author: PICKETT, Judge.

text:
    Richard C. BENTLEY v. LCM CORPORATION, et al.
    No. 14-139.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Ed W. Bankston, Attorney at Law, Lafayette, LA, for Plaintiff-Appellant Richard C. Bentley.
    Michael D. Skinner, Skinner Law Firm, Lafayette, LA, for Defendant-Appellee LCM Corporation.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

hThe plaintiff, Richard C. Bentley, appeals the judgment of the trial court granting LCM Corporation’s (LCM) exception of lack of jurisdiction over the person and dismissing Bentley’s claims against LCM.

STATEMENT OF THE CASE

Bentley hired Danny Hubbard, an employee of LCM, a Virginia corporation, to provide expert analysis in a lawsuit against his neighbor. The contract, printed on LCM letterhead, was for a limited duration, after which Hubbard was to produce a written report. This lawsuit arises over allegations that LCM and Hubbard conspired with or provided information to Bentley’s opponent in the previous lawsuit in breach of their contract. Bentley originally filed his suit in federal court. The federal court dismissed Bentley’s claims for tortious breach of contract, attorney’s fees, reliance damages, and restitution. The federal court later found that Bentley’s remaining claims for breach of contract, expectation damages, and injunctive relief could not meet the $75,000.00 amount in controversy threshold to proceed in federal court, and the case was dismissed without prejudice. Bentley then filed this suit in state district court against Hubbard and LCM alleging breach of contract and that LCM negligently hired Hubbard. Hubbard filed an answer and an exception of lack of personal jurisdiction and also sought pauper status. On October 26, 2011, LCM filed exceptions of lack of personal jurisdiction, subject matter jurisdiction, improper venue, and ambiguity and vagueness and a motion to strike for failure to comply with the provisions of LLa.R.S. 13:3205, as Bentley had filed a Motion for Default Judgment against LCM on October 20, 2011.

A preliminary default judgment against LCM was signed in open court on November 8, 2011. Eventually, the parties agreed to set aside the preliminary default, and the trial court signed a judgment to that effect on March 26, 2012. The trial court granted the exception of improper venue and transferred the case to St. Martin Parish. Bentley appealed that decision to this court. We dismissed the appeal as an interlocutory order and permitted Bentley to file an application for supervisory writs. Bentley v. LCM Corp., 12-1443 (La.App. 3 Cir. 1/30/13), 2013 WL 358172 (unpublished). Subsequently, this court reversed the trial court, and the case returned to Lafayette Parish. Bentley v. LCM Corp., an unpublished writ disposition bearing docket number 13-227 (La. App. 3 Cir. 3/27/13).

When the case was transferred back to Lafayette Parish, Bentley moved that the court set a date for a jury trial, despite the pendency of LCM’s exceptions of lack of personal jurisdiction, ambiguity and vagueness, and failure to comply with the requirements of La.Code Civ.P. art. 891. LCM objected. The trial court upset the trial dates and set a hearing on the exceptions on September 3, 2013. Oral argument was waived and the parties submitted briefs. The trial court sustained the declinatory exception of lack of personal jurisdiction and dismissed the claims against LCM with prejudice. Bentley now appeals.

Hubbard has filed a pleading in this court asking for relief from the trial court’s imposition of sanctions because of discourteous language used in a filing to the court objecting to the final judgment in this matter. He has not appealed any judgment against him in the trial court, therefore this court is without authority to lagrant him any relief. The only issue before us is Bentley’s appeal of the dismissal of LCM for lack of personal jurisdiction.

ASSIGNMENTS OF ERROR

Bentley asserts one assignment of error: “The trial court erred by its judgment of no personal jurisdiction and dismissal of the lawsuit.”

DISCUSSION

A court’s lack of in personam jurisdiction is raised by declinatory exception. La.Code Civ.P. art. 925(A)(5). If the petition cannot be amended to cure the grounds for the exception, the plaintiffs action must be dismissed. La.Code Civ.P. art. 932. An appellate court reviews the legal determination of the trial court in an exception of personal jurisdiction using the de novo standard. Hillman v. Griffin, 13-648 (La.App. 3 Cir. 12/11/13), 128 So.3d 661. Any factual findings of the trial court, though, are reviewed under the manifest error standard of review. Id.

“[D]ue process requires only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). See also de Reyes v. Marine Mgmt. and Consulting, Ltd., 586 So.2d 103 (La.1991). The courts have crafted a two-prong test to determine whether a state may exercise personal jurisdiction over a nonresident. The first part of that test is whether there is a single act or actions by which the nonresident defendant “ ‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and |¿protections of its laws.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)). “Purposeful availment” means the nonresident defendant “should reasonably anticipate being haled into court” in the forum state. Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126, p. 6 (La.4/13/99), 731 So.2d 881, 885, cert. denied sub nom. Hollingsworth & Vose Co. v. Ruckstuhl, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999).

Once the plaintiff establishes minimum contacts, the reasonableness of personal jurisdiction is presumed, and the burden shifts to the nonresident defendant to show that the assertion of jurisdiction would be unreasonable in light of traditional notions of fair play and substantial justice. de Reyes, 586 So.2d 103. To determine this issue of fundamental fairness, we must determine “(1) the defendant’s burden; (2) the forum state’s interest; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies.” Ruckstuhl, 731 So.2d at 890.

The Louisiana legislature has adopted the Louisiana Long-Arm Statute, La.R.S. 13:3201, in order to extend the jurisdiction of the courts of this state to the full extent of the due process clause of the Fourteenth Amendment of the United States Constitution. It states, in pertinent part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
| b(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

In this case, Bentley contracted with Hubbard and LCM for litigation support in his suit against his neighbor. Their services included a review of documents, research of environmental statutes and codes, research of case law, and completion of a written opinion by a certain date. The contract purported to make the documents received from Bentley and prepared by LCM and Hubbard “Privileged Attorney Client Work Product.” The contract includes a provision that it is governed by Virginia law.

Bentley alleges that LCM and Hubbard breached the contract by failing to deliver a written report. Further, he alleges that Hubbard contacted his opponent in the underlying litigation and provided an affidavit in violation of the terms of the confidentiality agreement. The record shows that neither Hubbard nor LCM ever travelled to Louisiana in furtherance of the contract and that all work was done in Virginia. The trial court found that LCM does not regularly conduct business in Louisiana, and we find no error in that finding. Further, though one act is sufficient for minimum contacts such that in personam jurisdiction attaches, we find that the services provided by LCM do no indicate a “purposeful availment” of | (¡the courts of this state such that LCM “should reasonably anticipate being haled into court” in Louisiana. Ruckstuhl, 731 So.2d at 885.

CONCLUSION

The judgment of the trial court granting the declinatory exception of lack of personal jurisdiction and dismissing Bentley’s claims against LCM is affirmed.

AFFIRMED.

      . See Bentley v. Fanguy, 09-822, 09-1509 (La. App. 3 Cir. 10/6/10), 48 So.3d 381, writ denied, 10-2854 (La.2/25/11), 58 So.3d 457.

      . Hubbard has filed an application for supervisory writs with this court regarding his pauper status. See Bentley v. LMC Corp., an unpublished writ disposition bearing docket number 12-46 (La.App. 3 Cir. 1/13/12 and 4/26/12).


source: Caselaw Access Project

license: Public Domain

text:
    Adrienne STERMER v. ARCHER-DANIELS-MIDLAND COMPANY and American River Transportation Company.
    No. 14-147.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Lawrence N. Curtis, Lawrence N. Curtis, Ltd., (A Professional Law Corporation), Lafayette, LA, for Plaintiff-Appellant Adrienne Stermer.
    Koerner Law Firm, Louis R. Koerner, Jr., Houma, LA, for Plaintiff-Appellant Adrienne Stermer.
    Georges M. Legrand, Adam P. Sander-son, Mouledoux, Bland, Legrand & Brackette LLC, New Orleans, LA, for Defendants-Appellants American River Transportation Company Agrinational Insurance Company.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

LA maritime employer appeals the trial court’s awards of penalties and attorney fees to a seaman for the employer’s failure to pay maintenance and cure for almost two and one-half years after the seaman was injured. Finding no manifest error in the trial court’s determination that the employer’s failure to pay maintenance and cure more promptly was arbitrary and capricious, we affirm the award of penalties in the amount of $300,000.00 and the finding that an award of attorney fees is warranted, but reverse the award of $150,000.00 in attorney fees and remand to the trial court to receive evidence on the issue of attorney fees. We award $10,000.00 in attorney fees for work performed on appeal.

