text:
    Andy VALENCE v. JEFFERSON PARISH HOSPITAL DISTRICT NO. 2 d/b/a East Jefferson General Hospital, Dr. Raymond R. DeCorte & Dr. Don Ray Guzzetta, et al.
    No. 13-CA-48.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Andy Valence, In Proper Person, West-wego, LA, Plaintiff/Appellant.
    E. Paige Sensenbrenner, Jaimme A. Collins, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

lain this medical malpractice action, plaintiff appeals the trial court’s granting of summary judgment in favor of defendants-doctors. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Andy Valence, underwent surgery for a ventral hernia repair on December 21, 2006, at East Jefferson General Hospital. Drs. Raymond DeCorte and Don Guzzetta, defendants herein, performed plaintiffs surgery using a Salute 20 Fixation Device, or “tacker,” to affix a large oval mesh patch to plaintiffs abdomen. During the surgery, the tacker allegedly misfired twenty-one staples into plaintiffs abdomen. Following the hernia repair, but while plaintiff remained in the operating room, defendants conducted an instrument count which showed one instrument, a hemostat, missing. After an x-ray taken in the operating room 13revealed that the hemostat remained in plaintiffs abdomen, defendants retrieved the hemostat from plaintiffs abdomen.

Plaintiff, in proper person, filed suit against various defendants including defendants herein, Drs. DeCorte and Guzzet-ta, alleging that they negligently: (1) used a defective tacker subject to recall; (2) used a defective mesh patch subject to recall; and (3) left a hemostat in his body following the hernia repair surgery.

Following preliminary discovery, defendants filed a motion for summary judgment, asserting that plaintiff failed to produce any evidence to show that defendants breached the standard of care in performing plaintiffs surgery. Specifically, defendants pointed out that plaintiff produced no expert testimony or opinion to support his allegations against them. In support of their motion, defendants attached a medical review panel opinion stating that defendants did not breach the standard of care in performing plaintiffs surgery. The medical review panel, as to Drs. Guz-zetta and DeCorte, found:

1.Dr. Guzzetta properly assisted Dr. DeCorte in the patient’s hernia repair.
2. Dr. DeCorte appropriately tested the tacker prior to using it on the patient.
3. The surgeon would not be able to see how the tack is fired until he removes the instrument. Only a small portion of the tack is visible underneath the mesh after firing. A straight tack would not be seen because the straight part would be in the subcutaneous tissue.
4. The number of tacks used in this procedure was reasonable.
5. Tack counting is variable in all eases and is not required.
6. The uncoiled tacks would not indicate further surgical intervention.
7. The records indicate that the mesh was successfully secured by the tacks.
8. Instrument counts are performed following closure because the act of closing the patient requires the use of more instruments that could be left in the body and those instruments also have to be accounted for.
|49. The mesh recall was for a memory recoil ring breaking during insertion and this event did not occur during the patient’s surgery. Therefore, it was not necessary for Dr. DeCorte to notify the patient of the recalled mesh.

In response to the motion for summary judgment, plaintiff filed an opposition memorandum arguing that no expert testimony is required in this case because it is not a medical malpractice case and/or is a ease in which a lay person could infer obvious negligence.

The trial court conducted a hearing on defendants’ motion for summary judgment on August 21, 2012. At the conclusion of the hearing, the trial judge granted defendants’ motion, finding that plaintiff failed to sustain his burden of proof because he failed to produce any expert medical opinion to prove that defendants breached the standard of care in performing plaintiffs surgery. This timely appeal follows.

DISCUSSION

In his sole assignment of error, plaintiff alleges that “[t]he trial court erred in failing to allow then [sic] plaintiff to submit his physical evidence of his surgical staple and ex-rays, and ct-scans.” We address this assignment of error and review the trial court’s granting of defendants’ motion for summary judgment.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163. The summary judgment procedure is favored and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2).

A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions, 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.” La. C.C.P. art. 966(B)(2). On a motion for summary judgment, the burden of proof remains with the movant. “However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

The Louisiana Supreme Court has interpreted the burden-shifting language of La. C.C.P. art. 966(C)(2) and found that the article “first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.” Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058,1070.

In this case, we first find that plaintiffs claims against defendants are clearly allegations of medical malpractice. To establish a claim for medical malpractice, |fia plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794.

Expert testimony is generally required in a medical malpractice case to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Schultz v. Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002, 1006-07. The Louisiana Supreme Court has recognized that expert testimony is not always required but that, in most cases, the plaintiff will be unable to sustain his burden of proof without such evidence. Id. In cases of “obvious negligence that could be inferred by a lay person,” expert testimony may not be required. Pfijfmr v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228, 1234. The Louisiana Supreme Court has provided examples of acts of obvious negligence in a medical malpractice action that would not require the plaintiff to present expert testimony, such as “where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body.” Id.

In this case, plaintiff asserts expert testimony is not required because defendants’ negligence — firing twenty-one staples into his abdomen and leaving a hemostat in his body during surgery — is obvious negligence that a lay person could l7infer. Alternatively, plaintiff asserts that the doctrine of res ipsa loqui-tur applies and substitutes the requirement for expert testimony in his case.

Plaintiff argues that retrieval of the hemostat after his surgery caused a “redistribution and disruption of the hernia repair ...” and that leaving an instrument in a patient’s body after surgery is clear negligence that a lay person could infer. Conversely, defendants argue that this is not a “retained instrument case” where an instrument is retained in a patient’s body after surgery and is discovered after the retained instrument causes pain or symptoms. In support of their motion for summary judgment, defendants produced a medical review panel opinion that specifically states defendants did not breach the standard of care in the timing of the instrument count at the conclusion of plaintiffs surgery or in the retrieval of the hemostat left in plaintiffs body. The medical review panel explains that “[ijnstrument counts are performed following closure because the act of closing the patient requires the use of more instruments that could be left in the body and those instruments also have to be accounted for.”

We find this is not a retained instrument case where an object is left in a patient’s body for an extended period of time following surgery and causes bodily injury necessitating a subsequent surgery or treatment. (Compare Romero v. Beilina, 01-274 (La.App. 5 Cir. 9/25/01), 798 So.2d 279, 282 (in which the plaintiff-patient sustained injuries caused by a sponge left in her body discovered months after surgery, resulting in severe abdominal pain and a subsequent surgery) and Davis v. Women and Children’s Hospital Lake Charles, 11-0318 (La.App. 3 Cir. 10/5/11), 74 So.3d 291 (in which unexplained drainage at the original incision site days after surgery resulted in a subsequent exploratory surgery, revealing a sponge left in the plaintiff-patient’s body)).

RAs to the alleged recalls of the tacker and mesh patch, plaintiff asserted in his opposition memorandum that defendants received notice of the recalls in December of 2005 by Federal Express letters. However, these letters are not attached to his opposition memorandum nor are they placed in the record. There is no evidence to support plaintiffs allegations that defendants had notice of any alleged recall at the time of plaintiffs surgery.

We find that whether defendants breached the standard of care during plaintiffs surgery and whether such breach caused plaintiffs damages will require expert testimony to establish the standard of care in the use of the tacking device and number or type of staples appropriate for plaintiffs surgery, the placement and type of mesh patch appropriate for such surgery, and the proper procedure for instrument counts and instrument retrieval following surgery. Therefore, we conclude that this case is one which will require expert testimony and is “simply beyond the province of a lay person to assess without the aid of expert testimony.” Schultz v. Guoth, 57 So.3d at 1009.

Plaintiff alternatively claims that the doctrine of res ipsa loquitur applies in this case and therefore expert testimony is not necessary. The Louisiana Supreme Court has stated: Linnear v. CenterPoint Energy Entex/Re-liant Energy, 06-3030 (La.9/5/07), 966 So.2d 36, 45.

