author: SUSAN M. CHEHARDY, Chief Judge.

text:
    L.R.F. v. A.A.
    No. 13-CA-797.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.
    Rehearing Denied March 19, 2014.

      William H. Daume, Attorney at Law, Gretna, Louisiana, Counsel for Appellee, L.R.F.
    A.A., Marrero, Louisiana, Appellant in Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

| ¿This is the parties’ second appeal. Here, A.A. challenges the trial court’s ruling granting L.R.F.’s petition to revoke his acknowledgement of paternity of L.R.F., Jr. For the following reasons, we affirm.

Facts and Procedural History

On December 21, 2008, L.R.F., Jr. was born. Shortly after the child’s birth, L.R.F. executed an authentic act acknowledging paternity of L.R.F., Jr.

On March 8, 2010, L.R.F. filed a Petition to Disavow Paternity of the minor child, which he later amended to reflect that he sought to revoke his acknowledgement of paternity under La. R.S. 9:406(B). On February 24, 2011, the child’s mother, A.A., filed a Motion for Scientific Paternity Testing. On October' 12, 2011, the trial judge heard and granted, inter alia, L.R.F.’s Petition to Revoke Acknowledgement of Paternity. A.A. appealed that ruling. On May 31, 2012, this Court, finding the record devoid of evidence required to establish paternity or |slack thereof, vacated the trial court judgment and remanded for further proceedings.

On November 28, 2012, L.R.F. moved for DNA testing at a facility that can provide admissible test results, which was granted. The trial court ordered A.A. to produce herself and the minor child for DNA testing on or before January 7, 2013. On February 11, 2013, the Paternity Report was filed in the record.

On February 25, 2013, A.A. filed a motion challenging the admissibility of the report on the basis that the record lacked documentation regarding chain of custody of the samples and an affidavit from the examiner, which was required by La. R.S. 9:397.2 et seq. On March 13, 2013, the trial judge heard and granted A.A.’s motion, ordering L.R.F. to provide the necessary affidavits.

On March 27, 2013, an “Affidavit of Relationship Testing Results” was filed by Vince Miller, Ph.D., Chief Technical Officer and Custodian of Records for Chromosomal Labs • Bode Technology in Phoenix, Arizona. In his affidavit, Dr. Miller attests that he is the Laboratory Director for Relationship Testing and his laboratory holds an accreditation to perform biological screening. Attached to Dr. Miller’s affidavit is the “Chain of Custody” for the samples provided by A.A., L.R.F., and the minor child. The Chain of Custody form was signed by A.A. on January 4, 2013 and L.R.F. on January 23, 2013, when the biological samples were collected. Further, the Chain of Custody was signed by the sample collector, Anthony Jones, when he collected the samples and when he shipped the kit to the lab for testing.

On April 11, 2013, an Affidavit from Anthony Jones was filed into the record. In it, Jones attests that, pursuant to his employment with Innovative Risk Management Services, he obtained photographic identification from A.A. then | collected “tissue samples” from A.A. and the minor child on January 4, 2013. He further attests that, on January 23, 2013, he obtained photographic identification from L.R.F. then collected a “tissue sample.” Finally, he forwarded all three tissue samples to Chromosomal Labs in Phoenix, Arizona for DNA testing.

On April 16, 2013, A.A. filed an Affidavit from K.H.A., who attests that his “complete review of the Court Record” reflects that the record is “devoid of any written scientific DNA Blood or Tissue Testing results evidence excluding, by a ninety-nine and nine-tenths percentage point threshold, the Plaintiff ... as the biological father of the minor child....”

On May 15, 2013, the trial court heard A.A.’s “Request for the Court to Correct Procedural Error” regarding failure to serve the DNA test results and accompanying affidavits on herself and the curator appointed to represent the minor child, as required by La. R.S. 9:406. The trial judge granted relief and ordered L.R.F. to properly serve the other parties with the necessary documentation.

On July 12, 2013, trial of L.R.F.’s Petition to Revoke Acknowledgment commenced. At trial, without objection, L.R.F. introduced into evidence the Paternity Report with accompanying affidavits from the sample collector and the sample tester, which states that there is 0% probability that L.R.F. is the biological father of the minor child. The trial judge thereafter found that L.R.F. had sufficiently proven that he was not the biological father of the minor child and granted his petition to revoke his acknowledgment. The trial judge signed the judgment to that effect on August 5, 2013.

¡¡¡Law and Argument

On appeal, A.A., in proper person, lists six assignments of error: first, L.R.F. was not ordered by the trial court to submit to DNA testing and “the Record is totally void of any ..evidence showing [L.R.F.] actually took part in any DNA testing in this case;” second, Judge Miller “clearly tainted Plaintiffs ‘alleged Affidavit of Relationship Test Results;’ ” third, Anthony Jones’ Affidavit is invalid as it was not properly notarized; fourth, the record does not contain a written report of DNA testing performed by a laboratory in Las Cruces, New Mexico; fifth, L.R.F. has not met his burden of proof by providing the Court with clear and convincing credible proof as required by statute; and finally, sixth, appellant alleges that the domestic hearing officer, commissioner, trial judge, and two attorneys violated her civil rights, Louisiana law and the Code of Judicial Conduct.

In her first assignment of error, A.A. alleges that L.R.F. was not ordered by the trial court to submit to DNA testing and “the Record is totally void of any ... evidence showing [L.R.F.] actually took part in any DNA testing in this case.” We agree that L.R.F. was not ordered to submit to DNA testing, which was not necessary, considering L.R.F. obtained DNA testing to exclude him as the biological father of the minor child. We disagree, however, that the record is devoid of evidence that L.R.F. submitted himself to DNA testing. The DNA test results from Chromosomal Labs filed in the record clearly reference L.R.F. as the donor of one of the samples tested by the laboratory. This argument is without merit.

