author: COOKS, Judge.

text:
    Katie TIDWELL v. PREMIER STAFFING, INC.
    No. 13-185.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 30, 2013.

      Michael W. Whitehead, Livingston, LA, for Defendant/Appellant.
    Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellant.
    Court composed of Judges SYLVIA R. COOKS, MARC T. AMY and PHYLLIS M. KEATY.
   COOKS, Judge.

_jjFACTS AND PROCEDURAL HISTORY

In Tidwell v. Premier Staffing, Inc. 05-500 (La.App. 3 Cir. 2/1/06), 921 So.2d 1194, this court affirmed the Workers’ Compensation Judge’s (WCJ) finding that Katie Tidwell (Tidwell) suffered a compensable on-the-job injury while employed by Pré-mier Staffing, Inc. (Premier). No writs were taken on the matter and it has long been a final judgment. Despite the finality of that judgment, Premier in its brief to this court in the present matter refers to “an alleged accident” and a “disputed claim” for “injuries allegedly” sustained by Tidwell. This misstatement of the case is indicative of Premier’s behavior since judgment was rendered. After this court’s ruling, affirming the WCJ’s award of benefits to Tidwell, Premier made no payment on the judgment, requiring Tidwell to file a Motion for Penalties and Attorney Fees for the failure to pay the workers’ compensation judgment. The WCJ awarded penalties and attorney fees to Tidwell assessing a penalty of 24% on all amounts due Tidwell under the original judgment.

Tidwell filed a second Motion for Penalties and Attorney Fees. The WCJ ordered Premier to pay $40,000.00 in penalties. Subsequently, Tidwell filed a third Motion and Order for Penalties and Attorney Fees because Premier stopped making benefit payments to Tidwell for a period of four weeks and allegedly failed to properly pay ten separate mileage reimbursement requests related to her ongoing medical treatment. The WCJ ordered Premier to pay penalties under the provisions of La. R.S. 23:1201(F) in the capped amount of $8,000.00 for multiple infractions. The WCJ believed it was limited to a maximum penalty of $8,000.00. The WCJ |2also awarded a $3,000.00 penalty under La.R.S. 23:1201(F), for Premier’s discontinuance of court ordered weekly benefits.

Tidwell appeals asserting (1) the WCJ erred as a matter of law in failing to apply the uncalled witness rule raising an adverse presumption against Premier; (2) the WCJ erred as a matter of law in failing to apply the provisions of La.R.S. 23:1201(1) regarding Premier’s discontinuance of weekly compensation benefits; and (3) the WCJ erred in awarding too low a sum as penalties for Premier’s failure to pay Tidwell’s mileage requests on ten separate occasions. Tidwell seeks attorney fees for this appeal.

Premier also appeals asserting three assignments of error maintaining (1) some of Tidwell’s claims regarding Premier’s failure to pay mileage benefits are prescribed; (2) Tidwell’s testimony without supporting evidence is insufficient to prove Premier is obligated to pay the requested travel expenses as medically necessary; and (3) the WCJ acted improperly in applying La.R.S. 23:1201(F) in effect at the time of its alleged conduct rather than applying the statute in effect at the time of Tidwell’s accident.

LAW AND ANALYSIS

Because a finding of prescription would pretermit consideration of other issues presented by both parties we will address this issue first. Premier asserts several of Tidwell’s alleged claims for mileage reimbursement for medical treatment were filed more than a year “following the conduct giving rise to claimant’s cause of actions for penalties and attorney fees.” In support of its argument that La. Civ. Code art. 3492 applies, which provides for a one year prescriptive period for delictual actions, Premier relies on the holdings in Craig v. Bantek West, Inc. 885 So.2d 1234 (La.App. 1 Cir. 9/17/04), writ denied, 04-2995 (La.3/18/05), 896 So.2d 1004, and St. Tammany Parish Hospital v. Trinity Marine Products, Inc., 10-1481 (La.App. 1 Cir. 2/16/12), 91 So.3d 985. We first rejected the rationale of Craig in our decision in Rave v. Wampold Companies, 06-978 (La.App. 3 Cir. 12/6/06), 944 So.2d 847, and we reiterated the correctness of that decision in Trahan v. City of Crowley, 07-266, pp. 3-4 (La.App. 3 Cir. 10/3/07), 967 So.2d 557, 560, writs denied, 07-2462, 07-2471 (La.2/15/08), 976 So.2d 185, 187, wherein we stated:

In granting the City’s exception of prescription, the WCJ relied on the first circuit decision of Craig v. Bantek West, Inc., 03-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 04-2995 (La.3/18/05), 896 So.2d 1004, which held that the one-year prescriptive period set forth in La.Civ.Code art. 3492 applied to a penalties and attorney fees claim under the provisions of the workers’ compensation act. However, when subsequently presented with the same issue, this court in Rave v. Wampold Companies, 06-978 (La.App. 3 Cir. 12/6/06), 944 So.2d 847, reached a different result. This court held in Rave that “[i]t is clear from a reading of the jurisprudence that when claims for penalties and attorney fees accompany the claims for benefits, if the underlying claims have not prescribed, neither have the claims for attorney fees and penalties.” Id. at 855.

We again reject the argument put forth by Premier in this appeal that Tidwell’s claims for attorney fees and penalties are prescribed. They have not. See also Touro Infirmary v. Wm. B. Reily & Co., Inc., 10-74 (La.App. 4 Cir. 7/28/10), 44 So.3d 867, in which the fourth circuit cites our decision in Rave agreeing with the rationale stated therein.

We continue our analysis with Tidwell’s first assignment of error. We agree with Tidwell’s assertion that the WCJ legally erred in failing to apply the uncalled witness rule. The rule has often been cited by the state supreme court and this court. In Horacek v. Watson, 11-1345, p. 5 (La.App. 3 Cir. 3/7/12), 86 So.3d 766, 769-70, we stated:

14With regard to the uncalled witness rule, the supreme court discussed its application in Driscoll v. Stucker, 04-589, pp. 18-19 (La.1/19/05), 893 So.2d 32, 47, stating: “An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebuttable and is tempered by the fact that a party need only put on enough evidence to prove the case.” Safety Ass’n of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App. 2 Cir. 6/20/01), 793 So.2d 218, writ denied, 2001-2557 (La.12/07/01), 803 So.2d 973. Explaining that adverse presumption, the Fourth Circuit recently noted “ ‘[w]hen a defendant in a civil case can by his own testimony throw light upon matters at issue, necessary to his defense and particularly within his own knowledge, and fails to go upon the witness stand, the presumption is raised and will be given effect, that the facts, as he would have them do not exist.’ ” Taylor v. Entergy Corp., 2001-0805 (La. App. 4 Cir. 4/17/02), 816 So.2d 933 (quoting Davis v. Myers, 427 So.2d 648, 649 (La.App. 5 Cir.1983)). This adverse presumption is referred to as the “uncalled witness” rule and applies “when ‘a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence’ and fails to call such witness.” Id. (quoting 19 FRANK L. MARAIST, LOUISIANA CIVIL LAW TREATISE: EVIDENCE AND PROOF, § 4.3 (1999)). Despite the advent of modern, liberal discovery rules, this rule remains vital, especially in cases, such as this one, in which a witness with peculiar knowledge of the material fact is not called to testify at trial.

Notably, we have also held that:

The determination "of whether an insurer or employer has acted arbitrarily or has reasonably controverted claims for the purpose of imposing penalties or attorney fees depends primarily upon facts known to the insurer or the employer at the time of its conduct. Harris [v. Langston Co., 94-1266 (La.App. 3 Cir. 4/5/95), 653 So.2d 789, writ denied, 95-1178 (La.6/23/95), 656 So.2d 1020.] To reasonably controvert a claim so as not to be liable for statutory penalties, the insurer must have factual or medical information of such a nature that it reasonably counters that provided by the workers’ compensation claimant. Balsamo v. Jones, 28[,]885 (La.App. 2 Cir. 12/11/96); 685 So.2d 1140.

George v. Guillory, 00-591, p. 14 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209-10, overruled on other grounds by Smith v. Quarles Drilling Co., 04-179 (La.10/29/04), 885 So.2d 562. After Tidwell demonstrated that her employer discontinued court ordered compensation payments for four weeks, and demonstrated that her employer received written notice of its failure to pay ten claims for medical reimbursement, it was incumbent on Premier to show that its |Bfailures were not arbitrary and capricious or that it had probable cause to discontinue payments or refuse requests for travel related to medical treatment. “Arbitrary and capricious conduct may be presumed when an employer fails to pay any compensation benefits within sixty days after written notice of such claim. An employer’s good faith defense will preclude such penalties and attorney’s fees.” Savoy v. McDermott, Inc., 520 So.2d 888, 890 (La.App. 3 Cir.1987). Premier failed to meet its burden and failed to call witnesses under its control and uniquely in a position to testify as to the reasons for its conduct. Premier called Tidwell as a witness and asked a few brief questions, the answers to which supported her claims. Premier did not introduce any documents or records and did not call any witness to respond to any of Tidwell’s allegations. The uncalled witness rule is applicable in this case and raised a presumption against Premier which it failed to rebut with any evidence. Tidwell therefore proved her claim that she is entitled to penalties and attorney fees as well as the benefits requested.

In Tidwell’s third assignment of error she argues the WCJ erred in finding that it was limited to a maximum penalty of $8,000.00 under the provisions of La. R.S. 23:1201(G). The trial court found that this was not a case of termination or discontinuance of benefits but constituted late payments under La.R.S. 23:1201(G) and thus recovery is limited to a $3,000.00 penalty. The trial court further assessed an attorney fee award of $4,500.00. Tid-well asserts that she proved without contradiction by Premier that her benefits were terminated contrary to a final judgment ordering they be paid “until the further orders of the court” and that her medical reimbursement claims were paid untimely in some instances and not paid at all in other instances in further derogation of the prior judgment. Indeed the record shows that Tidwell’s benefits were “restarted” by Premier but | ^nevertheless had been terminated for approximately four weeks. Tidwell has demonstrated she is entitled to penalties under the provisions of La.R.S. 23:1201(1) which provides a cap at $8,000.00 rather than $3,000.00 as provided under La.R.S. 23:1201(G). The provisions of La.R.S. 23:1201(1) are applicable here and provide in pertinent part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

As Tidwell asserts, Premier discontinued court ordered payments to Tidwell in violation of a prior, final judgment, affirmed by this court in Tidwell v. Premier Staffing, Inc., 05-500 (La.App. 3 Cir. 2/1/06), 921 So.2d 1194. Clearly, La.R.S. 23:1201(1) applies “at any time” Premier discontinued the court ordered payments for “compensation benefits” and “all reasonable and necessary medical treatment.” The phrase “any time” recited in La.R.S. 23” 1201(1) certainly includes after judgment was rendered and affirmed by this court.

