text:
    STATE of Louisiana v. David Kent KORNAHRENS.
    No. 2012-K-1511.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Kornahrens, David Kent; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 492221; to the Court of Appeal, First Circuit, No. 2011 KA 1779.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Tirrell JOHNSON.
    No. 2012-KP-1975.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Johnson, Tirrell; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 391-159; to the Court of Appeal, Fourth Circuit, No. 2012-K-1002.

Denied.


text:
    STATE ex rel. William BIRTHA v. STATE of Louisiana.
    No. 2012-KH-2315.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Birtha, William; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 97-6381; to the Court of Appeal, Fifth Circuit, No. 12-KH-617.

Denied.

JOHNSON, C.J., would grant.

WEIMER and HUGHES, JJ„ would grant.


text:
    STATE of Louisiana v. Mack A. BRADLEY.
    No. 2012-KO-2441.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Bradley, Mack A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 08-1258; to the Court of Appeal, Fifth Circuit, No. 11-KA-1060.

Denied.


text:
    STATE of Louisiana v. Aaron D. SALTER.
    No. 2012-K-2518.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Salter, Aaron D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 482750; to the Court of Appeal, First Circuit, No. 2011 KA 2330.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Marquis J. DALTON v. STATE of Louisiana.
    No. 2012-KH-2559.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Dalton, Marquis J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 03-05-0013; to the Court of Appeal, First Circuit, No. 2012 KW 1188.

Denied.


text:
    STATE of Louisiana v. Rudy FRANCIS.
    No. 2012-K-2575.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Francis, Rudy; — Defendant; Applying For Writ of Certiorari and/or. Review, Parish of Orleans, Criminal District Court Div. B, No. 443-175; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1082.

Denied.


text:
    STATE of Louisiana v. Dennis F. DICKERSON.
    No. 2012-K-2580.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Dickerson, Dennis F.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 458871; to the Court of Appeal, First Circuit, No. 2012 KA 0388.

Denied.


text:
    STATE ex rel. Brushun D. GREEN v. STATE of Louisiana.
    No. 2012-KH-2590.
    Supreme Court of Louisiana.
    May 3, 2013.


text:
    STATE of Louisiana v. Thomas HEDGESPETH.
    No. 2012-KO-2594.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Hedgespeth, Thomas; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 236899; to the Court of Appeal, Second Circuit, No. 47,-523-KA.

Denied.


text:
    STATE of Louisiana v. Demarcus L. CLARK.
    No. 2012-KO-2595.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Clark, Demarcus L.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 272382; to the Court of Appeal, Second Circuit, No. 47,-424-KA.

Denied.


text:
    STATE of Louisiana v. Kevin TAYLOR.
    No. 2012-K-2599.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 496-217; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0114.

Denied.


text:
    STATE ex rel. Kareem PRICE v. STATE of Louisiana.
    No. 2012-KH-2604.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Price, Kareem; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 03-1970; to the Court of Appeal, Fifth Circuit, Nos. 09-KH-1068, 09-KH-1068.

Denied.


text:
    STATE ex rel. Eric BOLTON v. STATE of Louisiana.
    No. 2012-KH-2606.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Bolton, Eric; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 484145; to the Court of Appeal, First Circuit, No. 2012-KW-1433.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Ike WEEKS v. STATE of Louisiana.
    No. 2012-KH-2629.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Weeks, Ike; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 09-98-0418; to the Court of Appeal, First Circuit, No. 2012 KW 1505.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Cordell Jermaine COLLINS v. STATE of Louisiana.
    No. 2012-KH-2664.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Collins, Cordell Jermaine; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 05-04-0462; to the Court of Appeal, First Circuit, No. 2012 KW 1432.

Denied.


text:
    STATE ex rel. David CARTER v. STATE of Louisiana.
    No. 2012-KH-2683.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Carter, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 73-1483; to the Court of Appeal, Fifth Circuit, No. 12-KH-903.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

GUIDRY, J., recused.


text:
    STATE ex rel. Justin B. McCULLUM v. STATE of Louisiana.
    No. 2012-KH-2691.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re McCullum, Justin B.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 449703; to the Court of Appeal, First Circuit, No. 2012 KW 1483.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Keith BARROW v. STATE of Louisiana.
    No. 2012-KH-2692.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Barrow, Keith; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 01-6237; to the Court of Appeal, Fifth Circuit, No. 12-KH-730.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Roderick JACKSON v. STATE of Louisiana.
    No. 2012-KH-2693.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Jackson, Roderick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 87-4983; to the Court of Appeal, Third Circuit, No. KH 11-00382.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. David Lee WILLIAMS v. STATE of Louisiana.
    No. 2012-KH-2716.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Williams, David Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 12-WCR-494.

Denied.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2012-KH-2717.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 710-516; to the Court of Appeal, Fifth Circuit, No. 12-C-791.

Denied.


text:
    STATE ex rel. Terrance T. BROWN v. STATE of Louisiana.
    No. 2012-KH-2718.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Brown, Terrance T.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. 05-F-25012; to the Court of Appeal, Second Circuit, No. 47,967-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

CLARK, J., recused.


text:
    STATE ex rel. Dimarco LEWIS v. STATE of Louisiana.
    No. 2012-KH-2719.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Lewis, Dimarco; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 424-302; to the Court of Appeal, Fourth Circuit, No. 2012-K-1556.

Denied. See State ex rel. Brown v. State, 03-2568, (La.3/26/04), 870 So.2d 976; State ex rel. Degreat v. State, 98-0690 (La.7/2/98), 724 So.2d 205; State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    Henrietta LeBLANC v. STRATEGIC RESTAURANTS ACQUISITIONS COMPANY, L.L.C., et al.
    No. 2013-CC-0351.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Strategic Restaurants Acquisitions Company L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court, No. 2010-5693; to the Court of Appeal, Third Circuit, No. CW 12-01042.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    Department of Public Safety and Corrections: In the Matter of William T. FORLANDER; Docket No. 2010-4524-PS-SXOR v. Proceedings under the Louisiana Administrative Procedure Act and La. R.S. 15:542.1.3.
    No. 2013-C-0594.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Forlander, William T.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 597134; to the Court of Appeal, First Circuit, No. 2012 CA 0966.

Denied.


text:
    Joseph MEISCH v. DEPARTMENT OF POLICE.
    No. 2013-C-0640.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Meisch, Joseph; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil Service Commission, No. 7862; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0702.

Denied.


text:
    FRENCH MARKET VENDORS ASSOCIATION, INC. v. The FRENCH MARKET CORPORATION and the City of New Orleans. French Market Vendors Association Inc. v. The French Market Corporation and the City of New Orleans.
    No. 2013-C-0657.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re French Market Vendors Association Inc.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2012-02518; to the Court of Appeal, Fourth Circuit, Nos. 2012-CA-0964, 2012-CA-1350.

Denied.


text:
    Doris Jean FELDERMAN, Wife of/and David George Felderman v. Edward GORNAK, Audrey Langhauser Gornak, Northpark Car Wash, Inc., the Parish of St. Tammany, Cleco Utility Group, Inc., Cleco Power, LLC, Northpark Restaurant, LLC, Dakota-Cuvee Events, LLC, and Dakota Restaurant, Inc.
    No. 2013-C-0682.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Northpark Car Wash, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 2010-13604; to the Court of Appeal, First Circuit, No. 2012 CA 0283.

