text:
    August F. PICQUET, Jr. v. TECO BULK TERMINAL.
    No. 08-CA-793.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Jeffrey C. Napolitano Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, North Metairie, LA, for Defendant/Appellant.
    Anthony P. Lewis, Law Offices of Anthony P. Lewis, Thibodaux, LA, for Plaintiff/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

| aDefendant/appellanUemployer, Teco Energy, Inc. (“Teco”), appeals an adverse judgment in this workers’ compensation matter.

On June 20, 2005, August F. Picquet, Jr. (“Mr. Picquet”), an employee of Teco for twenty-two years, fell ten feet from the cab of an L-50 tractor in the course and scope of his employment at the Teco Bulk Terminal. He landed face first in a pile of rocks and coal and was rendered unconscious. Mr. Picquet was taken to Methodist Hospital in New Orleans where he remained for three days. Upon his release from the hospital, Mr. Picquet applied for and was granted time off for family leave to recover from the accident.

Mr. Picquet returned to work in mid-July of 2005. On August 29, 2005, Hum-cane Katrina struck the area. Mr. Picquet lost his home and relocated to North Carolina. He returned to work in October of 2005 when Teco reopened. However, due to medical problems, Mr. Picquet was unable to continue working and did not return to Teco until after November 27, 2005.

On August 11, 2006, Mr. Picquet had cervical surgery. On August 28, 2006, Teco terminated Mr. Piquet’s employment because he was “medically unable to | «work.” Subsequently, Mr. Picquet filed a claim for workers’ compensation, which was opposed by Teco.

After the hearing, the trial court rendered judgment in favor of claimant, Mr. Picquet, awarding him temporary total disability benefits from August 29, 2005 and continuing. The trial court found that the accident was work-related and that the injuries were caused by the accident.

At the beginning of trial, the parties stipulated that the fall from the tractor on June 20, 2005 was a work-related accident. The parties also made the stipulations that the average weekly wage, at the time of the accident, was $1,141.93 per week. Additionally, exhibits, including the accident report prepared by Teco, the ambulance report, the depositions of Randy Williamson and Dr. Mohammed A. Khasru (“Dr. Khasru”), and the medical records of Dr. M.A. Hannan (“Dr. Hannan”) and Dr. Meda Colvin (“Dr. Colvin”) were introduced by agreement of the parties.

Mr. Picquet testified at the hearing. He stated that he started working for Teco twenty-two years ago as a laborer and worked his way up to a shift mechanic with the responsibility of maintaining and repairing the company’s equipment. On the day of the accident, he was in the process of making necessary repairs, while operating an L-50 tractor at the Teco Bulk Terminal. He recalls opening the door of the cab of the L-50 but not the fall.

Randy Williamson (“Mr. Williamson”), a fellow employee of Teco, testified that he heard Mr. Picquet fall from the L-50. When Mr. Williamson turned around, he saw Mr. Picquet lying unconscious face down in the rocks and coal. Mr. Williamson estimated the distance from the cab of the tractor to the ground was about ten feet. Mr. Williamson called his supervisor who filled out an accident report.

|4The accident report is in the record and indicates that ice was applied to both wrists, the neck and chest, and that Mr. Picquet’s feet were elevated and his jumpsuit removed. It further indicates that Mr. Picquet was taken by ambulance to Methodist Hospital.

Andra Slyve (“Ms. Slyve”), who responded to the emergency call, testified that, when she and her partner arrived, Mr. Picquet was lying face down and was unresponsive. They “log rolled” him over, put him on a spinal board and collared his neck, and placed Mr. Picquet in the ambulance. At this point, Ms. Slyve drove and her partner took over the care of the patient. Ms. Slyve’s partner, Ms. Bacas, testified that Mr. Picquet regained consciousness but did not complain of any pain or discomfort.

The emergency room report shows that Mr. Picquet was admitted to the hospital for observation and kept in a telemetry bed for possible syncope because of the fall, his loss of consciousness, and post-traumatic amnesia. He remained in the hospital for three days before being discharged with a diagnosis of high blood pressure.

Mr. Picquet testified that, after his release from the hospital, he consulted Dr. Rawls for knee pain and headaches. Mr. Picquet was in good health prior to the accident, with the exception of the hypertension discovered during his hospital stay after the accident. In mid-July 2005, Dr. Rawls released Mr. Picquet to return to work. Mr. Picquet stated that he continued to have knee pain and that he was taking Tylenol every day. After Hurricane Katrina, Mr. Picquet consulted Dr. Hannan in North Carolina about the continuing pain and a “tightening” in his stomach. Dr. Hannan referred him to Dr. Khasru, a neurologist.

|sDr. Khasru conducted several tests, including a spinal tap and MRIs of the lower, upper, and chest lumbar, and the cervical area. Dr. Khasru informed Mr. Picquet that there was damage to the spinal cord, and it was not likely that Mr. Picquet would be able to continue in his chosen line of work.

Ultimately, Mr. Picquet had cervical surgery at the University of North Carolina Hospital on August 11, 2006. The surgery provided some relief from the symptoms. However, Mr. Picquet still has problems with balance, walking, and with tightening in his knees and back.

Since returning to Louisiana, Mr. Pic-quet has been under the care of Dr. Col-vin, who opined that Mr. Picquet’s condition would not improve and that there would be residual effects from the injury. Specifically, Mr. Picquet stated that he still has trouble with his equilibrium and is unable to sit or stand for long periods of time.

Mr. Picquet’s wife, Regina Picquet (“Mrs. Picquet”), also testified. She stated that her husband complained to her about the pain after the accident. She also explained that Mr. Picquet does not normally complain and does not miss a day of work. Mrs. Picquet testified that, after the accident, her husband took over-the-counter pain medication and went to work in spite of the pain. When Teco reopened in October 2005 after Hurricane Katrina, Mrs. Picquet remained in North Carolina while Mr. Picquet returned to Louisiana to resume work.

The record contains the deposition of Dr. Khasru, Mr. Picquet’s treating physician in North Carolina. In that deposition, Dr. Khasru testified that Mr. Picquet was referred to him in March of 2006 by Dr. Hannan. Mr. Picquet complained of stiffening of the lower extremities and difficulty walking. Dr. Khasru explained that the tests he conducted showed that Mr. Pic-quet had damage to the spinal cord. Specifically, there was a finding of a ruptured disc in his neck at | fiC6-C7 that created a serious spinal cord impingement. The condition required immediate surgery. Dr. Khasru referred Mr. Picquet to a neurosurgeon.

Dr. Khasru could not be certain of the cause of the injury. He stated that it could either be degenerative or caused by trauma. He also stated that, even if the condition began as a normal degenerative process, it could have been aggravated or ruptured by a fall. Dr. Khasru could not give a definitive opinion on the cause of the injury to the spine without a CT or an MRI of the condition immediately after the fall. Ultimately, Dr. Khasru stated that the condition may or may not be related to the fall on June 20, 2005. However, Dr. Khasru did state that most such degenerative injuries occur spontaneously. Dr. Khasru’s reports indicate the pain began in October 2005.

Dr. Hannan’s medical records are contained in the record. They show that Mr. Picquet saw Dr. Hannan on November 15, 2005 for problems with tightness of the right leg and knee muscles. The notes also indicate that Mr. Picquet told Dr. Hannan he had a fall a few months earlier, but he was not injured. Dr. Hannan’s report indicates the pain began in November 2005.

Defendant/Teeo presented an evaluation from its expert, Dr. Douglas Swift (“Dr. Swift.”). Dr. Swift reviewed all of Mr. Picquet’s medical records and interviewed Mr. Picquet. Dr. Swift’s opinion was the same as that of Dr. Khasru. Neither doctor could definitively state with medical certainty that the fall caused the injury. Dr. Swift also stated that a spinal injury resulting from trauma would likely be symptomatic from the injury or shortly thereafter.

Unfortunately, Dr. Rawls’ records were destroyed in Hurricane Katrina and were not available to the trial court or to this Court.

On appeal, Teco assigns five errors for our review. In the first two assignments, Teco questions the trial court’s finding of facts by attacking the 17credibility of Mr. Picquet. In the third assignment, Teco asserts the trial court erred in finding a causal link between the accident and the medical condition. In the third assignment, which is related to the credibility issue, Teco argues the trial court erred in denying its motion to keep the record open for the deposition of Dr. Hannan. In the fourth assignment of error, Teco argues in the alternative that, if compensation is due, the trial court erred In finding that those benefits are due from August 29, 2005. In the final assignment, Teco argues that the trial court erred in awarding continuing temporary total disability benefits because Mr. Picquet is now otherwise employed.

The main thrust of Teco’s argument opposing the trial court’s finding of causation between the fall and the spinal cord injury is that the onset of the symptoms were too far removed in time from the accident and that there is no medical opinion to justify a finding of causation. Teco asserts that medical records show that the symptoms began in November 2005 and, therefore, could not have been caused by the fall that happened five months earlier. Further, Teco argues that Mr. Picquet’s testimony that he was in pain prior to November is not credible given the medical evidence.

As in other civil suits, the employee in a workers’ compensation proceeding initially has the burden of establishing his disability and its causal relation with the employment accident by a preponderance of the evidence. In order for the employee to recover, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found. A claimant’s disability is presumed to have resulted from an accident; however, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously | «manifest themselves afterwards, providing either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and the disabling condition,- or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.

