text:
    Ervin Martin DAVIS, Jr. v. PEOPLES BENEFIT LIFE INSURANCE COMPANY.
    No. 2010 CA 0194.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.
    Rehearing Denied Oct. 1, 2010.
    Richard D. McShan, Amite, Louisiana, for Plaintiff-Appellant, Ervin Martin Davis, Jr.
    Covert J. Geary, Sara C. Valentine, New Orleans, Louisiana, for Defendant-Appel-lee, Peoples Benefit Life Insurance Company.

      Before KUHN, PETTIGREW, and KLINE, JJ.

      . The Honorable William F. Kline, Jr., is serving pro tempore by special appointment of the Louisiana Supreme Court.

   KUHN, J.

|2PIaintiff, Ervin Martin Davis, Jr., filed this suit against Peoples Benefit Life Insurance Company (“Peoples Benefit”), seeking to recover benefits under a policy that insured the life of his brother, Roger Davis, whose death was caused by an overdose of prescription medication. Peoples Benefit paid a $5,000 whole life benefit under the terms of the policy, but it denied plaintiffs claim for recovery under the terms of two $30,000 accidental death benefit policy riders. In the trial court proceedings, Peoples Benefit filed a motion for summary judgment based on the terms of the riders, which excluded coverage for the accidental death benefit where such death was “caused by or contributed to by ... being under the influence of ... any drug which was not administered in a therapeutic dosage or prescribed by a physician.” The trial court granted Peoples Benefit’s motion for summary judgment. On appeal, we find the policy language at issue is less favorable to the policyholder than the provision of La. R.S. 22:975(B)(10), and we conform the policy to provide the statutorily-required coverage. See La. R.S. 22:975(B)(8). As conformed, we find the policy does not exclude coverage for a death that results from an accidental overdose of prescription medication. Thus, we reverse and remand for further proceedings.

|SI. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiffs deposition testimony established that he and Roger lived together in Talisheek, Louisiana, at the time of his death. During the last five years of Roger’s life, he had been involved in multiple accidents in which he had sustained serious injuries to one of his hands and one of his arms. He also suffered from back pain, he had lost a thumb while splitting wood, and he had also suffered severe burns. Due to these injuries and the resulting pain, he sought medical treatment and had been prescribed Lortab (hydroco-done), Soma (carisoprodol), and Xanax (al-prazolam). During this span of time, there were a few occasions when plaintiff was aware that his brother had taken dosages of his prescribed medications closer together than they had been prescribed. Plaintiff described that the medications confused Roger’s thinking processes and made him sleepy. Plaintiff also described Roger as having a high tolerance to pain medications and stated that it “took a lot ... to ease [his] pain.”

Before leaving for work on the morning of October 14, 2005, plaintiff spoke to Roger, who told him that he was taking pain medication, he was not planning to go anywhere, and that his plans were to “try to get [his] back to quit hurting.” During that conversation, plaintiff learned that Roger had gone to a pain clinic the day before. When plaintiff returned home after work, he found his brother dead on the kitchen floor with “one pill laying beside him” and a “pill bottle in his hand.” Plaintiff called “9-1-1.” The coroner, Dr. Peter Galvan, ruled Roger’s death as an “accident” caused by “[p]olysubstance drug toxicity of Soma, Xanax, and Hydrocodone.” Plaintiff testified that he had no reason to believe that Roger |4was suffering from depression, and he opined that Roger “just accidentally took too much” of the prescribed medications in an attempt to relieve his pain.

According to the deposition of Dr. Gal-van, an internal medicine physician, the toxicity reports pertaining to Roger’s autopsy established that the amounts of both the hydrocodone and alprazolam in his-body at the time of his death were above therapeutic levels, and the hydrocodone was at a lethal level. The combined effect of the medicines caused respiratory depression, ultimately causing him to stop breathing and his heart to stop pumping.

According to the affidavit and attached opinion letter of Gary H. Wimbish, Ph.D., a board-certified, forensic toxicologist, Roger’s prescribed dose of 10 milligrams was to be taken four times per day for a total of 40 milligrams per day. Since “a lethal dose of hydrocodone is at least 100 milligrams,” Wimbish concluded. Roger had “consumed at least two and a half times the prescribed amount” of hydroco-done. He further concluded that the al-prazolam, taken at “three times the therapeutic concentrations,” contributed to the toxic effect of the hydrocodone, “reduc[ing] the amount of hydrocodone necessary to produce respiratory depression and death.”

After plaintiff submitted a proof of loss regarding Roger’s death, Peoples Benefit denied plaintiffs claim for recovery under the accidental death benefit riders, and this suit followed. The trial court granted summary judgment in favor of Peoples Benefit and dismissed plaintiffs suit with prejudice. Plaintiff has appealed, urging the trial court erred in failing to find that Louisiana statutory law prohibits the exclusionary language contained in the riders, upon which Peoples Benefit relied in denying coverage.