Res ipsa loquitur is a rule of circumstantial evidence which allows an inference of negligence on the part of the defendant if the facts indicate the defendant’s negligence, more probably than not, caused |flthe injury. It applies in cases involving circumstantial evidence, rather than direct evidence, provided the plaintiff establishes the following foundation of facts: (1) the injury is of the kind which does not ordinarily occur in the absence of negligence; (2) the evidence sufficiently eliminates other possible causes of the injury, such as the plaintiffs own responsibility or the responsibility of others; and (3) the alleged negligence of the defendant must fall within the scope of his duty to the plaintiff, which will often be the case if the defendant had exclusive control of the thing or situation that caused the injury to the plaintiff.

Application of the res ipsa doctrine is not appropriate where specific acts of negligence are alleged and direct evidence is available to explain a reason for plaintiffs damages or the defendants’ actions. See Walston v. Lakeview Regional Medical Center, 99-1920 (La.App. 1 Cir. 9/22/00), 768 So.2d 238, 242. Further, application of the res ipsa doctrine “does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery.” Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 666 (La.1989). Moreover, “[i]n medical malpractice actions based on res ipsa loquitur, the plaintiff generally must use expert testimony to establish that the plaintiffs injury is a type which ordinarily would not occur in the absence of negligence.” Id. at 667.

In this case, plaintiff has alleged specific acts of negligence, ie., use of recalled equipment and failure to retrieve all instruments from his body during surgery, and there is direct evidence, such as witnesses’ testimony and medical records, available to explain what occurred during plaintiffs surgery. Further, we find that the evidence does not sufficiently eliminate other causes of injury, such as the responsibility of the tacker or mesh patch manufacturer. Accordingly, we find the doctrine of res ipsa loquitur does not apply to the facts of this case.

ImUpon review of the record, we find that defendants properly pointed out an absence of support for plaintiffs medical malpractice claim, ie., that plaintiff did not put forth any expert medical testimony to prove that defendants breached the standard of care in performing plaintiffs surgery. Thereafter, plaintiff failed to produce any medical expert testimony or opinion to support his claims. Accordingly, we find the trial court correctly granted defendants’ motion for summary judgment in this case.

In his only assignment of error presented to this Court, plaintiff asserts that the trial court refused to allow him to introduce evidence to support his claims. The record does not support plaintiffs assertion. At the hearing on defendant’s motion for summary judgment, plaintiff informed the court that he had one staple removed from his abdomen and told the court, “if you’d like to take a look at it ... [,]” he would present from his coat pocket the actual staple removed from his abdomen. Plaintiff alleges that, at that time, the trial judge “shook her head negatively and lowely [sic] said ‘NO.’” Plaintiff argues that the trial judge’s response indicated that she would not accept any evidence at the hearing. Upon our review of the record, we find plaintiff did present documents in opposition to defendants’ motion for summary judgment and did not attempt to introduce any additional evidence at the summary judgment hearing. The record does not support plaintiffs assertion that the trial judge refused to allow plaintiff to present additional evidence. This assignment of error is without merit.

Jj¿CONCLUSION

Accordingly, for the reasons provided herein, we affirm the trial court’s judgment granting defendants’ motion for summary judgment.

AFFIRMED.

      . A fixation device is commonly known as a staple gun.

      . Defendants used a Bard Composix Extra Large Oval 7.7" x 9.7" mesh patch.

      . Plaintiff alleges there are ten (10) "coiled” and ten (10) "straight” staples or constructs in his abdomen. Plaintiff asserts that he underwent an in-office procedure to remove one staple but that the others remain in his abdomen.

      . Plaintiff also named as defendants: Jefferson Parish Hospital District No. 2 d/b/a/ East Jefferson General Hospital ("EJGH”); Dr. Mark Peters, EJGH president; all 19 members of EJGH's board of directors; anyone who occupied the operating room where his surgery took place during the eight hours prior to, or eight hours after, his surgery; four EJGH radiologists; Dr. Charles Eckert, an EJGH anesthesiologist; nine EJGH nurses; and Trey Stephens, an EJGH supplies vendor.

      . Although plaintiff does not raise the argument on appeal, he asserted at the trial court level that his case is not a medical malpractice case under La. R.S. 9:2794. Rather, plaintiff argued that his case is a case of general negligence because he was not a "patient” of EJGH at the time of his surgery. Applying the Coteman factors to the facts of this case upon our de novo review, we find this case — arising out alleged damages sustained during a hernia repair surgery performed by plaintiff's treating physicians'— clearly falls within the ambit of the Medical Malpractice Act pursuant to La. R.S. 9:2794. Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303.

      . At the hearing on defendants’ motion for summary judgment, however, plaintiff stated that he believed defendants did not receive notice of the recall prior to his surgery.

      . Plaintiff does provide a document entitled, "About Kugel Mesh Patches” indicating that the manufacturer of the Bard Composix Ku-gel Extra Large Oval 7.7" x 9.7" with the product code 0010208 recalled the patch in December of 2005 or January 2006. However, that document states that the recall only applied to those patches manufactured prior to December of 2006. Although plaintiff alleges that Dr. DeCorte testified in deposition that the mesh patch sat on a shelf for over a year before plaintiff's surgery, plaintiff failed to attach a certified copy of Dr. DeCorte's deposition or any other proof to show that the mesh patch used in plaintiffs surgery was in fact the recalled patch. The record reflects that plaintiff has settled a case in federal court for $250,000.00 against the manufacturer of the fixation device and indicates that he has a pending class action suit against the manufacturer of the Kugel mesh patch.

      .The trial court previously granted summary judgment in favor of EJGH. In her Reasons for Judgment, the trial judge stated that EJGH provided evidence to show that the tacker and mesh patch used in plaintiff's surgery were not recalled at the time of the surgery and that plaintiff failed to put forth any evidence to show that any defendant had notice of the alleged recalls at the time of plaintiffs surgery.

      . Plaintiff presented no medical expert testimony or opinion in his opposition to defendants’ motion for summary judgment. Defendants assert that plaintiff, in discovery, indicated that he would call Dr. Angie Sas-sard, a doctor in defendants’ practice, as an expert to support his claims. In support of their motion for summary judgment, however, defendants attached Dr. Angie Sassard’s affidavit, which stated that she did not participate in plaintiff's care or treatment and that she has no first-hand knowledge of the surgery at issue in this litigation. Dr. Sas-sard further attested that she will not testify that Drs. Guzzetta and DeCorte breached the standard of care in performing the surgery at issue.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge. LILJEBERG, J., CHAISSON, J.

license: Public Domain

text:
    QUANTUM RESOURCES MANAGEMENT, L.L.C. & Milagro Producing, L.L.C. v. PIRATE LAKE OIL CORPORATION, et al.
    No. 13-CA-74.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      John F. Shreves, Donald J. Brannan, Megan S. Peterson, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Adrian F. Lapeyronnie, III, Ann Thompson, Attorneys at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| ^.Defendant, Allen Kent Jones, filed this appeal from the trial court’s judgment awarding an additional $39,219.75 in attorney’s fees and costs, contending that the award is excessive. Adrian Lapeyronnie, appointed counsel for absentee defendant Jennifer Jones, filed an answer, seeking an increase of attorney’s fees awarded in the trial court and requesting attorney’s fees for the defense of this appeal. For the reasons that follow, we affirm the decision of the trial court. We further deny any relief as prayed for in appellee’s answer.