In evaluating the evidence, the trier of fact should accept as true the uncon-tradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony.

The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.

Teco’s argument that Mr. Picquet’s testimony is not credible because the first documented complaints of leg tightness occurred in November of 2005 when Mr. Picquet went to Dr. Hannan in North Carolina. However, Mr. Picquet testified that he went to Dr. Hannan in October 2005 because of the pain. Dr. Hannan gave him some sample medication and a prescription for Tylenol 3. Mr. Picquet explained that Dr. Hannan did not charge a fee because Mr. Picquet was an evacuee from Hurricane Katrina.

The Teco argument fails to take into account that Dr. Rawls, who treated Mr. Picquet immediately after the fall, lost the medical records in Hurricane Katrina.

I9A careful reading of Mr. Picquet’s testimony shows that, while he gave both doctors in North Carolina an approximate date of October or November 2005 for the beginning of the symptoms, his meaning was that it was about that time the pain became severe enough to consult a physician. Mr. Picquet testified that he had pain since the accident, but he “thought it would go away.”

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’ uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.

We find no reason to disturb the findings of the trial court regarding causation in the matter before us. Mr. Picquet’s testimony, as well as that of his wife, shows that he was experiencing pain since the accident. His work record in the record before us supports his testimony that he was an exemplary worker for twenty-two years before the accident happened and that he was in good health. Although the medical evidence is not conclusive that the injury was caused by the fall, there is sufficient testimony to legally conclude that the fall caused the injury. There is medical evidence that the type of injury sustained by Mr. Picquet could have been caused by trauma. The doctors stated that the symptoms would likely occur at the time of the trauma or shortly thereafter. However, there is testimony that Mr. Picquet did experience symptoms immediately after the accident, although it is not medically documented. Causation is not necessarily and exclusively a | inmedical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.

Considering the seriousness of the fall and the circumstances and evidence, both expert and lay, reviewed by the Workers’ Compensation Court in this matter, we do not find an abuse of discretion in the finding that the accident was the cause of the injury. We find no merit in this argument.

Teco also argues the trial court erred in denying its request to hold the hearing open to allow Teco time to depose Dr. Hannan.

At the end of the trial, the court held the matter open for about one month for submission of post-trial briefs. Teco filed a motion to keep the trial open to allow it time to take the deposition of Dr. Hannan. In that motion, Teco accused Mr. Picquet of perjury and fraud in his statement that he saw Dr. Hannan once before November 2005. Mr. Picquet objected to that motion on the basis that Teco had ample time for discovery in the two years this matter was pending. The trial court denied the motion.

The decision to hold open or reopen a case for production of additional evidence rests within the discretion of the trial judge. Teco did not motion the court to hold the matter open for the purpose of obtaining additional evidence. Rather, it sought to show that Mr. Picquet lied about the date of his first visit to Dr. Hannan. Under these circumstances, we see no reason to disturb the trial court’s ruling on this motion.

Teco also argues that Mr. Picquet is not entitled to Temporary Total Disability (“TTD”) benefits because he is serving as the pastor of his church and is receiving $600 per month for the service. Thus, Teco concludes that Mr. Picquet is capable of some form of employment. In the alternative, Teco argues the trial In court erred in awarding benefits from the date of Hurricane Katrina. Teco points out the Mr. Picquet worked from the time of his medical release in July of 2005 until Hurricane Katrina and returned to work in October of 2005. Mr. Picquet testified that he received short term benefits from June 20, 2005 until July 18, 2005, when he returned to work. He was unable to return to work after November 27, 2005, and he received benefits from December 5, 2005 until May 21, 2006. He was terminated on August 28, 2006.

We find the trial court abused its discretion in awarding benefits dating from August 29, 2005, the date of Hurricane Katrina, absent a showing that Mr. Pic-quet was unable to work due to the disability. Accordingly, we reverse that part of the judgment and find that Mr. Picquet is entitled to benefits from November 28, 2005 and continuing.

In order to receive benefits for TTD, a claimant in a workers’ compensation case must prove by clear and convincing evidence that he is physically unable to engage in any employment or self-employment due to his injury. A claimant must introduce objective medical evidence to establish by clear and convincing evidence that he is unable to engage in any type of employment. Thus, the question is not whether the workers’ compensation claimant could perform the previous work but, rather, whether the claimant could perform some sort of work.

We find the claimant has proven his entitlement of TTD benefits from the date of the injury until his return to work in July. However, we do not find that Mr. Picquet has met his burden of proof by clear and convincing evidence that he is not able to engage in gainful employment of some type once he returned to work in July 2005. While the medical evidence establishes that he will not be able to | ^return to his former job, and will suffer some residual ill effects from the injury and the surgery, there is insufficient evidence to show that Mr. Picquet cannot find some other type of employment.

Mr. Picquet’s petition does not specifically pray for Supplemental Earnings Benefits (“SEBs”); it makes a request for Permanent Total Disability (“PTD”) status. With the posture of this case directed toward causation and the restoration of weekly benefits at trial, it appears that the hearing officer did not consider an award of SEBs.

To be entitled to receive SEBs, the claimant must establish by a preponderance of the evidence that he is unable to earn 90 percent of the wages he earned at the time of his injury, and the burden of proof then shifts to the employer who must prove that the claimant is earning less than he is able to earn.

The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker’s compensation law is to be liberally construed in favor of coverage .... “In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.”... Once the employee’s burden is met, the burden of proof then shifts to the employer, who, if he wishes to contend that the employee is earning less than he is able to earn so as to defeat or reduce supplemental earnings benefits, bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region ....

Given the medical evidence and the testimony of the claimant, we believe the evidence is sufficient to prove that the claimant may be entitled to SEBs. A1 of the doctors, including his current treating physician, Dr. Colvin, agree that Mr. Pic-quet will suffer residual effects from the injury. According to Dr. Colvin’s | ^report, Mr. Picquet has a wide-based gait, decreased reflexes, numbness, and spasms in his legs. Dr. Colvin recommended a functional capacity evaluation in December of 2007. However, there is no indication that the recommendation was acted upon.

In conclusion, we find the trial court correctly found that Mr. Picquet sustained a work-related injury and that there is a causal connection between the accident on June 20, 2005 and Mr. Picquet’s injury that entitles him to benefits under Workers’ Compensation Law. However, we find that those benefits are due from November 28, 2005, but do not constitute TTD.

Accordingly, we reverse the finding that claimant herein is awarded TTD benefits, and we amend the judgment to award benefits from November 28, 2005. In all other respects, the judgment of the trial court is affirmed as amended. We remand the matter to the trial court for a determination of the award of SEBs due claimant pursuant to LSA-R.S. 28:1221(3).

JUDGMENT REVERSED IN PART; AMENDED IN PART AND AFFIRMED AS AMENDED; MATTER REMANDED.

      . Ms. Bacas' first name does not appear in the record.

      . Delgado v. Barriere Const. Co., Inc., 98-741 (La.App. 5 Cir. 1/26/99), 726 So.2d 489, 490-91.

      . Walton v. Normandy Village Homes Assoc., Inc., 475 So.2d 320, 324 (La.1985) (citations omitted).

      . West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979).

      . Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).

      . Id.

      . Haughton v. Fireman’s Fund Am. Ins. Companies, 355 So.2d 927, 928 (La.1978).

        . Kim v. Kim, 07-318 (La.App. 5 Cir. 10/30/07), 970 So.2d 1158.

      . Fassitt v. Jefferson Parish Hosp. Serv., 07-695 (La.App. 5 Cir. 12/27/07), 974 So.2d 757, 760 (citations omitted).

      . Pardee v. Forest Haven Nursing Home, 42,-321 (La.App. 2 Cir. 6/20/07), 960 So.2d 1216; LSA-R.S. 23:1221(1)(C).

      . LSA-R.S. 23:1221(3); Newsome v. New Orleans Saints, 08-311 (La.App. 5 Cir. 10/14/08), 996 So.2d 637.

      . Smith v. La. Dep’t of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132-33 (citations omitted).


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    WINN-DIXIE LOUISIANA v. HCA MANAGEMENT SERVICES and Tulane-Lakeside Hospital.
    No. 08-CA-1154.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.
    Rehearing Denied May 21, 2009.

      Lance S. Ostendorf, Amber Welch, Os-tendorf, Tate, Barnett & Wells, LLP, New Orleans, Louisiana, for PlaintiffiAppellee.
    Franklin D. Beahm, A. Rebecca Wil-more, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellants.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MADELINE JASMINE, Pro Tempore.
   MARION F. EDWARDS, Judge.

|2In this workers’ compensation matter, the sole issue presented for our review is whether the health care provider, HCA Management Services, L.P. (“HCA”) and Tulane-Lakeside Hospital (“Lakeside Hospital”), are entitled to special reimbursement for services rendered based on an outlier fee schedule or at the applicable per diem rate. For reasons herein, we affirm the decision of the Workers’ Compensation Court.

FACTS

On March 22, 2004, James Huxen (“Mr. Huxen”) injured his lower back in the course and scope of his employment as a refrigeration mechanic with Winn-Dixie. As a result of that injury, Mr. Huxen underwent surgery on his lower spine at Lakeside Hospital. HCA billed Winn-Dix-ie for the costs of Mr. Huxen’s surgery, the surgical implants, all ancillary services, and all materials used during surgery at the usual and customary rates pursuant to workers’ compensation outlier reimbursement rate of eighty-five percent.

