author: COOKS, Judge. AMY, J., PICKETT, J.,

text:
    Clayton WALKER and Danielle Walker v. Joe HEBERT, et al.
    No. 13-495.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Mark G. Artall, Lafayette, LA, for Plaintiff/Appellees, Clayton Walker and Danielle Walker.
    Onebane Law Firm, Richard J. Petre, Jr., Lafayette, LA, for Defendant/Appellant, Essentia Insurance Company.
    Dan Boudreaux, Baton Rouge, LA, for Intervenor/Appellee, Liberty Mutual Insurance Company.
    On rehearing, court composed of SYLVIA R. COOKS, MARC T. AMY, ELIZABETH PICKETT, BILLY H. EZELL, and SHANNON GREMILLION, Judges.
   COOKS, Judge.

hFACTS AND PROCEDURAL HISTORY

Clayton Walker (Plaintiff) was allegedly injured on September 22, 2009, when a vehicle driven by Joe Hebert (Hebert), and owned by his brother, Donald Hebert (Donald), pinned Plaintiff between the vehicle and a building. Hebert was insured with Essentia Insurance Company (Essen-tia) at the time of this accident on a policy covering his 1969 Chevrolet. Camaro with an effective policy period of March 15, 2009, through March 15, 2010. Plaintiff sued Hebert and Essentia among others. Essentia filed a Motion for Summary Judgment asserting an exclusion provision in the policy rendered Essentia free from any responsibility for damages suffered by Plaintiff.

The trial court denied Essentia’s Motion for Summary Judgment finding the policy ambiguous because it contained provisions which both excluded and included coverage over non-owned vehicles being used by the insured. Essentia later filed a second Motion for Summary Judgment, and a Motion for Partial Summary Judgment, to which Plaintiffs filed Oppositions and a Cross Motion for Summary Judgment. The trial court again denied Essentia’s Motions and granted Plaintiffs’ Motion for Summary Judgment. The trial court specifically found “there was a policy in effect on the date of the accident” and the policy is “not against public policy.” Essentia asserted that the policy had been cancelled with an effective date of cancellation of September 22, 2009, 12:01 A.M. The accident occurred on September 22, 2009, after 12:01 A.M. The trial court found the policy provides coverage in the amount of “$100,000.00 per person and $800,000.00 per accident.” On the “Declarations” page of the policy coverage limits are set forth as: “A. Bodily Injury & Property Damage: $100,000.00 Per Accident [;] B. Medical Payments: $1,000.00 Per Person Per Accident [;] and C. Uninsured ^Motorists Bodily Injury: $80,000.00 Per Accident.” Essentia appeals the trial court judgment.

LEGAL ANALYSIS

Under the provisions of La.Code Civ. P. art 966(B)(2), a party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” We review summary judgments de novo “under the same criteria that govern the district court’s consideration of whéther summary judgment is appropriate.” Dronet v. Safeway Ins. Co., 95-1471, p. 2 (La.App. 3 Cir. 11/7/97), 703 So.2d 97, 99, citing Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318 (La.1993). “A dispute as to the issue of whether, as a matter of law, the language in an insurance policy provides coverage to a party can properly be resolved within the context of a motion for summary judgment.” Id., citing Domingue v. Reliance Ins. Co., 619 So.2d 1220 (La.App. 3 Cir.1993).

Before we address the question of coverage we will address Essentia’s argument that even if there is coverage under the policy, the policy was cancelled prior to the accident for which coverage is sought. Relying solely on its representations in its Admissions of Fact, Essentia asserts that on November 4, 2009, Hebert signed a form cancelling his policy on his 1969 Ca-maro with a retroactive effective date of September 22, 2009, 12:01 A.M. Essentia asserts this came about through a series of events following the destruction by fire of Hebert’s Camaro on August 14, 2009. According to Essentia, Hebert advised them after the destruction of his car “he would want to cancel his policy if he did not buy another classic car to replace the insured 1969 Chevrolet Camaro lost in the fire.” They further assert that on October 28, 2009, Hebert informed them that as he had .not Ryet bought any replacement car he wanted to cancel the policy. According to Essentia’s Admission of Facts, Hebert “signed the policy cancellation form showing September 22, 2009, at 12:01 a.m. as the cancellation date,” and Essentia “received the cancellation form [on November 11, 2009] and cancelled the policy retroactive to September 22, 2009, at 12:01 a.m., the date on which Essentia and Mr. [Joe] Hebert settled the amount for loss on the insured 1969 Camaro ...” The record does not contain a copy of this form. Be that as it may, if we accept Essentia’s “admissions of fact” these facts do not establish that coverage was not in effect on September 22, 2009, when the accident injuring Plaintiff Walker occurred. Under these alleged facts Hebert had not made a decision to cancel his insurance coverage when the accident involving Walker occurred, and did not come to that decision until just over a month later. Until then, the policy remained in effect as it was still within the original policy period. When the accident occurred on September 22, 2009, Walker and Hebert had vested rights in the insurance policy. This court has long recognized insurance policies cannot be canceled retroactively. Ceasar v. New England Ins. Co., 616 So.2d 850 (La.App. 3 Cir.1993). Additionally, Louisiana Revised Statutes 22:885(A) (emphasis added) provided in 2009 as follows:

Cancellation by the insured of any policy which by its terms is cancellable at the insured’s option or of any binder based on such policy may be effected by written notice thereof to the insurer and surrender of the policy or binder for cancellation prior to or on the effective date of cancellation. In event the policy, or binder has been lost or destroyed and cannot be so surrendered, the insurer may in lieu of such surrender accept and in good faith rely upon the insured’s written statement setting forth the fact of such loss or destruction.

As the statute provides that notice of cancellation by an insured must be prior to or on an effective date of cancellation, it is clear that the. policy cannot be canceled retroactively. By Essentia’s own admission, Hebert did not send written |4notice to cancel his policy until after the accident involving Plaintiff occurred, and not until after the “effective date” of cancellation recited in the notice. Likewise, the insurance policy covering Hebert’s classic Ca-maro expressly provides the manner in which the policy may be cancelled by the insured (emphasis added):

Cancellation. This policy may be canceled during the policy period as follows:
1. The named insured shown in the Declarations may cancel by:
a. Returning this policy to us; or
b. Giving us advance written notice of the date cancellation is to take effect.

Under Essentia’s own version of the facts regarding the insured’s cancellation of the policy, Hebert did not give any notice of cancellation prior to September 22, 2009, thus that date cannot be the date, of cancellation as to do so runs afoul of both the contractual provisions of this insurance contract and the provisions of La. R.S. 22:885. We therefore hold, as did the trial court, the policy insuring Hebert’s Camaro was in effect on the date of Plaintiff’s accident.

Next, we must determine whether the policy provides coverage for Hebert while driving his brother’s vehicle. Essen-tia asserts that the policy specifically excluded coverage for any liability “arising out of the ownership, maintenance, or use of any vehicle other than ‘your covered auto.’ ” This provision appears in the basic policy under- the heading “Part A. Liability Coverage. Exclusions.” Plaintiffs assert the Essentia policy also contained an amendment of “Part A” of the policy expressly affecting policies issued to Louisiana residents. Our review of the record supports Plaintiffs’ assertion.

The trial judge found the policy provisions ambiguous and therefore found the ambiguity must be resolved in favor of coverage. We too, find Exclusions Number 10 and 8, when read in full, are ambiguous, and, were they to be given |fieffect, would result in coverage for the reason relied on by the trial court. Exclusion Number 8 reads:

8. Using:
c. Any vehicle, other than “your covered auto” without the express or implied permission of the owner of such vehicle.

Exclusion Number 10 reads:

10. Arising out of ownership, maintenance, or use of any vehicle other than “your covered auto.”

If the language of Exclusion Number 8 had ended with a period after “your covered auto,” the two provisions would not be ambiguous, but the modifying phrase following “your covered auto” in Exclusion 8 renders it ambiguous with the simple statement in Exclusion 10. Such an ambiguity is construed in favor of coverage. Moreover, Louisiana law requires that the policy provide coverage to the insured when he is a permissive user of another person’s vehicle. Be that as it may, there are additional compelling reasons which lead us to the conclusion that the Essentia policy, as modified by the Louisiana Endorsement to bring it into conformity with the mandatory requirements of Louisiana law, provides coverage.

Essentia focuses on the wording of Exclusion Number 10 in the original Es-sentia policy. This focus is completely misplaced. The focus on deciding the issue of insurance coverage of a vehicle owned by a Louisiana resident must begin and end with the mandatory insurance provisions of Louisiana law applicable to all motor vehicles owned and operated in this state.