Premier asserts that Tidwell failed to show the requested reimbursements for medical expenses were related to her com-pensable injury. The WCJ found they were related and compensable. As we stated in the earlier Tidwell decision “the factual findings of a worker’s compensation judge are subject to the manifest error standard of review.” Tidwell, 921 So.2d at 1196, citing Jeanise v. Cannon, 04-1049 (La.App. 3 Cir. 2/23/05), 895 So.2d 651, writs denied, 05-785, 05-788 (La.5/13/05), 902 So.2d 1021. In the previous Tidwell decision we found a review of the entire record supported the reasonableness of the WCJ’s finding. In the present appeal, the WCJ had the entire record of the matter plus the new evidence introduced from which to reasonably conclude that the mileage reimbursements | presented for payment post-judgment were obviously related to the compensable injury. Tidwell’s evidence bespeaks on-going treatment from the same physicians and continued medications. There is no doubt the expenses were incurred and it was reasonable for the WCJ to conclude they are part of the on-going medical treatment which Premier has been ordered to keep paying under a final judgment. Premier offered nothing to rebut these claims and offered no evidence to justify its refusal to pay as ordered by the court under the prior final judgment.

For the reasons as stated we reverse the WCJ’s award of $3,000.00 in penalties and hereby award the sum of $8,000.00 in penalties as per the provisions of La.R.S. 23:1201(1). In all other respects we affirm the judgment of the WCJ. We further find that Tidwell is entitled to increased attorney fees for this appeal and hereby award Tidwell’s attorney the sum of $5,000.00 for attorney fees on appeal. All costs of this appeal are assessed against Premier.

AFFIRMED IN PART, REVERSED IN PART.

AMY, J., concurs in the result.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Adrien BAUDOIN, et al v. Thomas B. PUTNAM, et al.
    No. 13-181.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Steven Gerald Durio, Travis J. Brous-sard, Durio, McGoffin, Stagg & Aeker-mann, Lafayette, LA, for Plaintiffs/Appellants, Adrien Baudoin, Michael Meaux, Erich G. Loewer, Jr., Chad Vice, Bruce Webb.
    Tracy Peter Curtis, Lewis Brisbois Bis-gaard & Smith, L.L.P., Lafayette, LA, for Defendants/Appellees, George A. Putnam, Thomas B. Putnam, Emmet P. Putnam, III.

      Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

| ,The plaintiff/appellants, Adrien Bau-doin, Erich G. Loewer, Jr., Michael Meaux, Chad Vice, and Bruce Webb, appeal the judgment in their employment dispute dismissing their demands against Thomas B. Putnam, George A. Putnam, and Emmet P. Putnam, III. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

George Putnam and his brother, Em-met, founded Abbeville Lumber Company (ALC). One of ALC’s enterprises was the construction, sale, leasing, and refurbishment of offshore living quarters. This business proved so lucrative, in fact, that in 1997 ALC spun-off the offshore quarters business and created Abbeville Offshore Quarters, Inc. (AOQ). The brothers also brought George’s son, Thomas B. Putnam, in as a one-third shareholder of AOQ. At the time AOQ was started, Baudoin, Meaux, and Vice were employees of ALC and became employees of AOQ. Loewer was a CPA practicing in Abbeville. His practice became increasingly consumed with AOQ’s business, and before long, it made more sense for him to be hired as a full-time employee, so he became AOQ’s chief financial officer. Webb began working for AOQ in 2005, and his wife had worked there before him.

The elder Putnams were nearing retirement around 2000. Thomas knew he would not be able to buy the shares of his father and uncle, so AOQ hired a business valuation firm. In the latter half of 2005, the Putnams received an offer from Stallion Offshore. They engaged in negotiations over some period of time thereafter.

AOQ held an annual fishing rodeo Memorial Day weekend. At that gathering in 2006, some of the plaintiffs were asked about Stallion’s purchase of RAOQ. They confronted Thomas Putnam (hereafter Putnam) about this, and Putnam scheduled a meeting in Abbeville for Memorial Day, at which he told them that a sale to Stallion was in the works.

Loewer approached Putnam about bonuses for the “key employees,” such as himself, Baudoin, Meaux, Vice, Webb, and Marty Gutierrez. Loewer did this because, he testified, “I’ve done a number of acquisitions and dispositions in my career, and my experience has always been that people would pay bonuses when it was a good sale, if you will. Not a fire sale, of course.” He initially approached Putnam with a four-tiered bonus structure based upon an employee’s “grade” with an “A” meriting a $200,000 bonus and an “F” meriting a mere $50,000 bonus. According to Loewer, Putnam’s response was “non-committal.” Later, when approached' by Loewer, Putnam indicated that he and his uncle were considering a lesser figure of $150,000. Putnam repeated this figure to Webb.

Putnam, during the course of negotiating with Stallion, arranged for Stallion to offer plaintiffs two-year employment contracts. These contracts were made part of and a condition of the sale of the Putnams’ stock. Stallion, however, insisted that the employment contracts contain two-year non-compete agreements. Webb was reluctant to sign because of the non-compete clause. However, all plaintiffs eventually-signed the agreement. The sale of the Putnams’ stock to Stallion was perfected in 2006.

To celebrate the sale, Putnam held a party at his home. At the party, Putnam gave envelopes to the plaintiffs. Baudoin, Loewer, Meaux, and Vice each received two checks totaling $75,000; Webb’s two checks totaled $50,000. These checks | {¡represented half the amount that they thought they were to receive. No one questioned Putnam at the time, but later discussions revealed that Putnam intended to pay half at the time of the sale and half after an initial public offering (IPO) of Stallion’s stock, which represented at least forty percent of the payment to the Put-nams.

Unfortunately for all involved, Stallion declared bankruptcy. The Putnams’ stock thus became worthless, and no IPO was held.

In February 2008, Loewer was terminated by Stallion. He filed suit against Putnam and Stallion. Stallion settled with Loewer, who claimed that he was owed the remainder of the salary that would have been owed him under the two-year employment contract. A trial was held in Loewer’s suit against Putnam and resulted in a judgment in favor of Loewer for $25,000.

Thereafter, Loewer and the other plaintiffs filed suit against the Putnams collectively to recover the remaining half of the bonus they claim is owed them. Trial was held before the bench alone, and the trial court found in favor of the Putnams as to the claims of all plaintiffs. The trial court found that the promise of $150,000 was a gratuitous obligation conditioned on the Stallion IPO, and when the IPO fell through, the condition became impossible and extinguished the obligation. This appeal followed.

ASSIGNMENTS OF ERROR

Appellants assert that the trial court committed manifest error in finding that the bonuses were conditioned on the Stallion IPO and in finding that Thomas Putnam did not obligate Emmet and George Putnam through mandate.

I ¿ANALYSIS

“A contract is gratuitous when one party obligates himself towards another for the benefit of the latter, without obtaining any advantage in return.” La.Civ. Code art. 1910. Gratuitous contracts are enforceable. The existence of a contract is a question of fact. Cloud v. Warner, 157 La. 14, 101 So. 794 (La.1924). Determinations of questions of fact are reviewed under the manifest error standard, which requires that the court of appeal review the entire record to determine not whether the trial court was right or wrong, but whether the trial court’s factual determination is reasonably supported therein. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1998).

Appellants do not question the trial court’s determination that the bonuses represent a gratuitous contract. The Put-nams contend that the bonuses were gifts.

The trial court found that it was not clear that an amount was agreed to before the sale of the AOQ stock to Stallion, except in the case of Webb, who personally held discussions with Putnam and was assured that he would receive a bonus of $100,000. Putnam initially rejected the graded bonus proposed by Loewer. The trial court determined that the offer of a bonus was conditioned on the sale of the stock to Stallion and that payment of one-half of the amounts discussed by Putnam as a potential bonus served as an acknowl-edgement of that gratuitous obligation. The bonuses were intended as a way of the Putnams thanking plaintiffs for their years of service and were not an inducement or incentive for plaintiffs to execute the Stallion contracts of employment.

The testimony lends reasonable support to the trial court’s factual findings. Loewer testified that Putnam was thinking about a bonus of $150,000. No other witness besides Webb actually talked to Putnam about the bonuses. The others | ¿relied on Loewer, who seems to have made assumptions that did not materialize. Loewer initially approached Putnam about the bonuses because his experience with other acquisitions was that key employees were rewarded for their service by outgoing ownership.

No witness related the issue of bonuses to an incentive for executing the employment contracts with Stallion. Only Webb testified to any reluctance to sign the contract.

Our review of the record convinces us that the trial court did not err in its factual findings. There are three permissible views of the evidence. The first is that there was never a firm agreement by Putnam that AOQ would pay anything. Putnam’s only response to the request for bonuses was that he was considering $150,000 bonuses for all except Webb.

The second permissible view of the evidence is that of the plaintiffs. They accept Loewer’s position that Putnam did not equivocate and clearly offered the bonuses.

The third permissible view is that adopted by the trial court. Putnam agreed that he was considering the sums mentioned, but only paid half because those amounts were conditioned on the receipt of the Putnams of an amount they ultimately did not receive.

When there are permissible alternative interpretations of the evidence, the trial court’s adoption of one of those alternatives can never constitute manifest error. Stobart, 617 So.2d 880. The trial court did not manifestly err in finding that the offer of the bonuses was subject to the suspensive condition of the Stallion IPO.