In her second assignment of error, A.A. alleges that Judge Miller “clearly tainted Plaintiffs ‘alleged Affidavit of Relationship Test Results.’ ” Here, A.A. merely restates her allegation that the trial judge “tainted” the test results by instructing the attorneys regarding the form of affidavit necessary from the testing | ¿facility, without briefing in support thereof. “The court may consider as abandoned any specification or assignment of error which has not been briefed.” Further, “[restating an assigned error in brief without argument or citation of authority does not constitute briefing.” For this reason, this assignment of error is preter-mitted.

In her third assignment of error, A.A. argues that Anthony Jones’ Affidavit is invalid as it was not properly notarized. Although it is true that “[a]ny document notarized in this state on or after January 1, 2005, submitted for filing or recording ... in the office of any clerk of court ... may be refused by the clerk ... if the document fails to contain the notary identification or attorney bar roll number and the typed, printed, or stamped name of the notary and the witnesses,” La. R.S. 35:12(D)(1) further states that “documents filed in the civil ... suit records of any court shall not be subject to the provisions of this Subsection.” Thus, the Affidavit of Anthony Jones filed in this matter is not subject to the strict provisions of La. R.S. 35:12(D)(1). This argument is without merit.

In her fourth assignment of error, A.A. asserts that the record does not contain a written report of DNA testing performed by a laboratory in Las Cruces, New Mexico. We agree. While the trial judge’s Reasons for Judgment do mention the New Mexico result, neither the transcript of the hearing nor the Judgment mention the purported result from the New Mexico facility. Appeals are taken from the judgment, not the reasons for judgment. Courts of appeal are constrained to review judgments on appeal. Accordingly, this assignment of error lacks merit.

|7In her fifth assignment of error, A.A. challenges the substance of the trial court’s ruling in this case by alleging that L.R.F. “has not met his burden of proof by providing the Court with clear and convincing credible proof as required by statute.” We disagree.

Louisiana’s law on revocation of an acknowledgment of paternity is found in La. R.S. 9:406, which reads in part:

A. (1) A person who executed an authentic act of acknowledgment may, without cause, revoke it within sixty days of the execution of the authentic act of acknowledgment [if certain specific criteria are met];
B. (1) If the notarial act of acknowledgment has not been revoked within sixty days in accordance with the provisions of Subsection A of this Section, a person who executed an authentic act of acknowledgment may petition the court to revoke such acknowledgment only upon proof, by clear and convincing evidence ... that the person is not the biological parent of the child.
(2) The mover shall institute the proceeding by ordinary process, within a two-year period commencing with the execution of the authentic act of acknowledgment of paternity, in a court of competent jurisdiction upon notice to the other party who executed the notarial act of acknowledgment and other necessary parties.... If the court finds based upon the evidence presented at the hearing that there is substantial likelihood that ... the person who executed the authentic act of acknowledgment is not the biological father, then, and only then, the court shall order genetic tests pursuant to R.S. 9:396. Nothing herein shall preclude the mover from presenting any other evidence as a substitute for the genetic tests if it is not possible to conduct such tests.
(3) The test results certified under oath by an authorized representative of an accredited laboratory shall be filed with the court and shall be admissible on the issue of paternity pursuant to R.S. 9:397.3. If the test results show a statistical probability of ninety-|nines point nine percent or greater, a rebuttable presumption of paternity shall be established. If the acknowledged father is found to be excluded by the tests, an action seeking support or an established order of support shall be dismissed and the acknowledgment of paternity shall be revoked.
(4) The burden of proof in this proceeding shall be upon the party seeking to revoke the authentic act of acknowledgment.

(Emphasis added).

In this case, L.R.F. sought to revoke his authentic act of acknowledgment of paternity. To bear his burden of proof, he submitted to DNA testing. The result of that DNA test, which was certified under oath by an authorized representative of an accredited laboratory pursuant to R.S. 9:397.3, was admitted at trial and showed that there was 0% probability that L.R.F. was the minor child’s biological father. The trial judge found that L.R.F. had presented clear and convincing evidence that he was not the biological parent of the child sufficient to bear his burden of proof. We find no error in that ruling. This assignment of error lacks merit.

In her final assignment of error, appellant alleges that the domestic hearing officer, commissioner, trial judge, and two attorneys violated her civil rights, Louisiana law and the Code of Judicial Conduct. First, A.A. admits that many of the alleged incidents of “misconduct” by these individuals occurred before this matter came before this Court on the first appeal. To the extent that those claims have not been waived for failing to raise them during her first appeal of this matter, we conclude that issues not [^raised in the trial court will not be given consideration for the first time on appeal. See, U.R.C.A. Rule 1-3; Quality Paint Hardware & Marine Supply Inc. v. Crescent Coating & Sens., Inc., 13-129 (La.App. 5 Cir. 8/27/13), 123 So.3d 780, 785.

Further, with respect to her allegations regarding the trial judge and plaintiffs attorney that occurred during the proceedings that are the subject of this appeal, we will not address these allegations for several reasons. First, the record does not support the allegations. Second, for an issue to be preserved for review, a party must make a timely objection and state the specific ground for the objection. La. C.E. art. 103 A(l); La. C.C.P. art. 1635. Failure to contemporaneously object constitutes a waiver of the right to complain on appeal. Nunnery v. City of Kenner, 08-1298 (La.App. 5 Cir. 5/12/09), 17 So.3d 411, 415. Furthermore, the reasons for the objection must be brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. See Jeansonne v. Bosworih, 601 So.2d 739 (La.App. 1st Cir.1992), writ not considered, 614 So.2d 75 (La.1993). Accordingly, this assignment of error is pre-termitted.

