author: JUDE G. GRAVOIS, Judge. CHEHARDY, C. J.,

text:
    Yvonne McGLOTHURN v. Jefferson WADE, Northrop Grumman Systems Corporation, and National Union Fire Insurance Company of Pittsburg.
    No. 13-CA-759.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.
    Pete Lewis, Barry W. Sartin, Jr., Attorneys at Law, Orleans, LA, for Plaintiff/Appellant.
    Brian C. Bossier, Richard L. Olivier, Erin H. Boyd, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

[¡¡In this suit for personal injuries, plaintiff, Yvonne McGlothurn, appeals the trial court’s grant of summary judgment in favor of defendants, Northrop Grumman Shipbuilding, Inc. (“Northrop Grumman”), its insurer, National Union Fire Insurance Company of Pittsburgh (“National Union”), and the alleged tort-feasor, Jefferson Wade, which found plaintiff to be the borrowed servant of Northrop Grumman and thus dismissed her tort suit against defendants. Plaintiff was directly employed by Pinkerton Government Services, Inc. (“Pinkerton”), performing security services on the premises of Northrop Grumman’s Avondale Shipyard on June 30, 2010, when the security vehicle she was driving was struck |sby a forklift being driven by Mr. Wade, a Northrop Grumman employee. On appeal, plaintiff argues that genuine issues of material fact remain regarding her status as a borrowed servant. She contends that the trial court misapplied the “Ruiz factors to the particular facts of this case, and further failed to distinguish this case from the facts in Musa v. Litton-Avondale Industries, Inc., 10-627 (La.App. 5 Cir. 3/29/11), 63 So.3d 243, writ denied, 11-1256 (La.9/23/11), 69 So.3d 1163. She asks that the judgment in favor of defendants be vacated and the matter be allowed to proceed to a jury trial.

Following our de novo review of the entire record of this matter, for the following reasons, we affirm the judgment of the trial court under review.

FACTS AND PROCEDURAL HISTORY

The record reflects that Ms. McGlothurn was directly employed by Pinkerton and was in the course and scope of her duties as a security guard supervisor at Northrop Grumman’s Avondale Shipyard on June 30, 2010 when the security truck she was driving was struck by a forklift being driven by a Northrop Grumman employee, Jefferson Wade. Plaintiff received workers’ compensation benefits (weekly and medical) from Pinkerton. On May 27, 2011, plaintiff filed suit for personal injuries against Northrop Grumman, its insurer, National Union, and Mr. Wade under the theory of respondeat superior. Following discovery, Northrop Grumman and National Union moved for summary judgment against plaintiff, arguing that as a matter of law, plaintiff was the borrowed servant of Northrop Grumman and thus was immune from tort liability in this case. Following a hearing on the motion, the trial court granted summary judgment in favor of defendants and dismissed plaintiffs suit. This appeal followed.

JiLAW AND ANALYSIS

In this matter, we are governed by the law concerning summary judgments. Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate, as there is no need for trial on that issue. Id. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Hubbard v. Jefferson Parish Parks and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110.

Summary judgment procedure is intended to make a just and speedy determination of every action. La. C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Patemostro v. Wells Fargo Home Mortg., Inc., 09-469 (La.App. 5 Cir. 12/8/09), 30 So.3d 45; Simms Hardin Co., LLC v. 3901 Ridgelake Drive, L.L.C., 12-469 (La.App. 5 Cir. 5/16/13), 119 So.3d 58, 64, writ denied, 13-1423 (La.9/27/13), 123 So.3d 726.

The borrowed servant doctrine has been codified in La. R.S. 23:1031(C) as follows:

C. In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a “special employer”, and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a “general employer”, shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer 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 general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 28:1032.

The issue of whether a borrowed servant relationship exists is a matter of law for the court to determine. Musa v. Litton-Avondale Industries, Inc., supra; Griffin v. Wickes Lumber Co., 02-0294 (La.App. 1 Cir. 12/20/02), 840 So.2d 591, writ denied, 03-1338 (La.9/19/03), 853 So.2d 640.

This Court recently had the opportunity to review the issue of borrowed servant status in Musa v. Litton-Avondale Indus., Inc., supra, and said the following:

| (¡Borrowed employee disputes arise when a defendant who is not a plaintiffs formal employer argues that the plaintiff is in fact acting as the defendant’s employee. West v. Kerr-McGee Corp., 765 F.2d 526, 529 (5 Cir.1985). To determine whether an employee is the borrowed employee of another, the court must “inquire whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the (servant) in the performance of (his) work.” Gaudet [v. Exxon Corp.], [562 F.2d 351] supra at 355 [ (5 Cir.1977) ].
Various criteria have been considered in determining whether the borrowed servant doctrine is applicable. These criteria were set forth in Ruiz v. Shell Oil Co., 413 F.2d 310 (5 Cir.1969). While no one of these factors, standing alone, or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship, the following tests have been given great weight: (1) Who has control over the employee and the work being performed? (2) Whose work is being performed? (3) Was there an agreement between the formal employer and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for employment? (7) Was the new employment over a considerable length of time? (8) Who has the right to discharge the employee? and (9) Who had the obligation to pay the employee? Id. at 312-13.

Musa v. Litton-Avondale Indus., Inc., supra, 63 So.3d at 246.

Northrop Grumman supported its motion for summary judgment with a copy of plaintiffs petition for damages, its answer and third-party demand, portions of plaintiffs deposition, and a copy of the contract between Northrop Grumman and Pinkerton for security services dated May 7, 2004. Northrop Grumman also set forth the following thirty-five “uncontested” facts in support of its motion for summary judgment, to-wit:

1. In 1995, Yvonne McGlothurn was hired by Northrop Grumman as a security guard at the Avondale shipyard.
2. Ms. McGlothurn’s job duties included checking employees for ID badges, hard hats, safety glasses, and steel toed shoes, and signing them in and out of the shipyard.
3. The Northrop Grumman employees were signed in and out on Northrop Grumman log sheets which were retained by Northrop Grumman.
4. Ms. McGlothurn also did vehicle inspections on any commercial vehicles entering the yard, which involved lifting the hood, |7checking under trucks with a long mirror for potential bombs, ensuring people were not attempting to sneak into the shipyard, checking for weapons, etc.
5. Northrop Grumman provided the long mirrors for the inspections and well as radios.
6. Ms. McGlothurn also did medical runs, fire runs, and boarded ships for key runs.
7. Medical runs and fire runs occurred at least twice daily, and involved clearing the way and directing traffic in the event of injuries or fires in the yard.
8. Key runs involved inspecting the ships at least twice per day, for issues such as vandalism, open doors, flooding, etc.
9. Ms. McGlothurn’s other duties included fire drills, transporting employees around the yard and escorting terminated employees.
10. In performing her various job duties, Ms. McGlothurn drove around the shipyard in a Ford F150 truck owned by Northrop Grumman.
11. In 2001, Northrop Grumman outsourced security for the shipyard to Pinkerton Government Services, Inc.
12. According to Ms. McGlothurn, Northrop Grumman entered into a contract with Pinkerton which called for retention of the same security employees. According to Ms. McGlothurn, the security personnel, including Ms. McGlothurn, were to be employed by Pinkerton but were to keep their status, seniority, vacation time, insurance etc. exactly as it was when employed directly by Northrop Grumman.
13. The security crew did not go to Pinkerton’s offices when this change over took place; rather, Pinkerton came to Northrop Grumman and brought all of the paperwork to the security crew.
14. Ms. McGlothurn’s job duties remained the same after the change to Pinkerton. She solely provided security for Northrop Grumman.
15. Ms. McGlothurn’s pay remained the same after the change to Pinkerton, which meant that Pinkerton, which paid a lower salary, had to agree to keep the Northrop Grumman security crew at the higher salary they had received as direct Northrop Grumman employees.
16. The only change after the outsourcing was that Ms. McGlothurn punched in and out on a Pinkerton clock, wore a Pinkerton uniform and boots provided by Pinkerton, and Pinkerton issued Ms. McGlot-hurn’s pay checks rather than Northrop Grumman. |sAlso, Ms. McGlothurn was required to go through gun training and annual recertification by Pinkerton.
17. Pinkerton provided their employees with gun belts and guns; however, they had to be turned into the Northrop Grumman gun room at the end of each day.
18. In 2008, Ms. McGlothurn was promoted to lieutenant/supervisor. Her job duties changed in that she was also placed in charge of more than fifteen (15) workers and security officers. Ms. McGlothurn was in charge of the whole shipyard. She had to ensure that the gate was open, she had to check and patrol the docks at least twice or more per day, and she had to ensure that the officers were on the ships and that everyone was at his post. During this time, she continued to drive around the shipyard in the Ford F150 truck owned and provided by Northrop Grumman.
19. At the time of the accident in June of 2010, Ms. McGlothurn had been working at the Northrop Grumman shipyard for approximately fifteen (15) years. Her position was lieutenant/supervisor. She had a Northrop Grumman badge. Her duties were to “control the yard,” which she did in a Northrop Grumman owned truck.
20. Ms. McGlothurn continued to drive the Northrop Grumman truck every day while she worked. The fuel for the truck was provided by the gas station in the Northrop Grumman yard, and all maintenance on the vehicle was performed by Northrop Grumman.
21. In June of 2010, Ms. McGlothurn’s Northrop Grumman supervisor on a daily basis was Mark Washington, and her Pinkerton supervisor on a daily basis was Major Ronald Green. She saw each man out at the yard every day. If anything was found during inspections, Ms. McGlothurn would notify both Northrop Grumman and Pinkerton supervisors, first calling the Northrop Grumman supervisor liaison.
22. According to Ms. McGlothurn, neither Washington nor Green could fire her without going through channels and investigations. Ms. McGlothurn identified her “boss” as Mr. Dorsey, who worked at Pinkerton’s Metairie office, who would come out to the yard for meetings, or to bring paperwork and the like.
23. Ms. McGlothurn’s daily routine was to arrive at 4:00 a.m. and check her Northrop Grumman email for any information, instructions or tasks sent by her Northrop Grumman supervisor, Mr. Washington, which needed to be passed along to the security officers during roll call.
24. At the end of each day, Ms. McGlothurn was required to send Mr. Washington an email confirming the tasks were accomplished. If Rthere was a specific problem, then Major Green would go directly to Mr. Washington.
25. On the day of the accident, Ms. McGlothurn arrived at 4:00 a.m., checked her email and performed roll call. Then she checked to see that everyone was at his post, and that all the gates were open. Then she “rode the complete yard” on the docks and called in over the radio. She then stood by, went to help check badges and generally stayed out in the field until Major Green came in at 8:00 a.m. Next, she did time reports for payroll. For the next few hours prior to the 12:40 p.m. accident, she went out in the field and checked all the officers and areas.
26. Ms. McGlothurn was at Wet Dock 3 when she was called and told to transport one of the office workers, Mrs. Sandra, from Gate 5 back to Operations.
27. As Ms. McGlothurn was heading toward Gate 5 in the Northrop Grumman F150 truck, she stopped at the stop sign near Gate 34 and then continued forward on Berma Road. A Northrop Grumman worker, Jefferson Wade, pulled up in a Big Red forklift and stopped at the stop sign on the cross-road to Ms. McGlothurn’s left, but then proceeded into the intersection and struck Ms. McGlothurn’s vehicle.
28. The contract between Northrop Grumman (now Huntington In-galls) and Pinkerton Government Services, Inc. is entitled “Corporate Award No. 2163-R1 — Contract Security and related Personnel Services.” (hereinafter referred to as “Corporate Award”). It was originally for a term of May 1, 2001 through April 80, 2004 but was amended in 2010 to provide for a term of May 1, 2001 through April 30, 2013. The stated purpose of the Corporate Award was to specify the terms and conditions by which Pinkerton would provide and Northrop Grumman would receive security and related personnel services.
29. Under the Benefits section of the Corporate Award, it is agreed that the Pinkerton employees will retain their vacation benefits as they were prior to the change to Pinkerton.
30. The Corporate Award provides that Pinkerton’s relationship to Northrop Grumman is that of an independent contractor. The Corporate Award further provides that Pinkerton employees are under Pinkerton’s direction and control. Finally, the Corporate Award provides that Pinkerton shall retain the right to hire and terminate all employees.
31. The Corporate Award also provides that, regarding Workmanship and Inspection, Northrop Grumman reserved the right to request Pinkerton to remove a Pinkerton employee at any time, with or |10without cause. Further, in the event of such removal, no Pinkerton employee could be reassigned to another Northrop Grumman facility.
32. The Corporate Award provides that Pinkerton will provide an on-site supervisor only in locations specifically identified by Northrop Grumman as necessary for Northrop Grumman’s requirements and operations.
33. Regarding Equipment, the Corporate Award provides that Pinkerton is responsible for providing uniforms, a weapon and ammunition, foul weather clothing, a flashlight and batteries, K-9s and handlers (where required), communications equipment (when specifically designated), patrol vehicles and equipment boxes in vehicles (if necessary), other motor vehicles (if required), personal safety equipment (if required by task) and waterfront patrol boats and fire apparatus (if requested).
34. The Corporate Award also required Northrop Grumman to furnish certain equipment and on-site space requirements, including FCC-approved frequency and base stations, office equipment (including computers), as well as office, meeting, parking and storage space.
35. Regarding Invoicing and Payment, the Corporate Award provides that time records shall be maintained on Pinkerton’s time sheets, and then Northrop Grumman would be billed for the hours worked on the Pinkerton time sheets.

Typically, the most universally accepted standard for establishing an employer-employee relationship is the issue of control, the first Ruiz factor. Musa, su pra, at 246. Plaintiff argues on appeal that the trial court erred in failing to distinguish Musa, which found that Mr. Musa was Northrop Grummaris borrowed servant, from this case, because, she argues, Northrop Grumman had more control over Mr. Musa than it did over her job duties in this case. However, as noted by this Court in Musa, no one of the Ruiz factors, standing alone, or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed servant relationship. Id. Accordingly, each case stands on its own facts and the implications to be drawn therefrom.

U,ANALYSIS OF RUIZ FACTORS

1. Who had control over plaintiff and the work being performed by plaintiff?

The contract between Pinkerton and Northrop Grumman stated in Article 19 that “Seller’s [Pinkerton’s] employees, agents or representatives (“Employees”) performing services under this Award shall at all times be under Seller’s [Pinkerton’s] direction and control.” Plaintiffs testimony in deposition shows, however, that in reality, Northrop Grumman exercised the majority of control over plaintiffs specific daily job duties. The evidence presented shows that after Northrop Grumman contracted out all of its security services to Pinkerton, plaintiffs day-to-day job duties essentially did not change from when she had been employed directly by Northrop Grumman, with the exception of the requirement that she be certified to and carry a firearm. Plaintiff was informed of her daily job duties by the Northrop Grumman liaison supervisor via Northrop Grumman email to plaintiff, and at the end of the day, she was required to report back to the Northrop Grumman supervisor regarding completion of those duties. Her daily duties included transporting Northrop Grumman employees from one location to another, as directed by Northrop Grumman personnel, and which she was in the process of doing when her vehicle was struck by the forklift. All of the rest of her daily duties, including security checks and roll call, were performed only at Northrop Grumman’s facility. She testified in deposition that she would report any issues that came up during the day to the Northrop Grumman liaison first, but then also to her Pinkerton supervisor. It was further established that Pinkerton personnel came to the Avondale Shipyard to facilitate the original change of employment, as well as delivering and receiving current paperwork, rather than the former Northrop Grumman employees going to Pinkerton’s local office.

| ^Pinkerton’s connection to the day-today activities of plaintiffs employment consisted of furnishing her with her uniform, gun and gun belt (which had to be returned to a Northrop Grumman office after plaintiffs shift), and boots. Other equipment required to do plaintiffs job, such as the truck, maintenance and fuel therefor, her communications radio, office supplies and computer, identification badge, and equipment for performing security checks on vehicles, was supplied by Northrop Grumman. Plaintiff testified that she did report matters to her Pinkerton supervisor as needed, but reported issues first to the Northrop Grumman liaison.

Upon review, we find that the evidence submitted viewed as a whole shows that Northrop Grumman, not Pinkerton, had the majority of control over plaintiffs daily job duties.

2. Whose work was being performed by plaintiff ?

This second Ruiz factor, whose work was being performed by plaintiff, has, in other cases, been found to warrant minimal consideration. Musa, supra, at 247. In this case, it is clear that plaintiff was performing the particular security duties required by Northrop Grumman at its particular Avondale Shipyard location, which duties did not change when Northrop Grumman contracted its security duties out to Pinkerton. Plaintiff testified that the fact that plaintiff was required by Pinkerton to carry a firearm did not change her day-to-day duties. The fact that plaintiffs responsibilities increased and her duties changed when she was promoted to supervisor was not a specific consequence of working directly for Pinkerton.

3. Was there an agreement between the formal employer (Pinkerton) and the borrowing employer (Northrop Grumman) ?

The evidence clearly shows that Northrop Grumman and Pinkerton entered into a contract for Pinkerton to provide security services to Northrop Grumman at 11sthe Avondale Shipyard. The contract was considered by the trial court and its terms have not been disputed. It states that Pinkerton shall be considered an independent contractor of Northrop Grumman. Unlike in the Musa case, the contract between the parties in this case did not contain any provision that purported to prohibit borrowed servant status. The contract regulated the relationship between Northrop Grumman and Pinkerton, but as plaintiff testified in deposition, it did not cause material changes in her day-today job duties after she became directly employed by Pinkerton.

