author: AMY, Judge.

text:
    James Steven BROUSSARD v. STUTES FARMS, LLC.
    No. 13-1122.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.
    Skipper M. Drost, Lake Charles, LA, for Defendant/Appellant, States Farms, LLC.

      Rick J. Norman, Jr., Lake Charles, LA, for Plaintiff/Appellee, James Steven Broussard.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

IjThe parties are owners in indivisión of property in Cameron Parish used for duck hunting. Upon petition for partition of the property, the trial court ruled in favor of the plaintiff, finding that the property must be partitioned by licitation. The defendant appeals, asserting the trial court erred in failing to order that the property be partitioned in kind. For the following reasons, we affirm.

Factual and Procedural Background

The parties, James Steven Broussard and States Farms, LLC, are the owners in indivisión of two parcels of coastal marsh property in Cameron Parish. The parties stipulated to the property descriptions, to their respective ownership interest in the two tracts, and to the fact that the highest and best use of the property is duck hunting.

The first tract at issue is a five-acre parcel, owned ½ by the plaintiff and ⅜ by the defendant. The second tract, a 120-acre parcel, is owned 3/8ths by the plaintiff and 5/8ths by the defendant. Rex States, a member of States Farms, LLC, as were his father and brother, testified that States Farms purchased its interest in |2the property in 2009 for hunting and recreation purposes. Mr. States explained that, shortly thereafter, Mr. Broussard acquired his own interest in the property and sought to purchase the States Farms’ interest.

After States Farms declined Mr. Brous-sard’s offer, Mr. Broussard filed a petition for judicial partition, seeking to have the court partition the property by licitation. In opposition, States Farms sought to have the property partitioned in kind. At trial, the parties presented testimony as to whether partition by licitation was possible for the parties’ common intended use of the property as an area for duck hunting. Mr. States testified that, if the property was partitioned in kind, his group would agree to provide a right-of-way, if necessary, for the plaintiff to access his property. Ultimately, however, the trial court found in favor of Mr. Broussard, concluding that he “met his burden of proof that the property cannot be divided in kind without diminishing its value and without inconveniencing the parties, and that the division of the property must be by licitation.”

States Farms appeals, assigning the following as error:

1. The Trial Court erred in ruling that the property was to be partitioned by licitation, as there is a presumption under the law that a property must be partitioned in kind and the plaintiff did not offer evidence to defeat the presumption.
2. The Trial Court erred in ruling that the property was indivisible by nature and cannot be conveniently divided and therefore must be partitioned by licitation, to be partitioned by licitation.

Discussion

Ownership in Indivisión

The parties in this case own the subject property in indivisión. Louisiana Civil Code Article 797 defines this type of ownership as the “[ojwnership of the same thing by two or more persons[.]” However, La.Civ.Code art. 807 provides |sthat “[n]o one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or juridical act.” Thus, “[a]ny co-owner has a right to demand partition of a thing held in indivi-sión.” Id. In the event the co-owners do not agree on the mode of partition, “a co-owner may demand judicial partition.” La.Civ.Code art. 809.

In such an event, La.Civ.Code art. 810 provides that “[t]he court shall decree partition in kind when the thing held in indivi-sión is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivisión.” See also La.Code Civ.P. art. 4606 (providing that: “Except as otherwise provided by law, or unless the property is indivisible by nature or cannot conveniently be divided, the court shall order the partition to be made in kind.”)

Otherwise, La.Civ.Code art. 811 requires partition by licitation as follows:

When the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares.

In light of the favor afforded partition in kind, a party seeking partition by licitation has the burden of proving that the property cannot be divided in kind. Tri-State Concrete Co., Inc. v. Stephens, 406 So.2d 205 (La.1981). See also Cooper v. Buxton, 07-1192 (La.App. 3 Cir. 4/2/08), 979 So.2d 1291. A trial court’s decision as whether to divide property in kind or by licitation is a question of fact and is, thus, governed on appeal by the manifest error standard of review. Fessler v. Brumfield, 09-1458 (La.App. 3 Cir. 5/5/10), 37 So.3d 522.

\ ¿Merits

Referencing the law’s preference for a partition in kind, States Farms challenges the trial court’s determination that the property is not susceptible to a partition in kind. Pointedly, States Farms argues that the ultimate factor in any partition is whether the property can be divided into shares of nearly equal value. See La.Civ.Code art. 810. Here, States Farms argues, the plaintiff did not offer testimony regarding the “value” of the property if it were divided.

Having reviewed this matter, we find no manifest error in the trial court’s conclusion that the property at issue is not susceptible to partition in kind. Importantly, and per the parties’ stipulation, the highest and best use of the coastal marsh property is for duck hunting. This acknowledged use is reflected in the nature of the evidence presented by the parties at trial.

As described by Charles Hebert, the plaintiffs expert as to the property’s title, location, and topography, the property is rectangular in shape, “[a] little longer north and south than it is east and west.” Mr. Hebert explained that a ridge, that serves as the sole access to the area, “runs almost down the middle[.]” He further stated that “there’s marsh to the north of the ridge ... and deeper marsh to the south of the ridge.” Mr. Hebert testified that marsh to the north of the ridge is “grown up a good part of the year” and is “dry a good part of the year.” Mr. Hebert opined that the property south of the ridge is the tract’s “ ‘good hunting’ ”. Given this division, Mr. Hebert explained that the northern portion of the property is not “worth” as much as the southern portion of the property for the use of duck hunting.

Similarly, Ernest Carol Trahan, who the trial court accepted as an expert in drainage and hunting, testified that he had “worked” the area his entire life, was |,familiar with the property’s drainage, and was perhaps more familiar with the property than anyone else. Mr. Trahan explained that flood gates in the area held the marsh at a level where the area to the north of the ridge stays “pretty dry.” Mr. Trahan further confirmed that, in its current state, that area has an overgrowth of bulrushes, causing a lack of open space for water on which ducks can land. Mr. Tra-han stated that removing the vegetation would likely be a continuing maintenance issue. The area to the south, however, has deeper marsh and is suitable for hunting. However, and in light of the differences between the northern and the southern portions of the property, Mr. Hebert denied that it would be possible to divide the property in a way that would permit both parties to hunt on their respective portion. Rather, he explained that the sounds associated with more than one hunting party on such limited acreage would interfere with the ability to hunt. On this point, Mr. Hebert also testified that the acreage would not support multiple hunting parties. Instead, he recommends a minimum of 150 acres per duck blind. The property at issue in this case was comprised of 125 acres, undivided.