A dispute arose between Winn-Dixie and HCA over whether the procedure met the criteria for outlier status pursuant to the Louisiana Workers’ Compensation Fee Schedule set forth in Title 40, § 2519 of the La. Admin. Code. Consequently, HCA filed a “Special Reimbursement Consideration Appeal Request” with the | ^Louisiana Department of Labor, Office of Workers’ Compensation Administration. On June 2, 2006, the Department of Labor denied HCA’s appeal, finding that this surgery did not satisfy outlier criteria and was properly reimbursable at the per diem rate of $2,059. The opinion letter also informs HCA of its right to challenge the opinion by filing a formal dispute, a Disputed Claim for Compensation Form, with the appropriate hearing office. HCA did not seek this avenue of review.

Subsequently, Winn-Dixie and its insurer, Sedgwick Claims Management (“Sedgwick”), filed a Disputed Claim for Compensation in which they sought reimbursement for overpayment of fees to defendants/appellants based on the fact that the medical treatment was not an outlier and did not justify the payment above the normal fee schedule. In support of that claim, Winn-Dixie attached the letter from the Department of Labor denying HCA’s request for outlier status and establishing the reimbursement at the per diem rate of $2,059.

After HCA answered the claim, Winn-Dixie filed a motion for partial summary judgment on the issue of outlier status. HCA opposed the motion, arguing Mr. Huxen’s treatment was atypical in nature, requiring a lengthy surgery and numerous implants, the same argument presented to the Department of Labor in HCA’s special reimbursement request. HCA argued that the amount billed was medically necessary and should be classified as outlier surgery despite the denial of its request for outlier status by the Department of Labor. HCA also filed a motion to strike the denial letter from the Department of Labor from the record.

On January 22, 2008, the Office of Workers’ Compensation judge rendered judgment denying HCA’s motion to strike and granting Winn-Dixie’s motion for partial summary judgment ruling that the procedure performed on Mr. Huxen did not meet the criterion for outlier status. That judgment was not appealed.

pSubsequently, on February 19, 2008, the parties entered into a Joint Stipulation showing that the total charges for Mr. Huxen’s surgery were $82,982.80. Winn-Dixie paid $4118, representing two days at $2059, the per diem surgical rate for the New Orleans area. HCA resubmitted a bill assessed on outlier status in the amount of $66,417.38. Winn-Dixie paid $70,535.38, an amount equal to eighty-five percent of the total charges of $82,982.80. After a subsequent partial refund, the final total paid by Winn-Dixie to HCA for Mr. Huxen’s surgery was $63,316.42. The joint stipulations also set forth the calculations used to reach the final amount of $34,020.02 demanded as a reimbursement by Winn-Dixie.

Also in that joint stipulation, the parties agreed that the only issues to be resolved in the matter were whether the medical and surgical treatment rendered by the health care provider should have been classified as outlier and the amount of reimbursement in controversy. Although the joint stipulation seeks to preserve a continuing objection to the ruling of the court on the motion for partial summary judgment, in conclusion the joint stipulation states: “This Honorable Court issued a judgment which held the procedure performed on Mr. Huxen was not an ‘outlier,’ and this stipulation speaks to the amount in controversy. Therefore, with this stipulation, all issues have been disposed of with this court, and the parties request an entry of judgment.”

On May 13, 2008, the court rendered a judgment in favor of claimants in the amount of $34,020.02. The judgment shows that the court based the final judgment on the earlier motion for partial summary judgment that the procedure was not an outlier and that the parties jointly stipulated to the amount in controversy. Defendants/appellants appeal that judgment.

On appeal, defendants/appellants argue the hearing officer erred in granting the partial motion for summary judgment on the issue of outlier status. We find 1 Rthat the issue presented by them has not been preserved for consideration on appeal and this Court is without jurisdiction to address the merits of the grant of the partial motion for summary judgment.

LAW AND ANALYSIS

The procedure for resolving the issue of whether hospital services will be reimbursed outside of the normal per diem reimbursement method is set forth in 40 La. Admin. Code § 2519. A health care provider may appeal from a denial of outlier status by the Department of Labor by filing a formal appeal with the Office of Workers’ Compensation. Final determination as to acceptance of a case for 1 ^special reimbursement rests solely with the State of Louisiana, Office of Workers’ Compensation.

As previously noted, HCA failed to avail itself of the procedure for appealing the decision of the Department of Labor as provided by 40 La. Admin. Code § 2519(B)(3). Instead, HCA sought to have the decision struck from the record in the Workers’ Compensation Court and argued the merits of outlier status in its opposition to claimants’ motion for partial summary judgment.

The trial court may render a final judgment even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court grants a motion for judgment on the pleadings, as provided by C.C.P. article 968. “Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced. If the judgment does not grant mover all of the relief prayed for, jurisdiction shall be retained in order to adjudicate on mover’s right to the relief not granted on motion....”

In the matter before us, the hearing officer rendered a final partial summary judgment that was not timely appealed. When a party fails to timely file a devolutive appeal from a final judgment, the judgment acquires the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter that judgment. Accordingly, this Court is without jurisdiction to consider the merits of the issue of outlier status as that issue was decided by the partial summary judgment rendered on January 22, 2008 that has now become final.

|7The judgment on appeal is the judgment of May 13, 2008 in which the hearing officer granted judgment in favor of claimants in the amount of $34,020.02. Given the finality of the grant of the partial summary judgment and the joint stipulation of the parties that the amount in controversy is $34,020.02, we find the judgment is correct and should be affirmed.

AFFIRMED.

      .Inpatient hospital acute care services falling within certain diagnosis code ranges will be reimbursed outside the normal per diem reimbursement method. These atypical admissions will be paid at covered billed charges less a fifteen percent (15%) discount.
      A. Automatic Outliers
      Conditions requiring acute care inpatient hospital services that are work related and are recognized as "automatic outliers” are:
      1. AIDS: ICD-9 Diagnosis Codes 042-044
      2. Acute Myocardial Infarction: ICD-9 Diagnosis Code 410
      3. Severe Burns: ICD-9 Diagnosis Code 949
      B. Appeal Procedures
      Special reimbursement consideration will be given to cases that are atypical in nature due to case acuity causing unusually high charges when compared to the provider’s usual case mix. This appeal process applies to Workers’ Compensation cases paid under the per diem reimbursement formula limiting the payment amount to the lesser of per diem or covered billed charges.
      1.The following general criteria will be applied to determine when a case, originally paid at the per diem rate, may be appealed:
      a. Total charges for an inpatient hospital surgical admit are greater than or equal to $100,000.
      b. Total charges for an inpatient hospital medical admit are greater than or equal to $75,000.
      c.Average per day charge for any case (inpatient hospital, rehabilitation, SNF, etc.) equates to 1.75 times the applicable per diem rate.
      2. When a provider determines that a case falls within the appealable criteria, a request for review may be submitted to the Carrier/Self-Insured Employer.
      3. If denied, a provider may then file a formal appeal with the Office of Workers' Compensation using the Special Reimbursement Consideration Appeal Form (LDOL-WC-3000) (see EXHIBIT II). Forms are available upon request from the Office of Workers' Compensation at the address shown on the sample form. Procedures for filing an appeal and documentation required are provided on the form.
      4. Final determination as to acceptance of a case for special reimbursement rests solely with the State of Louisiana, Office of Workers' Compensation.
      5. If approved, the provider will be reimbursed at covered billed charges less a fifteen percent (15%) discount.

      . 40 La. Admin. Code § 2519(B)(3).

      . 40 La. Admin. Code § 2519(B)(4).

      . LSA-C.C.P. art. 1915(A)(2).

      . LSA-C.C.P. art. 968.

      . LSA-C.C.P. art.2087; Harper v. Eschenazi, 04-863 (La.App. 5 Cir. 12/28/04), 892 So.2d 671, 673.


author: PEATROSS, J.

text:
    Joycelyn HOLDEN, Individually and on Behalf of Her Minor Children, Joyia Holden and Ravyn Holden, Plaintiff-Appellant, v. ZURICH AMERICAN INSURANCE COMPANY, Eastex Materials and/or Louisiana Acoustical & Drywall Materials and David Patrick Boer, Plaintiff-Appellant.
    No. 44,242-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      W. Brett Cain, Shreveport, for Appellant.
    Mayer, Smith & Roberts, L.L.P., by John C. Turnage, for Appellees.
    Before STEWART, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

h In this suit for damages allegedly arising out of an automobile accident, the trial court awarded $2,619.70 to Plaintiff (mother) Joycelyn Holden, $1,039.91 to her daughter, Joyia Holden, each award representing general damages plus emergency room fees. The trial judge, however, denied the injury claim of Ms. Holden’s second daughter, Ravyn Holden. In addition, finding Ms. Holden’s testimony lacking in credibility, the trial court refused to award medical expenses for the subsequent treating physicians or lost wages. Ms. Holden, individually and on behalf of her daughters, appeals. For the reasons stated herein, we affirm.