4. Did plaintiff acquiesce in the new work situation ?

Plaintiff argues in brief that she did not acquiesce to being Northrop Grumman’s borrowed servant. Plaintiff, however, misstates the question that this particular Ruiz factor addresses. As noted in Musa, the question is, rather, whether the employee was aware of her new work conditions and chose to continue working in them. The answer to this question in this case is clearly “yes.” Plaintiff testified that she clearly understood that her direct employment changed from Northrop Grumman to Pinkerton when the contract went into effect in 2004, and she clearly understood the differences that this new employment relationship made, such as being trained to carry a firearm, receiving her paychecks from Pinkerton, and reporting to a Pinkerton supervisor in addition to her Northrop Grumman liaison. Her eventual promotion to supervisor is additional evidence that she chose to continue working under her new conditions, and apparently did so quite successfully.

|u5. Did the original employer (Pinkerton) terminate its relationship with plaintiff ?

Next, as directed by Musa, we consider whether Pinkerton severed its relationship with plaintiff while she was assigned to Northrop Grumman. As this Court noted in Musa, this factor does not require the lending employer, here Pinkerton, to completely sever its relationship with the employee, because to do so would effectively eliminate the borrowed servant doctrine. Rather, the focus is on the lending employer’s relationship with the employee while the borrowing occurs. Musa, swpra, at 249.

The facts relative to the lending employer’s relationship with the employee in Musa are somewhat different from those in the present case, but such facts in Musa are nevertheless instructive herein. Mr. Musa was hired by International Marine, a subcontractor that supplied personnel to several different employers, including Northrop Grumman. He was assigned to Northrop Grumman in particular, but he had previously answered an advertisement by International Marine that could have resulted in his placement for employment at other agencies or employers.

In the present case, plaintiffs direct employment changed from Northrop Grumman to Pinkerton by virtue of Northrop Grumman’s decision to contract out all of its security requirements. Plaintiff was not first an employee of Pinkerton who was hired with the understanding that she could be placed at different locations as part of her employment, as was the case with Mr. Musa; rather, she accepted employment with Pinkerton specifically to continue doing the same job, having the same duties, and working at the same location as she had had while having been directly employed by Northrop Grumman at the Avondale Shipyard. No evidence was introduced that it was ever contemplated that plaintiff, as a 11sPinkerton employee, would be moved to work for any other customer to whom Pinkerton provided security services. Pinkerton’s connection with plaintiffs employment was primarily administrative. Pinkerton paid her and issued uniforms and a gun to her. Pinkerton’s personnel came over to Avon-dale to handle administrative issues and paperwork; plaintiff testified that she did not go to Pinkerton’s Metairie office, though she was able to identify a Pinkerton boss at that location. Pinkerton did maintain a supervisor at Avondale, but plaintiff testified that she reported first to the Northrop Grumman liaison, and also received her daily instructions from Northrop Grumman, to whom she also reported at the end of the day.

6. Who furnished plaintiff with the tools and place of her employment ?

The sixth Ruiz factor considers which employer furnished the plaintiff with the tools and place of her employment. Northrop Grumman clearly furnished plaintiff with the location of her employment. As previously discussed, plaintiff only worked at the Northrop Grumman facility after she became directly employed by Pinkerton. Further, it was never contemplated that plaintiffs employment with Pinkerton would cause her to work at the locations of any other Pinkerton customers.

Plaintiff clearly received tools from both Pinkerton and Northrop Grumman. Her uniform, gun, and boots were furnished by Pinkerton. Other tools, such as office equipment, computer, communications radio, badge, storage space, the tools with which she conducted security checks on vehicles, and her own security vehicle were furnished by Northrop Grumman. Additionally, Northrop Grumman maintained the security vehicle plaintiff used daily on the job, as well as provided its fuel.

| Vl7. Was plaintiff’s new employment with Northtrop Grumman over a considerable lenyth of time ?

The seventh Ruiz factor considers whether plaintiffs employment with the purported borrowing employer was over a considerable length of time. Clearly in this case the answer is “yes.” Plaintiff was employed exclusively at the Avondale Shipyard location from the effective date of the contract between Pinkerton and Northrop Grumman in 2004, and as noted above, there was no evidence that it was ever contemplated that plaintiff would be reassigned by Pinkerton to provide security services for any of Pinkerton’s other customers. At the time of plaintiffs accident in 2010, she had worked for Pinkerton at this location for over five years.

8. Who had the right to discharge plaintiff?

Plaintiff testified that either employer would have to go “through channels” to discharge her. According to the contract between Pinkerton and Northrop Grumman, Pinkerton retained the right to hire and fire all employees covered by the contract. In the contract, however, Northrop Grumman also reserved the right to request Pinkerton to remove an employee at any time with or without cause, and that such removed employee never be reassigned to another Northrop Grumman location. In addition, the contract provided that no personnel unacceptable to Northrop Grumman would be assigned by Pinkerton to perform services under the contract, and that any covered employee was subject to immediate removal from the Avondale location for violation of any Northrop Grumman rules. Thus, Northrop Grumman retained the right to determine which Pinkerton employees were employed at the Avondale Shipyard location.

9. Who had the obligation to pag plaintiff?

The last Ruiz factor considers which employer had the responsibility to pay the employee. Plaintiff testified consistently with the contract provisions and the 117uncontested facts were that her paychecks were issued by Pinkerton. The contract provided that time records shall be maintained on Pinkerton’s time-sheets, and Northrop Grumman would be billed for the hours worked on the Pinkerton time-sheets.

In other cases where an employee has been paid by his direct employer, courts have nonetheless determined, after consideration of the totality of the other Ruiz factors, that an employee was a borrowed servant. See Musa, supra, at 249, and cases cited therein. Thus, this factor is not to be considered in isolation of the other Ruiz factors, and thus is not alone dispositive of the ultimate issue of plaintiffs borrowed servant status.

CONCLUSION

After our careful de novo review of the entire record of this matter, based on our above analysis of the application of the nine Ruiz factors to the undisputed facts of this case, we find no error in the trial court’s determination that at the time of the accident in question, plaintiff was the borrowed servant of Northrop Grumman. Accordingly, we find that no genuine issues as to material fact remain in this case and that defendants are entitled to judgment as a matter of law. The trial court’s grant of summary judgment in favor of defendants and the consequential dismissal of plaintiffs tort suit are hereby affirmed.

AFFIRMED.

CHEHARDY, J., dissents with reasons.

CHEHARDY, C. J.,

dissents with reasons.

|,I respectfully dissent. Here, the majority finds no error in the trial court’s grant of summary judgment in favor of Northrop Grumman, holding that Ms. McGlothurn is its “borrowed servant.” Based on my understanding of this case, I find that there was a genuine issue of material fact regarding whether Pinkerton or Northrop Grumman had the power to “control and direct” Ms. McGlothurn in the performance of her work in this case. Accordingly, I think that the trial court erred as a matter of law in finding “borrowed servant” status and in granting summary judgment to Northrop Grumman on that issue. Accordingly, I cannot adhere to the majority opinion.

      . According to its answer, Northrop Grumman Shipbuilding, Inc. is now known as Huntington Ingalls Incorporated. It was erroneously referred to as "Northrop Grumman Systems Corporation” in plaintiffs petition for damages. For consistency purposes, it will simply be referred as "Northrop Grumman” in this opinion.

      . Plaintiffs petition for damages named Mr. Wade, Northrop Grumman, and National Union as defendants. The motion for summary judgment was filed only by Northrop Grumman and National Union; however, the judgment under review granting summary judgment and dismissing plaintiffs claims was rendered in favor of Northrop Grumman, National Union, and Mr. Wade. The parties have not made the dismissal of plaintiff’s claims against Mr. Wade an issue in this appeal.

      . Although the record does not reflect that service upon Mr. Wade was requested by plaintiff, he filed an answer to plaintiff's petition for damages and was represented by the same attorneys who represented Northrop Grumman and National Union in this matter.

      . Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969).

      . It appears these dates are typographical errors. The contract states in Article 3 that the original term is from 01 May 2004 through 30 April 2008.

      . Article 19 of the contract provides:

        INDEPENDENT CONTRACTOR Seller’s relationship to Northrop Grumman in the performance of any purchase order subject to this Award is that of an independent contractor. Seller’s employees, agents or representatives (“Employees”) performing services under this Award shall at all times be under Seller’s direction and control. Seller shall retain the right the right to hire and terminate all employees, pay all wages, salaries, and other amounts due its Employees in connection with this Award, and shall be responsible for all reports and obligations respecting them relating to social security, income tax withholding, unemployment compensation, worker’s compensation, and similar matters.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge.

license: Public Domain

text:
    Dwayne P. ROMIOUS v. CBSL TRANSPORTATION SERVICES, INC.
    No. 13-CA-765.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Robert R. Faueheux, Jr., Andrea O. Nathan, Attorneys at Law, LaPlace, Louisiana, for Appellee, Dwayne P. Romious.
    Michael J. Remondet, Jr., Scott F. Higgins, Attorneys at Law, Jeansonne & Re-mondet, LLC, Lafayette, Louisiana, for Appellant, CBSL Transportation Services, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Chief Judge.

|gOn appeal, the owner of a tank facility appeals the default judgment granted in favor of the plaintiff. After reviewing the record and the applicable law, we find a clear error of fact in the default judgment. Accordingly, we vacate the trial court judgment and remand for further proceedings.