Louisiana Revised Statutes 32:900 provides in pertinent parts (emphasis added):

A. A “Motor Vehicle Liability Policy” as said term is used in this Chapter, shall mean an owner’s or an operator’s policy of liability insurance, certified as provided in R.S. 32:898 or 32:899 as proof |r,of financial responsibility, and issued except as otherwise provided in R.S. 32:899, by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured.
B. Such owner’s policy of liability insurance:
(1) Shall designate by explicit description or by appropriate reference to all motor vehicles with respect to which coverage is thereby to be granted; and
(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs with respect to each such motor vehicle as follows:
C. Such operator’s policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him, within the same territorial limits and subject to the same limits of liability as are set forth above with respect to an owner’s policy of liability insurance.
D. Such motor vehicle liability policy shall state the name and address of the named insured, the coverage afforded by the policy, the premium charged therefor, the policy period and the limits of liability, and shall contain an agreement or be endorsed that insurance is provided thereunder in accordance with the coverage defined in this Chapter as respects bodily injury and death or property damage, or both, and is subject to all the provisions of this Chapter.
E. Every motor vehicle liability policy shall be subject to the following provisions which need not be contained therein:
(4) The policy, the written application therefor, if any, and any rider or endorsement which does not conflict with the provisions of the Chapter shall constitute the entire contract between the parties.

|7The only exception to mandatory coverage which could be applicable in this case is contained in La. R.S. 32:861(A)(1), for automobiles “used primarily for exhibit or kept primarily for use in parades, exhibits, or shows ...” It is a very narrow exception to Louisiana’s mandatory auto insurance law. There is no exemption from coverage in Louisiana for a “hobby” car such as Mr. Hebert’s classic car. According to his testimony, Hebert drove his car on the public roads for his own pleasure and only “exhibited” it in the sense that anyone coming to his home or seeing him drive by on the roadways could see his classic car. He did not drive it “primarily” in parades and he did not enter it in car shows or exhibitions.

Likewise, Louisiana law clearly requires the owner of any motorized vehicle in this state to carry minimum uninsured/underinsured motorist coverage (UM coverage) unless the insured signs a waiver indicating his refusal of UM coverage. See La. R.S. 22: 1295, and Bergeron v. Liberty Mut. Ins. Co., 12-86 (La.App. 3 Cir. 6/6/12), 92 So.3d 645, writ denied, 12-1538 (La.10/12/12), 98 So.3d 873, and Holloway v. Shelter Mut. Ins. Co., 03-896 (La.App. 3 Cir. 12/10/03), 861 So.2d 763, writ denied 04-87 (La.3/19/04), 869 So.2d 854. Hebert did not sign any waiver of coverage and his policy with Essentia reflects he had UM coverage in the amount of $30,000.00 per accident. Under the “State Conformance Endorsement — Louisiana” provisions, the policy changed “Exclusion Provisions” regarding uninsured motorists coverage replacing the original policy language of Exclusion (B) 3, which provided “[w]e do not provide Uninsured Motorists Coverage for ‘bodily injury’ sustained by any ‘insured’: Using your ‘covered auto’ without a reasonable belief that that ‘insured’ is entitled to do so” to read, as amended:

A. We do not provide Uninsured Motorists Coverage for ‘bodily injury’ sustained by:
|8[3] a. [Any ‘insured’ using]: “Your covered auto’ without your express or implied permission; or
b. Any vehicle, other than ‘your covered auto’, without the express or implied permission of the owner of such vehicle.

Essentia argues that such “exclusions” do not “provide” coverage, and, while that statement may be true, it gets Essentia nowhere. Louisiana law mandates a minimum UM coverage unless appropriately waived in writing. No one contends Hebert signed any written waiver of UM coverage. Essentia could not issue a policy to Hebert in Louisiana without providing such coverage. Hebert’s Essentia policy contains mandatory UM coverage, as required by Louisiana law, and only exempts from such coverage two permissible scenarios, neither of which is applicable herein. This “exclusion” does not itself “provide” coverage, it' is required by law. This policy provision is consistent with other provisions in the policy which demonstrate the policy provides UM Coverage mandated by Louisiana law. Furthermore, on the declarations page of the policy, the policy explicitly sets forth under the heading “Liability Coverage”, Part C., “Uninsured Motorists Bodily Injury: $30,000.00 Per Accident.” Obviously the policy provides such coverage as amended by the Louisiana State Conformance Endorsement, aptly named as it brings the Essentia policy into conformity with Louisiana mandatory insurance laws. And, as La. R.S. 22:1295(l)(a)(iii) provides, the “requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.”

Essentia attempts to ignore Louisiana’s mandatory motor vehicle insurance requirements altogether. Instead, it relies on “a number of exclusions” in the original Essentia policy (a non-conforming policy) and rests on the language of Exclusion Number 10, finding that despite the changes mandated by the Louisiana |9State Conformance Endorsement, Exclusion Number 10 excludes coverage “[ajrising out of ownership, maintenance, or use of any vehicle other than ‘your covered auto.’ ” This policy provision can have no force or effect in Louisiana as it is contrary to our mandatory motor vehicle insurance laws. -See La.R.S. 32:900(C) infra.

Louisiana law does not permit any insurance company to include language in a policy covering a Louisiana motor vehicle owner to provide that its policy only extends to a particular vehicle rather than covering the owner, the person insured, when driving any automobile, including an automobile owned by someone else, if he is a permissive driver of that vehicle. Id. Hebert was a permissive driver of his brother’s vehicle. This provision appears in the basic policy under the heading “Part A. Liability Coverage. [Exclusions.]” Es-sentia was obviously aware that the original policy did not comport with Louisiana’s mandatory requirements. This is no doubt the very reason the Essentia policy also contained an amendment of “Part A” of the policy expressly affecting policies issued to Louisiana residents. The Policy reads: (emphasis added)

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
STATE CONFORMANCE ENDORSEMENT — LOUISIANA
The following amendment changes the policy to conform with Louisiana state laws. Please read your entire policy for full details about your coverages.
I. PART A — LIABILITY COVERAGE
A. Paragraph A. of the Insuring Agreement is replaced by the following:
INSURING AGREEMENT
We will pay damages for “bodily injury” or “property damage” for which any “insured” becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this | incoverage has been exhausted by payment of judgments or settlements.
In addition to our limit of liability we will pay on behalf of an “insured”:
Prejudgment interest awarded against the “insured” on that part of the judgment we pay.

The above quoted policy language clearly provides coverage for this policy covering a Louisiana insured and as it plainly says, replaces paragraph (A) with a provision providing coverage under this policy for a Louisiana resident, such as Hebert, in conformity with Louisiana law. As our courts have repeatedly held:

When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and courts must enforce the contract as written. See, LSA-C.C. art.2046; Hill v. Shelter Mutual Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691, 694; Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1028. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577, 580; Succession of Fannaly v. Lafayette Ins. Co., 01-1355 (La.1/15/02), 805 So.2d 1134, 1138. The rules of contractual interpretation simply do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clarity the parties’ intent. Edwards v. Daugherty, 03-2103 (La.10/1/04), 883 So.2d 932, 941; Succession of Fannaly, 01-1355 at 4, 805 So.2d at 1138; Peterson, 98-1712 at 5, 729 So.2d at 1029.

Calcasieu Par. Sch. Bd. v. Miller, 11-1107, p. 4 (La.App. 3 Cir. 6/6/12), 92 So.3d 1200, 1203 (emphasis added).

By the express terms of the policy, the Louisiana State Conformance Endorsement “[cjhanges the policy,” and, as the caption states, brings all of the policy provisions into conformity with Louisiana’s mandatory motor vehicle insurance laws. This fact is set forth in the endorsement in all capital letters, presumably to emphasize the change in coverage. It is followed by the admonition Into “read it carefully.” The endorsement which effected changes in the policy clearly and unambiguously states “We will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident.” Nothing could be plainer. No one questions the fact that Hebert is the “insured” under the policy and he may become responsible for injury to Walker depending on the outcome of Walker’s suit. The policy clearly provides limits of coverage on the Declarations page which includes $100,000.00 bodily injury and property damage per accident; $1,000.00 medical payments per person per accident; and $30,000.00 uninsured motorists bodily injury per accident.

Essentia attempts to bolster its position by reference to the paucity of the annual fee charged for its policy, and by the reassurance that its classic car policy anticipates, yea, requires, a co-existing regular-use policy covering a more regularly used, non-classic vehicle. We reject Essentia’s contention as to the paucity of the fee charged. It was Essentia’s responsibility, and choice, as to how to determine its rate for the policy it issued which must comply with Louisiana law. We also reject Essen-tia’s assertion that the exception in La. R.S. 32:861(A)(1) for exhibit/parade automobiles bolsters its argument that. the classic automobile policy at issue is not against public policy. That provision provides a very narrow exemption from mandatory liability insurance coverage only for an automobile “used primarily for exhibit or kept primarily for use in parades, exhibits, or shows.” Id. The only evidence of record introduced at the motion for summary judgment concerning Hebert’s use of his classic car as his hobby was his deposition testimony which establishes that his classic car did not qualify for the narrow exemption for cars “primarily used” for exhibition or in parades. There is no exemption from mandatory insurance coverage for a “hobby” car. According to the evidence of record, Hebert drove his classic car on the public roads of this 112state. That is precisely why the policy was changed via the Louisiana Endorsement, and why the policy must be read to provide liability and UM coverage which are mandatory under our state law to protect our citizens.

For the reasons as stated, we affirm the trial court’s ruling except to amend it regarding the limits of coverage. The policy clearly provides limits of coverage on the Declarations page which does not include the sum of $300,000.00 as mistakenly stated by the trial court in its ruling. We hereby amend the trial court judgment to correct this misstatement and decree the limits of liability of this policy are $100,000.00 bodily injury and property damage per accident; $1,000.00 medical payments per person per accident; and $30,000.00 uninsured motorists bodily injury per accident., All costs of these proceedings are assessed against Essentia.

AFFIRMED IN PART, AMENDED IN PART, RENDERED.

AMY, J., dissents on rehearing and assigns reasons.