FACTS

On September 13, 2005, Ms. Holden was traveling south on North Market Street in Shreveport with her daughters, Joyia and Ravyn, as passengers, when her vehicle was struck from the side by a truck driven by Defendant David Boer. Mr. Boer was driving the track in the scope of his employment with defendant Eastex Materials (“Eastex”). Ms. Holden, Joyia and Ravyn were taken by Ms. Holden’s father to the Sehumpert-Highland ER a few hours after the accident where they were treated and released. The three subsequently sought treatment from Dr. Thomas Johnson, a chiropractor, and were treated and released on the same dates (in mid-October). At the end of the following January, the three sought treatment from Dr. Richard Kamm, who indicated in his report that they complained of pain, but he could find no objective signs of injury.

Ms. Holden subsequently filed suit individually and on behalf of her daughters against Mr. Boer, Eastex and his insurer, Zurich American | insurance Company (“Zurich”), seeking recovery for alleged injuries sustained in the accident. The primary complaints of the three plaintiffs were neck pain, arm pain and numbness and headaches. Ms. Holden also sought lost wages, claiming that she could not work until January due to her accident-related injuries.

Significantly, during a visit to her family doctor, Dr. Robert Savory, on October 14, 2005, one month after the accident, Ms. Holden presented very ill, with intense headaches, fever and chills. She underwent a battery of tests, was hospitalized and ultimately diagnosed with pseudotu-mor cerebri, which concerns the pressure of the spinal fluid, unrelated to the accident. A neurologist, Dr. Benjamin Nguyen, consulted on her case during this time. Ms. Holden advised Dr. .Nguyen that she was not seeking treatment for an automobile accident injury, but she made the same physical complaints of neck pain and headaches that she made to Drs. Johnson and Kamm. At a follow-up appointment in Dr. Nguyen’s office, Ms. Holden signed a form confirming that her ailments were not accident-related.

Ms. Holden was the only witness at the bench trial. The trial judge found Ms. Holden to be lacking in credibility for several reasons. He stated that she was evasive, the graphs did not match up with her story of the severity of the accident, she was deceptive regarding her time off work and she was not forthcoming about her visits to the doctors and how she was referred to Drs. Johnson and Kamm. She testified that she did not recall |3how she came to see Drs. Johnson and Kamm, stating that she must have found them in the phone book. In addition, she testified that it felt as though the car lifted up in the air when it was hit.' Considering the minimal property damage, the trial judge did not find her story to be credible.

In addition, Ms. Holden, who is an R.N., admitted in her deposition that she had suffered a previous work-related neck injury which caused intermittent pain. Also, in 2001, Ms. Holden was diagnosed with a herniated disk in the cervical region. She did not disclose these conditions to Drs. Johnson and Kamm. In her trial testimony, Ms. Holden confirmed these prior conditions and that she did not disclose them to her treating physicians.

The trial judge did, however, find that the accident occurred and that Mr. Boer was at fault. The trial judge awarded Ms. Holden $1,500 in general damages, plus the medicals for the emergency room visit, totaling $2,619.70. He awarded Joyia $750 in general damages, plus her emergency room bill, for a total of $1,309.91. The trial judge found that Ravyn was not entitled to damages as the records showed no signs of objective injury to her. Regarding the medical expenses related to treatment by Drs. Johnson and Kamm, the trial judge placed little weight on the records of those doctors and found no basis for awarding their fees. In addition, the trial judge found Ms. Holden’s testimony regarding her time out of work to be evasive and not credible. Accordingly, the trial judge refused an award for lost wages. This appeal ensued.

| ¿DISCUSSION

Ms. Holden challenges the trial court’s determination that she was not a credible witness. Ms. Holden defends her testimony on her failure to recall how she selected the doctors and notes that this is not a significant factor in determining damages. She further states that there is no documentary evidence that contradicts her testimony regarding her pain and injuries. Ms. Holden also takes issue with the decision of the trial judge to heavily discount the medical records of Dr. Johnson.

A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Under the manifest error standard, the appellate court must not reweigh the evidence or substitute its- own factual findings. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or plainly wrong. Id.

To reverse a trial court’s factual determinations, the appellate court must find that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. When findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Hanger One MLU, Inc. v. Unopened Succession of Rogers, 43,120 (La.App.2d Cir.4/16/08), 981 So.2d 175; |5 Green v. Nunley, 42,343 (La.App.2d Cir.8/15/07), 963 So.2d 486. Further, when the factual finding of the trial court is based on a credibility call, that finding can virtually never be manifestly erroneous or plainly wrong. Salvant, supra; Stobart v. State, supra. This is so because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra. A trial court is granted wide discretion in assessing the probative value of evidence and is free to accept or reject, in whole or in part, the testimony of any witness. In re Succession of Lawler, 42,940 (La.App.2d Cir.3/26/08), 980 So.2d 214, writ denied, 08-1117 (La.9/19/08), 992 So.2d 939.

In the case sub judice, the trial judge expressly stated that his ruling was based on the lack of credibility of the testimony of Ms. Holden. The oral reasons given by the trial judge outline the bases for his discounting of Ms. Holden’s testimony as well as the records of Dr. Johnson. The trial judge stated in his reasons that the records of Dr. Johnson say “pretty much” exactly what Ms. Holden relates and all three of the plaintiffs were treated on the same dates, for the same complaints and were released on the same date. For these reasons, the judge gave little, if any, weight to Dr. Johnson’s findings.

Our review of the record reveals a reasonable basis for the trial judge’s conclusion regarding the lack of credibility of Ms. Holden. The trial | ¿judge was in the best position to listen to Ms. Holden’s testimony, observe her demeanor while testifying and apply the appropriate weight to her testimony and the records of her chiropractor. These determinations are afforded great deference and we will not disturb them on appeal. Further, the conclusions of the trial judge that Ravyn sustained no objective injury and that there was no basis for an award of lost wages to Ms. Holden are well supported by the record.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at the cost of Joycelyn Holden, et al.

AFFIRMED.

      . The record indicates that Ms. Holden did not work from sometime shortly' after the accident until January. She reluctantly admitted, however, after questioning by the trial judge, that she "may” have been taken off of work approximately two weeks prior to the accident for medical reasons, but she could not remember.

      . The property damage claim in the amount of $1,677.56 was paid by Zurich prior to trial.

      . The trial judge found significant that the only medical expenses presented to the court were from Drs. Johnson and Kamm and both doctors had agreed not to charge Ms. Holden in advance of treatment.


author:
ROLAND L. BELSOME, Judge.
      TOBIAS, J.,

text:
    Thaddeus JACKSON v. SEWERAGE & WATER BOARD.
    No. 2009-CA-0071.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 2009.

      Kathleen F. Hobson, New Orleans, LA, for PlaintiffAppellee.
    Brian A. Ferrara, Deputy Special Counsel, Gerard M. Victor, Special Counsel, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

hThe Sewerage & Water Board appeals the Civil Service Commission’s reinstatement of Sewerage & Water Board employee, Thaddeus Jackson, with back pay and emoluments of employment. For the reasons that follow we affirm.

Thaddeus Jackson became an employee of the Sewerage & Water Board (S & WB) on April 24, 1989. At the time of the incident made subject of this appeal he held a provisional position as a Quality Assurance Safety Inspector with permanent status as a Pumping Crane Operator.

On September 3, 2004 at approximately 5:45 p.m., Mr. Jackson was found on the ground and unresponsive at a S & WB worksite. A fellow employee called 911 and an ambulance arrived shortly thereafter. Mr. Jackson refused to be transported to the hospital by ambulance, but was driven to Touro Infirmary by Larry DeJe-an who was also an employee of the S & WB. He arrived at Touro Infirmary at approximately 6:30 p.m.

Upon arriving at the hospital Mr. Jackson refused to be admitted or to have any testing done. That included the drug testing that is required by the S & WB |2when an accident or incident at a jobsite occurs. Mr. Jackson’s wife and mother arrived at the hospital to find him crying and disoriented. The women were able to convince him to be admitted into the hospital for testing and treatment. At that time, approximately 10:25 p.m., he voluntarily submitted to the urine drug test required by the S & WB. Mr. Jackson remained in the hospital for two days.

The S & WB was informed on September 8, 2004, that Mr. Jackson’s drug test result was negative. On September 10, 2004, the S & WB sent Mr. Jackson a letter advising him the he was to appear for a “pre-disciplinary hearing regarding your attendance.” He responded by contacting the S & WB and informed them that while he was out he had been calling in and using sick days. Then on September 22, 2004, Mr. Jackson was sent a letter notifying him that a pre-termination hearing was set for September 29, 2004 and that he needed to provide evidence of “diagnosis and prognosis and medical documentation as to your condition.”

The hearing was held on September 29, 2004, as scheduled. Mr. Jackson presented a letter from neurologist, Dr. R. Charles Fiore. Dr. Fiore’s letter stated his findings after an evaluation of Mr. Jackson was loss of consciousness due to seizure, “followed by confusional episode, and amnesia lasting several hours.” Based on Mr. Jackson’s history and test results, Dr. Fiore considered Mr. Jackson’s prognosis to be very good.

The pre-termination form dated September 29, 2004 stated the reason for recommendation as; “[rjefusal to submit to drug and alcohol screening at direction of supervisor following incident in which he passed out on job. Also, refusal to enter drug and alcohol rehabilitation as required by SWB [sic] Alcohol and Drug Abuse Policy.” The form also indicated that “[d]octor’s letter did not specifically | ¡¡address subject of Mr. Jackson’s refusal on 9-03-04 to submit to alcohol & drug abuse screening as [sic] and when directed by supervisor.” At the pre-termination hearing, Mr. Jackson again informed the S & WB that he had indeed submitted to the drug test at the hospital, which fact was also stated in Dr. Fiore’s letter.