Denied.

VICTORY, J., would grant.

HUGHES, J., recused.


text:
    ORLEANS PARISH SCHOOL BOARD v. STATE of Louisiana DIVISION OF ADMINISTRATION and the Board of Supervisors, Louisiana State University Agricultural and Mechanical College. Orleans Parish School Board v. Dale N. Atkins, Clerk of Civil District Court of the Parish of Orleans.
    No. 2013-C-0683.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Orleans Parish School Board;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2011-03281 C/W 2011-06884; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1312 C/W 2012-CA-1313.

Denied.

HUGHES, J., would grant.


text:
    Karlton KIRKSEY v. The NEW ORLEANS JAZZ & HERITAGE FOUNDATION INC. & ABC Insurance Company.
    No. 2013-C-0686.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Kirksey, Karlton; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2011-10409; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1351.

Denied.

HUGHES, J., would grant.


text:
    Victor RACHAL v. Justin P. BROUILLETTE, et al.
    No. 2013-C-0690.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Brouillette, Justin P.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 233,446; to the Court of Appeal, Third Circuit, No. 12-794.

Denied.

VICTORY, WEIMER and HUGHES, JJ., would grant.


text:
    STATE ex rel. Eric Ray CHEVALIER v. STATE of Louisiana.
    No. 2013-KH-0757.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Chevalier, Eric Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. C, No. ll-CR-001159; to the Court of Appeal, Third Circuit, No. KW 12-00494.

Denied.


text:
    STATE ex rel. Errol VICTOR, Sr. and Tonya O. Victor v. STATE of Louisiana.
    No. 2013-OK-0799.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Victor Sr., Errol et ah; Victor, Tonya O.; — Plaintiff(s); Applying For Writ of Mandamus and/or Writ of Prohibition, Parish of St. John, 40th Judicial District Court Div. B, No. 2012-CR-249; to the Court of Appeal, Fifth Circuit, No. 2013-K-271.

Denied.


text:
    STATE of Louisiana v. Michael TALBOTT.
    No. 2013-KK-0893.
    Supreme Court of Louisiana.
    May 7, 2013.
   In re Talbott, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 510-325; to the Court of Appeal, Fourth Circuit, No. 2013-K-0515.

Denied.


text:
    STATE of Louisiana v. Aaron KISACK.
    No. 2013-KD-0945.
    Supreme Court of Louisiana.
    May 8, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 513-510; to the Court of Appeal, Fourth Circuit, No. 2013-K-0553.

Denied.


text:
    STATE of Louisiana in the Interest of F.C.
    No. 2013-CK-1041.
    Supreme Court of Louisiana.
    May 9, 2013.
   In re F.C.; — Other; Applying For Supervisory and/or Remedial Writs Orleans Juvenile Court, No. 2013-081-DQ-E; to the Court of Appeal, Fourth Circuit, No. 2013-C-0549.

Denied.


author: PETTIGREW, J.

text:
    Constance SCHAFER and Jason Schafer, Sr., individually and on behalf of their Son, Jason Schafer, Jr. v. Wesley Edward SUMMERS a/k/a Wayne E. Sommers and Cheri Summers.
    No. 2012 CA 0730.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.

      Robert W. Hallack, Baton Rouge, LA, for Plaintiffs-Appellants, Constance Schafer and Jason Schafer, Sr., individually and on behalf of their Minor Son, Jason Schafer, Jr.
    Darrell J. Saltamachia, Baton Rouge, LA, for Defendant-Appellee, Wayne E. Summers, Jr.
    Sherman Q. Mack, Albany, LA, for Defendant-Appellee, Sheri S. Summers.
    Jay M. Lonero, Angie Arceneaux Akers, Metairie, LA, for Defendant-Appellee, ANPAC Louisiana Insurance Company.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

12This is an action for personal injuries sustained by a minor child who accidentally ingested prescription medication during the time he was placed in the custody of foster parents by the State of Louisiana. The foster parents’ homeowner’s insurer was dismissed through summary judgment on the ground that the homeowner’s policy did not provide coverage for such claims. From this judgment, the minor child has appealed. We hereby affirm the trial courts grant of summary judgment.

FACTS

In early 2009, Jason Schafer, Jr. (“Jason”) was in the care and custody of his foster parents, Wayne E. Summers, Jr. and Sheri S. Summers, pursuant to a Foster Parent Agreement with the Louisiana Department of Social Services (“Department”). At that time, Jason was approximately eighteen months old, and had been in the custody of Mr. and Mrs. Summers since October 3, 2008. Earlier, Jason and his three siblings had been removed from the custody of their biological parents and placed in different foster homes pursuant to an order of the court dated October 2, 2008.

On January 31, 2009, Jason ingested prescription pain medication, believed to be possibly Oxycodone or Effexor, which purportedly fell out of a pocket of Mr. Summers’ pants, after he left them on the floor of a closet at his home. Shortly after ingesting said drugs, Jason became unconscious, experienced difficulty breathing, and even ceased breathing at one point. Jason was rushed by ambulance to Our Lady of the Lake Regional Medical Center in Baton Rouge, where it was initially determined that his condition was the result of Oxycodone ingestion. It was later determined that Jason exhibited signs of having ingested Effexor. The opiates contained in the pain medication ingested by Jason ^caused his respiratory system to fail, and the resulting loss of oxygen to his brain (estimated to have been seventeen minutes) caused Jason to have brain hypoxia.

Jason’s biological parents, Constance and Jason Schafer, Sr., were notified of the accident and arrived at the hospital shortly thereafter. Jason was placed in the Intensive Care Unit and eventually transferred to Children’s Hospital in New Orleans. As a result of this incident, Jason suffered irreparable brain damage. By orders of the court, Jason was returned to the care of his biological parents on April 23, 2009.

ACTION OF THE TRIAL COURT

On September 3, 2009, Constance and Jason Schafer, Sr., individually, and on behalf of their minor son, Jason, filed the instant litigation against Mr. and Mrs. Summers for the injuries Jason sustained while in their custody. Mr. and Mrs. Schafer also asserted a claim for their own emotional distress and mental anguish as a result of having witnessed their infant son’s injuries.

Mr. and Mrs. Schafer subsequently filed a First Amending Petition for Damages on December 3, 2009, wherein they added ANPAC Louisiana Insurance Company (“ANPAC”), the homeowner’s insurer of Mr. and Mrs. Summers, as an additional defendant in this matter. Mr. and Mrs. Schafer alleged that as the Summers’ homeowner’s insurer, ANPAC was liable for all damages sustained in the incident Later, on January 28, 2010, Mr. and Mrs. Schafer filed a Second Amending Petition for Damages wherein they named the State of Louisiana (“State”) as an additional defendant. Mr. and Mrs. Schafer alleged that the State, through the Department, had agreed to indemnify Mr. and Mrs. Summers pursuant to the Foster Parent Agreement.

