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    Vincent E. JOHNSON v. MOTIVA ENTERPRISES LLC, Anastasia Coleman, Mike Johnson and Corey E. Bazile.
    No. 13-CA-305.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Richard C. Stanley, Jennifer L. Thornton, Michelle M. Scelson, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Richard P. Voorhies, III, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Mary S. Johnson, Jill T. Losch, Ingrid M. Kemp, Attorneys at Law, Johnson Gray McNamara, LLC, Mandeville, LA, Chad J. Moliere, S. Suzanne Mahoney, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

|,.jin this matter, plaintiffs Vincent E. Johnson and his three minor children seek reversal of the trial court’s judgment that found Motiva Enterprises, L.L.C. (“Motiva”) to be plaintiffs statutory employer, thus limiting his remedy against Motiva and its named employees to workers’ compensation rather than in tort. Plaintiffs further appealed the trial court’s upholding the constitutionality of La. R.S 23:1061(A)(3), the statutory employer immunity provision as amended in 1997 and the denial of plaintiffs’ request for declaratory judgment. For the reasons that follow, we affirm the trial court’s judgment in its entirety.

FACTS AND PROCEDURAL HISTORY

In 2009, Shell Oil Company as Buyer and AbClean, Inc. as Vendor contracted such that Shell would be entitled to statutory employer status for the tank cleaning work AbClean employees performed in Louisiana. The contract listed Shell and its affiliates including Motiva Enterprises, L.L.C. and included work locations such as the Motiva refinery in Norco, Louisiana.

4Plaintiff Vincent Johnson worked as an environmental cleanup truck driver for United States Industrial Services, Inc. (“USIS”), the successor entity of AbClean following a reorganization on December 31, 2009. On January 16, 2010, Johnson drove a USIS cleanup truck to the Motiva Norco refinery to perform tank cleaning. A few minutes into the removal process, Motiva’s operator appellee/defendant Anastasia Coleman asked plaintiff to disengage the truck’s vacuum line so that she could take a sample. Coleman was soon replaced by Mike Johnson before plaintiff had finished his task. The site supervisor, appellee/defendant Corey Ba-zile, instructed plaintiff to recommence pumping. When vapors collected in the area, Bazile allegedly told plaintiff to move the USIS truck. Plaintiff contended that Mike Johnson assured him that the valves were closed. The valves, which had remained open, allegedly sprayed carcinogenic materials, including benzene, onto plaintiff causing damages. Plaintiff alleged that Motiva failed to report the incident and delayed providing him medical attention. Plaintiff was ordered not to return 'to work. He contended that the incident caused multiple polyps in his gall bladder which later had to be removed. He further claimed mental anguish and depression caused by the incident.

Plaintiff received workers’ compensation benefits from AbClean/USIS; on June 10, 2010, he filed a tort claim in the district court against Motiva and individual employees Coleman and Bazile (collectively “appellees”). Defendants Motiva and Coleman filed exceptions of no cause of action and no right of action, claiming Mo-tiva’s statutory employer status and immunity in tort. On November 8, 2010, plaintiff filed a first supplemental and amending petition adding claims of his three minor children and seeking declaratory relief that the statutory provision providing for tort immunity for statutory employers pursuant to a written contract, |fiLa. R.S.23:1061(A)(3), is unconstitutional as applied here. Plaintiffs claimed that the provision at issue, La. R.S. 23:1061(A)(3), violated equal protection, due process, and access to the courts. The defendants reurged their exceptions to the original petition and raised exceptions of no cause of action to the constitutional challenge.

On April 8, 2011 after permitting additional arguments on the exceptions and constitutional issues, the trial court sustained Motiva’s exceptions, finding Motiva to be a statutory employer and thus immune to plaintiffs’ suit in tort; the trial court declined to reach the constitutional issue and dismissed the case. Plaintiffs appealed.

On May 8, 2012, this Court vacated the trial court’s April 19, 2011 judgment in its entirety, found that the trial court should have ruled on the constitutionality of La. R.S. 23:1061(A)(3), and remanded. Johnson v. Motiva Enterprises, L.L.C., |fill-949 (LaApp. 5 Cir. 5/8/12), 95 So.3d 1086. The parties filed supplemental memoran-da; on June 29, 2012, the trial court heard oral argument and took the matter under advisement. On July 23, 2012, the trial court found the 1997 statutory amendment adding statutory employer tort immunity based on contract to the Louisiana Workers’ Compensation Act (“LWCA”) to be constitutional; it denied plaintiffs’ motion for declaratory judgment and granted Motiva’s exceptions of no cause of action and no right of action. The trial court found that defendants were entitled to tort immunity under La. R.S. 23:1032 & 23:1061(A)(3).

ASSIGNMENTS OF ERROR

Appellants assigned the following errors in the trial court’s July 23, 2012 judgment:

1. The trial court erred in not applying the correct legal standard to the evidence presented by the parties on Motiva’s exception of no right of action by not resolving all disputes in favor of Mr. Johnson.
2. The trial court erred in finding that there was a written contract between Motiva and USIS, Mr. Johnson’s employer on the date of the accident, which made Motiva the statutory employer of Mr. Johnson pursuant to La. R.S. 23:1061(A)(3).
3. The trial court erred in finding that Motiva is entitled to statutory employer status under the LWCA despite the ambiguities contained in the contract between Shell Oil Company and AbClean, the predecessor of USIS, on which Motiva relies, as to whether AbClearis employees are independent contractors or statutory employees.
4. The trial court erred in not applying the reasoning and holding of Preje-an v. Maintenance Enterprises, Inc., 08-0364 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, to invalidate the provision of the Agreement that purports to confer tort immunity on Motiva.
5. The trial court erred in granting Motiva’s exception of no right of action as to Mr. Johnson’s claims for mental injuries, which Motiva did not demonstrate fell within the scope of the LWCA.
6. The trial court erred in applying the correct legal standard to Motiva’s exception of no cause of action by failing to resolve all doubts in favor of the sufficiency of the petition.
177. The trial court erred in denying Mr. Johnson’s request for declaratory judgment declaring La. R.S. 23:1061(A)(3) of the LWCA to be unconstitutional.
8. The trial court erred in finding La. R.S. 23:1061(A)(3) constitutional in that it arbitrarily and capriciously discriminates among similarly injured employees.
9. The trial court erred finding La. R.S. 23:1061(A)(3) constitutional in that its application to this case allows third parties to divest Mr. Johnson of his vested property interest and access to courts.

STANDARD OF REVIEW

No right' of action. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo. Caro Properties (A), L.L.C. v. City of Gretna, 08-248 (La.App. 5 Cir. 12/16/08), 3 So.3d 29, 31.

No cause of action. The appellate court reviews a trial court’s ruling sustaining an exception of no cause of action de novo because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Guidry v. Hanover Ins. Co., 09-220 (La. App. 5 Cir. 11/10/09), 28 So.3d 426, 429. The Court rejects defendants’ position that the trial court’s ruling is protected by manifest error.

Constitutionality. The standard of review of a trial court’s ruling declaring the constitutionality of a statute is de novo. Louisiana Mun. Ass’n v. State., 04-0227 (La.1/19/05), 893 So.2d 809, 842-43.

LAW AND ANALYSIS

Assignments of error one through six relate to the trial court’s finding Motiva to be plaintiffs statutory employer.

No right of action in toH. Appellants contend that appellees have not sustained their burden to prove that appellant does not have a right of action. See \ ^Robertson v. Sun Life Financial, 09-2275 (LaApp. 1 Cir. 6/11/10), 40 So.3d 507, 512. This Court, on de novo review, is asked to determine whether the appellant belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Caro Prop., supra, 3 So.3d at 32.

Appellants argue that they can sue ap-pellees in tort because Motiva is not entitled to statutory employer status for the following reasons: Motiva was not a party to the contract; that the contract is ambiguous as to whether AbClean’s employees are classified as Shell’s independent contractors; and that the contract is unenforceable under Prejean, supra.

The appellees contend that the trial court properly held that appellants have no right of action against appellees to recover damages in tort, because a written contract exists identifying Shell affiliate Moti-va as appellant’s statutory employer under La. R.S. 23:1061(A)(3) and because appellants made no effort to rebut the presumption as required by statute that the principal’s work is “not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” Appellees argue that Motiva is entitled to statutory employer status, precluding appellants’ cause of action in tort and restricting appellants’ action to workers’ compensation.

Statutory employer status. Prior to the 1997 amendment, statutory immunity was based on an evaluation of the relationship of the immediate employer’s work to the work or product of the principal. The 1997 amendment to La. R.S. 23:1061, which added Subpart (A)(3) and became effective on June 17, 1997, created a presumptive statutory employer status based on a written contract between the principal and immediate employer. After 1997, if the employee could show the immediate employer’s work was not an integral part of the principal’s work or 13product, he or she could rebut the presumption of statutory employer status created by the existence of a contract.