FACTS

Adrienne Stermer began working for American River Transportation Company (ARTCO) in November 2005 as a cook on motor vessels ARTCO operated on the Mississippi River transporting barges between New Orleans and St. Louis, Missouri. Ms. Stermer boarded the M/V COOPERATIVE ENTERPRISE on September 21, 2007. She performed her usual duties on the vessel twenty-four hours a day, seven days a week until October 18, 2007, when she left the vessel and returned home due to injuries she claimed to have suffered on October 9, 2007. By letter dated October 19, ARTCO notified Ms. Stermer that her “recent complaints did not manifest itself [sic] in the service of the vessel” and that it would not make voluntary payments for maintenance and cure. Then, by letter dated October 22, 2002, ARTCO notified Ms. Stermer that it had concluded its investigation into her alleged injury, that her “willful disregard for the truth ... demonstrate^] an unacceptable standard of conduct,” and that her employment was terminated.

CMS. Stermer filed suit against ARTCO, its insurer, Agrinational Insurance Company, and Archer-Daniels-Midland Company, owner of the M/V COOPERATIVE ENTERPRISE and ARTCO’s parent company. She alleged that she was a Jones Act seaman injured on October 9, 2007, while working in the service of the M/V COOPERATIVE ENTERPRISE, that the vessel was unseaworthy, that her dismissal by ARTCO was a retaliatory discharge, and that ARTCO unreasonably refused to pay her maintenance and cure after she was injured. She sought to recover lost wages, medical expenses, damages for pain and suffering, negligent and intentional infliction of emotional distress, punitive damages, and attorney fees.

On October 14, 2007, Ms. Stermer reported to Captain Thomas Jones that she had injured herself on October 9, when the M/V COOPERATIVE ENTERPRISE was facing up to a tow. According to her testimony and the Injury/Illness/Near Miss Report completed by Ms. Stermer on October 14, she was squatting in front of the lower half of the refrigerator in the galley cleaning condiment bottles when the vessel faced up to the tow. As she was squatting, she felt “a little jar to the boat,” lost her balance, and fell forward into the refrigerator. She tried to grab a shelf in the refrigerator with her right hand to steady herself, .but her fingers went through the rack, and her right hand was pushed backward. Her knees hit the floor at the bottom of the refrigerator, and she put her left hand down on the floor to brace her fall. Ms. Stermer rolled on her legs to the right such that she was sitting on her right ankle. She then got up, brushed herself off, and went back to work. She experienced pain and swelling in her hands and right ankle for which she took Advil.

|sMs. Stermer testified that she did not report the incident the day it occurred because she did not think she was hurt and because she was afraid she might lose her job. She further testified that she told David Glisson, an engineer on the vessel, about the incident on October 14 because her hands and right ankle continued to swell and she could no longer lace her shoes. She formally reported it after Mr. Glissson reported what she told him to Randoll Inness, the pilot who had been operating the vessel when she was injured. In her October 14 Injury/Illness/Near Miss Report, Ms. Stermer described where she was and how the accident happened, stating, in pertinent part:

[B]ending of the knees in front of refrigerator cleaning out steak sauce tray ... Facing up we pumped [sic]. I lost my balance fell to my knees grabbing the shelf, my [food handling] glove slipped off. My right hand was pushed backwards towards forearm. I have been using ice and taking Advil. Very little swelling now. But I don’t have much strength ... my fingers are swollen the top of my hand and completely around my wrist. A throbbing goes towards my elbow.

On October 17, ARTCO transported Ms. Stermer to shore and to the Western Baptist Hospital in Paducah, Kentucky, for evaluation and treatment. Her description of how she was injured and her complaints were consistent with the report she completed on the vessel. After examination and x-rays, Ms. Stermer was diagnosed with bilateral hand and wrist sprains and right ankle sprain. The emergency room doctor prescribed and fitted her with bilateral wrist splints and an ace wrap and air cast for her right ankle. The doctor also prescribed anti-inflammatory medication and pain medication. Ms. Stermer returned to the vessel and performed her duties but was relieved and transported to Baton Rouge. A [¿personal friend picked her up at the Baton Rouge airport and drove her home to Krotz Springs.

As noted by ARTCO, Ms. Stermer’s claim was “hotly contested” by Captain Thomas Jones and Bobby Joe Stark, other ARTCO employees who were in the galley at the time Ms. Stermer claimed she was injured. Both men repudiated her claim that she was injured October 9 when the vessel was facing up to its tow. Captain Jones testified that two bumps occurred when the vessel faced up and that he was facing in the same direction as Ms. Stermer at that time. He further related that Ms. Stermer was squatted in front of the refrigerator with the door open on the first bump. When asked if she lost her balance, he stated that he did not see her lose her balance, and he denied that she was “thrown” into the refrigerator, as she testified in her deposition and at trial. Captain Jones later testified that nothing happened to Ms. Stermer on the first or second bump. Captain Jones also testified that Ms. Stermer appeared normal and did not complain of pain after the two bumps.

Bobby Stark, a deckhand, was standing three feet from Ms. Stermer when she claimed to have been injured. He described the bump as “casual” and “nothing out of the ordinary.” He testified that “nothing ever occurred,” that Ms. Stermer did not lose her balance, and that she was not knocked down.

Ms. Stermer continued having problems with her right hand, wrists, and right ankle after leaving the M/V COOPERATIVE ENTERPRISE. On November 9, 2007, she sought treatment from Dr. Darrell Henderson, a plastic surgeon who devotes sixty percent of his practice to the treatment of the hand, wrist, or forearm. Ms. Stermer’s description of the October 9 incident and her complaints to |RPr. Henderson were the same she reported in her October 14 and 17 reports and to the emergency room physician at the Western Baptist Hospital.

Initially, Dr. Henderson prescribed conservative treatment for Ms. Stermer, and all her complaints but her right wrist improved. On January 16, 2008, an MRI of Ms. Stermer’s right wrist showed a sca-pholunate ligamentous tear with a widening of the space between the scaphoid and lunate bones in her right wrist. Dr. Henderson explained that a sprain is a tear or partial tear of a ligament which can heal and not cause more problems. He further explained that the ligament may also continue to tear and become a very serious problem as it did for Ms. Stermer. According to Dr. Henderson, edema present in the bones around the scapholunate area and the metacarpals was indicative of an acute injury to that area within a few months before the MRI.

Beginning in February 2008, Dr. Henderson considered fusing Ms. Stermer’s right wrist as a treatment option but initially tried steroid injections. The. injections did not give Ms. Stermer lasting relief, and she underwent surgery on May 11, 2010, to repair the scapholunate dissociation, a tear in the ligament between the scaphoid and lunate bones of her right hand that resulted in the rotation of these two bones. Dr. Henderson testified that the scapholunate dissociation did not predate Ms. Stermer’s October 9, 2007 injury because the scaphoid and lunate bones did not rotate on examination when he initially examined her. Dr. Henderson determined that she was at maximum medical cure in March 2011 and assigned her a 35% permanent impairment of her right hand and restricted her to light to medium work.

Though being continuously provided information concerning Ms. Stermer’s medical treatment and requests for payment of maintenance and medical treatment, | ¿including the surgery recommended by Dr. Henderson, ARTCO continuously refused to pay maintenance and cure until March 2010. It did not approve the surgery recommended by Dr. Henderson in February 2008 until May 2010, even though Dr. Larry Ferachi, an orthopedic surgeon who performed an IME of Ms. Stermer on June 8, 2009, at ARTCO’s request, agreed with Dr. Henderson’s recommendation for surgery. Dr. Ferachi agreed that Ms. Stermer’s description of the October 9, 2007 incident was consistent with the injury she described to him but disagreed with Dr. Henderson’s opinion that Ms. Stermer’s scapholunate dissociation did not predate October 9, 2007. In his opinion, August 2006 x-rays of her hand and wrist showed the condition existed at that time.

