author: PETERS, J.

text:
    Kennen DANIEL v. POINT TO POINT DIRECTIONAL DRILLING, INC.
    No. 13-1407.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Eric J. Waltner, Allen & Gooch, A Law Corporation, Lafayette, LA, Counsel for Defendants/Appellants, Point to Point Directional Drilling, Inc., The Gray Insurance Company.
    Mark Zimmerman, Lake Charles, LA, Counsel for PlaintiffiAppellee, Kennen Daniel.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   PETERS, J.

| ,The defendants, Point to Point Directional Drilling, Inc. and The Gray Insurance Company, appeal from a workers’ compensation judgment awarding the plaintiff, Kennen Daniel, medical treatment for his work-related mental injury, penalties and attorney fees, and full reimbursement for his past medical treatment. For the following reasons, we reverse that part of the judgment awarding reimbursement to Blue Cross/Blue Shield for amounts paid for Mr. Daniel’s medical treatment; amend the judgment to award Mr. Daniel $2,000.00 in penalties for the defendants’ failure to reimburse Mr. Daniel his out-of-pocket expenses, and affirm the remainder of the judgment as amended. Additionally, we award Mr. Daniel an additional $5,000.00 in attorney fees for work performed on appeal.

DISCUSSION OF THE RECORD

On June 27, 2008, Point to Point Directional Drilling, Inc. (Point to Point), a Welsh, Louisiana drilling company, employed Kennen Daniel as a laborer. On that day, Mr. Daniel, who was nineteen years old, was involved in a multiple-vehicle accident near Newton, Texas. While there exists no dispute over the fact that Mr. Daniel was in the course and scope of his employment with Point to Point at the time of the accident, the facts of the accident are necessary to explain the disability issue before the court.

At approximately 9:20 p.m. on June 27, 2008, Mr. Daniel and his crew chief were traveling to Welsh from a Texas job, and eastbound on U.S. Highway 190 near Newton, Texas. Each was- driving a company truck, and Mr. Daniel was in the lead and pulling a trailer. Approximately one mile west of the crash site, an erratically driven vehicle passed Mr.- Daniel. Soon thereafter, the vehicle crossed the centerline of the highway, sideswiped a westbound truck and trailer, and then struck another truck and trailer head-on, before coming to rest in the eastbound 12lane. To avoid the accident taking place immediately before him, Mr. Daniel veered into the westbound lane and struck the first truck hit by the erratically driven vehicle. His vehicle then came to rest in the eastbound lane, at which time Mr. Daniel found himself trapped in the wreckage of his truck. Approximately twenty minutes later, his crew chief was able, with the use of his truck, to rip off the truck’s door and steering wheel to free him.

Immediately Mr. Daniel and other Point to Point employees began assisting the other trapped wreck victims. While attempting to assist these other individuals, Mr. Daniel encountered the wreckage of the other vehicles and observed the horribly severed corpse of the precipitating driver, the severely crushed driver of the truck hit head on, a screaming passenger, as well as other victims. Approximately thirty minutes later, emergency-response personnel reached the scene and took over the rescue operation. By this time, Mr. Daniel was obviously overcome with what he had experienced, and his crew chief directed him to sit down away from the wreckage. An ambulance subsequently transported him to a hospital in Jasper, Texas. When he arrived at the hospital at approximately 11:05 p.m., the emergency room personnel treated him for facial and left arm lacerations, a left corneal abrasion, and contusions on both knees. He was then released to return home.

Within two weeks of the accident, Mr. Daniel began experiencing the symptoms of Posh-Traumatic Stress Disorder (P.T.S.D.), including nightmares, survival guilt, and insomnia. In order to cope with his overwhelming emotions, he began drinking heavily and abusing illegal and prescription drugs. While continuing to work for Point to Point after the accident, Mr. Daniel sought treatment for his symptoms at the Institute for Neuropsychiatry (Institute) in Lake | .-¡Charles, Louisiana. However, he did not effect a workers’ compensation claim for his medical condition. Instead, he sought payment of the treatment from his parents’ health insurance policies.

Mr. Daniel’s first appointment at the Institute occurred on April 22, 2009, and Nurse Practitioner Sarah Hairgrove oversaw his treatment from that date through his discharge on November 28, 2010. Ms. Hairgrove diagnosed Mr. Daniel as suffering from Bipolar Disorder, co-morbid with substance abuse, and P.T.S.D. Initially he responded to treatment and was released to work without restrictions on June 10, 2009. However, on May 20, 2009, Point to Point terminated Mr. Daniel’s employment based on a failed drug test. Mr. Daniel continued his relationship with the Institute until he was discharged by Ms. Hair-grove on November 23, 2011. The reason for his discharge from the Institute was his failure to comply with his medication treatment and to attend his appointments and therapy sessions.

However, even before the Institute discharged him from its care, Mr. Daniel sought other treatment for his condition. On July 8, 2009, he checked himself into G & G Holistic Addiction Treatment, Inc. (G & G), a North Miami Beach, Florida drug-rehabilitation center. The treatment team at G & G diagnosed Mr. Daniel as suffering from Bipolar Disorder and P.T.S.D., as had the Institute, but added alcohol and cannabis dependence to that diagnosis. The records from G & G indicate that Mr. Daniel’s substance abuse/dependence was his primary problem, and his P.T.S.D. and Bipolar Disorder were secondary. Although Mr. Daniel entered G & G’s intensive residential program, he only stayed enrolled eighteen days. On July 26, 2009, G & G discharged him as a patient for his non-compliance with his treatment.

|4Nine months and two days later, on April 28, 2011, Mr. Daniel sought treatment for his drug-dependency problems from New Beginnings at Lake Charles, LLC (New Beginnings), an addiction treatment and rehabilitation center. The initial diagnosis at New Beginnings was that of opiate, cocaine, cannabis, and sedative/hypnotic drug dependency. However, Mr. Daniel could not maintain the program requirements at New Beginnings, either. On May 16, 2011, he was released from New Beginnings against medical advice and, the next day, sought a psychiatric evaluation at Calcasieu Oaks Behavior Clinic (Calcasieu Oaks), a Lake Charles psychiatric hospital. His initial diagnosis at Calcasieu Oaks was Bipolar Disorder, poly-substance abuse, and depression. He remained at Calcasieu Oaks until May 24, 2011, at which time he returned to New Beginnings. However, the next day, he left New Beginnings against medical advice.

In addition to the treatment provided by these health care providers, Mr. Daniel also received treatment from his family physician, Dr. Mark E. Clawson, a Jennings, Louisiana family practitioner, from Yvonne H. Krielow, a nurse practitioner at The Clinic of Welsh, LLC, and the Lake Charles Memorial Hospital and Jennings American Legion Hospital emergency rooms. On numerous occasions, his mental condition required that he be transported to and from the facilities by ambulance.

By certified mail dated April 26, 2011, Mr. Daniel’s counsel made demand on Point to Point for medical treatment and indemnity benefits related to his June 27, 2008 work-related accident. When Point to Point did not affirmatively respond to this demand, on May 2, 2011, he filed a disputed claim against Point to Point seeking a judgment for indemnity and medical benefits, penalties and attorney fees, and interest for the work-related injuries he suffered as a result of the June 27, |52008 accident. Point to Point and its insurer, The Gray Insurance Company (hereinafter referred to collectively as Point to Point), filed pleadings denying Mr. Daniel’s entitlement to either indemnity or medical benefits and further asserted that his right to indemnity benefits had prescribed. As an alternate defense, Point to Point asserted that Mr. Daniel had forfeited his right to benefits pursuant to the fraud statutes, La.R.S. 23:1208 and/or La.R.S. 23:1208.1. Following a hearing, the workers’ compensation judge (WCJ) granted Point to Point’s exception of prescription as to the indemnity benefits. The WCJ executed a written judgment to this effect on August 27, 2012, and this issue is not before us.

The matter proceeded to a trial on the merits on May 2, 2013. At the start of the trial, the parties stipulated that the June 28, 2007 accident occurred during the course and scope of Mr. Daniel’s employment with Point to Point and that the only issues to be resolved pertained to medical benefits. Upon completion of the eviden-tiary phase of the trial, the WCJ took the matter under advisement. Thereafter, on September 26, 2013, the WCJ rendered oral reasons for judgment finding that Mr. Daniel suffered a mental injury as a result of his work-related accident and that his allegedly fraudulent statements did not reach the level required for proving fraud under the Louisiana Workers’ Compensation Act. The WCJ further held that Point to Point was not entitled to the $750.00 cap for non-authorized medical treatment provided for in La.R.S. 23:1142 and ordered it to reimburse Blue Cross/Blue Shield in full for any medical benefits it paid pursuant to La.R.S. 23:120s. Finally, the WCJ awarded Mr. Daniel $2,000.00 in penalties based on Point to Point’s failure to pay medical benefits and $10,000.00 in attorney fees.

| ñSubsequently, Mr. Daniel filed a motion for new trial to address the issue of reimbursement for the out-of-pocket expenses paid by his mother for his treatment. However, following Point to Point’s petition for a suspensive appeal, he voluntarily dismissed that motion and, instead, raised the issue in his answer to the appeal.