In this sense, we find no merit in States Farms’ assertion that the plaintiff did not present evidence as to the property’s “value” in a state of division rather than in a state of indivisión. While not monetized, the plaintiffs’ witnesses very clearly testified as to the approximate value of potential lots for the intended use, i.e., duck hunting. Given the plaintiff’s expert’s testimony regarding the size and distinct topographical features of the acreage, the trial court permissibly concluded that Mr. Broussard met his burden of proving that “the property cannot be divided in kind without diminishing its value.”

| ⅜Additionally, the record supports the trial court’s further determination that the property cannot be divided without “inconveniencing the parties[.]” See La.Code Civ.P. art. 4606. Even assuming that the property could be divided along a north/ south boundary, which would give each party access to a portion of the property now suitable for hunting, the trial court correctly recognized that the party receiving the easterly portion would only be able to access that property through a right-of-way over the other’s property. States Farms’ suggests that such an arrangement would be accomplished either by agreement or by operation of La.Civ.Code art. 694. However, even assuming that such a passage was possible, testimony reflected that the parties would have to resolve related matters of insurance and maintenance for that access road. Additionally, and although not focused upon by States Farms’ in its brief, evidence was presented that, given the relative acreage at issue, parties hunting on the property at the same time were required to at least informally coordinate their hunting sites with one another. Such a requirement, between distinct property owners who were each using the property for duck hunting, could permissibly be viewed as a matter of inconvenience. Accordingly, we do not disturb the trial court’s additional determination that a partition in kind would inconvenience the parties in their desired use of their respective lots.

|vFor these reasons, and given the unique, designated use of this property, we find no manifest error in the trial court’s order that the subject acreage be partitioned by licitation.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assigned to the defendant-appellant, States Farms, LLC.

AFFIRMED.

      . The five-acre tract is .described as follows in the parties’ stipulated exhibit:
      The East Half of the Northwest Quarter of the Northwest Quarter of the Northwest Quarter (E ¡4 of NW ¼ of NW ¼) of Section Seven (7), Township Fifteen (15) South, Range Fourteen (14) West; [the interest of Vendors stated as one-forth (sic) (1/4) ]; total acreage of Tract is five (5) acres.
      Located in Cameron Parish, Louisiana, including any improvements located thereon.

      . The 120-acre tract is described as follows in the parties’ stipulated exhibit:
      The East Half of the Southeast Quarter (E ½ of SE ⅛) and the East Half of the West Half of the Southeast Quarter (E ⅛ of W ½ of SE ¼) of Section Six (6), Township Fifteen (15) South, Range Thirteen (13) West; [the interest of Vendors stated as one-forth [sic] (1/4)]; total acreage of Tract is one hundred-twenty (120) acres.
      Located in Cameron Parish, Louisiana, including any improvements located thereon.

      . Louisiana Civil Code Article 694 provides:
      When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road or utility, and even if die act of alienation or partition does not mention a servitude of passage.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. LEXINGTON NATIONAL INSURANCE CORP., et al.
    No. 13-1134.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Asa Skinner, District Attorney-30th Judicial District Court, Edwin Louis Cabra, Assistant District Attorney-30th Judicial District Court, Terry Lambright, Assistant District Attorney-30th Judicial District Court, Leesville, LA, for: Plaintiff/Appel-lee-State of Louisiana.
    Elizabeth B. Carr, DeRidder, LA, for Defendants/Appellants-Frank A. Stephens, Megan Erwin, Keith Dixon, Barbara Kaveski, George WinWey, and Frank’s Bail Bond Services.
    Lexington National Insurance Corp., Through the Secretary of State, Baton Rouge, LA, for Defendant/Appellee-Lex-ington National Insurance Corp.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

|TIn efforts to enforce numerous unpaid bond forfeiture judgments, the State of Louisiana filed a petition for rule to show cause why a commercial surety and its bondsmen agents should not be prohibited from executing bail bonds until the judgments are paid. The trial court held that the forfeiture judgments were valid and enforceable and granted the State’s petition. The bondsmen agents appealed. The judgment is final against the commercial surety as it never appealed. However, as there is no legal cause of action against the bondsmen under the terms of the bond forfeiture statute, La.R.S. 15:85, we reverse the trial court’s judgment against the bondsmen defendants.

I.

ISSUE

We shall consider whether the trial court erred in finding numerous bond forfeiture judgments valid and enforceable against both a commercial surety and its bondsmen agents.

n.

FACTS AND PROCEDURAL HISTORY

Faced with unpaid bond forfeiture judgments from six criminal cases dating from 2009 through 2010, the State of Louisiana filed a petition for rule to show cause on September 20, 2011, why the defendant surety, Lexington National Insurance Corporation, should not be prohibited from executing bail bonds within Vernon Parish until the judgments, including legal interest and court costs, are paid in full in accordance with La.R.S. 15:85. The State also named Lexington’s 12bondsman, Frank’s Bail Bond Services, and its agents, Frank A. Stephens, Megan Erwin, Keith Dixon, Barbara Kaveski, George Winkley, as defendants (hereinafter collectively referred to as “the bondsmen”).

Prior to the rule to show cause hearing on September 7, 2012, the forfeiture judgments from two of the criminal cases were paid in full, leaving only the judgments from four cases at issue. While Lexington never challenged these bond forfeiture judgments, the bondsmen argued that the judgments were invalid due to various violations of the statutory notice requirements under La.R.S. 15:85 and La.Code Crim.P. art. 344. The trial court held that the forfeiture judgments from all four criminal cases were valid and enforceable, reasoning that the statutory notice requirements were met. The bondsmen now appeal the trial court’s ruling.

III.

STANDARD OF REVIEW

This case involves the interpretation of the Louisiana bond forfeiture statute and the applicable sections of the Louisiana Code of Criminal Procedure. The interpretation and application of the statutes are matters of law subject to a de novo standard of review. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-582 (La.11/29/06), 943 So.2d 1037; State v. Nellon, 12-1429 (La.App. 4 Cir. 9/4/13), 124 So.3d 1115.

_kiv.

LAW AND DISCUSSION

While the bondsmen raise numerous arguments regarding improper notice of the bond forfeiture judgments, a proper reading of the applicable statutes indicates that the court need not address these issues in resolving this appeal. Louisiana Revised Statutes 15:85(A) states that if a bond forfeiture is not satisfied, “the prosecuting attorney may file with the district court, in the parish where the bond is forfeited, a rule to show cause why that commercial surety company should not be prohibited from executing criminal bail bonds before the court issuing the judgment of bond forfeiture.” (Emphasis added). Louisiana Code of Criminal Procedure Article 344(E) further states that “[flailure to give the notice required ... relieves the surety from liability on a judgment of bond forfeiture for the nonappearance of the defendant[.]” (Emphasis added). The statutory language clearly specifies that only the surety may be held liable for bond forfeiture judgments and subject to a rule to show cause petition.

Here, the bondsmen are not the surety of the bonds; they are merely agents to the surety and have no obligations under the statutory language. As Lexington, the surety, failed to timely appeal any of the forfeiture judgments or the rule to show cause judgment, the judgments are valid and enforceable against Lexington. However, the State’s petition for rule to show cause against the bondsmen is subject to an exception of no cause of action. In Fink v. Bryant, 01-987 pp. 3-⅛ (La.11/28/01), 801 So.2d 346, 348-49 (citations omitted), the supreme court offered some guidance as to the purpose of the no cause of action exception:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true ... Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.

Considering the statute does not allow for a petition to be issued against the bondsmen as the surety’s agents, the State’s petition fails to present a claim against the bondsmen upon which relief can be granted. While the parties never raised the peremptory exception of no cause of action, we do so by our own motion in accordance with La.Code Civ.P. art. 927(B) and dismiss all of the State’s claims against the bondsmen and their agents.