GREMILLION, J., dissents for the reasons assigned by Judge AMY.

PICKETT, J., concurs and assigns written reasons.

AMY, J.,

dissenting on rehearing.

hAs in the original appeal, I respectfully dissent from the majority on rehearing. See Walker v. Hebert, 13-495 (La.App. 3 Cir. 2/12/14), 2014 WL 576243 (an unpublished opinion). Certainly, the critical inquiry in this case is whether the Essentia policy, entitled a “Classic Automobile Policy,” excluded coverage for Mr. Hebert while driving a vehicle other than the named, “1969 Chevrolet Camaro” which was destroyed prior to the subject accident. Unlike the majority, I find no ambiguity in the exclusions. Further, I find that this classic automobile policy operates within the confines of pertinent legislation.

In listing its exclusions and as thereafter amended by its “Amendment of Policy Provisions — Louisiana!,]” the Essentia policy excludes liability coverage for any insured:

8. Using:
b. Any vehicle, other than “your covered auto”, without the express or implied permission of the owner of such vehicle.

Thereafter, Exclusion Number 10, excludes liability:

10. Arising out of ownership, maintenance, or use of any vehicle other than “your covered auto”.

|2In my view, these exclusions simply address different factual circumstances. Pertinent to this case, Exclusion Number 10, which was not altered by either the Louisiana Conformance Endorsement or a subsequent amendment, excludes liability coverage for an “insured” “[a]rising out of the ownership, maintenance, or use of any vehicle other than ‘your covered auto’.” Exclusion Number 8, however, is invoked by a different factual situation, i.e., one where permissive use is the focus. I do not see that any purported contradiction between the two exclusion implies coverage. See Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191 (wherein the supreme court explained that an insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond that reasonably contemplated by its terms).

Rather, the Classic Automobile Policy clearly envisioned coverage limited to the unique use of a named, antique or classic car. The declaration sheet lists liability coverage limits of $100,000 per accident for bodily injury and property damage, $1,000 per person/per accident for medical payments, and $30,000 per accident for uninsured motorists bodily injury. Yet, the declaration sheet reports a charge of only $33 for bodily injury and property damage, $7 for uninsured motorists bodily injury. The remainder of the $292 total policy premium related to the policy’s coverage for damage to the Camaro.

I further disagree with the plaintiffs assertion, and the lead opinion’s determination, that the classic automobile policy is contrary to pertinent legislation. This policy defines “antique vehicle” and “classic vehicle” as follows:

J. “Antique vehicle” means a motor vehicle 25 years or more of age that:
1. Is maintained primarily for use in car club activities, exhibitions, parades, other functions of public interest or for a private collection and.
2. Is used only infrequently for other purposes.
|SK. “Classic vehicle” means a motor vehicle of unique or rare design and of limited production that is an object of curiosity and:
1. Is maintained primarily for use in car club activities, exhibitions, parades, other functions of public interest or for a private collection; and
2. Is used only infrequently for other purposes.

Importantly, this infrequent, limited use of the antique/classic vehicle described by the policy’s definitions mirrors an exception to the mandatory liability limit of La. R.S. 32:861, which requires that:

A. (1) Every self-propelled motor vehicle registered in this state except ... those used primarily for exhibit or kept primarily for use in parades, exhibits, or shows, ... shall be covered by an automobile liability policy with liability limits as defined by R.S. 32:900(B)(2); or 900(M)....

(Emphasis added.) This legislative accommodation for a policy tailored for exhibit/parade automobiles undercuts the argument made in this case that the Essentia classic automobile policy is against public policy.

Similarly, and although the plaintiffs suggest that application of Exclusion Number 10 would contravene the public policy considerations of La.R.S. 32:900(0, both the classic automobile policy and the statutory framework seemingly accommodate that type of exclusion. Louisiana Revised Statutes 32:900 generally sets forth various requirements for a motor vehicle liability policy, with Paragraph C requiring that:

Such operator’s policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by Mm, within the same territorial limits and subject to the same limits of liability as are set forth above with respect to an owner’s policy of liability insurance.

(Emphasis added.) Importantly, however, La.R.S. 32:900(J) provides that: “The requirements for a motor vehicle liability policy may be fulfilled by the policies of 14one or more insurance carriers which policies together meet such requirements.” (Emphasis added.)

The Essentia policy, in fact, anticipates that multiple, complimentary policies will provide coverage to the insured. Reference to “Part F — General Provisions” of the Essentia policy reveals the requirements) that:

REGULAR USE VEHICLE REQUIREMENT
This policy provides coverage for your “antique vehicle” and/or “classic vehicle” shown in the Declarations. You must own a “regular use vehicle” which must be insured, by a separate insurance policy which must be in effect for the entire time this policy is in effect. In no event will this policy serve as your only auto coverage.
OTHER INSURANCE POLICIES
This policy provides coverage for your “antique vehicle” and/or “classic vehicle” and applies only to the vehicle(s) shown in the Declarations. Any other vehicles you own should be insured by a separate policy. In no event will this policy provide coverage for any vehicles other than those shown in the Declarations, or which are added to this policy by endorsement.

Thus, the policy not only anticipates, but requires a co-existing regular use vehicle automobile policy. I conclude that the regular use vehicle automobile policy and the classic automobile policy could, together, satisfy the omnibus requirement of La. R.S. 32:900(C) as permitted by La.R.S. 32:900(J). As an aside, I note that the plaintiffs’ petitions in this matter allege that Mr. Hebert was insured by both Farm Bureau and State Farm automobile liability insurance policies.

Finally, the plaintiffs contend that La. R.S. 32:861(A)(l)’s exception for vehicles used primarily for use in parades, exhibits, or shows is inapplicable in this case as Mr. Hebert testified in his deposition that he used the 1969 Camaro for periodic drives, had used the car only once for a parade, and did not attend exhibits or shows. Similarly, the lead opinion suggests that Mr. Hebert used the Camaro as a hobby car instead. However, that point is irrelevant in my opinion and is | r,distracting from the true issue now involved. Simply, Essentia did not seek to avoid coverage due to an alleged lack of compliance with the terms of the classic automobile policy by Mr. Hebert and, in fact, the Camaro, hobby or not, had been destroyed before the subject accident. Rather, Essentia filed its motion for summary judgment on the basis that its classic automobile policy did not provide coverage due to the limited nature of the policy and by operation of Exclusion" Number 10. Certainly, it cannot be argued that the Essentia policy would somehow provide coverage for conduct outside of its terms, conditions, and exclusions.

For these reasons, I respectfully dissent. On rehearing, I reiterate that I would vacate the summary judgment entered in favor of the plaintiffs, deny that motion, and enter summary judgment in favor of Essentia.

PICKETT, J.,

concurring.

hi respectfully concur in the result. I agree that the liability limits mentioned in the judgment below must be corrected. I join the plurality in affirming the judgment of the trial court on the coverage issue. I do not, however, find it necessary to address the public policy arguments raised in the plurality opinion. Once we recognize the ambiguity created by the exclusions, we need go no further in the analysis.

In the original exclusion section of the policy, Exclusion 10 excludes liability coverage “[a]rising out of the ownership, maintenance, or use of any vehicle other that ‘your covered auto.’ ” Nothing in the State Conformance Endorsement would provide coverage for this accident, as it leaves intact Exclusion 10. It deletes the language “involving ‘your covered auto’ ” from Paragraph A (the liability coverage section) and changes Exclusions 5, 6, and 8. The Amendment of Policy Provision Endorsement, however, does create an ambiguity. The amendment changes paragraph 8 to read:

We do not provide liability coverage for any insured:

8. Using:
a. ‘Tour covered auto” without your express or implied permission; or
|2b. Any vehicle, other than “your covered auto”, without the express or implied permission of "the owner of such vehicle.

This paragraph creates a condition whereby there is coverage for use of a vehicle that is not “your covered auto” if there is permission to use the vehicle. It clearly conflicts with Paragraph 10. This amendment must be given effect. There is no argument that Mr. Hebert did not have permission to drive his brother’s vehicle. So, Exclusion 8(b) affords coverage while Exclusion 10 denies coverage. This is a classic ambiguity that must be resolved in favor of coverage.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Keith William MACKMER v. The ESTATE of Frank ANGELLE, Jr., National Union Fire Insurance Company, and Lexington Insurance Company.
    No. 14-665.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      David H. Hanchey, The Hanchey Law Firm, Todd A. Townsley, Jordan Z. Taylor, The Townsley Law Firm, Lake Charles, LA for PlaintiffAppellant, Keith William Mackmer.
    Christopher P. Ieyoub, Plauché, Smith & Nieset, L.L.C., Lake Charles, LA, for Defendants/Appellees, National Union Fire Insurance Company and Lexington Insurance Company.
    Sidney Wallis Degan, III, Emily R. Adler, Degan, Blanchard & Nash, New Orleans, LA, for Intervenor/Appellee, New Hampshire Insurance Company.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Bln this suit for personal injuries, Plaintiff, Keith William Mackmer, appeals the trial court’s grant of summary judgment in favor of Defendants, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, and Lexington Insurance Company. Mr. Mackmer also avers that the trial court erroneously denied his motion for partial summary judgment on the issue of liability. For the following reasons, we find that the trial court erred in granting Defendants’ motion for summary judgment as there remain genuine issues of material fact. For the same reasons, we affirm the trial court’s denial of Plaintiffs motion for partial summary judgment. Accordingly, we reverse in part, affirm in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 9, 2010, Mr. Mackmer was a guest passenger in a vehicle owned by Monda Coil Tubing Well Service, LLC (Monda) and driven by Frank Angelle, Jr., when the vehicle was involved in an accident with an oncoming vehicle on Highway 27, between Sulphur and DeQuincy, Louisiana. Dustin Bass and Timothy Bass were also occupants in the vehicle when the accident occurred, and the men were all employed by Monda.