On appeal, Point to Point raises six assignments of error:

1. It was legal or manifest error to deny 23:1208 when the claimant admitted at trial that he lied in his deposition because he thought that if he told the truth it would hurt his Worker’s [sic] Compensation claim;
2. It was legal or manifest error to deny 23:1208 given the misrepresentations to the medical providers;
3. The court applied the wrong standard in evaluating whether there had been a violation of 23:1208;
4. It was legal or manifest error to not apply 23:1212 and to Order reimbursement to health insurance, a nonparty, of 100% of their payments;
5. It was legal or manifest error to find that 23:1142 was inapplicable;
6. It was legal or manifest error to award penalties and attorney’s fees[.]

In his answer to appeal, Mr. Daniel raises four assignments of error:

1. Clarification of the judgment awarding medical benefits.
2. Additional $2,000.00 penalty for failure to reimburse $4,500.00 out-of-pocket-expense paid to G & G Holistic.
3. Litigation Expenses.
4. Additional attorney fees for work done on Appeal.

OPINION

It is well settled that an appellate court reviews the factual findings of a workers’ compensation judge pursuant to the manifest error — clearly wrong J^standard of review. Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170. Additionally, a question of law is reviewed by determining if the workers’ compensation judge’s ruling is legally correct or incorrect. Magbee v. Fed. Express, 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048.

Fraud

Point to Point’s first three assignments of error all question the correctness of the WCJ’s denial of its La.R.S. 23:1208 fraud defense. Its first assignment is based on Mr. Daniel’s admission that he testified untruthfully during his deposition because he felt the truth would hurt his claim. Its second assignment is based on his inaccurate statements to the medical providers regarding his pre-accident drug use. In its third assignment, Point to Point argues that the WCJ applied the wrong standard for finding no violation of La.R.S. 23:1208. Since all three assignments are related, we will address them together.

The fraud provision at issue is found in La.R.S. 23:1208, which provides in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

In Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App. 3 Cir. 6/21/06), 934 So.2d 239, 243, this court cited the parameters applicable to the La.R.S. 23:1208 fraud defense:

Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or | ^defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the WCJ finds that all three of “these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced.” Id. at 14.
The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However, we must keep in mind that La.R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.

The evidentiary record establishes that despite his young age at the time of the June 28, 2008 accident, Mr. Daniel had a significant substance use and abuse history. In fact, Dr. Clawson’s medical records establish that on October 5, 2000, he diagnosed Mr. Daniel as suffering from attention deficit disorder and prescribed Adderall. At the time, Mr. Daniel was eleven years old. When Mr. Daniel was fourteen years old, Dr. Clawson saw Mr. Daniel for a personal consultation following the divorce of his mother and father. At that time, Dr. Clawson prescribed Strattera, an attention-deficit/hyperactivity-disorder medication to Mr. Daniel. Two years later, in September of 2005, Dr. Clawson’s medical record indicates that he prescribed Lexapro to Mr. Daniel for depression. However, his handwritten note stated that the Strattera had begun to cause Mr. Daniel to feel depressed, and the change of medication was in response to that complaint. This change of medication was added to the Adderall, and Mr. Daniel was instructed to return in one month.

During high school, Mr. Daniel began consuming alcohol, and he experimented with marijuana, mushrooms, ecstasy, and perhaps other illegal substances. The fraud defense is raised because of the contradictory statements by | nMr. Daniel concerning the extent of his alcohol and illegal substance use prior to the June 28, 2008 accident.

During direct examination at trial, Mr. Daniel testified that the nature of his drug and alcohol use prior to June of 2008, was occasional or recreational. Additionally, he denied ever using cocaine prior the accident. He did not recall if he denied a social use of drugs to the emergency room personnel immediately after the accident, but also suggested that he was overwhelmed from the circumstances of the accident at that particular time.

With regard to the extent of his past substance abuse, Mr. Daniel had stated in his deposition that he smoked marijuana approximately fifteen times during high school, but denied using any other type of illegal substances prior to the accident. However, the records of New Beginnings indicated that when he participated in the initial assessment process on April 28, 2011, he related a history of having consumed a twelve pack of beer per week beginning at the age of fifteen; smoking half an ounce of marijuana and snorting half an ounce of cocaine daily since the age of seventeen; and ingesting two to three pills of ecstasy on weekends since turning eighteen years of age. On May 10, 2011, a subsequent chemical use/mental health intake form was completed indicating that Mr. Daniel began drinking at the age of fifteen and that he mostly drank beer and bourbon during his high school years; that he tried mushrooms one time at the age of sixteen; and that he began using Hydroco-done, Roxicodone, methadone, and, once or twice, ecstasy at the age of eighteen. The form further states that Mr. Daniel began using marijuana daily at age seventeen, which varied between a half and one ounce daily beginning in June of 2008. Finally, it states that Mr. Daniel began using cocaine at the age of nineteen and that his use became problematic between June of 2008 and | inJanuary of 2009. Additionally, Mr. Daniel, in an undated Treatment Plan Assignment, wrote that his use of alcohol began at fifteen, marijuana at seventeen, and cocaine at eighteen.

When confronted with the New Beginnings records at trial, Mr. Daniel admitted that he began smoking a gram of marijuana every day or every other day when he was seventeen and that both his one-time-mushroom use at sixteen and his one-to-two-time-ecstasy use at eighteen were accurate. However, he was adamant that he never used cocaine until two weeks after the June 28, 2008 accident or that he used Hydrocodone, Roxicodone, or methadone when he was eighteen years old. When questioned why the New Beginnings’ records indicated that his cocaine use began at eighteen, he admitted that he had taken several substances prior to his admission into New Beginnings and that he was probably high at the time this information was gathered from him. In fact, an April 29, 2011 blood test revealed that he tested positive for Benzodiazepine, cocaine, methadone, and marijuana.

Ms. Hairgrove testified that when Mr. Daniel entered the Institute, he described his prior drug use as sporadic, and he stated that only after the accident did he begin using on a daily basis. Based on the description provided her, she concluded that Mr. Daniel was a recreational user of alcohol and marijuana. However, when confronted with the New Beginnings records, she stated that his drug use prior to the accident was clearly greater than what he had reported to her.

With regard to his prior marijuana use, Mr. Daniel testified that it existed as a near-daily rate for approximately two years prior to his employment with Point to InPoint and that he stopped using marijuana one month prior to high school graduation in order to pass the drug screening test for employment. When asked why in his deposition he reported using marijuana only fifteen times during high school, Mr. Daniel stated that he answered as he did because of nervousness. After his answer, the following exchange occurred between him and Point to Point’s counsel:

Q. Sir, when you say “nervousness”, were you nervous about how it would affect your case if you told me that you used marijuana before the accident at that frequency?
A. Repeat the question?
Q. Yes, sir. When you say you didn’t tell me because of nervousness, were you nervous that if you told me the truth about how much marijuana you used before the accident, that it may hurt your workers’ compensation case?
A. In all honesty, yes.

With regard to when his depression began, Mr. Daniel testified at trial that he could not recall when or if he was diagnosed with depression prior to his work accident. When asked whether he had been prescribed anti-depression medication before the accident, he stated that he did not know.

Having all this evidence before it, the WCJ, in denying Point to Point’s fraud defense, stated:

The Court does not find that this case reaches the level of severity to show fraud for the purposes of collecting workers’ compensation benefits. This accident was bad and we see few events that are as gruesome and brutal. For these reasons, judgment is rendered in favor of the claimant and against the defendant.

After reviewing the record, we find no error in the WCJ’s denial of Point to Point’s fraud allegations. With regard to Mr. Daniel’s statements to the medical providers, we find that those statements regarding his pre-accident drug use, even |12if inaccurate, were not made for the purpose of obtaining workers’ compensation benefits. In fact, all of the statements made to the health care providers concerning his past history were made before the filing of his workers’ compensation claim.

In Resweber v. Haroil Construction Co., 94-2708, p. 10 (La.9/5/95), 660 So.2d 7, 14 (emphasis added), the seminal case on La. R.S. 23:1208, the supreme court, in comparing the application of La.R.S. 23:1208 to La.R.S. 23:1208.1 (previous injuries), stated:

We therefore hold that Section 1208 applies to any false statement or misrepresentations, including one concerning a prior injury, made willfully by a claimant for the purpose of obtaining benefits, and thus is generally applicable once an accident has allegedly occurred and a claim is being made. Section 1208.1, on the other hand, applies to false statements or misrepresentations made pursuant to employment-related inquiries regarding prior medical history such as in an employment application or some post-employment questionnaire and not to statements made in relation to a pending claim.

Accordingly, we find no error in the WCJ’s denial of Point to Point’s fraud defense based on any allegedly inaccurate statements made by Mr. Daniel prior to his claim for compensation.

We likewise find no error with regard to Mr. Daniel’s statements during his trial testimony. Mr. Daniel admitted that he misrepresented his pre-accident drug use in his deposition testimony. His reason for the inaccuracy was his nervousness. However, nervousness does not equate to willfulness. We further find that it was reasonable for the WCJ to discount Mr. Daniel’s response to the suggestion proposed by defense counsel for the cause of his nervousness. Although Point to Point claims that Mr. Daniel willfully lied in order to obtain workers’ compensation benefits, we note that his response was to a question framed by defense counsel which prompted that specific statement and, in considering Mr. Daniel’s fragile mental state, all he has been through subsequent to his horrifying 113work accident, and his relatively young age (twenty-two years at the time of his deposition), it was not unreasonable for the WCJ to find that he was, in fact, nervous about revealing the full extent of his prior drug use.