The written contract at issue between Shell as Buyer and AbClean as Vendor was executed six months before the incident. It contains a statutory employer provision at Section 32:

BUYER [Shell] and VENDOR [AbCle-an] agree that while VENDOR and any of its employees, agents, or subcontractors are performing Services under this Agreement in Louisiana such work in whole or in part is a part of the trade, business or occupation of BUYER and is an integral part of and essential to the ability of BUYER to generate its goods, products and services. BUYER or any of its subsidiaries or affiliates involved in the Services performed hereunder in Louisiana shall be considered a Statutory Employer within the meaning set forth in La.Rev.Stat. 23:1061 of those employees, agents, and subcontractors of [AbClean] performing Services hereunder in Louisiana and such employees, agents and subcontractors shall be considered Statutory Employees as the meaning is set forth in La.Rev.Stat. 23:1061. (Emphasis added).

Under “Affiliates and Subsidiaries,” Moti-va Enterprises is listed in the contract as “Buyer’s Affiliate,” and the “Norco Refinery,” owned by Motiva, where the incident occurred, is identified as a “Participating Location.” USIS is the surviving entity of a December 31, 2009 merger between Ab-Clean and several other entities.

Appellants seek a strict application of La. R.S. 1061(A)(3) which requires a written contract between the principal and the direct employer. The statutory employer relationship “shall not exist unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer.” Id. The appellants argue that the trial court erred in finding that Motiva was entitled to statutory employer status under La. R.S. 23:1061(A)(3), because the contract at issue was between Shell and AbClean and there was no contract between Motiva and USIS. Appellants contend it would lead to absurd consequences if all named hpand unnamed affiliates are deemed parties to the contract creating statutory employer status.

The appellees argue contrariwise that the contract makes Motiva appellant’s statutory employer, as it is a listed subsidiary of Shell. The appellees rely on the language of Section 32 which provides that “BUYER or any of its subsidiaries or affiliates ... shall be considered a Statutory Employer.” (Emphasis added). The appellees also contend that AbClean simply changed its name to USIS and thereby did not alter its rights and obligations under the contract. Motiva notes that appellant used the names AbClean and USIS interchangeably: in his petition appellant alleges that he was in the course and scope of his employment with AbClean at the time of the accident. In other instances, his direct employer is noted as USIS, after the AbClean mergers. The trial court held that the change of name here has no effect on the rights and obligations of the parties to the agreement. See Town of Haynesville, Inc. v. Entergy Copr., 42,019 (La.App. 2 Cir. 5/2/07), 956 So.2d 192.

Appellants’ suggested rigid application of La. R.S. 23:1061(A)(3) to limit the creation of statutory employer status to the parties executing the agreement is not supported by case law. In St. Angelo v. United Scaffolding, Inc./X-Serv., Inc., 09-1420 (La.App. 4 Cir. 5/19/10), 40 So.3d 365, unit denied, 10-1412 (La.9/24/10), 45 So.3d 1082, the Fourth Circuit held that the statutory employer provision executed by the procurement division on behalf of the refinery owner inured to the benefit of the refinery owner, a separate corporate entity from the operator. The St. Angelo court rejected the argument that the agreement, which was not directly between a principal and a contractor, did not bestow statutory employer status. The court thus held a broad view of what constitutes a principal under the statute.

|n Jurisprudence further recognizes the common intent of the parties in creating statutory employer status. In Fleming v. JE Merit Constructors, Inc., 07-926 (La. App. 1 Cir. 3/19/08), 985 So.2d 141, the First Circuit held that a letter from the principal to the plaintiffs direct employer containing a proposed contractual amendment was sufficient to confer statutory employer status. See also Joseph v. Shell Chemical Co., 07-5489 (E.D.La.6/23/09), 2009 WL 1789422, affd sub nom., Joseph v. Shell Chem, LP, 390 FedAppx. 401 (5th Cir.2010) (Motiva found to be presumptive statutory employer under substantially similar provision set forth in the instant contract.). Appellees here contend that requiring a separate contract between large corporations by each affiliate and each contractor would be cost prohibitive and is not required by the LWCA.

Based on case law’s broader application of principal to include the intent of the parties and USIS having the same rights and obligations as its pre-merger entity AbClean, appellants’ argument that La. R.S. 23:1061(A)(3) is not applicable is without merit.

Ambiguity of contract. Appellants argue that the contract’s inclusion of a provision regarding independent contractors makes the statutory employer provision ambiguous and unenforceable. Appellants contend that the contract is ambiguous as to whether appellant is an independent contractor or a statutory employee of AbClean and that this ambiguity should be construed against Motiva. Appellants suggest that AbClean and its employees are independent contractors and are therefore excluded from coverage under the LWCA.

Section 31 of the agreement, relating to independent contractors, begins “Except as otherwise set forth herein ” and further provides that AbClean and its employees are not considered Buyer’s employees or agents and are not eligible to participate in Buyer’s employee benefit plans. Appel-lees contend that appellants | iaare reading the independent contractor provision too narrowly, and that the provision must be read together with Section 32, which provides that AbClean’s employees will be considered the statutory employees of Mo-tiva for services performed under the contract in Louisiana. In other words, Section 32’s statutory employer status for work performed in Louisiana is one exception to Section 31’s independent contractor provision as per the above-cited “[e]xcept as otherwise set forth herein” language.

We find that reading the two provisions together does not render the statutory employer provision ambiguous. This holding is consistent with that of the First Circuit in Mitchell v. Southern Scrap Recycling, L.L.C., 11-2201 (LaApp. 1 Cir. 6/8/12), 93 So.3d 754, writ denied, 12-1502 (La.l0/12/12), 99 So.3d 47. That contract included a statutory employer provision and an independent contractor section which provided that neither the contractor nor any of its employees would be “deemed for any purpose to be the employee” of the principal. The court rejected the plaintiffs argument that the independent contractor provision rendered the statutory employer provision ambiguous and found that the independent contractor provision was “irrelevant” in deciding the specific issue of whether the principal was entitled to tort immunity. Id. at 759. In the instant matter, we find that the express language of Section 32 controls as to whether the appellees are entitled to statutory immunity and that other provisions on different issues are irrelevant in determining the statutory employer status.

Appellants further argue that the seventy-seven page agreement has only one provision, Section 32, pertaining to statutory employer status. Appellees respond that the statute, La. R.S. 23:1061(A)(3), requires only a written agreement providing that the principal will be deemed the statutory employer of the | ^contractor’s employees. That contract does so provide at Section 32, that AbClean employees, and by extension those of its corporate successor USIS, will be considered statutory employees of Motiva for services performed under the agreement in Louisiana pursuant to La R.S. 23:1061(A)(3).

Appellants’ argument that the contract is ambiguous and should be construed against Motiva is without merit.

Applicability of Prejean. Appellants contend that the contract creating statutory employer immunity status is unenforceable under Prejean, supra. In Prejean, a plurality opinion of the Fourth Circuit, the court determined that Murphy Oil, the alleged principal was not immune in tort despite contractual language that Murphy Oil was the statutory employer. The objectionable contract obligated Murphy Oil to pay workers’ compensation benefits only if the direct employer was “unable” to meet their financial obligation under the LWCA:

This contract recognizes that Company [Murphy Oil] shall be considered the statutory employer of Contractor’s [Maintenance Enterprises’] employees and it subcontractors who provide work or services under this Contract in accordance with [La. R.S. 23:1031] or [La. R.S. 23:1061]. Thus Company is to be granted the exclusive remedy protection of Louisiana R.S. 23:1032 and it shall be liable to pay compensation benefits if the immediate employer, Contractor or its subcontractors as applicable, is unable to meet their financial obligation under the Louisiana Workers’ Compensation Statute for work or service that is performed under this Agreement.

Based on the complained-of contract language, the Prejean court held that the principal cannot contract to take advantage of statutory employer benefits while repudiating the obligation imposed on statutory employers. Id. The Fourth Circuit found that the contractual language created an unlawful condition in that it required the injured employee to demand workers’ compensation benefits from either his direct employer or his statutory employer. Appellants argue that the holding in Prejean is applicable here, as Shell is not responsible for maintaining | ^workers’ compensation benefits because AbClean is required to maintain and pay all benefits.

In the instant matter, the appellees contend that there is no such unlawful condition to demand workers’ compensation benefits from either his direct employer or his statutory employer as the contract creates no burden on appellant to establish that his direct employer is unable to pay, as was the case in Prejean. Appellees point out that the contract allows appellant to recover workers’ compensation benefits from Motiva as his statutory employer or from USIS, his direct employer.

The Legislature has effectively determined that the liability of the principal, who is a statutory employer, and the direct employer is solidary as to the injured worker. La. C.C. arts. 1786 and 1790, and La. R.S. 23:1061; Bowens v. General Motors Corp., 608 So .2d 999, 1003 (La.1992). The injured worker is the obligee to whom the obligation of benefits is immediately and unconditionally owed by either or both. Neither a direct employer nor a statutory employer may, as to the injured worker, contract away its solidary obligation: “No contract rule, regulation, or device whatsoever, shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.” La. R.S. 23:1033. However, the statutory employer and direct employer are not prohibited from' contracting as between themselves rights of contribution or indemnification. See, e.g., La. R.S. 23:1031(B) and 1063(A). Prejean, supra; Mitchell, supra.