Conclusion

For the foregoing reasons, we affirm the trial court’s ruling allowing L.R.F. to revoke his acknowledgment of paternity. Costs of this appeal are assessed against A.A.

AFFIRMED.

      . The parties first appeal can be found at Fleming v. Armant, 12-43 (La.App. 5 Cir. 5/31/12), 97 So.3d 1071.

      . To protect the identity of the minor child, we will use the initials to refer to the parties. U.R.C.A. 5-1, 5-2; J.P. v. C.E., 12-20 (La.App. 3 Cir. 5/2/12), 94 So.3d 107, 109.

      . 97 So.3d at 1072-73.

      . 97 So.3d at 1074-75.

      .K.H.A. also attests that the record is devoid of any Notice from the Clerk of Court for Twenty-Fourth Judicial District Court that any such results were filed in the court record.

      . U.R.C.A. Rule 2-12.4.

      . State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 203, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297.

      . See, Mitten v. State Dep’t of Pub. Safety & Corr., 07-0845 (La.App. 1 Cir. 12/21/07), 978 So.2d 957, 964.

      . See La. C.C.P. arts. 1917, 1918, 2082 and 2083; Greater New Orleans Expressway Commission v. Olivier, 02-2795 (La. 11/18/03), 860 So.2d 22, 24.

      . U.R.C.A. Rule 1-3.

      .La. R.S. 9:397.3(A)(1) A written report of the results of the initial testing, certified by a sworn affidavit by the expert who supervised the tests, shall be filed in the suit record. The affidavit shall state in substance:
      (a) That the affiant is qualified as an examiner of blood or tissue samples for inherited characteristics, including but not limited to blood and tissue types, to administer the test and shall give the affiant's name, address, telephone number, qualifications, education, and experience.
      (b) How the tested individuals were identified when the samples were obtained.
      (c) Who obtained the samples and how, when, and where the samples were obtained.
      (d) The chain of custody of the samples from the time obtained until the tests were completed.
      (e) The results of the test and the probability of paternity as calculated by an expert based on the test results.
      (f) The procedures performed to obtain the test results.
      (2) A notice that the report has been filed shall be mailed by certified mail to all parties by the clerk of court or shall be served in accordance with Code of Civil Procedure Article 1314.
      (3) A party may challenge the testing procedure within thirty days of the date of receipt or service of the notice.

      B. (2)(a) If there is no timely challenge to the testing procedure or if the court finds there has been no procedural error in the testing procedure, the certified report shall be admitted in evidence at trial as prima facie proof of its contents, provided that the party against whom the report is sought to be used may summon and examine those making the original of the report as witnesses under cross-examination. The summons for the individual making the original of the report may be served through his employer’s agent for service of process listed with the secretary of state or served pursuant to R.S. 13:3201 et seq.

      D. If the court finds that the conclusions of all the experts as disclosed by the reports, based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.


source: Caselaw Access Project

author: PICKETT, Judge. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    Shane EADS, et. al. v. CHARTIS SPECIALTY INS. CO., et. al.
    No. 13-224.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 26, 2014.

      Patrick C. Morrow, James P. Ryan, Morrow, Morrow, Ryan & Bassett, Opel-ousas, LA, for Plaintiffs/Appellants-Shane Eads, et al.
    Edward 0. Taulbee, IV, Taulbee & Associates, Lafayette, LA, for Defendants/Appellees-Ricky Boyle and Louisiana Farm Bureau Mutual Insurance Company.
    Mary McCrary Hamilton, Julie Anne Scheib, Voorhies & Labbé, Lafayette, LA, for Defendant/Appellee-Atlantic Casualty Insurance Company.
    Patrick J. McShane, Lara N. Dicristina, Frilot LLC, New Orleans, LA, for Defendant/Appellee-Chartis Specialty Insurance Company.
    Vincent Lee Bowers, Morris Bart, LLC, New Orleans, LA, for Defendant/Appellee-Gregory Holroyd.
    Katherine P. Martin, Gretchen H. Ma-yard, Martin Mayard, L.L.C., Lafayette, LA, for Defendant/Appellee-State Farm Mutual Automobile Insurance Company.
    David Oliver Way, Oliver & Way, L.L.C., Lafayette, LA, for Defendant/Ap-pellee-Dewayne K. Spriggs, Individually.
    Brad Jeremy Brumfield, Law Office of Keith S. Giardina, Baton Rouge, LA, for Defendant/Appellee-Mallard Environmental, Inc.
    Michael J. Williamson, Plauche, Smith & Nieset, Charles, LA, for Defendant/Appel-Iee-Dewayne K. Spriggs, Individually.
    Erin N. Hargrave, Borne & Wilkes, LLP, Lafayette, LA, for Defendants/Ap-pellees-Gregory Holroyd and Town of Sunset.
    Prezemek Lubecki, Morris Bart, LLC, Orleans, LA, for Defendant/Appellee-Gregory Holroyd.
    Catherine Fornias Giarrusso, Barrasso, Usdin, et al., New Orleans, LA, for Defendant/Appellee-Wausau Business Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

|4Shane Eads, an offshore diver, was providing temporary help to his wife’s step-father in an unrelated business in a highway work zone when he was caught between a crashing vehicle and a stationary trailer. He sustained crushing injuries and the loss of his right leg. Mr. Eads appeals the granting of a motion for summary judgment in favor of Atlantic Casualty Insurance Company (Atlantic), arguing an ambiguity exists in the coverage extended to a “temporary worker” such as Mr. Eads which renders the policy inapplicable to him. We have reviewed Atlantic’s policy in light of Mr. Eads’ contentions and find that Atlantic’s policy is not ambiguous. Accordingly, we affirm the trial court’s grant of summary judgment. For the same reasons, we affirm the trial court’s denial of Mr. Eads’ cross-motion for summary judgment and his motion for new trial.