We further find that any discrepancy between Mr. Daniel’s statements regarding a prior depression diagnosis were inadvertent and inconsequential. Mr. Daniel was sixteen years old on the date in question, and Dr. Clawson’s records do not contain a definitive depression diagnosis at that time. Accordingly, we find that any discrepancy between his deposition and trial testimonies did not result in a willful misrepresentation made for the purpose of obtaining workers’ compensation benefits.

Finally, we find no merit in Point to Point’s argument that the WCJ applied an inappropriate standard in finding no violation of La.R.S. 23:1208. The standard applied in such cases is as follows:

Once it has been determined that a false statement or representation has been made, the WCJ must make a factual determination as to whether, based on the record, the statement or representation was willfully made “specifically to obtain benefits, and thus to defraud the workers’ compensation system,” such that benefits should be forfeited. Issa v. LL&G Const., Inc., 02-1215, p. 8 (La.App. 1 Cir. 3/28/03), 844 So.2d 912, 917, writ denied, 03-1875 (La.10/31/03), 857 So.2d 480.

Fontenot v. State ex rel. Dep’t of Health and Hosps., 12-1265, p. 4 (La.App. 1 Cir. 4/2/13), 116 So.3d 695, 698, aff'd in part; rev’d in part on other grounds, 13-1004 (La.9/13/13), 123 So.3d 161.

Although Point to Point argues that the WCJ’s use of the term “severity” in its oral reasons for judgment in effect heightens its burden of proof from a preponderance of the evidence to something more stringent, we disagree with its assertion— establishing the level of fraud or the purpose or intent behind the statement has always been required as part of the standard applicable by the WCJ. 114In addressing the type of statements that result in forfeiture of benefits, the Resweber court explained:

However, [plaintiff] argues that, if read as written, the statute is too broad because it will result in the forfeiture of benefits for any false statement that is made, regardless of how inconsequential. This argument fails to recognize that the statute does not require the forfeiture of benefits for any false statement, but rather only false statements that are willfully made for the put~pose of obtaining benefits. It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

Resweber, 660 So.2d at 16.

With this standard in mind, as clarified by Resweber, it is reasonable to find that the WCJ did not believe Mr. Daniel’s inaccurate statements rose to the level of fraud, fraud in this context meaning willfully made for the purpose of obtaining benefits, so as to subject him to forfeiture pursuant to La.R.S. 23:1208. Accordingly, we find no merit in the first three assignments of error, and we affirm the judgment of the WCJ denying Point to Point’s fraud defense.

La.R.S. 23:1212

In its fourth assignment of error, Point to Point argues that the WCJ erred by failing to apply the provisions of La. R.S. 23:1212 and by ordering it to reimburse Blue Cross/Blue Shield, a non-party, for one hundred percent of the benefits it paid in relation to Mr. Daniel’s treatment pursuant to La.R.S. 23:1205.

Louisiana Revised Statutes 23:1205(B) provides:

Any company which contracts for health care benefits for an employee shall have a right of reimbursement against the entity responsible for the payment of workers’ compensation benefits for such employee if the company paid health care benefits for which such entity is liable. The amount of reimbursement shall not exceed the amount of the entity’s liability for the workers’ compensation |1sbenefit. In the event the company seeks recovery for such in conjunction with a claim against any other party brought by the employee, the company may be charged with a proportionate share of the reasonable and necessary costs, including attorney fees, incurred by the employee in the advancement of his claim or suit.

Louisiana Revised Statutes 23:1212, on the other hand, provides:

A. Except as provided in Subsection B, payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses. This Section shall not be regarded as a violation of R.S. 28:1163. If the employee or the employee’s spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.
B. Payments by Medicaid or other state medical assistance programs shall not extinguish these claims and any payments made by such entities shall be subject to recovery by the state against the employer or insurer.

Although the provisions of these statutes are conflicting, La.R.S. 23:1205(B) has been held to provide a specific exception to the general rule under La.R.S. 23:1212. Thus, any insurance company which contracts to provide health benefits to an employee, and who provided such benefits, has a right of reimbursement from any party responsible for providing workers’ compensation benefits for the employee. Chailland Bus. Consultants v. Duplantis, 03-2508, 03-2509 (La.App. 1 Cir. 10/29/04), 897 So.2d 117, writ denied, 04-2922 (La.2/4/05), 893 So.2d 878; Ryan v. Blount Bros. Constr., 40,845 (La.App. 2 Cir. 4/19/06), 927 So.2d 1242, writ denied, 06-1219 (La.9/15/06), 936 So.2d 1272; see also Olivier v. City of Eunice, 11-1054 (La.App. 3 Cir. 6/6/12), 92 So.3d 630, writ denied, 12-1570 (La.10/12/12), 98 So.3d 874.

I^Still, in the matter before us, we find that the WCJ erred in ordering Point to Point to reimburse Blue Cross/Blue Shield for any benefits it paid as Mr. Daniel’s health insurer. Blue Cross/Blue Shield has not intervened in this matter and, therefore, is not a party to this suit. We note that in the case relied on by Mr. Daniel, the health insurer intervened in the workers’ compensation claim. Noe v. Basile Police Dept., 12-333 (La.App. 3 Cir. 11/7/12), 103 So.3d 689. Accordingly, we reverse that portion of the WCJ’s judgment which awards reimbursement to a non-party.

LaJt.S. 23:1142

In its next assignment of error, Point to Point argues that the WCJ erred in finding that the provisions of La.R.S. 23:1142 were inapplicable to this matter. It argues that this finding is manifestly erroneous under the factual scenario presented because it provided Mr. Daniel medical treatment immediately after the accident for his left knee and because its May 11, 2011 answer admits that the accident was work-related and that no denial of medical benefits had occurred. It further relies on a May 26, 2011 letter to Mr. Daniel’s counsel, in which its counsel advised:

As to medical benefits, I understand that there have been no denials but rather that the company does not have any information that medical benefits have been received or sought since 2008. As such, please be advised that reasonable, necessary and related medical benefits are being approved. Please produce copies of medical records since July of 2008 which evidence the reasonableness, necessity and relatedness of any medical benefits being sought.. Also please advise what doctors the plaintiff wishes to treat with for these issues.

Finally, Point to Point notes that it stipulated in its October 20, 2011 pretrial statement that there was an accident within the course and scope of Mr. Daniel’s employment, “with some injury[,]” and that all submitted medical bills had been 117“correctly and timely paid subject to 23:1142b and the health insurance credit issue[.]”

Mr. Daniel testified that he did not obtain pre-authorization from Point to Point because he and his parents were only focused on him receiving help for his mental condition and drug dependency. Furthermore, he stated that he was not even aware that his mental injury qualified as a work-related injury.

Brenda Guillot, the adjustor on this claim, first testified that Mr. Daniel’s request for medical benefits was not denied by Point to Point, as evidenced by its May 13, 2011 answer, which states:

16.
Defendants, POINT TO POINT DIRECTIONAL DRILLING, INC. and THE GRAY INSURANCE COMPANY, show that the averment on the lawsuit that medical benefits have been denied is incorrect and as such it is denied.
However, when confronted with allegations denying the existence of a work-related injury or his entitlement to medical benefits, Ms. Guillot admitted that Point to Point initially denied Mr. Daniel’s request based on a lack of supporting medical evidence and because of his pre-accident drug use and pre-existing mental condition. Still, she suggested that although Point to Point’s pleadings denied Mr. Daniel’s claim, she never specifically denied his claim.

| ^Despite its initial denial, Ms. Guillot testified that Point to Point paid the $750.00 cap to Lake Charles Memorial Hospital, New Beginnings, the Jennings American Legion Hospital, and G & G and $485.00 to the Institute for Neuropsychia-try. She further admitted that the amount owed pursuant to the workers’ compensation fee schedule to each of these health care providers would exceed the statutory cap. In response to questioning from the WCJ, she stated that Point to Point limited the reimbursement to these providers to the cap amount because no prior approval was obtained for the treatment provided. During direct examination, she explained that the La.R.S. 23:1142 rule was invoked because “[w]e, as an insurance company ... we don’t want to be cold or anything to that sort per se.” However, when pressed for the factual reasoning behind the application, she stated, “If there’s no pre-approval of non-emergency charges, they are assessed at a $750 cap.”

Louisiana Revised Statutes 23:1142(B) places a $750.00 cap on costs for non-emergency diagnostic testing or treatment received by an employee in the absence of the employer’s prior approval of the testing/treatment. However, no such cap exists when the provided health care arose from an emergency situation or when the employer denies that the employee’s claim is compensable. La.R.S. 23:1142(C) and (E).

119In Carradine v. Regis Corp., 10-529 (La.App. 3 Cir. 11/3/10), 52 So.3d 181, which Mr. Daniel relies on and Point to Point quotes from extensively, this court held that the exception provided by La. R.S. 23:1142(E) applies even in instances where the employee undergoes pre-claim, unauthorized medical treatment if the employer denies that the employee’s injury is compensable. In applying the statute to the facts before it, the court stated:

Our decision to apply the exception in La.R.S. 23:1142(E) to unauthorized medical expenses incurred before the employee decides to claim workers’ compensation benefits ensures that claimants in this situation are not unnecessarily deprived of reimbursements for medical services which the employer is typically required to furnish. Next, no employer who accepts that the employee has suffered a compensable injury is deprived of the opportunity to participate in the decision about what medical services will be furnished. Finally, no employer is automatically deprived of the opportunity to take advantage of the statutory cap created in La.R.S. 23:1142(B); employers in this situation are simply required to choose between disputing compensability and limiting their liability under the statutory cap.