Following the pre-termination hearing, the S & WB sent Mr. Jackson a letter dated October 5, 2004 informing him that he was terminated effective October 15, 2004. The letter cited Civil Service Rule V. Section 9.4 and stated that he had been offered the opportunity to enter a certified rehabilitation program, resign, or be dismissed. Mr. Jackson declined the offer to enter rehabilitation or resign and he was therefore terminated.

Mr. Jackson appealed his termination. After several days of testimony, which was completed on August 9, 2006, the hearing examiner drafted his recommendation in support of Mr. Jackson’s termination. However, the Civil Service Commission (Commission), after reviewing all the testimony, issued a decision on October 2, 2008, finding that Mr. Jackson was wrongfully terminated.

On appeal from the Commission’s decision, the S & WB argues that 1) the Commission did not have sufficient cause to change the disciplinary action; and 2) the Commission erred in taking two years to issue a decision. The S & WB maintains that Mr. Jackson’s initial refusal to be drug tested violated the Civil Service Commission’s Substance Abuse Policy as expressed in Section 9, Rule V of the Civil Service Rules:

Refusal to participate in the substance abuse screening procedure, or failure to undergo the screening procedure at the time and place designated for testing ... shall be considered to be presumptive evidence of the individual’s inability to pass the substance abuse testing procedure.

Civil Service Rule V, Section 9.4.

l/The Commission’s duty is to independently determine from the facts and evidence presented whether the appointing authority had good cause for taking disciplinary action and if the action was commensurate with the infraction. See Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p. 10 (LaApp. 4 Cir. 11/8/06), 944 So.2d 760, 767. The conclusion of the Commission should not be reversed by this Court unless the decision is arbitrary, capricious or an abuse of the Commission’s discretion. Id., p. 10, 964 So.2d at 1095.

As recognized in the Commission’s decision, the evidence established that Mr. Jackson had lost consciousness, struck his head on the ground and was transported to the hospital. The doctor’s report, requested by and produced to the S & WB stated that Mr. Jackson’s unconsciousness and subsequent confusion and amnesia were most likely the result of a seizure. Witnesses testified that after arriving at the hospital, Mr. Jackson wandered off and was lost for some period of time. Further, when his wife and mother arrived they found him crying and asking for his grandmother, who was no longer a patient at the hospital. These accounts of Mr. Jackson’s behavior are consistent with the “confusional episode” described by Dr. Fiore.

The S & WB focuses on Mr. Jackson’s refusal to submit to the drug test upon arrival at the hospital, but the evidence proved that he refused all treatment, testing, and admittance into the hospital. He argued that he had not passed out and that nothing was wrong with him. His wife and mother finally convinced him to be admitted to the hospital and undergo treatment and testing. We agree with the Commission’s finding that the record fully | .^supports that Mr. Jackson’s initial refusal to submit to the drug test was caused by his medical condition at the time. In light of these particular facts, a brief delay in the drug testing, which produced a negative result, was not a violation of Civil Service Rule V, Section 9.4.

The S & WB argues that the Commission’s delay in rendering a decision caused harm to the Appointing Authority because Mr. Jackson is entitled to two years of back pay. August 9, 2006 was the last day that evidence was presented to the hearing officer. Post hearing briefs were due on August 31, 2006 and a decision was not rendered until October 2, 2008.

Civil Service Rules require the Commission to decide an appeal within ninety (90) days after receiving the hearing officer’s report. Although in this matter the hearing officer’s report is not dated, the fact that the appeal was decided some 653 days beyond the guidelines set by the rules is clearly abusive. However, a reversal cannot be based solely on an untimely decision. Bannister v. Dept. of Streets, 95-0404, p. 7 (La.1/16/96), 666 So.2d 641, 647(clearly stating the Rule II, Section 4.16 is not a mandate, but merely “directory”). This Court has admonished the Commission for lengthy delays in past opinions, but we are bound to determine the outcome of the cases on the merits. See Bovia v. Dept. of Police, 08-0710 (La.App. 4 |6 Cir. 1/7/09), 2 So.3d 1159, and Patterson v. New Orleans Fire Dept., 98-1168 (La.App. 4 Cir. 12/23/98), 727 So.2d 551.

Accordingly, we affirm the Civil Service Commission’s reinstatement of Thaddeus Jackson with back pay and emoluments of employment.

AFFIRMED.

TOBIAS, J., Concurs and Assigns Reasons.

TOBIAS, J.,

Concurs and Assigns Reasons.

hi respectfully concur. The reasoning of the majority is correct that Mr. Jackson must be reinstated. I further agree that lengthy delays in the issuance of decisions by the City Civil Service Commission are unconscionable. However, I agree with the dissent in Bovia v. Dept. of Police, 08-0710 (La.App. 4 Cir. 1/7/09), 2 So.3d 1159, a case cited by the majority.

      . Civil Service Rule II, Section 4.11 states that "hearing examiner will prepare a report of the proceedings for the Commission within fifteen (15) working days after the completion of the hearing.”
      Civil Service Rule II, Section 4.17 provides in pertinent part:
      [ajppeals to the Commission shall be decided promptly but in any event within ninety
      (90) calendar days after completion of a hearing. In the event the hearing has been held before a Hearing Officer or Referee ... the ninety (90) day period shall begin to run upon receipt by the Commission of the Hearing Officer's Report and official transcript of the testimony of said hearing.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Carlene BANISTER v. Barrett J. DAY, M.D. and Louisiana Medical Mutual Insurance Company.
    No. 08-CA-835.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.
    Rehearing Denied July 6, 2009.

      Byron J. Casey, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    C.T. Williams, Jr., James W. Vitrano, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¿This is a medical malpractice proceeding in which summary judgment was granted in favor of defendants/appellees Dr. Barrett J. Day, M.D. (“Dr. Day”) and the Louisiana Medical Mutual Insurance Company. For the foregoing reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff/appellant Carlene Banister was treated for hyperthyroidism by the staff of Integrative Medical Services (“IMS”) in 2002. IMS was a clinic specializing in homeopathic treatment and other forms of alternative medicine. The appellant alleges that she was introduced to Dr. Day during her first visit to IMS and that she was informed that Dr. Day was IMS’s medical director. The - appellant further alleges that she was under the impression that her treatment at IMS was being monitored by Dr. Day. Dr. Day contends that he did not meet the appellant during her first visit to IMS and that he never examined her during any of her subsequent visits.

IsDuring her course of treatment at IMS, the appellant was primarily treated by Claudia Thurman and Vicky Jennings, neither of whom was licensed as a nurse or a physician in the state of Louisiana. According to the appellant, Claudia Thurman interviewed her on June 11, 2002, took a live blood culture from her, and recommended to her that she take several different vitamins and enzymes. Over the next six months, the appellant alleges that she received numerous intravenous therapies from Claudia Thurman and Vicky Jennings. The appellant further alleges that on or about December 11, 2002 Vicky Jennings administered an injection of dimeth-yl sulfoxide to her and that this injection caused her to sustain severe and permanent damage. The appellant concedes that Dr. Day did not examine her during her treatment at IMS.

The appellant filed a complaint with the Louisiana Patients’ Compensation Fund (the “Compensation Fund”) on December 11, 2003. IMS and Claudia Thurman were made defendants therein. On January 20, 2004 the Compensation Fund informed the appellant that IMS and Claudia Thurman were not qualified health care providers pursuant to La. R.S. 40:1299.41(A)(10). On January 20, 2004, the appellant filed a supplemental complaint with the Compensation Fund. Dr. Day was named as a defendant in the supplemental complaint. Dr. Day submitted a LAMMICO Narrative to the Compensation Fund. In the narrative, Dr. Day admitted that he was aware that Claudia Thurman and Vicky Jennings had provided intravenous therapy to IMS patients without a physician’s order.

A medical review panel was convened to address the appellant’s claim in accordance with La. R.S. 40:1299.47. On January 27, 2005, the medical review panel rendered a unanimous opinion finding that Dr. Day did not breach the |4applicable standard of care. More specifically, the opinion stated that there was “no documentation of a patient-doctor relationship ever being established” and that there was “no documentation that Dr. Day ever ordered intravenous therapy for the patient.”

On February 11, 2005, the appellant filed a^ Petition for Damages alleging that she suffered “severe and permanent damage” as a result of her treatment by IMS. The appellant further alleged that Dr. Day “deviated from the appropriate standards of care in conjunction with the care rendered to her at Integrative Medical Services.” Dr. Day was deposed on September 28, 2006. He again admitted that he was aware that Claudia Thurman and Vicky Jennings had provided intravenous therapy to IMS patients without a physician’s order. Further, Dr. Day admitted that the administration of intravenous therapy is an invasive procedure that can only be authorized by a physician.

On March 10, 2008, Dr. Day filed a Motion for Summary judgment alleging that the appellant had not established that he had deviated from the proper standard of care and that the appellant had not provided the court with expert testimony to establish a causal connection between her allegations and her asserted damages. On May 22, 2008, the appellant filed a Motion for Partial Summary Judgment on the Issue of Liability. The appellant attached two affidavits to her Motion from physicians who had served on the medical review panel. In their respective affidavits, Dr. James Carter and Dr. Kevin Russ testified that “the submissions of the parties before the Medical Review Panel established the fact that the staff of Integrative Medical Services were engaged in the unauthorized practice of medicine.” In addition, Dr. Carter and Dr. Russ both testified that “if Dr. Barrett J. Day had knowledge of the unauthorized practice of medicine, and based upon the evidence which Dr. Day submitted to the review panel he did, then he had the |saffirmative duty to put a stop to it, and/or to notify the proper authorities of the unauthorized practice of medicine.”