While not dispositive of the case, the State argued on appeal that the bondsmen could not raise the defenses of improper notice as they have no right of action to challenge the notice requirements as the agents to the surety. We feel it necessary to clarify why this is an improper application of the law. While an exception of no cause of action focuses on the claim and questions whether the law provides a remedy, an exception of no right of action focuses on the parties and is used “to raise the question of whether a given legal remedy may be invoked by a | ¿particular plaintiff or class of plaintiffs.” Honeywell, Inc. v. Sierra, 543 So.2d 594, 596 (La.App. 4 Cir.1989) (emphasis added). The no right of action exception “cannot be used to determine whether a defendant can stand in judgment or to urge that plaintiff has no right of action because there is a valid defense.” Id. While there is case law to support the notion that the bondsmen are subject to an exception of no right of action in nullity suits to combat bond forfeiture judgments, this case is distinguishable as this is not a nullity action and the bondsmen are not plaintiffs. Here, the State, acting as the plaintiff, clearly has a statutory right under La.R.S. 15:85 to file a rule to show cause to enforce bond forfeiture judgments, and, as such, the exception of no right of action lacks merit.

V.

CONCLUSION

For the foregoing reasons, we reverse the judgment against Frank’s Bail Bond Services, Frank A. Stephens, Megan Erwin, Keith Dixon, Barbara Kaveski, and George Winkley, and dismiss all claims against them. Costs are assessed against the State of Louisiana in the amount of $1,752.93.

REVERSED AND RENDERED.

      . The forfeiture judgments for three of the criminal cases in question were finalized pri- or to August 15, 2010 when amendments to La.R.S. 15:85 and La.Code Crim.P. art. 344 went into effect. As such, the arguments alleged by the defendants for these forfeiture judgments are based on the statutory language in effect at the times of the specific final judgments.

      . The citation for the law in effect prior to August 15, 2010 is La.R.S. 15:85(1 l)(a). The quoted language remained unchanged, in pertinent part, by the amendments.

      .This citation for the law in effect prior to August 15, 2010 is La.Code Crim.P. art. 344(B)(4). In this version, the language reads "[fjailure to give notice, as required by this Paragraph, relieves the surety from liability on a judgment of bond forfeiture for the defendant’s nonappearancef.]”

      . See Stassi v. State, 11-2264 (La.App. 1 Cir. 9/13/12), 102 So.3d 896.


author: PETERS, J.

text:
    Robert PORBECK v. INDUSTRIAL CHEMICALS (US) LIMITED, et al.
    No. 13-1241.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Carlton Jones, III, Roedel, Parsons, Koch, Blache, Balhoff, & McCollister, Baton Rouge, LA, for Defendant/Appellant, Industrial Chemicals (US) Limited.
    Carmack M. Blackmon, Carmack Black-mon and Associates, Baton Rouge, LA, for Defendant/Appellant, Industrial Chemicals (US) Limited.
    Paul J. Tellarico, Tellarico Law Firm, Alexandria, LA, for Plaintiff/Appellee, Robert Porbeck.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

hThe defendant, Industrial Chemicals (US) Limited, appeals a trial court judgment awarding the plaintiff, Robert Por-beck, damages, penalties, and attorney fees based on the terms of an employment contract entered into by the parties. For the following reasons, we affirm the trial court’s award of severance pay and insurance benefits to Mr. Porbeck, but reverse the award of penalties and attorney fees and render judgment.

DISCUSSION OF THE RECORD

This matter stems from an employment relationship between Mr. Porbeck and Industrial Chemicals (US) Limited (ICL), which is a subsidiary of Industrial Chemicals Group Limited, a United Kingdom company. Mr. Porbeck began working for ICL as a processing engineering manager at ICL’s Lecompte, Louisiana facility on February 22, 2007, and ICL terminated his employment on October 31, 2011. The issue in this litigation involves the severance benefits, if any, owed to Mr. Porbeck.

With regard to the underlying facts in this litigation, the evidentiary record establishes that in the summer of 2006, Mr. Porbeck, who is a mechanical engineer, began performing consulting services for ICL in its production of aluminum chemicals. Initially, he devoted sixteen hours per week to his consulting activities. Approximately five months later, Renea Du-cote, ICL’s Lecompte plant manager, approached him concerning increasing his hours. As a result of the negotiations that followed, Mr. Porbeck quit his job with AFCO Steel and began working for ICL. It is undisputed that the terms of the employment contract entered into included a monthly salary to Mr. Porbeck of $8,500.00 ($102,000.00 annual salary); medical benefits for him and his wife; a customized work schedule which fallowed him to alternate weekly between the Le-compte plant and his Little Rock, Arkansas home; four weeks annual vacation; and travel and lodging expenses. Mr. Por-beck claims in this litigation that the contract also included a severance package comprised of eight months’ salary and eight months’ health insurance. ICL denies that the employment contract provided any severance benefits.

After ICL terminated his employment on October 31, 2011, Mr. Porbeck requested that ICL pay the severance benefits. ICL responded by continuing Mr. Por-beck’s medical benefits, but refused to continue paying his salary. When negotiation through email correspondence with various members of the ICL administration did not resolve the issue, Mr. Porbeck retained counsel who made demand on ICL, again without success.

On May 1, 2011, Mr. Porbeck filed suit against both ICL and Ms. Ducote, alleging breach of contract and seeking damages equal to his claims under the severance package in the employment contract, as well as statutory penalties and attorney fees. The matter went to trial on February 5, 2013, and, following the close of evidence, the trial court orally ruled that a lawful, enforceable employment contract existed between Mr. Porbeck and ICL and that the contract included the severance package asserted by Mr. Porbeck. Having reached this factual conclusion, the trial court rendered judgment awarding Mr. Porbeck damages in the amount of $68,000.00 (the equivalent of salary for eight months) and $4,255.00 (the cost of health insurance for eight months).

At the completion of the evidence, the trial court took the penalties and attorney fee issues under advisement. In written reasons filed on May 9, 2013, the trial court concluded that the payment due under the severance package constituted | .¡wages pursuant to La.R.S. 23:631 and awarded Mr. Porbeck an additional $25,500.00 in statutory penalties and $7,500.00 in statutory attorney fees. On May 17, 2013, the trial court executed a judgment consistent with its factual findings and awards.

ICL perfected this appeal and raises five assignments of error:

1. The trial court erred by holding that the plaintiff had a valid and enforceable employment contract with ICL despite that his employment was “at-will” and without a fixed term.
2. The trial court erred by holding that the plaintiff was entitled to severance pay and health insurance benefits after the termination of his “at will” [sic] employment.
3. The trial court erred by holding that severance pay and health insurance benefits are “wages” pursuant to La. R.S. 23:631 and 632.
4. The trial court erred by holding that the plaintiff is entitled to penalties and attorney’s fees for his claims for severance pay and health insurance benefits despite the lack of affirmative pleading for those special damages and the lack of specific legal or contractual authority therefor.
5. The trial court erred by admitting the purported February 22, 2007 email (Trial Exhibit 8) into evidence despite plaintiffs failure to demonstrate authenticity.