Id. at 193.

In applying the La.R.S. 23:1142(E) exception to this matter, the WCJ held that Point to Point initially denied Mr. Daniel’s claim and, for that reason, it could not rely on the $750.00 cap in repaying those medical expenses he incurred prior to his compensation claim. As this is a finding of fact, it is reviewed pursuant to the manifest error standard of review. Poissenot, 56 So.3d 170.

After reviewing the record, we find that it was reasonable for the WCJ to conclude that Point to Point did, in fact, initially deny the compensability of Mr. Daniel’s claim. We further find that although the facts in this matter vary slightly from those presented in Carradine, that ruling still applies to deny Point to Point’s application of the cap. Mr. Daniel did receive medical treatment immediately following the June 28, 2008 accident for the cuts and bruises he experienced 120during the actual collision. However, because he never sought workers’ compensation benefits pri- or to obtaining unauthorized treatment for his mental injury, it was reasonable for the WCJ to find the medical-expense cap inapplicable based on Point to Point’s initial denial of his claim.

Furthermore, because the WCJ was presented with conflicting evidence pertaining to whether Point to Point denied Mr. Daniel’s claim, her finding on that issue is not manifestly erroneous. Accordingly, the WCJ’s judgment finding that Point to Point is not entitled to the $750.00 cap for non-authorized medical treatment is affirmed.

Penalties and Attorney Fees

In its final assignment of error, Point to Point argues that the award of penalties - and attorney fees pursuant to La.R.S. 23:1201(E) was contrary to the law and the evidence because Mr. Daniel’s medical expenses were paid by his father’s health insurer, because he failed to obtain pre-authorization for that treatment, and because once it was aware of his claim, its adjustor “worked diligently to obtain the medical bills and to pay each of the providers $750[.]” Finally, it argues that because it reasonably relied on its fraud defense, Mr. Daniel’s claim was reasonably controverted.

The penalty and attorney fee provisions in La.R.S. 28:1201, at the time of Mr. Daniel’s work accident, provided in part:

E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
F. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty | ⅞1 dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
(3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.
(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.
(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance.

In Carradine, 52 So.3d at 194, this court stated that:

A claim for benefits has been reasonably controverted when the employer “engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the |22time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. The decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181.

Ms. Guillot provided several excuses for Point to Point’s failure to comply with La.R.S. 23:1201(E): Its reliance on La. R.S. 23:1142; its belief that Mr. Daniel’s current problems were not work-related as his drug use and some mental problems predated the accident; and its allegations of fraud. Pursuant to the La.R.S. 23:1142 statutory cap, she stated that Point to Point paid $750.00 to Lake Charles Memorial Hospital, New Beginnings, the Jennings American Legion Hospital, the Institute, and G & G.

Ms. Guillot testified that she was not aware of Mr. Daniel’s claim until he filed his disputed claim in April of 2011. She admitted that she learned nothing further about his claim until Point to Point’s counsel provided her with the subpoenaed medical records. Ms. Guillot agreed that a nurse case manager is normally assigned to a claim to assist in obtaining medical information and in determining the appropriateness of medical treatment. However, she stated that this claim was not normal because all of Mr. Daniel’s treatment occurred before Point to Point was even aware of his claim. Ms. Guillot further defended the lack of a nurse case manager by explaining that she lacked the authority to assign such a person and because the assistance garnered from a nurse case manager was rendered moot since the treatment had already been provided. Although she admitted that she had a hard time following this claim, she stated that a nurse case manager would have experienced the same difficulty.

At the start of the trial, the parties stipulated that Mr. Daniel sought penalties and attorney fees on only two issues: (1) Point to Point’s failure to reimburse the 12s$4,500.00 co-pay for his treatment from G & G; and (2) Point to Point’s application of the $750.00 cap pursuant to La.R.S. 23:1142(B) to the health care providers. In her oral reasons for judgment, the WCJ stated that Mr. Daniel was entitled to a penalty of $2,000.00 and an attorney fee of $10,000.00 based on Point to Point’s failure to pay the medical benefits.

The evidence reveals that Mr. Daniel faxed a request for payment of medical expenses to Point to Point’s counsel on November 16, 2011. The health care providers listed in the request are: Lake Charles Memorial Hospital; Jennings American Legion Hospital; the Institute; Calcasieu Oaks; New Beginnings; Acadi-an Ambulance; and Walgreens. The request states that the actual medical records for these providers were already in Point to Point’s possession.

On October 2, 2012, Mr. Daniel faxed another request for payment of medical expenses to Point to Point’s counsel, which listed outstanding balances of $239.96 and $81.94 for Calcasieu Oaks and the Institute, respectively. On December 10, 2012, he faxed a statement from G & G to Point to Point’s counsel, which listed an outstanding balance of $3,641.21.

The payment history introduced by Point to Point lists the amounts and the dates The Gray Insurance Company paid the health care providers in Mr. Daniel’s workers’ compensation claim:

1. Acadian Ambulance Services: $1,032.72 on March 1, 2012.
2. Jennings American Legion Hospital: $750.00 on November 10, 2011.
3. Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital: $750.00 on November 28, 2011.
4. Acadian Ambulance ' Services: $660.05 on January 17, 2012.
5. Institute for Neuropsychiatry: $375.00 on January 10, 2012.

|24In Carradine, 52 So.3d at 194, we held that an employer’s reliance on the statutory cap provided by La.R.S. 23:1142(B) was a “nonfrivolous legal dispute, as it is juris-prudentially supported.” However, we stated that this reliance does not justify the employer’s failure to reimburse the employee for emergency care received or the first $750.00 of non-emergency diagnostic testing or treatment provided by each health care provider.

In this matter, Point to Point’s reliance on the statutory cap is supported as it is a nonfrivolous legal dispute. Based on the medical records and the payment history introduced into evidence, we find that Point to Point was put on notice regarding the medical expenses by Mr. Daniel’s November 16, 2011 letter. While its $750.00 payments to Jennings American Legion Hospital and Lake Charles Memorial Hospital were within the sixty-day period allowed by La.R.S. 12:1201(E), its payment to the Institute was not timely. Moreover, there is no record of any payment to Cal-casieu Oaks or G & G. While Ms. Guillot stated that she paid $750.00 to G & G and $458.00 to the Institute for Neuropsychia-try, her testimony is not substantiated by any documentation with regard to G & G and is only substantiated as to $375.00 with regard to the Institute.

We further find reasonable the WCJ’s implied finding that Point to Point failed to reasonably controvert Mr. Daniel’s claim. Despite Ms. Guillot’s complaint regarding the length of time between the provision of medical treatment and her receipt of the associated medical records, we note that Mr. Daniel was still undergoing treatment at New Beginnings on the date he filed his disputed claim and that he would not enter Calcasieu Oaks until fifteen days after he filed his claim. “The employer or compensation insurer has a duty to investigate and make every reasonable effort to assemble and assess factual and medical information in | ¡^order to ascertain whether the claim was com-pensable before denying benefits.” Delatte v. Pala Grp., LLC, 09-913, p. 12 (La.App. 1 Cir. 2/10/10), 35 So.3d 291, 299, writ denied, 10-562 (La.5/7/10), 34 So.3d 865. In this instance Point to Point did nothing to investigate Mr. Daniel’s claim. Rather, it relied on its fraud defense to deny payment of his medical expenses. However, it fraud defense was based on information it could not have possessed until after it obtained his deposition and the medical records it relied on. Accordingly, we affirm the WCJ’s award of penalties and attorney fees.

ANSWER TO APPEAL

Clarification of Medical Expenses

In his first assignment of error, Mr. Daniel seeks clarification of the WCJ’s award of medical benefits. The WCJ held that Mr. Daniel proved that his mental injury was work-related and that he was entitled to medical benefits. However, Mr. Daniel argues that the judgment failed to specify whether the medical benefits awarded included reimbursement of his out-of-pocket expenses of $4,500.00 for his co-pay, his mileage to G & G in Florida, and $585.00 he paid to the Institute.

On October 2, 2012, Mr. Daniel faxed a request for reimbursement of payments he made to the Institute in the amount of $585.00. This was followed by an October 22, 2012 request for reimbursement of his out-of-pocket expenses of $21.91 for travel insurance, $438.10 for air fare, and a $4,500.00 co-pay for his treatment from G & G. During the trial, Mr. Daniel introduced evidence establishing that the distance from his home to G & G in Lake Worth, Florida was 964 miles one way. Furthermore, Mr. Daniel’s mother, Kimberly Fox, testified that she charged the $4,500.00 co-pay to her credit card, which she has since paid off.

|2rMs. Guillot admitted that Mr. Daniel was not reimbursed the $4,500.00 co-pay because, she said, it is “uncustomary for us to reimburse any out-of-pocket expense under the workers’ compensation statutes.” She further stated, “I do not reimburse out of pocket or anything off a bank statement or Visa statement or anything of that such. I would have to reimburse the facility.”

Based on the WCJ’s award of medical benefits and our affirmation of the denial of Point to Point’s fraud defense, we find that Mr. Daniel is entitled to reimbursement of his out-of-pocket expenses, including the $4,500.00 co-pay, his payments to the Institute, and mileage to and from Florida. Based on this finding, we further award Mr. Daniel an additional $2,000.00 in penalties based on Point to Point’s failure to reimburse him for the $4,500.00 copay within the sixty days allowed by La. R.S. 28:1201(E).