ASSIGNMENTS OF ERROR

We must decide whether the trial court erred in granting summary judgment to Atlantic and in denying Mr. Eads’ cross-motion for summary judgment and motion for new trial.

FACTS AND PROCEDURAL HISTORY

Mr. Eads had been permanently employed as an offshore diving supervisor for six years when he agreed to provide his wife’s step-father, Dewayne Spriggs, with temporary labor on a commercial job in the Town of Sunset, Louisiana. Mr. Spriggs owned a one-man sewer clean-out company, Dewayne K. Spriggs, LLC, d/b/a D/Von’s Jetter Rooter Service.

On January 25, 2011, Mr. Eads was working with Spriggs on Duffy Avenue on a sewer clean-out for the Town of Sunset. Using Spriggs’s truck, they had pulled an equipped jetting- trailer over the manhole and fed a protective sleeve Rdown into a pipe to protect the jetting hose. Mr. Eads tied the sleeve to the trailer. Mr. Spriggs fed the hose out, and Mr. Eads worked it into the sewer line. They were retracting the hose when a motorist suddenly crashed into the work zone, striking the Town of Sunset’s parked truck and propelling it into Mr. Eads, pinning him between the Sunset truck and the jetting trailer.

Mr. Eads suffered numerous serious injuries, including a crushed pelvis, fractured lumbar vertebrae, severed urethra, and injuries so severe to his right leg that it had to be amputated. He sought workers’ compensation benefits from Spriggs LLC’s insurer, Louisiana Workers’ Compensation Corporation (LWCC), but learned that Spriggs LLC did not have workers’ compensation coverage in force because his policy had lapsed and was cancelled in December 2010.

Mr. Eads and his wife, on behalf of themselves and their two minor children (collectively referred to as. “Eads” or “Mr. Eads”), brought suit against the defendants and their insurers. Pursuant to the original and supplemental petitions, the Eads filed suit against the motorist and his insurer; the Town of Sunset and its employee at the work site; trailer owner, Mallard Environmental, Inc., and its primary and excess insurers; Spriggs LLC, Spriggs individually; and three insurance carriers providing insurance to Spriggs and/or his LLC. Eads settled with the motorist and his insurer; the Town of Sunset and its employee; State Farm Mutual Automobile Insurance Company, the automobile insurer of Spriggs individually; and Spriggs LLC’s excess liability insurer, Chartis Specialty Insurance Company. Eads also obtained a default judgment against Spriggs LLC for workers’ compensation benefits which were not available. The judgment was not paid, and Eads sued Spriggs LLC in tort pursuant to La. R.S. 23:1032.1.

|fiSpriggs LLC was the named insured on a commercial general liability (CGL) policy written by Atlantic. The trial court granted Atlantic’s motion for summary judgment and denied Eads’s cross-motion, finding that an endorsement to the policy replaced the definition of “employee” and that Mr. Eads was not covered under the policy. Eads’s claims for general liability coverage from Atlantic were dismissed with prejudice. A subsequent judgment denied Eads’s motion for a new trial on the Atlantic policy. Eads appeals both judgments.

The trial court granted an exception of no cause or right of action to Dewayne Spriggs, individually. While Eads’s motion for appeal indicated that the judgment granting the exception was being appealed, Eads did not assign error or mention the exception in any manner in his appellate brief to this court. Mr. Spriggs filed an appellee brief asserting that Eads’s objection to the exception in his favor had been abandoned. We agree and do not address the exception and dismissal granted to Dewayne Spriggs, individually.

STANDARD OF REVIEW

Whether the language of a contract is ambiguous is a question of law that subjects the judgment to a de novo standard of review on appeal. Cluse v. H & E Equipment Servs., Inc., 09-574 (La.App. 3 Cir. 3/31/10), 34 So.3d 959, writ denied, 10-994 (La.9/17/10), 45 So.3d 1043. “When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.’ ” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). The motion for summary judgment shall be granted if the 17pleadings, depositions, answers to interrogatories, admissions, and 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 CivJP. art. 966(B).

LAW AND DISCUSSION

Mr. Eads initially sought workers’ compensation benefits from Spriggs LLC but obtained a default judgment against the company that was not paid or appealed because the company’s workers’ compensation policy lapsed for nonpayment before he was injured. After the delays for an appeal had run and the sixty days for paying the judgment had expired, Mr. Eads amended his tort petition and added Spriggs LLC as a defendant, asserting negligence claims and a tort cause of action under La.R.S. 23:1032.1. The Office of Workers’ Compensation (OWC) file is part of this record and contains documents supporting the default judgment obtained by Mr. Eads against Spriggs LLC. Specifically, the file contains the | ^cancellation notice dated December 9, 2010, stating that Spriggs LLC’s workers’ compensation coverage would be cancelled as of noon on December 23, 2010, for failure to pay the premium and the default judgment against Spriggs LLC. Atlantic does not contest that Mr. Eads is entitled to sue Spriggs LLC in tort pursuant to La.R.S. 23:1032.1 and the OWC default judgment. Accordingly, we consider only whether Atlantic’s policy excludes Mr. Eads from coverage.

Because the issues presented on de novo review involve insurance coverage, we apply the rules on the interpretation of contracts.

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and the agreement must be enforced as written. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured.

Hebert v. Webre, 08-60, pp. 4-5 (La.5/21/08), 982 So.2d 770, 773-74 (citations omitted).