On February 10, 2010, ANPAC filed an answer and also asserted a reconventional demand and a cross-claim seeking a declaratory judgment regarding the lack of coverage available under the ANPAC policy-

In accordance with La.Code Civ. Pro. art. 683(D), Mr. and Mrs. Schafer petitioned the court on September 14, 2010, seeking the appointment of attorney Laurie Kadair RRedman to serve as the legal tutrix for Jason. Ms. Redman was previously appointed to serve as the trustee in charge of a Special Needs Trust that was established for the sole benefit of Jason.

Mr. and Mrs. Schafer settled their claims against Mr. and Mrs. Summers and the State, and reserved only their right to. proceed against Mr. and Mrs. Summers as insureds under the ANPAC homeowner’s policy. By motion and order filed by Mr. and Mrs. Schafer, and signed by the court on October 18, 2010, Mr. and Mrs. Schafer “individually and as previously on behalf of the minor child” Jason, dismissed with prejudice, their individual claims and the claims they had previously asserted on Jason’s behalf. Mr. and Mrs. Schafer expressly reserved therein the rights of all other parties.

On September 2, 2011, ANPAC moved for summary judgment on the issue of whether the provisions of the homeowner’s policy issued to Mr. and Mrs. Summers extended coverage to Jason or whether, as ANPAC claimed, Jason was an insured under the terms of the policy, which specifically excluded claims for bodily injury to an insured. Following oral argument, the trial court granted ANPAC’s Motion for Summary Judgment in its entirety. Said judgment dismissed all claims of plaintiffs, Mr. and Mrs. Schafer, individually, and on behalf of their minor son, Jason, with prejudice. From this judgment, Jason, has appealed.

I,.ASSIGNMENT OF ERROR ON APPEAL

The sole error assigned by Jason in connection with this appeal is whether the trial, court erred in finding that he, as a foster child, was a member of the Summers’ household, and therefore, excluded from coverage under the ANPAC insurance policy.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Co-op., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. Pro. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim action or defense be negated. Instead, the mover must 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, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. Pro. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

Summary judgments are reviewed on appeal de novo. An appellate 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 | fiwhether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La. App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830.

DISCUSSION

In his single assignment of error, Jason argues that the trial court erred in granting ANPAC’s motion for summary judgment on the grounds that he was an “insured” under the homeowner’s policy that ANPAC issued to his foster parents, Mr. and Mrs. Summers. Jason asserts that questions of fact remain as to whether he, as a foster child, can be considered a resident of his foster parents’ household and as such, be considered an “insured” under the ANPAC policy.

A certified copy of the ANPAC Louisiana Special Homeowner’s Policy No. 17-X-791-79A-0, Form SH-3.17(l-03), issued to Mr. and Mrs. Summers was attached to ANPAC’s motion for summary judgment as Exhibit “A.” Said policy provides, in pertinent part, as follows:

DEFINITIONS

Throughout this policy, “you” and “your” refer to the “named insured” shown in the Declarations and the spouse if a resident of the same household, and “we,” “us,” and “our” refer to the Company providing this insurance. In addition, certain words and phrases are defined as follows:
⅜ ⅜ ⅝ ⅜ ⅜ ⅝
6. “insured” means you and the following residents of your household:
a. your relatives;
b. any other person under the age of 21 who is in the care of any person named above, [underscoring supplied]
⅜ ⅜ ⅜ ⅜ ⅜ ⅜:
SECTION II — EXCLUSIONS
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
2. Coverage E — Personal Liability does not apply to:
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
f. bodily injury to you and any insured within the meaning of part a. or b. of Definition 6. “insured”;

|7The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Johnson v. Allstate Insurance Company, 95-1953 (La.App. 1 Cir. 5/10/96), 673 So.2d 345, 347, writ denied, 96-1292 (La.6/28/96), 675 So.2d 1126. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1010.

It is well settled that an insurance policy is an agreement between the parties and should be construed according to the general rules of interpretation of contracts as set forth in the Louisiana Civil Code. Cadwallader v. Allstate Insurance Company, 02-1637 (La.6/27/03), 848 So.2d 577, 580. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. Civ.Code art. 2046. Such intent is to be determined in accordance with the general, ordinary, plain, and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, 1169, decree amended, 95-0809 (La.4/18/96), 671 So.2d 915; see La. Civ. Code art. 2047. If the policy at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. Ledbetter, 665 So.2d at 1169. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or to achieve an absurd conclusion. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions on the policy obligations they contractually assume. Campbell v. Markel American Insurance Company, 00-1448 (La.App. 1 Cir. 9/21/01), 822 So.2d 617, 623, writ denied. 01-2813 (La.1/4/02), 805|sSo.2d 204. In an action under an insurance contract, the insured bears the burden of proving the existence of the policy and coverage. Tunstall v. Stierwald, 01-1765 (La.2/26/02), 809 So.2d 916, 921. However, the insurer bears the burden of proving policy limits or exclusions. Id.

The primary argument advanced by Jason in connection with his appeal in this matter is that the trial court erred in concluding that foster children are, as a matter of law, considered to be members of the household in which they are temporarily living. Jason emphasizes that his living arrangement with Mr. and Mrs. Summers was temporary and only until such time as the district court determined whether he and his siblings should be returned to their biological parents.

In support of its motion for summary judgment, ANPAC cites and relies upon the case of Jenks v. State, 507 So.2d 877 (La.App. 4 Cir.1987), writ denied, 513 So.2d 294 (La.1987), which addressed circumstances almost identical to those presented in the instant case. In Jenks, a 15-month old child in foster care was determined by the fourth circuit to have been a “resident” of his foster parents’ household, and thereby an “insured” under an identical provision of a homeowner’s policy issued to his foster parents prior to his placement in the home. The fourth circuit further concluded that due to the child’s status as an insured, the bodily injury he sustained was expressly excluded from coverage under the terms of his foster parents’ homeowner’s policy.

The fourth circuit in Jenks, held, in pertinent part:

This court has held that the phrase “residents of the named insured’s household” is not ambiguous as applied to particular situations (e.g. a child’s residency in his mother’s household). Schoemann v. Skate Country, Inc., 459 So.2d 743 (La.App. 4 Cir.1984). We do not find this policy’s language ambiguous under these circumstances. Henry was residing with the Dardens as a foster child. He had been living under the same roof for many months and would have continued to live with them for an indefinite period of time had the tragic injury not occurred. Henry was placed in the home in order that the Dardens could supply a parental and family relationship.
The policy’s exclusion is clear and unambiguous. The only possible ambiguity occurs in the definition of insured in the inclusionary language of the policy. Even if the phrase is considered ambiguous, the ambiguity would generally be resolved in favor of coverage. In this instance if the child is covered under the policy, as a result of the exclusion of the bodily |9injury of an insured, recovery under the homeowner’s policy must be denied,

Jenks, 507 So.2d at 880.

The court in Jenks further noted that the extension of insured status to a foster child living in the home can be a double-edged sword. In one Instance, the policy’s exclusion for bodily injuries to an insured would operate to deny coverage for injuries such as those sustained by the foster child in the instant case, while on the other hand, coverage would be extended to cover any tortious acts committed by the foster child.