FACTS AND PROCEDURAL HISTORY

The relevant facts and procedural history of this matter were set forth by this court in Quantum Res. Mgmt., L.L.C. v. Pirate Lake Oil Corp., 12-256 (La.App. 5 Cir. 11/13/12), 105 So.3d 867, 868-69, writ denied, 13-0084 (La.3/8/13), 109 So.3d 361 (footnotes omitted). Briefly, Quantum Resources Management, L.L.C. & Milagro Producing, L.L.C. (hereinafter “Quantum”) filed this concursus proceeding, asserting that they were the unit operator of two producing wells, |sknown as the Mayronne No. 1 Well and the Mayronne No. 2-Alt Well, located on property that included Lots 1-5 near Lafitte, Louisiana. Quantum deposited production proceeds from the producing wells into the registry of the court. Quantum named various parties as defendants, which they identified from the public records as possibly having ownership interests in and to portions of the property that formed part of the land on which the wells were located.

Among the defendants named were Allen Kent Jones, Jennifer Elizabeth Jones, Patrick Kent Lindsay Jones and Jacqueline A.L. Jones. On May 30, 1989, Elizabeth Corrine Handlin Jones, wife of Allen Kent Jones, and mother of Jennifer, Patrick, and Jacqueline Jones, died testate in the State of Texas. Mrs. Jones bequeathed all of her property, both community and separate, to her surviving spouse. Included were Lots 1-5, which were Mrs. Jones’ separate property. However, at the time of Mrs. Jones’ death, Louisiana law provided that all children of the deceased, regardless of age, were forced heirs. Nevertheless, Mrs. Jones’ succession was probated in Texas and Mr. Jones was placed in possession of all her property.

In August of 1999, Mr. Jones and the Jones children filed an action entitled “Ancillary Succession of Elizabeth Corrine Jones,” in the 24th Judicial District Court. A judgment of possession was rendered in that proceeding recognizing the Jones children as Mrs. Jones’ forced heirs as to her Louisiana separate property, and reducing the universal bequest made to Mr. Jones, since the original bequest to Mr. Jones impinged upon the Jones children’s legi-time. The judgment of possession placed Mr. Jones into possession of half of Mrs. Jones’ interest in and to the subject property in full ownership, and placed the Jones children into possession of the remaining half of her interest in and to the subject property as naked owners, subject to a lifetime usufruct in favor of Mr. Jones.

LMayronne No. 1 Well began production sometime in 1996, and the Mayronne No. 2-Alt Well began production sometime in 2000. Several of the defendants-in-eoncur-sus, including Mr. Jones and the Jones children, asserted claims in the concursus proceeding to the funds deposited into the registry of the court. Jennifer Jones was an absentee defendant and on July 15, 2011, pursuant to a motion filed by Mr. Jones, the trial court appointed Adrian Lapeyronnie to represent her.

Mr. Jones filed a motion for summary judgment in the concursus proceeding, arguing that he, as usufructuary, was entitled to the portion of the proceeds deposited into the registry of the court attributable to his children’s naked ownership interests in and to the subject property, under the provisions of the Louisiana Mineral Code. Jennifer Jones filed a cross-motion for summary judgment, taking the contrary position that under the pertinent Mineral Code provisions, the naked owners, not the usu-fructuary, are entitled to the mineral proceeds in question. At issue was the question of when Mr. Jones’ usufruct was created, whether it was in 1989 at Mrs. Jones’ death, or in 1999, when the judgment of possession was rendered in the ancillary succession proceeding.

The trial court rendered judgment on December 15, 2011, amended on February 15, 2012, granting summary judgment in favor of Jennifer Jones and denying Mr. Jones’ motion for summary judgment. The trial court did not assign reasons for its judgment. Mr. Jones appealed from the trial court’s judgment, as did plaintiffs.

On November 22, 2011 and again on March 19, 2012, while the appeal was pending, Mr. Lapeyronnie filed motions to have the court set attorney’s fees and costs. Mr. Jones’ motion to terminate representation was denied on March 15, 2012. On May 10, 2012, the trial court awarded Mr. Lapeyronnie costs and |fiattorney’s fees in the amount of $48,778.37. The judgment was assessed against Mr. Jones, the party who requested court-appointed counsel for Jennifer Jones. On June 19, 2012 the judgment was amended to allow payment of the costs and attorney’s fees from the amount deposited in the registry of the court.

On July 25, 2012, Mr. Lapeyronnie filed an additional motion to assess attorney fees and costs for the time period from March 9, 2012 through June 20, 2012, alleging that he had performed additional work in the representation of Jennifer Jones, including representation on appeal and the first two motions to set costs and attorney’s fees. On September 18, 2012 the trial court granted Mr. Lapeyronnie’s motion and awarded additional costs and attorney’s fees of $39,219.75. On December 4, 2012, the judgment was amended to allow payment of the costs and attorney’s fees from the registry of the court.

Thereafter, on November 13, 2012, this Court reversed the finding of the trial court, concluding that Mr. Jones’ usufruct was created when the judgment of possession was rendered in Mrs. Jones’ ancillary succession proceedings, and not at the time of her death in 1989, and that he was entitled, as usufructuary, “to the mineral proceeds deposited into the registry of the court in proportion to the naked owners’ interest in and to the subject property.”

Mr. Jones now appeals from the judgment of September 18, 2012, granting to Mr. Lapeyronnie an additional $39,219.75 in costs and attorney’s fees. In his appeal, Mr. Jones alleges that the trial court erred in awarding attorney’s fees prior to a final determination of the underlying case. Mr. Jones also argues that the trial court erred in its supplemental award of attorney’s fees. Mr. Jones contends that the trial court failed to consider the mandatory factors for determining the measure of reasonableness of an attorney’s fee award, and that had the court done so, it would not have awarded any additional fees in this matter. Mr. Jones alleges that 16the award of $39,219.75, when added to the court’s prior award, constitutes an unreasonable and excessive fee.

Mr. Lapeyronnie filed an answer, seeking both an increase in the award from the trial court (from $39,219.75 to $57,494.75) and an award for costs and attorney’s fees arising from this appeal.

ANALYSIS

In Louisiana, the prevailing party may not recover attorney’s fees except where authorized by contract or statute. St. Blanc v. Stabile, 12-677 (La.App. 5 Cir. 4/24/13) 114 So.3d 1158, writ denied, 13-1185 (La.8/30/13), 120 So.3d 270; Brand-ner v. Staf-Rath, L.L.C., 12-62 (La.App. 5 Cir. 5/31/12), 102 So.3d 186, 189, writ denied, 12-2196, 12-2210 (La.11/21/12), 102 So.3d 62. In this case, attorney’s fees are provided by C.C.P. art. 5096 which provides that “The court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but shall be taxed as costs of court.” Furthermore, where a curator has been forced to litigate payment of a fee, the courts have allowed collection of an additional fee for that work as well. State in Interest of M.L.W., 12-331 (La.App. 5 Cir. 12/11/12), 106 So.3d 1121, 1123, writ denied, 13-0093 (La.3/1/13), 108 So.3d 1175.

A reasonable attorney’s fee is determined by the facts of an individual case. St. Blanc, supra at 1160; Gottsegen v. Diagnostic Imaging Services, 95-977 (La. App. 5 Cir. 3/13/96), 672 So.2d 940, 943, writ denied, 96-0707 (La.4/26/96), 672 So.2d 909. Factors to be taken into consideration in determining the reasonableness of attorney’s fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5)the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances 17involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Rivet v. State, Dept, of Transp. & Dev., 96-0145 (La.9/5/96), 680 So.2d 1154, 1161, citing State, DOTD v. Williamson, 597 So.2d 439 (La.1992). See also Fed. Nat. Mortgage Ass’n v. Brown, 631 So.2d 521 (La.App. 4 Cir.1994).