[I]n determining whether an insurance policy provides coverage, every provision of the policy must be read and interpreted, particularly the provisions relating to what is insured, usually contained in a section entitled “Insuring Agreement,” the provisions relating to who is insured, usually contained in a section entitled “Who Is An Insured,” and the provisions relating to what is excluded from coverage, usually contained in a section entitled “Exclusions.” Only then can a determination of coverage be made. See Magnon v. Collins, 98-2822 (La.07/07/99), 739 So.2d 191.

Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 6 (La.1/15/02), 805 So.2d 1134, 1139.

IcATLANTIC’S POLICY

At the time of the accident, Spriggs LLC, d/b/a D/Von’s Jetter Rooter Service was the named insured on a CGL policy with Atlantic, No. L034002841. The Atlantic policy provides in Section I — Coverage A — Bodily Injury and Property Damage Liability, that Atlantic “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury.’ ” When Eads named Atlantic as a defendant, Atlantic invoked Exclusion e of Combination Endorsement AGL-055 (the endorsement) that is attached to Spriggs LLC’s policy to deny Eads coverage. Mr. Eads filed a cross-motion for summary judgment, seeking a judgment recognizing him as an insured under Atlantic’s policy. The trial court granted Atlantic’s motion for summary judgment and denied Eads’s cross-motion. Eads asserts error on the part of the trial court based upon ambiguity that he contends is created by the endorsement.

When an endorsement is affixed to an insurance policy, the two must be read together. If the endorsement conflicts with the policy in any respect, the endorsement prevails. Zeitoun v. Orleans Parish Sch. Bd., 09-1130 (La.App. 4 Cir. 3/3/10), 33 So.3d 361, writ denied, 10-752 (La.6/4/10), 38 So.3d 303. Accordingly, if coverage is provided in the policy, but the endorsement excludes coverage, there is no coverage. Id.

“Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Garcia v. St. Bernard Parish Sch. Bd., 576 So.2d 975, 976 (La.1991).” Ledbetter v. Concord Gen. Corp., 95-809, p. 4 (La.1/6/96), 665 So.2d 1166, 1169. “[A]n ambiguity exists in an insurance policy when the pertinent provision can reasonably be | inconstrued in two different ways.” McCarthy v. Berman, 95-1456, p. 8 (La.2/28/96), 668 So.2d 721, 726.

Whether a policy endorsement creates an ambiguity must be considered as follows:

[I]f the exclusion found in the endorsement provides a narrower scope of coverage than the provisions in other sections of this policy, such differences do not necessarily create ambiguity. The extent of coverage is determined by the parties’ intent as reflected by the words of the policy; the intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the policy’s words, unless those words have acquired a technical meaning. Ledbetter v. Concord General Corporation, 95-0809 (La.01/06/96), 665 So.2d 1166. The very purpose of exclusions added through endorsements is to change what otherwise would be the meaning of the terms in the policy or the scope of the coverage. The use of such endorsements allows the parties to adjust a policy without having to confect an entire new policy in place of a “standard” policy.

Sims v. Guerrero, 39,091, pp. 4-5 (La.App. 2 Cir. 12/15/04), 889 So.2d 1184, 1186.

Atlantic’s motion for summary judgment is based on Exclusion e contained in the endorsement which states, in pertinent part:

EXCLUSION OF INJURY TO EMPLOYEES, CONTRACTORS AND EMPLOYEES OF CONTRACTORS

Exclusion e. Employer’s Liability of Coverage A. Bodily Injury and Property Damage Liability (Section I-Coverages) is replaced by the following:
This insurance does not apply to:
(i) “bodily injury” to any “employee” of any insured arising out of or in the course of:
(a) Employment by any insured; or
(b) Performing duties related to the conduct of any insured’s business”
With respect to this endorsement only, the definition of “Employee” in the DEFINITIONS (Section V) of CG0001 is replaced by the following:
I,/‘Employee” shall include, but is not limited to, any person or persons hired, loaned, leased, contracted, or volunteering for the purpose of providing services to or on behalf of any insured, whether or not paid for such services and whether or not an independent contractor.

This definition of “employee” replaces the definition of “employee” contained in Section V of the policy “with respect to this endorsement only” while “[a]ll other terms and conditions remain unchanged.”

Eads argues that Exclusion e of the endorsement creates an ambiguity because he was a temporary worker of Spriggs LLC and Exclusion e of Atlantic’s policy provided coverage to temporary workers. Exclusion e of the policy provides that the insurance does not apply to “bodily injury” to an “employee.” Section V — DEFINITIONS of the policy defines “employee” as:

5. “Employee” includes a “leased worker.” “Employee” does not include a “temporary worker.”

Therefore, Mr. Eads is correct that Exclusion e of Atlantic’s policy does not apply to a temporary worker, such as himself, because the definition of “employee” expressly removes him from the excluded group. He is not correct, however, that the definitions in Exclusion e of the policy and Exclusion e of the endorsement create an ambiguity.

Atlantic argues that because Mr. Eads was “hired” for the job in Sunset, the endorsement’s definition of “employee” unambiguously applies to him. It cites Spell v. Mallett, Inc., 06-1477 (La.App. 3 Cir. 5/2/07), 957 So.2d 262, in support of its position. In Spell, this court found that the same endorsement in another Atlantic policy excluded coverage for the plaintiff who was injured while working short-term for the insured.

Eads contends, however, that because Atlantic’s policy definitions of “temporary worker” and “leased worker” have been left untouched by the | ^endorsement, and the definition of “leased worker” still states: “Leased worker” does not include a “temporary worker,” an ambiguity is created by the endorsement’s definition of “employee.”