141- ANALYSIS

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2). Once the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. See Id.; Samaha v. Rau, 07-1726, p. 5 (La.2/26/08), 977 So.2d 880, 883. The non-moving party may not rest on mere allegations or denials but must set forth specific facts that show that a genuine issue of material fact remains. If the nonmoving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Berry v. Paul Revere Life Ins. Co., 08-0945, p. 6 (La.App. 1st Cir.7/9/09), 21 So.3d 385, 388, writs denied, 09-2220 & 09-2241 (La.12/18/09), 23 So.3d 942 & 945; see La. C.C.P. art. 966(C)(2). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Samaha, 07-1726 at p. 6, 977 So.2d at 884 (quoting Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765). An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Lafayette Ele. & Marine Supply, Inc. v. Abdon Callais Offshore, L.L.C., 09-2277, p. 1 (La.App. 1st Cir.7/29/2010), 44 So.2d 890.

The motion for summary judgment at issue here arose in the context of a suit for accidental death benefits. The insurance code gives health and accident insurance policyholders very substantial protection regarding matters of required and optional coverage as addressed in La. R.S. 22:975. See Cataldie v. Louisiana Health Service and Indent. Co., 456 So.2d 1373, 1375 (citing former La. R.S. 22:213). With respect to this litigation, La. R.S. 22:975 provides as follows, in pertinent part:

B. Other provisions (optional). No such policy shall be delivered or issued for delivery containing provisions respecting the matters set forth below unless such provisions are, in substance, in the following forms, or, at the option of the insurer, in forms which in the written opinion of the commissioner of insurance are not less favorable to the policyholder:
(8) Conformity with state statutes: Any provision of this policy which, on the date of issue, is in conflict with the statutes of the state in which the insured resides at the date of issue is understood to be amended to conform to such statutes.
(10) Intoxicants and narcotics: The insurer shall not be liable for any loss sustained or contracted in consequence of the insured’s being |7intoxicated or under the influence of narcotics unless administered on the advice of a physician. (Emphasis added.)

The accidental death benefit policy riders at issue provide as follows, in pertinent part:

DEFINITIONS
B. “INJURY” means injury to your body caused by an accident, directly and independently of all other causes....
ACCIDENTAL DEATH BENEFIT
We pay a benefit if you die as a result of an injury....
EXCLUSIONS
We do not pay benefits for accidental death caused by or contributed to by: (1) intentionally self-inflicted injury, suicide or any attempt thereat while sane;
(5) being under the influence of alcohol or any drug which was not administered in a therapeutic dosage or prescribed by a physician.

During the trial court proceedings, Peoples Benefit did not urge that Roger’s death was a suicide or anything other than an “accidental death.” Rather, it claimed that the accidental death was subject to the policy exclusion set forth in Paragraph 5, because Roger was under the influence of drugs that were not administered in a therapeutic dosage.

IsOn appeal, plaintiff asserts that the exclusionary language of the policy is less favorable to him, as the policyholder, than the statutory language of La. R.S. 22:975(B)(10) and, further, that the policy language was not approved by the commissioner of insurance. As such, plaintiff contends Peoples Benefit should not be able to rely on this exclusion to deny his claim.

Comparing the Peoples Benefit policy language to the statutory language, we find the policy language is in fact less favorable to plaintiff on more than one basis. First, the Peoples Benefit policy language excludes coverage for an accidental death caused by or contributed to by “any drug” which was not administered in a therapeutic dosage or prescribed by a physician. Thus, the policy exclusion would apply in circumstances where the insured is not under the influence of “narcotics,” as specifically referenced in La. R.S. 22:975(B)(10). Secondly, and most significantly based on the facts presented herein, the policy language would exclude coverage for an accidental death caused by or contributed by a drug that is not administered in a therapeutic dosage, even though it had been prescribed by a physician. The statutory language of “under the influence of narcotics unless administered on the advice of a physician” is reasonably interpreted as merely requiring that the narcotic substance at issue has been prescribed by a physician rather than requiring that the dosage not exceed a therapeutic or prescribed dosage of that substance. See Smith v. Stonebridge Life Ins. Co., 582 F.Supp.2d 1209, 1219-23 (N.D.Cal.2008); Hummel v. Continental Cas. Ins. Co., 254 F.Supp.2d 1183, 1189-90 (Nev.2003). When the language of a | gstatute is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10. We view the focus of the statutory limitation as excluding losses resulting from the illegal use of drugs as opposed to the legitimate use of a controlled substance pursuant to a physician’s advice. See Smith, 582 F.Supp.2d at 1223. Peoples Benefit put forth no evidence, and we have found no legislative history, establishing that our legislature intended the statutory exclusion to limit or regulate losses resulting from accidental overdoses of prescription drugs. Because beneficiaries still have the burden of proving that the insured’s death was “accidental,” an insurer is not required to insure the risk of an intentional overdose by an insured. Id.