[4,5] Courts consider the above factors in all cases to determine reasonable attorney’s fees to be awarded regardless of whether the right to attorney’s fees arises by statute or contractual provision. St. Blanc, supra at 1160; Brandner, supra at 189. The court is not bound by a contingency fee contract or the amount actually charged by the attorney. Jackson Square Towne House Home Ass’n, Inc. v. Hanni-gan, 38,239 (La.App. 2 Cir. 3/3/04), 867 So.2d 960, 965-66. The trial court has much discretion in fixing the award of attorney’s fees and this award will not be modified on appeal absent an abuse of discretion. Doucet v. First Fed. Guar., 11-9 (La.App. 5 Cir. 8/30/11), 72 So.3d 478, 485, writ denied, 11-2384 (La.12/16/11), 76 So.3d 1207.

Mr. Jones first argues that the trial court erred in the second award of attorney’s fees prior to the final determination of the underlying case, or while the case was pending on appeal. Mr. Jones contends that since one of the factors for determining the reasonableness of an award of attorney’s fees is the outcome of the litigation, which was unknown until after this court’s decision on the underlying matter, the trial court was premature in its award.

La. C.C.P. art. 5096 provides that “The court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but shall be taxed as costs of court.” Pursuant to C.C.P. art. | s2088, the trial court retains jurisdiction to award these fees, even while an appeal is pending. Brandner v. Staf-Rath, L.L.C., 12-62 (La.App. 5 Cir. 5/31/12), 102 So.3d 186, fn. 3. We find no merit to this argument.

Mr. Jones next argues that the trial court was manifestly erroneous and abused its discretion in failing to consider mandatory factors for determining the measure of reasonableness of an attorney’s fee award as set forth in Williamson, and as mandated by this Court in Brandner, supra.

Our review of the record reflects that the factors were argued to the court on several occasions during both hearings on the setting of the attorney’s fees. The trial judge was familiar with and had a close understanding of the complexities and difficulties of the litigation. In rendering the judgment, the trial judge stated that he considered the applicable law, which would include the aforesaid factors to be applied in setting attorney’s fees. The trial court is not required to give reasons for judgment unless requested to do so by a party, La. C.C.P. art. 1917; St. Blanc, supra, and therefore the trial court was not required to enumerate the factors and how the court has applied them. Thus, we find this argument to be without merit.

In his last two arguments, Mr. Jones contends that the trial court abused its discretion in its second award for attorney’s fees and costs of $39,219.75 which award, when added to the previous attorney’s fees award of $48,778.37, constitutes an unreasonable and excessive award under the facts of this case and under applicable law and jurisprudence. Mr. Jones further contends that the court erred in failing to rule that counsel was not entitled to any additional award of attorney’s fees after its initial award of $48,778.37.

The award of attorney’s fees encompasses two proceedings. First, Mr. La-peyronnie is entitled to collect attorney’s fees for the work performed in the appeal on behalf of Jennifer Jones in this case. Second, Mr. Lapeyronnie is |9entitled to attorney’s fees expended for having to file proceedings to collect the attorney’s fees for having been appointed to represent Jennifer Jones.

With regard to the attorney’s fees for the work performed on behalf of Jennifer Jones, Mr. Lapeyronnie had been successful in obtaining a judgment in her favor in the trial court. Mr. Lapeyronnie then had an obligation to defend this judgment against two appellants who presented two separate arguments to this court. While Mr. Lapeyronnie may have ultimately been unsuccessful in obtaining relief for his client, he was nonetheless obligated to advocate on behalf of Jennifer Jones at both trial and appellate levels.

Furthermore, Mr. Lapeyronnie was obligated to file proceedings to collect attorney’s fees for his work in this matter, both at the trial level and the appellate levels. These proceedings were contested by Mr. Jones, necessitating the filing of memorandum and two court appearances.

Attached to Mr. Lapeyronnie’s proceedings was a “Detail Transaction File List” describing the actions he took for both the appeal and his work to obtain attorney’s fees. Our review shows that the actions listed and the times assessed for these actions were not unreasonable, and that the trial court’s findings and award of fees was not clearly wrong or manifestly erroneous.

Mr. Jones argues that the trial court’s first award on $48,778.37 was reasonable for the entirety of work performed. However, the trial court found that amount reasonable for representation prior to the appeal, and Mr. Jones did not challenge that ruling. Considering the discretion of the trial court and taking into account the factors to be used in setting attorney’s fees, including the nature of the litigation involved, and the obligations and performance of counsel, we cannot say that the trial court erred in awarding an additional $39,219.75 in attorney’s fees li0and costs for Mr. Lapeyronnie’s representation of Jennifer Jones on appeal and also for his proceedings to obtain those fees.

In his answer, Mr. Lapeyronnie seeks an increase in the second award of attorney’s fees, from $39,219.75 to $57,494.75. However, having found no abuse in the trial court’s ruling awarding $39,219.75 in attorney’s fees, we will not disturb the judgment of the trial court and so refuse to increase those fees.

Also in his answer, Mr. Lapeyron-nie seeks attorney’s fees for this appeal. Even when requested, additional attorney’s fees may not be granted where the appellate court finds that the amount awarded in the trial court was sufficient to compensate counsel for both the work before the trial court and on appeal. Strong v. Eldorado Casino Shreveport Joint Ven ture, 46,464 (La.App. 2 Cir. 8/10/11) 73 So.3d 967, 980, writ denied, 11-1975 (La.11/14/11), 75 So.3d 947. We find that the awards of attorney’s fees, which total $87,998.12, are sufficient to compensate Mr. Lapeyronnie for his work in this proceeding and we decline to award any additional fees.

For the above discussed reasons, the judgment of the trial court is affirmed, each party to bear its own costs.

AFFIRMED.

LILJEBERG, J., Concurs with Reasons.

CHAISSON, J., Dissents with Reasons.

LILJEBERG, J.,

Concurs with Reasons.

While I believe that the award of attorney fees is rather high, the trial court is afforded much discretion in setting an award of attorney fees. Based on the record, I do not believe that the trial court abused its great discretion. Accordingly, I agree that this case should be affirmed.

CHAISSON, J.

Dissents, with Reasons.

It is well settled under the Louisiana law of usufructs that there is no usufruct that arises by operation of law in Louisiana in favor of a surviving spouse over a deceased spouse’s separate property. There was no reasonable argument under the facts of this case that Mr. Jones’ usu-fruct was a legal usufruct created at the time of Mrs. Jones’ death. In my opinion, the pursuit of an untenable legal argument which results in no recovery for the client outweighs all other Williamson factors considered in setting an appropriate attorney fee. Accordingly, I would reduce the amount of attorney fees awarded in this case.

      . In Fed. Nat. Mortgage Ass’n v. Brown, the court said that "In determining a curator's fees, the trial court should consider the nature of the case, the amount in controversy, the responsibility incurred, the complexity of the issues, the legal experience and knowledge of the attorney appointed as curator, and the ability of the plaintiff to pay.” supra at page 523.


author: HANS J. LILJEBERG, Judge.

text:
    The CITY OF GRETNA v. Mark MORICE.
    No. 13-CA-85.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Jeffery P. Brothers, Mark Morgan, Ashley J. Becnel, Travis J. Causey, Jr., Jill R. Menard, David L. Colvin, Attorneys at Law, Gretna, Louisiana, for Plaintiff/Appellant.
    E. John Litchfield, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    John B. Krentel, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Alex D. Lambert, Attorney at Law, New Orleans, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ^.Plaintiff, City of Gretna (Gretna), appeals the district court’s declaratory judgment in favor of defendant, Mark Morice. For the reasons that follow, we find that the judgment is not a final, appealable judgment. Accordingly, we dismiss the appeal without prejudice and remand for further proceedings.