OPINION

“A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” La.Civ. Code art. 1906. It is formed by the consent of the parties, via offer and acceptance. La.Civ.Code art. 1927.

Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.

Id.

14A contract is interpreted by determining the common intent of the parties. La.Civ. Code art. 2045. It further has the force of law between the parties for claims arising from the contract. La.Civ.Code art. 1983. A trial court’s factual findings with regard to the intent of the parties is reviewed on appeal pursuant to the manifest error— clearly wrong standard of review. See Rosell v. ESCO, 549 So.2d 840 (La.1989).

“The employer-employee relationship is a contractual relationship. As such, an employer and employee may negotiate the terms of an employment contract and agree to any terms not prohibited by law or public policy.” Newsom v. Global Data Systems, Inc., 12-412, p. 4 (La.App. 3 Cir. 12/12/12), 107 So.3d 781, 785, writ denied, 13-429 (La.4/5/13), 110 So.3d 595. A breach of a contract occurs when a party fails to perform in accordance with the contract terms, which failure results in damages to the other party. Favrot v. Favrot, 10-986 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, unit denied, 11-636 (La.5/6/11), 62 So.3d 127. The party seeking the performance of an obligation bears the burden of proving the existence of the obligation by a preponderance of the evidence. La.Civ.Code art. 1831; Natali v. Froeba, 98-1354 (La.App. 3 Cir. 3/3/99), 735 So.2d 30, writ denied, 99-1442 (La.9/17/99), 747 So.2d 1106.

Analysis of the Employment Contract

In its first two assignments of error, ICL argues that the trial court erred in finding that a valid, enforceable employment contract existed between it and Mr. Porbeck. Alternatively, ICL asserts that even if the evidence establishes a meeting of the minds on the terms of employment in general and the severance package in particular, any contract formed from that agreement is invalid because Mr. Porbeck |fiwas an at-will employee and, as such, he was not entitled to severance pay and continuing health insurance benefits. We find no merit in these arguments.

In response to Ms. Ducote’s 2006 suggestion that he increase his work time with ICL, Mr. Porbeck submitted a new proposal, via email, in which he offered to quit his current job with APCO Steel, join his brother’s Little Rock, Arkansas engineering firm, and then enter into a one-year consulting contract with ICL which would commit him to a work schedule of thirty-two hours per week. According to Mr. Porbeck, he emailed a more detailed proposal based on this plan to Ms. Ducote on December 20, 2006; and on January 5, 2007, he emailed her a Contract Services Proposal based on his discussions with her in regards to the previous two proposals.

Mr. Porbeck testified that further discussions with Ms. Ducote resulted in him submitting a new proposal. In accordance with Ms. Ducote’s suggestions, this new proposal outlined two employment options: “Option A” which reiterated the proposal that had him quitting his current position, joining his brother’s firm, and then contracting with ICL through his brother’s firm; and “Option B,” which called for him to be hired full time by ICL. Option B, according to Mr. Porbeck, contained the following employment conditions: $8,500.00 monthly/$102,000.00 annual salary; a weekly, alternating work schedule, with one week at ICL’s plant and one week at Mr. Porbeck’s home in Little Rock, Arkansas; medical benefits for Mr. Porbeck and his wife; four weeks annual vacation; reimbursement of travel and lodging expenses; and an eight-month severance package of eight months’ salary and eight months’ medical insurance in the event ICL terminated his employment.

|fiMr. Porbeck testified that he emailed the alternate proposals on February 12, 2007, to Ms. Ducote and Mr. John Carver. When he did not hear from either individual, he sent a follow-up email requesting a speedy decision because he was scheduled to begin a new project for AFCO Steel in the near future. According to Mr. Por-beck, Ms. Ducote telephoned him to say that ICL wished to hire him pursuant to the terms of Option B. Mr. Porbeck requested the acceptance be reduced to writing, and, on February 22, 2007, he received an e-mail from Ms. Ducote which stated: “As outlined in option B of your proposal, Industrial Chemicals (US) Limited would like to go forward with your employment.” According to Mr. Porbeck, he then received a February 26, 2007 email from Mr. Carver welcoming him to ICL, to which he responded the same day. In his response, Mr. Porbeck did not mention the terms of the contract in his email because he understood the agreement on the terms had already been reached.

For the next four years, Mr. Porbeck worked pursuant to the terms set forth in Option B. In fact, according to Mr. Por-beck, the Lecompte plant suffered a slowdown ahead of a new product launch in August of 2009, and, during the slowdown, Ms. Ducote called to inform him that she and Mr. Carver proposed to suspend his employment without pay until the new project began. In response, Mr. Porbeck emailed Mr. Carver, with a copy sent to Ms. Ducote, inquiring about the terms of the suspension and stating the following:

If you recall, there was a provision agreed to in my employment proposal for an 8 month severance package where my wages and benefits would continue if my employment with ICGL were terminated. Would it be possible to start down that path and when the boehmite comes along, we could deduct the time spent between, now and the start up from the 8 months of severance agreed upon?

_JjMr. Porbeck testified that neither Mr. Carver nor Ms. Ducote responded to this email and the question of his suspension from employment never came up again.

According to Mr. Porbeck, the events leading to this litigation began in early March of 2011, when he received a telephone call from Chris Ryan, ICL’s United Kingdom facility supervisor, informing him that his employment with ICL was terminated. Mr. Porbeck responded to this call by sending an email to Mr. Ryan on March 8, 2011, in which he stated:

I wanted to make sure that you were aware of a couple of things that were agreed to in my employment contract with Industrial Chemicals. That is if I was terminated, that there would be a severance package covering 8 months after the termination that would allow me to find other employment. The severance package included both salary and benefits, which would include medical benefits. I wanted to bring this up before anyone might have inadvertently stopped the insurance benefit.

I do appreciate Industrial Chemicals honoring the contract we agreed to 4 years ago when I was hired.

When he discussed the situation with Ms. Ducote, she suggested he contact Mr. Carver and provide him with an outline of the effects of his termination. He followed her suggestion and forwarded an email to Mr. Carver on March 14, 2011. Mr. Carver responded by reinstating Mr. Por-beck’s employment and his salary and benefits remained uninterrupted until October 31, 2011. However, on that date, Ms. Du-cote telephoned Mr. Porbeck to tell him that ICL no longer required his services.

The next day, November 1, 2011, Mr. Porbeck emailed Ms. Ducote concerning his October 2011 expense report, six additional months of outstanding expenses, and seven days of vacation owed him. Additionally, he addressed the severance issue in the email in the following manner:

laThe severance package includes 8 months of pay and 8 months of insurance coverage. My salary was $102k per year or $8,500 per month. 8 months would then be $68,000. If you want to do this as a lump sum payment, that would be fine with me. You can take out the taxes and the monthly insurance contributions. If we take October 31 as the termination date, then the insurance coverage should go through the end of June, 2012.

Mr. Porbeck received his vacation pay within a week of this email.

Seven days later, and following a conversation with Ms. Ducote, Mr. Porbeck emailed Mr. Carver and Ben Lowthian, ICL’s UK accountant, stating:

Renea suggested I drop you an email to ask if you come to any decision on how the severance package would be handled? I was wanting to know for sure that my health insurance coverage will be continuing for the 8 months that is in our employment agreement and how the pay will be handled.