Mr. Angelle died as a result of the injuries he sustained in the accident, and Mr. Mackmer sustained serious personal injury. Mr. Mackmer instituted this ^personal injury action, naming as Defendants the estate of Mr. Angelle and the liability insurers of the Monda vehicle Mr. Angelle was operating at the time of the accident, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, and Lexington Insurance Company (collectively Lexington).

In its Answer, Lexington denied liability and affirmatively alleged its entitlement to tort immunity pursuant to La.R.S. 23:1032. On September 11, 2013, Mr. Mackmer filed a motion for partial summary judgment on the issue of liability. Therein, Mr. Mack-mer asserted that the undisputed facts established that Mr. Angelle was not in the course and scope of his employment with Monda when the accident happened; accordingly, Lexington could not prevail on its affirmative defense of tort immunity. Lexington filed a cross-motion for summary judgment, likewise on the issue of course and scope and its immunity from the claims asserted by Mr. Mackmer. Thereafter, Mr. Mackmer filed a motion to strike: (1) portions of Lexington’s asserted undisputed facts; (2) what he contended were new defenses raised by Lexington in its brief to the trial court; and (3) the affidavit of Leon CHarles Monda, Jr. submitted by Lexington in support of its motion.

Following a hearing, the trial court denied Mr. Mackmer’s motion to strike rela-five to the undisputed facts set forth by Lexington. Mr. Mackmer’s motion to strike the affidavit of Mr. Leon Monda was denied in part and granted in part, resulting in the word “directly” being striken by the trial court. Substantively, on the cross motions for summary judgment, the trial court denied Mr. Mack-mer’s motion and granted Lexington’s motion, finding that Mr. Angelle was in the course and scope of his employment with Monda when the accident happened and that | .^Lexington could not be held liable to Mr. Mackmer due to the tort immunity provided to co-employees. A concomitant judgment was signed by the trial court on February 21, 2014. From said judgment, Mr. Mackmer appeals.

ASSIGNMENTS OF ERROR

Mr. Mackmer presents the following assignments of error for our review:

1. Did the trial court err by admitting an affidavit into evidence that the affiant admitted in his deposition was not based on personal knowledge and was clearly contradicted by the affiant’s deposition testimony?
2. Did the trial court err by taking judicial notice of the destination to which [Mr.] Angelle was headed at the time of the wreck and the purpose of the trip?
3. Did the trial court err in denying [Mr.] Mackmer’s motion for summary judgment as to [Lexington’s] affirmative defense of worker’s [sic] compensation tort immunity, thus barring [Mr.] Mackmer’s claim, even though there was: no admissible evidence concerning whether driver [Mr.] Angelle and his occupants were on their way to work when the wreck occurred; no evidence demonstrating the purpose of the trip; no valid evidence concerning why An-gelle was driving; clear testimony that [Mr.] Angelle’s “travel pay” was not connected to travel; [Mr.] An-gelle was not paid per diem for the date of the accident; [Mr.] Angelle’s employment contract did not provide or guarantee him transportation^] and [Mr.] Angelle was not required to drive under the terms of his employment?
4. Alternatively, did the trial court err by granting [Lexington’s] cross-[m]otion for [s]ummary [jJudgment in light of the undisputed facts listed in Issue no. 3?
5. Did the trial court err in admitting evidence submitted by [Lexington] and allowing [Lexington] to proceed over [Mr.] Mackmer’s timely objections and motion to strike concerning these issues when [Lexington’s] [m]otion and evidence -violated the procedural requirements of Louisiana District Court Rules 9.9 and 9.10 and Louisiana Code of Civil Procedure Article 966 as well as the mandatory time limits under these provisions for filing summary judgment evidence?
6. Did the trial court err by continuing the hearing for the parties’ cross-motions for summary judgment thereby allowing [Lexington] the opportunity to file a corrected consolidated memorandum and to supplement [its] exhibits in an attempt to remedy (albeit unsuccessfully) [its] violations of Louisiana District |4Court Rules 9.9 and 9.10 and Louisiana Code of Civil Procedure Article 966?

LAW AND DISCUSSION

In his appeal, Mr. Mackmer has assigned both procedural and substantive errors of the trial court. For the reasons that follow, we find merit to his contention that the trial court erred in granting Lexington’s motion for summary judgment on liability. Accordingly, we pretermit addressing the procedural errors raised by Mr. Mackmer as unnecessary in reaching our conclusion herein.

This court recently discussed in detail an appellate court’s review of a trial court’s grant of summary judgment stating as follows:

In the case of Jagneaux v. Frohn, 11-461, pp. 2-3 (La.App. 3 Cir. 10/5/11), 74 So.3d 309, 310-11, this court discussed the standard of review and the law applicable to motions for summary judgment as follows:
Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06)], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07)], 951 So.2d 1058[]; King v. Parish Na tional Bank, [04-387 (La.10/19/04)], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04)], 870 So.2d 1002[.]
Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

Chastant v. Chastant, 13-1402, pp. 5-6 (La.App. 3 Cir. 4/23/14), 138 So.3d 801, 805, writ denied, 14-1508 (La.10/24/14), 151 So.3d 605. Additionally, in Chastant, this court noted the following instruction of our supreme court:

A “genuine issue” is a “triable issue.” Toups v. Hawkins, 518 So.2d 1077, 1079 (La.App. 5th Cir.1987) (citing Brown [v. B & G Crane Service, Inc., 172 So.2d 708, 710 (La.App. 4 Cir.1965)]). More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1983). In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3d Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988); Pace v. Zilka, 484 So.2d 771 (La.App. 1st Cir.), writ denied, 488 So.2d 691 (La.1986); Mecom v. Mobil Oil Corp., 299 So.2d 380, 386 (La.App. 3d Cir.), writ denied, 302 So.2d 308 (La.1974). “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.” Brown, 172 So.2d at 710; Sally Beauty Co. v. Barney, 442 So.2d 820, 822 (La.App. 4th Cir.1983).
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied, 596 So.2d 211 (La.1992). Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345, 352 (La.1993); Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152, 1153-54 (La.1983) (collecting cases); McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308, 310 (La.App. 2d Cir.), writ denied, 457 So.2d 1194 (La.1984) (noting that “[sjummary judgment may not be used as a substitute for trial”).

Id. at 805-06 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751).

Pursuant to La.R.S. 23:1032, an employee’s exclusive remedy against his employer or a co-employee for injuries sustained in the course and scope of his employment are limited to that provided in the Louisiana Workers’ Compensation Act. The jurisprudence is replete with decisions on the issue of course and scope, and it is well established that the general rule is that an employee who is traveling to or from his work is not considered to be within the course and scope of his employment. See McLin v. Indus. Specialty Contractors, Inc., 02-1539 (La.7/2/03), 851 So.2d 1135. This rule, which has come to be known as the “going-and-coming rule,” is subject to several jurisprudentially established exceptions.

|7Mr. Mackmer asserts that the application of the going-and-coming rule in this case “defeats essential elements of [Lexington’s] affirmative defense of immunity, as it dictates [Mr. Angelle] was not in the course and scope of his employment at the time of the wreck.” On the contrary, Lexington maintains that “the facts of this case fall squarely within the exceptions.”

Following a hearing, the trial court concluded that there was “ample evidence that [Mr. Angelle and Mr. Mackmer] were on their way to work.” In its reasoning, the trial court took “judicial notice [there is] evidence that the work site was in DeQuincy[,] and there was also evidence they were staying, while working in De-Quincy, ... in Sulphur.” Further, the trial court stated that “DeQuincy is north of Sulphur where the accident happened while northbound on [Highway] 27 from Sulphur in the direction to DeQuincy.” However, based upon our de novo | ^review of the evidence, although the trial court’s conclusion that “they were on their way to work” may have been logical, it was not established by the evidence.

The facts that were established by the evidence are that the four men who were riding in the vehicle on the morning of the accident, Mr. Mackmer, Mr. Angelle, and Timothy and Dustin Bass, were all employed by Monda. Mr. Mackmer was the supervisor of the Monda crew, which was working on a job called the “Aminex job” in DeQuincy, Louisiana. Because of the duration of the job, the crew was provided rooms by Monda at a hotel in Sulphur, Louisiana, where they returned after each work day. These facts are undisputed.

Also undisputed is that on the day of the accident, the four men left the hotel in Sulphur, in a vehicle owned by Monda, and provided to Mr. Mackmer for his use. When the men left the hotel, Mr. Angelle was driving the vehicle, but the evidence fails to establish why he was the driver. Mr. Angelle traveled northbound on Highway 27, and the accident happened on this route, between Sulphur and DeQuincy.

In brief, Mr. Mackmer argues that “[t]he missing evidence of where the crew members were headed at the time of the accident is critical, as [Moncla’s] crew members stated they often stopped to eat or to perform personal errands with the truck and were not compensated for that time.” He argues that there is nothing “in evidence establishing the purpose and destination of the trip[,]” and that there was no evidence “that the men were on their way to work at the time of the wreck.”