We find that Prejean does not apply and the exclusive remedy provisions of the LWCA control. The contract at issue does not contain an unlawful condition requiring an initial demand on the immediate employer to the benefit of the statutory employer.

| ifiFor the reasons above that appellees have complied with the contract requirements of La. R.S. 1061(A)(3), that the written contract is not ambiguous vis-a-vis the independent contractor provision when read together with the statutory employer provision, and that Prejean is inapplicable to the contract here, we find on de novo review that the trial court correctly ruled that Motiva is entitled to statutory immunity status and that appellants have no right of action in tort.

Burden of proving mental injuries. Appellant contends that he has suffered severe mental distress as a result of the incident including fear of cancer and depression. Appellant contends that if an employee is not entitled to a workers’ compensation remedy, the employer or statutory employer is not entitled to tort immunity. See O’Regan v. Prefer)~ed Enterprises, Inc., 758 So.2d 124, 127 (La. 2000). Appellant argues that to restrict Motiva to a workers’ compensation remedy, Motiva must first establish that plaintiffs mental injuries are compensable under the LWCA.

Appellees rely on La. R.S. 23:1021(8)(c)-(d) in support of their position that mental injury is compensable under the LWCA. The appellees concede that the statute establishes a higher burden on the workers’ compensation claimant attempting to recover benefits for certain conditions, i.e., mental injuries, heart disorders and peri-vascular disease, which commonly arise in the general population. However, the ap-pellees contend that La. R.S. 23:1021(8) does not require appellees to meet the burden of introducing evidence that appellant’s particular mental injuries are covered under the LWCA before an injured employee can claim mental injury under the Act.

We find no requirement that Motiva was required to prove by “clear and convincing” evidence that appellant’s claims for mental injuries are covered by the LWCA. The burden, albeit a higher one for mental injuries under the LWCA, | ^remains with the workers’ compensation claimant, despite appellant’s assertions to the contrary.

We find that appellants’ assignments of error one through six lack merit, that Mo-tiva is entitled to statutory employer immunity in tort, and that appellants’ sole remedy is under the LWCA. La. R.S. 23:1032. As a statutory employee, appellants do not belong to that class of persons who have a right of action against Motiva in tort. Additionally, we find that the trial court correctly ruled that appellant has not stated a cause of action in negligence/tort for his and his children’s damages.

Assignments of error seven through nine pertain to the declaratory relief sought by appellants, that La. R.S. 23:1061(A)(3) unconstitutionally violates equal protection, due process, and access to the courts. Having remanded the constitutional issue to be addressed by the trial court, we now review its ruling de novo.

Appellants contend that the Supreme Court has not addressed the issue of the 1997 amendment, which added Subpart (A)(3) to La. R.S. 1061. In Moore v. RLCC Technologies, Inc., 95-2621 (La.2/28/96), 668 So.2d 1135, the Supreme Court upheld the granting of tort immunity to principals under the “integral relationship” test. This 1996 decision did not address the 1997 amendment, adding the rebuttable presumption of Subpart (A)(3).

La. R.S. 23:1020.1 sets forth the Legislature’s intent and purpose of the Louisiana Workers’ Compensation Act and provides, in pertinent part:

C. Legislative intent. The legislature finds all of the following:

(1) That the Louisiana Workers’ Compensation Law is to be interpreted so as to assure the delivery of benefits to an injured employee in accordance with this Chapter.
(2) To facilitate injured workers’ return to employment at a reasonable cost to the employer.

|17P. Construction. The Louisiana Workers’ Compensation Law shall be construed as follows:

(1) The provisions of this Chapter are based on the mutual renunciation of legal rights and defenses by employers and employees alike; therefore, it is the specific intent of the legislature that workers’ compensation cases shall be decided on their merits.
⅜ * *
(3) According to Article III, Section 1 of the Constitution of Louisiana, the legislative powers of the state are vested solely in the legislature; therefore, when the workers’ compensation statutes of this state are to be amended, the legislature acknowledges its responsibility to do so. If the workers’ compensation statutes are to be liberalized, broadened, or narrowed, such actions shall be the exclusive purview of the legislature.

Equal protection. The Appellants claim that the statutory employer immunity provision as amended violates equal protection, as it arbitrarily and capriciously discriminates among similarly situated employees. Louisiana Constitution Article I, Section 3 provides:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

In Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985), the Supreme Court set forth the criteria to determine whether an equal protection violation has occurred:

Article I, Section 3 commands the courts to decline enforcement of a legislative classification of individuals in three different situations: (1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely; (2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; (3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest.

Since there is no suspect class issue in the present case, the challenged provision is | i8not subject to the strict scrutiny requirements of Sibley’s parts one and two, above. The provision will therefore be reviewed to determine whether the classification is rationally related to a legitimate state purpose, the “rational basis” test. See Frederick v. Ieyoub, 99-0616 (La.App. 1 Cir. 5/12/00), 762 So.2d 144, 148, writ denied, 2000-1811 (La.4/12/01), 789 So.2d 581 {citing Clements v. Fashing, 457 U.S. 957,102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)).

The trial court recognized the purpose of regulating workers’ compensation: (1) by spreading the cost of doing business to the industry as opposed to the individual employer, and (2) to allow for a compromise between the employer and employee where the employer is given tort immunity in exchange for the right of the injured employee to receive benefits, regardless of fault.

We first find that even prior to the 1997 amendment, Section 1032 extended tort immunity to a principal and its employees, although applying a different test.

We find that classifying injured workers with a “statutory employer contract” furthers a legitimate governmental interest by spreading the cost of doing business to the industry as opposed to the individual employer. This spreading of the costs, including the statutory employer’s paying into the workers’ compensation system through insurance premiums, does not make the individual employer liable for the full cost. By requiring the injured employee to resolve any on-the-job injuries through the LWCA, injured employees receive medical treatment and timely indemnity without regard to fault, in exchange for the statutory employer’s receiving tort immunity. We find the rational basis satisfied and that appellant has failed his burden to prove a violation of equal protection.

Due process. The Fourteenth Amendment to the U.S. Constitution prohibits a state from “depriv[ing] any person of life, liberty, or property, except by due | ^process of law.” Identical in scope and purpose, La. Const. Art. 1, Section 2 provides that “[n]o person shall be deprived of life, liberty, or property, except by due process of law.” The Louisiana Constitution further provides for “open courts.” La. Const. Art. I, Section 22. Procedural due process concerns the means or processes used by the State to effect the deprivation of a fundamental right or property interest. Messina v. St. Charles Parish Council, 03-644 (La.App. 5 Cir. 12/30/03), 865 So.2d 158, 161, writ denied, 2004-0285 (La.3/26/04), 871 So.2d 354, cert, denied, 04-279 (2005), 544 U.S. 1060, 125 S.Ct. 2512, 161 L.Ed.2d 2209. Appellant argues that he has been deprived of a vested, fundamental right to sue in tort under La. C.C. art. 2315 and that his access to the court has been denied.

Appellees argue that there is no such deprivation of a fundamental right, as the statute at issue adequately affords procedural due process by the setting up of a specialized workers’ compensation court system to handle claims on an expedited basis, to provide proper medical treatment, and to facilitate the prompt return of employees to the workplace. La. R.S. 23:1020.1.

We find that the granting of tort immunity through the statutory employer provision at issue does not deprive appellant of procedural due process and does not restrict his right to be heard at a meaningful time and manner in the workers’ compensation tribunal. We find that the workers’ compensation courts are the least restrictive means of providing an injured employee direct access to courts without unnecessary delays in receiving medical treatment and benefits.

Appellant contends that the provision violates his substantive due process. To find a violation of substantive due process, a court must find that the government acted arbitrarily and capriciously without any substantial relationship to public health, safety, morals, or general welfare. See State v. Edwards, 00-1246 (La.6/1/01), 787 So.2d 981, 992; Standard Materials, Inc. v. City of Slidell, 96J068420 (La.App. 1 Cir. 9/23/97), 700 So.2d 975, 985. Governmental action does not violate substantive due process if the action is rationally related to a legitimate government purpose. Standard Materials, supra.

We do not find that the Legislature’s enactment of La. R.S. 23:1061(A)(3) was arbitrary and capricious. Here, we find that maintaining the health and safety of an injured worker until he is able to return to work and maintaining the welfare of the workers’ compensation industry are legitimate government purposes to justify the loss of the injured employee’s ability to file a workers’ compensation claim in a district court. The finding of a rational relationship of the statutory employer statute and preserving the health and welfare of the injured worker and preserving the workers’ compensation industry negates any argument that the Legislature acted arbitrarily and capriciously in enacting La. R.S. 23:1061(A)(3). We therefore conclude that La. R.S. 23:1061(A)(3) does not violate substantive due process.

DECREE

For the foregoing reasons, the Court affirms the trial court’s judgment sustaining Motiva’s exceptions of no right of action and no cause of action, finding that Motiva is immune in tort as appellant’s statutory employer, and upholding the constitutionality of La. R.S 23:1061(A)(3). We affirm the July 23, 2013 judgment of the trial court in its entirety.

AFFIRMED.

      . Singular "plaintiff” or "appellant” refers to Vincent E. Johnson.

      . Plural "plaintiffs” or "appellants” refers to plaintiff and his minor children.

      . Plaintiff named Motiva operator Mike Johnson as a defendant but withheld service.