The Louisiana Civil Code addresses conditional obligations. “A conditional obligation is one dependent on an uncertain event.” La.Civ.Code art. 1767. | (¡Further, “[i]f the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.” Id. The exception to the rule that an obligation subject to a suspensive condition may not be enforced until the uncertain event occurs is found in La.Civ.Code art. 1772, which provides, “A condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment.” Putnam was not shown to have played any part in the failure of the Stallion IPO. “If no time has been fixed for the occurrence of the event, the condition may be fulfilled within a reasonable time. Whether or not a time has been fixed, the condition is considered to have failed once it is certain that the event will not occur.” La.Civ.Code art. 1773.

The suspensive condition of the Stallion IPO is certain to not occur. The trial court correctly applied the law of conditional obligations to the facts of the case.

Because we affirm the trial court’s ruling in favor of the defendants on the plaintiffs’ first assignment of error, plaintiffs’ second assignment of error, that George Putnam and Emmet Putnam should have been found obligated as well as Thomas, has been rendered moot.

For the foregoing reasons, we affirm the judgment in favor of Thomas B. Putnam, George A. Putnam, and Emmet P. Putnam, III. All costs of this appeal are taxed to plaintiffs/appellants, Adrien Baudoin, Erich G. Loewer, Jr., Michael Meaux, Chad Vice, and Bruce Webb.

AFFIRMED.

      . We limit our discussions to Thomas Putnam because there is no testimony of any communications between George or Emmet Putnam and the plaintiffs. Emmet signed a check that was delivered to each plaintiff.


text:
    HARLEY-DAVIDSON CREDIT CORP. v. Morris DAVIS.
    No. 13-214.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Herschel C. Adcock, Jr., Joseph Paul Rummage, Jr., Maro Petkovich, Jr., Law Office of Herschel C. Adcock, Jr., Baton Rouge, LA for Plaintiff/Appellee, Harley-Davidson Credit Corp.
    Paul A. Lemke, III, Owens & Lemke, Inc., Harrisonburg, LA for Defendants/Appellants, Fred Taylor, Jeremy Taylor, Fred’s Automotive Repair & Wrecker Service, LLC.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

I,The defendants-appellants, Fred Taylor, Jeremy Taylor, and Fred’s Automotive Repair and Wrecker Service, LLC (Fred’s Automotive), appeal the judgment of the trial court finding Fred’s Automotive in contempt and ordering it to produce a Harley-Davidson motorcycle that was located at Fred’s Automotive. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2010, Morris Davis mortgaged a Harley-Davidson motorcycle in favor of Eaglemark Savings Bank to secure the payment of a promissory note for $19,165.10. The State of Alabama issued a title recognizing Davis as the owner and Eaglemark as the first lienholder. Eagle-mark thereafter assigned the note to the plaintiff, Harley-Davidson Credit Corporation (Harley-Davidson).

In January 2012, Harley-Davidson filed a petition for executory process against Davis due to Davis’s default on the note. The trial court issued a writ of seizure and sale. In June 2012, Harley-Davidson filed a motion to amend the order attached to the petition to correct a clerical error regarding the VIN number of the motorcycle. Testimony at the October 2012 hearing indicated that the Concordia Parish Sherriff s office had seized the motorcycle from Fred’s Automotive but returned it due to the clerical error. In the interim, between the return of the motorcycle to Fred’s Automotive and the issuance of the corrected order to produce collateral, Fred’s Automotive sold the motorcycle to a third party pursuant to La.R.S. 32:1719. Fred’s Automotive had received a permit to sell from the Department of Public Safety and Corrections in April 2012.

In September 2012, Harley-Davidson filed a rule to produce collateral and/or turn over excess sale proceeds, naming Fred’s Automotive as defendant. Harley-|Pavidson2 claimed it was never given notice pursuant to La.R.S. 32:1720, rendering the sale to the third-party an absolute nullity.

Fred’s Automotive failed to appear at the October 2012 hearing on the matter. The trial court issued a judgment finding Fred’s Automotive in contempt of court for failing to appear and ordered them to immediately deliver the motorcycle to the Concordia Parish Sheriffs Office. Fred’s Automotive filed a motion for new trial in November 2012. Fred’s Automotive also filed a motion for the trial court to assign written reasons for judgment on November 13, 2012. The trial court signed the order requiring that written reasons be filed into the record within thirty days of its November 7, 2012 judgment on November 15, 2012.

A hearing was held on November 26, 2012, on the motion for new trial. In a December 27, 2012 judgment providing written reasons, the trial court denied Fred’s Automotive’s request for a new trial and again ordered it to produce the motorcycle.

In March 2013, this court issued an order to the trial court to supplement the record with written reasons for judgment.

Fred’s Automotive now appeals.

ISSUES

First, Fred’s Automotive argues that we should remand the matter for a new trial as the record on appeal is incomplete due to the failure of the trial court to issue written reasons for judgment pursuant to La.Code Civ.P. art. 1917. Fred’s Automotive further assigns as error:

1. The trial court erred in finding the defendant and unnamed defendant Fred Taylor in contempt of court.
|s2. The trial court erred in finding that the plaintiff was entitled to judgment ordering the defendant to surrender his property.

WRITTEN REASONS FOR JUDGMENT

Louisiana Code of Civil Procedure Article 1917(A) states:

In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment.

Although the trial court signed an order indicating that it would provide written reasons, it never did so. The remedy for a trial court’s failure to produce written reasons is by writ or a motion for remand. See Wooley v. Lucksinger, 09-0571, 09-584, 09-585, 09-586 (La.4/1/11), 61 So.3d 507. In fact, we signed an order on March 28, 2013, ordering the trial court to supplement the record with its written reasons. However, the trial court judge was unable to comply with this order due to his suspension from office beginning March 15, 2013. See In re Boothe, 12-1821 (La.1/29/13), 110 So.3d 1002.

Clearly, remand at this juncture to provide written reasons is an impossibility; remand for a new trial is an inappropriate remedy. The supreme court has noted:

“[T]hat the district court’s oral or written reasons for judgment form no part of the judgment, and that appellate court’s review judgments, not reasons for judgment.” Bellard v. American Cent. Ins. Co., 2007-1335 p. 25 (La.4/18/08), 980 So.2d 654, 671; Greater New Orleans Expressway Commission v. Olivier, 2002-2795 p. 3 (La.11/18/03), 860 So.2d 22, 24 (“Appeals are taken from the judgment, not the written reasons for judgment.”); La. C.C.P. arts. 1918, 2082 and 2083. Judgments are often upheld on appeal for reasons different than those assigned by the district judges. “The written reasons for judgment are merely an explication of the trial court’s determinations. They do not alter, amend, or affect the final judgment being appealed.... ” State in the Interest of Mason, 356 So.2d 530, 532 (La.App. 1 Cir.1977).

Wooley, 61 So.3d at 572.

Moreover, the judgment itself and the written reasons provided in the denial of the motion for new trial provide a sufficient basis for this court to review the matter on appeal. Additionally, considering the fact that Fred’s Automotive failed to appear for the hearing, there is little in the way of factual findings that could have been noted in written reasons for judgment. This is an uncomplicated matter mainly involving questions of law rather than factual findings. We are unable to remand the matter, and we find it is unnecessary to do so.

NEW TRIAL

Although Fred’s Automotive does not expressly state so, it is essentially appealing the trial court’s denial of its motion for new trial. A new trial will be granted “[w]hen the verdict or judgment appears clearly contrary to the law and evidence.” La.Code Civ.P. art.1972. When reviewing the grant or denial of a motion for new trial, an appellate court cannot reverse the trial court’s decision unless an abuse of discretion can be demonstrated. Harbor v. Christus St. Frances Cabrini Hosp., 06-593 (La.App. 3 Cir. 11/2/06), 943 So.2d 545. Based on our discussion below, we find the trial court did not abuse its discretion in refusing to grant Fred’s Automotive a new trial.

VALIDITY OF THE LIEN

In this assignment of error, Fred’s Automotive argues that Harley-Davidson’s security interest was not properly perfected in Louisiana pursuant to La.R.S. 32:702.2. Whether this argument has any merit is irrelevant. Fred’s Automotive cannot now challenge, for the first time on appeal, the validity of the security instrument. Uniform Rules — Courts of Appeal, Rule 1-3.

JJJSE OF SUMMARY PROCEEDINGS

In this assignment of error, Fred’s Automotive argues that the trial court improperly used a summary proceeding to deprive them of their rights. Fred’s Automotive argues that a summary proceeding is inappropriate because the action Harley-Davidson filed against Fred’s Automotive was either for a declaratory judgment or mandatory injunctive relief. We disagree. Furthermore, objections to use of a summary proceeding are made by dilatory exception and are waived if not pleaded. La.Code Civ.P. art. 926; Howard v. La. Citizens Prop. Ins. Corp., 10-1302 (La. App. 4 Cir. 4/27/11), 65 So.3d 697.

Pursuant to La.Code Civ.P. art. 2592(1), summary proceedings are appropriate only in the listed matters including:

An incidental question arising in the course of judicial proceedings, including the award of and the determination of reasonableness of attorney fees.

Harley-Davidson’s initial suit was filed against Davis and is subject to the law pertaining to executory proceedings found in La.Code Civ.P. arts 2681-2644. Its rule to show cause filed against Fred’s Automotive is an incidental matter pertaining to the executory proceedings for the location and production of the collateral.

Fred’s Automotive’s remedy was to intervene in the pending executory process action pursuant to La. Code Civ.P. art. 1091: “A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more parties.” Louisiana Code of Civil Procedure Article 2648 addresses the rights of a third person claiming an interest in seized property:

|(A third person claiming a mortgage, security interest, or privilege on the property seized in an executory proceeding may assert his right to share in the distribution of the proceeds of the sale of the property by intervention, as provided in Article 1092. The intervention shall be served as provided in Article 1093 and shall be tried summarily.