We find that under the specific policy language at issue and the facts of this case, Jason was a resident of the Summers’ household and in the care of ANPACs insureds. As such, Jason must be considered an insured and his bodily injury is expressly excluded from coverage under the ANPAC homeowner’s policy. Accordingly, the trial court correctly granted summary judgment in favor of ANPAC.

DECREE

For these reasons, we affirm the trial court’s judgment dismissing all Jason’s claims against defendant-appellee, ANPAC Louisiana Insurance Company. Appeal costs are assessed against plaintiff-appellant, Jason Schafer, Jr.

AFFIRMED.

      . The foster father of the minor, Jason Schafer, Jr., is referred to herein as "Wesley Edward Summers” or "Wayne E. Sommers”; however, it appears that the proper name of said defendant is Wayne E. Summers, Jr.

      . The foster mother of the minor, Jason Schafer, Jr., is repeatedly referred to herein as “Cheri Summers”; however, it appears that the proper name of said defendant is Sheri S. Summers.

      .Although representations were made that Jason and his siblings were removed from his biological parents’ custody by a court order dated December 4, 2008, a review of the . record reveals that Jason was actually removed from their custody on October 2, 2008.

      . Pursuant to an August 17, 2010 court order, the Schafer children, including Jason, were once again placed in the legal custody of the Department.

      . In connection with its Motion for Summary Judgment, ANPAC also sought dismissal of Mr. and Mrs. Schafer's claims for "emotional distress” and "mental anguish” on the grounds that the definition of "bodily injury” contained in the homeowner’s policy issued to Mr. and Mrs. Summers expressly excludes coverage for such claims. This issue is moot in view of the fact that Mr. and Mrs. Schafer had previously dismissed their individual claims with prejudice a year earlier.

      . Despite the trial court’s appointment on September 15, 2010, of Laurie Kadair Red-man as Jason’s legal tutrix, and the trial court’s subsequent October 18, 2010 order dismissing with prejudice the individual claims of Mr. and Mrs. Schafer, the trial court’s judgment inexplicably reflects counsel as representing "plaintiffs, [Mrs. Schafer] and [Mr. Schafer], individually and on behalf of their son [Jason].” Additionally, the judgment dismissed "all claims of plaintiffs against [ANPAC] with prejudice.” Pursuant to La.Code Civ. Pro. art. 683(D), Ms. Redman, in her capacity as Jason's legal tutrix, is the proper plaintiff to sue to enforce a right of an unemancipated minor.

      .Although Ms. Redman is the proper party to pursue Jason’s legal rights, the trial judge who appointed her signed an order granting Jason's motion for appeal. Said order was submitted to the court by the attorney who earlier represented Jason’s biological parents on his behalf. Because ANPAC did not raise a dilatory exception objecting to Jason’s lack of procedural capacity, see La.Code Civ. Pro. art. 926(A)(6), it was waived. See La.Code Civ. Pro. art. 928(A); Nicosia v. Guillory, 322 So.2d 129, 131-32 (La.1975).


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. Gerard J. BOURGEOIS.
    No. 2012 KA 0916.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.

      Michael S. Fawer, Covington, LA, for Defendant-Appellant, Gerard J. Bourgeois.
    Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Baton Rouge, LA, for Plaintiff-Appellee, State of Louisiana.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   HIGGINBOTHAM, J.

li>The defendant, Gerard J, Bourgeois, was charged by amended grand jury indictment with one count of filing false public records (count I), a violation of La. R.S. 14:133; and one count of forgery (count II), a violation of La. R.S. 14:72; and pled not guilty on both counts. Following a jury trial, he was found guilty as charged on both counts. On each count, the defendant was sentenced to five years at hard labor, suspended, and five years probation, with the sentences to run concurrently with each other. Further, as special conditions of the probation associated with the forgery conviction, the defendant was ordered to pay a $500.00 fine and make $75,000.00 restitution to the victim. The defendant now appeals, raising three assignments of error. For the following reasons, we reverse the conviction and vacate the sentence on count I, and we affirm the conviction and sentence on count II.

FACTS

Southeast Investments (“Southeast”) was in the business of purchasing nonperforming real estate loans. In early 2010, Southeast was the highest bidder on a $2.8 million loan for property in Coving-ton. The loan was secured by a March 13, 2007 promissory note by 1102 North Highway 190, LLC (“1102”), signed by the defendant and personally guaranteed by him. Acting through its attorney, Gary Duple-chain, Southeast notified the defendant that it was now the holder of the note and that he owed it $2,887,750.40. The defendant failed to pay the debt. Thereafter, on March 23, 2010, Southeast gave the defendant the option of signing the property over by an Act of Giving in Payment in lieu of “going after his personal guarantee.”

The State and the defense stipulated: the defendant was the manager and only officer of 1102; the defendant received an Act of Giving in Payment from Gary laDuplechain; on April 19, 2010, the defendant signed a five-page Act of Giving in Payment, after “revising” the document, and returned it to Duplechain; and the five-page Act of Giving in Payment contained no signature when received by the defendant.

Joseph Brent Powell, project manager for Southeast, testified that the Act of Giving in Payment sent to the defendant accurately reflected what he and the defendant had agreed to do in the weeks prior to March 23, 2010. During that period, there was never any discussion of Southeast paying $975,000.00 to the defendant, and Powell would not have agreed to such a condition. The defendant changed the font and/or margins of page 3 of the Act of Giving in Payment, retyped the page inserting “as additional consideration for the giving in payment herein, Southeast agrees to pay 1102 $975,000.00,” and signed and returned the document to Southeast. Additionally, the defendant crossed out and initialed changes on pages 4 and 5 of the document and wrote “This offer by 1102, will expire and be null and void if not excepted [sic] in writing by Southeast, on or before April 28, 2010,” on the top of page 5, Southeast reviewed the obvious changes to the document on pages 4 and 5, found they did not affect its position, and signed and recorded the document. Thereafter, the defendant hired an attorney and demanded Southeast pay him $975,000.00. He also filed for bankruptcy protection. On June 28, 2011, in order to clear the title to the property so Southeast could honor an obligation it had undertaken concerning the property, Southeast paid the defendant $75,000.00.

Aaron Cross, a commercial real estate representative of twenty-five years, testified, as a real estate broker, his primary obligation when making a counteroffer was to make sure any changes to the document were “crystal clear.” He indicated he preferred to use addendums, “spelled out in a separate document.”

1 SUFFICIENCY OF THE EVIDENCE

In assignment of error number 1, the defendant argues the evidence was insufficient to support his conviction for forgery because he did not attempt to pass off his signature as that of someone else. In assignment of error number 2, the defendant argues the evidence was insufficient to support his conviction for forgery because the proposed Act of Giving in Payment was not a document having legal efficacy. In assignment of error number 3, the defendant contends the evidence was insufficient to support his conviction for filing false public records because he neither filed the Act of Giving in Payment, nor caused it to be filed.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove,” in order to convict, every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157 & 2000-0895 (La.11/17/00), 773 So.2d 732 (quoting La. R.S. 15:438).

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential | .¡¡element of the crime. Wright, 730 So.2d at 487.