Mr. Carver responded to Mr. Porbeck by email that same day. He stated, “Rob, at the momentt [sic] as a result of your collective efforts there is no money to pay anybody.” Mr. Porbeck took Mr. Carver’s response as an acknowledgement that ICL owed him the severance package. Numerous subsequent emails addressing the severance package were sent by Mr. Porbeck to Mr. Carver, Ms. Ducote, and Mr. Lowthian, but none brought him a response. Mr. Porbeck did receive an expense check from ICL on April 11, 2012, but only after a demand letter from his attorney requesting payment of his outstanding expenses and the severance package was sent to ICL. According to Mr. Porbeck, no one from ICL told him why the severance package was not being honored, and he first learned that ICL disputed the very existence of the severance package after the negotiations shifted from the parties to the attorneys for the parties.

19Mr. Porbeck acknowledged at trial that he was an at-will employee and that the employment contract contained no fixed term. However, based on his February 12, 2017 proposal and Ms. Dueote’s February 22, 2007 email acceptance, he felt he was owed the severance package regardless of how or why his employment with ICL was terminated. Furthermore, although he agreed that no one from ICL ever told him that he did have a severance package, he stated that no ever told him that he did not have a severance package. Mr. Porbeck disputes ICL’s position with regard to the severance package based on the failure of Mr. Carver, Ms. Ducote, or Mr. Lowthian to ever dispute his right in either their conversations with him or in response to his numerous emails.

Ms. Ducote served as plant manager at the Lecompte facility since 2007. According to Ms. Ducote, the Lecompte facility is the only one operated by Industrial Chemicals Group Limited in the United States. Although Mr. Carver directly supervises her, Ms. Ducote has the authority to hire and fire employees, but testified that she did not have the authority to offer severance packages to potential employees. She acknowledged that she hired Mr. Por-beck for the salaried position of Processing Engineering Manager, but asserted that during the employment negotiations, she only communicated with Mr. Porbeck by telephone, and only discussed salary, benefits, travel, and vacation. Additionally, in the end, she only agreed to salary, health insurance benefits, and his work schedule. Ms. Ducote denied that she referenced “Option B” during their discussions or that she agreed to the severance package, which she said Mr. Porbeck never mentioned. Moreover, she denied ever discussing the proposed severance package with Mr. Carver. Although she did admit that Mr. Porbeck was hired under the exact terms |inoutlined in Option B, with the exception of the severance package, she stated that she never told him that ICL refused that proposed term.

Even though she claimed that all communication with Mr. Porbeck was by telephone, Ms. Ducote admitted receiving the emails Mr. Porbeck sent her as employment proposals, including the February 12, 2007 email setting forth Options A and B. Additionally, she had no recollection of Mr. Porbeck requesting that the acceptance of his proposal be reduced to writing, and she denied sending the February 22, 2007 email stating that, “[a]s outlined in option B of your proposal, Industrial Chemicals (US) Limited would like to go forward with your employment.” Ms. Ducote explained that she never corresponds via emails when hiring employees. She stated that “it’s face to face when we hire or on a phone call.”

Ms. Ducote further admitted that even though she had the authority to hire and fire, she consulted with Mr. Carver before offering Mr. Porbeck employment because she lacked the authority to agree to his requested salary. According to Ms. Du-cote, during his approximately four years of employment with ICL, Mr. Porbeck never requested that she reduce the severance-package agreement to writing and, that when she terminated his employment on October 31, 2011, he did not mention the severance package.

In explaining why ICL continued to pay Mr. Porbeck’s health insurance for three months after October 31, 2011, Ms. Ducote stated there were two reasons: because it was pre-paid by ICL and because there was a delay initiating his |nCOBRA insurance. This delay, she stated, was not uncommon and was not related to his employment contract or severance package.

According to Ms. Ducote, it was only after October 31, 2011, that she became aware that Mr. Porbeck was seeking severance payments. Although she learned this through his emails, she said that she never responded to his requests other than to tell him to bring the issue to the attention of Mr. Carver and Mr. Lowthian. She further admitted a conversation with Mr. Porbeck in which he asked her whether Mr. Carver would pay the severance package. However, rather than disabuse him of the idea, she testified that she told him to address his question to Mr. Carver. Although Ms. Ducote denied any further knowledge of Mr. Porbeck’s claim, she acknowledged that she received or was copied on six other emails from Mr. Porbeck concerning the severance package. Ms. Ducote explained that she never responded because, as she stated, “there was nothing more for me to respond to ‘cause I didn’t have a severance agreement.”

The record reflects that Ms. Ducote provided evidence on the severance issue through answers to interrogatories and her deposition as well as her testimony at trial, and often the answers were contradictory concerning her recollection of events and/or company policy. As an example, in her answer to an interrogatory and later at trial, she stated that Mr. Porbeck received four weeks of paid vacation per year. During her intervening deposition, she did not know the answer to that question. When asked at trial how she was able to answer the interrogatory, she initially suggested that she obtained that information from his 112employment file. She then recanted by stating that she did not know what information the file contained or if it contained any information-regarding his allotted vacation. Finally, she admitted that she obtained the information from Mr. Porbeck’s February 12, 2007 email. Ms. Ducote also had to acknowledge at trial that Mr. Porbeck was the only employee who had four weeks of paid vacation, and that the employee manual provides an employee increasing weeks of vacation based on the length of employment. She suggested that all of the other employees would have one week of vacation for one year employment and that it would increase to a maximum of three weeks after five years. In fact, Ms. Du-cote testified that she only receives three weeks of paid vacation per year.

The agreement concerning medical benefits for Mr. Porbeck and his wife were also an exception to company policy. According to Ms. Ducote, ICL normally did not provide health benefits to an employee until ninety days into his or her employment with ICL. However, in this case, because Mr. Porbeck requested medical benefits for him and his wife as part of Option B of his proposal, she admitted that ICL rushed his and his wife’s coverage so that it would start commensurate with his employment.

In oral reasons, the trial court held that a lawful and enforceable employment contract existed between Mr. Porbeck and ICL, which included the severance package at issue. Although Mr. Porbeck was an “at-will” employee, the trial court held that the right to terminate such an employee could be altered by a specific contract or agreement. In ruling in Mr. Por-beck’s favor, the trial court stated that it found Mr. Porbeck to be credible and that his testimony was corroborated by the fact that despite multiple references to the severance package, both pre- and postjtermi-nation,13 ICL never repudiated it and, furthermore, it continued his health insurance for three months post termination.

After reviewing the record, we find no manifest error in the trial court’s finding that an employment contract existed between Mr. Porbeck and ICL, which included the severance package at issue. At best, the explanation offered by Ms. Du-cote for why she never responded to Mr. Porbeck’s emails by repudiating the severance package is simply not believable. It is difficult to envision a business that when faced with the prospect of losing approximately $72,000.00, would fail to repudiate a charge or claim at the earliest instance possible.