Exclusion e of the endorsement replaces the Employer’s Liability of Coverage A. Bodily Injury and Property Damage Liability. Therefore, the policy’s definition of “employee” is specifically replaced by the endorsement’s definition of “employee,” and “any person ... hired ... for the purpose of providing services to or on behalf of any insured” is an employee excluded from coverage. Though the terms “leased worker” and “temporary worker” appear in the definition of “employee” and are each defined by the policy, those terms have no impact on the endorsement because they do not appear in the endorsement.

The fact that Atlantic’s policy’s definition of “employee” expressly excludes “temporary worker” is of no importance because the endorsement’s definition of “employee” excludes “temporary, worker.” Louisiana Civil Code Article 2050 provides that “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” When the policy is read as a whole, i.e., the policy and the endorsement, Exclusion e of the endorsement excludes coverage for Mr. Eads because he is “any person ... hired ... for the purpose of providing services to or on behalf of any insured” and he seeks recovery for “bodily injury.”

Barousse v. Western World Insurance Co., 07-1264 (La.App. 3 Cir. 3/5/08), 978 So.2d 1129, presented a similar situation. The plaintiff argued that the policy was ambiguous because the application signed by the insured stated, “I agree to promptly report all full and part time drivers,” but neither the application nor the policy defined “promptly.” The endorsement at issue in Barousse provided:

113To add a driver to the list of drivers, you must notify your agent or insurance producer in writing of the name, date of birth, date of hire and driver’s license number of the additional driver before that driver operates a covered “auto.”

Id. at 1131. Relying on Article 2050, this court concluded:

Any ambiguity arguably created by the term ‘promptly’ in the application is resolved when the policy is construed as a whole. The Listed Drivers Coverage endorsement clearly and unambiguously provides what ‘promptly means and what [the insured] had to do to obtain $100,000 coverage for its drivers. Therefore, we need not determine whether the ‘promptly’ is ambiguous.

Id.

As in Barousse, any ambiguity arguably created by the policy’s definitions of “employee,” “temporary worker,” and “leased worker” is resolved when Atlantic’s policy is construed as a whole. Accordingly, we affirm the grant of summary judgment in favor of Atlantic and the denial of summary judgment in favor of Mr. Eads on his cross-motion for summary judgment, finding no issue of material fact regarding coverage for his injuries under the Atlantic policy.

MOTION FOR NEW TRIAL

Mr. Eads appeals the denial of the motion for new trial he filed regarding the trial court’s grant of summary judgment in favor of Atlantic. He argues that a temporary worker, like himself, is not included in the employee exclusion of the endorsement, “not because the endorsement says this, but because the original definition of ‘employee’ in the policy specifically excluded ‘temporary worker[ ]’ and the amended definition just failed to include a temporary worker.”

Louisiana Code of Civil Procedure Article 1972 lists the peremptory grounds for a motion for new trial, as relevant herein:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
114(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

Further, La.Code Civ.P. art. 1973 addresses the discretionary grounds for a motion for new trial, stating that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.”

The grounds for new trial potentially applicable here are set forth in La.Code Civ.P. art. 1972(1) and Article 1973. As explained above, Mr. Eads is excluded from coverage under Atlantic’s policy because he falls within the plain terms of the endorsement’s definition of “employee.” Accordingly, his motion for a new trial was properly denied.

CONCLUSION

The grant of summary judgment in favor of Atlantic and the denial of summary judgment in favor of Eads on general liability coverage are affirmed. The denial of Eads’s motion for new trial is also affirmed. Costs of this appeal are assessed to Eads.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

|,Exclusion “e” provides that the insurance does not apply to “bodily injury” to an “employee.” Policy section V — DEFINITIONS defines “employee” as:

5. “Employee” includes a “leased worker.” “Employee” does not include a “temporary worker.”

Hence, the original exclusion “e” does not apply to a temporary worker such as Eads, as the definition of “employee” expressly removes him from the excluded group. While definition 5 above still remains in the original policy, along with the definitions of “temporary worker” and “leased worker,” exclusion “e” was replaced via endorsement AGL-055 which contains its own definition of 12“ employee” that addresses almost every possible kind of employee but does not include, exclude, or address the “temporary” worker in any manner:

“Employee” shall include, but is not limited to, any person or persons hired, loaned, leased, contracted, or volunteering for the purpose of providing services to or on behalf of any insured, whether or not paid for such services and whether or not an independent contractor.

AGL-055 states that the new definition replaces the original “with respect to this endorsement only” and that “[a]ll other terms and conditions remain unchanged.” According to Atlantic, since Mr. Eads was “hired” for the job in Sunset, the new expansive definition of “employee” unambiguously applies to him. In support of its position, Atlantic cites and the majority relies upon Spell v. Mallett, Inc., 06-1477 (La.App. 3 Cir. 5/2/07), 957 So.2d 262, which found that the same endorsement in another Atlantic policy excluded coverage for the plaintiff who was injured while working short-term for the insured. When considering the policy as a whole, pursuant to Hebert v. Webre, 08-60 (La.5/21/08), 982 So.2d 770, I find Spell distinguishable from the present case.

lain Spell, the description of the insured’s business was carpentry and the construction of residential property, which included the barn being constructed at the time of injury. Mr. Spell was a carpenter engaged in his trade; he fell squarely under the new definition of “employee;” and there was no issue of his temporary status or the different treatment of “temporary” workers in the policy. Here, the policy definitions of “temporary worker” and “leased worker” have been left untouched by the endorsement, and the definition of “leased worker” still states: “Leased worker” does not include a “temporary worker.” These issues were not considered by the Spell court, and it is legally tenuous for the majority to place any reliance on Spell.