Based on the facts of this case, the Peoples Benefit policy language would operate to exclude coverage for Roger’s death because it was caused by or contributed to by the hydrocodone and alprazo-lam that was ingested by Roger in non-therapeutic dosages, although these drugs were administered on the advice of a physician. However, because the policy language is less favorable to plaintiff than the statutory language, it must be conformed to comply with the language of La. R.S. 22:975(B)(10). As such, we recognize there is no dispute that Roger legally possessed the drugs that caused his death, i.e., he had been prescribed the drugs that caused his death by a physician. We construe “administered on the advice of a physician” to include Roger’s situation, where he had sought medical attention for pain relief and had been prescribed these drugs. Thus, we conclude that the statutory exclusion, which excludes liability for any loss sustained as a result of the insured’s being “under the influence of narcotics unless administered on the advice of a physician” does not preclude coverage based on the facts of this | incase. Peoples Benefit has failed to establish that plaintiff is not entitled to recover benefits pursuant to the riders based on Roger’s death being caused by drugs prescribed to him but administered in non-therapeutic dosages. Accordingly, Peoples Benefits has failed to establish it was entitled to summary judgment as a matter of law, and the trial court erred in granting its motion. La. C.C.P. art. 966(B).

III. CONCLUSION

For these reasons, the trial court’s judgment is reversed, and we remand this matter for further proceedings in accordance with this opinion. The costs of this appeal are assessed to Peoples Benefit.

REVERSED AND REMANDED.

      . The record establishes that National Home Life Assurance Company, predecessor in interest to Peoples Benefit, issued the policy that insured the life of Roger in 1976. The owner of the policy was Roger’s mother, Mrs. Ervin Davis, who predeceased Roger. According to plaintiff his mother gave him a copy of the policy before she died, and he continued to pay the premium. The riders at issue provided that benefits would be paid to the beneficiary shown on the policy schedule and, in the event there was no such beneficiary, benefits would be paid to the decedent’s estate. Peoples Benefit does not dispute that the schedules in the riders named no beneficiary, that plaintiff is Roger’s only living heir, and that he is the proper beneficiary under these riders.

      . Acts 2008, No. 415, § 1, eff. January 1, 2009. renumbered former La. R.S. 22:213 to La. R.S. 22:975 without changing the substance of its provisions. Louisiana Revised Statutes 22:47(2)(a) classifies "health and accident” insurance as "[(Insurance of human beings against bodily injury, disablement, or death by accident or accidental means....”

      . One rider was effective as of July 22, 1996; the other rider was effective October 22, 1998. Plaintiff’s deposition testimony established that he and his brother had attended high school in Louisiana, had resided on the same property near their parents in Louisiana. and had worked in Louisiana for many years prior to Roger’s death. Peoples Benefit did not contest that Roger was a resident of Louisiana as of the dates these riders were issued.

      . Peoples Benefit did not make any showing that the policy language at issue was approved by the insurance commissioner.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Kain GROUE v. CAPITAL ONE.
    No. 2010 CA 0476.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      Kain Groue, Mandeville, Louisiana, Plaintiff/Appellant In Proper Person.
    Thomas J. Lutkewitte, Brad P. Scott, New Orleans, Louisiana, for Defendant/Appellee, Capital One.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

|2This appeal is from a judgment in favor of Capital One, N.A. (Capital One) that dismissed the claims of Kain Groue (plaintiff), who asserts that Capital One should reimburse him for debiting forged checks against his bank account. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed the instant suit against Capital One seeking to recover damages that plaintiff alleged were the result of improper payments of checks by Capital One. According to Groue, Sherrie L. Simms obtained a series of checks from his home and began to forge plaintiffs name on the checks on June 12, 2007. The forged checks were subsequently deposited and debited against his checking account with Capital One. Plaintiff alleged that approximately 105 checks were forged and subsequently paid by Capital One, causing him to suffer a loss totaling $11,800.00. Plaintiff further alleged that Simms, who was living with him at the time, intercepted the bank statements in order to prevent him from detecting the fraud. Plaintiff did not learn of the missing funds in his account until he opened his August 2007 bank statement on September 5, 2007.

This action was tried on September 14, 2009. On September 21, 2009, the trial court signed a judgment dismissing plaintiffs claims against Capital One, with prejudice.