Based on Mr. Porbeck’s testimony, his February 12, 2007 email proposal, and Ms. Ducote’s February 22, 2007 response, it is clear that the parties intended to enter into an employment contract that afforded Mr. Porbeck -every term he requested in his proposal, including the severance package. Based on Ms. Ducote’s testimony, it is further obvious that ICL did everything it could to secure the services of a highly qualified engineer. It allowed him to work a very unusual work schedule; agreed to the high salary he requested; allowed him a four-week paid annual vacation, one week more than even Ms. Ducote, herself, enjoyed; and accelerated his medical benefits by ninety days. Considering the extraordinary terms ICL agreed to, as well as its failure to repudiate Mr. Porbeck’s pre-. and post-termination claims of a severance package and its three-month continuation of his medical benefits, it is clear that the severance package was agreed to by the parties.

Furthermore, based on the fact that Mr. Porbeck was resigning his employment with his then current employer, it is not surprising that he would request Ms. Du-cote to put ICL’s acceptance of his proposal in writing. And, although Ms. Ducote claims that she only conducted employment negotiations | M either on the telephone or face to face, Mr. Porbeck, in this case, was already a known entity as he was ending a four-month consulting contract with ICL when he was hired. Thus, Mr. Porbeck was not, technically, a new hire who required face to face negotiations with Ms. Ducote. It is not inconceivable, under these facts, that she conducted negotiations with Mr. Porbeck, in part, via email.

We further find no merit in ICL’s argument that Mr. Porbeck’s status as an “at-will” employee rendered the employment contract between the parties invalid. ICL bases its argument on La.Civ.Code arts. 2747 and 2748. It further argues that because Mr. Porbeck admitted that he was an “at-will” employee, he was free to quit and ICL was free to terminate his employment at any time, provided the termination did not violate any statutory or constitutional provision. In making this argument ICL relies on Newsom, 107 So.3d 781, for support. However, we do not find that the holding in Newsom supports ICL’s position.

In Newsom, we initially stated that the employer and employee could enter into any terms of employment so long as they were not prohibited by law or public policy. We further stated that absent such a contract, the default terms of employment existing between the parties would be provided by La.Civ.Code arts. 2747 and 2748. Pursuant to those provisions, we determined that the only time post-termination liability was enforceable was in a situation in which the employee was hired pursuant to a fixed term of employment. In situations involving an “at-will” employee, we held, as quoted by ICL, that “the at-will employment concept is a two-edge sword which protects both the employer and employee, with equal force, from liability at separation.” Id. at 786.

Since, under the facts at issue, Mr. Por-beck and ICL entered into a specific contract of employment, the default conditions provided by La.Civ.Code arts. 2474 11sand 2478 do not apply. Rather, the parties are bound by the terms of their agreement, which the trial court held, and we affirm, provides Mr. Porbeck with a severance package.

Based on the foregoing, we affirm the trial court judgment finding that a valid and enforceable employment contract existed between Mr. Porbeck and ICL and that the contract provided a severance package.

Penalties and Attorney Fees

In its third assignment of error, ICL argues that the trial court erred in holding that the severance package qualified as wages pursuant to La.R.S. 28:631 and 23:632 and in awarding Mr. Porbeck statutory penalties and wages pursuant to these provisions. We find merit in this assignment of error.

Louisiana Revised Statutes 23:631 provides, in part:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official | lfiUnited States postmark or other official documentation from the United States Postal Service.
(S) The provisions of this Subsection shall not apply when there is a collective bargaining agreement between the employer and the laborer or other employee which provides otherwise.

Louisiana Revised Statutes 23:632 provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

In Boudreaux v. Hamilton Medical Group, Inc., 94-879, pp. 4-5 (La.10/17/94), 644 So.2d 619, 621-22 (alteration in original), the supreme court stated with regard to these two statutes:

These statutes, being penal in nature, must be strictly construed and their provisions yield to equitable defenses. Mitchell v. First National Life Insurance Co. of La., 236 La. 696, 109 So.2d 61, 63 (1959); Clevy v. OMeara, 236 La. 640, 108 So.2d 538, 539 (1959). The statutes refer to “wages” and subject the employer to the payment of penalties and attorney fees if the wages are not paid timely. In Mason v. Norton, 360 So.2d 178, 180 (La.1978), we stated that these statutes are designed to compel prompt payment of wages upon an employee’s discharge or resignation. The term “wages” is defined as money that is paid or received for work or services, as by the hour, day or week. Webster’s New Universal Unabridged Dictionary 1604 (1992). In La.R.S. 23:631, the “amount due under the terms of employment” is modified by the phrase “whether the employment is by the hour, day, week, or month, ...” We have held that this phrase in La.R.S. 23:631 “whether the employment is by the hour, day, week, or month” refers to the pay period for the compensation. Mason v. Norton, 360 So.2d at 180. In Stell v. Caylor, 223 So.2d 423, 426 (La.App.3d Cir.), writ refused, 254 La. 778, 226 So.2d 770 (1969), the court stated: 117[T]he inclusion in the statute of the words “whether the employment is by the day, week or month” seems clearly to signify that only amounts due as Wages are contemplated. Otherwise these words would be superfluous. If the statute is intended to cover all amounts due by the employer to the employee, regardless of whether they are wages, there is no need for the statute to specify the pay periods of wages.
Since the phrase in La.R.S. 23:631 “any amount then due under the terms of employment” is modified by the-phrase “whether the employment is by the hour, day, week, or month” (pay period), it is obvious that “the amount then due under the terms of employment” set forth in La.R.S. 23:631 refers to wages which are earned during a pay period. In other words, “terms of employment” refers to a particular pay period. Therefore, only compensation that is earned during a pay period will be considered wages under the statutes. This interpretation is consistent with the references to “wages” throughout the statutes.

Having determined that “wages[,]” as intended by La.R.S. 23:631 and 632, meant only those wages earned during a pay period, the supreme court held that the compensation provided by the contract at issue, which was to be paid to the plaintiff only upon termination, did not constitute wages and that the plaintiff was not entitled to the statutory penalties and attorney fees provided by La.R.S. 23:632.

The severance package at issue here is basically identical in nature to the compensation on termination at issue in Boudreaux. As stated in Clavier v. Lay Down Serv., Inc., 00-701, p. 5 (La.App. 3 Cir. 12/20/00), 776 So.2d 634, 638, writ denied, 01-880 (La.5/25/01), 793 So.2d 203, “[a]s a court of appeal, we are bound to follow the decisions of our supreme court.” Our research reveals that Bou-dreaux has not been overturned and that neither La.R.S. 23:631 and 632 have been legislatively amended since that decision; thus, we are bound to apply the supreme court’s interpretation of those provisions. Thus, Mr. Porbeck is not entitled to statutory penalties and attorney fees based on ICL’s failure to comply with the employment contract. Accordingly, the trial court judgment awarding Mr. |18Porbeck statutory penalties and attorney fees is reversed and judgment is rendered in favor of ICL on this issue.

Based on this finding, we need not address ICL’s fourth assignment of error.

Evidentiary Issue

In its final assignment of error, ICL argues that the trial court erred in admitting Ms. Ducote’s February 22, 2007 email into evidence over its objection that the email was insufficiently authenticated. We find no merit in this argument.