Litigation Expenses

In his next assignment of error, Mr. Daniel seeks a clarification that the court costs assessed by the WCJ to Point to Point includes the litigation expenses incurred by him in prosecuting his claim. These expenses, which were introduced into evidence by Mr. Daniel during the trial, consist of court-reporter and medical-record costs. In her oral reasons for judgment, the WCJ simply stated, “Costs are to be paid by the defendant.” The September 28, 2013 written judgment echoes that statement.

Pursuant to La.R.S. 13:4533, which provides that the “costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs[,]” we find that Mr. Daniel’s litigation expenses are included in the costs that the. WCJ assessed to Point to’ Point. Accordingly, we amend the WCJ’s judgment to reflect 127that the costs to be paid by Point to Point includes the $682.11 in litigation expenses.

Additional Attorney Fees

In his final assignment of error, Mr. Daniel seeks additional attorney fees for work performed by his counsel in defense of Point to Point’s appeal. Considering the success his counsel has achieved in defending this judgment on appeal, we find that Mr. Daniel is entitled to an additional $5,000.00 in attorney fees.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the workers’ compensation judge awarding reimbursement to Blue Cross/Blue Shield; we render judgment to award Mr. Daniel $2,000.00 in penalties based on Point to Point’s failure to reimburse his $4,500.00 out-of-pocket expense; we amend the judgment to clarify that the medical-benefit award includes reimbursement of Mr. Daniel’s $4,500.00 and $585.00 out-of-pocket expenses, his mileage to and from Florida, and the inclusion of the $682.11 litigation expense in the costs assessed to Point to Point; and we affirm in all other respects. We further award Mr. Daniel an additional $5,000.00 in attorney fees for work performed on appeal.

AFFIRMED IN PART AS AMENDED; REVERSED IN PART; AND RENDERED.

      . Blue Cross/Blue Shield of Texas was his father's health insurer. Blue Cross/Blue Shield of Louisiana was his mother’s health insurer.

      . Dr. Clawson has previously been identified as Mr. Daniel's family physician.

      . Notably, this use began near or after the time of the accident at issue in this litigation.

      . At his deposition, Mr. Daniel denied ever being diagnosed or treated for depression.

      . This finding was despite the fact that the technician’s assessment at the time was that Mr. Daniel was calm; fully oriented; had an appropriate affect and intact linear thought process and memory; and that his cognitive function, abstraction, and insight at the time of the intake process was normal.

      . The following allegations were included in Point to Point’s answer:
      3.
      Defendants ... admit that on June 16, 2008 the claimant was in the course and scope of the employment when involved in an accident; the existence or occurrence of injury therein, however, is denied for lack of information sufficient to justify a belief therein.
      7.
      Defendants ... deny that the claimant has sustained an injury and/or a loss of earnings capacity for lack of information sufficient to justify a belief therein. Defendants require strict proof of any and all allegations.
      8.
      Defendants ... deny that the claimant is entitled to receive ... medical benefits or any other workers’ compensation benefits whatsoever for lack of information sufficient to justify a belief therein. Defendants require strict proof of any and all allegations.

      . The exception to the $750.00 cap based on the employer's denial of compensability is provided by La.R.S. 23:1142(E):
      Exception. In the event that the payor has denied that the employee’s injury is com-pensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Betty SINEGAL v. LAFAYETTE PARISH SHERIFF’S OFFICE.
    No. 13-1437.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Michael B. Miller, Jacqueline B. Ma-necke, Miller & Miller, Crowley, Louisiana, for Plaintiff/Appellant, Betty Sinegal.
    James D. Hollier, Philip H. Boudreaux, Jr., Neuner Pate, Lafayette, LA, for Defendant/Appellee, Lafayette Parish Sheriffs Office.
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

Bln this workers’ compensation case, the claimant appeals a judgment denying her motion for penalties and attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts in this matter are not in dispute. On November 29, 2010, a consent judgment was signed by the workers’ compensation judge (WCA) wherein the parties stipulated that the claimant, Betty Sinegal, was injured on April 26, 2006, and December 12, 2007, in the course and scope of her employment with Defendant, the Lafayette Parish Sheriffs Department. The consent judgment, in relevant part, ordered Defendant to “pay all reasonable and necessary medical treatment” resulting from the injuries that she sustained in the two accidents.

Sinegal filed a motion and order for penalties and attorney fees on February 6, 2013. She claimed that Defendant’s failure to approve and install a walk-in bathtub and to approve an occupational therapy assessment for the installation of hand rails throughout her home as recommended by two of her physicians, Dr. Bryan Frentz and Dr. Charles Bramlet, respectively, amounted to a violation of the consent judgment entitling her to the relief sought. On May 1, 2013, Defendant filed a memorandum in opposition to the motion. Defendant claimed that it had timely denied both requests based on clinical recommendations in a utilization review it received from Rehabilitation, Inc., (Rehab Inc.). Rehab Inc. contested the medical necessity of each request after having reviewed Sinegal’s medical records from Drs. Frentz and Bramlet as well as the report from Sinegal’s functional capacity evaluation (FCE). More specifically, Rehab Inc. determined that the bathtub would be considered a convenience item that was not 12medically necessary. Rehab Inc. recommended that the occupational therapy home evaluation be denied as well because it determined that the falls Sinegal was experiencing were due to balance problems due to weight gain and a seizure disorder not related to her work injury. Defendant pointed out that because neither physician filed a Form 1009 Disputed Claim for Medical Treatment and because Sinegal had not filed a Form 1008 Disputed Claim for Compensation with the Office of Workers’ Compensation seeking review of Defendant’s denial of the physician’s requests, “Sinegal’s motion for penalties and attorney fees should be denied based on prematurity.” In that vein, Defendant argued that the consent judgment should not operate to deprive it of the right to contest the medical necessity of recommended treatment. Moreover, Defendant submitted that the workers’ compensation scheme does not provide for the assessment of penalties and attorney fees where a “claim is reasonably controverted,” as it was in the instant matter. La.R.S. 23:1201(F). Finally, Defendant submitted that although the term “claim” is not defined in the Louisiana Workers’ Compensation Act, the supreme court has interpreted that term to mean “the underlying claim for relief’ and “not the enforcement of a judgment.” Fontenot v. Reddell Vidrine Water Dist., 02-439, p. 13 (La.1/14/03), 836 So.2d 14, 23. Accordingly, Defendant contended that Sinegal must file a 1008 regarding its denial of the walk-in bathtub and the occupational therapy assessment in order to establish a “claim” for penalties and attorney fees as a result of those denials.

Following a June 21, 2013 hearing, the WCJ denied Sinegal’s motion for penalties and attorney fees. Sinegal now appeals, asserting that the WCJ erred: 1) in failing to find that she was entitled to penalties and attorney fees; 2) in using the | improper use of summary proceedings and La.R.S. 23:1203.1 as a reasonable basis for denying penalties and attorney fees, and 3) in dismissing her claim for penalties and attorney fees with prejudice.

DISCUSSION

“Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the WCJ’s decision to award penalties and attorney fees using the manifest error/clearly wrong standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

Mallery v. Dynamic Indus., Inc., 11-1221, p. 6 (La.App. 3 Cir. 3/14/12), 86 So.3d 826, 830.

In the instant matter, the WCJ denied Sinegal’s motion for penalties and attorney fees from the bench after the June 21, 2013 hearing, stating, in pertinent part:

I am going to deny the motion for penalties and attorney’s fees because what the motion actually seeks is medical treatment and it is not medical treatment that was specifically awarded in the November 2010 consent judgment, and in fact was actually recommended subsequent to that consent judgment .... What we have in the present matter are issues relating to the medical necessity of two items. And my denial of the motion has really little to do with the application or not of the medical guidelines, it is simply that I never feel it appropriate to determine medical necessity in a summary fashion, much less when the summary vehicle is [one] solely for penalties and attorney’s fees.... [T]he application of the guidelines or not, does[,] |4I think[,] present a reasonable controversion of the claim which would likewise be a reason for denying the motion for penalties and attorney’s fees. Since the issue of medical treatment is not before me I do not decide whether or not 1203.1 under Revised Statute Title 23 applies in this case. Those issues are not properly joined and not before me. So I deny the motion for penalties and attorney’s fees and note that this does appear to be a matter which would require the following filing of a 1008 to properly join all issues.

Sinegal’s Entitlement to Penalties and Attorney Fees

Sinegal’s motion for penalties and attorney fees is premised on the assumption that Defendant’s failure to approve and install a walk-in bathtub and to approve an occupational therapy assessment for the installation of hand rails throughout her home amounted to a violation of the consent judgment. Likewise, La.R.S. 2S:1201(G), the statute upon which Sinegal relies as the basis for her claim of penalties and attorney fees references the nonpayment of “any award payable under the terms of a final, nonappealable judgment ... within thirty days after it becomes due.”

A ... peremptory exception of no cause of action is designed to test the legal sufficiency of the plaintiffs petition. It poses the question “whether the law affords a remedy on the facts alleged in the pleading.” [Everything on Wheels Subaru v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993) ]. Louisiana has a system of fact pleading, and “[t]he mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.” Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. As we recently noted, “[i]t is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions.” Bibbins v. City of New Orleans, 02-1510, p. 5 (La.App. 4 Cir. 5/21/03), 848 So.2d 686, 691, writ denied, 03-1082 (La.10/10/03), 855 So.2d 357.