The only persons who could potentially confirm where the crew was headed when the accident occurred were the four occupants of the vehicle. Mr. Angelle died on the day of the collision. Mr. Mackmer sustained severe injuries and testified that he has no memory of the day the wreck occurred. Lastly, Dustin and Timothy Bass supplied affidavits; however, their affidavits do not confirm, deny, |3or establish where they were going or what they were doing when the accident happened. According to their affidavits, the “crew on many occasions would stop on the way to the job site to eat breakfast, to shop for personal items, or to run other personal errands.” Both affiants aver that on the day of the accident “[a]fter the crew left the hotel, they eventually proceeded to Highway 27 and headed northbound when the accident at issue occurred.” Consequently, we agree with Mr. Mackmer that this is a “threshold fact” that is not established by either party. This is a disputed question of material fact.

Finally, in brief, both parties discussed at length whether Monda paid Mr. An-gelle’s travel expenses and a per diem allowance. Such evidence is discussed for the purpose of establishing whether the facts trigger a jurisprudential exception to the going-and-coming rule. Mr. Mackmer argues that the payroll records indicate that on the day of the wreck, Mr. Angelle was paid “travel time.” However, according to the deposition of Cain Monda, he personally wrote that notation in the payroll records after Mr. Angelle’s death for the purpose of financially assisting the An-gelle family. Mr. Mackmer argues that this payment “was a gift to provide financial assistance to [Mr.] Angelle’s family in light of [his] death[,]” and, therefore, Moncla’s payment of Mr. Angelle’s “ ‘travel pay’ was not connected to travel.” On the other hand, Lexington contends that Mr. Angelle was “driving a company vehicle and being paid for his travel time.” This is a disputed question of material fact.

Mr. Mackmer also argues that according to the testimony of Leon Monda, Moncla’s payment of a per diem amount to Mr. Angelle was not based upon the location or distance of the job. Rather, Leon Monda stated that Monda paid a per diem amount for certain work requiring “a job ticket.” He explained that a “ticketed” job was one in which a Monda employee performed work for an |inoperator of another company, wherein the operator would provide a work-order ticket. He further stated that the job in DeQuincy was not a “ticketed” job. Lexington counters, stating that on the day of the accident, transportation for the crew was provided by Monda, the crew was “being paid travel that started the moment they left their hotel, and [that they] were entitled to a per diem.” This is a disputed question of material fact.

Based upon the evidence, Mr. Mackmer contends that he has established that the going-and-coming rule applies in this case and that Lexington has failed to establish the applicability of an exception to the rule. For the reasons set forth above, we find that there are genuine issues of material fact relative to the purpose of travel and destination of the crew when the accident happened. Additionally, we find that genuine issues of material fact remain as to whether Monda was compensating Mr. Angelle by paying his travel expenses and a per diem. Therefore, given the factual disputes that remain, it has neither been established that the going-and-coming rule applies in this case, nor has it been established that an exception to the rule applies in this case.

Considering the record before us in the instant matter, we find that there remain disputed issues of material fact that are germane to the issue of whether or not Mr. Angelle was in the course and scope of his employment with Monda when the accident occurred. Since these facts are critical to Lexington’s affirmative defense of tort immunity and Mr. Mackmer’s entitlement, vel non, to recovery, they are “material” facts which preclude the grant of summary judgment. For the same reasons, Mr. Mackmer is likewise not entitled to summary judgment in his favor on the issue of liability.

| ^DECREE

For the foregoing reasons, we reverse the trial court’s grant of summary judgment in favor of Defendants, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, and Lexington Insurance Company; we affirm the trial court’s denial of Keith William Mackmer’s motion for partial summary judgment; and, we remand the matter to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed equally between the parties.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

      . This Defendant is erroneously named in Mr. Mackmer’s petition as National Union Fire Insurance Company.

      . Generally, pursuant to La.Code Civ.P. art. 968, the denial of a motion for summary judgment is an interlocutory judgment from which an appeal may not be taken. However, when there is also an appeal from a final judgment, such as a trial court's grant of summary judgment, an appellate court may also review the interlocutory ruling. See In re Succession of Carlton, 11-288 (La.App. 3 Cir. 10/5/11), 77 So.3d 989, writ denied, 11-2840 (La.3/2/12), 84 So.3d 532.

      . The daims against the estate of Mr. Angelle were dismissed pursuant to a Consent Judgment signed February 20, 2014.

      . This portion of Mr. Mackmer's motion to strike was later voluntarily dismissed.

      . Louisiana Revised Statutes 23:1032 provides as follows:
      A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whedrer now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.

      C. The immunity from civil liability provided by this Section shall not extend to:
      (1)Any officer, director, stockholder, partner, or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment^]

      . The supreme court in McLin, at 1140, n. 1, listed the jurisprudentially created exceptions to the going-and-coming rule as follows:
      (1) If the accident happened on the employer's premises;
      (2) If the employee was deemed to be on a specific mission for the employer, such as making a trip in the interest of his employer's business or pursuant to his employer's order;
      (3) If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;
      (4) If the employee was doing work for his employer under the circumstances where the employer’s consent could be fairly implied;
      (5) If the employee was hurt while traveling to and from one work site to another;
      (6) If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee (the "threshold doctrine"); and
      (7) If the operation of a motor vehicle was the performance of one of the duties of the employment of the employee.

        See Yates v. Naylor Indus. Services, 569 So.2d 616 (La.App. 2 Cir.1990), writ denied, 572 So.2d 92 (La.1991) (citing Michaleski v. Western Preferred Casualty Company, 472 So.2d 18, 20 (La. 1985)); Hughes v. Gearhart Industries, Inc., 552 So.2d 717, 719 (La.App. 1 Cir.1989), writ denied, 556 So.2d 1280 (La.1990); Justice v. Sylvester, 499 So.2d 590, 592-93 (La.App. 5 Cir.1986), writ denied, 503 So.2d 491 (La.1987); Smith v. A.I.U. Insurance Company, 457 So.2d 868, 869 (La.App. 3 Cir.1984).


author: AMY, Judge.

text:
    STATE of Louisiana v. Daniel Brandon PRINCE.
    No. 14-740.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Michael Harson, District Attorney, Roger P. Hamilton, Jr., Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Daniel Brandon Prince.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

|,The State charged the defendant with introducing contraband into a penal institution after the defendant opened a package addressed to him that contained marijuana, among other prohibited items. After an initial mistrial due to a deadlocked jury, a second jury convicted the defendant of attempted introduction of contraband into a penal institution. The trial court thereafter denied the defendant’s motion for new trial and imposed a five-year, hard labor sentence. Following habitual offender proceedings, that sentence was subsequently vacated and a twenty-five-year sentence imposed. The defendant appeals. For the following reasons, we reverse the defendant’s conviction, enter a judgment of acquittal, reverse the habitual offender adjudication, and vacate and set aside the corresponding sentence.

Factual and Procedural Background

The State alleged that the defendant, Daniel B. Prince, was a detainee at the Acadia Parish Jail when officials received information that he would be receiving a package containing contraband. When the package arrived, with an envelope addressed to the defendant attached to it, a canine alerted to the package. Thereafter, the defendant was called into a room to open the package in front of officials. According to the State, the package was found to contain various items, including a substance identified as marijuana.

The State thereafter filed a bill of information charging the defendant with four counts of unlawful introduction of contraband into a penal institution, violations of La.R.S. 14:402. The charges related to contraband alleged to be marijuana, rolling paper, sexual pictures, and tobacco. However, the trial court subsequently granted a motion to quash, dismissing the latter three charges.

| gin July 2012, the remaining charge of unlawful introduction of contraband into a penal institution, marijuana, proceeded to trial before a jury. However, the trial resulted in a mistrial after the first jury became deadlocked. In a subsequent trial, the jury convicted the defendant of the responsive verdict of attempted possession of contraband in a parish prison.

In a motion for new trial, the defendant chiefly argued that the State made improper reference to the existence of a confidential informant during the trial in contravention of a pre-trial ruling. The trial court denied the motion and imposed a five-year sentence to be served at hard labor and consecutive to any other sentence being served. Later, and acting upon a bill of information filed by the State, the trial court adjudicated the defendant an habitual offender, vacated the five-year sentence and sentenced the defendant to twenty-five years at hard labor.

The defendant appeals, questioning: the sufficiency of the evidence; the denial of a motion to strike other crimes evidence; the denial of motions regarding the identity of the confidential informant; the alleged failure to ensure the recording/preservation of sidebar conferences; certain statements made by the prosecutor during closing argument and; whether trial counsel was ineffective by failing to object to those allegedly improper statements.

Discussion

Errors Patent

While we have reviewed this matter for errors patent on the face of the record, as is required by La. Code Crim.P. art. 920, the results of that review have been rendered moot by our conclusion on the merits, below.

|sSufficiency of the Evidence

The defendant first questions the sufficiency of the evidence presented and argues that the evidence did not support a finding that he had knowledge of the contents of the package received at the Acadia Parish jail. He asserts in his brief to this court that “[a]ll that was proven was that the package contained marijuana, it was addressed to Daniel Prince and that, at the direction of law enforcement, he opened the package in their presence.” He disputes that he could have been convicted under those facts, noting that the identity of the sender was unknown. We find merit in that argument.