FACTS & PROCEDURAL HISTORY

This case arises out of a dispute between Gretna and Mr. Morice over the construction of a residential fence to be erected at 175 Willow Drive in Gretna, Louisiana. On January 13, 2012, Gretna filed a Petition for Declaratory Judgment, that was allotted to Division “P” of the Twenty-Fourth Judicial District Court, praying inter alia: (1) that defendant, Mr. Morice, be “duly cited to appear and answer the allegations contained in” the Petition for Declaratory Judgment; (2) that “after due proceedings are had, there be a judgment in favor of [Gretna] declaring that [Gretna] shall issue a construction permit to” Mr. Morice in a manner that is consistent with Gretna Code of Ordinances § 18-7 as amended in 2011; and (3) that all prior actions taken by Gretna relative to the fence are valid and reasonable and that no amounts are owed by Gretna to Mr. Mor-ice in connection to the fence.

On March 30, 2012, Mr. Morice recon-ventionally petitioned for a writ of mandamus ordering Gretna to issue the building permit at the height, manner, and location previously determined by the district court in Division “H” on August 24,142011, when Mr. Morice was found not guilty of violating pre-amended GCO § 18-7. Mr. Mor-ice argued that a judicial determination existed that his fence did not exceed the height limit pursuant to the pre-amended GCO § 18-7 in effect at the time the fence was constructed. Mr. Morice also filed Peremptory Exceptions of No Right or Cause of Action and Res Judicata. These exceptions were denied in a separate judgment and Gretna was allowed to pursue a declaratory judgment with the exception of declaratory relief that no amounts are owed by the city of Gretna to Mr. Morice in connection with the fence.

On September 21, 2012, the district court issued a judgment granting declaratory relief. It is from this judgment that Gretna now appeals.

JUDGMENT

The district court’s judgment contains one page of incorporated written reasons followed by its decree. The decree states:

The Court after considering the pleadings, evidence, argument of counsel and the law:
IT IS ORDERED, ADJUDGED AND DECREED that the Petition for Declaratory Judgment filed on behalf of The City of Gretna, be and is hereby Granted;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Restrictive Covenants of the Garden Park Estates Owner’s Association shall be controlling as to the methodology in erecting a fence in said subdivision. The “side fences” when erected between the front building line and the rear property line, shall not exceed six (6) feet in height measured from the highest adjacent ground elevation;
PIT IS FURTHER ORDERED, ADJUDGED AND DECREED that Section 18-7 of the municipal code of the City of Gretna is silent as to the methodology which should be used to ensure that fences are not more than six (6) feet in height. Any amendments to Section 18-7 shall not have a retroactive effect unless it is specifically stated in legislation.

We find that the judgment appealed is not a valid, final judgment. Therefore, this Court lacks jurisdiction to consider the merits of Gretna’s appeal. While the district court’s reasons addressed all claims, the decree addresses only Gretna’s action for declaratory relief, but is silent as to Mr. Morice’s reconventional demand seeking mandamus relief that he be permitted to reconstruct his fence at the height, manner, and location previously determined by the district court in Division “H.”

The district court’s judgment encompassed both the district court’s written reasons and decree. While La. C.C.P. art. 1918 does not render invalid an otherwise complete and valid judgment except for the inclusion of reasons, it does require a final judgment be identified as such by appropriate language. Hinchman v. International Broth, of Elec. Workers, 292 So.2d 717 (La.1974). A final judgment must contain decretal language and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the specific relief that is granted or denied. Input/Output Marine Systems, Inc. v. Wilson Great-batch Technologies, Inc., 10-477 (La.App. 5 Cm. 10/29/10), 52 So.3d 909, 916. The specific relief granted or denied should be determinable from the judgment itself without reference to an extrinsic source such as pleadings or reasons for judgment. Id.; Babin v. State Farm Mutual Automo bile Insurance Company, 11-192 (LaApp. 5 Cir. 9/27/11), 76 So.3d 100, 102. Jurisprudence [ fireflects a well-settled rule that the district court’s oral or written reasons for judgment are separate and distinct from and form no part of the decree which is the definitive judgment, and that appellate courts review judgments, not reasons for judgment. Parker v. Succession of William Gauthier, M.D., 508 So.2d 865, 867 (LaApp. 5 Cir.1987); Wooley v. Luck-singer, 09-0571 (La.4/1/11), 61 So.3d 507, 572; Bellard v. American Cent. Ins. Co., 07-1335 p. 25 (La.4/18/08), 980 So.2d 654, 671; Alvarez v. Ciasen, 06-304 (LaApp. 5 Cir. 10/31/06), 946 So.2d 181, 184. “The written reasons for judgment are merely an explication of the trial court’s determinations. They do not alter, amend, or affect the final judgment being appealed. ...” Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d at 572, citing State in the Interest of Mason, 356 So.2d 530, 532 (LaApp. 1 Cir.1977).

Since the district court rendered a partial judgment as to less than all the claims asserted, and the judgment has not been designated as a final judgment by the court “after an express determination that there is no just reason for delay,” the judgment of the court is not a final judgment under La. C.C.P. art.1915, and is not appealable as one “in which appeals are given by law” under La. C.C.P. art.2083. See Claiborne Medical Corporation, et al v. Gulnaz Siddiqui, 12-759 (LaApp. 5 Cir. 2/28/13), 113 So.3d 1109, 1113, citing La-violette v. Dubose, 07-916 (La.App. 5 Cir. 3/25/08), 983 So.2d 160, 162.

Accordingly, we dismiss the appeal without prejudice and remand the matter to the district court for further proceedings.

APPEAL DISMISSED; REMANDED


text:
    Kenneth DAVIS, individually and as Natural Tutor of His Minor Child, N.A.D. v. SCOTTSDALE INSURANCE COMPANY; Ramelli Waste, LLC, and Knollie Jones Barry Terrell, individually and as Natural Tutor of His Minor Child, H.T. v. Scottsdale Insurance Company, Ramelli Waste, LLC and Knollie Jones.
    Nos. 13-CA-255, 13-CA-256.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Morris Bart Law Firm, Terry B. Loup, Perrey S. Lee, Attorneys at Law, New Orleans, Louisiana, for Plaintiffs/Appellants, Kenneth Davis and Naomi Autumn Davis.
    Plauche, Smith & Niesit, Christopher P. Ieyoub, Attorney at Law, Lake Charles, Louisiana, for PlaintifftAppellee-2nd Appellant, Hunter Terrell.
    Breazeale, Sachse & Wilson, Douglas K. Williams, Christopher A. Mason, Attorneys at Law, Baton Rouge, Louisiana, for Defendant/Appellee, QBE Specialty Insurance Company.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ..¡Plaintiffs appeal a summary judgment granted in favor of one of the defendants, QBE Specialty Insurance Company, dismissing them from this lawsuit. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on July 18, 2009, in St. Charles Parish. Knollie Jones was operating a 2006 Mack garbage truck on Interstate 310 as it approached the Luling Bridge, when the garbage truck ran out of gas and came to a stop in the right-hand travel lane. Shortly thereafter, Misty Davis, who was operating a 2001 Honda CEV with her daughter, Naomi Davis, as a passenger, collided with the back of the garbage truck and sustained fatal injuries as a result of this collision.

In December of 2006, Ramelli Janitorial Services, Inc. (“Ramelli”) and RKC, L.L.C. (“RKC”), formerly named “Red K Contracting,” entered into a “subcontractor agreement” providing for RKC to “perform all work necessary for removal and disposal of residential trash.” Thereafter, in May of 2007, Ramelli entered into a contract with the City of Kenner to provide solid waste collection and disposal services. Ramelli and RKC agreed that RKC would perform the work provided for the City of Kenner contract. It is alleged that RKC was performing work pursuant to Ramelli’s contract with the City of Kenner at the time of the accident. RKC was the owner of the garbage truck involved in the accident and the employer of the driver, Mr. Jones.