Plaintiff has filed the instant appeal, asserting that Capital One failed to exercise ordinary care in paying the checks at issue as required by LSA-R.S. 10:4-406(e). Plaintiff has also requested that this court adopt the reasoning in Prestridge v. Bank of Jena, 05-545, p. 13 (La.App. 3 Cir. 3/8/06), 924 So.2d 1266, 1275-76, writ denied, 06-0836 (La.6/2/06), 929 So.2d 1261, and find that Capitol One is liable for payment of most of the forged checks at issue.

^DISCUSSION

Usually, a person is not liable on an instrument unless that person or his agent signed the instrument. LSA-R.S. 10:3-401. The general rule is that a bank is liable when it pays based upon a forged signature. Marx v. Whitney Nat’l Bank, 97-3213, p. 4 (La.7/8/98), 713 So.2d 1142, 1145. A charge against a customer’s account based on a forged instrument is not an authorized charge under the contract between the bank and its customer because the order to pay was not given by the customer. Id.

Notwithstanding this general rule requiring the bank to bear the risk of loss for a forged instrument, Louisiana law provides that in certain circumstances, a customer may be precluded from asserting a claim against a bank that has paid on a forged instrument. Id. A customer is precluded from having funds paid out on a forged instrument restored to his account if his failure to exercise reasonable care in handling the account before or after the forgery, LSA-R.S. 10:3-406 and 10:4-406, respectively, substantially contributed to the loss. Id. Capital One asserts that it bears no liability herein because plaintiff failed to exercise reasonable care after the forgeries occurred as required under LSA-R.S. 10:4-406.

Specifically, LSA-R.S. 10:4-406 provides, in pertinent part:

(c) If a bank sends or makes available a statement of account or items pursuant to Subsection (a), the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.
(d) If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by Subsection (c), the customer is precluded from asserting against the bank:
|4(1) the customer’s unauthorized signature or any alteration on the item, if the bank also proves that it suffered a loss by reason of the failure; and
(2) the customer’s unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not exceeding thirty days, in which to examine the item or statement of account and notify the bank.
(e) If Subsection (d) applies and the customer proves that the bank failed to exercise ordinary care in paying the item and that the failure substantially contributed to loss, the loss is allocated between the customer precluded and the bank asserting the preclusion according to the extent to which the failure of the customer to comply with Subsection (c) and the failure of the bank to exercise ordinary care contributed to the loss. If the customer proves that the bank did not pay the item in good faith, the preclusion under Subsection (d) does not apply.
(f)Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (Subsection (a)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration. If there is a preclusion under this Subsection, the payor bank may not recover for breach of warranty under R.S. 10:4-208 with respect to the unauthorized signature or alteration to which the preclusion applies.

Additionally, banks and customers may modify their duties by contract as described in LSA-R.S. 10:4-103. See Peak v. Tuscaloosa Commerce Bank, 96-1258, p. 8 (La.App. 1 Cir. 12/29/97), 707 So.2d 59, 64. Louisiana Revised Statutes 10:4-103(a) states, in pertinent part:

The effect of the provisions of this Chapter may be varied by agreement, but the parties to the agreement cannot disclaim a bank’s responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure. However, the parties may determine by agreement the standards by which the bank’s responsibility is to be measured if those standards are not manifestly unreasonable.

As such, a bank and its customer may contract for any object which is lawful, possible, determined or determinable, and once the contract has been established, it is the law between the parties. Peak, 96-1258 at p. 8707, 707 So.2d at 64 (citing LSA-C.C. arts. 1971 and 1983).

IfiAt trial, Capital One introduced its Rules Governing Deposit Accounts, which was in effect at all times material hereto. The agreement provided, in part:

You [the customer] are obligated to examine immediately all statements and items charged against your accounts and to report any disputes or discrepancies to us promptly. In addition to any defenses we may raise under any statute or regulation, you agree that we shall not be liable to you for any altered item, for any item paid on an unauthorized signature, or for any error in any statement unless you notify us in writing of such alteration, unauthorized signature, or error within thirty days after the cancelled item or statement is mailed or otherwise made available to you. In addition, we will not be liable for any subsequent items paid, in good faith, which contain an unauthorized signature or alteration by the same wrongdoer unless you notify us within ten (10) calendar days after the statement and first altered and/or forged items were made available to you.

Plaintiff acknowledged that he signed the Rules Governing Deposit Accounts when he opened his checking account. The thirty-day limitation for reviewing statements and notifying the bank of forgeries found in the parties’ agreement is in accord with the time period provided in LSA-R.S. 10:4 — 406(d)(2).