Louisiana Code of Civil Procedure Article 1092 provides:

A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him injunctive relief to prevent such sale before an adjudication of his claim of ownership.
If the third person claims a mortgage or privilege on the entire property seized, whether superior or inferior to that of the seizing creditor, the intervention may be filed at any time prior to the distribution by the sheriff of the proceeds of the sale of the seized property, and the court shall order the sheriff to hold such proceeds subject to its further orders. When the intervener claims such a mortgage or privilege only on part of the property seized, and the intervention is filed prior to the judicial sale, the court may order the separate sale of the property on which the inter-vener claims a mortgage or privilege; or if a separate sale thereof is not feasible or necessary, or the intervener has no right thereto, the court may order the separate appraisement of the entire property seized and of the part thereof on which the intervener claims a mortgage or privilege.
An intervener claiming the proceeds of a judicial sale does not thereby admit judicially the validity, nor is he estopped from asserting the invalidity, of the claim of the seizing creditor.

Fred’s Automotive was fully aware of the executory proceedings. The Con-cordia Parish Sheriffs Office had already seized the motorcycle and returned it due to a clerical error. Fred’s Automotive should have intervened in the executory proceedings to assert its privilege for towing and storage. Finally, Harley-Davidson’s uncontested security interest in the motorcycle outranks any claim that Fred’s Automotive may have. See La.R.S. 32:1730, La.R.S. 9:4501 (a perfected security interest superior to repairmen’s lien).

IvCONTEMPT

In this assignment of error, Fred’s Automotive argues that Fred Taylor could not be held in contempt because he was not named individually nor served with any pleadings individually, and because Harley-Davidson’s rule did not seek a contempt finding against Fred’s Automotive or Fred. Fred argues that he was never served with any rule for contempt.

The November 2012 judgment found:

IT IS ORDERED, ADJUDGED, AND DECREED that defendant-in-rule, Fred’s Automotive Repair & Wrecker Service, LLC, through its authorized representative Jeremy Taylor or member, Fred Taylor, is in contempt of court for failure to appear as ordered on October 22, 2012[.]

Fred’s Automotive concedes that it was properly served through its agent for service of process, Jeremy Taylor. Pursuant to La.Code Civ.P. art. 225(A), a rule to show cause for contempt may issue on the court’s own motion. Further, a corporation may be found in contempt for the actions of its members or representatives. Pettus v. Atchafalaya Wildlife Protective Soc., 351 So.2d 790 (La.App. 1 Cir. 1977); La.Code Civ.P. art. 224. The trial court has vast discretion in determining whether a party should be held in contempt for disobeying a court order, and its decision will be reversed only when the appellate court discerns an abuse of that discretion. McDonald v. McDonald, 08-1165 (LaApp. 3 Cir. 3/4/09), 10 So.3d 780. Fred’s Automotive failed to appear and failed to produce the collateral. Fred himself was never found in contempt of court. We find no abuse of the trial court’s discretion in finding Fred’s Automotive in contempt of court.

INDISPOSITION

The trial court properly denied Fred’s Automotive Repair & Wrecker Service, LLC’s motion for new trial. The judgment of the trial court in favor of Harley-Davidson Credit Corporation is affirmed. All costs of this appeal are assessed against Fred’s Automotive Repair & Wrecker Service, LLC.

AFFIRMED.

      . We note that Fred’s Automotive's assignments of error do not correspond to its briefed arguments. Moreover, its briefed arguments raise several other issues not assigned as error.

      . He further argues under this subheading that he was never served with the rule to produce collateral and/or turn over excess sale proceeds.


text:
    Jo Ann LOPEZ v. ISLE OF CAPRI CASINO.
    No. 13-418.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      James D. “Buddy” Caldwell, Louisiana Attorney General, Angelique Duhon Freel, Emily G. Andrews, Assistant Attorneys General, Baton Rouge, LA, for State of Louisiana.
    Roger G. Burgess, Erin McCall Alley, Kilburn S. Landry, Baggett, McCall, Burgess, Watson & Gaughan, L.L.C., Lake Charles, LA, for Plaintiff/Appellee, Jo Ann Lopez.
    Joseph Richard Pousson, Jr., Plauche, Smith & Nieset, L.L.C., Lake Charles, LA, for Appellant, Scott James Pias.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

Iiln this workers’ compensation matter, attorney Scott J. Pias appeals the order of the workers’ compensation judge (WCJ) in which he was ordered to return $86,221.60 he withheld as attorney fees owed by his client, Jo Ann Lopez. For the reasons that follow, we affirm.

FACTS

Lopez was injured on December 6, 2004, while in the course and scope of her employment with St. Charles Gaming Company, Inc., d/b/a The Isle of Capri Casino (SCG) in Lake Charles, Louisiana. On April 9, 2012, Pias filed on Lopez’s behalf a Disputed Claim for Compensation because SCG refused to approve a lumbar caudal epidural steroid injection procedure.

On May 15, 2012, Lopez and SCG filed a joint petition for approval of a lump sum settlement. Under the terms of that settlement, the parties asserted that as of May 8, 2012, SCG had paid $106,781.39 in weekly indemnity benefits and $435,055.24 in medical expenses. The settlement provided for SCG to pay Lopez $95,000.00 plus $40,616.00 for Lopez to use to self-fund a Medicare set-aside account. Lastly, the settlement provided for annual payments to Lopez, if she lived, in the amount of $18,915.00 beginning on March 28, 2013, to further fund the Medicare set-aside. This amount was secured by an annuity purchased with a present value of $295,492.00.

The joint petition prayed that the WCJ approve Pias’s fee “at the full amount allowed for by La.R.S. 28:28:1U8.” The order signed by the WCJ on May 15, 2012, ordered “that attorney’s fees are approved in accordance with and to the full extent of La.R.S. 23:1HS.”

|2After the settlement was approved, Pias presented Lopez with a settlement statement that showed Pias recovering attorney fees of $86,221.60. This sum represented Pias’s calculation of his fee based upon the $135,616.00 Lopez had received plus the present value of the annuity purchased to fund the annual payments.

On July 27, 2012, Lopez filed a Motion for Return of Funds Held as Attorney Fees in which she alleged the foregoing and asserted that Pias had not filed an application for approval of his fees; accordingly, he was not entitled to any fee whatsoever. Pias interposed several exceptions, objecting to Lopez’s failure to properly serve him, the workers’ compensation court’s lack of subject matter jurisdiction to hear matters involving the law relative to Medicare or Medicaid, Lopez’s alleged unauthorized use of summary proceedings, and res judicata.

The matter was heard by the WCJ on September 4, 2012. Pias’s exceptions were all overruled. Afterward, Lopez moved to supplement the record with additional evidence. Additional evidence was submitted by Lopez and received by the court. The WCJ ruled on December 5, 2012, that Pias had not filed an application for approval of his fee and ordered the entire $86,221.60 returned to Lopez with legal interest.

Pias perfected this appeal and urged, for the first time, that La.R.S. 28:1141 and 23:1143 are unconstitutional. Specifically, he asserts the following assignments of error:

|SI. The Court committed legal error and violated Article 5, § 5(b) of the Louisiana Constitution, which provides that the Louisiana Supreme Court has exclusive original jurisdiction over disciplinary proceedings against a member of the bar.
II. The Court committed legal error in applying LSA-R.S. 23:1141 and LSA-R.S. 23:1143 in such a way that results in engaging in a disciplinary proceeding against a lawyer and infringing on the plenary power of the Supreme Court by ordering the return of his fee for finding (albeit erroneously), that LSA-R.S. 23:1141 and LSA-R.S. 23:1143 was [sic] violated.
III. The Court erred in ruling that it had subject matter jurisdiction to engage in what amounted to a disciplinary proceeding against an attorney, or otherwise determine whether an attorney is to receive a fee.
IV. The Court committed legal and/or manifest error to the extent it granted an order as prayed for in the petition for approval and then inconsistently ruled that there was no application and ordered counsel to return the entire fee.
V. The Court committed manifest error in finding that no fee application was made by Scott J. Pias pursuant to LSA-R.S. 23:1141 and LSA-R.S. 23:1143.
VI. The Court committed legal error in ruling that the Joint Petition for Approval of Compromise Settlement (TR p. 22) which, in Paragraph 11, requested that attorney’s fees “be approved at the full amount allowed for by LSA-R.S. 23:1143” did not satisfy LSA-R.S. 23:1141 and LSA-R.S. 23:1143 as an application for approval of fees.
VII.The Court erred when it found that Pias did not apply for a fee, but (1) refused or failed to rule on whether the Pretrial Memorandum or hearing itself constituted a timely application for fees in keeping with LSA-R.S. 23:1143’s provision that the application must be made within 30 days of payment of judgment, whichever is later.

ANALYSIS

Workers’ Compensation Attorney Fees

Louisiana Revised Statute 23:1141 reads:

A. Claims of attorneys for legal services arising under this Chapter shall not be enforceable unless reviewed and approved by a workers’ compensation judge. If so approved, such claims shall have a privilege upon the compensation payable or awarded, but shall be paid therefrom only in the manner fixed by the workers’ compensation |4judge. No privilege shall exist or be approved by a workers’ compensation judge on injury benefits as provided in R.S. 23:1221(4)(s).
B. The fees of an attorney who renders service for an employee coming under this Chapter shall not exceed twenty percent of the amount recovered.

The fee authorized by section 1141 is known as the contractual fee. This fee is not authorized by statute, but is limited by statute. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694. “Moreover, the contractual fee is not assessed against the employer or the employer’s insurer, but is contractually payable by the employee to the attorney out of the employee’s recovery of benefits that is attributable to the litigation handled by the attorney. Finally, the contractual fee, as a contingency fee, is payable in every case of successful litigation over unpaid benefits, irrespective of the employer’s or insurer’s failure to reasonably controvert the claim that benefits are due to the employee.” Id. at 698. The contractual fee is limited because an injured worker receives at most two-thirds of his average weekly wage in compensation indemnity benefits. Id. The low rate of compensation established by section 1141 is theoretically offset by the statutory attorney fees authorized by La.R.S. 23:1210(F), which “may be viewed as an incentive for lawyers to accept more workers’ compensation cases because of the possibility of greater attorney fees in some cases when the employer or insurer has refused to pay benefits.” Id.