Kenneth Davis, the surviving spouse of Misty Davis, filed suit for damages against several defendants, individually and on behalf of his minor daughter, | .(Naomi Davis. Barry Terrell also filed suit against several defendants on behalf of Hunter Terrell, who was the minor child of Mr. Terrell and Misty Davis. Hunter Terrell has now reached the age of majority and has been substituted as plaintiff. These two lawsuits were later consolidated.

Plaintiffs allege in their original, first supplemental, and second supplemental petitions that several defendants are liable for the damages sustained as a result of this accident, including RKC and Ramelli. The insurers of RKC and Ramelli, namely Scottsdale Insurance Company, RSUI Indemnity Company, and QBE Specialty Insurance Company (“QBE”), were also named as defendants.

On September 7, 2012, Ramelli filed a Motion for Summary Judgment, asserting that it is not liable for any damages in this case and seeking dismissal of plaintiffs’ claims against it. Ramelli contends that because it did not own the garbage truck or employ the driver or anyone responsible for maintaining the truck, it is entitled to judgment as a matter of law. Ramelli contends that Mr. Jones was employed by RKC, which was an independent subcontractor for the collection and disposal of residential and commercial solid waste. It asserts that the terms of the subcontractor agreement between Ramelli and RKC establish an independent contractor relationship. Ramelli claims that it never supervised, controlled, or directed any of RKC’s employees, including Knollie Jones. In support of its position, Ramelli submitted affidavits from the president of Ramelli, Robert Ramelli, and the president of RKC, David Starks, as well as other documents.

In opposition to Ramelli’s Motion for Summary Judgment, plaintiffs filed a memorandum asserting that there are genuine issues of material fact regarding the degree of control Ramelli retained and/or exercised over RKC work and employees, such as Mr. Jones. They note that the subcontractor agreement was entered into prior to the contract between the City of Kenner and Ramelli, and [ ¡¡that the subcontractor agreement does not contain language indicating that RKC was an independent contractor. Plaintiffs further note that the contract between the City of Kenner and Ramelli provides that Ramelli shall supervise and direct the garbage collection and disposal work provided for in the contract. Plaintiffs contend that although RKC employees were not direct employees of Ramelli, Ramelli maintained control over the work, as it agreed to do in its contract with the City of Kenner. Thus, plaintiffs claim that the legal doctrines of vicarious liability and/or dual employee are applicable to this case, and that summary judgment in Ramelli’s favor is not warranted.

Also in September of 2012, QBE filed a motion for summary judgment, asserting that the QBE commercial auto coverage insurance policy issued to Ramelli does not provide insurance coverage to Ramelli for plaintiffs’ claims in this case. QBE notes that the policy it issued to Ramelli is not a general liability policy, but rather a commercial auto policy which only provides coverage for damages arising from an accident caused by Ramelli’s ownership, maintenance, or use of a “covered auto,” as defined and listed in the policy. QBE contends that because the garbage truck at issue was not owned by Ramelli and was not listed or designated as a “covered auto” under the terms of the policy, the policy does not provide coverage in the case and plaintiffs’ claims against it should be dismissed. QBE submitted the insurance policy and other documents in support of its motion.

Plaintiffs opposed QBE’s motion for summary judgment, asserting that although the QBE policy does not specifically list the garbage truck at issue as a “covered auto,” the garbage truck was in fact a “covered auto” pursuant to designation symbol 9 in the policy which provides coverage for vehicles not owned by Ramel-li but “used in connection with” Ramelli’s business. Plaintiffs argue that coverage applies in this case where it is undisputed that Ramelli did not |fiown the truck but the truck was clearly being used in connection with Ramelli’s business of waste disposal under its contract with the City of Kenner. Plaintiffs submitted several exhibits in support of their position, including the depositions of Robert Ramelli and David Starks.

The motions for summary judgment filed by both Ramelli and QBE came for hearing before the trial judge on October 25, 2012. The motion for summary judgment filed by Ramelli was considered first. After counsel for each party argued their positions, the trial judge denied the motion, finding that there were genuine issues of material fact regarding the degree control Ramelli had over RKC’s employees and/or the work performed pursuant to Ramelli’s contract with the City of Kenner. The trial judge noted that the contract between Ramelli and the City of Kenner provided that Ramelli would control the work. The trial judge further stated that she did not believe that Mr. Jones would have been “on the road” on the date of the accident if it were not for the contract between Ramelli and the City of Kenner.

After Ramelli’s motion for summary judgment was denied, the trial court considered the motion for summary judgment filed by QBE. After listening to the arguments of counsel and considering the motion for summary judgment, memoranda, and the exhibits, which were admitted at the hearing, the trial judge found no coverage for plaintiffs’ claims under the terms of the QBE policy. The trial judge stated that she believed RKC was “doing business with the City of Kenner contract” at the time of the accident. However, she further stated that she |7found RKC and Ramelli to be two separate businesses and that the garbage truck was not being used for Ramelli’s business, but rather was being operated in connection with RKC’s business. The trial judge granted QBE’s motion for summary judgment, dismissed plaintiffs’ claims against QBE with prejudice, and designated the judgment as final and appealable. Plaintiffs appeal the summary judgment rendered in favor of QBE. LAW AND DISCUSSION

The issue in this appeal is whether the trial judge erred in finding that the garbage truck at issue was not a “covered auto” under the terms of the QBE policy and thus whether the summary judgment in favor of QBE was appropriate.

Appellate courts review motions for summary judgment de novo, asking the same questions as the trial court to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776; Mag-non v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 195. Specifically, an appellate court must determine whether any genuine issues of material fact exist and whether the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2); Thompson v. McKnight, 01-190, p. 2 (La. App. 3 Cir. 6/6/01), 787 So.2d 620, 621, writ denied, 01-2882 (La.1/25/02), 807 So.2d 249. A fact is “material” if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. In determining whether there are any genuine issues of material fact, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Daniel v. Blaine Kern Artists, Inc., 96-1348 (La.App. 4 Cir. 9/11/96), 681 So.2d 19, 20, writ denied, 96-2463 (La.12/6/96), 684 So.2d 934.

|sThe interpretation of an insurance policy is usually a legal question that can be properly resolved on a motion for summary judgment. Robinson v. Heard, 01-1697, p. 4 (La.2/26/02), 809 So.2d 943, 945. However, a summary judgment declaring lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence in support of the motion for summary judgment, under which coverage could be afforded. Adams v. Thomason, 32,728 (La.App. 2 Cir. 3/1/00), 753 So.2d 416, 420, wnt denied, 00-1221 (La.6/16/00), 764 So.2d 965.

An insurance policy is a contract between the parties and has the effect of law between them. Bryant v. United Services Auto. Ass’n., 03-3491, 04-28, p. 13 (La.9/9/04), 881 So.2d 1214, 1221; Dunn v. Potomac Ins. Co. of Illinois, 94-2202 (La. App. 1 Cir. 6/23/95), 657 So.2d 660, 663. The intent of the parties, as reflected by the words of the insurance policy, determines the extent of coverage. Louisiana Insur. Guar. Ass’n. v. Interstate Fire and Casualty Co., 93-911 (La.1/14/94), 630 So.2d 759, 763. When courts interpret insurance policies, they must determine the parties’ common intent to ensure that the interpretation of the insurance policy is not conducted in a strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by the policy’s terms. Id.; Huggins v. Gerry Lane Enterprises, Inc., 06-2816, p. 3 (La.5/22/07), 957 So.2d 127, 129. If the words of the insurance policy are clear and express the intent of the parties, the agreement must be enforced as written. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Any ambiguity in the terms of the policy must be construed against the drafter and in favor of the insured. Id.

|aIn the present case on appeal, plaintiffs argue that the trial judge erred in granting QBE’s motion for summary judgment because the commercial auto insurance policy issued by QBE to Ramelli provided coverage for non-owned autos that were being used in connection with Ramelli’s business. Plaintiffs assert that the garbage truck involved in the accident was not owned by Ramelli but was clearly being used in connection with Ramelli’s business of “hauling garbage” at the time of the accident.