Plaintiff failed to comply with the duties owed Capital One pursuant to their agreement and under LSA-R.S. 10:4^406. Plaintiff testified that Simms began to forge plaintiffs name on his checks on June 12, 2007, and that the checks appeared on plaintiffs June 2007 statement, which was mailed in early July 2007. Although plaintiff conceded that Capital One sent bank statements on a regular monthly basis, plaintiff admitted that he did not review or reconcile his June or July 2007 statements because they were stolen by Simms. It was not until September 6, 2007, that plaintiff, after reviewing his August 2007 statement, notified Capital One of the alleged unauthorized signatures relating to Isthe checks drawn on his account. Early detection of Simms’ forgeries could have prevented the subsequent losses, and plaintiffs failure to review the June 2007 statement precludes him from asserting all subsequent forgeries by that same unauthorized signatory. See Marx v. Whitney Nat’l Bank, 97-3213 at pp. 7-8, 713 So.2d at 1147.

Moreover, the terms of the parties’ contract provides that Capital One would not be liable for any “altered item [or] for any item paid on an unauthorized signature” unless it was notified “of such alteration [or] unauthorized signature ... within thirty days after the cancelled item or statement is mailed or otherwise made available to you.” Accordingly, although LSA-R.S. 10:4-406© allows a notification period of one year, the parties’ agreement requires plaintiff to notify Capital One of the altered items within thirty days after the statement that included the first forged instrument was made available; otherwise, Capital One would not be liable for payment of the items.

In Peak, this court reviewed the following provision that appeared in a deposit agreement:

We [the bank] will not be liable for any check that is altered or any signature that is forged unless you notify us within thirty (30) calendar days after the statement and the altered or forged items(s) are made available. Also, we will not be liable for any subsequent items paid, in good faith, containing an unauthorized signature or alteration by the same wrongdoer unless you notify us within ten (10) calendar days after the statement and the first altered or forged items were made available....

Peak, 96-1258 at p. 9, 707 So.2d at 64 (Emphasis omitted). In light of the parties’ agreement, this court affirmed a summary judgment rendered in favor of the bank, finding that a bank customer was not entitled to reimbursement from the bank for the forgeries at issue.

Herein, because plaintiff failed to notify Capital One of the initial forgeries in the time frame set forth in the parties’ agreement and because the notification period expressed therein is not manifestly unreasonable, the agreement 17precludes plaintiff from recovering from Capital One any forgeries appearing on his June statement and for any forgeries thereafter by the same wrongdoer.

We recognize that the Third Circuit, in a 3-2 decision, has declined to enforce a contractual provision in a bank’s signature card that reduced the notification period. See Prestridge, 05-545 at p. 22-23, 924 So.2d at 1280-81. In declining to enforce the agreement, the court reasoned that “[t]he sixty-day preclusionary period set forth in Bank of Jena’s signature card agreement attempts to shorten the legal prescriptive period, making it more onerous; therefore, it is null as set forth in [LSA-C.C] art. 3471.” Prestridge, 05-545 at p. 22-23, 924 So.2d at 1280. However, the one-year bar provided in LSA-R.S. 10:4-406 does not act as a prescriptive period, but is instead a substantive element of a claim for payment of a forged check. See, e.g. Wetherhill v. Putnam Invest, 122 F.3d 554, 557 (8th Cir.1997). Accordingly, while we are concerned that the enforcement of the contractual provision at issue may shift potentially significant fraud losses onto the customer, we are constrained to find that it is not viola-tive of LSA-C.C. art. 3471. Moreover, in most instances, the customer is in the best position to identify the fraudulent transactions.

1 ^Additionally, the provisions of Title 10, Commercial Laws, “shall be liberally construed and applied to promote its underlying purposes and policies.” LSA-R.S. 10:1 — 103(a). The purposes and policies of Title 10 are:

(1) to simplify, clarify, and modernize the law governing commercial transactions;
(2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and
(3) to promote uniformity of the law among the various jurisdictions.

LSA-R.S. 10:l-103(a). In accordance with this directive, we note that our ruling, as well as our prior ruling in Peak, is in conformity with other jurisdictions, which have enforced contracts that have reduced the applicable notification periods. For instance, in Bank of America, N.A. v. Putnal Seed and Grain Inc., 965 So.2d 300, 301 (Fla.Ct.App.2007), the court upheld an agreement that reduced a notification time period from one year to sixty days, finding that the reduction did not “absolve the bank of its duty to exercise ordinary care,” and stating that the “60-day notice requirement only creates a condition precedent which Putnal must comply with before it may seek reimbursement.” See also Graves v. Wachovia Bank, N.A., 607 F.Supp.2d 1277 (M.D.Ala.2009), Mercantile Bank of Arkansas v. Vowell, 82 Ark.App. 421, 117 S.W.3d 603 (6/11/03), Community Bank & Trust, S.S.B. v. Fleck, 107 S.W.3d 541 (Tex.12/5/02), Nat’l Title Ins. Corp. Agency v. First Union Nat’l Bank, 263 Va. 355, 559 S.E.2d 668, 672 (3/1/02).

