a proceeding provides a service to the citizenry that permits them to challenge the creation of new municipality in which they will live. Contrary to Fletcher’s argument, this Court has held pro se litigants in an incorporation case to the same standard as represented parties, noting that “the objectors could have retained counsel had they chosen to do so.” In re City of Clinton, 955 So.2d 307, 331 (Miss. 2007). This issue is without merit.

III. WHETHER THE SECOND CHANCELLOR ABUSED HIS DISCRETION BY FAILING TO ORDER A NEW TRIAL.

¶ 20. Fletcher argues that Chancellor Bridges should not have ruled on the case without ordering a new hearing after the death of Chancellor Middleton. Fletcher argues that, because he had not seen the witnesses testify, Chancellor Bridges was in the same position as an appellate court ruling from “the cold record” without having “smelled the smoke of battle.” Fletcher contends that “in a case as complex as incorporation, the reality is that the findings of fact and conclusions of law could have only be[en] accurate if weighed and authored by the sitting trial judge.”

¶ 21. According to Mississippi Rule of Civil Procedure 63(b):

If for any reason the judge before whom an action has been tried is unable to perform the duties to be performed by the court after a verdict is returned, or after the hearing of a non-jury action, then any other judge regularly sitting in or assigned under law to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties, he may in his discretion grant a new trial.

M.R.C.P. 63(b) (emphasis added). When the original hearing judge is unable to perform his duties after the hearing of a nonjury action, such as an incorporation proceeding, a new judge may order a new hearing in his discretion if he is satisfied he cannot perform those duties without a new hearing. M.R.C.P. 63(b). We recently held that, when a prior judge had ordered a new trial based on his assessment of jury bias, passion, or prejudice, a successor judge was in an inferior position and erred by vacating the new trial order. Pinecrest, LLC v. Harris, 40 So.3d 557, 562 (Miss.2010); M.R.C.P. 63.

¶ 22. This case is wholly distinguishable from Pinecrest because Chancellor Middleton had not ordered a new hearing prior to his death. When Chancellor Bridges was appointed, he evidently was satisfied he could perform Chancellor Middleton’s duties without a new hearing. M.R.C.P. 63(b). Although Fletcher argues a new hearing was required, he does not take issue with Chancellor Bridges’s fact findings that incorporation of the City of Dia-mondhead was reasonable and required by public convenience and necessity. We find this issue to be without merit.

CONCLUSION

¶ 23. We affirm. The incorporation petition met the jurisdictional requirements because notice was proper and the petitioners presented substantial evidence that the petition contained two-thirds of the signatures of the qualified electors residing in the proposed incorporation area. The chancellor did not deny Fletcher’s right to cross-examination, and the second chancellor’s decision not to order a new trial was within his sound discretion.

¶ 24. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ, RANDOLPH, LAMAR, KITCHENS, PIERCE AND KING, JJ., CONCUR.