Facts

On August 9, 2011, Dwayne P. Romious (“Romious”) filed a Petition for Damages for injuries sustained while delivering a tanker-truck to the facility belonging to CBSL Transportation Services, Inc. (“CBSL”). Romious requested service, and effected same, on CBSL through its authorized agent CT Corporation.

On September 24, 2012 Romious moved for a Preliminary Default against CBSL. On January 4, 2013 Romious moved to confirm the default, and the hearing took place in open court with Romious, his wife, and his attorney present. At the hearing, the trial court took testimony from Romious as to his employment ^status, his lost wages, and his injuries, including the doctor’s diagnosis, the extent of his surgery, the doctor’s findings regarding disability, and medical bills. Mr. Romious’ medical records were not, however, offered into evidence at the hearing.

On March 8, 2013, the court rendered judgment against CBSL awarding Romious $162,500.00 in damages. Notice of the March 8, 2013 judgment was sent to all parties on March 13, 2013.

On April 19, 2013, CBSL made an appearance with counsel filing a Motion to Enroll, a Request for Notice of Trial Date, and a Motion for Suspensive Appeal. The trial judge granted CBSL’s appeal on April 24, 2014 and this appeal follows.

On appeal, CBSL raises four assignments of error: first, the trial court erred in granting a default judgment based on inadmissible evidence; second, the trial court erred in considering inadmissible medical evidence; third, the trial court erred in finding that Mr. Romious offered sufficient evidence to establish liability on the defendant; and, fourth, the trial court erred in granting an excessive award of $137,500.00 for general damages and $25,000.00 for special damages.

Law and Argument

The appellate jurisdiction of courts of appeal extends to both law and facts. La. Const. Art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that was manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transp. and Development, 617 So.2d 880, 882, n. 2 (La.1993).

When the court of appeal finds that a reversible legal error or manifest error of material fact was made in the trial court, it is required to re-determine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered |4in support of the judgment. Bordelon v. Sayer, 01-0717 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. This determination is a factual one governed by the manifest error standard of review. Id.

The process for obtaining a default judgment when the defendant has failed to answer a petition timely is uncomplicated. It may be obtained by oral motion in open court or by written motion, entered in the minutes of the court, and the judgment consists merely of a minute entry. La. C.C.P. art. 1701(A); Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669. This judgment is sometimes referred to as a “preliminary default.” Id. Thereafter, the judgment of default may be confirmed on the third “judicial day” after the entry of the preliminary default. La. C.C.P. art. 1702(A).

Confirmation of a default judgment is similar to a trial and requires admissible “proof of the demand sufficient to establish a prima facie case.” La. C.C.P. art. 1702(A); Power Marketing Direct, 938 So.2d at 670. In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits. Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). A default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due. La. C.C.P. art. 1703.

At the confirmation hearing, the rules of evidence generally apply. La. C.E. art. 1101(A). The plaintiff must follow the rules of evidence even though there is no opponent. “Because at a default confirmation there is no objecting party, to prevent reversal on appeal, both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence” that establishes a prima facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., & Kerry Triche, | ⅛Handbook on Louisiana Evidence Law 677 (2007). Thus, inadmissible evidence, except as specifically provided by law, may not support a default judgment even though it was not objected to because the defendant was not present. 19 Frank L. Maraist, Civil Law Treatise: Evidence and Proof § 1.1, at 5 (2d ed.2007).

Finally, there is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 527, 263 So.2d 875, 878 (1972).

Turning to the case at hand, we find that the trial judge manifestly erred in its finding of fact. In its judgment, the trial court incorrectly states that Romious, “an employee of CBSL Transportation Services, Incorporated,” was “lawfully upon the premises of his employer ...” when the alleged accident occurred. However, the record clearly reflects that Romious was an employee of Schilli Corp, D/B/A Truck Transport, Inc. on the date of the accident in question. In this case, imputing an employment relationship where none exists vastly affects the parties’ rights and liabilities. Accordingly, the judgment is clearly wrong.

Finding that the' judgment is manifestly erroneous, we are required to re-determine the facts de novo from the entire record and render a judgment on the merits. Rosell, supra. In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Bordelon, supra. Our review of the record reveals that the testimony from Romious and his wife as to his employment status and his injuries may suffice to support the occurrence of an accident. Unfortunately, Mr. Romious’ medical records, including the doctor’s diagnosis, his surgical history, the doctor’s | (¿findings regarding disability, and medical bills, were not offered or accepted into evidence at the hearing. Thus, we cannot say that there was sufficient evidence offered in support of the judgment.

Conclusion

Based on the foregoing, we vacate the judgment at issue and remand the matter to the district court for further proceedings. Costs are assessed to appellant, CBSL.

VACATED AND REMANDED.

      . According to the record, the Sheriff’s return of service of process was not made part of the record during the hearing to confirm the preliminary default. In its appeal brief, appellant raised the lack of documentation as an assignment of error. On March 13, 2014, pursuant to appellee’s request, the appellate record was supplemented with proof of service and citation in accordance with La. C.C.P. art. 1292. Appellant acknowledged this fact in its reply brief. Accordingly, the issue of improper service is now moot.

      . In Louisiana, an employee does not have a direct cause of action against his employer for ordinary negligence; an employee's sole remedy is offered in workers’ compensation. Stelly v. Overhead Door Co. of Baton Rouge, 646 So.2d 905 (La.1994).


author: STEPHEN J. WINDHORST, Judge.

text:
    Leyman Jose MARTINEZ v. Ada Marlin LAGOS.
    No. 13-CA-887.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      William R. Penton, III, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Mickey S. Delaup, Valerie E. Fontenot, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    S. Guy Delaup, III, Attorney at Law, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

12Plaintiff, Leyman Jose Martinez, appeals from that portion of the trial court’s decision awarding custody of the minor child. We affirm the judgment of the trial court.

On May 30, 2012, Mr. Martinez, filed a petition seeking majority custody of his minor daughter. Named as defendant was the child’s mother, Ada Marlin Lagos. A hearing was held on August 20, 2013, and at its conclusion, the trial court awarded joint custody, designating Ms. Lagos as the primary domiciliary parent. Mr. Martinez filed a Motion for New Trial for Reargument Only, which was denied by the trial court. Thereafter, Mr. Martinez filed a Reurged Motion for a New Trial and Motion for Written Reasons for Judgment, which was also denied by the trial court. Mr. Martinez then filed a Motion for Appeal, which was granted.

|3In his first three assignments of error, Mr. Martinez contends that the trial court committed legal error by not properly considering the best interest factors set forth in La. C.C. art. 134, and in awarding primary domiciliary custody to Ms. Lagos.

In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child. La. C.C. art. 131. La. C.C. art. 134 sets out 12 non-exclusive factors for the court to consider in awarding custody:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own |4facts in light of those factors. Robertson v. Robertson, 10-926 (La.App. 5 Cir. 4/26/11), 64 So.3d 354, 362-63; Robert v. Robert, 44,528 (La.App. 2 Cir. 8/19/09), 17 So.3d 1050, 1052, writ denied, 09-2036 (La.10/7/09), 19 So.3d 1. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Robertson, supra. Each child custody case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the children. Robertson, supra; Harvey v. Harvey, 13-81 (La.App. 3 Cir. 6/5/13), 133 So.3d 1, writ denied, 13-1600 (La.7/22/13), 119 So.3d 596. On appellate review, the determination of the trial court in establishing custody is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. Martin v. Martin, 11-1496 (La.App. 3 Cir. 5/16/12), 89 So.3d 526; Bridges v. Bridges, 09-742 (La.App. 5 Cir. 2/9/10), 33 So.3d 914, 918.

The parties in this case spoke Spanish and English. They testified at the hearing through an interpreter.

Ms. Lago and Mr. Martinez were never married. At the hearing on the issue of custody, Ms. Lagos testified that she and Mr. Martinez resided together for around 18 months after their daughter was born. For the next three years, she and the child lived together without incident. The child was six at the time of the custody hearing.

Ms. Lagos further testified that she owns a two bedroom condominium. Originally, Mr. Martinez had been providing $300.00 per month for child support, but then he reduced the amount to $150.00. She was having difficulty making the mortgage payment, so she rented the second bedroom to her uncle’s stepson. She testified that her tenant spends most of his time away, and that he does not drink. lfiHe smokes cigarettes, but never around the child, and always goes outside. Ms. Lagos stated that the child has her own bed in Ms. Lago’s bedroom, and that the child has sufficient privacy. Ms. Lagos further testified that her work schedule was flexible and that she could adjust it around the schedule of the child.