The opposing Motions for Summary Judgment came to hearing on June 23, 2008. Appellant’s counsel contended that the Petition for Damages contained both medical malpractice claims and general negligence claims. Dr. Day’s counsel vigorously objected and maintained that the appellant’s petition only alleged medical malpractice claims against Dr. Day. On July 11, 2008, the trial judge issued a judgment denying the appellant’s Motion for Partial Summary Judgment on the Issue of Liability and granting Dr. Day’s Motion for Summary Judgment. This timely appeal followed.

The appellant assigns two errors to the proceedings below. First, she argues that the trial court erred in denying her Motion for Summary Judgment. Second, she contends that the trial court erred in granting Dr. Day’s Motion for Summary Judgment. For the purposes of judicial economy, we will consider these assignments of error together.

LAW AND DISCUSSION

Standard of Review

Appellate courts review summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. See, e.g., Prince v. K-Mart Corporation, 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248. Summary judgments are currently favored in the law and the rules should therefore be liberally applied. Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865, 866, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636. It is well settled that a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file show there is no genuine issue of material 1 (¡fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Ekere v. Dupont Chemical Plant, 99-1027 (La.App. 5 Cir. 2/16/00), 757 So.2d 33, 34, writ denied, 00-778 (La.4/28/00), 760 So.2d 1181. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183.

Medical Malpractice Claims

The Louisiana Medical Malpractice Act provides the sole remedy for medical malpractice claims in Louisiana. “Malpractice” is defined as “any unintentional tort or any breach of contract on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.” La. R.S. 40:1299.41(A)(8). Therefore, in order for a plaintiffs claim to be considered a malpractice action under the Medical Malpractice Act, the negligence or contract claim must be predicated on “health care or professional services” rendered by a health care provider “to a patient.” Delcambre v. Blood Systems, Inc., 2004-0561 (La.1/19/05), 893 So.2d 23, 27.

La. R.S. 9:2794 provides, in pertinent part:

A. In a malpractice action based on the negligence of a physician ... the plaintiff shall have the burden of proving
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have occurred.

17(emphasis added).

To overcome the burden of La. R.S. 9:2794, a plaintiff must show that a genuine issue of material fact exists as to each of the elements of La. R.S. 9:2794. La. C.C.P. art. 966 C(2). Generally, expert testimony is required to establish the applicable standard of care and whether or not the standard was breached, unless the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau, 2007-1726, p. 4 (La.2/26/08), 977 So.2d 880, 887-88; Pffiffner v. Correa, 1994-0924, 1994-0963, 1994-0992 (La.10/17/94), 643 So.2d 1228. With respect to causation, a plaintiff must prove by a preponderance of evidence that he suffered injury due to a defendant’s conduct. See, e.g., Gordon v. Louisiana State University Bd. of Sup’rs, 27,966 (La.App. 2 Cir. 3/1/96), 669 So.2d 736, writ denied 96-1038 (La.5/31/96), 674 So.2d 263. When there is no direct evidence which establishes that the negligence or malpractice of a health care provider caused a plaintiffs injury, the plaintiff has failed to meet the burden of proof. Coleman v. East Jefferson Gen. Hosp., 99-187 (La.App. 5 Cir. 9/28/99), 742 So.2d 1044, writ denied, 99-3070 (La.1/7/00), 752 So.2d 866.

A motion for summary judgment may be supported with affidavits, provided that the affiant testifies on personal knowledge and sets forth such facts as would be admissible in evidence. La. C.C.P. art. 967(A). If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue of material fact, the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In this case, the appellant attached two affidavits to her Motion for Partial Summary Judgment on the Issue of Liability. Both affiants were physicians who were on the medical review panel finding that no physician-patient relationship ^existed between Dr. Day and the appellant. According to the affiants, “if Dr. Barrett J. Day had knowledge of the unauthorized practice of medicine, and based upon the evidence which Dr. Day submitted to the review panel he did, then he had the affirmative duty to put a stop to it, and/or to notify the proper authorities of the unauthorized practice of medicine.” Thus, the appellant arguably established through expert testimony that an appropriate standard of care existed and that Dr. Day breached the standard of care.

Moreover, we are of the opinion that there is a genuine issue of material fact as to whether a physician-patient relationship existed between Dr. Day and the appellant. A physician-patient relationship can form from an express or implied contract. La. R.S. 40:1299.41(A)(15); Delcambre, 893 So.2d at 27 (“recovery under medical malpractice is allowed only where a physician-patient relationship exists as the result of an express or implied contract.”). In the instant case, the appellant contends that she was introduced to Dr. Day during her first visit to IMS and that she was informed that Dr. Day was IMS’s “medical director.” The appellant farther alleges that she was under the impression that her treatment at IMS was being monitored by Dr. Day. During her deposition, Vicky Jennings testified that Dr. Day was the medical director of IMS. During his deposition, Dr. Day admitted that his previous attorney filed a Petition for Injunctive Relief alleging that Vicky Jennings and Claudia Thurman contracted with him to become the IMS’s medical director. Dr. Day also admitted that Claudia Thurman created an advertisement welcoming him as the new medical director of IMS. However, Dr. Day stated during his deposition that he never became medical director of IMS and that, in his opinion, the term “medical director” has no legal significance.

No reported Louisiana case has addressed the legal significance of a “medical director” and jurisprudence from other jurisdictions is scant. In Fence v. |9 Hospice in the Pines, 4 S.W.3d 476 (Tex.App.1999), the Court of Appeals of Texas analyzed whether a volunteer medical director’s actions established a physician-patient relationship. In Fence, the defendant physician argued that no physician-patient relationship existed between himself and the plaintiff, as does Dr. Day. The physician’s description of his position as “medical director” of the hospice in Fence is very similar to Dr. Day’s description of his position at IMS. First, the doctor testified at trial that his position was a formality; due to rules and regulations the hospice needed a physician to sign various documents. Id. at 479. Similarly, Dr. Day agreed to help IMS by examining patients and ordering treatments in order for IMS to continue as a viable business. In both cases, the doctors were not compensated for their time and worked voluntarily. The plaintiff in Fence was apparently under the impression that a physician-patient relationship existed due to a certification form signed by the plaintiff. Id. at 478. In the instant case, the appellant contends that she believed Dr. Day was directing her care because Dr. Day was introduced to her as IMS’s medical director during her first visit to the clinic.

The defendant physician in Fence filed a Motion for Summary Judgment, arguing that -the evidence established that he did not breach a duty owed to the plaintiff because a physician-patient relationship did not exist between himself and the plaintiff. Id. at 478. .The motion was granted by the trial court. However, the Court of Appeals of-Texas reversed and remanded. Id. at 485. The Court of Appeals of Texas relied heavily on the hospice’s procedures manual, which provided, in pertinent part:

Physician Service. Each patient is under the care of an attending physician. The Hospice Medical Director has overall responsibility for the medical component of Hospice patient care and, as a member of the Hospice Interdisciplinary Group, participates in the establishment of the plan of care, 1 ^provides or supervises Hospice care and services and periodically reviews and updates the plan of care for each individual receiving Hospice care.

Id. at 479-80 (emphasis added).

The court- concluded that a physician-patient relationship existed due to the physician’s status as medical director of the hospice. Id. at 480.

According to the deposition of Vicky Jennings, IMS never had an employee manual, nor was she provided with a copy of IMS policies and procedures when she began her employment there. We cannot therefore rely on documents that were so important to the holding in Fence. Nonetheless, we find that there is a genuine issue of material fact as to whether an implied physician-patient relationship existed between Dr. Day and the appellant.

However, the appellant has not met her burden of proving causation. The affidavits attached to the Motion for Summary Judgment on the Issue of Liability do not address causation. The appellant has presented this Court with no evidence establishing that Dr. Day’s medical malpractice proximately caused her injury. In fact, the appellant has presented this Court with no evidence that she suffered any injury whatsoever.

The Third Circuit addressed a similar situation in Alex v. Dr. X, 96-1196 (La.App. 3 Cir. 3/5/97), 692 So.2d 499. The Alex plaintiff was a man whose wife died of liver failure after doctors prescribed her medication for tuberculosis. It was later discovered post-mortem that the plaintiffs wife was not suffering from tuberculosis. Alex, 692 So.2d at 500. The plaintiff alleged that the tuberculosis medication was toxic and caused further damage to his wife’s liver, but presented no proof that there was a causal connection between the medication and his wife’s death. Id. at 501, 506. The defendant filed a motion for summary judgment, contending that there was a “conclusive absence of proof that [the decedent] |, suffered any injuries from the treatment of [the physician] that would not otherwise have been incurred.” Id. at 507. The motion was granted by the trial court. The Third Circuit affirmed, reasoning:

Even if a jury would be able to infer negligence from the mere act of [the physician] prescribing the medication before receiving the results of the tuberculosis test, the plaintiffs presented no proof that there was a causal connection between [the decedent’s] death and the medication that [the physician] had prescribed. (citations omitted). In other words, the plaintiffs presented no evidence that would tend to prove that the INH medication prescribed by [the physician] aggravated [the decedent’s] existing liver condition to the point of ultimately causing her death.
Alex, 692 So.2d at 506-07.