As to the forgery count, we examine the language of La. R.S. 14:72, which provides in pertinent part:

A. It shall be unlawful to forge, with intent to defraud, any signature to, or any part of, any writing purporting to have legal efficacy.
B. Issuing, transferring, or possessing with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute a violation of the provisions of this Section.
C. For purposes of this Section:
(1) “Forge” means the following:
(a) To alter, make, complete, execute, or authenticate any writing so that it purports:
(iii) To be a copy of an original when no such original existed.
(b) To issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged in accordance with the meaning of Subpara-graph (l)(a).
(c) To possess a writing that is forged within the meaning of Subparagraph (1)(a).
(2) “Writing” means the following:
(a) Printing or any other method of recording information^]
[Emphasis added.]

As to the filing of false records count, we further consider the language- of La. R.S. 14:133, which provides in pertinent part:

A. Filing false public records is the filing or depositing for record in any public office or with any public official, or the maintaining as required by law, regulation, or rule, with knowledge of its falsity, of any of the following:
(1) Any forged document.
(2) Any wrongfully altered document.
[Emphasis added.]

| (¡Louisiana Revised Statutes 14:133 does not require that the record filed be “public” but that it must be filed or deposited, with knowledge of its falsity, “in any public office or with any public officer.” State v. Salat, 95-0072 (La.App. 1st Cir.4/4/96), 672 So.2d 333, 337, writ denied, 96-1116 (La.10/4/96), 679 So.2d 1378 (emphasis in original).

Initially we note, contrary to the defendant’s argument, forgery is not limited to altering, with intent to defraud, any signature, but rather includes altering, with intent to defraud, any part of any writing purporting to have legal efficacy. See La. R.S. 14:72(A). In the instant case, the defendant’s intent to defraud was evidenced by the manner in which he changed the Act of Giving in Payment. He made minor changes on pages 4 or 5 by crossing out existing text, adding language, and initialing the changes. However, he concealed his addition of language requiring Southeast to pay him $975,000.00 by recreating page 3 with a new font and/or margins without giving any indication of this major change.

We also reject the defendant’s argument that the proposed Act of Giving in Payment was not a document having legal efficacy. Efficacy is defined as the “[p]ower or capacity to produce the desired effect” or the “ability to achieve results.” See State v. Gordon, 95-1247 (La. App. 4th Cir.1/19/96), 668 So.2d 462, 464, writ granted on other grounds, 96-0427 (La.5/10/96), 672 So.2d 669 (quoting The American Heritage Dictionary of the English Language (New York 1973)). The Reporter’s Comment accompanying La. R.S. 14:72 makes clear that it is not necessary for the forged writing to be one that, if genuine, would be a basis for legal liability. To the contrary, according to the commentator, “purporting to have legal efficacy” should be broadly construed. See Gordon, 668 So.2d at 464 (quoting Reporter’s Comment — 1950 to La. R.S. 14:72). Further, “[a]ll writings of serious 17enough nature to be considered subject matter of this crime ‘purport to have legal efficacy.’ ” Reporter’s Comments — 1950 to La. R.S. 14:72. Any falsification or fraudulent alteration of a writing “done with intent to defraud” would satisfy the elements of the crime of forgery. See Reporter’s Comments — 1950 to La. R.S. 14:72.

Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant altered a part of the original Act of Giving in Payment with intent to deceive. The state is “only required to prove that the defendant intended to defraud someone.” State v. Watkins, 532 So.2d 1187, 1189 (La.App. 1st Cir.1988). The verdict rendered against the defendant indicates the jury accepted the testimony offered against the defendant and rejected his defense that he had no intent to deceive, but rather altered the document to make a counteroffer. The criminal intent required for forgery is the intent to defraud any person, and it suffices if the forged or altered instrument has prejudiced or might prejudice the rights of another. See State v. Satchfield, 35, 631 (La. App. 2d Cir.8/14/02), 824 So.2d 537, 540-541. The specific intent required for forgery is a state of mind and need not be proved as a fact but may be inferred from the circumstances and transactions of the case. Id., 824 So.2d at 541. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987). No such hypothesis exists in the instant case.

Further, this court will not assess the credibility of witnesses or reweigh the [8evidence to overturn a fact finder’s determination of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La.App. 1st Cir.3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La.10/17/97), 701 So.2d 1331. Additionally, in reviewing the evidence, we cannot say the jury’s determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2806 (La.1/21/09), 1 So.3d 417, 418 (per curiam). Thus, we find no error in the jury’s guilty verdict as to the forgery count.

However, we conclude that no rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant “filed” the altered Act of Giving in Payment. The State argued to the jury that the defendant violated La. R.S. 14:133 by altering the Act of Giving in Payment with knowledge that “it would be filed” in the public records.

In State v. Carpenter, 2000-436 (La.App. 3d Cir.10/18/00), 772 So.2d 200, 202, writ denied, 2000-3152 (La.1/25/02), 806 So.2d 665, the defendant, a former Chief of Police, appealed his convictions for malfeasance in office and for filing a false report after planting evidence in a suspect’s car. In concluding the 19evidence supported the trial court’s conclusion that the defendant had aided and abetted in the filing of the false report, the court in Carpenter found the defendant had direct involvement in creating the falsity by planting the evidence upon which the false report was predicated, and “given his position and experience as Chief, he had to have known that a false report would be prepared and filed based upon this false evidence and that both the false evidence and the false report would be employed to support the improper arrests of the three ‘suspects.’ ” Id. at 206-07. The court in Carpenter specifically rejected the defendant’s claim that the officer who actually “turn[ed] in” the false report, the defendant’s accomplice, acted innocently. Id. at 207.

In this case, the State erred in relying on Carpenter for the theory that mere knowledge by the instant defendant that the altered Act of Giving in Payment “would be filed” violated La. R.S. 14:133. Carpenter and the other case referenced by the State on appeal, State v. Daigle, 95-2393 (La.App. 1st Cir.9/27/96), 681 So.2d 66, 69-70, involved situations where an accomplice, with full knowledge of the forged nature of a document, filed the document.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. However, the defendant’s mere presence at the scene is not enough to “concern” him in the crime. State v. Neal, 2000-0674 (La.6/29/01), 796 So.2d 649, 659, cert, denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Only those persons who knowingly participate in the planning or execution of a crime may be said to be “concerned” in its commission, thus them liable as principals. Id. A principal may be 1 inconnected only to those crimes for which he has the requisite mental state. Id. In the instant case, Southeast was a victim of, rather than an accomplice to, the defendant’s actions and would not have filed the altered Act of Giving in Payment had it been aware of the defendant’s fraudulent alteration to the original.

It is well accepted that criminal statutes are strictly and narrowly construed, with any ambiguity resolved in favor of the accused. State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, 800. The articles of the criminal code cannot be extended by analogy so as to create crimes not provided for therein. La. R.S. 14:3. The State’s theory expanded the scope of La. R.S. 14:133 beyond its clear text. Thus, we find the defendant’s assignments of error have merit in part, and we accordingly reverse the conviction and vacate the sentence on count I, for the filing of false public records. However, we find the evidence was sufficient to sustain the guilty verdict on count II, for the forgery, beyond a reasonable doubt. Accordingly, we affirm the conviction and sentence on count II.

CONVICTION REVERSED AND SENTENCE VACATED ON COUNT I; CONVICTION AND SENTENCE AFFIRMED ON COUNT II.