At the time of the hearing, the child had graduated from kindergarten and was in first grade. Her report card was introduced to show that she made good grades in kindergarten. According to Ms. Lagos, she makes sure the child’s homework is completed, and ■ when she (Ms. Lagos) needs help in explaining, she contacts her niece, who can read and speak English. The child speaks and comprehends English very well. Ms. Lagos further stated that when the child was with Mr. Martinez, her homework would not be completed, or it would be incorrect.

Mr. Martinez testified that he and Ms. Lagos were still able to work together after he moved, and that difficulties did not start to arise until December of 2010, when he started dating his wife. He saw his daughter less often after his marriage in December of 2011, until a hearing officer put a custody and visitation schedule in place in September of 2012. Mr. Martinez further alleged that Ms. Lagos did not meet him when he brought the child to her, but only left her door open at the condominium, as if “she didn’t want to receive” the child. Ms. Lagos testified that she left her door open, but did not approach Mr. Martinez because he would berate her in front of the child.

Also at the hearing, Mr. Martinez and his witnesses alleged that the child would appear with unkept hair and dirty fingernails. These allegations were denied by Ms. Lagos and her witnesses.

Mr. Martinez testified that he has a three bedroom house that he shares with his wife and his mother, and the child has her own bedroom. The child has a good | fireIationship with his current wife, who treats her like a daughter. His wife has a 19 year old daughter who recently married and does not live with them. However, she is available to assist with the child’s homework. Mr. Martinez testified that he works from 6:30 A.M. to 3:00 P.M., so he would be able to pick up his daughter from school. Mrs. Martinez testified that she would be able to bring the child to school in the morning.

Several contentious encounters between Mr. Martinez and Ms. Lagos were related at the hearing. August 20, 2012 was the child’s first day of kindergarten. Ms. Lagos testified that she had an appointment at 8:00 A.M., and then she had to work. She went to the school after her appointment to see if Mr. Martinez was there and whether he could stay with the child. She did not have the child with her when she appeared at the school. Mr. Martinez stated that he went to the school for the child’s first day, and that Ms. Lagos showed up alone, telling him it was not necessary for the child to appear on the first day of school. He stated he had Ms. Lagos leave, pick up the child and bring her to school. At the close of the school day, there again was a dispute between the two of them as to who should take the child home. Shortly after this, they appeared before a hearing officer who set a provisional custody schedule.

A second encounter occurred when they were at worship at Good Shepard Church. Ms. Lagos was already seated when Mr. Martinez entered with the child. Ms. Lagos asked to see her for a minute, and Mr. Martinez responded no and requested that Ms. Lagos not come close when he had custody. Later, as the child was leaving her Sunday school classroom, she saw Ms. Lagos, and went over to show her a coloring book. The child was wearing a fake fingernail at the time. Ms. Lagos was holding the coloring book along with the child, and as Mr. Martinez grabbed the child, the child’s fake nail came off. Mr. Martinez accused |7Ms. Lagos of hurting the child, to which Ms. Lagos responded that it was an accident.

A third event occurred on January 1, 2013. Mr. Martinez drove to Ms. Lagos’ house and took the child away with him for several hours, even though it was Ms. Lagos’ custody day.

The final event was related in which Ms. Lagos had some medicine to treat an infected mosquito bite. Mr. Martinez went to her house to retrieve the medicine, and she threw it on the ground in front of him. Ms. Lagos testified that she threw it because he requested that she do so.

Ms. Lagos also testified that she had to change her passwords on her banking and mortgage accounts because Mr. Martinez would access them to discover how much money she had and how much she owed on her condominium.

Also at the hearing, it was established that on three separate incidents, Ms. Lagos called the police to complain about Mr. Martinez’s actions. She testified that on the first occasion, in August of 2011, she had a friend at her house, and she discovered that Mr. Martinez was at the window, listening to their conversation. After the friend left, Mr. Martinez came into the condo, and they argued. Mr. Martinez apparently stayed that night, and when he left the next morning, he took her cell phone and charger with him. This was not the first time he had taken items from her condo without her permission, so two days later, she called the police.

The second time Ms. Lagos called the police; she had received a call from Mr. Martinez informing her that he had taken the child to the doctor because she was ill. Ms. Lagos knew that Mr. Martinez was scheduled to work that evening, so she told him to bring the child to her if the child was ill. Ms. Lagos called for a police officer to go with her to Mr. Martinez’s house, however when they knocked no one answered the door.

|sThe third incident occurred in March of 2013. Ms. Lagos stated that Mr. Martinez had been following her as she drove to pick up a co-worker and to go to work, so she called the police. Mr. Martinez was stopped and he related to the officer that he was following Ms. Lagos in order to pick up the child, although it was not the appropriate time. According to Ms. Lagos, the police officer told Mr. Martinez to stop following her. At the hearing, Mr. Martinez denied following Ms. Lagos. He testified that he just happened to be in the area and he was surprised when he was stopped by the police.

Ms. Lagos, in response to cross-examination, stated that she did not file for any restraining orders, because Mr. Martinez would stop the offending behavior after she notified the police. She also stated that Mr. Martinez lowered his child support after she contacted the police.

The trial court, after considering the testimony, maintained the schedule of the hearing officer that provided for joint custody to the parties, with the mother as custodial parent during the school year and shared physical custody during the summer months. Mr. Martinez was awarded visitation during the school years on Tuesdays and Thursdays from the end of the school day until 7:00 P.M. and on every other weekend from Friday when school ends until Sunday at 7:00 P.M. Physical custody of the child during holidays was also set forth. The parties were also ordered to participate in co-parenting therapy.

In this appeal, Mr. Martinez argues that the trial court erred in failing to grant him physical custody, or in the alternative, to grant shared custody. He argues that the trial court made its determination based on the parties’ relationship toward each other, and not on the best interest of the child. He further argues that the trial court erred in failing to address the child’s current living situation.

|flIn rendering judgment, the court orally noted that Mr. Martinez had control issues. The court also stated that the child’s sleeping arrangement would have to be addressed in the future as she got older.

At the time of the hearing, the child was in school, and a shared weekly physical custody would cause disruption. In addition, Ms. Lagos had been the primary physical custodian for the entirety of the child’s life. Thus, the trial court could have found that shared custody, with Ms. Lagos as the primary physical custodian during the school year was in the best interest of the child. Furthermore, the fact that the child’s sleeping arrangement may need to be addressed in the future does not mandate that it be addressed in the present. All parties agreed that the child was happy and successful with the current custody arrangement. The trial court is not required to make a mechanical evaluation of every factor of La. C.C. art. 194. Robertson, supra at 363. Every child custody case must be viewed based on its own particular facts and relationships involved, with the goal of determining what is in the best interest of the child. Mulkey v. Mulkey, 12-2709 (La.5/7/13), 118 So.3d 357, 367.

Furthermore, the court of appeal cannot simply substitute its own findings for that of the trial court. Id. at 368. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. Id. at 367; In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47, 62.

We find no manifest error in the trial court’s factual determination that the best interest of the child is to have her mother as domiciliary custodian during the school year, and a sharing of custody with weekly exchanges during the summer months.

|inIn his fourth assignment of error, Mr. Martinez contends that the trial court erred by signing a judgment that was prepared by opposing counsel and had been circulated for less than five working days, in violation of Uniform Rules, District Courts, Rule 9.5. However, the record reflects that although the judgment was not circulated five days prior to signing, Mr. Martinez suffered no prejudice as a result of this failure. Mr. Martinez’s counsel was given a copy of the judgment prior to its signing, and the parties were told to appear in court to discuss the judgment if an agreement could not be reached. Mr. Martinez’s counsel was able to review the judgment and, because the parties did not agree, they appeared in the judge’s chambers prior to the signing of the judgment. Therefore, any error in counsel’s noncompliance with Rule 9.5 was harmless error. Burgo v. Henderson, 12-332 (La.App. 3 Cir. 12/19/12), 106 So.3d 275, 282; Lewis v. ODECO, Inc., 07-0497 (La.App. 4 Cir. 4/8/09), 12 So.3d 363, 369, writ denied, 09-1386 (La.10/10/09), 19 So.3d 463, 09-1425 (La.10/16/09), 19 So.3d 479, cert. denied, 559 U.S. 972, 130 S.Ct. 1705, 176 L.Ed.2d 183 (2010).

In his fifth assignment of error, Mr. Martinez argues that the trial court erred in failing to grant his written motion for written reasons for judgment, which was made after the denial of his motion for new trial.