Similarly, in the instant case, the appellant has presented no proof that there was a causal connection between the December 11, 2002 intravenous therapy and her alleged injuries. Nor has she submitted any evidence to this Court to indicate that she has actually sustained any injury whatsoever. Accordingly, we find that the appellant has not sustained her burden of proving that there existed a material issue of fact as to whether “as a proximate result of [Dr. Day’s] lack of knowledge or skill or the failure to exercise [the requisite] degree of care, [she] suffered injuries that would not otherwise have occurred.” The trial court correctly denied the appellant’s Motion for Summary Judgment on the Issue of Liability with respect to the medical malpractice claims against Dr. Day.

Negligence Claims

At the hearing on the respective Motions for Summary Judgment, the appellant’s counsel argued that the appellant’s Petition for Damages contained claims in medical malpractice claims in general negligence. Dr. Day contends that “[i]t is clear that Appellant’s Petition and cause of action sound solely in medical malpractice.” In his answer to the instant appeal, Dr. Day filed an Exception of Prescription contending that if this Court finds that non-medical [ ^malpractice negligence claims have been pleaded against him, such claims are prescribed.

We find it extremely difficult to accept Dr. Day’s assertion that his wilful failure to take action against Claudia Thurman and Vicky Jennings “sound[s] solely in medical malpractice.” According to Dr. Day, should the trier of fact find that there is no physician-patient relationship between the appellant and Dr. Day, the appellant has no general negligence claim against Dr. Day for his willful failure to take action against Claudia Thurman and Vicky Jennings for practicing medicine without a license. However, in this case, we need not consider and resolve this issue. In Louisiana, general negligence claims are resolved by employing duty-risk analysis. Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, 611. The duty-risk analysis requires proof of five separate elements: (1) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Id. As aforementioned, the appellant has not met the cause-in-fact element or the damages element of a general negligence cause of action.

Accordingly, we find no merit in the appellant’s assignments of error. Finally, having found that the trial court properly granted Dr. Day’s Motion for Summary Judgment thereby dismissing the entire case, the appellant’s Motion for Partial Summary Judgment on the Issue of Liability has become moot.

^CONCLUSION AND DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs to be paid by appellant.

AFFIRMED.

      . The Louisiana Medical Mutual Insurance Company was Dr. Day’s insurer.

      . IMS is no longer in operation.

      . The primary use of dimethyl sulfoxide is as an industrial solvent. The chemical has only been approved by the FDA for the treatment of interstitial cystitis, a bladder disease. Food and Drug Administration, Import Alert IA6206, http://www.fda.gov/ora/fiars/ora_ import_ia6206.html (last visited April 21, 2009).


author: EDWIN A. LOMBARD, Judge.

text:
    SAFEWAY INSURANCE COMPANY OF LOUISIANA v. PREMIER AUTOMOTIVE SUPERSTORE and ABC Insurance Company Camela Stimage v. Safeway Insurance Company of Louisiana, Otto Clark, Premier Automotive Superstore, L.L.C. d/b/a Premiere Collision Center, Allstate Insurance Company & Effie H. Thomas.
    Nos. 2009-CA-0074, 2009-CA-0075.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 27, 2009.

      Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, LA, for Safeway Insurance Company of Louisiana.
    Chad A. Sullivan, Keogh, Cox & Wilson, Ltd., Baton Rouge, Louisiana, for Federated Mutual Insurance Company and Premier Automotive Superstore.

      (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

Bin this insurance subrogation claim, Plaintiff, Safeway Insurance Company (“Safeway”), appeals the judgment of the trial court which granted summary judgment to Defendants, Premier Automotive Superstore (“Premier”) and Federated Mutual Insurance Company (“Federated”). For the reasons set forth below, the decision of the trial court granting the motion for summary judgment is reversed and Safeway’s subrogation claim is remanded for further proceedings.

Relevant Facts and Procedural History

This matter originally arose out of a two-vehicle automobile accident that occurred on April 26, 2003, on Interstate 10 in Orleans Parish, Louisiana. On the day of the accident, Otto Clark (“Clark”), a part-time maintenance worker for Premier, was driving a Ford Ranger owned by Premier when the front tire of the vehicle suddenly came off, causing Clark to lose control of the vehicle, strike a guardrail, and cross into the path of an oncoming vehicle being driven by Effie Thomas (“Thomas”). As a result of the accident, Thomas and the occupants of Clark’s vehicle suffered from physical injuries.

At the time of the accident, Clark was insured under an automobile liability insurance policy issued by Safeway, and pursuant to this policy, Safeway made | ^payments to Thomas and some of the occupants of Clark’s vehicle in the amount of it policy limits of $20,000. Safeway subsequently filed a Petition for Subrogation wherein it demanded reimbursement from Premier and Federated, alleging that the policy issued to Premier by Federated was primary to the policy it issued to Mr. Clark.

Premier and Federated filed a Motion for Partial Summary Judgment arguing that the Ford Ranger was clearly a “loaner vehicle” within the meaning of La. R.S. 22:1291 and that statute specifically provides that the insurance of the driver is primary. Premier and Federated further argued that, pursuant to a “loaner agreement” signed by Clark, Clark agreed that his personal automobile insurance policy would be primary to any policy of insurance covering Premier. Without rendering oral or written reasons, the trial court granted the motion dismissing Safeway’s claims against Premier and Federated with prejudice. This appeal followed.

Law & Discussion

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Generally, material facts are those that potentially ensure or preclude recovery, paffect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E).

On appeal, Safeway argues that the trial court erred in granting the motion for summary judgment because there are genuine issues of material fact in dispute that preclude summary judgment. Safeway contends that there are genuine issues of material fact as to whether the loaner agreement even exists and whether Clark had permission to use the Ford Ranger at the time of the accident. Safeway further argues that the Ford Ranger is not a “loaner vehicle” pursuant to the definition contained in La. R.S. 22:1291. Finally, Safeway argues that even if the loaner agreement is valid and enforceable, nowhere in its terms does it provide that Clark’s insurance will be primary to any insurance issued by Federated.

Safeway first argues that a genuine issue of material fact exists as to whether the loaner agreement exists. In support of this argument, Safeway points to the fact that the “loaner agreement,” which is dated April 21, 2003, and is signed by Clark and Charles Sherman, Premier’s general manager, did not appear until four years after the accident. Moreover, in a July 2004 affidavit attached to a prior summary judgment filed by Federated in this case, Charles Sherman makes no mention of any loaner agreement. Rather, at that time, Sherman attested that Clark had no permission to use the vehicle, and that under the terms of Premier’s automotive liability insurance policy, Clark would only be insured under the Federated policy if the vehicle is being used with permission. Safeway finds this very suspicious and thus, questions whether the loaner agreement even exists.

| ¿The loaner agreement was attached as evidence to Premier and Federated’s motion for summary judgment and clearly exists. Although it may be suspicious that the agreement just recently came to light, Safeway has not challenged Clark’s consent to the agreement nor the authenticity of' the signatures contained therein. Therefore, we find no genuine issue of material fact as to the authenticity or validity of the loaner agreement.

Safeway also argues that a material fact is at issue regarding whether Clark had Premier’s permission to use the vehicle at the time of the accident. According to Safeway, this fact is material because it relates to whether the Federated policy provides any coverage for the accident, whether it be primary or secondary. Safeway points to a discrepancy in the affidavits in this case to show that the issue of whether Clark had permission to use the Ford Ranger is disputed by the parties. In his July 2004 affidavit, Sherman stated that Clark did not have permission to use the Ford Ranger at the time of the accident and, without such permission, there is no insurance coverage via the Federated policy, making Safeway the only insurer liable. In his July 2008 affidavit, Sherman states that even if Clark did have Premier’s permission to use the vehicle, the vehicle was clearly a “loaner vehicle” under 22:1291 and that statute clearly provides that the insurance of the driver is primary. In Clark’s affidavit, which is attached to Safeway’s opposition to the summary judgment, Clark states that he had permission to use the vehicle as a condition of his employment and was on a mission for his employer at the time of the accident.

This issue of whether Clark had permission to use the vehicle at the time of the accident is clearly contested and is material to the matter at hand. Thus, if Clark had no permission to use the vehicle at the time of the accident, then he | Rwould not be covered by the Federated policy at all. In that case, Premier and Federated would be entitled to summary judgment since only the Safeway policy would apply to the accident. However, if Clark did have permission to use the Ford Ranger at the time of the accident, then the Federated policy would provide coverage. In that event, Premier and Federated would be entitled to summary judgment only if 22:1291 is applicable to this case. Accordingly, the trial court erred in granting summary judgment and dismissing Premier and Federated from this case with this genuine issue of material fact in existence.

Although the existence of this genuine issue of material fact is enough to preclude summary judgment, Safeway also provides two additional arguments against summary judgment that relate to the loaner agreement between Premier and Clark. First, Safeway argues that the trial court erred in concluding that the loaner agreement was governed by 22:1291, since the Ford Ranger does not fit the definition of a loaner vehicle in the statute. Safeway further argues that if 22:1291 does not apply in this case, then there is a genuine issue of material fact as to ranking of coverage, since the terms of the loaner agreement do not provide that Clark’s personal automobile insurance policy will be primary.