In review of whether the evidence presented was sufficient to support a conviction, “an appellate court ‘must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.’” State v. Bryant, 12-233, p. 5 (La.10/16/12), 101 So.3d 429, 432 (quoting State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921). As it is the fact finder’s role to weight the credibility of witnesses, an appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

In this case, a jury convicted the defendant of attempted possession of contraband in a penal institution, in this case, a parish prison. In this regard, La.R.S. 14:402 provides:

E. It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or send or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish |4prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit:
(5) Any narcotic or hypnotic or exci-tive drug or any drugs of whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in R.S. 40:961 et seq. The introduction by a person of any controlled dangerous substance as defined in R.S. 40:961 et seq., upon the grounds of any municipal or parish prison or jail shall constitute distribution of that controlled dangerous substance and shall be subject to the penalties provided in R.S. 40:961 et seq.

See also La.R.S. 14:27 providing that “[a]ny person who, having a ¡specific intent to commit a crime; does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended[.]”

It is undisputed in this case that marijuana is a controlled dangerous substance for purposes of La.R.S. 14:402(E)(5). Rather, the defendant poses the inquiry of whether the State was required to demonstrate that he intended to possess that contraband insofar as the jury found him guilty of “attempted possession.” Given the jury’s finding, and the dictates of La.R.S. 14:27, we find that the State was required to prove intent and, in fact, the trial court in this case instructed the jury as to specific intent. In this case, however, we find that the State failed in its showing.

In its presentation of evidence, the State introduced the testimony of Deputy Dwayne Hollier, who explained that he was the supervisor of the Acadia parish jail at the time of the alleged offense. Deputy Hollier testified that he was informed in October 2011 that a package would be arriving at the parish jail, addressed to the defendant and purportedly contained in an “attorney envelope.” He stated that, |safter the package arrived, he contacted a police officer for assistance with a canine search and that the “dog alerted on the package.” Deputy Hollier explained to the jury that the envelope was addressed to “Mr. Daniel Prince,” and was addressed from an attorney. According to Deputy Hollier, facility policy required that mail identified as “legal mail” had to be opened in front of the officers. When asked to explain the opening of the package, Deputy Hollier stated:

Well, when we found the — when the dog alerted we notified Lieutenant Tra-han. Then we called inmate Prince to the medic office, and we told him to open the package in front of us.
The letter was sealed, and he opened the package in front of us. And once he seen the contents that was in the envelope, he said that it wasn’t for him. He didn’t know how he got it.

Upon cross-examination, Deputy Hollier testified that although the envelope was addressed from a Crowley attorney, the package contained a Baton Rouge post mark. In addition to Deputy Hollier’s recounting of the defendant’s statement that he “didn’t know how he got it” after opening the package, Deputy Hollier stated that he, personally, did not know who sent the package and was aware of no eyewitnesses who would “tie” the defendant to the package. Similarly, Lieutenant Kevin Trahan, who was also present when the package was opened, stated that, although it appeared that someone outside of the jail sent the package, he did not know the identity of that person.

On review, we find this recounting of events, even construed in a light most favorable to the prosecution pursuant to the Jackson standard does not support a | (¡finding of an “attempt” to possess the contraband. Namely, there is no indicia of intent to possess or guilty knowledge of the incoming package. Rather, there was evidence only of receipt, and then only in a contrived environment. However, the jury refused to convict the defendant of possession, favoring the lesser, responsive verdict of attempted possession of contraband in a parish prison. Yet, the State presented no evidence connecting the defendant to any person mailing the package and the State put on no evidence suggesting that any attorney was involved in sending the package.

Further, we find no merit in the State’s contention that the jury was able to establish intent to possess contraband due to evidence regarding the defendant’s 2003 conviction for a similar offense. In this regard, the State presented documentary evidence regarding the defendant’s 2003 conviction for “possession or introduction of contraband into a penal institution.” However, evidence in this regard was vague at best. Notably, after observing in a side bar conference that the parameters of the conviction could not be determined without examination of the record, the trial court instructed the jury that it was unclear whether the defendant was convicted for introducing contraband or possessing contraband in a penal institution. He advised, however, that the conviction generally arose under the same statute. Again, we find that this evidence, alone, is insufficient to establish intent in the instant case. Simply, there was no evidence connecting the defendant to the origination of this suspect package.

Accordingly, after viewing the evidence in light of the Jackson standard, we find that no rational trier of fact could have found the essential elements of the offense of attempted possession of contraband in a parish prison proven beyond a reasonable doubt. Under these circumstances, we find it necessary to reverse the |7defendant’s conviction for that offense as well as the related adjudication as a multiple offender. We further vacate and set aside the sentence imposed. This determination pretermits consideration of the defendant’s remaining assignments of error.

DECREE

For the foregoing reasons, the conviction of the defendant, Daniel B. Prince, under La.R.S. 14:402 for attempted possession of contraband in a penal institution is reversed. A judgment of acquittal is entered. Additionally, the attendant adjudication as a multiple offender under La. R.S. 15:529.1 is reversed. The related sentence is vacated and set aside.

CONVICTION REVERSED. JUDGMENT OF ACQUITTAL ENTERED. MULTIPLE OFFENDER STATUS REVERSED AND SENTENCE VACATED AND SET ASIDE.

      . With regard to the contents, Deputy Hollier explained that the package "contains pictures — nude pictures. This one is rolling papers along with cigarettes. This one is marijuana. And these are just closed envelopes. And the rest is just writing paper."

      . Additionally, cross-examination further explored whether fellow inmates would have had access to previously received mail and whether inmates were aware of the procedure whereby legal mail required the opening of the package in front of officials.


author: THIBODEAUX, Chief Judge.

text:
    Larry TOLLIVER, v. Bob BROUSSARD, et al.
    No. 14-738.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    Rehearing Denied Dec. 30, 2014.

      Gracella Gail Simmons, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Appellee-Continental Casualty Company.
    James Huey Gibson, Allen & Gooch, Lafayette, LA, for Defendants/Appellees-Bob Broussard and Bob Broussard, APLC.
    D. Patrick Daniel, Jr., The Daniel Law Firm, Lafayette, LA, for Intervenors/Ap-pellants-Patrick Daniel and D. Patrick Daniel, LLC.
    Jennifer A. Rodriguez, Harvey, LA, for Plaintiff/Appellanl^Larry Tolliver.
    Larry Tolliver, In Proper Person, Lake Charles, LA, for Plaintiff/Appellant.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| Nlie intervenors, Patrick Daniel and D. Patrick Daniel, LLC (Daniel), appeal the trial court’s granting of the Motion for Summary Judgment filed by the defendants, Bob Broussard, Bob Broussard APLC, and Continental Casualty Company (collectively, “Broussard”), in this action for legal malpractice and tortious interference with contract. Finding no error on the part of the trial court, we affirm.

I.

ISSUE

We must decide whether the trial court erred in granting summary judgment to Broussard and in dismissing all claims.

II.

FACTS AND PROCEDURAL HISTORY

Underlying U-Haul Suit in Federal Court

Daniel and Broussard are attorneys who at different times represented Larry Tol-liver in Tolliver’s personal injury suit against U-Haul Company of Texas. The accident, involving the negligent installation of a towing kit, occurred in 2008. Daniel was the attorney who filed Tolliver’s U-Haul suit in federal court in 2009. In 2010 Tolliver fired Daniel. Broussard enrolled as counsel of record in the U-Haul suit in September, 2010. In January, 2011, Daniel filed a petition for intervention, naming Tolliver and U-Haul as defendants, to recover his expenses and fees from any settlement or judgment proceeds obtained by Tolliver in the suit. pTolliver answered the intervention and reconvened against Daniel, asserting damages for Daniel’s failure to communicate, for Daniels’ dismissal of Tolliver’s cause of action for past lost wages without his consent, and for financing medical and living expenses with third parties at an onerous rate of interest without Tolliver’s informed consent.

In August, 2011, during Broussard’s representation of the U-Haul matter, the lawsuit settled for $75,000.00. The settlement was finalized in October, 2011. The amount was insufficient to cover Brous-sard’s litigation expenses and was a fraction of the third party financing that Daniel had arranged during his representation of the matter. In November, 2011, Daniel amended’his intervention to add Broussard as a defendant and to assert claims against him for legal malpractice and interference with contract.

Daniel’s 2012 State Court Suit Against Broussard

Daniel filed suit against Broussard and his malpractice insurer in state court in Lafayette in February, 2012. Daniel’s initial and supplemental petitions asserted that, in the federal U-Haul suit, Broussard had negligently represented Tolliver, had failed to retain experts timely, obtained an inadequate settlement, and interfered with Daniel’s contract with Tolliver. Broussard filed special motions to strike Daniel’s claims under La.Code Civ.P. art. 971. The trial judge found Article 971 inapplicable, but indicated that he would consider Broussard’s arguments if brought by a motion for summary judgment.

Broussard filed a writ application with this court, and the trial court stayed discovery pending our ruling. In January 2013, in Patrick Daniel v. Bob Broussard, et al, Writ No. 12-974, a five-judge panel of this court granted Brous-sard’s writ application in part, finding that Daniel had no right of action against Broussard for negligent representation, which was essentially a malpractice claim that only Tolliver could raise.