Pursuant to La. C.C.P. art. 1917, “the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment.” When the trial judge fails to comply with a timely request for written findings of fact and reasons for judgment under La. C.C.P. art. 1917, the proper remedy for the aggrieved party is to apply for supervisory writs and move for remand of the case for the purpose of providing the trial judge an opportunity to comply with the request. Anders v. Boudion, 93-894 (La.App. 5 Cir. 3/29/94), 636 So.2d 1029, 1031; Burgo v. Henderson, 12-332 (La.App. 3 Cir. 12/19/12), 106 So.3d 275, 282. In this ease, despite the trial court’s failure to comply with the mandates of La. C.C.P. art. 1917, Mr. Martinez failed to avail himself of the appropriate remedies. Instead he argues in his appeal brief that the trial court’s failure to provide written reasons constitutes reversible error. To the contrary, a trial court’s failure to provide written reasons is not grounds for reversing the judgment. Foshee v. Foshee, 12-1358 (La.App. 4 Cir. 8/28/13), 123 So.3d 817, 820. See also Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90, footnote 9. We find no merit to this assignment of error.

In his final two assignments of error, Mr. Martinez alleges that the trial court erred in failing to grant a contradictory hearing and in failing to grant his two motions for new trial.

The appellate standard of review of the ruling on a motion for a new trial is whether the trial judge abused his discretion. Woodlands Dev., L.L.C. v. Regions Bank, 11-263 (La.App. 5 Cir. 12/28/11), 83 So.3d 147, 153, writ denied, 12-0424 (La.4/9/12), 85 So.3d 704. In this case, the motion for new trial alleges that the verdict was contrary to law and evidence, however Mr. Martinez failed present anything to support his motion, other than argument already heard by the trial court at the hearing on the custody trial. We find no abuse of discretion in the trial court’s denial of the motion for new trial.

Mr. Martinez relies on La. C.C.P. art. 1971, which provides that “A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only.” However, Article 1971 is permissive rather than mandatory, and does not require a contradictory hearing in every situation where a motion for new trial is filed. A motion for new trial may be summarily denied in the absence |12of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial. Williamson v. Haynes Best W. of Alexandria, Inc., 02-1076 (La.App. 4 Cir. 1/21/04), 865 So.2d 224, 227, writ denied, 04-0784 (La.5/7/04), 872 So.2d 1089.

Mr. Martinez makes no showing of facts or law which would warrant the granting of a new trial in this case. These assignments of error are without merit.

For the above discussed reasons, the trial court’s ruling is affirmed. Costs are assessed against appellant.

AFFIRMED.

      . Mr. Martínez designated the record, including only his petition, motion for new trial and reurged motion for new trial, motion for appeal, judgment and trial transcript of the custody hearing. No other pleadings or transcripts were designated, and are not contained in the record on review. At the custody hearing, Mr. Martinez presented his testimony, along with that of his wife, his mother, his sister (who is married to his counsel) and his employer (who is his sister’s ex-father-in-law). Ms. Lagos presented her testimony, along with that of her sister and her niece, and admitted the child’s report card into evidence.


author: JUDE G. GRAVOIS, Judge.

text:
    Diane R. SCHNELL v. Hillman (Hilman) MENDOZA and Jane Mendoza, The Heirs, Devises, Assignees, Lienor, Creditors, Trustees, and All Other Parties Claiming an Interest by, Through, Under, or Against Hilman (Hillman) and Jane W. Mendoza.
    No. 13-CA-922.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Diane R. Schnell, Kenner, Louisiana, Plaintiff/Appellant In Proper Person.
    John A.E. Davidson, Christopher J. Davidson, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ^Plaintiff, Diane R. Schnell, appeals a judgment that granted an exception of res judicata filed by defendants, Hilman Mendoza and Jane Mendoza. Plaintiff contends that the trial court erred in granting the exception, arguing that res judicata bars her second suit against these defendants only if the prior suit involved the same parties, the same cause, and the same object of demand. She asserts that her second suit involves a different cause of action relative to a bond for deed contract between the parties than the cause of action she asserted in her first suit. For the reasons that follow, we affirm the trial court’s judgment granting defendants’ exception of res judicata.

FACTS AND PROCEDURAL HISTORY

On January 31, 2008, plaintiff and defendants entered into a bond for deed contract whereby plaintiff agreed to purchase from defendants a home located at 166 Chateau Latour Drive in Kenner, Jefferson Parish, Louisiana. The contract called for plaintiff to make a down payment on the home and then pay the balance |ato defendants in installments. In her first suit, Schnell v. Anthony Mendoza, et al, case number 681-472 in the 24th Judicial District Court, Jefferson Parish, Louisiana, filed on December 17, 2009, plaintiff sued defendants for “damages and intentional interference with contract,” praying for damages as a result of defendants’ concealment of defects in the property and liens on the property, as well as reimbursement for repair costs plaintiff incurred because of defendants’ alleged concealment of defects in the home. Following a bench trial on September 27, 2011, the trial court granted judgment in favor of plaintiff in the amount of $10,760.75, plus costs and interest from the date of judicial demand, representing repair costs incurred by plaintiff.

Plaintiff filed a devolutive appeal of that judgment, arguing that the trial court erred in failing to determine that the bond for deed contract failed due to the fault of defendants, which would have thereby possibly entitled plaintiff to the return of her deposit made on the property, as well as the return of the payments plaintiff made on the mortgage, taxes, and insurance on the property. Plaintiff argued in her motion for appeal that such claims were encompassed by the scope of her petition for damages, or in the alternative, that the pleadings in that case were enlarged at trial to include rescission of the contract and the return of all payments she made pursuant thereto. Defendants opposed these contentions.

This Court affirmed the judgment in favor of plaintiff. Schnell v. Mendoza, et al, 12-272 (La.App. 5 Cir. 11/13/12), 105 So.3d 874. In so doing, this Court noted:

In its reasons for judgment, the trial court found that Ms. Schnell established at trial that Mr. Mendoza misrepresented the condition of the property and failed to make agreed upon repairs as outlined in the home’s inspection report. The amount of the award reflected the repair receipts submitted into evidence. The trial court further found that the bond for deed contract was not voided by defendants’ failure to disclose encumbrances on the property. However, the court found |4that the issue of cancellation of the contract due to Ms. Schnell’s failure to make contractual payments was not placed before the court and thus, the award of damages could only include receipts for repairs which were covered by the inspection report.

Id. at 877. This Court found that plaintiffs pleadings did not, in fact, encompass the cause of action she tried to assert on appeal — the invalidation of the bond for deed contract — and in fact clearly relied on the validity of the bond for deed contract. This Court further disagreed with plaintiffs contention that the scope of her pleadings had been expanded by the evidence presented at trial.

On appeal in the instant case, plaintiff agrees, in her brief, with this Court’s previous findings that the matter of the validity of the bond for deed contract was not litigated in the prior suit. Thus, she argues, that this cause of action was not, in fact, adjudicated in the prior proceeding, and is not, therefore, res judicata, and thus the trial court erred in granting defendants’ exception. Plaintiff appears to rely, however, on the law of res judicata in effect prior to the 1990 revision of La. R.S. 13:42s!.

Since 1991, La. R.S. 13:4231 has provided:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to |Bany issue actually litigated and determined if its determination was essential to that judgment.

(Emphasis added.)

Comment (a) (1990) to La. R.S. 13:4231, provides, in pertinent part:

Under new R.S. 13:4231 the second action would be barred because it arises out of the occurrence which was the subject matter of the prior litigation. The central inquiry is not whether the second action is based on the same cause or cause of action (a concept which is difficult to define) but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. This serves the purpose of judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction or occurrence. This prevents needless relitigation of the underlying facts and will free the defendant from vexatious litigation; and, by focusing on the transaction or occurrence which would be comparatively easy to determine, this proposal avoids the much more difficult problem of defining what constitutes “cause of action” is avoided. For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.

(Emphasis added.)

Plaintiff argues that her first suit sounded in tort, and therefore does not preclude the instant (second) suit, which alleges a breach of the bond for deed contract, and thus the trial court erred in granting the exception. However, in order to overcome an exception of res judicata, La. R.S. 13:4231(1) requires a plaintiff in the first proceeding to assert “all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation,” regardless of the legal theory or particular cause of action, as discussed above in the Comment to this statute. Further, in summarizing the scope of res judicata, the First Circuit in Mandalay Oil & Gas, L.L.C. v. Energy Dev. Corp., 01-0993 (La.App. 1 Cir. 8/4/04), 880 So.2d 129, 135-136, writ denied, 2004-2426 (La.1/28/05), 893 So.2d 72, stated:

| nUnder La. R.S. 13:4231, res judicata bars relitigation of a subject matter arising from the same transaction or occurrence as a previous suit. Thus, the chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. Terrebonne Fuel [& Lube, Inc. v. Placid Refining Co.], 95-0654 at p. 12, 666 So.2d [624] at 632 [(La.1996)]. Furthermore, the doctrine of res judicata is not discretionary and mandates the effect to be given to final judgments. Leon v. Moore, 98-1792, pp. 4-5 (La.App. 1st Cir. 4/1/99), 731 So.2d 502, 505, writ denied, 99-1294 (La.7/2/99), 747 So.2d 20; cf. La. R.S. 13:4232.
La. R.S. 13:4231 embraces the broad usage of the phrase “res judicata” to include both claim preclusion (res judica-ta) and issue preclusion (collateral estop-pel). Under claim preclusion, the res judicata effect of a final judgment on the merits precludes the parties from relit-igating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: (1) foreclosure of re-litigating matters that have never been litigated, but should have been advanced in the earlier suit; and (2) foreclosure of relitigating matters that have been previously litigated and decided. Hudson v. City of Bossier, 33,620, p. 7 (La.App. 2d Cir. 8/25/00), 766 So.2d 738, 743, writ denied, 00-2687 (La.11/27/00), 775 So.2d 450.