      . See State v. Odom, 2007-0516 (La.App. 1st Cir.7/31/08), 993 So.2d 663, 667 (per curiam) (the first element of La. R.S. 14:133 is "the defendant files or deposits for record in any public office or with any public official!;]”) State v. Morris, 2005-725 (La.App. 3d Cir. 12/30/05), 918 So.2d 1107, 1112-13 (conviction and sentence for filing false public records vacated and set aside because the defendant "merely contacted police, but did not actually file or deposit for record any document in any public office or with any public official.”).


author: THERIOT, J.

text:
    William Flory CAUTHRON v. Marlene Yancovich CAUTHRON.
    No. 2012 CA 0913.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.

      Louis J. Cosenza, Gonzales, LA, for Defendant/Appellant Marlene Yancovich Cau-thron.
    Mary E. Heck Barrios, Denham Springs, LA, for Plaintiff/Appellee William Flory Cauthron.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

Ijn this divorce case, the wife appeals a trial court judgment denying her request for final periodic support. We affirm.

FACTS AND PROCEDURAL HISTORY

William Flory Cauthron and Marlene Yancovich Cauthron were married on November 17,1986, and resided in Livingston Parish for the duration of their marriage. Both Mr. and Mrs. Cauthron had children from previous marriages, but no children were born of their marriage. Mr. Cau-thron later filed a petition for divorce on October 6, 2010. Mrs. Cauthron answered the petition for divorce, alleging that she was free from fault in the breakup of the marriage and requesting both interim and final spousal support. The parties were divorced on July 26, 2011.

Although Mr. Cauthron paid Mrs. Cau-thron interim spousal support pursuant to a consent judgment, he disputed Mrs. Cau-thron’s claims that she was free from fault in the breakup of the marriage and was entitled to final periodic support. A bench trial was held on Mrs. Cauthron’s claim for final periodic support on February 23, 2012. At the trial, Mrs. Cauthron offered only her own testimony on the issue of fault. After the close of Mrs. Cauthron’s case, the court granted an involuntary dismissal, denying Mrs. Cauthron’s claim for final periodic support on the grounds that she failed to prove that she was free from fault in the breakup of the marriage. Mrs. Cauthron appealed, alleging that the court erred in finding that she was at fault and that her fault led to the dissolution of the marriage.

DISCUSSION

Louisiana Civil Code article 112 provides that the court may award final periodic support to a spouse who has not been at fault and is in need of support. The burden of proving freedom from fault is upon the claimant. Almon v. Almon, 97-2004 (La.App. 1 Cir. 09/25/98), 718 So.2d 1073, 1077. To constitute fault sufficient to deprive a spouse of final periodic support, the spouse’s misconduct must not only be of a serious nature, but it must also be an independent, contributory, or proximate cause of the separation. Id. Such acts are synonymous with the fault grounds that previously entitled a spouse to a separation or divorce, ie., adultery,

conviction of a felony, habitual intemperance or excesses, cruel treatment or outrages, public defamation, abandonment, an attempt on the other’s life, status as a fugitive, and intentional non-support. Mayes v. Mayes, 98-2228 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259-60. As with any factual finding, a trial court’s findings of fact relative to the issue of fault in domestic cases are entitled to great weight and will not be overturned on appeal absent manifest error. Mayes, 743 So.2d at 1259.

At the close of Mrs. Cauthron’s case, Mr. Cauthron moved for an involuntary dismissal of her claim for final periodic support in accordance with La. C.C.P. art. 1672(B), which provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The court granted the involuntary dismissal, finding that Mrs, Cauthron was guilty of cruel treatment which caused the breakup of the marriage. On appeal, Mrs. Cauthron alleges that the court erred in granting the involuntary dismissal because there was no evidence offered to support the court’s factual conclusions that she was guilty of cruel treatment and that her cruel treatment of her husband caused the marriage to fail.

14A dismissal based on La. C.C.P. art. 1672(B) should not be reversed in the absence of manifest error. McCurdy v. Ault, 94-1449 (La.App. 1 Cir. 4/7/95), 654 So.2d 716, 720 unit denied, 95-1712 (La.10/13/95), 661 So.2d 498.

Although the only testimony offered on the issue of fault was Mrs. Cau-thron’s, she had the burden of proving that she was free from fault, and there was sufficient support for the court’s conclusion in her testimony on cross-examination. Mrs. Cauthron admitted on cross-examination that her husband was concerned with her misuse of prescription drugs; that she criticized her husband in front of his friends; that she slept in a separate bedroom from her husband; that her heavy smoking had resulted in cigarette burns on their furniture and floors; and that she had been arrested for damaging their neighbors’ plants and surveillance equipment as part of an ongoing feud with the neighbors. Mrs. Cauthron also admitted that she did not accompany her husband to the hospital for a heart catheterization because she was babysitting her young grandson. Furthermore, when Mr. Cau-thron was hospitalized in 2010 for an ulcerated toe and doctors were considering amputation, she admitted that she just dropped him off at the hospital rather than staying with him. Although she did visit him in the hospital during this three or four day stay, she brought her young grandson with her so she could babysit him. Finally, immediately prior to filing for divorce, Mr. Cauthron travelled to Mexico to. have gastric bypass surgery in an effort to get his weight and diabetes under control. Although he asked his wife to accompany him for the surgery, she chose not to go with him because she needed to babysit her grandson. Within days of returning from Mexico, Mr. Cau-thron filed for divorce.

1 BThe court concluded that Mrs. Cau-thron was guilty of cruel treatment of her husband because her “cavalier attitude towards his health” was an “absolute sign that she didn’t care,” and her refusal to accompany him to Mexico for surgery was the “final straw” that led to the dissolution of the marriage. Given the evidence before the court, we cannot say that the court’s findings were manifestly erroneous. Because Mrs. Cauthron failed to carry her burden of proving that she was free from fault in the breakup of the marriage, the court did not err in granting the involuntary dismissal of her claim for final periodic support.

CONCLUSION

The judgment denying Mrs. Cauthron’s claim for final periodic support is affirmed. Costs of this appeal are to be borne by the appellant, Marlene Yancovich Cauthron.

AFFIRMED.


text:
    Dr. CRAIG M. and Mrs. Shaun Landwehr v. STEVE OWENS CONSTRUCTION, INC. and Stephen R. Owens, Individually.
    No. 2012 CA 1033.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.

      Merrill T. Landwehr, New Orleans, LA, for Plaintiffs/Appellants Dr. Craig M. Landwehr and Mrs. Shaun Landwehr.
    Edward E. Reynolds, Madisonville, LA, for Defendants/Appellees Steve Owens Construction, Inc. and Stephen R. Owens, Individually.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

|2In this action seeking damages for fraud, the plaintiffs appeal a summary judgment in favor of the defendants, dismissing their claims with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Dr. and Mrs. Craig Landwehr, executed a contract with Steve Owens Construction, Inc. (“Owens Construction”) on April 25, 2002 for the construction of a new home on their lot. On May 16, 2002, the Landwehrs executed a Pre-Construction Standard Contract for Treatment of Subterranean Termites with DA Exterminating Co. of St. Tammany (“DA Exterminating”). The house was completed in May of 2003, and the Land-wehrs took possession at that time. The Landwehrs maintained their termite contract with DA Exterminating after the house was built; however, seven years after taking possession of the house, termites and termite damage were discovered in the Landwehrs’ house.