Five months after this court’s ruling that Daniel did not have a right of action against Broussard for malpractice, Daniel, as Tolliver’s attorney again, filed a third superseding petition in Daniel’s own suit, attempting to join Tolliver as an additional malpractice plaintiff. Because Daniel still-had a pending claim in federal court against Tolliver for litigation expenses in the Ü-Haul suit, the trial court found that Daniel had a conflict of interest, disqualified Daniel as Tolliver’s attorney, and found the joinder of Tolliver improper. The trial court struck the third superseding petition that attempted to add Tolliver as a plaintiff and instructed Tolliver to file a separate suit.

Tolliver’s 2013 State Court Suit against Broussard

On December 6, 2013, Tolliver, as a pro se plaintiff, filed a petition for damages against Broussard and his malpractice insurer in Lafayette Parish. The suit was improperly captioned “Patrick Daniel v. Bob Broussard, Esquire, et al; ” and it was filed with Daniel’s suit number, 2012-0981E, typed in the caption. The suit was assigned to Division B. The docket number was hand-corrected to read 2013-6250B, though it is not clear from the record whether or when the caption was corrected. This suit is the subject of the current appeal.

After service of the Tolliver petition, Broussard filed exceptions of peremption and res judicata, a motion for summary judgment, and a motion for Article 863 sanctions. The hearing on Broussard’s motions was set for March 10, L2014. On February 27, Jennifer Rodriguez filed a motion to enroll as Tolliver’s attorney and to continue the hearing. Broussard objected to the continuance. The trial judge ordered counsel and Tolliver to appear for a March 10 conference, at which time the judge granted the requested continuance to April 14, 2014, but made it clear, addressing Tolliver directly, that ho more continuances would be granted for another enrolling attorney.

On April 7, Rodriguez fax-filed on Tolliver’s behalf a twenty-eight-page “consolidated” pleading entitled, “Opposition To Defendant’s Exceptions Of Peremption And Res Judicata, Motion For Sanctions, Motion For Summary Judgment And Motion For 967 Continuance, Compel, Sanctions And Disqualify Counsel.” It was accompanied by a Motion For Leave and Order. The exhibits ostensibly attached to the opposition were not received by the trial court until April 16, 2014, which was two days after the hearing on April 14, 2014.

Broussard did not receive all of the exhibits until April 8. He objected to the opposition as untimely because it was not filed at least eight days before the hearing as required by the Louisiana Code of Civil Procedure, the Rules for Louisiana District Courts, and the interpreting jurisprudence. He asserted that the opposition documents should not be considered at the hearing on the motion for summary judgment.

On April 8, 2014, Daniel filed a petition for intervention in Tolliver’s suit and adopted Tolliver’s opposition to Brous-sard’s motion for summary judgment. At the hearing on April 14, 2014, the trial judge briefly reviewed the | 5procedural status of the case and announced the exceptions and motions filed by the defendant and scheduled to be heard that day. He then stated:

All of those were filed by the defendant. And the plaintiff did not file a memorandum in opposition on a timely basis. Thus, plaintiff forfeits the right for oral arguments.
Plaintiff did file something that was requesting permission to file the opposition as well as a motion for sanctions and to disqualify defense counsel, but there was no explanation of what the good cause would be for that late filing. So again, I am denying that permission to file that. So that’s where we are now.

After Tolliver’s attorney, Ms. Rodriguez, received clarification on the court’s ruling, Broussard’s attorney introduced exhibits and argued the motion for summary judgment, which the trial court granted. Ms. Rodriguez did not proffer the opposition or the exhibits that the trial court had stricken from the hearing. Daniel spoke as intervenor, attempting to argue assertions from the opposition, including charges against Broussard’s attorney, James Gibson. Mr. Gibson responded briefly, and the trial court announced that summary judgment was granted “regarding all claims filed.”

Ms. Rodriguez filed a motion to withdraw her representation of Tolliver in open court at the end of the hearing. Tolliver did not appeal. Daniel alone, as interve-nor, appeals the trial court’s judgment granting Broussard’s motion for summary judgment on peremption and res judicata.

III.

STANDARD OF REVIEW

When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same | ficriteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Gray v. American Nat. Property & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). The motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The de novo review of questions of law means that the judgment is rendered on the record without deference to the legal conclusions of the trial court. See Wooley v. Lucksinger, 09-571 (La.4/1/11), 61 So.3d 507.

IV.

LAW AND DISCUSSION

In addition to reiterating Daniel’s malpractice claims, Tolliver’s suit alleged that Broussard solicited Tolliver’s business, resulting in Tolliver’s firing Daniel; and that Broussard interfered with Daniel’s contract with Tolliver. Brous-sard’s motion for summary judgment asserted that Tolliver’s malpractice claim against Broussard was perempted under La.R.S. 9:5605 because it was not filed within one year of discovery of the alleged malpractice. Broussard further asserted that Tolliver’s malpractice claim was barred by res judicata because the parties had compromised and settled the malpractice claim, and because a 17compromise has the efficacy of a judgment on the issues. These assertions were well-supported by jurisprudence, and by records and rulings from the U-Haul suit, and affidavits and agreements of the parties, all of which were attached to the summary judgment motion and properly introduced at the hearing in the Lafayette Parish court. Last, Broussard’s motion for summary judgment refuted Tolliver’s claims that Broussard had solicited Tolliver’s business and interfered with Tolliver’s attorney-client relationship with Daniel. Broussard introduced a third affidavit by Tolliver directly negating the claims of solicitation and interference that he alleged in his petition.

However, we need not discuss or rule upon the parties’ burdens of proof as to these issues because these issues are not before us. Tolliver did not appeal the trial court’s judgment finding that the malpractice claims were preempted and barred by res judicata, and we have already found that Daniel, the intervenor, does not have a right to bring a malpractice action against Broussard. See Patrick Daniel v. Bob Broussard, et al, Writ No. 12-974. Because Tolliver | ¡Jailed to appeal the dismissal of his own action, Daniel’s appeal can only bring up the portions of the judgment that were adverse to Daniel. He cannot appeal the portions of the judgment that were only adverse to Tolliver. See Grimes v. Louisiana Medical Mut. Ins. Co., 10-39 (La.5/28/10), 36 So.3d 215. If Daniel never had a right of action for malpractice, the judgment dismissing the malpractice claim cannot be adverse to him. Additionally, an intervenor is limited to the assertion of his own rights and cannot raise issues that are personal to another party. See Devant v. Pecou, 13 La.App. 594, 128 So. 700 (LaApp. 1 Cir. 1930), and Galloway v. Levitt, 135 So.2d 798 (La-App. 2 Cir.1961). Thus, the dismissal of the malpi’actiee claim is final.

The Opposition to the Motion for Summary Judgment

As indicated in the factual section above, the trial court found that the opposition filed by Tolliver’s attorney, and adopted by Daniel as intervenor, was untimely. The trial court then declined to hear oral argument on the opposition and ultimately denied Tolliver’s request for leave to file it. Thus, neither the opposition nor its attached exhibits were considered by the trial court in the summary judgment hearing. While Tolliver did not appeal the trial court’s judgment, Daniel did file an appeal. Daniel asserts that the trial court erred in refusing to consider the opposition. We disagree.

La.Code Civ.P. art. 966(B)(1) provides that the affidavits and memorandum opposing a motion for summary judgment “shall be served pursuant to Article 1313 within the time limits provided in District Court Rule 9.9.” 1 flLa.Code Civ.P. art. 1313 provides for service by mail, delivery, or electronic means. Under La.Dist.Ct.R. 9.9(c), “[a] party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing[;]” and, it “shall be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.” Under La.Dist.Ct.R. 9.9(e), parties who fail to comply with 9.9(c) “may forfeit the privilege of oral argument.”

In computing any period of time specified in these rules, La.Dist.Ct.R. 1.5 governs the calculation. The first day that begins the period — the hearing date, Monday, April 14, 2014 — is excluded from the computation under 1.5(a). Counting backward beginning with April 13, the eighth day was April 6, 2014, which was a Sunday. Under 1.5(c), April 6 is counted as the last day in the period, i.e., the opposition due date, “unless the last day is a legal holiday, in which case the period runs until the end of the next day that is not a legal holiday.” As a Sunday, April 6, 2014, was a legal holiday; likewise April 5, 2014, was a Saturday and also a legal holiday. Thus, Sunday and Saturday, April 6 and April 5, are not 110counted in the eight-day period; and we back up to the end of the next day that is not a legal holiday, which in this case was Friday, April 4, 2014. The opposition was faxed to the trial court on April 7, except for the exhibits, and was not fully faxed to Broussard until April 8, 2014. Thus, the documents were clearly late.

Buggage v. Volks Constructors, 06-175 (La.5/5/06), 928 So.2d 536 held that the trial court’s decision not to consider late-filed opposition documents was not an abuse of discretion, given that the time limitation for serving such documents is mandatory. While use of the language shall in the above provisions implies a mandatory obligation to timely file, following Buggage courts have overwhelmingly found that the trial court’s decision to strike untimely filed oppositions is discretionary. Smith v. Rapides Healthcare System, L.L.C., 13-1172 (La.App. 3 Cir. 3/5/14), 134 So.3d 122.