QBE responds that summary judgment was properly granted in its favor because the commercial auto policy naming Ramelli as the insured does not provide coverage under the facts of this case. QBE notes that the garbage truck was not listed as an insured vehicle in the policy and it was not owned or leased by Ramelli. They further contend that the garbage truck was performing RKC’s business only and was not being “used in connection with” Ramelli’s business.

Section II of the business auto coverage form in the commercial lines policy issued to Ramelli by QBE provides for liability coverage, in pertinent part, as follows:

A. Coverage

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance, or use of a covered “auto.”

In order for there to be coverage under the QBE policy for the accident in this case, the garbage truck owned by RKC must be a “covered auto” under the terms of the policy. Section I of the business auto coverage form, entitled “Covered Autos,” provides, in part, as follows:

Item Two of the Declarations shows the “autos” that are covered “autos” for each of your coverages. The following numerical symbols describe the “autos” that may be covered “autos.” The symbols entered next to 11fla coverage on the Declarations designate the only “autos” that are covered “autos.”

Just below the “Covered Autos” provision cited above, the insurance policy contains a list of numerical symbols, entitled, “Description of Covered Auto Designation Symbols,” which provides the definitions and/or descriptions of different coverages available to the insured. Under the terms of the QBE policy issued to Ramelli, designation symbols 7, 8, and 9 were selected and they define the autos that were “covered autos” under the policy.

Symbol 7 provides that the autos specifically listed in Item Three of the Declarations are covered autos. Symbol 8 provides that autos leased, hired, rented, or borrowed by Ramelli are covered autos, with some exceptions noted. Plaintiffs do not allege that there is coverage pursuant to symbols 7 or 8 in this case. Rather, the dispute in this matter is whether there is coverage under the policy pursuant to symbol 9, which provides coverage for non-owned autos as follows:

Non-Owned “Autos” Only — Only those “autos” you do not own, lease, hire, rent, or borrow that are used in connection with your business. This includes “autos” owned by your “employees,” partners (if you are a partnership), members (if you are a limited liability company), or members of their households but only-while used in your business or your personal affairs.

The parties agree that Ramelli did not own the garbage truck involved in the accident. Accordingly, the issue to be resolved in order to determine coverage under the QBE policy is whether the garbage truck was being used in connection with Ramelli’s business.

When she granted QBE’s motion for summary judgment, the trial judge stated that she found the garbage truck was not being used in connection with Ramelli’s business, but rather it was being used for RKC’s business only. InHowever, we find that there are genuine issues of material fact that preclude such a finding at this stage of the litigation.

In his deposition, the president of Ra-melli, Robert Ramelli, admitted that when the accident occurred, the work being performed by the garbage truck and its driver was work pursuant to the contract between Ramelli and the City of Kenner. This contract specifically provides that Ra-melli shall supervise and direct the garbage collection and disposal work provided for in the contract. According to Mr. Ra-melli, Ramelli furnished some of the garbage trucks required for RKC to perform the job under Ramelli’s contract with the City of Kenner. Although RKC owned the garbage truck that was involved in the accident, the truck had the name “Ramelli Waste, L.L.C.” on the side of it.

Just as the trial judge found issues of material fact regarding Ramelli’s liability in this matter, we find that there are genuine issues of material fact that are relevant to a determination of whether the garbage truck was “used in connection with” Ra-melli’s business and thus whether the QBE policy provides coverage if Ramelli is found liable in this matter. Accordingly, after our de novo review of the motion for summary judgment, opposition, memoran-da, and exhibits, we find that genuine issues of material fact preclude summary judgment in favor of QBE at this time, and we reverse this summary judgment. DECREE

For the forgoing reasons, we reverse the summary judgment that was granted in favor of QBE.

REVERSED

      . RSUI Indemnity Company filed a motion for summary judgment which also came for hearing on October 25, 2012, and was subsequently denied. This motion for summary judgment is not at issue or pertinent to the present appeal.

      . Ramelli filed a writ application with this Court seeking review of the denial of its motion for summary judgment. On January 16, 2013, this Court denied Ramelli's writ application. Noting that the trial court found genuine issues of material fact arising from the subcontractor agreement between Ramelli and RKC, as well as from the contract between Ramelli and the City of Kenner, this Court found no reason to disturb the trial court’s denial of the motion for summary judgment. Davis, et al. v. Scottsdale Insurance Company, et ah, 12-878 (La.App. 5 Cir. 1/16/13), (unpublished writ disposition).

      . Although Ramelli Janitorial Services, Inc., defendant herein, and Ramelli Waste, L.L.C. are two separate entities, Robert Ramelli is the president of and owns 100% of both businesses. He testified in his deposition that "Ramelli Waste, L.L.C.” was put on the side of several garbage trucks utilized by RKC for advertisement purposes.


author: ROBERT M. MURPHY, Judge.

text:
    Gregorio MACHADO v. BAKER CONCRETE CONSTRUCTION.
    No. 13-CA-273.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Gregorio Machado, Hialeah, FL, Plaintiff/Appellant, In Proper Person.
    Edward F. Stauss, III, Virginia J. Mclin, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

| gClaimant/appellant, Gregorio Machado, appeals the judgment rendered by the Office of Workers’ Compensation, District 7, granting defendant/appellee’s, Baker Concrete Construction, motion for involuntary dismissal of claimant’s claims. For the reasons that follow, we affirm the judgment of the workers’ compensation court.

FACTS AND PROCEDURAL HISTORY

Claimant was employed by defendant, Baker Concrete Construction, as a carpenter. Claimant alleges that he suffered from dehydration in a work-related incident on July 5, 2011. Specifically, he began to feel dizzy while working on a hot day at a job site. Claimant rested under a tarp and refreshed himself with a fan. Claimant was taken to the hospital by his supervisor, where he was diagnosed with dehydration.

On June 3, 2012, claimant filed a disputed claim for compensation, seeking payment for prescription medications and wage benefits for two weeks of missed work. The case proceeded to trial on January 28, 2013, where claimant appeared in proper person. Claimant testified regarding his description of the alleged work-_[related3 incident on July 5, 2011. Specifically, claimant testified that July 5, 2011 was a hot day and that the clothes they were wearing for their job security were “too much.” While he was working, he had a drink of water and began to feel dizzy. While he was resting under a tarp to recover from his dizziness, claimant testified that he crouched down and then “went back.” The security supervisor on the job that day arrived at the scene and told claimant that he needed to go to the hospital. Claimant testified that he did not need to go to the hospital because he felt refreshed. However, defendant requested that claimant go to the hospital to rule out a possible heart attack. Claimant testified that the hospital examined his lungs and diagnosed him with dehydration. He was also given a prescription for Albu-terol, an asthma medication, and a device to administer the Albuterol.

Claimant introduced his hospital discharge records into evidence, which indicated that he was discharged from the hospital that same day and released to return to work the following day without restrictions. He stated that defendant would not allow him to return to work until he was examined by one of defendant’s doctors at his own expense. Claimant also testified that the hospital informed him that defendant would not pay his medical bills or prescription expenses because he was not treated for a work-related injury.

At trial, claimant complained that he had been suspended from his job for seven days and that defendant refused to pay his medical expenses. Claimant also complained that he was laid off by defendant at some point after the alleged incident. Claimant testified that he filed a complaint with OSHA, which prompted the OWC judge to explain that the workers’ compensation court had nothing to do with lay offs or with his OSHA complaint. When asked what he was looking for in connection with this proceeding, claimant replied that he was “looking for this not to happen again.”