ALLOCATION OF FAULT

Although plaintiff failed to comply with the duties imposed on the customer in the parties’ agreement and by LSA-R.S. 10:4-406(c), if the customer proves that the bank failed to exercise ordinary care in paying the items and that the failure substantially contributed to the loss, the loss is allocated between the customer and the bank. See LSA-R.S. 10:4-406(e); see also LSA-R.S. 10:3-406. Moreover, although the parties can modify provisions of the Commercial Laws by ^contract, a bank cannot disclaim responsibility arising from its failure to exercise ordinary care. LSA-R.S. 10:4-103(a). :

“Ordinary Care” is defined in LSA-R.S 10:3 — 103(a)(7) as follows:

“Ordinary care” in the case of a person engaged in business means observance of reasonable commercial standards, prevailing in the area in which the person is. located, with respect to the business in which the person is engaged. In the case of a bank that takes an instrument for processing for collection or payment by automated means, reasonable commercial standards do not require the bank to examine the instrument if the failure to examine does not violate the bank’s prescribed procedures and the bank’s procedures do not vary unreasonably from general banking usage not disapproved by this Chapter or Chapter 4.

The statute does not impose a duty upon a paying bank to inspect every check to verify signatures appearing thereon prior to processing the check for payment. The mere fact that a bank may have paid an item over a forged signature does not establish that a bank failed to exercise “ordinary care.”

Plaintiff argues that Capital One failed to exercise “ordinary care” insofar as it processed checks for payments despite a “hold” being placed on his account on July 25, 2007. However, the July 25, 2007 hold was not requested by plaintiff and is unrelated to the forged checks at issue in this matter. Testimony at trial revealed that the hold was placed by Capital One after plaintiff left his checkbook at a local restaurant. Because no one from the restaurant was able to contact plaintiff, a restaurant employee called Capital One to inform the bank that plaintiffs checkbook was at the restaurant. The hold was removed on July 26, 2007, once plaintiff came to the bank and was informed as to the location of his check book. Additionally, the checkbook left at the restaurant did not contain any checks that plaintiff alleges were forged. Rather, the forged checks came from an entirely different sequence of checks allegedly stolen from plaintiffs home. As such, the fact that Capita! One placed a hold on plaintiffs account so that it could inform him of the misplaced checkbook does not reflect that Capital One failed to exercise ordinary care under the circumstances. Moreover, plaintiff failed to introduce any evidence to show that Capital One, when paying the instruments at issue, failed to adhere to a | ^reasonable commercial standard prevailing in the area. Accordingly, the trial court was not clearly wrong in finding that no fault should be apportioned to Capital One in paying the items at issue.

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are to be split equally between the parties.

AFFIRMED.

      .We note that plaintiffs two-page brief does not comply with Uniform Rules-Courts of Appeal, Rule 2-12.4, insofar as it fails to include a statement of jurisdiction and fails to assign and specify assignments of error. However, the appellate courts of this state have considered briefs in improper form when filed by a pro se party. See Carsice v. Empire Janitorial, 08-0741, p. 3 (La.App. 4 Cir. 12/17/08), 2 So.3d 553, 554-55, writ denied, 09-0097 (La.3/13/09), 5 So.3d 123 and LSA-C.C.P. arts. 2129 and 2164. Accordingly, since plaintiff is representing himself, we will consider the merits of his appeal, despite the lack of proper form of his appellate brief.

      . Capital One does not assert that LSA-R.S. 10:3-406 applies herein.

      . This matter falls within the ambit of Louisiana’s version of the Uniform Commercial Code (UCC). Thus, it appears that any potential claims allegedly arising in negligence grounded under general Louisiana law would be displaced by the UCC.

      . We note that the ten-day limitation contained in the Rules Governing Deposit Accounts is not at issue.

      . Capital One asserts that the alleged forgeries began in April 2007, but whether the forgeries began in April or June is immaterial under the circumstances herein.

      . Although plaintiff testified that on July 2, 2007, he notified Amber Davis, a Capital One employee, that some of his checks were missing, Mrs. Davis did not recall the specific conversation. Mrs. Davis indicated that had she been informed that checks were missing, she would have referred plaintiff to a banker to address the issue. Regrettably, because plaintiff apparently believed that the missing checks "were in the trash," he did not place a hold on his account or request a statement to verify that the checks were not being utilized by a third party.

      .On September 11, 2007, plaintiff submitted a Uniform Affidavit of Forgery to Capital One.