The trial court determined that Ms. Stermer proved she was injured as she claimed on October 9, 2007, and awarded her the following damages:

Loss of past employee benefits $ 25,740.00
Loss of future employee benefits $ 73,922.00
Loss of past wages $133,054.00
Loss of future wages $204,231.00
Past pain and suffering $100,000.00
Future pain and suffering $100,000.00

The trial court also determined that ART-CO’s refusal to pay Ms. Stermer maintenance and cure for two and one-half years was arbitrary and capricious and awarded her $300,000.00 in punitive damages and $150,000.00 in attorney fees. It dismissed her claims of unseaworthiness and retaliatory discharge, finding she did not prove those claims.

ARTCO appealed the judgment and assigned errors with the awards of punitive damages and attorney fees. Ms. Stermer answered ARTCO’s appeal and | Requested increases of all the amounts awarded to her by the trial court. After consideration of ARTCO’s assignments of error, she waived all her assigned errors but those in which she asserted that the awards of punitive damages and attorney fees should be increased. She also sought an award of attorney fees for work performed by her attorney on appeal.

STANDARD OF REVIEW

When reviewing general maritime claims, Louisiana appellate courts apply the manifest error standard of review. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89. Ms. Stermer’s claims for maintenance and cure, penalties, and attorney fees are general maritime claims; therefore, we cannot reverse a factual determination of the trial court unless no reasonable factual basis exists in the record for that determination and the record shows that the finding is clearly wrong or manifestly erroneous. Stobart v. DOTD, 617 So.2d 880 (La.1993). When reviewing a trial court’s factual determination, appellate courts focus on whether the finding is reasonable, not whether it is right or wrong. Id. If the trial court committed legal error, however, the appellate court performs a de novo review. Smith v. Tidewater, Inc., 04-195 (La.App. 4 Cir. 3/2/05), 918 So.2d 1, writs denied, 05-2361, 05-2441 (La.4/17/06), 926 So.2d 510, 513, respectively.

DISCUSSION

“Maintenance and cure” is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical services to seamen who become ill or injured during service to the ship. Recovery is not dependant [sic] upon negligence of the vessel or the owner and the burden of proof in seeking maintenance and cure is relatively light. Id. In addition, generally, a seaman need only prove that the injury arose during his service of the vessel. The seaman does not have to prove a causal connection to his duties. The right to maintenance and cure exists regardless of fault. The remedy is essentially curative in nature and is not intended as compensation for injury. The right to maintenance and cure arises from the | «employee-employer relationship. Thus, the liability of shipowner for maintenance and cure will be excused only by willful misbehavior or deliberate act of indiscretion on part of seaman. Domonter v. C.F. Bean Corp., 99-1204, pp. 17-18 (La.App. 5 Cir. 4/25/00), 761 So.2d 629, 640, writ denied, 00-1872 (La.9/29/00), 779 So.2d 354 (citations omitted).

Though a seaman’s burden of proof is relatively light, an employer is entitled to investigate a seaman’s claim for maintenance and cure and to rely on recognized defenses to deny benefits when appropriate. Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005), cert. denied, 549 U.S. 952, 127 S.Ct. 382, 166 L.Ed.2d 268 (2006). When investigating a seaman’s claim for maintenance and cure, the employer is entitled to “require corroboration of the claim.” Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.1987) (abrogated on other grounds by Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir.1995) (en banc)). An employer’s “failure to pay maintenance and cure ... is reasonable if a diligent investigation indicates that the seaman’s claim is not legitimate or if the seaman does not submit medical reports to document his claim.” Id. at 1360 (footnotes omitted). If an employer is lax in its investigation of a seaman’s claim, it has not satisfied its duty to investigate. Spell v. Am. Oilfield Divers, Inc., 98-498 (La. App. 3 Cir. 12/9/98), 722 So.2d 399, writs denied, 99-65, 99-74 (La.2/26/99), 738 So.2d 587, 589, respectively. Importantly, when an employer’s investigation of a seaman’s claim reveals that doubts or ambiguities exist as to whether the seaman is entitled to maintenance and cure, “they are resolved in favor of the seaman.” Cagle v. Harrah’s Lake Charles, L.L.C., 07-653, p. 12 (La.App. 3 Cir. 12/12/07), 974 So.2d 34, 43 (citing Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)).

|flIf an employer fails to properly investigate a claim for maintenance and cure or unreasonably rejects a claim after investigating the claim, the employer may be liable for compensatory damages that are a consequence of the failure to pay maintenance and cure. Vaughan, 369 U.S. 527, 82 S.Ct. 997. The employer may also be liable for punitive damages and attorney fees if it is “more egregiously at fault” in denying a proper claim for maintenance and cure. Morales, 829 F.2d at 1358. This higher degree of fault has been explained as “callous and recalcitrant, arbitrary and capricious, or -willful, callous and persistent.” Id. An employer’s failure or refusal to consider the medical evidence of an injury or illness submitted by a seaman in support of his claim for maintenance and cure is grounds for concluding the employer’s failure to institute maintenance and cure is arbitrary and willful. Holmes v. J. Ray McDermott & Co., Inc., 734 F.2d 1110 (5th Cir.1984).

ARTCO first argues that we must conduct a de novo review because the trial court committed legal error. Citing Morales, ARTCO claims that because Ms. Stermer did not report her injury when it occurred, (2) its investigation of her claim revealed evidence that no accident occurred on October 9, 2007, and (3) Ms. Stermer was not injured as she claimed, it cannot be held liable for penalties and attorney fees. As discussed below, these claimed errors lack merit. Accordingly, the trial court did not commit legal error, and we review the trial court’s findings of fact for manifest error.

Review of the record shows that ARTCO considered only evidence that indicated the incident Ms. Stermer reported did not occur before denying her claim |infor maintenance and cure. Mark Bartlett, an ADM adjustor in charge of Ms. Stermer’s claim, relied on the statements of employees that nothing happened in the galley on October 9, 2007, without giving due consideration to evidence corroborating the claimed incident, namely: (1) Ms. Stermer was on the vessel twenty-four hours a day for nineteen days straight before she was injured; (2) she performed her job duties as usual before the claimed incident without complaint and without any physical signs of injury; (3) two bumps occurred when the vessel faced up to its tow on October 9, as stated by Ms. Stermer; (4) Captain Jones and Mr. Starks corroborated Ms. Stermer’s position and location at the time she claimed to be injured; (5) the stability and/or instability of Ms. Stermer in the squatting position when she claimed to have lost her balance; (6) Ms. Stermer continued to perform her regular job duties after she claimed to have been injured before seeking medical attention and after she received medical treatment; (6) a statement obtained from ARTCO employee, Tony Morth, on October 18 indicated that Ms. Stermer suffered some injury while on the M/V COOPERATIVE ENTERPRISE; and (7) medical evidence ARTCO received beginning October 17, 2007, and continuing thereafter, corroborated Ms. Stermer’s claim that she suffered injuries while aboard the M/V COOPERATIVE ENTERPRISE.

Therefore, while ARTCO had evidence indicating Ms. Stermer was not injured as she claimed, it also had evidence supporting her claim. Moreover, Mr. Bartlett admitted he did not know that when doubt or ambiguity exists as to the validity of a seaman’s claim, the law requires that the claim be resolved in favor of the seaman. This admission together with ARTCO’s termination of Ms. Stermer ^shortly after she reported the incident corroborates that its investigation of the incident ended almost immediately after Mr. Bartlett reviewed Captain Jones’s and Mr. Starks’s statements without giving sufficient consideration to other facts surrounding the incident and the medical evidence that corroborated her claim. The totality of the evidence leads to the conclusion that once ARTCO had evidence that no accident occurred, it did not consider evidence corroborating Ms. Stermer’s claim that she was injured October 9. Under these facts, we find that ARTCO’s investigation of Ms. Stermer’s claim was neither diligent nor reasonable and, therefore, find no manifest error in the trial court’s conclusion that ARTCO was arbitrary and capricious in denying Ms.. Stermer’s claim. See Spell, 722 So.2d 399.