An attorney is allowed to withhold as his “proposed” fee not more than twenty percent “of all amounts recovered” and must file an application for approval of fees within thirty days after the last payment of weekly benefits, settlement of the claim, or payment of the judgment, whichever occurs later. fiLa.R.S. 23:1143(B). The amount of the fee to which the attorney is entitled, though, is to the extent allowed by section 1143 within the discretion of the WCJ, who must consider the attorney’s skill, time, and effort. Miller v. Gaspard, 95-861 (La.App. 3 Cir. 12/6/95), 664 So.2d 810.

In McKinney v. Little, 95-177 (La.App. 3 Cir. 5/31/95), 660 So.2d 494, an attorney represented his injured worker client in both tort and workers’ compensation matters. The matters were settled simultaneously, with the attorney withholding one-third of the amount the client received in both actions. The WCJ approved the settlement, and the order she signed provided, “the claimant’s attorney be paid out of the lump sum settlement amount as provided in LSA-R.S. 23:1143(B).” Id. at 495. No other application for fee was filed.

The client complained that the attorney had withheld an excessive fee and, in fact, was entitled to no fee whatsoever as he had not filed a fee application in accordance with section 1143. The WCJ rejected the client’s argument that the attorney should recover no fee, but did reduce the fee to twenty percent of the amount recovered from the client’s employer.

The client appealed. We had no difficulty approving the concept that the attorney was not entitled to a one-third fee on all amounts he recovered on his client’s behalf. We found the issue of whether the attorney forfeited his fee by failing to file an application for fees, but concluded that he did. Section 1141 does not set the fee of the attorney. Also, a claim for a fee is not enforceable unless reviewed and approved by the WCJ, again under section 1141. Lastly, section 1143 requires the filing of an application for approval of fees within thirty days of the latest of certain events. For those reasons, we found that:

| fit is clear that they [ (sections 1141 and 1143) ] anticipate a hearing officer being supplied with an application filed by an attorney for approval of a fee and containing information as to the services rendered. Further, that based upon that information, it is the duty of the hearing officer to approve a fee which may be less than but which may not exceed the statutory limit. Clearly, the purpose of the law is to protect the employee from excessive legal charges.

Id. at 496. We further found that the mandatory language in section 1143(B) precludes the WCJ from waiving the application requirement.

In In Re Bailey, 97-2114 (La.12/12/97), 704 So.2d 235, the Office of Disciplinary Counsel pursued formal charges of unethical misconduct against an attorney who had represented a client in a settled workers’ compensation matter and who had claimed a fee on his client’s weekly indemnity payments, which the employer was paying before his representation had commenced. “Respondent admitted that, through his own inadvertence and oversight, he failed to notice that the settlement papers, which were prepared by Page’s [his client] employer, did not have the customary fee approval language incorporated.” Id. at 236. The customary fee-approval language is, of course, similar to that used in the present case and in McKinney. We do not read the supreme court’s language as disagreeing with our reasoning in McKinney. If the purpose of approving the fee is ensuring that an excessive fee is not taken from the injured employee, it is imperative that the WCJ know at least how much the fee sought totals.

Challenging a statute’s constitutionality

“It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized.” Arrington v. Galen-Med, Inc., 06-2923, p. 3 (La.2/2/07), 947 So.2d 719, 720. The purpose of this requirement is to allow full argument and presentation of 17evidence at the trial court level in order to create a full record for appellate review. Id. The supreme court has determined that its jurisdiction extends only over those issues that have been properly raised and ruled on at the trial court level. Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697 (La.1993).

Application to the facts

Pias argues that under Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859, his action is excepted from the requirement that he raise the issue for the first time on appeal because of our supervisory jurisdiction over lower courts. We disagree. Arrington and Church Point indicate that our jurisdiction only extends to those matter pleaded and decided at the trial court level. Full briefing and discussion of the issue, which were present in Vallo, is not present in this case.

The formal requisites for alleging the unconstitutionality of a statute, set forth in La.Code Civ.P. art. 1880, were not followed. Furthermore, the tribunal of the Workers’ Compensation Court is not vested with subject matter jurisdiction to decide the constitutionality of the statutes. Albe v. La. Workers’ Compensation Corp., 97-581 (La.10/21/97), 700 So.2d 824. We decline any consideration of the constitutionality of La.R.S. 23:1141 and 1143.

The McKinney case makes it clear that an application for approval of fees is a requisite for the attorney recovering his fees. We find that the statutes require such an application that sets forth the scope of the employee’s attorney’s work and the amount of the fee the attorney is to receive. This protects the employee from being charged an excessive fee. It is clear that Pias did not file an application, and that the language he included in the order presented to the WCJ was insufficient to advise the WCJ of the amount of fees he was to receive.

1 ^Accordingly, we affirm the WCJ. All costs of this appeal are taxed to appellant, Scott J. Pias.

AFFIRMED.

      . The settlement statement incorrectly calculated the fee. $95,000.00 + $40,607.00 + $295,492.00 does not equal $431,108.00 as the settlement statement asserts, but rather equals $431,099.00. Twenty percent of that equals $86,219.00. However, it appears that the settlement statement understated the amount of-the seed money that was to be used to fund the Medicare set-aside account, which was actually $40,616.00. This would result in a twenty-percent figure of $86,221.60, which is the amount Pias claims he is owed as a fee.


author: AMY, Judge. COOKS, J.,

text:
    Sherri ARCENEAUX, et al. v. Amanda ARCENEAUX, et al.
    No. 13-511.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Patrick J. Briney, Hallie P. Coreil, Bri-ney Foret Corry, Lafayette, LA, for Defendant/Appellee Dorel Juvenile Group, Inc.
    Richard J. Petre, Jr., Onebane Law Firm, Lafayette, LA for Defendant/Appel-lee QBE Specialty Insurance Company.
    John R. Shea, John Shea & Associates, Lafayette, LA, for Defendant/Appellee Amanda Arceneaux.
    John W. deGravelles, Scott H. Fruge, deGravelles, Palimintier, Holthaus & Fruge, LLP, Baton Rouge, LA for Plaintiffs/Appellants Sherri Arceneaux Paul Ar-ceneaux Devin Cox Gage Arceneaux.
    William L. Goode, Michael S. O’Brien, The Goode Law Firm, A.P.L.C., Lafayette, LA for Plaintiffs/Appellants Sherri Arcen-eaux Paul Arceneaux Devin Cox Gage Ar-ceneaux.

      Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

|,Two children suffered injuries as a result of a fire in their mother’s vehicle. Their grandparents, acting as tutor and undertutor, filed suit on their behalf against their mother, the friend whose home they were visiting, and various insurance companies, including the grandparents’ uninsured/underinsured motorist carrier. The grandparents’ insurer filed a motion for summary judgment, contending that there was no coverage under its policy for the incident at issue. The trial court granted the insurer’s motion and dismissed the plaintiffs’ claims against it. The plaintiffs appeal. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

According to the record, the plaintiffs, Sherri and Paul Arceneaux, are the grandparents of Devin Cox and Gage Ar-ceneaux. The plaintiffs allege that Gage and Devin’s mother, Amanda Arceneaux, took the children to dinner at Kirk Fonte-not’s house. According to the petition, when they were leaving, Amanda buckled the children into their car seats and went back into the house to retrieve her belongings. While Amanda was doing so, Devin, who was three years old at the time, began playing with some matches that he found in Mr. Fontenot’s house. The plaintiffs allege that Devin’s car seat caught on fire and that Devin suffered third-degree burns as a result. Devin was somehow able to get out of the car seat and out of the car. However, two-year-old Gage was still in his car seat. Amanda exited the house to find Devin on the sidewalk crying and smoke coming from her vehicle. She and Mr. Fontenot managed to extract Gage from the vehicle. | ¡¿However, Gage suffered burns to his face, head, hands, and arms. According to the record, an investigator with the Lafayette Fire Department later determined that the fire was caused by Devin’s playing with matches.

Sherri and Paul were appointed as the tutor and undertutor of Gage and Devin. They filed suit against Amanda, Mr. Fon-tenot, Mr. Fontenot’s homeowner’s insurance company, the manufacturer of the car seats, and QBE Specialty Insurance Company. QBE is Sherri and Paul’s uninsured/underinsured motorist insurance carrier. Sherri and Paul seek to recover under the QBE policy and assert that, because Devin and Gage were residents of their household at the time of the accident, they are “insureds” under the terms of QBE’s policy.

QBE filed a motion for summary judgment, contending that its policy requires that “[t]he owner or driver’s liability for these damages must result from the ownership, maintenance or use of the “uninsured motor vehicle”[,]” and that the damages in this case were not covered because they did not arise out of the “ownership, maintenance or use” of Amanda’s vehicle. Sherri and Paul argued that the damages arose out of the use of the vehicle, primarily because of the use of the car seats. The trial court granted QBE’s motion and dismissed Sherri and Paul’s claims against QBE.

Sherri and Paul appeal, asserting as error that: “[t]he trial court erred in granting Defendant’s Motion for Summary Judgment on the issue of whether or not this accident arose out of ‘the use of the vehicle.’ There are genuine issues of material fact which warranted a denial of said motion.”

[■¡Discussion

Motion for Summary Judgment

Summary judgment is favored in Louisiana and “is designed to secure the just, speedy, and inexpensive determination of every action[.]” La.Code Civ.P. art. 966(A)(2). If the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law, the motion for summary judgment shall be granted. La.Code Civ.P. art. 966(B)(2). For the purposes of summary judgment, a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. There is no genuine issue if reasonable persons could only reach one conclusion. Id. If so, there is no need for trial and summary judgment is appropriate. Id.

Further, the burden of proof in motions for summary judgment is discussed in La. Code Civ.P. art. 966(C)(2), which states:

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

A trial court’s judgment granting or denying a motion for summary judgment is reviewed de novo. Bernard v. Ellis, 11-2377 (La.7/2/12), 111 So.3d 995. In so doing, the appellate court should use the same standard as the trial court in determining whether summary judgment is appropriate — whether a genuine issue of material fact exists, and whether the mover is entitled to judgment as a matter of law.