A survey of the cases indicates that the trial court does not abuse its discretion in choosing to follow the mandatory eight-day limit; nor is there abuse in choosing to allow late-filed opposition materials if there is no prejudice to the mover. Id. (citing Mahoney v. E. Carroll Parish Police Jury, 47,494 (La.App. 2 Cir. 9/26/12), 105 So.3d 144, writ denied, 12-2684 (La.2/8/13), 108 So.3d 88). Here, because the opposition documents were late, the trial court did not abuse its discretion in striking the documents. We find no merit in Daniels’ arguments on this issue.

Daniel’s Petition of Intervention

Daniel’s petition of intervention, filed on April 8 prior to the hearing on April 14, reiterates the previously filed petitions and interventions asserting ^malpractice against Broussard. In fact, almost all of Daniel’s allegations pertain to Broussard’s representation of Tolliver and Broussard’s interactions and transactions with Tolliver before, during, and after settlement. He also includes naked assertions of fraud and breach of fiduciary duty. These claims all arise “from an engagement to provide legal services,” and “whether based upon tort, or breach of contract, or otherwise,” they belong to Tol-liver alone under La.R.S. 9:5605. See Patrick Daniel v. Bob Broussard, et al., Writ No. 12-974.

Similarly, Broussard did not owe a fiduciary duty to Daniel. “The defining characteristic of a fiduciary relationship ... is the special relationship of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor.” Scheffler v. Adams and Reese, LLP, 06-1774, p. 7 (La.2/22/07), 950 So.2d 641, 648. In Scheffler, the court found no fiduciary relationship between two attorneys hired separately by a corporation that would require one to protect the other’s interest in earning attorney fees. The pleadings failed to state a cause of action because no facts were pled to establish a legal relationship giving rise to a fiduciary duty. There was no allegation of a contract between the attorneys or a co-ownership interest in the endeavor, such as a partnership or joint venture agreement. And there was no allegation regarding the existence of a mandate or agency relationship.

The Scheffler court went further to find that public policy dictates against recognizing a fiduciary duty among co-counsel to protect one another’s interest in prospective fees. This is because of the potential conflict with each attorney’s undivided duty of loyalty to his client, which is paramount. The duty is to pursue the case based upon the client’s best interest, even if it means foregoing a potential contingency fee. Scheffler, 950 So.2d at 649 (citing Mazon v. Krafchick, 158 Wash.2d 440, 144 P.3d 1168 (2006), which adopted a bright line rule that no duties exist between co-counsel that would allow recovery for lost or reduced prospective fees). Thus, the Scheffler court found that allowing an amendment to the petition would not remove the legal impediments to the attorney’s pursuit of an action based on allegations of breach of fiduciary duty.

This is particularly true in this case involving two attorneys who were not co-counsel. Rather, this case involves intervention by Daniel, an attorney who, by Tolliver’s own affidavit, caused him damages during Daniel’s prior representation of the U-Haul matter, causing Tolliver to fire Daniel for cause. Broussard, as Tol-liver’s new attorney, was put in the position of defending Tolliver’s interests against Daniel’s intervention and filing a reconventional demand on behalf of Tolliver against Daniel. Accordingly, pursuant to La.Code Civ.P. art. 927(B), we raise on our own motion the exception of no cause of action because the naked allegations in Daniel’s petition did not assert facts to support a cause of action for breach of fiduciary duty. Further, under Scheffler, the petition is not subject to amendment on this cause of action because the legal impediments cannot be cured. We also raise on our own motion the exception of no right of action because, in this case, while Tolliver might have pled a cause of action for breach of fiduciary duty against Broussard, just as Tolliver asserted malpractice, the same legal impediments in Scheffler show that Daniel cannot bring a breach of fiduciary duty action against Broussard. Simply put, Daniel is not the proper party to assert the action for breach of fiduciary duty.

(oDaniel’s petition alleges solicitation and intentional interference with Daniel’s contract with Tolliver. As to the intentional interference with contract claim, we raise on our own motion the peremptory exception of no cause of action.

In 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), the Louisiana Supreme Court announced an end to Louisiana’s absolute bar to an action based on tortious interference with a contract. However, the court was very specific in recognizing “only a corporate officer’s duty to refrain from intentional and unjustified interference with the contractual relation between his employer and a third person.” Id. at 234. The court then set forth five elements:

(1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3) the officer’s intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome; (4) absence of justification on the part of the officer; (5) causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.

Id.

Daniel’s petition has not pled, and cannot amend to plead, any facts to support any of the above elements because Brous-sard is not a corporate official whose employer has a contract with Daniel. Thus, Daniel’s intervention does not state a cause of action under the 9 to 5 Fashions, Inc. criteria.

Accordingly, we find no error by the trial court in dismissing all claims filed by Tolliver and Daniel.

JmV.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s granting of the motion for summary judgment. Pursuant to La. Code Civ.P. art. 927(B), we raise and grant on our own motions the peremptory exceptions of no cause of action and the peremptory exception of no right of action. All costs of this appeal are assessed to Patrick Daniel and D. Patrick Daniel, LLC.

AFFIRMED.

      . “Tolliver v. U-Haul Company of Texas," Docket No. 2:09-CV-313, was filed in Lake Charles in the United States District Court for the Western District of Louisiana.

      . “Patrick Daniel v. Bob Broussard, Esquire, et al," Docket No. 2012-0981E, was filed on February 16, 2012, in the Fifteenth Judicial District Court, Lafayette Parish, Louisiana.

      . On February 26, an associate attorney on Daniel's letterhead allegedly attempted to enroll as Tolliver’s attorney.

      . The February 27 motion to continue the March 10 hearing referenced a "February 28” hearing in the title and the body; and the attached order referenced a "January 15” hearing.

      . The malpractice statute provides in pertinent part that any action against an attorney or firm arising from an engagement to provide legal services, "whether based upon tort, or breach of contract, or otherwise” must be brought within one year from the date that the alleged malpractice was "discovered or should have been discovered.” La.R.S. 9:5605(A).

      . Broussard provided the court with three viable discovery dates, the last of which was the settlement of the malpractice claim on February 8, 2012, a year and ten months before suit was filed on December 6, 2013. The document entitled "Mutual Consent and Release Agreement By Affidavit,” was detailed, comprehensive, and it satisfied the coda! articles on Compromise.

      . "[C]ompromises have the legal efficacy of the thing adjudged.” Ortego v. State, Dept. of Transp. and Development, 96-1322 (La.2/25/97), 689 So.2d 1358, 1363 (citations omitted). A "valid compromise may form the basis of a plea of res judicata." Rivett v. State Farm Fire and Cas. Co., 508 So.2d 1356, 1359 (La.1987). See La.R.S. 13:4231 on Res Judi-cata; and see La.Civ.Code arts. 3071-3080 on Compromise.

      . Broussard' introduced the federal court’s August, 2011 memorandum discussing the attorney's inadvertent neglect and willfulness; Tolliver's November, 2011 affidavit averring that he read and discussed the memorandum; Broussard's own affidavit averring that Daniel talked to Tolliver about suing Broussard for malpractice in November 2011, and the February, 2012 release agreement.

      . Tolliver's July, 2012 affidavit averred that Tolliver first approached Broussard who declined the representation in the U-Haul suit; that Tolliver then hired Daniel who filed the suit in 2009; that Tolliver fired Daniel for cause; that Tolliver approached Broussard again, but not until after he had fired Daniel; that Broussard enrolled in the U-Haul suit in September 2010; and that Broussard never solicited Tolliver to secure the representation. Tolliver's affidavit also contained considerable detail regarding the federal court's rulings on the evidence for trial which led to the settlement, Broussard’s motion for reconsideration, the two-day settlement discussions, the settlement amount, Tolliver's reasons for settlement, and Tolliver's instructions to Broussard to settle the case.

      . Because the intervenor has .a remedy in filing a separate action, the intervenor’s rights are limited to the protection of his own interest; he cannot object to the mode of procedure or jurisdiction of the court; and he cannot retard the principal suit. Suites at New Orleans, L.L.C. v. Lloyd’s London, 09-562 (La.App. 4 Cir. 5/27/09), 13 So.3d 241.

      . In this case the trial court did not set a shorter time, and the court stated that the motion for leave to file the opposition late did not provide any good-cause reasons for allowing the late filing.

      . Further, La.Dist.Ct.R. 9.10 provides that the memorandum in opposition to the motion for summary judgment "shall contain” (1) a list of material facts in dispute, and (2) a "reference to the document proving that each such fact is genuinely disputed, with the pertinent part designated.” La.Dist.Ct.R. 9.10(c). Here, the opposition documents did not satisfy the second prong of Rule 9.10(c). The attached exhibits were in large part the very same exhibits used by Bob Broussard to support his motion for summary judgment. They were Broussard’s affidavits, three of Tolliver's affidavits in support of Broussard’s assertions, and a written agreement compromise/settlement made between Broussard and Tolliver, all supporting Broussard’s position and proving his assertions. Tolliver did not attach a single affidavit that supported his, and Daniel’s, opposition, or that proved their disputed facts. The opposition merely used Brous-sard’s documents as a platform for making conclusory and unsupported allegations that every affidavit and agreement was coerced or bribed. Thus, even if the trial court had admitted the opposition documents, they would not have shown genuine issues of material fact for trial.

      . This computation comports with La.Dist. Ct.R. 1.5(a), (c), (c)(i), and Comment (c) to Rule 1.5.

      . Under La.Code Civ.P. art. 927(B), the court cannot supply the exception of prescription because it must be specially pleaded. However, "[t]he nonjoinder of a party, per-emption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.”