ARTCO further argues that it properly denied maintenance and cure and that its denial of Ms. Stermer’s claim does not warrant penalties and attorney fees because she did not reveal complaints regarding her hands wrist, fingers, and forearms on her December 2005 pre-em-ployment medical history form though she reported having pain and/or numbness in those areas for four years when she sought treatment in August 2006 for carpal tunnel syndrome.

When an employer’s investigation reveals a “causal link” between an injury a seaman claims occurred while in the service of the employer’s vessel and a pre-existing disability or illness, the employer may not be liable for maintenance and cure under certain conditions. McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547 (5th Cir.1968), cert. denied, 393 U.S. 894, 89 S.Ct. 223, 21 L.Ed.2d 175 (1968). If the employer did not require a pre-employment medical examination, the seaman must disclose a pre-existing condition or injury only if he believes the employer would consider it important. Id. If a pre-employment physical is required, the denial of maintenance | ^and cure is proper only if the employer proves.that the seaman intentionally or fraudulently concealed a pre-existing condition or injury. Id.

No pre-employment medical examination was required by ARTCO for Ms. Stermer, and ARTCO has not presented any evidence showing she believed ART-CO would have considered her complaints regarding any pain and/or numbness in her hands, wrists, fingers, and forearms that she experienced before October 2005 important. Indeed, she had been performing her duties as a cook on a vessel for another company with no problems when she applied for employment with ARTCO, and she performed the same duties for two years with no problems for ARTCO. Furthermore, no evidence indicates that Ms. Stermer intentionally and fraudulently concealed a pre-existing condition with her right hand from ARTCO.

ARTCO’s consistent refusal to pay maintenance and cure was arbitrary and capricious and resulted in Ms. Stermer having to sell her vehicle and borrow money to fund necessary repairs to her home and her basic living expenses. Accordingly, we find no error with the trial court’s conclusion that ARTCO’s arbitrary and capricious refusal to pay Ms. Stermer maintenance and cure warrants the imposition of punitive damages and attorney fees.

ARTCO contends the trial court’s award of attorney fees without evidence of the work expended by Ms. Stermer’s counsel in this matter was error. This court determined in Spell, 722 So.2d 399, that evidence of what is an appropriate award for attorney fees for a maintenance and cure claim is required. The Spell court also determined that evidence on the issue of attorney fees is not properly presented until a finding that an award of attorney fees is due has been made. Accordingly, we remand this matter to allow the trial court to receive evidence of |iawhat an appropriate award of attorney fees is in this case and to award attorney fees commensurate with said evidence. For these reasons, consideration of Ms. Stermer’s request for an increase of the attorney fees awarded by the trial court is not properly before this court.

With regard to attorney fees for work performed on appeal by Ms. Stermer’s attorneys, the record demonstrates that Ms. Stermer’s attorneys have exercised a great amount of skill and have diligently prepared for ARTCO’s appeal of this case. Counsel’s legal work before this court has been excellent. We award Ms. Stermer $10,000.00 in attorney fees for work done on appeal. We reject ARTCO’s argument that attorney fees for work performed on this appeal by Ms. Stermer’s attorneys cannot be awarded because the work is not directed to “securing maintenance and cure.”

The Supreme Court determined in Vaughan, 369 U.S. at 530, 82 S.Ct. at 999 (quoting Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932)), that the recovery of maintenance and cure may include “ ‘necessary expenses’ ” including attorney fees. If a seaman must pay attorney fees to protect on appeal her award of expenses that were required to initially secure her maintenance and cure, the effect would be to reduce her recovery of maintenance and cure. Accordingly, we conclude attorney fees are properly awarded for work performed on this appeal.

Ms. Stermer requests an increase in her award of punitive damages. On appeal, the abuse of discretion standard of review is utilized to review whether an award of punitive damages is too high or too low. Mosing v. Domas, 02-12 (La.10/15/02), 830 So.2d 967. An award of punitive damages is fact intensive and “the unique province of the jury or trier of fact.” Id. at 974. Historically, these factors | uhave been considered when reviewing an award of punitive damages: “(1) the nature and extent of the harm to the plaintiff; (2) the wealth or financial situation of the defendant; (3) the character of the conduct involved; and (4) the extent to which such conduct offends a sense of justice and propriety.” Id. at 977. “[Exemplary damages serve a threefold purpose: punishment, specific deterrence, and general deterrence. The damages awarded ... must be reasonable in amount and sufficient to satisfy these three objectives, but should be no more than that required to meet these objectives.” Id. at 978.

Ms. Stermer acknowledges that the trial court considered the hardship and harm she experienced as a result of ARTCO’s refusal to promptly pay her maintenance and cure but contends the trial court did not properly consider the remaining factors. She specifically urges that the trial court should have considered the financial situation of ADM, ARTCO’s parent company. We have considered the evidence Ms. Stermer presented on the factors enumerated in Mosing and the objectives of exemplary damages. As pointed out by ART-CO, no evidence of its profits is in the record. Additionally, while evidence of ADM’s profits is in the record, Ms. Stermer’s claims against ADM were dismissed by the trial court, and she did not appeal the dismissal of those claims. Notably, no evidence shows the relation between ART-CO’s earnings and profits and ADM’s profits. For these reasons, we find no abuse of discretion in the trial court’s $300,000.00 award for punitive damages.

DISPOSITION

For the reasons discussed herein, the trial court’s determinations that Ms. Stermer is entitled to awards of penalties and attorney fees and an award of $300,000 in punitive damages are affirmed. The award of $150,000 in attorney 11Rfees is reversed, and the matter is remanded for the trial court to consider the traditional factors pertinent to an award of attorney fees and determine the appropriate amount of attorney fees for work performed by Ms. Stermer’s counsel in the trial court. Ms. Stermer is awarded $10,000 in attorney fees for work performed by her attorneys on appeal. All costs of this appeal are assessed to American River Transportation Company and Agrinational Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

      . Ms. Stermer completed a revised report on October 17 and/or 18 due to technical errors. In those reports, she essentially restated what she stated in her October 14 report.

        . Holmes’s holding that a seaman is entitled to punitive damages for an employer's unreasonable refusal to pay maintenance and cure was overruled by Guevara, 59 F.3d 1496, but in Atlantic Sounding Co., Inc. v. Townsend, 496 F.3d 1282 (11th Cir.2007), aff'd 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009), the Eleventh Circuit abrogated the holding in Guevara.

      . In a statement dated October 17, 2010, Mr. Morth stated that he assisted Ms. Stermer with her bags and getting into a cab when she was going to Western Baptist Hospital because of pain in her wrists, knees, and ankles.


author: THIBODEAUX, Chief Judge.

text:
    STATE in the Interest of K.L.A.
    No. 14-153.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Emma J. DeVillier, Assistant Attorney General Colin Clark, Baton Rouge, LA, for Appellant-State of Louisiana.
    John F. DeRosier, District Attorney-14th Judicial District, Carla Sue Sigler, Assistant District Attorney-14th Judicial District, James Kenneth Yelverton, Assistant District Attorney-14th Judicial District, Karen McClellan, Assistant District Attorney-14th Judicial District, Cynthia Lea Guillory, Assistant District Attorney-14th Judicial District, Lake Charles, LA, for Appellant-State of Louisiana.
    Mike K. Stratton, Public Defender’s Office, Lake Charles, LA, for Appellee-K.L.A.
    Harry Pierre Fontenot, Jr., Sulphur, LA, for Appellee-K.L.A.
    Dalonshia Thomas-Jordan, Assistant District Attorney-14th Judicial District, Lake Charles, LA, for Appellant-State of Louisiana.
    Edward King Alexander, Jr., Necole M. Williams, Lake Charles, LA, for Appellee-K.L.A.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

| TA juvenile adjudicated delinquent of aggravated incest filed a Motion for Injunction/Cease and Desist Order/Stay Order, asserting that juveniles are not subject to the sex offender registration requirements under La.R.S. 32:412(1) and La.R.S. 40:1321(J), which require sex offenders to obtain driver’s licenses and identification cards denoting their sex offender status. The trial court granted the juvenile’s motion, reasoning that the requirements of La.R.S. 32:412(1) and La.R.S. 40:1321(J) directly conflict with the community notification exemptions afforded to juveniles under La.R.S. 15:542.1(C). For the following reasons, we affirm the trial court’s judgment.