The supreme court addressed the interpretation of uninsured/underinsured insurance policies in Bernard, 111 So.3d at 1002-03 (citations omitted), stating:

Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. When the language of an insurance policy is clear, courts lack the authority to change or alter its terms under the guise of interpretation. A court should only grant the motion for summary judgment when the facts are taken into account and it is clear that the provisions of the insurance policy do not afford coverage.
Uninsured motorist coverage embodies a strong public policy, which is to provide full recovery for innocent automobile accident victims who suffer damages caused by a tortfeasor who has no coverage or is not adequately covered by liability insurance. The underlying purpose of uninsured motorist coverage “is to promote and effectuate complete reparation, no more or no less.” To carry out the objective of providing reparation for persons injured through no fault of their own, the statute is liberally construed. Any exclusion in uninsured motorist coverage must be clear and unmistakable.

In Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La. 1982), the supreme court addressed “arising-out-of-use” provisions in insurance contracts. The supreme court held that, when determining whether a particular claim arises out of the use of an automobile for insurance purposes, the examining court must answer two questions: 1) whether the insured’s complained-of conduct was a legal cause of the injury; and 2) whether it was a use of the | sautomobile. Id. These questions are to be answered separately, and the examining court is to avoid traditional proximate cause concepts and use a duty-risk analysis to decide the legal cause question. Id.

In Carter, 428 So.2d 1080, Mr. Davis, who was later found to have been intoxicated, drove into a flooded underpass. Both Mr. Davis and his minor niece drowned. The niece’s parents filed suit against various entities, including the insurance carrier who issued both Mr. Davis’ liability insurance and the parents’ uninsured motorist insurance. The insurer argued that there was no coverage because the accident was not a result of the “ownership, maintenance or use” of Mr. Davis’ automobile. Id. at 1083. However, the supreme court found that Mr. Davis’ “combined acts of negligent vehicle operation were a cause in fact of the aecident[.]” Id. at 1084. Further, the supreme court found that “since the conduct of which the plaintiffs complain was Davis’ driving, it is obvious that this conduct also constituted a use of the automobile.” Id. at 1087.

The supreme court revisited the test enunciated in Carter in Kessler v. AMICA Mutual Insurance Company, 573 So.2d 476 (La.1991). In Kessler, the plaintiff narrowly avoided an automobile accident after an unidentified motorist ran a stop sign. Apparently in response to the plaintiff honking at the offending motorist, the other motorist fired a shot at the plaintiffs vehicle, striking the plaintiff in the head. Id. The plaintiff later filed suit against his uninsured motorist carrier, seeking compensation under the policy. Id.

Ultimately, the supreme court found that there was no coverage under the policy. Kessler, 573 So.2d 476. The court observed that the complained-of conduct consisted of two separate acts — the running of the stop sign and the firing of the gun. Id. With regard to running the stop sign, the supreme court found that, | fialthough it was a cause-in-fact of the plaintiffs injury, the “risk that an occupant of another car might suffer a gunshot wound is not within the scope of the duty to stop at a stop sign.” Id. at 478. Thus, because it was not the legal cause of the plaintiffs injury, the offending motorist’s actions in running the stop sign did not satisfy the first part of the Carter test. Id. Turning to the offending motorist’s conduct in firing the gun, the supreme court found that this was the legal cause of the plaintiffs injury. Id. However, the conduct was not a “use” of the automobile. Id. In reaching that conclusion, the supreme court stated:

The only interpretation of “use” which would result in a finding that the conduct in this case was use of the vehicle is a holding that “use” may be interpreted to mean “while using.” Such an interpretation would extend the meaning of the arising-out-of-use provision of the policy beyond the contemplation of the parties to the contract and would not comport with the common-sense interpretation mandated by Fertitta v. Palmer, 252 La. 336, 211 So.2d 282 (1968).

Id. at 479.

Here, the plaintiffs have asserted various claims against the defendants. As relevant to QBE’s motion for summary judgment, the plaintiffs’ allegations against Amanda, the owner and driver of the vehicle, constitute a negligent supervision claim. The test enumerated in Carter requires the court to determine whether this complained-of conduct was a legal cause of the injury. It is well-settled that parents have a duty to supervise a child to prevent injury to the child and others. Otwell v. State Farm Fire & Cas. Co., 40,142 (La. App. 2 Cir. 10/26/05), 914 So.2d 100; Mah-lum v. Baker, 25,876 (La.App. 2 Cir. 6/24/94), 639 So.2d 820.

However, it is unnecessary for this court to resolve the legal cause question. Even assuming that Amanda’s negligent supervision was the legal cause of the children’s injuries, we find that a genuine issue of material fact exists concerning whether the complained-of conduct was a “use” of the automobile. We observe 17that “[i]n order for conduct to constitute ‘use’ of an automobile, that conduct must be essential to the defendant’s liability and the specific duty breached by the insured must flow from use of the automobile.” Edwards v. Horstman, 96-1403, p. 7 (La.2/25/97), 687 So.2d 1007, 1012. The record indicates that the complained-of conduct was that Amanda strapped the children into their car seats and then left them unattended. The plaintiffs allege that, during that time period, a fire started. Further, the plaintiffs claim that the children’s car seats had insufficient flammability protection, which made them “a hazardous product for children capable of bursting into flames with as little as a match[.]” Given that the children were properly restrained in the vehicle and that their injuries allegedly arose, at least in part, because of that restraint, we conclude that there is a genuine issue of material fact regarding whether the injuries to the children flowed from the use of the vehicle.

As we find that a genuine issue of material fact remains, we find that the trial court erred in granting the defendant’s motion for. summary judgment. Accordingly, we reverse the trial court’s grant of the motion for summary judgment and remand for further proceedings consistent with this opinion.

DECREE

For the foregoing reasons, we reverse the trial court’s judgment granting the motion for summary judgment and dismissing the plaintiffs’ claims against the defendant, QBE Specialty Insurance Company. Further, we remand to the trial Iscourt for further proceedings consistent with this opinion. Costs of this appeal are assessed to the defendant, QBE Specialty Insurance Company.

REVERSED AND REMANDED.

COOKS, J., concurs with reasons.

COOKS, J.,

concurring.

The children were strapped in seats designed for use in a car and affixed to the interior structure of the vehicle in question. Their presence in the car in the manner so described and required by Louisiana’s Child Safety Law factually and legally sufficed to constitute use of the vehicle. Whether the mother’s alleged failure to properly supervise the children during their use of the vehicle or while in the house at all times relevant, constituted a contributing and comparative factor in causing the ultimate harm they sustained is a factual issue genuinely disputed here.

      . Mrs. Arceneaux's name is also spelled as "Sherrie” in the record. We use the spelling contained in the petition.

      . On several occasions in the record, QBE notes that it contests whether Devin and Gage are considered "insureds” under the policy. However, QBE asserts that its motion for summary judgment as limited to whether the damages arose out of the "ownership, maintenance or use” of Amanda's vehicle.

      . We note that La.Code Civ.P. art. 966 was amended by 2013 La. Acts 391, effective August l, 2013.

      . We note that, although using different standards than the standard articulated in Carter to determine whether these situations arose out of the "use” of a vehicle, in a situation where a caretaker leaves a child unattended in a hot vehicle, several courts have found that the injuries arose out of the use of the vehicle. See Lincoln Gen. Ins. Co. v. Aisha's Learning Ctr., 468 F.3d 857 (5th Cir.2006); Capitol Indemn. Corp. v. Braxton, 24 Fed. Appx. 434 (6th Cir.2001); Prince v. United Nat’l Ins. Co., 142 Cal.App.4th 233, 47 Cal. Rptr.3d 727 (2006); Puckett v. Nationwide Fire Ins. Co., No. 2004-CA-000164, 2005 WL 626777 (Ky.Ct.App.2005). But see Mount Vernon Fire Ins. Co. v. Heaven’s Little Hands Day Care, 343 Ill.App.3d 309, 277 Ill.Dec. 366, 795 N.E.2d 1034 (2003).


author: GREMILLION, Judge. SAUNDERS, J., THIBODEAUX, Chief Judge,

text:
    Timothy CORMIER v. McNEESE STATE UNIVERSITY.
    No. 13-12.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 2013.

      Adam L. Ortego, Jr., Assistant Attorney General, Lake Charles, LA, for Defendant/Appellant, McNeese State University.
    Gregory P. Marceaux, Marceaux Law Firm, L.L.C., Lake Charles, LA, for Plaintiff/Appellee, Timothy Cormier.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JOHN D. SAUNDERS, ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

|,The Board of Supervisors for the University of Louisiana System (the Board) appeals the judgment of the Workers’ Compensation Judge (WCJ) in favor of Timothy Cormier (Cormier), awarding him Temporary Total Disability (TTD) benefits, medical expenses, penalties, and attorney fees. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On Sunday, September 16, 2010, Cormier was injured while cleaning the tailgating area of McNeese State University’s football stadium parking lot. It is not disputed that Cormier was injured, nor is there dispute over the manner in which he was injured. At the time, Cormier had volunteered to work in the parking lot because he was incarcerated at the Calca-sieu Parish Correctional Center and participated in its trustee program. Cormier received no remuneration for the work he performed as a trustee.

Following his release from the Calcasieu Parish Correctional Center in November 2010, Cormier filed a Disputed Claim for Compensation with the Department of Labor, Office of Workers’ Compensation, in which he claimed that he was employed by McNeese at the time of his injury and was entitled to medical benefits, weekly indemnity, penalties, and attorney fees.

The Board filed an exception of no cause or right of action in which it maintained that Cormier was not employed by it and, thus, that he was not entitled to compensation. Supporting the Board’s exception was an Agreement for Utilizing Trustees between the university and the Calcasieu Parish Sheriff. This agreement established that the university was responsible for transporting trustees to and from the place of their assigned responsibilities, furnishing lunch for the 12trustees, and ensuring that the trustees remained on its premises and adhered to strict prohibitions against the possession of contraband items and from contact with visitors. It further provided that the trustees were not to be compensated.