Bernberg v. Strauss, 08-488, p. 5 (La.App. 4 Cir. 12/3/08), 999 So.2d 1184, 1187. “[T]he failure to disclose a cause of action ... may be noticed by either the trial court or appellate court on its own motion.” La.Code Civ.P. art. 927(B).

[¡¡To maintain a cause of action for an award of penalties and attorney fees, Sine-gal necessarily had to allege facts sufficient to prove that Defendant violated the terms of the consent judgment. The 2010 consent judgment obligated Defendant to “pay all reasonable and necessary medical treatment” resulting from the injuries Sinegal sustained in the two accidents. It is axiomatic that in order for there to be a violation of that judgment, there has to first be a finding that any requested treatment is reasonable and necessary. Here, however, we have two requests for treatment recommended by two of Sinegal’s physicians and two denials from Defendant based on utilization reviews. Those reviews determined that the requested walk-in bathtub was not medically necessary and that the need for an occupational therapy assessment for the installation of hand rails was not causally related to the injuries referenced in the consent judgment. What is obviously lacking, however, is a judicial determination that both requests were reasonable and necessary for the treatment of the injuries covered by the consent judgment. Instead, Sinegal has made the conclusory allegation that Defendant’s denials violated the consent judgment without first showing that she has received such a judicial determination so as to entitle her to the penalties and attorney fees that she seeks in her motion.

Citing La.Code Civ.P. art. 926, Sinegal argued at the June 21, 2013 hearing and she continues to argue on appeal that Defendant waived any right that it may have had to oppose the motion on grounds of prematurity and/or the unauthorized use of summary proceedings because she filed a motion to substitute counsel and request for notice of trial and a motion to reset the hearing without pleading any dilatory exceptions in its motions.

|fiIn Carr v. Masters, 469 So.2d 1147 (La.App. 4 Cir.1985), the plaintiff filed a petition seeking partition of a business partnership. The defendant answered the suit, filed a reconventional demand, and later filed a motion for summary judgment alleging that any attempt to partition the partnership before its dissolution was premature. After a hearing, the trial court granted the defendant’s motion for summary judgment and dismissed the suit. On appeal, the fourth circuit reversed, maintained an exception of no cause of action, and remanded the matter to the trial court granting the plaintiff leave to amend her petition to state a cause of action. In doing so, the appellate court reasoned:

We reject Carr’s argument that Ms. Masters’ pleading was nothing more than an attempt to plead the dilatory exception of prematurity after it had been waived by filing the answer. Masters objects to a more fundamental defect than mere prematurity. Although she complains of the suit to partition as “premature” before dissolution of the partnership, it is premature because there can be no cause of action by one partner against another on partnership matters. To find that Masters waived an objection to such a serious defect in the suit would allow Carr to proceed with a cause of action that is legally nonexistent.

Id. at 1150.

Without deciding whether Defendant in fact waived any right to object to Sinegal’s motion as premature, we conclude that Defendant’s opposition to the motion amounts to “a more fundamental defect that mere prematurity.” Id. In the absence of any judicial determination that Defendant failed to pay any reasonable and necessary medical treatment resulting from the injuries Sinegal sustained in her April 26, 2006, and December 12, 2007 workplace accidents, we conclude that Sinegal has failed to state a cause of action for her entitlement to penalties and attorney fees for violation of the consent judgment. Accordingly, we notice an 17exception of no cause of action on our own motion and affirm the judgment denying Sinegal’s motion for penalties and attorney fees. The WCJ did not err in failing to find that Sinegal was entitled to penalties and attorney fees. Thus, Sine-gal’s first assignment of error lacks merit.

Moreover, since we affirm the appealed judgment on the basis that Sinegal failed to state a cause of action for the relief sought, we need not determine whether the WCJ erred in using the improper use of summary proceedings and La.R.S. 23:1203.1 as a reasonable basis for its ruling. Sinegal’s second assignment of error is moot.

Dismissal With or Without Prejudice

Sinegal complains that the WCJ erred in dismissing her claim for penalties and attorney fees with prejudice. Examination of the judgment appealed reveals that the WCJ denied Sinegal’s motion for penalties and attorney fees rather than any claim that she may have for that relief. Accordingly, this assignment of error lacks merit.

DECREE

For the reasons assigned, the judgment of the WCJ denying Betty Sinegal’s motion for penalties and attorney fees is affirmed. Costs of this appeal are assessed against Betty Sinegal.

AFFIRMED.

      . Louisiana Revised Statutes 23:1203.1 was enacted by the legislature in 2009 to provide for the establishment of a medical treatment schedule. The statute provides that "[ajfter the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203, etseq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule.” La.R.S. 23:1203.1(1). The Louisiana Workforce Commission, Office of Workers’ Compensation Administration promulgated the Louisiana Medical Treatment Guidelines (the medical guidelines) in June 2011.

      . Sinegal designated the record for appeal without requesting inclusion of the aforementioned motions allegedly filed by Defendant.


author: PICKETT, Judge.

text:
    Nicole Michelle CLARK v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY.
    No. 13-1431.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.
    Adam P. Johnson, Johnson & Verchier, L.L.C., Lake Charles, LA, for Plaintiff/Appellant, Nicole Michelle Clark.
    Laura C. Hopes Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, Louisiana Dept, of Public Safety.

      Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   PICKETT, Judge.

|! Nicole Clark appeals the judgment of the trial court upholding an administrative adjudication suspending her driver’s license for suspicion of driving under the influence of alcohol.

STATEMENT OF THE CASE

In the early morning hours of December 19, 2012, Calcasieu Parish Sheriffs Deputy Nathan McKee was dispatched to South Park Road in Lake Charles. The dispatch was in response to a call from a local tow truck company that had received a call to tow a vehicle at that location. When Deputy McKee arrived, he found a vehicle off the roadway. No one was in or near the vehicle, and the vehicle was undamaged but muddy. There were skid marks that Deputy McKee believed indicated the vehicle had run off the roadway. He radioed his dispatcher, who informed him that the vehicle was registered to Ms. Clark and that the vehicle had not been reported stolen. Deputy McKee decided to go to Ms. Clark’s home and question her. He admitted at the hearing that he suspected that the driver of the vehicle had been driving while intoxicated.

When he arrived at Ms. Clark’s residence, Deputy McKee knocked on the door. Ms. Clark’s roommate answered. Deputy McKee asked to speak with Ms. Clark. When Ms. Clark came to door, Deputy McKee asked her to come down from the porch. Deputy McKee noted that Ms. Clark’s speech was slurred, she swayed while standing, and her eyes were red. She also smelled of alcohol. In response to Deputy McKee’s questions, Ms. Clark admitted that she had been driving her vehicle, that she drank three beers, and that she had not had any alcoholic beverages after she left her vehicle. Based on this information, Deputy McKee arrested Ms. Clark. He conducted field sobriety tests, which she failed. |2He brought Ms. Clark to the police station, where Ms. Clark submitted to a blood alcohol test. The results showed that her blood alcohol content (BAC) was 0.207%, double the legal limit of 0.08%.

The Department of Public Safety notified Ms. Clark that her driver’s license would be suspended for suspicion of driving while intoxicated. Ms. Clark sought review before an administrative hearing. The hearing officer upheld the suspension. Ms. Clark sought judicial review of the decision. Following a trial on September 25, 2013, the trial court upheld the suspension. Ms. Clark now appeals.

ASSIGNMENT OF ERROR

Ms. Clark alleges one assignment of error:

The trial court erred in determining based on insufficient evidence that the arresting officer had reasonable grounds to believe Ms. Clark was driving under the influence of alcoholic beverages.
DISCUSSION
The Informed Consent Law, LSA-R.S. 32:661-668, “addresses the testing of persons suspected of operating motor vehicles and motor powered watercraft while under the influence of alcoholic beverages or controlled dangerous substances” and provides sanctions for persons who refuse to submit to a chemical test for intoxication or who submit to a chemical test, the results of which are presumptive of intoxication. Boe v. State, 558 So.2d 1333, 1335 (La.App. 4th Cir.1990). The statutes also provide the administrative procedures for sanctioning such persons and for review of such decisions. Id.
LSA-R.S. 32:667 authorizes law enforcement officers to seize the driver’s license and issue a temporary receipt when a person has been arrested for DWI and either refuses a chemical test or takes the test which results in a finding of a blood alcohol level presumptive of intoxication. A person may request an administrative hearing under LSA-R.S. 32:668(A) to determine whether the law enforcement officer had reasonable grounds to believe that the person who had been driving was under the influence of either alcoholic beverages or illegal controlled dangerous substances.

Flynn v. State, Dep’t of Pub. Safety and Corr., 608 So.2d 994, 995-96 (La.1992). The party appealing the decision of the administrative hearing is entitled to a hearing de novo in the trial court. Id.

Ms. Clark claims that the state failed to show that Deputy McKee had reasonable grounds to suspect her of driving while intoxicated when he went to her home to question her. Deputy McKee admitted to the trial court that when he arrived at the scene at that time of the night and found a car with no driver that had obviously lost control and run off the road, he began to suspect the driver had been drunk. He gathered information to determine the owner of the vehicle and her home address. When he went to Ms. Clark’s home, Deputy McKee asked her roommate to speak to Ms. Clark. Ms. Clark claims that the resultant interaction between her and Deputy McKee constituted an investigatory stop. We disagree. This was a voluntary interaction. The information Ms. Clark provided to Deputy McKee resulted in Ms. Clark’s arrest.