I.

ISSUE

We shall consider whether a juvenile that is required to register as a sex offender under La.R.S. 15:542 et seq. is also required under La.R.S. 32:412(1) and La. R.S. 40:1321(J) to obtain a driver’s license and identification card that identifies the juvenile as a sex offender.

II.

FACTS AND PROCEDURAL HISTORY

On June 21, 2012, the juvenile, K.L.A., was adjudicated delinquent on the charge of aggravated incest, a violation of La.R.S. 14:78.1. The trial judge ordered that K.L.A. be committed to the custody of the Louisiana Department of Public Safety and Corrections for a period of two years. The trial judge subsequently modified the order and released K.L.A. to parental custody from the ^Office of Juvenile Justice, with the requirement that he update his sex offender registration every ninety days from the date of initial registration. On July 19, 2013, Detective Sutherland of the Calcasieu Parish Sheriffs Office informed K.L.A. that he must obtain a driver’s license and/or an identification card containing the words “sex offender” by July 22, 2013 in order to comply with La.R.S. 32:412(1) and La.R.S. 40:1321(J). In response, K.L.A. filed a Motion for Injunction/Cease and Desist Order/Stay Order. He argued that La.R.S. 32:412(1) and La. R.S. 40:1321(J) do not explicitly include juveniles and are in direct conflict with the community notification exemptions afforded to juveniles under La.R.S. 15:542.1(C). In addition, K.L.A. argued that La.R.S. 32:412(1) and La.R.S. 40:1321(J) are unconstitutionally vague, overbroad, overinclu-sive, and amount to cruel and unusual punishment when applied to juveniles. After a hearing, the trial judge granted K.L.A.’s Motion for Injunction/Cease and Desist Order/Stay Order, reasoning that since the requirements of La.R.S. 32:412(1) and La.R.S. 40:1321(J) amount to community notifications, they do not apply to adjudicated juveniles who are required to register as sex offenders but are exempt from community notifications under La. R.S. 15:542.1(C). The State of Louisiana now appeals the trial court’s judgment.

III.

STANDARD OF REVIEW

This case involves the interplay between the sex offender registration and notification requirements under La.R.S. 15:542 et seq. and the sex offender driver’s license and identification card requirements under La.R.S. 32:412(1) and La.R.S. 40:1321(J). As this is an issue of statutory interpretation, it is a question of |slaw subject to a de novo standard of review. La. Mun. Ass’n v. State, 04-227 (La.1/19/05), 893 So.2d 809; Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241.

IV.

LAW AND DISCUSSION

On appeal, the State argues that the driver’s license and identification requirements under La.R.S. 32:412(1) and La.R.S. 40:1321(J) explicitly apply to adjudicated juveniles given that the requirements apply to all sex offenders required to register under La.R.S. 15:542 et seq. We disagree.

In interpreting these statutes, we are bound by long-standing rules of statutory interpretation:

The starting point in the interpretation of any statute is the language of the statute itself. [State v. Johnson, 03-2993, p. 11 (La.10/19/04), 884 So.2d 568, 575; Theriot v. Midland Risk Ins. Co., 95-2895, p. 3 (La.5/20/97), 694 So.2d 184, 186]. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. Civ.Code. art. 9; Johnson, 884 So.2d at 575. However, “when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. Civ.Code art. 10; Fontenot v. Reddell Vidrine Water Dist., 02-0439 (La.1/14/03), 836 So.2d 14, 20. Moreover, “when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.” La. Civ.Code art. 12.
It is also well established that the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. Johnson, 884 So.2d at 576; State v. Campbell, 03-3035 (La.7/6/04), 877 So.2d 112, 117. Thus, legislative language will be interpreted on the assumption the Legislature was aware of existing statutes, well ^established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view. Johnson, 884 So.2d at 576-77; Campbell, 877 So.2d at 117. It is equally well settled under our rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. La. Civ.Code art. 13; City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548, [ (La.10/1/07), 986 So.2d 1].

M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, pp. 13-14 (La.7/1/08), 998 So.2d 16, 27.

Following the rules of statutory interpretation, we must first examine the plain language of the statutes in question. Louisiana Revised Statutes 32:412(1) states, in pertinent part:

I. (1) The Louisiana driver’s license, regardless of its class, issued to any person who is required to register as a sex offender pursuant to R.S. 15:542 and R.S. 15:542.1 shall contain a restriction code which declares that the license holder is a sex offender. The secretary of the Department of Public Safety and Corrections shall comply with the provisions of this Subsection and the driver’s license shall include the words “sex offender” which shall be orange in color.
(5) The provisions of this Subsection shall apply to all registered sex offenders regardless of the date of conviction.

Louisiana Revised Statutes 40:1321(J) provides similar requirements in regards to mandatory identification cards for registered sex offenders:

J. (1) Any person required to register as a sex offender with the Louisiana Bureau of Criminal Identification and Information, as required by R.S. 15:542 et seq., shall obtain a special identification card issued by the Department of Public Safety and Corrections which shall contain a restriction code declaring that the holder is a sex offender.
_k- • • •
(3) The provisions of this Subsection shall apply to all sex offenders required to register pursuant to R.S. 15:542 et seq., regardless of the date of conviction.

As K.L.A. was adjudicated delinquent of aggravated incest, a violation of La.R.S. 14:78.1, he is required to register as a sex offender under La.R.S. 15:542(A)(3)(f). As La.R.S. 32:412(1X1) and La.R.S. 40:1321(J)(1) both state that any person required to register as a sex offender under La.R.S. 15:542 et seq. shall be required to comply with the driver’s license and identification card requirements, one could reasonably interpret the statute to apply to adjudicated juveniles like K.L.A. However, both La.R.S. 32:412(I)(5) and La. R.S. 40:1321(J)(3) also state that sex offenders required to register under La.R.S. 15:542 et seq. must comply with the driver’s license and identification requirements “regardless of the date of conviction.” Thus, it is reasonable to interpret the driver’s license and identification requirements only apply to registered sex offenders who have been convicted of a crime. Given that the Louisiana Supreme Court has explicitly stated that juvenile adjudications are not convictions, one could just as easily find that the registration requirements under La.R.S. 32:412(1) and La.R.S. 40:1321(J) do not apply to adjudicated juveniles like K.L.A.

As the statutory language of La.R.S. 32:412(1) and La.R.S. 40:1321(J) gives rise to two conflicting interpretations in regards to whether their requirements apply to adjudicated juveniles, the statutes are ambiguous on their face. As such, we must look beyond the plain language to find the interpretation that best conforms to the purpose of the laws. Considering criminal statutes are interpreted with lenity in favor of the accused and “should be so interpreted as to be in harmony with, preserve, and effectuate the manifest intent of the | filegislature[,]” we reason that La.R.S. 32:412(1) and La.R.S. 40:1321(J) should not apply to juveniles adjudicated delinquent. State v. Brown, 03-2788, p. 6 (La.7/6/04), 879 So.2d 1276, 1280.