The WCJ heard the Board’s exception on February 21, 2011. On April 6, 2011, the WCJ rendered oral reasons for judgment denying the Board’s exception. The WCJ reasoned that La.R.S. 28:1044 establishes a rebuttable presumption that “[a] person rendering service for another in any trades, businesses or occupations covered by this Chapter is ... an employee under this Chapter.” McNeese, the WCJ reasoned, had the right to engage and dismiss the trustees at will, had total custody of the trustees, and was responsible for all of the trustees’ medical expenses. “Viewing the situation in its entirety, in accordance with the guidance provided by the higher Court [Harrington v. Hebert, 00-1548 (La.App. 8 Cir. 5/23/01), 789 So.2d 649], it’s difficult to see how Mr. Cormier could properly be considered anything but an employee for purposes of workers’ compensation matters.”

The Board sought writs from this court, which were denied. Cormier v. McNeese State Univ., 11-75 (La.App. 3 Cir. 11/4/11) (unpublished). We found no error of law. Id. The Louisiana Supreme Court also denied writs. Cormier v. McNeese State Univ., 11-2649 (La.2/10/12), 80 So.3d 481.

The Board then filed a rule to show cause why Cormier had not forfeited benefits during his period of incarceration. The WCJ summarily denied that rule. Again, the Board sought writs from this court, which were granted in part and denied in part. We liberally construed the rule to show cause as a motion for summary judgment. The board was entitled to partial summary judgment on the issue of Cormier’s entitlement to benefits while incarcerated, but its application |swas otherwise denied as to his entitlement to benefits after his release. Cormier v. McNeese State Univ., 11-757 (La.App. 3 Cir. 11/4/11) (unpublished).

Cormier’s claim for compensation proceeded to trial. Following the presentation of evidence, the trial court found that our previous denial of writs constituted law of the case, precluding the relitigation of the issue of whether Cormier was an employee. It ruled in favor of Cormier, awarding him TTD benefits of $154.00 per week from November 1, 2010; $8,000.00 in penalties for failing to authorize physical therapy, a referral to a specialist, prescription benefits, and failing to pay weekly indemnity benefits; and $17,190.00 in attorney fees. The Board then perfected this appeal.

ASSIGNMENTS OF ERROR

The Board assigns the following as error below:

1. The Trial Court erred in finding that a parish prisoner, who volunteered and was selected to be a [trustee] by a sheriff and assigned to provide free labor to a public entity, is an employee of that public entity.
2. The Trial Court erred in designating a [trustee] assigned by a sheriff to perform free labor for a public entity as an employee of that public entity rather than ruling according to the express provisions of the contract between that public entity and the sheriff.
3. The Trial Court erred in awarding indemnity, medical benefits, penalties and attorney’s fees to a parish prisoner selected as a [trustee] by a sheriff and assigned to perform free labor for a public entity, where the [trustee] was injured while providing such free labor at the public entity, when it was not unreasonable to conclude that the prisoner was not an employee of that public entity.

Fundamentally, the Board’s arguments can be condensed to whether the WCJ manifestly erred in finding that Cormier was its employee.

1 ANALYSIS

Application of law of the case

Cormier relies on our ruling in Waller v. State of Louisiana, Department of Health and Hospitals, 11-643 (La.App. 3 Cir. 11/9/11), 79 So.3d 1085, writ denied, 11-2692 (La.2/10/12), 80 So.3d 488, for the proposition that our previous denials of writs constitute law of the case and preclude redetermination at trial or in this tribunal of the issue of his employment status. Cormier conveniently ignores the fact that in Waller, we recognized that the law of the case doctrine admits of exceptions. Two of those exceptions are found when the previous panel committed palpable error and when denying writs would result in manifest injustice. Law of the case is, after all, a doctrine intended to promote judicial efficiency. State v. Magee, 93-643 (La.App. 3 Cir. 10/5/94), 643 So.2d 497. Magee recognized a third exception: when additional evidence is received on the subject matter at issue.

The doctrine of law of the case is a discretionary doctrine. Clement v. Reeves, 07-1154, 07-1155 (LaApp. 3 Cir. 1/30/08), 975 So.2d 170, writ denied, 08-0482 (La.4/18/08), 978 So.2d 355. In Clement, 975 So.2d at 174, we quoted our colleagues on the second circuit:

Typically, following the “law of the case” doctrine, reargument of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur.

Rogers v. Horseshoe Entm’t, 32,800, pp. 5-6 (La.App. 2 Cir. 8/1/00), 766 So.2d 595, 600, writ denied, 00-2894 (La.12/8/00), 776 So.2d 463, and writ denied, 00-2905 (La.12/8/00), 776 So.2d 464. There is, however, no palpable error arising |sfrom our previous rulings. The context in which that ruling was made, however, impacts the applicability of the doctrine.

The Board raised the issue of Cormier’s employment status as an exception of no cause of action. “The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). When the WCJ denied the Board’s exception, finding that the Board failed to overcome the presumption that a worker is an employee, further inquiry into this issue was not foreclosed. The denial of an exception of no cause of action is an interlocutory judgment. Fontenot v. Miss Cathie’s Plantation, Inc., 93-926, 93-927 (La.App. 3 Cir. 3/2/94), 634 So.2d 1380. No relief was granted to either party; Cormier’s claim was simply allowed to proceed. Therefore, with regard to our denial of writs, finding no error of law in the WCJ’s ruling, we found just that — the denial of the Board’s exception was proper on the pleadings — and nothing more.

Similarly, the exception of no cause of action that was construed as a motion for summary judgment was interlocutory to the extent that we denied writs. The denial of writs did not determine the merits of the case; only the partial grant of writs represented any determination of Cormier’s rights, or lack thereof. The WCJ did not grant a motion for summary judgment in Cormier’s favor, as no such motion was filed. No court ever determined that Cor-mier was entitled to post-incarceration workers’ compensation benefits until the judgment that is now being appealed. The fact that during the hearing on the first exception the WCJ stated that he had difficulty seeing Cormier as anything other than an employee did not constitute a ruling that Cormier was an employee. Likewise, we simply ruled that |fiCormier was not entitled to benefits while he was incarcerated, and that there was a genuine issue of material fact regarding his entitlement to post-incarceration benefits. There is, therefore, no law of the case to apply.

Even were the doctrine in play, it should not be applied here, as there is good reason to rely on the exception to the rule; specifically, the WCJ took additional evidence on the issue of Cormier’s employment status. Six witnesses were called, and all testified about the circumstances of Cormier’s trusteeship. Those witnesses seriously undermined Cormier’s argument that he was employed by the university. Thus, the doctrine of law of the case does not apply.

Determination of employment status

A determination by the WCJ regarding employment status is reviewed under the manifest error/clearly wrong standard. See Dominio v. Folger Coffee Co., 09-1278 (La.App. 4 Cir. 2/10/10), 32 So.3d 955, writ denied, 10-570 (La.5/21/10), 36 So.3d 232. Only when an appellate court finds that a reversible error of law or manifest error of material fact was made by the trial court may the appellate court conduct a de novo review of the facts; indeed, when such an error is found, the appellate court “is required, whenever the state of the record on appeal so allows, to redetermine the facts de novo from the entire record and render a judgment on the merits.” Wooley v. Lucksinger, 09-571, p. 51 (La.4/1/11), 61 So.3d 507, 555. We are admonished that the determination of whether manifest error has occurred

is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880, 882-83 (La.1993). Here, the WCJ did not employ the analytical steps necessary to arrive at a conclusion that Cormier was employed by McNeese, which we shall discuss further. The language the WCJ used when the Board’s exception of no cause of action was denied, which we quoted above, was purely advisory and had no impact on the matter before the court, i.e., whether Cormier had stated a cause of action.

When determining whether the relationship between a principal and an individual represents that of employer/employee, a long line of cases holds that courts must find that the former possesses the right to control the latter. See, e.g., Brown v. Zurich Am. Ins. Co., 07-353 (La.App. 3 Cir. 10/3/07), 966 So.2d 1160, writ denied, 07-2139 (La.1/7/08), 973 So.2d 728. In Brown, this court employed, not for the first time, the four-part test first recognized by our colleagues on the first circuit in Alexander v. J.E. Hixson & Sons Funeral Home, 44 So.2d 487 (La.App. 1 Cir.1950): in determining the right to control, the four primary relevant factors are:

1) selection and engagement
2) payment of wages;
|s3) power of dismissal; and, 4) power of control.

No single factor is conclusive; “[rjather, the totality of the circumstances must be considered.” Harrington, 789 So.2d at 653.

The WCJ heard from three witnesses on the issue of Cormier’s alleged employment status. Cormier testified that when he was jailed, a deputy asked him if he wanted a job. Cormier leapt at the opportunity because working outside the confines of the main jail was preferable to staring at cell walls. Also, trustees were housed in a dormitory at a sheriffs department substation rather than individual cells at the main jail. On “regular detail,” Cormier and his fellow trustees working at McNeese were picked up at the substation by a university-owned vehicle that transported them to the school. The university also returned them after work hours. Cormier did not submit an application for employment to McNeese. In addition to work at McNeese, Cormier also worked at times as a trustee at the main jail.

Mr. Vincent Cormier is a grounds department employee at McNeese. He was responsible for overseeing the work of the trustees. His testimony essentially corroborated the appellee’s. However, he also elaborated on the arrangements that were in force on the day appellee was injured. This was a so-called “special detail” on a Sunday afternoon. Trustees on “special detail” were transported to the university by the sheriffs department. A sheriffs deputy would stay with the “special detail” workers to prevent elopement.

Lastly, the WCJ heard from Assistant Warden Charles Lavergne of the Calcasieu Parish Sheriffs Office. Lavergne oversees the trustee and other work-release programs. The sheriffs department supplies labor to businesses and non-profit entities through three programs. The Department of Public Safety and | ¡Corrections (DPSC) has a work-release program that draws labor from the sheriffs inmate population. Inmates working through the DPSC program are compensated for their labors. The sheriff has his own work-release program, and workers employed through that arrangement are also compensated. The trustee program is the lowest tier of labor outside of the jail because the trustees are not compensated.