Ms. Clark voluntarily agreed to speak to Deputy McKee. Deputy McKee noted immediately that Ms. Clark appeared drunk. He only arrested her for suspicion of drunk driving after Ms. Clark admitted that she had consumed three beers before driving her vehicle, that she had driven the car off the road, and that she had not consumed any alcohol after leaving the car on the side of the road. At that point, Deputy McKee determined that reasonable grounds existed to administer chemical tests under the law. Ms. Clark submitted to the test and does not contest the procedures under which they were administered. The tests revealed that Ms. Clark’s BAC was above the legal limit for operating a motor vehicle. Thus, the suspension was properly affirmed by the trial court.

| ¿CONCLUSION

The judgment of the trial court upholding the suspension of Ms. Clark’s driver’s license is affirmed. Costs of this appeal are assessed to Nicole Clark.

AFFIRMED.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Michael READO, Sr.
    No. 14-341.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      John Foster DeRosier, District Attorney-14th JDC, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA for Appellee: State of Louisiana.
    Edward Kelly Bauman, La Appellate Project, Lake Charles, LA, for Appellant: Michael Reado, Sr.
    Court composed of MARC T. AMY, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hDue to the procedural posture of this appeal, the underlying facts are neither known nor relevant. Although this court received a notice of appeal in late December 2013, the appeal has never been lodged. On February 28, 2014, Defendant’s counsel filed a “Notice of Death of Appellant; Motion for Summary Reversal.” Counsel cited jurisprudence to support the reversal; also, he attached a copy of Defendant’s newspaper obituary. Subsequently, counsel supplied a death certificate.

In light of Defendant’s death, the court notes one of its earlier opinions:

[Djefense counsel filed a “Motion to Vacate the Judgments of Conviction and Abate Prosecution Ab Initio” with this court. Defense counsel asserts that, under the cited jurisprudence, a defendant’s convictions and sentences should be vacated and the prosecution voided ab initio when that defendant dies during the pendency of his appeal. State v. Harvey, 94-343, p. 1 (La.10/20/94), 644 So.2d 371, 371 (citing State v. McClow, 364 So.2d 566, 566 (La.1978); State v. Morris, 328 So.2d 65, 67 (La.1976)); State v. Burton, 46,552, p. 1 (La.App. 2 Cir. 9/21/11), 74 So.3d 253, 253-54.
Examination of the law and cited jurisprudence confirms that relief is due based on the facts in this case. Accordingly, Defendant’s convictions and sentence are vacated and all proceedings in this prosecution are abated from their inception.

State v. Bowden, 12-1352, p. 1 (La.App. 3 Cir. 1/9/13), 106 So.3d 308, 308.

Information received from the district court clerk’s office indicates that Reado was convicted of manslaughter. Pursuant to Bowden, Defendant’s conviction and sentence are reversed and the prosecution voided ab initio.

CONVICTION AND SENTENCE VACATED; PROSECUTION ABATED FROM INCEPTION.


author: GENOVESE, Judge.

text:
    SOUTHERN ACADIANA SERVICES, LLC and Khambang Viengvilay v. Phonesaga PHAYARATH, I & I Contracting Services, LLC, and Lynn Latiolais.
    No. 14-03.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Adam G. Young, Patrick C. (Con) Cotter, Laura N. Buck, Young & Cotter, L.L.C., Lafayette, Louisiana, for Plaintiffs/Appellants, Southern Acadiana Services, LLC and Khambang Viengvilay.
    Edward P. Landry, Landry, Watkins, Repaske & Breaux, New Iberia, Louisiana, for Defendants/Appellees, Phonesaga Phayarath and I & I Contracting Services, LLC.
    David W. Groner, New Iberia, Louisiana, for Defendants/Appellees, Lynn La-tiolais and Teresa Latiolais, d/b/a Latiolais Tax Accounting.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

| j Plaintiffs, Southern Acadiana Services, LLC and Khambang Viengvilay, appeal the judgment of the trial court granting summary judgment in favor of Defendants, Phonesaga Phayarath and I & I Contracting Services, LLC, finding that Plaintiffs failed to meet their burden of proof on their claims for breach of fiduciary duty, tortious interference with contracts, unfair trade practices, and defalcation of funds relative to their business arrangement. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Southern Acadiana Services, LLC (SAS) was formed on June 28, 2011, by Kham-bang Viengvilay and Phonesaga Phayarath to provide welding services to industrial customers. Viengvilay and Phayarath were the only two members of the limited liability company, each with a fifty percent membership interest.

In April 2012, after disagreements arose between Viengvilay and Phayarath, they began discussions about closing SAS. On May 5, 2012, the parties met, but, were unable to reach an agreement on the terms of a buyout.

On the morning of May 7, 2012, unbeknownst to Phayarath, Viengvilay contacted SAS’s employees and informed them that SAS was permanently closing. Vi-engvilay also contacted SAS’s insurance agent, cancelled SAS’s workers’ compensation and liability insurance, and emailed SAS’s customers, advising them that SAS no longer had insurance and that it was closing its business.

Later that same day, when Phayarath learned of Viengvilay’s actions, he contacted SAS’s insurance agent and reinstated the insurance coverage. Phayarath then went to the office of the Louisiana Secretary of State to form his own company, I & I Contracting Services, LLC (I & I), which he created to provide welding services to industrial customers.

1 zSuit was subsequently filed by Viengvi-lay and SAS against Phayarath and I & I asserting claims for breach of fiduciary duty, tortious interference with contracts, unfair trade practices, and defalcation of funds. Viengvilay and SAS contended that Phayarath and I & I were liable for the damages they sustained resulting from Phayarath starting a competing business, acquiring SAS’s customers, and withdrawing SAS’s funds without notice to or approval by Viengvilay.

Phayarath and I & I filed a Motion for Summary Judgment asserting that:

There are no genuine issues of material fact as to any of plaintiffs’ claims since plaintiffs by their own admission triggered the chronology of events which specifically caused the damages sustained by Plaintiffs, Southern Acadiana Services, LLC and [VIENGVILAY]. Therefore, defendants, PHONESAGA PHAYARATH and I & I CONTRACTING SERVICES, LLC, are entitled, as a matter of law, to summary judgment herein, dismissing all plaintiffs’ demands at plaintiffs’ costs.

Following a hearing, the trial court granted Phayarath and I & I’s Motion for Summary Judgment, “being of the opinion that the plaintiffs did not meet their burden of proof as to the allegations of a claim for breach of fiduciary duty, tortious interference with contracts, unfair trade practices, and defalcation of funds.” Viengvi-lay and SAS appeal.

ASSIGNMENTS OF ERROR

On appeal, Viengvilay and SAS present the following assignments of error for our review:

1. The [t]rial [c]ourt erred in finding that Khambang [Viengvilay] caused damages to [SAS] and that Plaintiffs cannot sustain their burden of proof with respect to their claim against Defendants for breach of fiduciary duties.
2. The [t]rial [c]ourt erred in finding that [SAS] had no contracts that could be interfered with, and that Plaintiffs cannot meet their burden of proof with respect to their claim against Defendants for tortious interference with contracts.
3. The [t]rial [e]ourt erred in holding that the unfair trade practices are proved to be the result of the action of Plaintiff, and that Plaintiffs cannot meet their burden of proof with respect to their claim for damages against Defendants pursuant to the Louisiana Unfair Trade Practices Act.
4. The [t]rial [c]ourt erred in holding that there is no proof that the Defendants issued checks illegally, and that Plaintiffs cannot meet their burden of proof with respect to their claim against Defendants for defalcation of funds.

LAW AND DISCUSSION

A motion for summary judgment is reviewed on appeal under the de novo standard of review. Hogg v. Chevron USA, Inc., 09-2632 (La.7/6/10), 45 So.3d 991. The reviewing court uses the same criteria as the trial court to determine whether summary judgment is appropriate, ie., whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. See La.Code Civ.P. art. 966; Hogg, 45 So.3d 991. Summary judgment shall 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 as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). “[A] ‘genuine issue’ is a ‘triable issue,’ or one as to which reasonable persons could disagree. A ‘material fact’-is a fact, the existence or non-existence of which may be essential to a cause of action under the applicable theory of recovery.” Hogg, 45 So.3d at 997 (citations omitted), citing Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. In proving entitlement to summary judgment:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

Gruver v. Kroger Co., 10-689, pp. 2-3 (La.App. 3 Cir. 2/2/11), 54 So.3d 1249, 1251, writ denied, 11-471 (La.4/25/11), 62 So.3d 92

In support of their Motion for Summary Judgment, Phayarath and I & I contend that it was Viengvilay’s own unilateral and unjustified actions that caused the losses which he and SAS allegedly sustained. To the contrary, Viengvilay and SAS contend that summary judgment is unwarranted because “genuine issues of material fact exist with respect to the cause of the damages to SAS.”

In considering the Motion for Summary Judgment, the trial court addressed each of the claims asserted individually. The court ultimately concluded, based upon the evidence, that Viengvilay and SAS were unable to meet their burden of proof. Having conducted a de novo review of the record, we agree with the trial court.