      . La. R.S. 23:1061 provides:
      A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any "principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the "contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by die principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal's trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
      (2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate employer.
      (3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
      B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor. (Emphasis added).

      , This Subpart was added by Acts 1997, No. 315 § 1, effective June 17, 1997.

      . Supra, note 5.

      . La. C.C. art.2050 requires reading contrac - tual provisions together.


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    SUCCESSION OF Effie Dowdy BENNETT through Administratrix Pitrina KIMBLE v. SUCCESSION OF Donald P. DOWDY through Administratrix Pitrina KIMBLE.
    No. 13-CA-322.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.
    Steven F. Griffith, Sr., Attorney At Law, Destrehan, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

| ¡/The Succession of Effie Dowdy Bennett, through Administratrix Pitrina Kim-ble, appeals from a judgment denying declaratory relief in this suit to reform an authentic act for the transfer of an immovable. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2003, Effie Dowdy Bennett and her brother, Donald P. Dowdy, purchased a house in Jefferson Parish. The “Cash Sale” by authentic act clearly states that both are residents of Jefferson Parish and that they are purchasing the property “for themselves, their heirs and assigns” for $65,000 which “they have paid in ready and current money” to the vendors. Both Effie and Donald are now deceased and their respective successions are the parties here.

Pitrina Kimble claims to be the adminis-tratrix of both successions, but the record contains no verification of her status by certified documents from either succession. In her alleged capacity as the administra-trix of Effie’s succession, she brought the present action to have the house declared the sole property of that succession. She named herself as the defendant in this suit in her alleged capacity as administratrix of Donald’s succession. The allegations of the petition are that |sDonald was merely an accommodation party to the sale and was included only because he had a stronger credit rating for purposes of obtaining a mortgage.

The petition represents that Donald has four nephews and nieces who are his heirs; however, there is no verification of this fact by certified pleadings from Donald’s succession. The evidence shows that three of these heirs were notified of the proceedings and signed notarized statements saying that they did not object to the removal of Donald’s name from the title to the property. The fourth heir did not respond to a request that she too relinquish any claim to the property. The court entered a preliminary default judgment on July 31, 2012. After a hearing on December 13, 2012, at which evidence was presented, the trial judge denied the relief sought. This appeal followed.

DISCUSSION

Pitrina Kimble, appearing in her alleged capacity as administratrix of Donald’s succession, stated that she had no objection to removing Donald’s name from the title. The evidence further showed that Effie had lived for some 30 years with Peter Guaraggi, who has four living children by another woman, one of whom is Pitrina Kimble. He represented that in her last will and testament, Effie left the property to his children with a usufruct in his favor. Neither Effie’s alleged will, nor any evidence of it having been probated, is of record here. Mr. Guaraggi testified that he did repair work on the property, and expended his funds on these repairs. He also testified that Donald did not contribute to any of the mortgage payments on the property, but no corroborating evidence was presented to show that such payments were made, or indeed that the property was ever mortgaged. The act of sale itself states that it was a cash sale.' Additionally, the documents introduced in conjunction with homeowner insurance policies do not show any mortgagee as an insured. There was evidence corroborating that Donald did not Dmake any insurance payments for the property, but the testimony that he did not pay any taxes remained uncorroborated.

The trial judge stated in her reasons for judgment that she believed that Donald made no payments on the house and that he was merely an accommodation party. She determined as a legal matter, however, that an authentic act could not be varied on the basis of parole evidence by persons not parties to the act, citing La. C.C. arts. 1831 et seq. She therefore denied the relief sought.

We initially note that the proceedings of December 13, 2012, were actually a confirmation of the preliminary default entered on July 31, 2012. As such, plaintiff was required to present proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702.

It is clear that the basis of plaintiffs claim is that the act of sale was a simulation as to the true purchaser, ie., that Effie was to be the owner while Donald was only signing for purposes of Effie obtaining credit. La. C.C. art. 1848 provides that testimonial or other evidence may be admitted to prove a simulation. It was thus incumbent on plaintiff to show that more likely than not Donald signed the act of sale only to establish credit for Effie. We find that plaintiff did not do so by competent evidence. First, Mr. Guar-aggi did not state that he was present at the act of sale, nor did he indicate how he determined that Effie had a credit issue which Donald agreed to resolve. Second, the act is a “Cash Sale” and there were no documents introduced to show that a mortgage requiring a credit check was involved in the transaction. Third, the homeowner’s insurance documents do not show a mortgagee as an insured. Fourth, there was no evidence of payments made on an alleged “note.” What is left is mere conjecture that the act was a simulation in regard to Donald’s actual interests, and this is simply not prima facie proof.

|fiThere is yet another problem with his proceeding. Pursuant to La. C.C. art. 2028, simulations may have effects as to third persons. We note that plaintiff did not submit mortgage or conveyance certificates on this property to establish whether there exist any outstanding mortgages or liens that affect Donald’s interest. Furthermore, it is represented that Pitrina Kimble is the administratrix of Donald’s succession, and therefore that such a succession has been opened. The title to the immovable property at issue here is clearly a part of that succession. However, there is nothing in the record before us to indicate what assets and liabilities may be present in that succession, or whether there are creditors who may be adversely affected by removal of that property from Donald’s estate. Similarly, it is not clear that the documents signed by three of Donald’s four heirs ostensibly renouncing their interests in the property would be valid if the interests of creditors of Donald’s estate were to be negatively affected. Furthermore, La. C.C.P. arts. 3261-3298, dealing with alienation of succession property, uniformly require approval for such transfers by the court in which the succession is pending. The record contains no certified documents from Donald’s succession indicating that Ms. Kimble has obtained that court’s authority for her to consent to the abandonment of any ownership claim to the property, and therefore the removal of that asset from Donald’s succession. Clearly, the court in which the present proceeding has been brought is not the proper forum to resolve these issues.

Additionally, La. C.C.P. arts. 3194-3195 prohibit a succession representative from acquiring any interest in the property of the succession, unless she is an heir or legatee of the decedent. Here, Pitrina Kimble is not alleged to be an heir or legatee of Donald, but she is alleged to be a legatee of Effie. If declaratory relief were granted, the result would be that Ms. Kimble would acquire an interest in property that, but for her unauthorized consent to the abandonment of any | (¡ownership claim and the property’s transfer out of Donald’s succession, would be a part of his succession. This result is expressly prohibited by the above articles. There may be a question therefore as to the propriety of Ms. Kimble serving as the administra-trix of both successions.

CONCLUSION

Although we find that the trial judge took too restrictive a view of the admissibility of parole evidence to establish that an authentic act may be a simulation, we nonetheless hold that, as the above discussion shows, on the evidence presented, she correctly denied declaratory relief. For the foregoing reasons, the judgment is affirmed.

AFFIRMED.


author: HANS J. LILJEBERG, Judge.

text:
    Theodore M. SCHEXNAYDER and Lynell S. Schexnayder v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT; Willard Smith; Gerard J. Aeringue; BellSouth Communications, Inc. and ABC Insurance Company.
    No. 13-CA-330.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Mark D. Plaisance, Attorney at Law, Thibodaux, LA, Kenneth H. Hooks, III, Attorney at Law, Baton Rouge, LA, for Plaintiffs/Appellants.
    Buddy Caldwell, Attorney General, William S. Culver, Jr., Deborah W. Fallís, Assistant Attorneys General, Louisiana Department of Justice, Litigation Division, New Orleans, LA, for Defendant/Appellee.
    Gaudry, Ranson, Higgins & Gremillion, Daryl A. Higgins, A. Mark Flake, Attorneys at Law, Gretna, LA, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ¡¿Plaintiffs, Theodore and Lynell Schex-nayder, appeal a judgment rendered in accordance with a jury verdict in favor of defendants, dismissing plaintiffs’ claims against them. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on September 18, 2007, on Louisiana Highway 18, commonly known as “River Road,” in St. Charles Parish. Theodore Schexnayder was operating a 2007 Kawasaki motorcycle in a westbound direction. At the same time, two bucket trucks, which were owned by BellSouth Telecommunications, Inc. (“Bell-South”) and operated by Willard Smith and Gerard Zeringue, were traveling in an eastbound direction on River Road. As the vehicles approached or entered a sharp curve in the roadway, Mr. Schexnayder’s motorcycle collided first with the bucket truck operated by Mr. Smith and then with the bucket truck operated by Mr. Zeringue. As a result, Mr. Schexnayder suffered severe and debilitating injuries, and he is permanently quadriplegic.

Mr. Schexnayder and his wife, Lynell Schexnayder, filed suit against several defendants, including Mr. Smith, Mr. Ze-ringue, BellSouth, their insurer, and the State of Louisiana, through the Department of Transportation and Development (“the State”), asserting that these defendants are liable for the damages suffered by the Schexnayders. In their petition, plaintiffs assert that the collisions occurred when each of the BellSouth bucket trucks veered and crossed over the center line 14in the roadway, striking the motorcycle driven by Mr. Schexnayder. They allege that the negligence of both Mr. Smith and Mr. Zeringue caused these collisions and the resulting damages. Plaintiffs contend that BellSouth is liable as the employer of Mr. Smith and Mr. Zeringue, who were in the course and scope of their employment at the time of the collisions. Plaintiffs contend that the State is liable as the owner and custodian of the roadway, because the roadway contained defects that caused or contributed to the collisions in this case.