These arguments have merit. First, despite the fact that the agreement is entitled a “loaner agreement” and the Ford Ranger is referred to as the “loaner vehicle,” the facts in the record support Safeway’s argument that the Ford Ranger that Clark was driving at the time of the accident does not fit the definition of a “loaner vehicle” as contemplated by 22:1291. 22:1291 defines a “loaner vehicle” as “any vehicle which is provided to an insured driver by a vehicle sales or service dealer for his temporary use as a replacement vehicle while the insured’s vehicle is being serviced or repaired.” La. R.S. 22:1291(B)(1). The statute also provides, | fi“[t]he term shall also mean any vehicle which is provided to an insured driver by a vehicle service or sales dealer for the purpose of allowing the driver to demonstrate or test drive the vehicle.” Id.

In his affidavit, Clark states that, as a condition of his employment, he was given a vehicle each night to take home, he was authorized to use the vehicle for his own use after working hours and, at the time of the accident, he was on a mission to pick up a floor buffer for the dealership. It is clear from this affidavit that Clark was not operating the Ford Ranger because his personal vehicle was being repaired or serviced or for purposes of test driving the vehicle. Rather, Clark was given use of the vehicle by Premier as a condition of his employment. Moreover, Clark was not a customer of Premier, but was, rather, a contract worker for Premier.

Premier and Federated argue that even though the Ford Ranger may not meet the definition of a “loaner vehicle” under 22:1291, this statute nevertheless mandates there be primary coverage under the Safeway policy in order to effectuate legislative will. We disagree. The legislative intent behind 22:1291 was to protect automobile dealerships and service providers from liability for accidents that occur when a customer, to whom which it has loaned a vehicle, is using the vehicle while his or her own vehicle is being repaired or while the customer is test driving the vehicle. Here, despite the fact that the loaner agreement refers to the Ford Ranger as the “loaner vehicle,” it was clearly not a “loaner vehicle” as contemplated by the legislature or 22:1291. Accordingly, because 22:1291 is not applicable to the circumstances of this case, the ranking of policies as mandated by that statute is not applicable, either.

|7FinaIly, Safeway argues that even if the court finds that the .loaner agreement is a valid and enforceable contract, nowhere in the “loaner agreement” does Clark agree that his insurance (through Safeway) will be primary to any policy issued by Federated. We agree.

The loaner agreement, which was allegedly signed by Clark provides only.

I have a valid insurance policy with company — Safeway, agent: ABC Insurance, phone: 242-0213, which will provide coverage for any and all damages, caused by or to the above described loaner vehicle.

Directly below this language, under the heading LOUISIANA LAW, is a recitation of statute 22:1291 as it pertains to ranking of coverage.

As Safeway correctly points out, nowhere in the agreement is any language stating that Clark agrees that the Safeway policy is primary to any other insurance policy which might have provided coverage to Clark while operating the vehicle, including the Federated Policy issued to Premier. All it provides is that Clark has a policy with Safeway that would provide coverage. Moreover, the inclusion of statute 22:1291 on the face of the agreement is of no moment, since the Ford Ranger does not fit 22:1291’s definition of a loaner vehicle and because Clark does not agree in the loaner agreement that 22:1291 is applicable to the contract or that his insurance policy will be primary. Thus, the loaner agreement does nothing to aid in the determination of which policy will be primary in this case.

Because there are no written reasons for judgment, nor transcripts in the record, it is unclear why the trial court granted Premier and Federated’s motion for Summary Judgment. However, we find that there are material facts at issue as to whether Clark had permission to use the vehicle at the time of the accident, whether the Ford Ranger was, in fact, a loaner vehicle as contemplated by 22:1291, |sand which policy, if any, is primary. These factual issues must be determined at trial.- Therefore, the trial court erred in granting Premier and Federated’s motion for summary judgment and dismissing them from this case. Accordingly, the trial court’s decision granting Premier and Federated’s motion for partial summary judgment is reversed and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . A separate suit filed by Camela Stimage, once of the passengers in Clark’s vehicle, against various defendants, including Safeway, Premier and Clark, is currently pending before the district court. That case has been consolidated with the instant matter and that record is part of the appellate record before us.


author: MAX N. TOBIAS, JR., Judge.

text:
    SUITES AT NEW ORLEANS, L.L.C., et al. v. LLOYD’S LONDON.
    No. 2009-C-0562.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 27, 2009.

      T. Jay Seale, III, Richard L. Traina, Seale & Ross, P.L.C., Hammond, LA, for Relator, Whitney National Bank.
    Caleb H. Didriksen, Diane R. Cosenza, Richard J. Garvey, Jr., Loyd J. Bourgeois, Jr., Amanda K. Wingfield, Didriksen Law Firm, New Orleans, LA, for Respondent, Certain. Underwriters at Lloyd’s, London.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

hThe issue before this court is whether an intervenor has standing to object to a party-defendant’s request for a jury trial after a hearing in the trial court where the party-defendant requesting the jury agreed that the case would proceed as a bench trial. For the reasons that follow, we hold that the intervenor has no standing to object to a party-defendant’s request for a jury trial and, accordingly, the trial court, did not err by refusing to strike the named party-defendant’s request for ,a jury.

The underlying facts of this case are not material to the issue before us. Suffice it to say that, the plaintiffs filed suit against the defendant, Certain Underwriters at Lloyd’s, London (“Lloyd’s”), asserting monies owed under a contract of insurance issue by Lloyd’s to the plaintiffs. Thereafter, Parish National Bank intervened in the suit seeking to protect its rights under the policy issued by Lloyd’s. Parish National Bank was subsequently merged into the Whitney National Bank, which now steps into Parish National Bank’s position as intervenor.

12At an on-the-record conference between all parties to the suit, it was agreed by the parties through their counsel that the matter would proceed as a bench trial. Thereafter, however, Lloyd’s filed a motion for jury trial that was granted by the trial court.

La. C.C.P. art. 1094 states that “[a]n intervener cannot object to the form of the action, to the venue, or to any defects and informalities personal to the original parties.” In Leger v. Kent, 01-2241, p. 4 (La.App. 4 Cir. 4/24/02), 817 So.2d 305, 308, we stated:

An intervenor takes the proceedings as he finds them. Taylor v. Tulane University of Louisiana, 97-0977 (La.App. 4 Cir. 9/17/97), 699 So.2d 1117; La. C.C.P. art. 1094. The intervenor cannot modify the basic procedural nature of the principal demand by way of intervention. Rubion Transfer & Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880, 883 (La.1960); La. C.C.P. art. 1094. The intervenor cannot retard the process of the main demand by way of the intervention. Succession of Delesdernier, 184 So.2d 37, 54 (La.App. 4 Cir.1966).

The Louisiana Supreme Court, in Parish v. Holland, 166 La. 24, 116 So. 580 (1928), stated:

Articles 494 and 495, C. P., provide that the plaintiff or defendant, to avail himself of the privilege, must pray for a jury before the case is set down for trial. When this is done, in a case that may be tried by a jury, and the required cash deposit is made and bond for jury costs is filed, the right to a trial by jury is absolute. In such cases it has been held that a trial by jury cannot be refused, even when the application is made for the purpose of delay. Reynold’s Curator v. Mahle, 12 La. 424 [ (1838) ]; Frellson v. McDonald & Coon, 15 La. Ann. 536 [ (1860) ].
| a An intervener’s rights are limited to the protection of his own interest. He must take the suit as he finds it. He cannot complain of the mode of procedure or object to the jurisdiction of the court or retard the principal suit. The reason why his rights are so limited is because he always has his remedy by a separate action to vindicate them. Code of Practice, arts. 391, 392; Cahn v. Ford, 42 La. Ann. 965, 8 So. 477 [ (1890) ].
We think the trial judge erred in setting aside his order for a trial of the case by a jury, on the motion of the intervener and over the objection of both the plaintiff and defendant, and by so doing the defendant was deprived of an absolute right, and was prejudiced thereby to the extent of requiring this court to set aside the judgment rendered in this cause and to remand the case.

Id., 166 La. at 27,116 So. at 580.

We find our law has not changed. No law or jurisprudence states or permits an intervenor to either assert a right to a trial by jury or object to the request by a party in the main demand for a trial by jury. To preserve and establish the same rights that an original party to a lawsuit has, a person that could otherwise intervene must file a separate suit against the other parties and thereafter move to consolidate his suit with the suit in which he could intervene. (Of course, whether the suits should be consolidated falls within the sound discretion of the trial court.)

For these reasons, we grant the application for supervisory writs filed by the Whitney National Bank. We affirm the judgment of then trial court declining to strike Lloyds’ request for a trial by jury.

SUPERVISORY WRIT GRANTED; JUDGMENT AFFIRMED.

LOMBARD, J., concurs in the result.

BELSOME, J., concurs in the result.

LOMBARD, J., concurs in the result.

hi agree with the result reached by the majority. However, the majority’s writ disposition grants the application for supervisory writ yet denies the requested relief. In my opinion, because we are affirming the trial court’s decision, which declined to strike Lloyd’s request for jury trial, Whitney National Bank’s application for supervisory writ should have been denied.

BELSOME, J., concurs in the result.

hi would deny the writ.

      . Now embodied in La. C.C.P. arts. 1732 and 1733.

      . Now embodied in La. C.C.P. arts. 1034 and 1037.