On the claim for breach of fiduciary duty, the trial court found that “prior to the actions taken by [Phayarath], [Viengvi-lay] had already shut down the business. He terminated the business; he saw that all of the employees were terminated; he cancelled the insurance for the employees[;] and he advised all of the customers that the business was shut down.” Based upon these facts, the trial court concluded that “there is no way that [Viengvilay and SAS can] sustain the burden of proof to prove the cause and fact of the injury sustained by [SAS] were brought about by the actions of [Phayarath.]” To the contrary, based upon the evidence, the trial court found “that the closing down of [SAS] and any damages[ ] resulted from the sole action and sole cause in fact[ ] of the actions taken by [Viengvilay] in shutting down the business, having the employees terminated[,] terminating the insurance for the business[,] and advising the customers that the business was shut down.” For these reasons, Viengvilay and SAS did not prove any breach of a fiduciary Ifiduty on the part of Phayarath which damaged Viengvilay or SAS. Consequently, we find no error in this determination.

On the claim for tortious interference with contracts, the trial court found that “[t]here was no contract.” After Vi-engvilay advised employees, customers, and the insurer that SAS was shut down, “there [was] no longer any contract with the customers, with the insurance company or with the employees.” Given that no contract existed, the trial court found that Viengvilay and SAS failed to meet their burden of proof on this claim. We agree.

On the claim of unfair trade practices, the trial court also found an inability of Viengvilay and SAS to meet their burden of proof. Again, in the opinion of the trial court, “the unfair trade practices are proved to be the result of the action of [Viengvilay,] not the action of [Phayar-ath].” Based upon our de novo review of the record, we likewise agree with this determination.

The final claim asserted by Vi-engvilay and SAS against Phayarath and I & I was for defalcation of funds. It is undisputed that Phayarath issued and signed checks on SAS’s accounts. However, as noted by the trial court, “there is no proof that any of those were illegally issued, or signed, or not done by a managing member.” For these reason, Viengvilay and SAS also failed to meet their burden of proof on this claim.

The crux of Viengvilay and SAS’s argument in opposition to the Motion for Summary Judgment is that, at the very least, issues of comparative fault remain which preclude the grant of summary judgment. However, our de novo review of the record reveals that there are no questions of material fact on the issue of comparative fault. The facts, as set forth above, establish that it was the unilateral actions of Viengvilay that caused SAS to close and caused any alleged damages resulting thereby. Viengvilay’s actions were taken without the knowledge or [Rconsent of Phayarath. Viengvilay and SAS are unable to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial on the claims asserted herein. Therefore, we find no error in the trial court’s grant of summary judgment in favor of Phayarath and I & I.

DECREE

For the reasons assigned, we affirm the trial court’s grant of summary judgment in favor of Phonesaga Phayarath and I & I Contracting Services, LLC. Costs of this appeal are assessed to Southern Acadiana Services, LLC and Khambang Viengvilay.

AFFIRMED.

      . Also named as Defendants were Lynn Latio-lais and Teresa Latiolais d/b/a Latiolais Tax Accounting; however, the claims asserted against these Defendants are not at issue in this appeal.


text:
    Christine TRUMPS v. USAGENCIES CASUALTY INSURANCE COMPANY, et al.
    No. 14-25.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Sherman Stanford, Opelousas, LA, for Plaintiff/Appellant: Christine Trumps.
    Anthony M. Butler, Christina R. Valdes, Law Office of William H. Justice, Baton Rouge, LA, for Defendant/Appellee: USA-gencies Casualty Insurance Company, Inc.
    Dewey Wayne Salter, Eunice, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

hln this personal injury case, Plaintiff, Christine Trumps, appeals the judgment of the trial court granting summary judgment in favor of Defendant, USAgencies Casualty Insurance Company, Inc. (USA-gencies), finding that the policy of liability insurance issued to its insured, Defendant, Dewey Wayne Salter, did not provide coverage for the accident at issue. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The present lawsuit arises out of an automobile accident that occurred on April 28, 2012, when Ms. Trumps was a passenger in a vehicle operated by Mr. Salter. The accident occurred when Mr. Salter was fleeing from law enforcement officers, and his vehicle left the roadway and came to a stop after colliding with a private residence. To recover for the personal injuries she allegedly sustained in the accident, Ms. Trumps filed suit against Mr. Salter and his liability insurer, USAgen-cies.

USAgencies filed a Motion for Summary Judgment on the issue of coverage, contending that there was no genuine issue of material fact because the policy did not provide coverage for Ms. Trumps’ damages due to an exclusion in the policy for injuries caused by a person while engaged in the commission of a crime. USAgencies asserted that because of the exclusion in its policy, it had no potential liability to Ms. Trumps; thus, it was entitled to judgment as a matter of law. Following a hearing, the trial court granted USAgen-cies’ Motion for Summary Judgment. Ms. Trumps appeals.

| ^ASSIGNMENTS OF ERROR

Ms. Trumps assigns as error the trial court’s “reliance upon the stated case law” and its “manifestly erroneous ... treatment of the record” in granting USAgen-cies’ Motion for Summary Judgment.

LAW AND DISCUSSION

The appropriate standard of review to be applied by an appellate court relative to a motion for summary judgment has been stated as follows:

A reviewing court examines summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A reviewing court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith, 639 So.2d at 750.
Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment. Sanchez v. Callegan, 99-0137 (La.App. 1 Cir. 2/18/00), 753 So.2d 403, 405. When the language of an insurance policy is clear and unambiguous, a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. Sanchez, 753 So.2d at 405.

Newman v. State Farm Mut. Auto Ins. Co., 10-1389, p. 2 (La.App. 3 Cir. 4/6/11), 62 So.3d 808, 810 (quoting Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945).

The instant matter involves the applicability of an exclusion contained within the policy issued by USAgencies to Mr. Salter that excludes coverage for “[b]odily injury or property damage caused by any covered person while engaged in the commission of a crime.” Additionally, “[c]rime” is defined within the policy as “any felony or any action to flee from, evade or avoid arrest or detection by the police or other law enforcement agency.”

13USAgencies filed its Motion for Summary Judgment on the issue of coverage on the grounds that Mr. Salter, in fleeing from law enforcement, was involved in the commission of a crime; thus, there existed no coverage under the policy for Ms. Trumps’ alleged injuries. The trial court agreed and granted USAgencies’ motion.

Ms. Trumps contends that the trial court’s grant of summary judgment was erroneous due to “an overly broad usage of case law combined with an error of fact.” She first argues that nearly every accident is the result of some form of a crime; therefore, such an exclusion is against public policy. We disagree.

The USAgencies policy expressly defines which crimes, if committed, will result in the exclusion of coverage. “[I]n-surance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy.” McDaniel v. Carencro Lions Club, 05-1013, p. 30 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, 969, writ denied, 06-1998 (La.11/3/06), 940 So.2d 671. Ms. Trumps has failed to identify any statute or jurisprudence in support of her contention that the USAgencies policy exclusion violates public policy, and this court is unaware of any. Notably, the policy clearly defines and limits those crimes for which coverage will be excluded.. It is undisputed that Mr. Salter was fleeing from law enforcement at the time of the accident in question. Therefore, the action of Mr. Salter fits squarely within that definition and the exclusion. We agree with the trial court and do not find the USAgencies policy exclusion to be violative of public policy.

Ms. Trumps further argues that the trial court failed to distinguish between “claims made by the insured as opposed to claims made by the general public[.]” Citing Upshaw v. Great American Indemnity Co., 112 So.2d 125 (La.App. 2 Cir.1959), she argues “that exclusions that would affect the general public [are] to be |4held to a different standard than when the claimant [is] the insured.” Ms. Trumps concludes that she “was a member of the general public with respect to the actions of the insured. Accordingly, the standard of Up-shaw should have been applied.” We disagree.

Although Ms. Trumps cites Upshaw for the proposition that a different standard should have been applied by the trial court when considering the applicability of USA-gencies’ policy exclusion, we find no merit to this contention. Upshaw is readily distinguishable in both its facts and the issues before the court. Although Upshaw was a suit brought by a guest passenger, the issue before the second circuit was a defense of contributory negligence raised by the driver’s liability insurer. The second circuit, considering the facts, found that the insurer’s “plea of contributory negligence was properly rejected by the trial court” following a trial on the merits. Id. at 132. Unlike the case at bar, Upshaw did not involve the application of a policy exclusion raised by the insurer on the issue of coverage via a motion for summary judgment. For these reasons, Upshaw is neither controlling nor persuasive in the matter presently before us.

Finally, as a factual matter, Ms. Trumps disputes the trial court’s finding as to her willingness to participate in the crime. She argues that “[t]he record unequivocally shows that [she] was not a willing participant of the flight from police, and as such is a victim of the actions of the insured” rather than “an accomplice.” Ms. Trumps, therefore, characterizes the holding of the trial court as permitting her to “be imputed with the insured’s activity because of her consent” based upon this erroneous factual determination. While there is sufficient evidence in the record to support the trial court’s factual finding, Ms. Trumps’ willingness or unwillingness to participate in the crime is irrelevant to the coverage determination in this case. We agree with USAgencies that “[t]he issue of whether Ms. Trumps’ |spresence in the vehicle was voluntary or involuntary is not relevant to whether the exclusion in the USAgencies policy violates public policy.”

For the foregoing reasons, we find that there is no genuine issue of material fact relative to coverage under the USAgencies liability policy and that USAgencies is entitled to summary judgment as a matter of law. Pursuant to the exclusionary language contained therein, there exists no coverage for the claims asserted by Christine Trumps since the accident giving rise to her injuries occurred during the commission of a crime as defined within the policy.

DECREE

For the reasons assigned, we affirm the trial court’s grant of summary judgment in favor of USAgencies Casualty Insurance Company, Inc. Costs of this appeal are assessed to Christine Trumps.

AFFIRMED.