Defendants answered the lawsuit, generally denying the allegations of plaintiffs’ petition and asserting that the accident was caused solely by the negligence of Mr. Schexnayder. They claim that it was Mr. Schexnayder who failed to maintain his motorcycle in his lane of travel and veered across the center line, striking each of the BellSouth trucks and causing the resulting damages.

After pre-trial motions, including numerous motions in limine, were filed and heard, the matter came before the court for a jury trial on October 8, 2011. The trial concluded on October 7, 2011, and the jury returned a verdict in favor of defendants, finding that plaintiffs did not prove by a preponderance of the evidence that Mr. Smith, Mr. Zeringue, BellSouth, or the State was negligent. On October 18, 2011, the trial judge signed a judgment in accordance with the jury’s verdict, dismissing plaintiffs’ claims against all defendants with prejudice. Plaintiffs appeal this judgment.

LAW AND DISCUSSION

On appeal, plaintiffs set forth four assignments of error by the trial judge and/or jury. In their first assignment of error, plaintiffs assert that the trial judge erred by denying their Batson objection, because defendants, with discriminatory intent, systematically struck all three African-American potential jurors — |Char-maine6 Williams, Earl Smith, and Sandra Woods — from the jury and failed to provide race-neutral reasons for these peremptory challenges. The record reflects that plaintiffs, Theodore and Lynell Schex-nayder, are African-American.

Defendants respond that plaintiffs did not carry their burden of showing purposeful discrimination, as required under a Batson analysis. They further assert that defendants would have had no plausible reason to exercise their peremptory challenges on the basis of race since one of the principal defendants, Willard Smith, is African-American. Finally, defendants contend that plaintiffs did not document the racial make-up of the entire jury venire, so there is no way to determine how many African-American potential jurors were in the venire. They note that the record reflects that Diana Oubre, an African-American, was excused from the jury for cause, so there were clearly more than three African-American potential jurors.

Equal protection prohibits the peremptory challenge of a prospective juror on the basis of race in both civil and criminal matters. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Ed-monson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). A civil litigant may raise the equal protection claim of a person whom the opposing party has excluded from jury service on the basis of race. Edmonson, 500 U.S. at 629-31, 111 S.Ct. at 2088; Richard v. St. Paul Fire and Marine Ins. Co., 94-2112 (La.App. 1 Cir. 6/23/95), 657 So.2d 1087, 1089; Smith v. Lincoln General Hospital, 27,133, p. 22 (La.App. 2 Cir.

6/21/95), 658 So.2d 256, 271, writ denied, 95-1808 (La.10/27/95), 662 So.2d 3. The approach set forth in Batson v. Kentucky, supra, whereby race-neutral explanations for peremptory challenges are required, after a prima facie showing of racial discrimination in the use of such challenges is established, is also applicable to civil cases. Edmonson, supra. >

li/To raise a Batson/Ed,monson challenge, the challenging party must first make a prima facie showing that the opposing party exercised a peremptory challenge on the basis of race. Batson, supra; Edmonson, supra. If a prima facie showing is made, the burden then shifts to the opposing party to articulate a race-neutral explanation for striking the jurors in question, which is related to the case to be tried. Batson, 476 U.S. at 96-98, 106 S.Ct. at 1723-1724. This second step of the process does not demand an explanation that is persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995); Lester v. Exxon Mobil Corp., 10-743 (La. App. 5 Cir. 5/31/12), 102 So.3d 148, 161, writ denied, 12-2202 (La.4/19/13), 111 So.3d 1028. Unless a discriminatory intent is inherent in the striking party’s explanation, the reason offered will be deemed race-neutral. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991); Purkett, 514 U.S. at 768,115 S.Ct. at 1771.

In the third and final step of the analysis, the trial court must determine whether the party raising the Batson/Edmonson challenge has carried his burden of proving purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. 1723. At this stage, the trial court must consider the persuasiveness of the explanations. Purkett, 514 U.S. at 768,115 S.Ct. at 1771.

In the present case, after the second panel of prospective jurors was questioned, plaintiffs’ counsel made a Batson/Edmon-son objection after defendants used a peremptory strike to excuse Kenton Robins. In response to plaintiffs’ Batson/Edmon-son objection, the trial court indicated that defendants would have to |7provide their reasons for the peremptory strikes of each of the African-American potential jurors.

The first African-American at issue that was excluded from the jury via a peremptory challenge by the defense was Charmaine Williams. Defense counsel indicated that a peremptory challenge was used to strike Ms. Williams from the jury because he did not like the comments she made in response to plaintiff counsel’s question regarding “casting defendants in judgment makes the community safer.” It was also noted by defense co-counsel that Ms. Williams indicated that she is a teacher for students with special needs and a substitute teacher would be needed if she were selected to be on the jury.

During voir dire, Ms. Williams indicated that she works with students with special needs. Later, plaintiffs’ counsel asked the prospective jurors if any of them had heard of jury verdicts that have helped to make the community safer, and counsel stated that there have been some really good jury verdicts that have helped with community safety, such as the “Ford rollover cases.” When asked about her feelings about those types of case, Ms. Williams stated, “I think it’s a positive thing.” She also stated that “it’s making the community safer.”

The second African-American at issue that was excluded from the jury on a peremptory challenge by defendants was Earl Smith. Defense counsel indicated that a peremptory challenge was used to strike Mr. Smith due to his comments on the “Brown’s Velvet curve.” Defense co-counsel also noted that Mr. Smith “had all kinds of opinions about the River Road, going up the levee and all that stuff.”

|sDuring voir dire, Mr. Smith indicated that he works for the Lafourche Basin Levee District and is familiar with Louisiana Highway 18, known as River Road. Mr. Smith stated that he drives on River Road every day in both directions, sometimes four or five times a day, and that he travels the area of the “crooked curve” where the accidents occurred in this case. Mr. Smith stated that he hates to drive on River Road, and he repeatedly indicated that he does not like the curve where the collisions occurred. He also stated that he has not personally had any problem with the area of the curve where the accidents occurred, because he drives up on the levee to avoid it, which is legal for him due to his employment with the Levee District.

Finally, the third African-American at issue that was excused by defendants via a peremptory challenge was Sandra Woods. Defense counsel stated that Ms. Woods was excused because she indicated that there are safety meetings once a week where she works, and that safety training for the BellSouth truck drivers was at issue because safety training was only provided “like once every six months.” Defense co-counsel also noted that Ms. Woods was a nursing student at Delgado and would have to miss a test if she were selected to be on the jury.

During voir dire, Ms. Woods testified that she works at Ochsner Hospital as a patient care technician, and she was also enrolled in classes at Delgado Community College where she was taking her last prerequisite class for the nursing program. When the issue of safety training was discussed, Ms. Woods stated that she believes safety training should be provided for company drivers and that she has to have basic safety training every year where she works.

laAfter defense counsel provided reasons for them peremptory challenges of the African-American potential jurors, the trial court indicated that he accepted the reasons provided by defense counsel for their challenges and that the Batson/Edmonson objection was, therefore, denied. The trial court also noted that at the time of plaintiffs’ Batson/Edmonson objection, defendants had used peremptory challenges to strike three African-Americans and four whites from the jury.

The trial court’s conclusion on the ultimate question of discriminatory intent, which is a question of fact resting largely on a credibility determination, is accorded great deference on appeal. Batson, supra; Matthews v. Arida Lubricants, Inc., 32,-121, p. 19 (La.App. 2 Cir. 8/18/99), 740 So.2d 787, 800. A reviewing court should not reverse the trial court’s evaluations of discriminatory intent unless they are clearly erroneous. Lester, 10-743 at 17, 102 So.3d at 162.

Our review of the voir dire transcript reveals that defendants provided plausible race-neutral reasons for using their peremptory challenges to strike the prospective jurors at issue, and the trial court did not err by finding that plaintiffs failed to carry their burden of proving purposeful discrimination. Accordingly, this assignment of error is without merit.

In their second assignment of error, plaintiffs argue that the trial court erred by denying the jury’s request to visit the accident site or, alternatively, by not allowing the jury to view a videotape of the accident site. Defendants respond that the trial court correctly denied plaintiffs’ requests, because allowing the jury to go to the accident site or to view the videotape would have been tantamount to reopening the case for the presentation of additional evidence, and plaintiffs did not properly move to have the case re-opened.

| ¶ nWhile the jury was in deliberations, the trial court informed counsel for all of the parties that he had received a note from the jury asking if they could go to the accident site. The trial court denied the request, noting that there was no request to visit the site during the trial and that “the evidence is in.” At that point, plaintiffs’ counsel requested that the trial court reconsider its pre-trial ruling on a motion in limine which prohibited plaintiffs from showing the jury a “traffic watch video” that showed traffic navigating the curve where the accident took place. The trial court denied this request as well.

The trial court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done. LSA-C.C.P. art. 1681. The trial court has great discretion in controlling the presentation of evidence. Kim v. Kim, 07-318, p. 9 (La.App. 5 Cir. 10/30/07), 970 So.2d 1158,1163.