First, the legislature never intended for juveniles to be subject to these requirements. Louisiana Children’s Code Article 884.1(A)(6) states that when a child is adjudicated delinquent of aggravated incest, the court shall provide the child with written notice of the sex offender registration requirements. Louisiana Children’s Code Article 884.1(B) provides the actual form for the notice, which outlines all of the registration requirements for adjudicated juveniles. Notably, La.Ch.Code art. 884.1, which was enacted in 2010, does not include the driver’s license or identification card registration requirements of La. R.S. 32:412(1) and La.R.S. 40:1321(J), which were enacted in 2006. See 2006 La. Sess. Law Serv. Act 668 (S.B. 612) (La. 2006); 2010 La. Sess. Law Serv. Act 594 (H.B. 702) (La. 2010). Considering legislative language is interpreted with the assumption that the legislature is aware of existing statutes, it is assumed that the legislature was aware of the registration requirements under La.R.S. 32:412(1) and La.R.S. 40:1321(J) when it drafted La.Ch.Code art. 884.1. Thus, the explicit exclusion of these requirements from adjudicated juveniles under La.Ch. Code art. 884.1 must be considered purposeful.

Beyond legislative intent, applying the requirements of La.R.S. 32:412(1) and La. R.S. 40:1321(J) to adjudicated juveniles creates inherent discord with the other statutory provisions regarding juvenile sex offender registration and notification. Louisiana Children’s Code Article 412(A) stipulates that “[r]ecords and reports concerning all matters or proceedings before the juvenile court, except traffic violations, are confidential and shall not be disclosed except as expressly 17authorized by this Code.” This mandate of confidentiality under Article 412 applies equally to the sex offender registration requirements for juveniles. Specifically, La.R.S. 15:542.1(C) states that “[a]ny juvenile required to register in accordance with the provisions of this Chapter shall be exempt from any notification requirements of this Section” unless they provide recreational instruction to persons under the age of seventeen. Considering the driver’s license and/or identification card is the primary means of identification in the community and is oftentimes a necessity to perform everyday acts such as purchasing goods, opening financial accounts, or buying or leasing real estate, to require juveniles to have the status of sex offender written on their driver’s license or identification card would completely undermine the confidentiality requirements and notification exemptions mandated by the Louisiana Children’s Code and the Louisiana Revised Statutes. In order to resolve this discord in the law and preserve the manifest intent of the legislature, it follows that the registration requirements of La.R.S. 32:412(1) and La. R.S. 40:1321(J) cannot apply to juveniles adjudicated delinquent. As such, the trial court did not err in finding that K.L.A., as a juvenile adjudicated delinquent of aggravated incest, was not required to obtain a driver’s license or State ID that designates his status as a sex offender. We need not consider the constitutional , arguments raised by K.L.A. because all issues have been disposed of on non-constitutional grounds. La. Mun. Ass’n, 893 So.2d 809.

V.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

EZELL, J., concurs.


author: AMY, Judge.

text:
    STATE of Louisiana v. Jared J. TIDWELL.
    No. 14-123.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    See also, 139 So.3d 1251, 2014 WL 2515223.
    Charles G. Gravel, Gravel, Cespiva, & Wilkerson, Alexandria, LA, for Defendant/Appellant Jared J. Tidwell.
    John R. Flynn, Jr., Alexandria, LA, for Defendant/Appellant Jared J. Tidwell.
    Charles A. Riddle, III, District Attorney, Michael F. Kelly, Assistant District Attorney, Marksville, LA, for Appellee State of Louisiana.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

hThe defendant was convicted of obstruction of justice, a violation of La.R.S. 14:130.1. Thereafter, the State filed a habitual offender bill of information, seeking to have the defendant adjudicated a fourth felony offender. However, the State later filed a motion to reduce the habitual offender bill to third felony offender status. The trial court granted the State’s motion, adjudicated the defendant a third felony offender, and imposed a habitual offender sentence of thirty years at hard labor, without the benefit of probation or suspension of sentence. The defendant appeals. For the following reasons, we affirm with instructions.

Factual and Procedural Background

The defendant, Jared J. Tidwell, was convicted of obstruction of justice, a violation of La.R.S. 14:130.1. The facts of the defendant’s underlying conviction are discussed in State v. Tidwell, 14-122 (La. App. 3 Cir.06/04/14), 139 So.3d 1251, 2014 WL 2515223. Prior to the defendant’s sentencing, the State instituted habitual offender proceedings pursuant to La.R.S. 15:529.1(A)(4)(b), alleging that the defendant was a fourth felony offender. Subsequently, the State filed a “Motion to Reduce Habitual Offender Bill to Third Felony Offender Status to be Sentenced Under La.R.S. 15:529.1(A)(3)(a).” The trial court granted the State’s motion, adjudicated the defendant as a third felony offender, and imposed a habitual offender sentence of thirty years at hard labor without the benefit of probation or suspension of sentence.

The defendant appealed his conviction for obstruction of justice in State v. Tidwell, 14-122 (La.App. 3 Cir.06/04/14), 139 So.3d 1251, 2014 WL 2515223, and his habitual offender conviction in the instant appeal. The defendant has alleged no assignment of error, |¡>but asserts that, if his conviction for obstruction of justice is overturned, his habitual offender adjudication must be vacated as a matter of law.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After performing such a review, this court notes one such error requiring correction of the sentencing minutes. Our review of the minutes indicates that the defendant’s sentence was imposed without the benefit of parole. However, the sentencing transcript reveals that, although the trial court originally imposed the defendant’s habitual offender sentence without the benefit of parole, probation, or suspension of sentence, the trial court later corrected the sentence to delete the restriction on parole. See La.R.S. 15:529.1(G). It is well-settled that when the minutes and the transcript conflict, the transcript prevails. State v. Dorsey, 10-1021 (La.App. 3 Cir. 3/9/11), 58 So.3d 637. Accordingly, the trial court is ordered to correct the minutes of sentencing within ten days of the date of this opinion.

Habitual Offender Sentence

In State v. Tidwell, 14-122 (La.App. 3 Cir.06/04/14), 139 So.3d 1251, 2014 WL 2515223, this court affirmed the defendant’s conviction for obstruction of justice. The defendant argues that, if his underlying conviction is vacated, his habitual offender sentence must also be vacated. See State v. Petty, 596 So.2d 421 (La.App. 4 Cir.1992). However, the defendant’s appeal of his underlying conviction was unsuccessful. Thus, the situation contemplated by the defendant’s argument has not come to pass.

Accordingly, we find no merit to the defendant’s assertion on appeal.

|,.DECREE

For the foregoing reasons, the habitual offender adjudication and sentence of the defendant, Jared J. Tidwell, are affirmed. The trial court is ordered to correct the sentencing minutes within ten days of the date of this opinion.

AFFIRMED WITH INSTRUCTIONS.


author: EZELL, Judge.

text:
    Nicholas WILLIAMS, et al. v. USAGENCIES CASUALTY INS. CO.
    No. 14-185.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      William Howard Justice, Baton Rouge, LA, for DefendanVAppellant, USAgencies Casualty Ins. Co.
    Timmy James Fontenot, Mamou, LA, for Plaintiffs/Appellees, Nicholas Williams, Bobby Giroir.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

B USAgencies Casualty Insurance Company, Inc. appeals a trial court judgment granting summary judgment in favor of Nicholas Williams and Bobby Giroir. The plaintiffs instituted a class action lawsuit seeking damages and penalties when USA-gencies failed to pay for collision damages under its contract of automobile insurance. USAgeneies filed a motion for summary judgment alleging that its policy excluded coverage for first-party property damage while driving with a blood alcohol content above the legal limit. The plaintiffs filed a motion for partial summary judgment claiming the exclusion was unenforceable. The trial court denied USAgeneies’ motion for summary judgment and granted the plaintiffs’ motion for summary judgment, declaring that the subject policy exclusion is void and unenforceable because it is against public policy.

FACTS

On August 26, 2012, Nicholas Williams was operating a 2005 Chevrolet Avalanche when he was involved in a single-car collision and cited for driving while intoxicated. The automobile was a total loss. Mr. Williams filed a claim for damages to the truck under his own policy of insurance with USAgeneies held by Bobby Giroir and himself, as a permitted driver. USAgen-cies denied coverage due to a policy exclusion for blood alcohol content above the legal limit. The plaintiffs filed suit for damages to the truck and for emotional damages due to the financial strain of paying a bank note for collateral that no longer exists.