14At the close of claimant’s case, defendant moved for an involuntary dismissal of his claims, citing claimant’s failure to produce any evidence of a compensable work-related accident. The OWC court granted defendant’s motion for involuntary dismissal. Claimant now appeals pro se.

Defendant has answered claimant’s appeal, requesting an award of sanctions against claimant under La. C.C.P. art. 2164 for filing a frivolous appeal.

ASSIGNMENT OF ERROR

As an initial matter, we note that claimant’s pro se brief does not comply with the requirement of Uniform Rules, Court of Appeal, Rule 2-12.4. It contains no assignments of error, no record refer-enees, and no jurisdictional statement. However, the courts of this State have considered workers’ compensation claimants’ nonconforming briefs in instances when they are filed' by pro se claimants. Costales v. Turner Indust., 05-36 (La.App. 5 Cir. 5/31/05); 905 So.2d 410, 412, writ denied, 05-1707 (La.1/9/06); 918 So.2d 1056; Cheatham v. Luberski, 43,603 (La. App. 2 Cir. 9/17/08); 996 So.2d 373. Because claimant is representing himself in this case, we will consider the merits of his appeal, despite the improper form of his appellant brief.

Although claimant does not list specific assignments of error as per our local rules, his argument on appeal appears to be that the OWC court erred in granting defendant’s motion for involuntary dismissal because claimant presented sufficient evidence proving the existence of a compensable work-related accident.

STANDARD OF REVIEW

In a motion for involuntary dismissal, the defendant may move for a dismissal of the action against him after the close of the plaintiffs case, where the plaintiff has shown no right to relief based upon the facts and law. Brock v. Singleton, 10-550 (La.App. 5 Cir. 3/29/11); 65 So.3d 649, 660, writ denied, ll-jl216s (La.9/23/11); 69 So.3d 1160. The appropriate standard in determining whether an involuntary dismissal should be granted is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Id. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless is it manifestly erroneous or clearly wrong. Id.

DISCUSSION

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course of employment. Bux-ton v. Iowa Police Dept., 09-0520 (La.10/20/09); 23 So.3d 275, 283; La. R.S. 23:1031. As a threshold requirement, a claimant in a workers’ compensation action must prove “personal injury by accident arising out of and in the course of his employment.” Blair v. Walr-Mart Stores, Inc., 01-2211 (La.App. 4 Cir. 5/15/02); 818 So.2d 1042, 1047 (emphasis in original). Under La. R.S. 23:1021(1), an accident is defined as follows:

“Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive deterioration.

The claimant has the burden of establishing an accident by a preponderance of the evidence. Shaw v. Arc of St. Charles, GO-1193 (La.App. 5 Cir. 11/28/00); 776 So.2d 542, 545. The jurisprudence consistently construes liberally the requirement of a work-related accident to be eligible for workers’ compensation benefits. Hall v. J.E. Merit Constructors, Inc., 02-2648 (La. App. 1 Cir. 11/7/03); 861 So.2d 224, 227-28. Despite the liberal construction afforded the employee in a workers’ compensation action, the employee’s burden of proof is not relaxed. Id. The | (¡employee is still required to identify the event marking the time when one can identify an injury. Id.

A worker’s testimony alone may be sufficient to discharge his burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the accident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Shaw, 776 So.2d at 545. The WCJ’s determinations as to whether the worker’s testimony is credible and whether the worker satisfied his burden are factual determinations not to be disturbed on review unless clearly wrong or manifestly erroneous. Id.

Where an employee seeks to recover workers’ compensation benefits for heart-related or perivascular injuries, La. R.S. 23:1021(8)(e) imposes an elevated burden of proof (clear and convincing) in order to recover benefits for such injuries. Hatcherson v. Diebold, Inc., 00-3263 (La.5/15/01); 784 So.2d 1284, 1287. The purpose of this heightened burden is to exclude from coverage employees who just happen to suffer heart-related or perivas-cular injuries at work. Harge v. MCC Specialty Contractors, Inc., 94-790 (La. App. 5 Cir. 2/15/95); 650 So.2d 425, 427, writ denied, 95-0611 (La.4/21/95); 653 So.2d 574.

La. R.S. 23:1021(8)(e) provides as follows:

A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:

(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or peri-vascular injury, illness or death.

|7In essence, the two prongs of La. R.S. 23:1021(8)(e) both involve a comparison of the physical work stress experienced by the employee to (1) the stress experienced by the average employee in that occupation; and (2) some other source of stress or preexisting condition. Hatcherson, 784 So.2d at 1290-91.

At trial, the only evidence claimant introduced in support of his alleged work-related accident was his own testimony and his hospital discharge records, releasing him to return to work on the day after he was diagnosed with dehydration. He merely testified that he had been “working” on a hot day prior to experiencing dizziness. Under La. R.S. 23:1021(1), claimant is required to identify “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury.” Claimant’s testimony regarding the onset of dizziness while “working” on the day in question is insufficient to meet his burden of proof regarding an accident as defined by La. R.S. 23:1021(1). Claimant did not identify any compensable injury-causing event, and therefore, the OWC court properly concluded that claimant failed to present sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence.

The OWC also properly concluded that claimant failed to establish a heart-related or perivascular injury under La. R.S. 23:1021(8)(E). Claimant was diagnosed with dehydration on July 5, 2011. Even assuming dehydration constitutes a heart-related or perivascular injury under La. R.S. 23:1021(8)(E), claimant has not offered any evidence establishing the heightened burden of proof under that statute. Specifically, such injuries are not compensable unless it is demonstrated by clear and convincing evidence that: (1) the physical work stress |swas extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and (2) the physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury. Because claimant did not offer any evidence of the specific work he was performing at the time of the incident, the OWC court properly found that claimant failed to show that he was engaged in any extraordinary or unusual work stress at the time of his injury. Therefore, claimant has failed to present any sufficient evidence of a heart-related or perivascular injury under La. R.S. 23:1021(8)(E).

Sanctions for Frivolous Appeal

In answering claimant’s appeal, defendant contends that claimant’s appeal is frivolous. The imposition of damages for a frivolous appeal is regulated by La. C.C.P. art 2164. Courts have been very reluctant to grant damages under this article as it is penal in nature and must be strictly construed. Lee v. Alton Ochsner Med. Found., 01-650 (La.App. 5 Cir. 10/17/01); 798 So.2d 1225, 1229, writ denied, 01-3084 (La.2/1/02); 807 So.2d 853, citing Guarantee Systems Const. & Restoration, Inc. v. Anthony, 97-1877 (La.App. 1 Cir. 9/25/98); 728 So.2d 398, 405, writ denied, 98-2701 (La.12/18/98); 734 So.2d 636. “In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for delay or that appealing counsel does not sincerely believe in the view of law he advocates.” Id. Notably, Mr. Machado is a pro se litigant on appeal. Even though Mr. Machado’s arguments did not persuade this Court, we conclude that his arguments were not presented in bad faith solely for purposes of harassment or delay. Nor can we say that he did not sincerely believe in the position he advocates. Therefore, we find that damages for a frivolous appeal are not warranted in this case.

^CONCLUSION

For the reasons stated herein, we find that the OWC court properly granted defendant Baker Concrete Construction’s motion for involuntary dismissal, dismissing claimant Gregorio Machado’s claims with prejudice. Accordingly, the judgment of the workers’ compensation court is affirmed. Defendant’s request for costs and attorney’s fees under La. C.C.P. art. 2164 is denied, and each party shall bear his/its own costs for this appeal.

AFFIRMED.