In the present case, after all of the evidence was presented, closing arguments were made, the jury charges were read, and the deliberations began, the jury requested that they be allowed to visit the accident site. The trial court denied the request, noting that all of the evidence had been submitted. No request had been made during the trial for the jury to visit the accident scene. Further, we note that the exact location of the collisions was in dispute at trial, and a visit to the site would not have resolved the dispute. We find no abuse of the trial court’s discretion in refusing to re-open the case in order to allow the jury to visit the accident site or to view a video of vehicles navigating the curve in the area where the accident occurred. This assignment of error is without merit.

|nIn their third assignment of error, plaintiffs contend that the jury erred by not assessing BellSouth with liability when the physical debris evidence proved that the two BellSouth vehicles crossed the center line and struck Mr. Schexnayder’s motorcycle. Plaintiffs acknowledge that the record contains completely different versions of how the accident occurred, namely, who crossed the center line, but they claim that the debris evidence and the testimony of their expert, Andrew McPhate, overwhelmingly supports plaintiffs’ version of events and negates defendants’ version.

Defendants respond that the eyewitness testimony of Mr. Smith and Mr. Zeringue, as well as the expert testimony of Dr. Michael James, clearly support the jury’s finding that BellSouth and its drivers did not cause the accident, but rather, the accident was caused by Mr. Schexnayder’s negligence.

At trial, Willard Smith testified that he worked for BellSouth for 32 years and he drove a bucket truck for 25 of those years. On September 18, 2007, Mr. Smith left a job site and proceeded on Louisiana Highway 18 on his way back to the work yard, with his co-worker, Gerard Zeringue, following behind him. Mr. Smith was familiar with the roadway and was driving his regularly-assigned bucket truck. At approximately 4:20 p.m., as he came to a sharp curve in the road, he saw a motorcycle driven by Mr. Schexnayder traveling close to the center of the roadway, not in the middle of Mr. Schexnayder’s lane of travel. Mr. Smith testified that Mr. Schexnayder was driving upright, not leaning as if he was going to negotiate a curve or turn right in the curve. Mr. Smith stated that he was concerned that the motorcycle would hit his truck, so he pulled toward a driveway on the right and “halfway on the shoulder,” in order to avoid a collision.

|12Mr. Smith testified that he did not feel any impact when the motorcycle passed, but he noticed that Mr. Schexnayder was very close to his truck and there was a mark on the truck after the accident. Mr. Smith testified that he looked into his rearview mirror as Mr. Schexnayder passed, and he saw the motorcycle run into the side of Mr. Zeringue’s bucket truck. Mr. Smith testified that he did everything he could to avoid the accident. He was certain that his vehicle did not cross the center line and it was completely in his lane of travel, if not halfway on the shoulder, when the collision occurred.

Gerard Zeringue testified that he started working for BellSouth in 2004 and he is an outside plant technician, which requires him to drive a bucket truck. On the day of the accident, he pulled onto Louisiana Highway 18 behind Mr. Smith’s truck and was heading back to the work yard. Mr. Zeringue testified that he was familiar with this area of the roadway and its curves, as he had traveled on this road many times before. When he approached a curve in the road, he saw a motorcycle coming out of another curve and heading toward them. He saw that the motorcycle was not leaning and was “straight up,” as if the driver had no intention of turning. Mr. Zeringue testified that he saw Mr. Smith trying to move his truck toward the side of the road, and he tried to move his truck over as far as he could as well. Mr. Zeringue saw the motorcycle “skim” Mr. Smith’s truck. Then, the motorcycle struck the side of Mr. Zeringue’s truck. Mr. Zeringue testified that he was certain that his truck did not cross the center line and was within his lane of travel or further to the right shoulder at the time of the collision.

Theodore Schexnayder testified that he does not recall the motorcycle accidents at all. However, based largely on the testimony of their expert, Andrew McPhate, plaintiffs claim that the collision occurred in Mr. Schexnayder’s lane of | ^travel, when the BellSouth bucket trucks crossed the center line and struck Mr. Schexnay-der on his motorcycle.

At trial, Andrew McPhate was accepted as an expert in mechanical engineering, vehicle dynamics, and accident reconstruction. Mr. McPhate testified that the photographs of the accident do not reveal any tire or skid marks, but he believes the “debris field” reveals that the accident occurred in Mr. Schexnayder’s lane of travel. He testified that “all kinds of debris” would be expected in the BellSouth drivers’ lane if they had pulled their vehicles toward the side of the road. He admitted that Mr. Schexnayder would have been traveling near or relatively close to the center line, but maintained his opinion that the accident occurred in Mr. Schexnay-der’s lane of travel. Mr. McPhate acknowledged that there is a dispute as to the exact location where the collision occurred, and that the physical evidence does not establish with certainty where the accident occurred. Mr. McPhate testified that his estimate of where the accident occurred is based on the debris field, as shown in the photographs taken after the accident.

Defendants called Dr. Michael James, who was accepted as an expert in accident reconstruction and human factors as they relate to accident reconstruction. Based on the work he performed in this case, along with his education and experience in crash testing, Dr. James testified that he believes very strongly that the accident occurred in the truck drivers’ lane of travel. He also found that more likely than not, the motorcycle was upright when it struck both of the BellSouth trucks. Dr. James disagreed with Mr. McPhate’s opinion that the debris field showed the accident occurred in Mr. Schexnayder’s lane of travel. He testified that someone cannot look at debris in the road and say where an accident occurred, without considering the path and trajectory of the motorcycle.

114Lynell Schexnayder testified that Mr. Schexnayder bought his motorcycle in August of 2007, which was shortly before the September 18, 2007, incident. Although she was aware that Mr, Schexnayder had driven a motorcycle many years ago in high school, she admitted that between the time he purchased this motorcycle and the time of the accident, he had taken the test for a motorcycle endorsement on his driver’s license two times and had failed the test both times.

A court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact-finder’s determinations, the appellate court must find that: 1) a reasonable factual basis for the finding does not exist in the record; and 2) the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, through Dept, of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Id.; LeBlanc v. Baxter, 05-33, p. 18 (La.App. 5 Cir. 5/31/05), 905 So.2d 415, 426, writ denied, 05-1742 (La.1/13/06), 920 So.2d 239.

Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible. Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, llll(La.l990); Billiot v. Estate of Richardson, 94-1794 (LaApp. 1 Cir. 5/5/95), 655 So.2d 443, 446, writ denied, 95-1400 (La.9/15/95), 660 So.2d 453. Factual findings that are based on determinations regarding the credibility of witnesses must be afforded great deference. Ber-geron v. Williams, 05-847 (LaApp. 1 Cir. 5/12/06), 933 So.2d 803, 807. Even if an appellate court may feel that its own evaluations and .inferences are more reasonable than the factfinder’s, reasonable evaluations of fact should not be disturbed upon review where conflict exists in the testimony. Id.; h^Rosell, 549 So.2d at 844. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882; Laborde v. Roser’s Cleaners, L.L.C., 07-78, p. 4 (LaApp. 5 Cir. 5/15/07), 957 So.2d 865, 867, unit denied, 07-1474 (La.10/5/07), 964 So.2d 945.

In the present case, both Bell-South drivers testified that Mr. Schexnay-der was driving his motorcycle and veered across the center line into their lane, striking the BellSouth bucket trucks. Mr. Schexnayder suffered severe injuries in the accidents and does not remember the details of the collisions at all. Plaintiffs’ expert in accident reconstruction, Mr. McPhate, opined that, based on the debris field depicted in the photographs taken after the accident, the accident most likely occurred in Mr. Schexnayder’s lane of travel. However, defendants’ expert in accident reconstruction, Dr. James, testified that based on the evidence, the accident most likely occurred in the BellSouth drivers’ lane of travel. He further testified that he does not believe that someone cannot look at debris in the road and say where an accident occurred, without considering the path and trajectory of the motorcycle.

The jury was presented with all of the evidence, including the testimony of the parties’ experts, and apparently found the testimony of the defense witnesses and their expert, Dr. James, to be more credible. Considering the evidence before us, along with the applicable law, we can find no manifest error in the jury’s determination that BellSouth, Mr. Smith, and Mr. Zeringue were not negligent and did not cause the accident and resulting damages in this case. Accordingly, this assignment of error is without merit.

In their fourth and final assignment of error, plaintiffs argue that the jury erred by not assessing the State with liability when the evidence demonstrated that |1fithe State failed to maintain the center or yellow line of the roadway. They argue that while the experts for plaintiffs and defendants opined that the physical highway contained no structural design defects, the absence of a middle dividing line or yellow lines created an unreasonable risk of harm and clearly contributed to the accident.

The State responds that the sole cause of the accident was Mr. Schexnayder’s failure to follow the curve in the road. They note that Mr. Smith and Mr. Zeringue both testified that they had no trouble determining where they were on the two-lane roadway at all times, despite the fact that a portion of the yellow center stripe was worn. They argue that while the yellow center line was worn for approximately 100 feet, this was only at the apex of the curve, not on the rest of the curve. Thus, they contend that it could not have played any part in this incident.