The email in question states:

As outlined in option B of your proposal, Industrial Chemicals (US) Limited would like to go forward with your employment.
I look forward to working with you.
Regards,
Renea Ducote
Plant Manager

Ms. Ducote denies sending this email, and her denial is three-fold: (1) she could not find the email on her computer; (2) the writing style is too formal; and (3) this is not how she signs off on her emails. She explained that she does not write this formally in her emails and that, normally, she signs off: “Regards, Reneaf.]” She said that when addressing someone from another company, she signs her emails:

Regards,
Renea Ducote
Plant Manager
Industrial Chemicals (US) Limited
(cell number)

She further testified that she never communicates with potential new employees by email. Rather, she said that she either calls them by telephone or, when actually hiring them, meets with them face to face. However, when shown a January 14, 2009 email from her to Mr. Porbeck, with the exact salutation as the February 22, |1a2007 email, Ms. Ducote, although she admitted that it contained her name, did not recall sending the email. On other emails, she admitted that she signed off in various other manners: 1) Renea Ducote, Plant Manager Industrial Chemicals (US) Limited, (cell phone); 2) no salutation; 3) FYI-Renea; 4) Thanks, Renea; 5) Renea; 6) Regards, Renea Ducote; and 7) Regards, Renea.

Mr. Porbeck testified that he provided ICL with all emails pertaining to the severance package which originated from his ICL work computer. He stated that the email in question was not included in those emails because it occurred prior to his employment with ICL and was on his home computer. He further explained that his home computer crashed in approximately 2008, and none of the emails located on that computer were retrievable. He explained that the email in question was a contemporaneous copy he made and filed at home.

Based on testimony and evidence, we find no abuse of discretion on the part of the trial court in admitting the February 22, 2007 email. “The trial court is given vast discretion in its evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal in the absence of an abuse of discretion.” In re Succ. of Jones, 08-1088, p. 8 (La.App. 3 Cir. 3/4/09), 6 So.3d 331, 335. The numerous emails introduced into evidence by Mr. Porbeck disproves Ms. Ducote’s claim that she consistently signs her emails in the manner she indicated. In fact, her January 14, 2009 email contains the exact salutation as the February 22, 2007 email. We further find no merit to her argument that the style of the email is too formal. Accordingly, this assignment of error is dismissed as being without merit.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the trial court awarding Robert Porbeck penalties and attorney fees and render judgment in favor |20of Industrial Chemicals (US) Limited on this issue. We affirm the judgment of the trial court in all other respects. We assess costs of this appeal equally between Robert Porbeck and Industrial Chemicals (US) Limited.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . Mr. Porbeck voluntarily dismissed Ms. Du-cote as a defendant at trial.

      . Mr. Carver and his brothers are the owners of the parent company owning ICL.

      . Although objected to by ICL, the trial court allowed the email to be introduced, not for the truth of the matter, but to show that it was received by Mr. Porbeck.

      . Emails were sent by Mr. Porbeck on November 28, 2011; December 6, 2011; December 13, 2011; December 26, 2011; January 4, 2012; and February 26, 2012.

      . COBRA stands for Consolidated Omnibus Budget Reconciliation Act, which was passed by the United States Congress in 1986, and provides for the temporary continuation of group health coverage. U.S. Dep’t of Labor (Jan. 27, 2014), http://www.dol.gov/ebsa/faqs/ faq-consumer-cobra.html


author: EZELL, Judge.

text:
    HOTI, INC. v. Jason HART.
    No. WCA 13-1243.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      See also, 127 So.3d 1053.
    Eric J. Waltner, Allen & Gooch, Lafayette, LA, for Plaintiff/Appellee: HOTI, Inc.
    Robert L. Beck, III, Law Offices of Robert L. Beck, Alexandria, LA, for Defendant/Appellant: Jason Hart.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

1, Jason Hart appeals the decision of the workers’ compensation judge granting an exception of no cause of action in favor of his employer, HOTI, Inc. and its insurer, The Gray Insurance Company (collectively referred to as “HOTI”). For the following reasons, we hereby reverse the decision of the workers’ compensation judge and remand this case for further proceedings.

The preliminary facts of this case were discussed in its companion case before this court, Hart v. Highlines Const. Co., Inc., 13-624, pp. 1-2 (La.App. 3 Cir. 12/11/13), 127 So.3d 1053, 1053-54, (footnote omitted) (alteration in original).

The facts in this matter are not in dispute. The claimant, Jason Hart, was injured on November 12, 2007, when he came in contact with a live electrical line while working for HOTI, Inc. Thereafter, The Gray Insurance Company, HOTI’s workers’ compensation insurer, began paying Hart weekly indemnity benefits. On February 22, 2010, Hart was incarcerated following a parole violation. Several months later, Gray ceased paying Hart indemnity benefits pursuant to La.R.S. 23:1201.4.
Hart filed a Form 1008 Disputed Claim for Compensation (1008) against HOTI and Gray (hereafter appellees) on February 25, 2013, wherein he listed as the bona fide dispute that his “[e]ntitlement to receive medical benefits has not been established.” In response, the ap-pellees filed an exception of prematurity and no cause of action and/or right of action. Before the exceptions came up for hearing, Hart filed a first supplemental and amending 1008 and a second supplemental and amending 1008 in which he claimed that the appellees had failed to authorize his evaluation by Dr. Gerald Leglue, Jr. and to approve additional vocational rehabilitation. Hart sought penalties and attorney fees in both supplemental 1008s. While the ap-pellees did not object to Hart’s filing of the two supplemental petitions, they did assert their exceptions as to the petitions.
Following a contradictory hearing, the WCJ sustained the exceptions and dismissed the matter with prejudice.

On June 19, 2013, while the previously-mentioned case was before this court on appeal, HOTI itself filed a 1008 disputed claim for compensation, directly challenging Mr. Hart’s disability status. Mr. Hart filed an answer and l?reconventional demand, alleging that, since he had a minor dependent who relied on his workers’ compensation benefits for support, his rights to those benefits were not forfeited under La.R.S. 23:1201.4. He further alleged his entitlement to an examination by a physician to prove disability in the face of HOTI’s 1008.

HOTI again filed exceptions of no right and cause of action, prematurity, and res judicata. After hearing these exceptions, the workers’ compensation judge again sustained HOTI’s exception of no cause of action. From that decision, Mr. Hart appeals.

Mr. Hart asserts one assignment of error on appeal, that the workers’ compensation judge erred in holding that he did not have a cause of action to be examined by a physician in the face of HOTI’s challenge to his disability status. We agree with Mr. Hart.

The Louisiana Supreme Court explained the standard of review of the sustainment or denial of a peremptory exception raising the objection of no cause of action in Kin-chen v. Livingston Parish Council, 07-478, p. 2 (La.10/16/07), 967 So.2d 1137, 1138 (quoting Fink v. Bryant, 01-987 (La.11/28/01), 801 So.2d 346, 348-49) as follows (alteration in original):

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court ... should subject the case to de | snovo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.