      . The agreement between the bank and customer provided:
      You must examine your statement of account with "reasonable promptness.” If you discover (or reasonably should have discovered) any unauthorized payments or alterations, you must promptly notify us of the relevant facts. If you fail to do either of these duties, you will have to either share the loss with us, or bear the loss entirely yourself (depending on whether we exercised ordinary care and, if not, whether we substantially contributed to the loss). The loss could be not only with respect to items on the statement but other items forged or altered by the same wrongdoer. You agree that the time you have to examine your statement and report to us will depend on the circumstances, but that such time will not, in any circumstance, exceed a total of 30 days from when the statement is first made available to you.
      You further agree that if you fail to report any unauthorized signatures, alterations, forgeries or any other errors in your account within 60 days of when we make the statement available, you cannot assert a claim against us on any items in that statement, and the loss will be entirely yours. This 60 day limitation is without regard to whether we exercised ordinary care.

        Prestridge, 05-545 at p, 9, 924 So.2d at 1273 (Emphasis omitted).

      . Louisiana Civil Code art. 3471 provides:
      A juridical act purporting to exclude prescription, to specify a longer period than that established by law, or to make the requirements of prescription more onerous, is null.


text:
    Thomas NORMAND v. LOUISIANA RISK REVIEW PANEL, Louisiana Department of Public Safety & Corrections.
    No. 2010 CA 0473.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      Thomas Normand, Kinder, Louisiana, Plaintiff/Appellant, In Proper Person.
    William Kline, Baton Rouge, Louisiana, for Defendant/Appellee, Louisiana Department of Corrections.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

|2The petitioner in this case, Thomas Normand, appeals a judgment of the Nineteenth Judicial District Court, dismissing his petition for mandamus and/or injunction, with prejudice, for failure to state a cause of action. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 19, 1997, Normand was convicted of a violation of LSA-R.S. 40:967(F)(l)(a), for possessing 28 grams or more of cocaine. Normand was adjudicated as a second offender under the provisions of the Habitual Offender Law and sentenced-to thirty-one years at hard labor. See LSA-R.S. 15:529.1. His predicate conviction was for the crime of aggravated battery in 1994.

In 2001, the Legislature, pursuant to 2001 La. Acts 403, effective June 15, 2001, provided more lenient penalty provisions for certain enumerated crimes, including LSA-R.S. 40:967(F)(1). See LSA-R.S. 15:308. Section 2 of the Act also created the Louisiana Risk Review Panel (the Panel), whose statutory duty is to evaluate the risk of danger to society that each person convicted of a non-violent crime may present if released from confinement in a prison facility. LSA-R.S. 15:574.22(G). Although LSA-R.S. 15:574.22 applied prospectively when it was adopted, the Legislature later declared that the statute was to be applied retroactively and allowed persons “who committed crimes, who were convicted, or who were sentenced” under the stricter provisions prior to June 15, 2001, to apply to the Panel for review under the more lenient penalty provisions, provided that “such application ameliorates the person’s circumstances.” See LSA-R.S. 15:308(B), as added by 2006 La. Acts 45, § 1, effective May 16, 2006.

On December 8, 2006, Normand submitted a risk review application to the Panel, noting that since his conviction the penalty provision under LSA-R.S. 40:967(F)(1) had become more lenient. On November 6, 2008, the application was “returned without action” because Normand had been “[cjonvicted of a crime of violence as defined or enumerated in [former] La. R.S. 14:2(13) [now 14:2(B) ].”

|3On January 21, 2009, Normand sought administrative review through the Louisiana Department of Public Safety and Corrections (the Department). On March 23, 2009, Normand’s request was rejected by the Department, which indicated that the “risk review matter [is] not appealable through this process.”

On April 23, 2009, Normand filed a “Petition for Writ of Mandamus and/or Injunction” in the 19th Judicial District Court, praying that the court order the Department to evaluate whether Normand is entitled to risk review relief and to schedule him a risk review hearing. Commissioner John Smart, Jr. found that there was no authority for the court to review a recommendation of the Panel and that mandamus relief was not available to compel a response. As such, the Commissioner recommended that the court, on its own motion, raise and grant an exception of no cause of action.

In accord with the Commissioner’s recommendation, the district court granted an exception of no cause of action and dismissed Normand’s suit. In so doing, the district court found that although LSA-R.S. 15:574.22 required the panel to evaluate certain offenders’ applications, the statute excluded Normand from seeking review because he had previously been convicted of a violent crime. Normand has appealed asserting that the district erred in denying him mandamus relief.