All of the drivers involved in this incident were familiar with the roadway and its curves. Willard Smith and Gerard Ze-ringue both testified that they had traveled this roadway before and were familiar with it. Lynell Schexnayder testified that Mr. Schexnayder lived near this roadway “pretty much” all of his life.

It is undisputed that there are portions of the roadway on which the center line was worn due to vehicles driving over it as they negotiated the curve in the road. Plaintiffs’ expert, Mr. McPhate, testified that there is about 100 feet of the yellow line missing in the area of the accident, but he admitted that Mr. Schexnayder would have had a yellow stripe on the roadway almost to the point of impact. He did not believe that the absence of the yellow line in some places confused any of the drivers involved in this incident. Rather, he testified that he believed they knew exactly where the center line was or would have been.

117WiIlard Smith testified that he did not have any trouble figuring out which side of the road was his. He stated that the center stripes are sometimes missing, but not for long distances. He testified that the center stripes may be missing for “[m]aybe like eight or ten feet and then it’ll be striped again.”

Gerard Zeringue testified that when he drives on the curve near the accident site, he slows down and makes sure that he stays in his lane in order to negotiate this curve. He also acknowledged that there are areas in the roadway where the yellow stripe is worn, but this did not cause him any problems and he was not confused as to what half of the road he was to be traveling in.

The jury was presented with all of the evidence and found that the State was not negligent. Clearly, the jury did not believe that the condition of the State-owned roadway caused or contributed to the accident in this case. Considering all of the testimony and evidence in the record before us, we find no manifest error in the jury’s determination, and this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment rendered in accordance with the jury’s verdict in favor of defendants, dismissing plaintiffs’ claims against them with prejudice.

AFFIRMED.

      . Louisiana Highway 18 is a two-lane roadway with one lane of traffic in each direction, and it has many twists and curves as it follows alongside the Mississippi River.

      . Plaintiffs filed a motion for new trial, which was denied by the trial judge on November 9, 2011.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . It is noted that plaintiffs do not argue on appeal that the trial court erred in allowing defendants to use a peremptory strike to excuse Mr. Robins from the jury. Because plaintiffs made their Batson/Edmonson objection on the basis of race immediately after defendants used a peremptory challenge to excuse Mr. Robins, it is presumed that Mr. Robins is African-American. Thus, as asserted by defendants, the jury venire apparently consisted of more than three potential African-American jurors, though the racial makeup of the entire venire is not clear from the record.

      . Because defendants offered reasons for their peremptory challenges, the issue of whether plaintiffs made a prima facie showing of racial discrimination is moot and need not be addressed. See State v. Nelson, 10-1724, p. 11 (La.3/13/12), 85 So.3d 21, 29; Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991); State v. Jacobs, 99-991, p. 8 (La.5/15/01), 803 So.2d 933, 941, cert, denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002).

      .It was noted during voir dire that the “Brown's Velvet curve” is on the east bank, whereas the accident in this case occurred on the westbank. However, Mr. Smith indicated that he was familiar with “River Road” on the westbank, as well as the eastbank, and he specifically stated that he was familiar with the area where the accident occurred.

      . Defense counsel had initially challenged Ms. Woods for cause because she was a nursing student who would miss a test if chosen to be on the jury. The trial judge denied this challenge, stating that she would probably be allowed to make up the test.

      . Even if a request to visit the accident site had been made before the close of evidence, we note that generally, a trial judge has the authority to allow a visit to a site that is the subject of the litigation only in instances where the testimony is so confusing or conflicting that such an excursion would aid the factfinder in visualizing the disputed occurrence. See Bico Enterprises, Inc. v. Cantrell, 413 So.2d 260, 264 (La.App. 3 Cir. 1982). In the present case, the evidence did not appear to be confusing, and the conflicting testimony as to whether Mr. Schexnayder or the Bell-South drivers crossed the center line could not be resolved by viewing the accident site. We further note that the trial court excluded the "traffic watch’’ video from evidence when it granted defendants’ motion in limine on this issue, and plaintiffs did not show that this decision was incorrect or should be reconsidered at this stage of the proceedings.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Dylan Carey GUTIERREZ, Individually and as the Survivor of his Mother, Barbara Viola Fouchi v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY.
    No. 13-CA-341.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.
    J. Patrick Connick, Marrero, LA, for Plaintifi/Appellant, Dylan Carey Gutierrez, Individually and as the Survivor of his Mother, Barbara Viola Fouchi.
    John E. McAuliffe, Jr., Metairie, LA, Counsel for Defendant/Appellee, State Farm Fire and Casualty Company.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Chief Judge.

|2This is a wrongful death and survival action that was dismissed by summary judgment. The plaintiff appeals. We vacate and remand.

FACTS AND PROCEDURAL HISTORY

Dylan Carey Gutierrez is the son of Barbara Viola Fouchi from her first marriage. On February 20, 2009, Barbara Fouchi was shot and killed by her husband, Dana Ray Fouchi. Dana Fouchi then shot and killed himself. These events occurred in Dana Fouehi’s home at 2504 Danny Park in Metairie, Louisiana.

Dylan Gutierrez filed suit against State Farm Fire and Casualty Company, which provided homeowners insurance to Dana Fouchi. Gutierrez sought recovery under the policy’s bodily injury liability coverage. He alleged that due to Dana Fouchi’s mental state at the time Barbara Fouchi was killed, Dana Fouchi “could not and did not” have a malicious intent to inflict injury on her.

In its answer, State Farm raised coverage defenses. State Farm asserted that the claims made in this suit are not covered due to the exclusions from liability for bodily injury or property damage which is either expected or intended by the J^insured, or which is the result of willful and malicious acts of the insured. In addition, State Farm asserted the liability exclusion for bodily injury to any insured, as defined in the policy.

State Farm filed a motion for summary judgment on the grounds that no coverage was afforded for the intentional acts and/or willful and malicious acts of Dana Fouchi in murdering his wife. State Farm also claimed there was no coverage because at the time of her death, Barbara Fouchi was a resident of Dana Fouchi’s household and, therefore, was an insured under the policy definition, and the policy excludes liability coverage for an insured.

In support of the motion for summary judgment, State Farm included a copy of the insurance policy, as well as excerpts from the deposition of Dylan Gutierrez regarding the living arrangements of Barbara and Dana Fouchi. In the deposition, Gutierrez testified that his mother and Dana Fouchi had an unusual marital living arrangement, in which each of them had a home when they married, they kept their homes after the marriage, and they took turns staying at one place or the other. At the time she was killed, Barbara Fouchi had been staying at Dana Fouchi’s home for at least 10 days preceding her death.

In opposition to the motion for summary judgment, Gutierrez argued that the intentional act exclusion does not apply because Dana Fouchi had mental illnesses that rendered him incapable of understanding or intending the consequences of his actions, or of acting in a willful or malicious manner. Gutierrez also argued that his mother was not a resident of Dana Fouchi’s household when she was killed, because she had maintained a separate residence during most of the marriage, and she planned to leave Dana and end the marriage.

|4In support of his opposition, Gutierrez submitted an affidavit from Dr. Rafael Sal-cedo, a forensic psychologist, who stated,

It is my opinion that at the time of the murder-suicide, Dr. Fouchi was clearly experiencing a major depressive episode. Dr. Fouchi’s history of manic episodes and depression in all likelihood significantly impaired Dr. Fouchi’s judgment and ability to appreciate the impact and consequences of his actions at the time of the murder-suicide.

Attached to the affidavit was a report in which Dr. Salcedo detailed the information he reviewed that led him to his conclusion, including a variety of documents and medical records relating to Dana Fouchi. Attached to Dr. Salcedo’s report were the documents he used in preparing his opinion. He noted, “These records indicate that Dr. Dana Fouchi suffered from a long history of sexual addiction and sexual boundary disorders, as well as depression, posttraumatic stress disorder, and manic behaviors.” In addition, there were disciplinary reviews by the state board of medical examiners.

Gutierrez also attached excerpts from his deposition, in which he testified that his mother and Dana Fouchi, although married, did not live together and maintained separate homes. Gutierrez said that just prior to her death, his mother told him she intended to leave Dana, get a new residence, and work in California. Gutierrez further explained that when his mother was killed, she was only staying at Dana’s residence temporarily until she could move into a new apartment. Also included in the attachments were copies of bills sent to Barbara at a different address than Dana Fouchi’s home.

The trial court ruled in favor of State Farm and granted summary judgment on the basis of the intentional act exclusion.

| ¿Gutierrez has appealed. On appeal he asserts the trial court erred by improperly weighing and evaluating the credibility of Dr. Salcedo’s expert opinion and disregarding his opinion regarding Dana Fou-chi’s ability to understand and intend his actions and their consequences. He further asserts the trial court erred by failing to recognize that genuine issues of material fact relating to Dana Fouchi’s state of mind and ability to understand his actions and their consequences.

ANALYSIS

Appellate courts review a judgment granting a motion for summary judgment on a de novo basis. See Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, this Court uses the same criteria as the trial court in determining whether summary judgment is appropriate — whether there is a genuine issue of material fact and whether mover is entitled to judgment as a matter of law. Id.

We do not reach the merits of this appeal, however, because we find the trial court erroneously considered evidence not properly before the court.