The Landwehrs sued DA Exterminating, and in the course of that litigation, they discovered a handwritten note on a DA Exterminating service ticket dated April 2, 2003, which stated:

Call Doug 966-2525
Found tunnels — No activity
Halfway up chain wall — Stopped

Alleging that the “Doug” mentioned on the DA Exterminating service ticket was Owens Construction’s on-site job supervisor, the Landwehrs filed a separate suit on December 16, 2010 against Owens Construction and its owner, Stephen R. Owens. The Landwehrs alleged in this suit that Owens Construction had knowledge of the existence of termites during [¡¡construction, but failed to disclose this to the Landwehrs in order to fraudulently induce them to accept the house.

On January 3, 2012, over a year after the suit was originally filed, Owens Construction & Stephen Owens filed a motion for summary judgment, pointing out that the Landwehrs had no evidence to prove that they had any knowledge of the inactive termite tunnels discovered by DA Exterminating’s inspector during construction. In support of the motion for summary judgment, the defendants filed the Landwehrs’ original and amended responses to interrogatories, in which the Landwehrs stated that they did not have any information or knowledge as to how or when the defendants learned about DA Extermmating’s discovery of termite tunnels, and that they were relying solely on the note to “Call Doug” on DA Exterminating’s service ticket to prove knowledge by the builder. In opposition to the motion for summary judgment, the Land-wehrs did not offer any depositions or affidavits to prove that the “Doug” referred to on the service ticket was Owens Construction’s job-site supervisor or that DA Exterminating communicated their discovery to either Doug or Steve Owens. Instead, the Landwehrs simply argued that the note to “Call Doug” created a genuine issue of fact as to whether or not the defendants knew about the termite tunnels during construction. After a hearing, the court granted summary judgment in favor of the defendants and dismissed the Landwehrs’ claims. This appeal by the Landwehrs followed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116, p. 4 (LaApp. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ \jdenied, 10-2227 (La.11/19/10), 49 So.3d 387. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137. A motion for summary judgment should only 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 the movant is entitled to summary judgment as a matter of law. See La. C.C.P. 966(B).

The burden of proof on a motion for summary judgment 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 mov-ant’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. C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish School Board, 07-1856, p. 2 (LaApp. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), unit denied, 08-2316 (La.11/21/08), 996 So.2d 1113; see also La. C.C.P. art. 967(B).

|BIn response to the defendants’ motion for summary judgment pointing out the lack of factual support for an essential element of the Landwehrs’ claim, ie., Mr. Owens’ or Owens Construction’s knowledge of DA Exterminating’s discovery, the Landwehrs failed to produce any evidence in the form of affidavits, depositions, answers to interrogatories, or admissions, to prove that they would be able to carry their burden of proof at trial. As such, summary judgment dismissing their claims was appropriate.

CONCLUSION

The summary judgment in favor of defendants is affirmed. Costs of this appeal are assessed to the plaintiffs, Dr. and Mrs. Landwehr.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 967(B) provides:
      When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.


author: CRAIN, J.

text:
    WESTGATE, LLC and the Gray Insurance Company v. EATON CORPORATION and ABC Insurance Company.
    No. 2012 CA 1098.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.

      Daniel J. Philips, Metairie, LA, for Plaintiffs/Appellants, Westgate, LLC and The Gray Insurance Company.
    Thomas E. Schwab, New Orleans, LA, for Defendant/Appellee, Eaton Corporation.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   CRAIN, J.

| ¿This is an appeal of a summary judgment dismissing a claim for contribution for workers’ compensation benefits paid by or on behalf of the plaintiffs. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 27, 2009, Amouis R. Light (Light) was injured during the course and scope of his employment with Westgate, LLC (Westgate) while performing work undertaken pursuant to a contract between Westgate, as the subcontractor, and Eaton Corporation (Eaton) as the principal contractor. Westgate’s workers’ compensation insurer, The Gray Insurance Company (Gray), paid workers’ compensation benefits to Light as a result of the injuries he sustained in the accident.

Gray and Westgate initially sought to recover those benefits from Eaton by filing an intervention in a proceeding instituted by Light and his children against Eaton in the Eighteenth Judicial District Court in Iberville Parish, Louisiana (referred to hereinafter as the “Tort Suit”). However, in response to a motion for summary judgment filed on behalf of Eaton in the Tort Suit, the trial court in that case found that Eaton was the statutory employer of Light and, therefore, immune from liability for non-intentional torts. Accordingly, the claims filed by Light, Westgate and Gray against Eaton in the Tort Suit were dismissed by a judgment signed on March 9, 2011.

Gray and Westgate then filed a “Petition for Contribution” on June 15, 2011 with the Office of Workers’ Compensation (OWC) against Eaton and ABC Insurance Company, the alleged but unknown workers’ compensation insurer of Eaton. Gray and Westgate asserted that Eaton, as the statutory | ¡¡employer of Light, was solidarity liable with Westgate and Gray for workers’ compensation benefits paid to Light pursuant to Louisiana Revised Statutes 23:1061.A(1); and, therefore, Eaton was indebted to Gray and Westgate for Eaton’s virile share of the payments as contribution among solidary obligors pursuant to Louisiana Civil Code article 1804. West-gate and Gray further alleged that Eaton’s virile share of the workers’ compensation liability was 100% because the negligence of Eaton, according to the petition, was the sole cause of the accident and injuries sustained by Light.

Eaton filed a motion for summary judgment and urged that any obligation of contribution owed by Eaton to Westgate and Gray terminated by confusion due to Louisiana Revised Statutes 23:1061.B, which vests Eaton, as the statutory employer, with a right of full indemnity against Westgate and Gray for any workers’ compensation liability Eaton owed to Light. Eaton further asserted that the summary judgment granted in the Tort Suit barred the present claim of contribution under the doctrine of res judicata as set forth in Louisiana Revised Statutes 13:4231.

The workers’ compensation judge granted Eaton’s motion for summary judgment concluding that the Workers’ Compensation Act provides only Eaton with a right of indemnity from Westgate and Gray and, further, that Westgate and Gray could not seek contribution from Eaton based upon Eaton’s alleged fault because fault has no significance in workers’ compensation claims. The workers’ compensation judge signed a judgment dismissing all claims of Westgate and Gray on March 23, 2012. Westgate and Gray appealed the summary judgment and assigned as error ]4the dismissal of their claims “on the grounds that the OWCA did not have jurisdiction over the contribution claims presented in this matter.”

LAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La.App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La.11/19/10), 49 So.3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. Pro. art. 966.B(2). Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. Pro. art. 966.A(2).

Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. All Crane, 47 So.3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La.Code Civ. Pro. art. 966.-C(2). If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must 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, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy |shis evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La.Code Civ. Pro. art. 966 C(2); All Crane, 47 So.3d at 1027.