DISCUSSION

We note that certain individuals are not eligible to seek review from the Panel. Louisiana . Revised Statutes 15:574.22(G), as rewritten by 2009 La. Acts 103, § 1 provides, in pertinent part:

LThe panel shall evaluate the risk of danger to society which each person who has been convicted of a crime and who is confined in a prison facility of any kind, may present if released from confinement. However, the following persons shall not be eligible for review by the Risk Review Panel:
(4) A person sentenced as a habitual offender under R.S. 15:529.1 where one or more of the crimes for which the person was convicted and sentenced under R.S. 15:529.1 is a crime of violence defined or enumerated in R.S. 14:2(B). [Emphasis added.]

Although the statute has been rewritten since the Panel considered Normand’s application, the substance of the provision at issue has remained the same. Aggravated battery is enumerated as a crime of violence under LSA-R.S. 14:2(B)(5).

The Panel rejected Normand’s application because he had been “[cjonvicted of a crime of violence” as enumerated in LSA-R.S. 14:2(B). See LSA-R.S. 15:574.22(G)(4). Normand asserts that the Panel was required to consider his application rather than reject it because the exclusion found in (G)(4) only refers to crimes that are instant convictions and does not specifically address any past convictions. As such, Normand concludes that the district court should have issued a writ of mandamus to require the Panel to review the merits of his application.

A plain reading of LSA-R.S. 15:574.22(G)(4) indicates that an application filed by a habitual offender who has been convicted and sentenced for a crime of violence cannot be considered by the Panel. The exception does not limit its application to the instant or current conviction, but rather applies it to all crimes that form the basis for the sentence under LSA-R.S. 15:529.1. Moreover, such interpretation is in accord with the Legislature’s intent, which seeks to have | ¿these retroactive ameliorative penalty provisions applied to inmates with non-violent criminal histories.

Further, in the instant case, the Panel reviewed and subsequently rejected Normand’s application on the basis of LSA-R.S. 15:574.22(G). Accordingly, the Panel performed the only duty it was required to perform. See Weaver v. LeBlanc, 09-0224, p. 3 (La.App. 1 Cir. 9/14/09), 22 So.3d 1014, 1017. Moreover, Normand has not shown that the Department refused to perform a duty that was required by law. Therefore, the courts have no legal authority to compel the Panel or Department to perform any further action.

For the foregoing reasons, we affirm the judgment of the district court dismissing Normand’s petition. Costs of this appeal are assessed to Thomas Normand.

AFFIRMED.

      .Specifically, Normand has assigned the following errors for review:
      1. The District Court erred in denying Plaintiff mandamus relief on the basis of “no cause of action” by finding and applying, sua sponte, the provisions of La. R.S. 15:574.22(G)(4) to disqualify Plaintiff’s application for risk review where the Panel had, albeit in error, applied La. R.S. 15:574.22(G)(1)[,] in violation of La. Const., 1974, Art II.

        2. The District Court’s conclusion that La. R.S. 15:574.22(G)(4) includes "any” crime of violence runs afoul of the legislative intent and amounts to “judicial legislation;” in violation of La. Const., 1974, Art. II.

      3. The District Court erred in interpreting that the only avenue for Plaintiff to seek benefit of the ameliorative sentencing changes enumerated in R.S. 15:308 was to apply to the Risk Review Panel.
      4. The cumulative rationale supporting dismissing of Plaintiff’s suit operates as a denial of equal protection and due process of law.

      . At the time the Panel reviewed Normand's application, LSA-R.S. 15:574.22(G) provided, in pertinent part:
      The panel shall have the duty to evaluate the risk of danger to society which each person who has been convicted of a crime not defined or enumerated as a crime of violence in R.S. 14:2(B), and who is confined in a prison facility of any kind, may present if released from confinement. However, the panel shall not evaluate the risk of danger to society presented by:

      (3) A person sentenced as a habitual offender under R.S. 15:529.1 where one or more of the crimes for which the person was convicted and sentenced under R.S. 15:529.1 is a crime of violence defined or enumerated in R.S. 14:2(B).

      . In Weaver, an inmate filed a petition in the district court seeking a writ of mandamus after a Risk Review Panel denied the inmate's application based on "extensive criminal history.” 09-0244 at p. 4, 22 So.3d at 1017. The district court dismissed the inmate's action for failure to state a cause of action. On appeal, this court noted that while it was unclear whether the inmate was seeking a hearing or an order requiring the Panel to make a recommendation of leniency to the Pardons or Parole Board, "both of those acts involve discretionary authority of the Panel.” 09-0244 at p. 5, 22 So.3d at 1017. This court noted that a writ of mandamus can only issue when a public official refuses to perform a duty the law clearly states he must perform. Id. Because the Panel had reviewed the inmate’s application, which is the only duty a Panel is required to perform, there was no legal authority for the court to compel any action against the Panel. Id. As such, this court affirmed the district court’s judgment dismissing the inmate's petition.