The motion for summary judgment was argued on October 29, 2012. The hearing consisted entirely of oral argument. The evidence on which the parties rely — the insurance policy, the Gutierrez deposition, the affidavit of Dr. Salcedo and its attachments, and other documents — -was attached to the parties’ pleadings. None of it was officially offered or introduced at the hearing.

La. C.C.P. art. 966(B) formerly provided, in pertinent part, “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis added).

|fiAlthough there is ample jurisprudence from previous years providing that evidence listed in La. C.C.P. art. 966(B) and attached to a motion for summary judgment could be considered by the trial court, La. C.C.P. art. 966 was amended by Acts 2012, No. 257, § 1, and Acts 2012, No. 741, § 1, with an effective date of August 15, 2012. The words “on file” were deleted by the 2012 amendments, and the amendments added a second paragraph to La. C.C.P. art. 966(E) that provided, “(2) Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.” (Emphasis added.)

Thus, at the time of the hearing on the motion for summary judgment here, La. C.C.P. art. 966 mandated that only evidence formally admitted into evidence during the summary judgment hearing could be considered by the trial court. Marengo v. Harding, 13-47, p. 5 (La.App. 5 Cir. 5/16/13), 118 So.3d 1200, 1202. Evidence physically attached to the motion or placed in the record could not be considered unless it was properly introduced and admitted into evidence at the hearing. Id.

Accordingly, in our de novo review of the motion for summary judgment on appeal, we cannot consider the documents attached to the parties’ pleadings. Id. Hence, there is no evidence before us either for the grounds of the motion for summary judgment or for the defenses to the motion. Therefore, the judgment must be vacated.

DECREE

For the foregoing reasons, the judgment is vacated and remanded. The parties are assessed their own costs for this appeal.

VACATED AND REMANDED.

      . Dylan Gutierrez is the only child of Barbara Viola Fouchi, bom of her marriage to Kevin Ralph Gutierrez, from whom she was divorced in 1997. After another marriage that ended in divorce in 2007, Barbara married Dana Ray Fouchi in January 2008.

      . The policy defines "insured” as the named insured and the named insured's relatives, if residents of the household.

      . Dana Fouchi was a physician.


text:
    In re Medical Review Panel Claim of Steve A. HALM.
    No. 13-CA-344.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Christopher H. Sherwood, Warren A. Forstall, Jr., Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Charles F. Gay, Jr., Katie F. Wollfarth, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERTA. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

1 ¡.Steve A. Halm appeals from a judgment sustaining exceptions of prescription/peremption urged by Dr. Julio Figueroa and Dr. Andrew Cohen in this medical malpractice action. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Halm received treatment at the Ochsner Clinic for kidney problems for a number of years. Dr. Figueroa and Dr. Cohen both diagnosed his problem as a renal cyst and treated him for this condition. Mr. Halm’s last treatment by Dr. Figueroa was on June 27, 2005, and his last treatment by Dr. Cohen was on April 24, 2007. He was subsequently treated for a renal cyst by other doctors at Ochsner until July 20, 2011. He then sought treatment with other physicians at another facility where it was determined that he suffered from other kidney problems which necessitated surgery.

Mr. Halm filed his complaint with the Patients’ Compensation Fund on June 22, 2012, alleging that Dr. Figueroa and Dr. Cohen had originally misdiagnosed his condition. He further alleged that this misdiagnosis caused his | ?,actual condition to worsen, which led to serious complications requiring surgery and the resulting loss of one kidney. Both doctors urged exceptions of prescription/preemption which were sustained. This appeal followed.

DISCUSSION

The law applicable here is La. R.S. 9:5628, which provides that medical malpractice claims prescribe one year from the date of the alleged act, or, if the injury is not immediately knowable, one year from discovery of the act, but in no case more than three years from the commission of the negligent act. Although Mr. Halm’s last treatment by Dr. Figueroa and Dr. Cohen occurred more than three years prior to the filing of his medical malpractice claim, he contends that because other physicians at the Ochsner facility subsequently continued to treat and misdiagnose his condition, prescription did not begin to run on his claims against Dr. Figueroa and Dr. Cohen until July 20, 2011, the last date of treatment for his kidney condition at the Ochsner facility.

In In re Medical Review Panel for Claim of Moses, 00-2643 (La.5/25/01), 788 So.2d 1173, the Louisiana Supreme Court set forth the requirement that continued tortious treatment or conduct on defendant’s part is an essential element for possibly invoking the continuing tort doctrine. In that case, the plaintiff underwent a surgical procedure requiring sutures. The plaintiff discovered more than three years after removal of the sutures that the physician had negligently failed to remove all of the sutures. The issue before the court was whether this constituted a continuing tort which delayed the commencement of the three-year period of the statute until the problem was discovered. After discussing in detail the relationship of the statute to the jurisprudential rules regarding contra non valentem, the Court ruled as follows:

| ¿First, we leave open the question of whether the continuing tort doctrine can be invoked to enlarge the three-year repose period. Nonetheless, we hold that given this court’s continuing tort jurisprudence, coupled with the clear legislative intent set forth in Section 5628 to impose a fixed time limit on the discovery rule, continued tortious treatment or conduct on defendant’s part is an essential element for possibly invoking the continuing tort doctrine in this context. Given the lack of such treatment or conduct in this case within the three-year repose period, we conclude that plaintiffs claim prescribed.

Id. at 1187.

Here, there is no question that the acts in question, ie., the alleged misdiagnoses by Dr. Figueroa and Dr. Cohen, occurred more than three years prior to Mr. Halm’s institution of the present action. Further, it is equally clear that neither Dr. Figueroa nor Dr. Cohen provided any treatment to Mr. Halm during the three-year period preceding the filing of his medical malpractice claim. Given that neither of these doctors provided continuing treatment to Mr. Halm during this time period, an essential element for the potential application of the continuing tort doctrine is lacking. Under the above statute and the jurisprudence of Moses, the claims against Dr. Figueroa and Dr. Cohen have clearly prescribed.

Mr. Halm attempts to avoid the rule of Moses by asserting that because he continued to be treated by other doctors at the Ochsner facility, these treatments served to satisfy the requirement of a “continued tortious treatment or conduct on defendant’s part.” The reasoning behind this assertion seems to be that the alleged negligent treatment by doctors who treated plaintiff after 2005 and 2007, respectively, should be attributed to Ochsner, and then reattributed from Ochsner to Dr. Figueroa and Dr. Cohen so as to interrupt prescription on the claims against these two doctors.

Appellant cites Winder v. Avet, 613 So.2d 199 (La. 1st Cir.1992), for the proposition that if the treatment is performed at the same facility, this fact is ^sufficient to establish continuing treatment no matter which doctors are involved. We find no support for this proposition in the cited case. Winder involved a physician who misdiagnosed a patient’s condition and treated him for that mistaken condition. These treatments were administered over a period of time at the hospital where the doctor worked and were found to have caused the patient’s death. The error was discovered more than three years after the misdiagnosis, but within a few months after the last treatment. The court found that because of the continuing erroneous treatments by the doctor, a continuous tort was involved and therefore the claim had not prescribed. For reasons not made clear in the opinion, the hospital was also cast in judgment. There is nothing in the case which would support the assertion that treatment at the same hospital by different physicians extends the prescriptive period as to doctors who treated the patient there more than three years before the claim was asserted.

In Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116, the Court noted that:

On the other hand, hospitals ... are distinct legal entities that do not, in the traditional sense of the word, “practice” medicine. In the absence of statute, hospitals are subject to potential tort liability only vicariously on the basis of respondeat superior or independently on the basis of negligent hiring or training of the professional staff members employed by the hospital.

Id. at 119.

While a hospital may be vicariously liable for the negligence of a doctor-employee, a doctor-employee, simply by virtue of his status as an employee of the hospital, cannot be liable for the acts of another doctor-employee which render the hospital liable. Thus, even if other doctors at Ochsner also misdiagnosed Mr. Halm’s condition subsequent to the alleged misdiagnoses by Dr. Figueroa and Dr. Cohen, those acts cannot be used to interrupt prescription as to the earlier treating |fiphysicians, or to extend the three-year period of La. R.S. 9:5628 in regard to those physicians. We thus reject this argument as well.

Mr. Halm’s final argument is that the trial judge erred in refusing to permit him to testify at the hearing on the exceptions. When Mr. Halm’s counsel offered to call his client at the hearing, the trial judge responded, “I don’t think we require testimony at this time on the exceptions.” Although the trial judge expressed his opinion regarding the necessity of Mr. Halm’s testimony, it does not appear that he refused to allow Mr. Halm to testify, and no objection was made by counsel at that time. In Matthews v. Breaux, 04-958 (La.App. 5 Cir. 2/15/05), 896 So.2d 1146, this court repeated the general rule that to preserve an evidentiary issue for appellate review a party must make a contemporaneous objection and state the reasons why it should be admitted. Neither was done in this case, and therefore that issue is not properly before us on appeal.

CONCLUSION

For the foregoing reasons, the judgment sustaining the exceptions urged by Dr. Figueroa and Dr. Cohen, and dismissing the suit against them, is hereby affirmed.

AFFIRMED