After answering and filing several exceptions, USAgeneies filed a motion for partial summary judgment seeking a determination by the trial court that the | .¡exclusion in its insurance policy is enforceable. The plaintiffs also moved for partial summary judgment requesting a finding that the exclusion is unenforceable as ambiguous, vague, and/or against public policy.

To oppose USAgeneies’ motion and support their motion, the plaintiffs submitted several affidavits. One of the affidavits, from a finance manager of a Lafayette car dealership, states that the majority of all automobiles sold at the dealership are financed. There are affidavits from presidents and vice presidents of three different banks, all attesting that as the loan officers for their respective institutions, they would not finance any automobile with an exclusion as it is written in USAgeneies’ policy. USAgeneies filed a motion to strike these affidavits.

After a hearing on the motions for summary judgment and the motion to strike, the trial court denied USAgeneies’ motion to strike and for summary judgment. The trial court granted the plaintiffs’ motion for summary judgment finding that the subject policy exclusion is void and unenforceable because it is against public policy. USAgeneies then filed the present appeal seeking reversal of the trial court’s denial of its partial motion for summary judgment and the granting of the plaintiffs’ motion for partial summary judgment. USAgeneies also seeks reversal of the trial court’s denial of its motion to strike the four affidavits.

AFFIDAVITS

We must first address USAgeneies’ contention that the four affidavits are inadmissible. USAgeneies claims the affidavits are immaterial, irrelevant, and speculative. The plaintiffs offered the affidavits in support of their argument that the USAgen-cies policy exclusion is unenforceable claiming that it is against public policy because it “stifles commerce.”

^Louisiana Code of Civil Procedure Article 967 permits the use of affidavits for the purposes of supporting or opposing a motion for summary judgment if they are made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that the affiant is competent to testify to the matters set forth in the affidavit. However, affidavits containing “ ‘[mjere conclusory allegations, improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact.’ ” Richard v. Liberty Mut. Ins. Co., 13-26, p. 6 (La. App. 3 Cir. 10/9/13), 123 So.3d 345, 348 (quoting Sears v. Home Depot, USA, Inc., 06-201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747 (La.1/26/07), 948 So.2d 168) (alteration in original).

The affidavit from the finance manager of a dealership states that 75% of the automobiles at that dealership are financed. He also concludes that this number could be as high as 90% on an industry-wide level. The other three affidavits are from loan officers who state that they would not finance any automobile with an exclusion as written in the USAgencies policy.

These conclusory statements are unsupported by sufficient admissible facts. None of the affidavits indicate that financing has been denied based on the contents of an insurance policy. Even in the present case, financing was provided when such an exclusion was in the policy. In addition to this exclusion, there are other exclusions in most policies under the comprehensive and collision sections, yet the financing of vehicles has continued. Furthermore, the statements are speculative as to what may occur in the future. We find these conclusory statements of these affiants are no more than unsupported speculation that financing would not be provided if this particular exclusion was included in automobile policy. Therefore, these affidavits are not sufficient to support or oppose a motion for summary | Judgment, and the trial court erred in relying on them when ruling on the motion for summary judgment.

SUMMARY JUDGMENT

“The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment.” Collins v. Randall, 02-209, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 352, 354.

Louisiana Code of Civil Procedure Article 966, which governs summary judgment proceedings, was significantly amended in both the 2012 and 2013 legislative sessions. These amendments affect the burden of proof elements of the Article. At the time of this hearing, August 2, 2013, the 2013 version of Article 966 was in effect. After the amendment by 2013 La. Acts No. 391, § 1, Article 966(F)(l)(emphasis supplied) now provides that “A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.” Furthermore, Article 966(B)(2) now provides that evidence considered by the trial court must be “admitted for purposes of the motion for summary judgment.” Article 966(F)(2) now provides that “[ejvidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection.” Furthermore, “[ojnly evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.” La.Code Civ.P. art. 966(F)(2).

The amendments did not change the burden of proof applicable to a motion for summary judgment as set forth in Article 966(C)(2):

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

It is well-settled that “[ajppellate review of the granting of a motion for summary judgment is de novo using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La.7/2/12), 94 So.3d 750, 755 (citations omitted). In this matter, .the evidence relied on by the litigants was attached to their motions for summary judgment or memorandum, so they complied with, the evidentiary changes in Article 966.

USAgencies seeks review of both the grant of summary judgment in favor the plaintiffs and the denial of its own motion for summary judgment. Generally, a trial court’s denial of a motion for summary judgment is not appealable. La. Code Civ.P. art. 967; Arceneaux v. Norman, 05-1536, 05-1537 (La.App. 3 Cir. 5/24/06), 931 So.2d 484, unit denied, 06-1629 (La.10/6/06), 938 So.2d 76. However, the denial of a motion for summary judgment may be reviewed in conjunction with other appealable issues for the sake of judicial economy. Arceneaux, 931 So.2d 484. By challenging the denial of its motion in connection with an appeal of a final judgment granting summary judgment in favor of the plaintiffs, USAgencies has utilized the proper procedure to obtain review of the denial of its motion.

^VALIDITY OF EXCLUSION

The exclusion at issue applies to the policy provisions found in Parts D, E, F, and G, which provide coverage for comprehensive loss, collision, towing and labor, and rental reimbursement.' The exclusion specifically provides, in pertinent part, “There is no Coverage For Damage To Your Auto for: ... 12. Loss occurring while the operator of the auto insured under Parts D, E, F, and/or G has a blood alcohol content above the legal limit for operation of a motor vehicle.”

As observed by USAgencies, an insurer can contract for anything that is not prohibited by statute or against public policy. Marcus v. Hanover Ins. Co., Inc., 98-2040 (La.6/4/99), 740 So.2d 603. Furthermore, clear and unambiguous provisions of an insurance policy that express the intent of the parties must be enforced as written. Id. USAgencies argues that there is no statute that prohibits the inclusion in an automobile policy of a first-party, property damage exclusion for operating above the legal limit of intoxication. We agree. Therefore, the question is whether it is against the public policy of Louisiana to exclude first-party, property damage that occurs while an insured vehicle is being operated above the legal limit of intoxication.

The plaintiffs argue that the exclusion is against public policy for four reasons. They first argue that it is an illusory contract because upholding this exclusion would allow USAgencies to exclude coverage for any and all violations of state law, leading to the absurd consequence of excluding all liability coverage. Secondly, the plaintiffs argue that the exclusion interferes with commerce, because collision coverage was required as part of the financing agreement when Mr. Giroir bought the vehicle. Thirdly, the plaintiffs claim that the act of driving while intoxicated does not require that the driver “intentionally” drive drunk, so that it is |7not in the form of an intentional act that may be excluded from an insurance contract. Lastly, the plaintiffs argue that the exclusion is ambiguous because it does not define “legal limit.”

On the other hand, USAgencies claims that enforcement of the exclusion promotes public policy, as it is against public policy and state law to drive a vehicle in Louisiana with a blood alcohol content above the legal limit.

The legislature has enunciated that public policy concerning the purpose of liability insurance in La.R.S. 22:1269(D) provides that all liability policies are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable, giving protection and coverage to all insureds for any legal liability the insured may have within the terms and limits of the policy. As noted by the supreme court in Marcus, 740 So.2d at 606, “[t]he purpose of the compulsory automobile liability insurance law is not to protect the owner against liability, but to provide compensation for persons injured by the operation of insured vehicles.” The omnibus coverage provision of La.R.S. 32:900 does not come into play when the issue is whether there is collision coverage. Cor-mier v. American Deposit Ins. Co., 95-865 (La.App. 3 Cir. 12/6/95), 664 So.2d 807. This is because there is no requirement that collision coverage be purchased at all.

Obviously, public policy, as established by the compulsory automobile liability insurance law, dictates that automobile insurance provide coverage for injuries and damages suffered by third parties. When contracting for insurance for damages suffered by the policy owner, public policy does not require an owner to protect himself at all.