Further, the record in Spell indicated that the insured, Mallett, purchased Atlantic endorsements to cover the work of his contractors and their employees, not to provide an additional avenue of recovery for employees already covered by Mallet’s workers’ compensation policy. We do not have those facts in this record. In fact, Spell was receiving workers’ compensation benefits under Mallett’s other policy, and the workers’ compensation carrier intervened to recover its payments from the Atlantic CGL policy.

While I acknowledge that endorsement exclusion “e” appears to be identical in both cases, the issues were entirely different in Spell, and the endorsement cannot be viewed in a vacuum. The endorsement clearly targets “contractors,” more fully explained below. Before the endorsement in the present case, Spriggs’s policy did not even contain a definition for “contractor.” Whether that was true of the policy in Spell is unknown. The endorsement in Spell exists in conjunction with another endorsement relating to contractors and in a policy issued to a construction company that regularly hired building contractors. Spriggs’s LLC was a one-man rotor-rooter operation. Spriggs testified that except for Eads, he had only had two other helpers in his eight-year-old operation.

|4Here, the trial court admitted that there was doubt surrounding the endorsement and that the policy writer could have removed this doubt by simply including temporary workers in the new definition. Atlantic even acknowledged a “lack of linguistic clarity” but distinguished it from “ambiguity.” The trial court acknowledged that temporary worker was “still sitting out there” and that interpreting the new exclusion was a “close call” and a “hard decision.” Doubts, close calls, hard decisions, and lack of linguistic clarity all point to ambiguity that should be interpreted against Atlantic, the insurer.

In this case, exclusion AGL-055 constitutes only one page in a ten-page endorsement. In the world of insurance contracts, the policy must be construed as a whole and one portion cannot be construed separately at the expense of disregarding another. See Hebert v. Webre, 982 So.2d 770.

More specifically, Atlantic’s CGL form policy is a fourteen-page document. Its schedule of endorsements lists thirteen additional documents that are made part of the policy. Twelfth on the list is endorsement AGL-CO, which is itself a ten-page “Combination Endorsement” entitled, “Exclusions/Limitations — Combination Endorsement — Contractors.” On page four (4) of Combination Endorsement AGL-CO is the single-page endorsement with the new exclusion “e”, AGL-055, entitled, as discussed, “Exclusion of Injury to Employees, Contractors and Employees of Contractors.” AGL-055 provides, as before, that the insurance does not apply to “bodily injury” to an “employee,” but the new exclusion and the new definition of “employee” expressly address contractors to such an extent that it is clear that “contractors” are the target of the endorsement.

The original exclusion “e” did not mention contractors or any other description of worker. In fact, it specifically stated that the exclusion did not apply to liability assumed by the insured under an “insured contract.” The original policy did not contain a definition for contractors in Section V — DEFINITIONS. | .Exclusion “e” in AGL-055, on the other hand, adds three provisions addressing contractors above the new definition of “employee,” which includes contractors. Below the new definition, it devotes an entire paragraph to defining “contractor;” and it expressly names general contractors, independent contractors, subcontractors, including those who work for developers, property owners, or other contractors. Including its use in the title, “contractor” is referenced approximately eighteen times while “employee” appears only six times.

Accordingly, the endorsement is very comprehensive and all-inclusive; it is clearly meant to bring contractors of all descriptions into the realm of people whose bodily injuries are excluded from coverage. The extent of the detail signals a complete turnaround in the policy’s treatment of contractors. Likewise, the new definition of “employee” expressly includes leased, loaned, hired, contracted, and volunteering persons in the realm of the newly-excluded. Yet nowhere does the new exclusion mention “temporary” workers, and at its end it states that “[a]ll other terms and conditions remain unchanged.” One is left to ponder the rationale for this omission. It is quite possible that temporary people were omitted from the endorsement because in some jurisdictions they are not covered by workers’ compensation laws. Such a reason applies specifically to Mr. Eads in this case. Given the all-inclusiveness and the extent of detail in the endorsement, its omission of “temporary” workers is glaring. This is particularly true when the unchanged provisions are examined.

The policy’s Section V contains twenty-two (22) definitions. In addition to number 5, “employee,” it contains three other pertinent definitions, numbers 10, 19, and 20. Considered together, they state:

5. “Employee” includes a “leased worker.” “Employee” does not include a “temporary worker.”
|fi10. “Leased worker” means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. “Leased worker” does not include a “temporary worker.”
19. “Temporary worker” means a person who is furnished to you to substitute for a permanent “employee” on leave or to meet seasonal or short-term workload conditions.
20. “Volunteer worker” means a person who is not your “employee,” and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed for you.

While it is true that the old definition of “employee” expressly excludes “temporary worker,” and the new definition of “employee” in AGL-055 does not, it is also true that AGL-055 does not include “temporary worker,” or address the term in any way. In fact, the entire ten-page Combination Endorsement AGL-CO, of which AGL-055 is a part, does not address “temporary worker” on any of its ten pages. AGL-CO does, however, on page 10, address and delete Definition 20, “Volunteer worker,” from Section V — DEFINITIONS. More specifically, on page 10 of Combination Endorsement AGL-CO is exclusion CG 2166A, entitled “Exclusion— Volunteer Workers.” Thus, of the four above definitions in Section V of the original policy, one was replaced (No. 5. “Employee”) and one was deleted (No. 20. “Volunteer worker”) in the Combination Endorsement that is the subject of this litigation.