Thus, res judicata does not require that claims be actually litigated for the doctrine of res judicata to apply. Id.; Classen v. Hofmann, 06-560 (La.App. 5 Cir. 11/28/06), 947 So.2d 76. Accordingly, it was incumbent upon plaintiff to raise all issues related to the bond for deed contract in her first suit, even if required to so do in the alternative. Plaintiff did not attempt to raise the breach of contract cause of action until after her first trial, at which point it was too late, because, as the trial court found and as was affirmed by this Court, the pleadings had not been expanded to encompass this new cause of action by the evidence presented at that trial.

It is clear from the petitions plaintiff filed in the first suit and in instant suit that the claims asserted by plaintiff in both suits arose out of the bond for deed contract executed by the parties on January 31, 2008. The petition in this suit for 17breach of contract alleges facts that occurred well before the final judgment in the first suit, invoking the principles stated clearly in the first paragraph of La. R.S. 13:4231. Thus, we find no error in the trial court’s ruling maintaining defendants’ exception of res judicata.

Plaintiff also argues in brief that exceptional circumstances exist that justify a relief from the application of res judicata in this case. As this Court noted in Arwood v. J.P. & Sons, Inc., 99-1146 (La.App. 5 Cir. 2/29/00), 759 So.2d 848, 850:

[La.] R.S. 13:4232 sets forth exceptions to the doctrine of res judicata. It provides, in pertinent part, that a judgment does not bar another action by the plaintiff when exceptional circumstances justify relief from the res judicata effect of the judgment. This provision gives the court discretion to grant relief from the judgment for exceptional circumstances. This discretion is necessary to allow the court to balance the principle of res judicata with the interests of justice. This discretion must be exercised on a case by case basis and such relief should be granted only in truly exceptional cases, otherwise the purpose of res judi-cata would be defeated. Spear v. Prudential Property & Casualty Ins. Co., 98-1663 (La.App. 4 Cir. 1/13/99), 727 So.2d 640.

Specifically, plaintiff argues in brief that she was the victim of defendants’ fraud, which constitutes exceptional circumstances justifying relief in this case:

Defendants made material false statements as to identifiable information about themselves, provided mix-matched social security numbers, mix-matched date of births, and orchestrated a highly elaborate concealment of public records. Additionally, defendants knew that plaintiff would justifiably rely on their statements since the public records and the Title Company (Title Depot) would not reveal the defects of the subject property.

The First Circuit addressed the application of La. R.S. 13:4232 in Chaisson v. Oceanside Seafood, 97-2756 (La.App. 1 Cir. 6/29/98), 713 So.2d 1286, 1289. After analyzing various cases in which the exceptional circumstances provision had been considered, our brethren stated:

|/These cases suggest that the “exceptional circumstances” provision is likely to be applied most often in complex procedural situations, in which litigants are deprived of any opportunity to present their claims because of some quirk in the system which could not have been anticipated. “Exceptional circumstances” might also be applied to factual scenarios that could not possibly be anticipated by the parties or decisions that are totally beyond the control of the parties.

The facts in this case do not argue in favor of the relief requested by plaintiff. Plaintiffs petition in this case alleges facts that were known to her at the time she filed her first suit, as well as facts known to her prior to the time judgment was rendered in the first suit. Plaintiff could have, in her first suit, pleaded facts in the alternative relating to both of her alleged causes of action (for tort damages and for breach of contract), under La. C.C.P. art. 892, or could have filed an amended petition to add the breach of contract action. There existed no complex procedural situation, unknown factual scenario, or decisions that were totally beyond the control of plaintiff. The allegations of “fraud” made by plaintiff in her second suit and in brief to this Court do not rise to the level of “exceptional circumstances” justifying the relief plaintiff seeks.

CONCLUSION

Accordingly, although a harsh result for plaintiff, we are constrained to follow the law, and thus, for the reasons noted above, affirm the trial court’s judgment granting defendants’ exception of res judicata.

AFFIRMED.

      . In her reply brief, plaintiff cites La. C.C. art. 2286, but this article of the 1870 Civil Code was redesignated as R.S. 13:4231 by Acts 1984, No. 331, § 7, effective January 1, 1985. The text of this statute was substantially amended to its current provisions in Acts 1990, No. 521, § 1, effective January 1, 1991, which amendment effected a substantial change in the law, as noted in Comment (a) to the 1990 revision.

      . Plaintiff alleged in her petition in her first suit that defendants cancelled the bond for deed contract on December 17, 2009. Plaintiff filed her petition in case number 681-472 that same day. The matter was not tried until 2011, giving plaintiff ample time to put "all causes of action ... arising out of the [bond for deed] transaction” before the court in her first suit. La. R.S. 13:4231(1).

      . La. C.C.P. art. 892 provides: "Except as otherwise provided in Article 3657, a petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive. In such cases all allegations shall be made subject to the obligations set forth in Article 863.”


author: MARC E. JOHNSON, Judge.

text:
    Jack ADAMS v. AVONDALE INDUSTRIES, INC. and/or Northrop Grumman Ship Systems, Inc. and XYZ Insurance Company.
    No. 13-CA-971.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Patrick H. Hufft, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Brian C. Bossier, Edwin A. Ellinghau-sen, III, Erin H. Boyd, Attorneys at Law, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

12PIaintiff/appellant, Julie Adams (hereinafter referred to as “the Estate”), as executor of the estate of Jack Adams and on behalf of her deceased father Jack Adams, appeals the sustaining of a peremptory exception of no cause of action in favor of Northrop Grumman Ship Systems, Inc. f/k/a Avondale Industries, Inc. (hereinafter referred to as “Avondale”) from the 24th Judicial District Court, Division “F”. For the following reasons, we affirm the sustaining of the exception of no cause of action and remand the matter to the trial court for amendment of the petition.

FACTS AND PROCEDURAL HISTORY

Jack Adams was an employee of Avon-dale. In 1977, Mr. Adams suffered severe injuries to his left knee while acting in the course and scope of his employment. Mr. Adams reinjured his left knee during the course and scope of his employment on or about April 28, 1984. As a result of the injuries, Mr. Adams underwent total knee arthroplasty (“TKA”) to his left knee. After the surgery, Mr. |sAdams was able to return to work subject to a permanent partial disability. However, in 1987, Mr. Adams was declared permanently and totally disabled as a result of the injuries to his left knee. Avondale voluntarily paid workers’ compensation benefits to Mr. Adams for his disability pursuant to the Longshore and Harbor Workers’ Compensation Act.

On April 21, 2003, Mr. Adams reported to the office of Dr. Earl J. Rozas to address severe pain in his left knee. In August of 2003, it was discovered that Mr. Adams was suffering from a displaced fragment of cement which had broken free of the TKA hardware used in a previous knee surgery. Dr. Rozas recommended that Mr. Adams have surgery to remove the fragment, but the surgery was refused by Avondale’s workers’ compensation administrator.

On November 17, 2003, Mr. Adams reported to Ochsner Hospital, complaining of severe left knee pain. Mr. Adams was treated conservatively for his knee. On December 12, 2003, after failing to respond to the conservative treatment, Mr. Adams was diagnosed with a severely infected left TKA, which was treated by debridement, synovectomy and placement of an antibiotic spacer. Four days later, on December 16, 2003, Mr. Adams was forced to undergo an emergency above-knee amputation of his left leg due to a rampant and life-threatening infection.

Mr. Adams filed a tort action against Avondale on December 10, 2004, alleging the company arbitrarily and capriciously refused to approve surgery for removal of the displaced cement fragment. Additionally, Mr. Adams alleged that the refusal to approve the surgery was an intentional act and was, therefore, within the intentional act exception to the Workers’ Compensation Act.