Lavergne also testified that the sheriff determines which trustee works for a given agency. The agency bears responsibility for overseeing the activities of the trustees in its custody, but if the agency is not satisfied with a trustee, only the sheriff may remove the trustee. The sheriff also determines the hours a trustee will work for an agency.

Right of selection and engagement

The uncontradicted testimony of Lav-ergne established that McNeese did not have the right to select or engage Cormier. He was vetted by an application process within the Calcasieu Parish Sheriffs Office. He was assigned to the group of trustees that worked at McNeese by the sheriffs personnel. Nothing in the record suggests that McNeese could request certain trustees or that it did in Cormier’s case. The element of selection and engagement does not present itself, which mitigates against Cormier being an employee of the university.

Payment of wages

It is undisputed that Cormier was not paid by McNeese. Indeed, the controversy arose in the case solely because McNeese paid no wages to Cormier. The second factor is also absent.

Power of dismissal

Lavergne testified how an agency that receives trustee labor can have a trustee removed. Were the university dissatisfied with a trustee’s work, it would | mnotify the sheriffs office, which would remove the trustee from that job. The WCJ found that the university had an “absolute right to engage and discharge” the trustees. We find no reasonable support in the record for the proposition that McNeese had the right to discharge trustees, and certainly no support whatsoever for the proposition that it could engage them. And the right to engage and discharge is only one factor that must be considered.

Power of control

Vincent Cormier was the McNeese employee who oversaw the work of the trustees. With the exception of using riding lawnmowers, every activity of the trustees matched those of the compensated employees of the university alongside whom the trustees worked. Vincent Cormier told the trustees which tasks they were to perform. It is abundantly clear from the record that from the moment the trustees were picked up until they were returned to the sheriffs substation, they were in the custody and control of the school. The fourth factor clearly presents itself.

The presumption of employment status created by La.R.S. 28:1044 is rebut-table. Smith v. Prime, Inc., 09-269 (La. App. 3 Cir. 10/7/09), 20 So.3d 1184. “This presumption may be rebutted upon proof that there was no contract of employment, either expressed or implied, between the alleged employee and the alleged employer.” Gotto v. ARA Living Ctr., 570 So.2d 1172, 1174 (La.App. 5 Cir.), writ denied, 571 So.2d 634 (La.1990) (citations omitted). The presumption is not only available to an alleged employee seeking workers’ compensation benefits, but also to principals seeking to avoid tort liability by virtue of the exclusivity of the remedies afforded by the Louisiana Workers’ Compensation Act. Brown, 966 So.2d 1160. See also La. R.S. 23:1032. Accordingly, those cases provide guidance in determining employment status.

In Nguyen v. Underwriters at Lloyd’s, 05-1407 (La.App. 3 Cir. 5/3/06), 929 So.2d 821, writ denied, 06-1332 (La.9/22/06), 937 So.2d 387, the plaintiffs services had been retained on a “try out” basis at the defendant’s seafood processing facility and ice plant. He received no compensation during his probationary period. During his probationary period, plaintiff fell through a grate above an ice auger that amputated his right leg just below the knee. He sued the defendant and its insurer for damages. The insurer answered and argued that its policy excluded claims covered by workers’ compensation laws.

The trial court relied almost exclusively on the fact that the plaintiff was paid no wages when it granted summary judgment to plaintiff. We affirmed the judgment “absent evidence of an actual agreement of employment and/or compensation^]” Id. at 824.

In Dustin v. DHCI Home Health Services, Inc., 95-1989 (La.App. 1 Cir. 5/10/96), 673 So.2d 356, plaintiff was enrolled in a medical support education program operated by DHCI. Part of plaintiffs training involved actual work in the emergency room at Earl K. Long Medical Center in Baton Rouge. He assisted in restraining a violent HIV-positive patient. Plaintiff received direct contact -with the patient’s blood and was positively tested for HIV. He sued DHCI and the hospital. The hospital responded with an exception of lack of subject matter jurisdiction in which it argued that plaintiff was an employee and could only receive workers’ compensation. The district court rendered judgment in favor of the hospital.

The court of appeal noted, “[A]s a general rule, for such a relationship to exist, there must be a contract of employment, either express or implied, whereby 112services are furnished in anticipation of compensation.” Id. at 359. The workers’ compensation laws are rooted in a wage loss theory. Id. When a worker receives no wages, there is no basis for calculating workers’ compensation benefits. Id. Because the hospital did not select or engage the students and had no power to expel students from the program, the hospital was not the employer of the students. Id.

The totality of the evidence in the present matter demonstrates that there was no service furnished by Cormier in anticipation of compensation. He volunteered to furnish his labor in order to be allowed a few hours a day outside his jail cell. McNeese did not select Cormier. McNeese did not fix Cormier’s hours of work. In short, there was no selection and engagement, no payment of wages, and no power of dismissal. McNeese only had the right to tell Cormier what to do when he was on the school’s premises. Under these circumstances, the WCJ manifestly erred in finding that Cormier was employed by the university. The judgment of the Workers’ Compensation Judge in favor of Timothy Cormier is reversed. All costs of this appeal are taxed to plaintiff/appel-lee, Timothy Cormier.

REVERSED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

SAUNDERS, Judge, dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

|tTo me, the analysis of the issue in this case focuses too much on the law of the case and not enough on the law of the state. In my view, the issues of who is the employer of an inmate on work release and whether that injured work release inmate is entitled to workers’ compensation benefits have long been settled. See Reynolds v. Louisiana Plastic, 44,803 (La.App. 2 Cir. 10/28/09), 26 So.3d 149, writ denied, 09-2805 (La.3/5/10), 28 So.3d 1013; Rogers v. Louisiana Dep’t. of Corrections, 43,000 (La.App. 2 Cir. 4/30/08), 982 So.2d 252, writ denied, 08-1178 (La.9/19/08), 992 So.2d 931; Clinton v. Reigel By-Products, Inc., 42,497 (La.App.2d Cir.9/19/07), 965 So.2d 1006; Becnel v. Charlet, 446 So.2d 466 (La.App. 4th Cir.1984); Parker v. State, 353 So.2d 333 (La.App. 1st Cir.1977), writ denied 354 So.2d 1375 (La.1978); La. Atty. Gen. Op. Nos. 00-501, 94-456, 79-1502.

I am cognizant that the citations above contain no cases from this Court. However, the Rogers case was discussed by this court in Lee v. State, ex. rel. Department of Public Safety and Corrections, 10-1013 (La.App.3 Cir.3/30/11), 60 So.3d 106. In Lee, this court stated that it was, “convinced that the principles enunciated in Rogers with regard to work release inmates not being employees of the State are applicable to the matter before” them. Rogers appears to be in accord with the voluminous jurisprudence available on this issue.

|2I am mindful of La.Civ.Code art. 13 and its principle that when interpreting conflicting statutes, “the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” Here, while admittedly not a statute, we have case law from three of our four sister courts directly on point. Rather than finding that case law persuasive, the majority opinion does not address these cases and finds that Cormier is not an employee of McNeese based on analysis generally used to adjudicate whether one is an employee of another.

Given the above, I would find that Cor-mier was the employee of McNeese. Accordingly, I respectfully dissent.

THIBODEAUX, Chief Judge,

dissenting.

| TWhiIe the proper resolution of this case should focus on procedure as articulated in the following paragraphs, I agree with the substantive comments of Judge Saunders.

The majority correctly recites the procedural history of this litigation, particularly as it relates to the substance and posture of the pleading filed as an exception of no cause or right of action which this court treated as a motion for summary judgment.

We considered the document filed by McNeese as a motion for summary judgment, not an exception of no cause of action, because evidence was adduced. We specifically concluded:

We hereby liberally construe the rule to show cause filed by ... McNeese State University, as a Motion for Summary Judgment. Thus, upon considering the admission by Claimant, Timothy Cormier, that he is not entitled to workers’ compensation benefits during any period of his incarceration, we find that the Relator [McNeese] is entitled to a grant of partial summary judgment as to the forfeiture of any workers’ compensation benefits to which the Claimant might otherwise been entitled during any period of the Claimant’s incarceration. La.R.S. 23:1201.4. However, we find no error in the workers’ compensation judge’s denial of Relator’s [McNeese’s] Rule as to any benefits to which the Claimant may be entitled following Claimant’s release from incarceration. We remand this matter to the workers’ compensation court for further proceeding in light of this ruling.

Cormier v. McNeese St. Univ., CW11-757 (La.App. 3 Cir. 11/4/11) (Unpublished).

We remanded this case after ruling on the writ for the purpose of determining causation and extent of disability. The Office of Workers’ Compensation observed that the third circuit “pointedly and explicitly rejected the main, indeed the only substantive, argument of the evidence that no employee/employer relationship existed.” The OWC concluded that McNeese’s conduct in continuing to pursue this rejected defense was not only arbitrary and capricious, but also “contrary and hardheaded.”

The majority, nonetheless, erroneously proposes to reverse and hold that no employer/employee relationship existed. The plaintiff, it says, “conveniently” ignored certain exceptions regarding the “law of the case” doctrine. Those exceptions are: (1) palpable error; (2) denial would result in manifest injustice; and (3) when additional evidence is received on the subject matter at issue. It concludes there is no palpable error. If so, why are we even reconsidering employer/employee status?

The majority opines that no relief was granted to either party in our writ ruling and that we found a denial of the Board’s exception was proper on the pleadings— and no more. That is incorrect. The exception of no cause of action should not be discussed because our court specifically recognized this pleading as a motion for summary judgment.

The majority concludes that the context in which the previous third circuit ruling was made on the writ application impacts the applicability of the “law of the case” doctrine. The position that additional evidence was received during the trial of this matter is incorrect. The evidence at the trial, according to the workers’ compensation judge, “was in most respects identical to the evidence previously presented to this court, as well as the third | ¡¡circuit and the Louisiana Supreme Court.” The workers’ compensation judge was not manifestly wrong in this regard. Indeed, the substance of the evidence never changed. McNeese submitted additional testimony in the form of more witnesses. These witnesses, however, did not add anything other than that which was already considered. It was basically cumulative.

For all of the reasons cited above, I dissent and would affirm the judgment of the Office of Workers’ Compensation.