Original definitions 10 (“Leased worker”) and 19 (“Temporary worker”) were left untouched by the endorsements. Endorsement AGL-055 did not change the definition of “leased worker” but specifically included “leased” persons in its new definition of “employee.” The unchanged definition of “leased worker” still specifically excludes “temporary worker” the way the original definition of “employee” did. Now that leased worker is an employee, for |7purposes of AGL-055, and leased worker still excludes temporary worker, the result is the same, and it could be seen as redundant for the new definition of “employee” to also state that it excludes “temporary worker.” Temporary worker has been excluded by the exclusion to coverage by reference, as it was never intended to be included in the employee exclusion to coverage. If it had been, AGL-055 would have expressly included it. This reasoning is consistent with the fact that the new definition of the excluded “employee” includes every kind of worker except a “temporary worker.” Again, endorsement AGL-055 indicates at the bottom, that except for the changes expressed, all other terms and conditions remain unchanged.

Moreover, exclusion/endorsement CG 2166A also deletes “volunteer workers” from Section II — Who Is An Insured, while leaving “employees” as insureds, for their acts against others under limited circumstances. Because CG 2166A is a separate endorsement from AGL-055, though both are part of Combination Endorsement AGL-CO, the original definition of “employee” stands as to CG 2166A, since the new definition applies only to exclusion/endorsement AGL-055. The new definition of “employees” could not apply to CG 2166A because the new definition includes “volunteering” persons, which would conflict with CG 2166A’s deletion of “volunteer workers” while it continued to maintain “employees” as insureds. This is additional evidence that the endorsements are consistent in including and excluding terminology and that AGL-055 would have said “temporary worker” if it meant “temporary worker.”

Is it also reasonable to suggest that “temporary worker” was tacitly implied in AGL-055’s reference to a “hired” person? After all, Mr. Eads was “hired,” and he was “providing services to” the insured, D/Von’s Jetter Rooter Service. I conclude that the pertinent provision can be reasonably construed in two ^different ways, thereby rendering it ambiguous under McCarthy v. Berman, 95-1456 (La.2/28/96), 668 So.2d 721.

Accordingly, in considering the policy and the ten-page Combination Endorsement as a whole, I find ambiguity in the coverage extended to “temporary workers” such as Mr. Eads. Thus, I interpret the policy against the writer, Atlantic, and I conclude that Mr. Eads is not excluded from general liability coverage under the Atlantic policy. Accordingly, I would reverse the granting of summary judgment in favor of Atlantic and render judgment in favor of Mr. Eads on his cross-motion for summary judgment, finding no issue of material fact regarding coverage for his injuries under the Atlantic policy.

For the foregoing reasons, I dissent.

      . Louisiana Revised Statutes 23:1032.1 provides in pertinent part:
      A. When a direct employer, not the statutory employer or special employer, knowingly fails to secure workers' compensation insurance or proper certification of self-insured status pursuant to R.S. 23:1168, and fails to pay a final judgment for sixty days after the parties have exhausted their rights of appeal and no other insurance or self-insurance policy or contract of workers' compensation coverage has paid the benefits due under this Chapter, then the employee or the legal dependent of a deceased employee may elect to sue the direct employer for all legal damages. Should the direct employer offer to pay the judgment for workers’ compensation benefits and the employee or the legal dependent of a deceased employee accepts the offer of payment, such payment shall also discharge and satisfy the direct employer’s obligation for legal damages under this Section, if the direct employer also reimburses the employee or the legal dependent of a deceased employee for all costs and expenses, including attorney fees, incurred by the employee or the legal dependent of a deceased employee in connection with the claim for legal damages to the date of the payment of the workers' compensation judgment. Should the employee or the legal dependent of a deceased employee obtain a judgment on the cause of action for legal damages, the employee or the legal dependent of a deceased employee may elect to recover from the direct employer the greater of the judgment for legal damages or the judgment for workers' compensation benefits, but the employee or the legal dependent of a deceased employee shall be limited to recovery of only one such judgment, and the payment of the judgment elected shall discharge both judgments.

      . EXCLUSION OF INJURY TO EMPLOYEES, CONTRACTORS AND EMPLOYEES OF CONTRACTORS
      Exclusion e. Employer’s Liability of Coverage A. Bodily Injury and Property Damage Liability (Section I-Coverages) is replaced by the following:
      This insurance does not apply to:
      (i) “bodily injury” to any "employee” of any insured arising out of or in the course of:
      (a) Employment by any insured; or
      (b) Performing duties related to the conduct of any insured's business:
      (ii) "bodily injury” to any "contractor” for which any insured may become liable in any capacity; or
      (iii) "bodily injury” sustained by the spouse, child, parent, brother or sister of any "employee” of any insured, or of a "contractor,” as a consequence of any injury to any person as set forth in paragraphs (i) and (ii) of this endorsement.
      This exclusion applies to all claims and "suits” by any person or organization for damages because of "bodily injury” to which this exclusion applies including damages for care and loss of services.
      This exclusion applies to any obligation of any insured to indemnify or contribute with another because of damages arising out of "bodily injury” to which this exclusion applies, including any obligation assumed by an insured under any contract.
      With respect to this endorsement only, the definition of "Employee” in the DEFINITIONS (Section V) of CG0001 is replaced by the following:
      "Employee” shall include, but is not limited to, any person or persons hired, loaned, leased, contracted, or volunteering for the purpose of providing services to or on behalf of any insured, whether or not paid for such services and whether or not an independent contractor.
      As used in this endorsement, "contractor" shall include but is not limited to any independent contractor or subcontractor of any insured, any general contractor, any developer, any property owner, any independent contractor or subcontractor of any general contractor, any independent contractor or subcontractor of any developer, any independent contractor or subcontractor of any property owner, and any and all persons working for and or providing services and or materials of any kind for these persons or entities mentioned herein.
      All other terms and conditions remain unchanged.
      AGL-0558/05