While Westgate and Gray assert that the workers’ compensation judge granted Eaton’s summary judgment on the basis of a lack of subject matter jurisdiction, our review of the record indicates that the summary judgment was granted based upon a finding that Gray and West-gate have no claim for contribution from Eaton. Nevertheless, the jurisdiction of the workers’ compensation judge to adjudicate claims of contribution between employers is expressly established by Louisiana Revised Statutes 23:1310.3.F which provides, in pertinent part:

[T]he workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to ... cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution....

See also TIG Ins. Co. v. Louisiana Workers’ Compensation Corp., 04-2608 (La. App. 1 Cir. 6/10/05), 917 So.2d 26, writ denied, 95-1821 (La.1/27/06), 922 So.2d 553.

Pursuant to the legislative grant of original jurisdiction set forth in Louisiana Revised Statutes 23:1310.3.F, we find that the workers’ compensation judge had jurisdiction to adjudicate the claims by Westgate and Gray against Eaton.

Although Westgate and Gray confined their assignment of error to an issue of jurisdiction, which we find was not the basis of the summary judgment, the appellants did address at length the merits of the summary judgment in their brief and included, in general terms, the granting of the summary judgment in their Statement of the Issues Presented for Review. | ^Accordingly, we will conduct a de novo review of the granting of the summary judgment by the workers’ compensation judge. La.Code of Civ. Pro. art. 2164.

Louisiana Revised Statutes 23:1061.A(1) provides in pertinent part:

[T]he principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him....

As urged by Westgate and Gray, Sub-part 1061.A(1) does impose liability upon the statutory employer for workers’ compensation benefits owed to an injured employee under the circumstances set forth therein; however, Sub-part 1061.B creates a right of indemnity in favor of the statutory employer as follows:

When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

The Louisiana Supreme Court and this court have recognized the right of indemnity granted by Louisiana Revised Statutes 23:1061.B and 23:1063 to a statutory employer against the primary employer for liability to an injured employee. Jones v. Southern Tupelo Lumber Company, 251 La. 869, 244 So.2d 815 (1971); DeBourgh v. B & N Roofing, 09-0953 (La.App. 1 Cir. 12/23/09), 30 So.3d 757, 759.

In Jones, the supreme court explained: The purpose of these statutes is to expand financial responsibility and to prevent the evasion of the workmen’s compensation law by the principal’s or the principal contractor’s interposing between himself and the employee an impecunious contractor or subcontractor. Under these statutes the claimant is entitled to proceed against the principal (or principal contractor) or the contractor (or subcontractor) or both as he chooses. The ^indemnification clauses, however, have the effect of finally imposing the loss of the principal or principal contractor upon the claimant’s immediate employer.

Jones, 257 La. at 874-875, 244 So.2d at 817.

Similarly, in Crescent City Const., Inc. v. Camper, 03-1727 (La.App. 1 Cir. 12/30/04), 898 So.2d 408, this court observed:

The insurer of the principal contractor is only secondarily liable and is entitled to a judgment against those who are primarily liable for any amount it is required to pay because of the failure of the primary obligor.

Crescent City Const., Inc., 898 So.2d at 414-415.

Westgate and Gray argue that the soli-dary obligation owed by the statutory employer and the primary employer for workers’ compensation benefits renders applicable Louisiana Civil Code article 1804 which creates a right of contribution whereby a solidary obligor who has “rendered the whole performance” may claim from the other obligors their “virile portion” of the indebtedness.

However, the grant of contribution in Article 1804 among solidary obli-gors cannot prevail over the right of indemnity granted to a statutory employer under the specific circumstances set forth in Louisiana Revised Statutes 23:1061. If there is a conflict between two statutes that deal with the same subject matter, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Burge v. State, 10-2229 (La.2/11/11), 54 So.3d 1110, 1113; State v. Campbell, 03-3035 (La.7/6/04), 877 So.2d 112,118.

In Maryland Cas. Co. v. Bollich, 408 So.2d 20 (La.App. 3 Cir.1981), the Louisiana Third Circuit Court of Appeal considered a similar claim by an insurer of a primary employer seeking contribution from an alleged statutory employer for workers’ compensation benefits paid in ^connection with the accidental death of a farm worker. Although the defendant, Dr. DeRouen, denied that he was a statutory employer of the injured worker, the court determined that Dr. DeRouen would have no liability for contribution in light of the right of indemnity granted by Section 1061, explaining:

In view of the provisions of the last paragraph set forth above, it is unnecessary for us to determine whether Dr. DeRouen was a ‘principal’ within the meaning of this section. This statute specifically provides that in the event a person is declared to be a principal or statutory employer, and, as such, makes compensation payments, the principal shall have a cause of action for indemnity against any person with whom he contracts for the performance of work. In the case at hand, if Dr. DeRouen paid compensation payments to Gaspard’s dependents as a statutory employer, Dr. DeRouen would have a cause of action for complete indemnity for such payments against Gaspard’s employer or co-employer. With such a statutory right of indemnity existing in favor of Dr. DeRouen, neither the employer nor co-employer of Gaspard would have any corresponding cause of action against Dr. DeRouen for contribution or indemnity. As a matter of law the motion for summary judgment must be granted in favor of Dr. DeRouen.

Maryland Cas. Co., 408 So.2d at 22. See also H. Alston Johnson, III, Workers’ Compensation Law and Practice, § 129, 18 Louisiana Civil Law Treatise 280, fn. 4 (5th Ed.) (noting that a claim, for indemnity or contribution brought by the employer of the claimant or his insurer against a principal “is without merit”).

Westgate argues that this well established, statutory right of indemnity should not arise if Eaton was at fault for causing the accident and injuries sustained by Light. Relying upon jurisprudence addressing contractual indemnity clauses, Westgate urges that a right of indemnity for one’s own negligence must be speeifi-eally set forth in unequivocal terms in the indemnity provision.

|flWe find the jurisprudence governing contractual indemnity clauses to be inapplicable to the interpretation of Louisiana Revised Statutes 23:1061.B and see no legal justification'to carve out a fault-based exception to the indemnity granted by the statute to a statutory employer. Section 1061 imposes liability, regardless of fault, upon a statutory employer for the payment of workers’ compensation benefits to an injured statutory employee. Given that the statutory employer’s liability under the section is not based upon fault, the corollary right of indemnity granted by the section to the statutory employer should likewise be independent of any fault on the part of the statutory employer. The statutory employer’s fault, if any, did not create its liability for compensation benefits, and the same party’s fault, if any, should not preclude its right of indemnity granted by Section 1061. This conclusion is consistent with the general purposes of the Workers’ Compensation Act where the “element of personal fault either disappears entirely or is subordinated to broader economic considerations.” H. Alston Johnson, III, Workers’ Compensation Law and Practice, § 32, 13 Louisiana Civil Law Treatise 39 (5th Ed.)

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge granting a summary judgment in favor of Eaton Corporation is affirmed. Costs of this appeal are assessed to Westgate, LLC and The Gray Insurance Company.

AFFIRMED.

      . The judgment reserved all claims against Eaton for intentional acts.

      . Westgate and Gray also state that they are appealing a judgment “denying appellants' motion for leave to file their response to Eaton’s supplemental brief”: however, that asserted basis for the appeal was not assigned as error, was not briefed, and is considered abandoned. La. Rules of Court, Uniform Rule 2-12.4.