On July 8, 2013, Avondale filed a peremptory exception of no cause of action, asserting that Mr. Adams’ exclusive remedy as to Avondale was limited to |4the Louisiana Workers’ Compensation Act and could not be brought as a tort action. A supplemental and amending petition was filed on September 6, 2013, substituting the Estate as the plaintiff in the matter because Mr. Adams had passed away. The supplemental and amending petition reiterated the same allegations set forth in the original petition. A hearing on the exception was held on September 25, 2013. In a judgment rendered on the same date, the trial court sustained Avondale’s exception of no cause of action and designated the judgment as final for appeal purposes. The Estate filed the instant appeal to review that judgment.

ASSIGNMENTS OF ERROR

On appeal, the Estate alleges the trial court erred in sustaining an exception of no cause of action based on an erroneous interpretation of supreme court jurisprudence. Alternatively, the Estate alleges the trial court erred in refusing to allow the Estate the opportunity to amend its petition.

LAW AND ANALYSIS

General Law

A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Show-Me Const., LLC v. Wellington Specialty Ins. Co., 11-528 (La.App. 5 Cir. 12/29/11); 83 So.3d 1156, 1159. The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. No evidence may be introduced to support or controvert the exception raising the objection of no cause of action. Id. For the purpose of determining the issues raised by the exception, all facts pleaded in the petition must be accepted as true. Id. In reviewing a trial court’s ruling on a peremptory exception of no cause of 15action, the appellate court should conduct a de novo review because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Id.

Exception of No Cause of Action

The Estate alleges the trial court erred in sustaining Avondale’s exception of no cause of action. The Estate insists that the petition pleaded a valid cause of action in the petition through alleging 1) Mr. Adams’ treating physician recommended surgery to remove a loose fragment of cement, and that this surgery was intentionally, arbitrarily and capriciously refused by Avondale; and 2) Avondale’s continued refusal to authorize the surgery caused a rampant and life-threatening infection which required the amputation of Mr. Adams’ left leg. Through these allegations, the Estate contends the petition stated a cause of action that fits within the narrow exception to the Workers’ Compensation Act set forth in Weber v. State, 93-62 (La.4/11/94); 635 So.2d 188.

The Estate asserts that Weber and its progeny, Kelly v. CNA Ins. Co., 98-454 (La.3/12/99); 729 So.2d 1033, provide that the exception enunciated is not limited to cases where the employee dies, but rather, only a “significant worsening” of the plaintiffs condition must be shown. The Estate further contends that the use of the language in Kelly reveals the intent of the supreme court to keep the Weber remedy available to workers’ compensation claimants who have been arbitrarily and capriciously denied medical benefits and who experience a significant worsening of their condition because of the denial. Alternatively, the Estate alleges the trial court erred in refusing to allow it the opportunity to amend its petition pursuant to La. C.C.P. art. 934.

Conversely, Avondale asserts the trial court properly sustained its exception of no cause of action because Weber and Kelly allow for a very limited cause of faction in tort only when the employee dies as a result of the employer’s arbitrary refusal to pay medical benefits. Avondale claims that the requested procedure was a surgical removal of a displaced fragment of cement, which was a non-life-threatening situation. Because Mr. Adams’ death was not a result of the failure to approve the knee surgery and the refusal to pay was not “an intentional and arbitrary act taken despite the knowledge that death was substantially certain to follow” as required by Weber, Avondale argues that the Estate’s recourse was solely through a workers’ compensation claim, not an action in tort.

In Weber, supra, a wrongful death action was filed against the employer for the intentional refusal to authorize medical treatment for the deceased employee’s occupational disease, when the treatment was necessary to save the employee’s life. The issue presented was whether the employee’s survivors had a cause of action to recover tort damages under the facts alleged in the petition or whether they were relegated to the statutory compensation remedies for the employer’s arbitrary and capricious failure to provide the necessary treatment. The Louisiana Supreme Court held that an employers’ intentional and arbitrary denial of necessary medical expenses for an employee, if proven, may result in liability for damages beyond the remedies provided in the Workers’ Compensation Act, when: 1) the conduct and the resulting injury does not occur in the course of employment and only marginally arises out of employment, and 2) the employer knew to a substantial certainty the denial would cause death that would not otherwise have occurred. Id. at 193-94.

The court also held that the narrow exception to the general rule that penalties and attorney’s fees are the exclusive remedy for the employer’s misconduct in handling the administration of compensation claims only applies when there is intentional conduct and when the employer acts arbitrarily despite |7knowledge that death is substantially certain to follow. Id. at 194. However, the court reserved decision on whether the exception would apply if the employer arbitrarily denies payment of necessary medical expenses despite knowledge that a significant worsening of the employee’s condition is substantially certain to follow the denial. Id. at n. 9.

In Kelly, supra, Linda Kelly, an injured employee, filed a workers’ compensation claim and a tort action seeking damages against her employer and its insurer for the worsening of her carpal tunnel syndrome after the employer terminated her benefits and failed to pay her medical expenses. In its analysis, the supreme court revisited the Weber decision. The court explained that the exception in Weber was created prior to amendments to the Louisiana Constitution and the Workers’ Compensation Act, and the new procedural structure of the Office of Workers’ Compensation provides for immediate recourse for an employer’s refusal to pay medical benefits. Id. at 1038. After comparing the facts of Weber to the facts of the case before it, the court found that the Workers’ Compensation Act provided the exclusive remedy to Ms. Kelly for the non-life-threatening carpal tunnel syndrome injuries she incurred. The court stated that the employer’s arbitrary denial or delay of medical treatment in that matter would not result in death or a significant worsening of Ms. Kelly’s carpal tunnel syndrome. Id. at 1039. The court concluded that the narrow exception arrived at in Weber, resulted from intentional conduct on the part of an employer for refusing to pay for medical treatment, knowing that without such treatment, the decedent’s condition was terminal. In his concurrence, Justice Lemmon opined that the majority opinion failed to decide the issue of whether an employee can ever, under any circumstances, state a cause of action in tort against his or her employer whose intentional and arbitrary denial of medical benefits causes the employee’s disabling 1 ¿¡condition to undergo foreseeable disastrous worsening to a level something less than death.

From our review of the language used in the Kelly decision, we do not find that the remedy for an intentional denial of the payment of necessary medical expenses when the employer has knowledge that a significant and life-threatening worsening of the employee’s condition is substantially certain to follow the denial lies exclusively within the Workers’ Compensation Act. The supreme court emphasized that the facts in Kelly did not fit within the narrow exception provided in Weber. However, the court’s statement that “the employer’s arbitrary denial or delay of medical treatment would not result in death or a significant worsening of the employee’s condition” leads us to conclude that the arbitrary denial or delay in treatment resulting in a significant and life-threatening worsening of an employee’s condition are factors in deciding whether the remedy could lie within a tort action. Thus, we hold that an employer’s arbitrary denial or delay in treatment, when the employer has knowledge that a significant and life-threatening worsening of an employee’s condition is substantially certain to follow the denial, is an exception to the Workers’ Compensation Act’s exclusive remedy. Now, we will examine whether the petition in this matter states a cause of action that fits within that exception.

In the case at bar, the petition alleges Mr. Adams suffered from a displaced fragment of cement, which had broken off from the TKA hardware in his left knee, and Avondale arbitrarily and capriciously refused to authorize the surgery to remove the fragment from Mr. Adams’ left knee. Additionally, the petition alleges that Mr. Adams was diagnosed with an infected left TKA, and after other treatments were to no avail, an above-knee amputation was performed on the left leg due to a serious and life-threatening infection. The petition further alleges that | ¡Avondale ⅛ liable for the arbitrary and capricious refusal to approve necessary preventative surgery for the removal of the displaced cement that caused Mr. Adams to undergo amputation of his left leg above the knee.

After our de novo review, we find that the petition does not sufficiently state a viable cause of action against Avondale. As discussed above, a tort action where a significant and life-threatening worsening of the employee’s condition is substantially certain to follow an employer’s arbitrary denial of necessary medical expenses does fit within the narrow exception to the Workers’ Compensation Act. The petition in this matter alleges Mr. Adams had his left leg amputated due to a serious and life-threatening infection, and Avondale failed to authorize medical payments for the surgery. Nevertheless, the petition does not specifically allege that the serious and life-threatening infection was directly linked to the failure to remove the fragment from Mr. Adams’ knee, or that Avon-dale’s refusal to approve the necessary surgery caused a life-threatening condition to develop, which subsequently resulted in the amputation of his left leg. As such, we affirm the trial court’s sustaining of the exception of no cause of action. However, pursuant to La. C.C.P. art. 934, we remand the matter to the trial court to allow the Estate to amend its petition to state a cause of action that fits within the exception to the Workers’ Compensation Act.

DECREE

For the foregoing reasons, we affirm the sustaining of the peremptory exception of no cause of action. Additionally, we remand the matter to the trial court to allow the amendment of the petition pursuant to La. C.C.P. art. 934.

AFFIRMED; REMANDED.

      . The record before us does not indicate the date of Mr. Adams’ death.