There is a strong public policy in Louisiana against driving while intoxicated. Numerous laws have been enacted enforcing the importance of not driving while | «intoxicated. It is unlawful for an operator of a motor vehicle or a passenger in a motor vehicle to possess an open alcohol beverage container or consume an alcoholic beverage in a motor vehicle. La.R.S. 32:300. It is a crime to operate a vehicle while intoxicated. La.R.S. 14:98; La.R.S. 14:98.1. In a civil case, punitive damages are available when damages have been caused by an intoxicated driver with a wanton or reckless disregard for the rights and safety of others. La.Civ.Code art. 2315.4. Collision damage waiver forms issued by rental car agencies can specifically exclude damages incurred while “[d]riving while intoxicated or under the influence of any drug, or the combined influence of alcohol and any drug.” La.R.S. 22:1525(B)(2)(b).

In Taylor v. Lumar, 612 So.2d 798 (La. App. 1 Cir.1992), the first circuit addressed the issue of an exclusion in an automobile insurance policy for punitive damages against an intoxicated driver. The first circuit stated, “We are not convinced that the compulsory liability insurance law mandates that drivers be insured for wanton or reckless behavior brought about by voluntary intoxication.” Id. at 800. The first circuit held that the exclusion of coverage for punitive damages did not offend public policy.

In Collins, 836 So.2d 352, the first circuit had to determine whether an exclusion for loss caused by a driver under the influence of alcohol in an excess insurance policy on a rental vehicle was valid. The first circuit held that public policy of Louisiana did not dictate that insurers provide excess coverage to customers of self-insured rental car agencies for accidents related to alcohol consumption.

Plaintiffs’ argument that the exclusion is illusory, i.e. a contract in which the promi-sor has not committed himself in any manner, because USAgencies will be |9able to exclude every violation of state law, is a stretch. Clearly, the parties can contract for whatever terms they want as long it does not violate the law or is against public policy. What a future contract may provide is not before us. We are dealing with one exclusion in this case and whether that exclusion is against public policy. The policy still provides coverage for damage to the insured’s vehicle if one of the exclusions does not apply.

Nor do we find that the language of the exclusion is ambiguous. The exclusion clearly provides that the blood alcohol content must be above the legal limit which is clearly defined by law. La.R.S. 14:98; La. R.S. 14:98.1.

We also find that public policy does not compel insurers to provide coverage for damages to an insured’s own vehicle caused by an intoxicated driver. Insureds are not even required to purchase comprehensive or collision coverage on their vehicle. The fact that a person who finances a car may have to find and pay extra money for an insurance policy that does not exclude coverage for damages to the vehicle if they are in an accident because they are driving while intoxicated is not against public policy. Ownership of a vehicle is not a guaranteed right. Public policy dictates that innocent third parties are protected from damages caused by another person while-driving, not that the owner is protected from his own negligent acts.

CONCLUSION

We find that the first-party collision coverage exclusion for loss occurring to an insured vehicle while the operator was driving with a blood alcohol content above the legal limit is valid and enforceable. Therefore, the trial court erred in granting the plaintiffs’ motion for summary judgment. Accordingly, we reverse the trial court’s judgment in favor of the plaintiffs, grant the motion for summary | ^judgment filed by USAgencies, and remand this case to the trial court for further proceedings. Costs of this appeal are assessed to the plaintiffs, Nicholas Williams and Bobby Giroir.

REVERSED; RENDERED; AND REMANDED.

      . The plaintiffs also filed a motion for class certification, but that motion has not been set for hearing by either party.


author: GREMILLION, Judge.

text:
    Steven Paul PESSON v. Heather DIETERICH.
    No. 14-252.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Rehearing Denied July 16, 2014.

      James Curtis Mclnnis, Attorney at Law, Lake Charles, LA, for Defendant/Appellant Heather Dieterich.
    Steven Paul Pesson, Lake Charles, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

k Heather Dieterich appeals the trial court’s ruling requiring her to deposit $212,500.00 into the registry of the court. The appellee, Steven Pesson, has filed a motion to dismiss the appeal, because, he contends, the order does not represent an appealable final judgment. For the reasons that follow, we dismiss the appeal.

FACTS

Mr. Pesson and Ms. Dieterich entered into a “Joint Stipulation for Settlement and Compromise of all Causes of Action” on May 2, 2012. This stipulation was filed with the trial court on October 4, 2012, and became a signed judgment of the trial court on October 3, 2012.

That judgment provided, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that when all criminal charges have been dismissed, expunged and deleted from HEATHER DIETE-RICH’s record, or within thirty (30) days from the time that Judge Ware’s order to HEATHER DIETERICH not to make transactions on a Scottrade account is rescinded, whichever last occurs, HEATHER DIETERICH shall pay to Pesson the sum of $212,500.00 via cashier’s check, and STEVEN PAUL PESSON shall acknowledge receipt thereof. All court costs of dismissal, expungement, and deletion will be paid equally by STEVEN PAUL PESSON and HEATHER DIETERICH.

On August 26, 2013, Mr. Pesson filed a “Motion and Order to Deposit Funds in Registry of Court.” This motion asserted that the parties had attempted for many months to have Ms. Dieterich’s criminal record expunged, but “it has been unduly and unreasonably delayed due to other agencies’ actions / inactions.” The order prayed that Ms. Dieterich be ordered to deposit the funds into the registry of the court pending completion of the expungement.

The motion was heard on October 11, 2013. At the hearing, it was conceded by Ms. Dieterich that the arrest had been expunged from her record. Her counsel, l2though, pointed out to the court that the document not only called for the record to be expunged but also deleted. The Assistant District Attorney for the Fourteenth Judicial District who was empowered to order a deletion of the arrest, determined that deletion was conditioned on Ms. Dieterich returning the money to Mr. Pes-son. No deletion would be granted until the money was turned over to Mr. Pesson.

The trial court granted Mr. Pesson’s motion and ordered the money deposited into the court’s registry.

Ms. Dieterich sought supervisory writs in this court. We ordered that the district court clerk forward us the record for full consideration. Ultimately, Ms. Dieterich’s writ application was denied. Pesson v. Dieterich, 13-1231 (La.App. 3 Cir. 12/9/13) (unpublished writ decision), writ denied, 14-42 (La.1/23/14), 130 So.3d 953. On December 17, 2013, Ms. Dieterich filed the present appeal. She urges that the trial court erred in hearing the matter, because the consent judgment had long since been final. She also contends that the trial court erred in substantively altering the terms of a judgment and in ordering that the funds be deposited into the registry of the court without a money judgment having been rendered against her. Mr. Pes-son has filed a motion to dismiss the appeal, arguing that ordering Ms. Dieterich to deposit the funds into the registry of the court in no way determines the merits of the case and is not an appealable final judgment.

ANALYSIS

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.

A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.

|SA judgment that determines the merits in whole or in part is a final judgment.

La.Code Civ.P. art. 1841. Except as expressly provided by law, interlocutory judgments are not appealable. La.Code Civ.P. art. 2083.

The trial court’s order is intended to preserve the fund until the record of her arrest is deleted, after which, all agree, the money goes to Mr. Pesson. In no way does the court’s order address the merits of the case, i.e., whether the money is now owed to Mr. Pesson. In this way, it is like unto a sequestration.

Sequestration is appropriate when one claims the ownership or right to possession of property, and it is within the power of the defendant to conceal, dispose of, or waste the property or revenues therefrom during the action’s pendency. La.Code Civ.P. art. 3571. An order denying the dissolution of a writ of sequestration is not appealable. Big Four Crane Serv., Inc. v. Owl Const. Co., Inc., 471 So.2d 992 (LaApp. 1 Cir.), writ denied, 476 So.2d 351 (La.1985).

We see no difference here. The trial court’s order merely preserves the funds until the deletion of Ms. Dieterich’s criminal record. The order does not determine the merits of the case, and thus, it is not a final judgment subject to full appeal by the court.

The Motion to Dismiss Appeal filed by appellee, Steven Pesson is granted. All costs of the appeal are taxed to appellant, Heather Dieterich.

MOTION TO DISMISS APPEAL GRANTED.