We previously discussed HOTI’s exceptions of no cause of action against Mr. Hart as such:

In Gobert [v. S.W.D.I., L.L.C., 08-1598 (La.App. 1 Cir. 5/5/09), 13 So.3d 608], an incarcerated claimant filed a disputed claim for workers’ compensation “seeking to interrupt prescription of his claims for indemnity and medical expenses” arising out of an on-the-job injury that he incurred almost six years earlier. Id. at 609. His former employer filed a peremptory exception of no cause of action on the basis of La.R.S. 23:2101.4, arguing that the claimant had no cause of action while he was incarcerated and his right to compensation benefits was forfeited. The WCJ granted the exception of no cause of action and dismissed the matter with prejudice. On appeal, the first circuit reversed, holding that “while [the claimant] cannot collect workers’ compensation benefits while he is incarcerated, he must be able to file his claim while he is incarcerated in order to preserve his right to collect benefits when he is released.” Id. at 610.
Hart submits that he should be allowed the opportunity to prove at trial that the medical benefits that he seeks to be provided by the appellees are reasonable and necessary under La.R.S. 23:1203. While he concedes that he will have to forfeit those benefits while he remains incarcerated, he argues that “he should not be denied access to the [c]ourt to establish his right to such benefits.” Hart further submits that to allow prescription to run on an inmate’s workers’ compensation claim during his incarceration, without interruption, while prohibiting the inmate from pursing a claim for compensation benefits would unconstitutionally deny that inmate’s access to the courts during his imprisonment, a situation that was frowned upon by the supreme court in Clark v. Mrs. Fields Cookies, 97-397 (La.1/21/98), 707 So.2d 17.
Appellees seek to distinguish Gobert on the grounds that the employer did not file an exception of prematurity in that matter. “A suit is premature if it is brought before the right to enforce it accrues.” Jefferson Door Co., Inc. v. Cragmar Const., L.L.C., 11-1122, p. 3 (La.App. 4 Cir. 1/25/12), 81 So.3d 1001, 1004, writ denied, 12-454 (La.4/13/12), 85 So.3d 1250 (emphasis added). Because the focus in both this case and in Gobert was whether the claimant has a current “right to file his cause of action” to preserve his right to collect benefits upon his release from incarceration, we conclude that the fact |4that the employer in Gobert did not file an exception of prematurity amounts to a distinction without a difference. Gobert, 13 So.3d at 611.
For the reasons expressed in Gobert, 13 So.3d 608, we conclude that the WCJ erred in sustaining the appellees’ exception of no cause of action and/or right of action. Moreover, we find implicit in the Gobert holding that if an incarcerated claimant has a present right to file a cause of action to preserve his right to later collect indemnity benefits should he still be otherwise entitled to them upon his release from incarceration, his claim is not premature. Thus, the WCJ also erred in sustaining the appellees’ exception of prematurity.

Hart, 127 So.3d at 1055-56 (footnotes omitted) (second and third alterations in original)

We find that this rationale concerning access to the court applies to the exception of no cause of action before us. Louisiana Revised Statutes 23:1201.4, entitled “Forfeiture of benefits while incarcerated; exclusions; medical expenses,” provides, in pertinent part, as follows:

A. Except as provided in Subsection B of this Section, the employee’s right to compensation benefits, including medical expenses, is forfeited during any period of incarceration, unless a workers’ compensation judge finds that an employee has dependents who rely on a compensation award for their support, in which case said compensation shall be made payable and transmitted to the legal guardian of the minor dependent or other person designated by the workers’ compensation judge and such payments shall be considered as having been made to the employee. After release from incarceration, the employee’s right to claim compensation benefits shall resume. An employee who is incarcerated but is later found to be not guilty of felony criminal charges or against whom all felony charges have been dismissed by the prosecutor shall have the prescriptive period for filing a claim for benefits under this Chapter extended by the number of days he was incarcerated.

“The words of a law must be given their generally prevailing meaning.” La.Civ. Code art. 11. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. It is clear from a reading of this statute that all benefits are ^forfeited during a period of incarceration, including medical expenses. It is also abundantly clear that the statute provides a unilateral exception to this forfeiture when an incarcerated employee has “dependents who rely on a compensation award for their support.” The statute in no way limits the exception to indemnity benefits only, as suggested by HOTI. Had the legislature intended to limit the exception to indemnity benefits alone, the statute would surely indicate such a limit on the exception.

Moreover, reading the statute as HOTI suggests would render it absurd, as an incarcerated employee with dependents would be prevented from medically proving his dependents were entitled to indemnity benefits subject to the exception. This would be particularly egregious in this case, where it is HOTI challenging Mr. Hart’s disability status, rather than him seeking benefits, insofar as it would rob him of his ability to defend the statutorily-protected benefits that have been extended to his child or place the cost of the medical evaluation at the feet of the state, rather than the employer bringing the current action. While he cannot collect workers’ compensation benefits while he is incarcerated, Mr. Hart should not be denied access to the medical evidence required to establish his dependent’s right to benefits under La.R.S. 23:1201.4, and he must be allowed to defend his claim in order to preserve his dependent’s right to collect those benefits. The pleadings filed by Mr. Hart state that he has a claim for medical benefits under La.R.S. 23:1201.4 because he has a minor son. Those pleadings clearly state a cause of action. The workers’ compensation judge erred in granting the exception of no cause of action.

IfiFor the above reasons, we reverse the decision of the workers’ compensation judge and remand this case for further proceedings. Costs of this appeal are hereby assessed against HOTI and the Gray Insurance Company.

REVERSED AND REMANDED.

      . HOTI stopped paying Mr. Hart indemnity benefits after his incarceration, but continued paying the guardian of his minor child $137.50 bi-weekly through the Louisiana Department of Family Services, pursuant to a "Notice to withhold Income for Child Support.”


author: CONERY, Judge.

text:
    Brenna Ash MILLER, et al. v. ACADIAN AMBULANCE SERVICE, INC., et al.
    No. CA 13-1269.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Robert J. David, Walter C. Morrison, IV, Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., New Orleans, Louisiana, for Plaintiff/Appellant: Brenna Ash Miller, et al.
    Clint Pierson, Pierson Law Firm, Cov-ington, Louisiana, for Plaintiff/Appellant: Brenna Ash Miller, et al.
    Charles J. Foret, Briney & Foret, Lafayette, Louisiana, for Defendant/Appellee: Northshore EMS, LLC.
    Nadia de la Houssaye, Jones Walker, LLP, Lafayette, Louisiana, for Defendant/Appellee: Acadian Ambulance Service, Inc.
    James D. “Buddy” Caldwell, Attorney General, Luke Lancaster, Assistant Attorney General, Louisiana Department of Justice, New Orleans, Louisiana, for Defendant/Appellee: State of Louisiana, et al.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   CONERY, Judge.

hBrenna Ash Miller, individually, as the duly appointed guardian of the minor child, Skyler Miller, and the individual authorized to make the claim on behalf of the Estate of Richard A. Miller, Jr., (“Miller”) appeals the judgment of the trial court dismissing her lawsuit without prejudice. Acadian Ambulance Service, Inc. (“Acadi-an”), Louisiana Emergency Response Network (“LERN”), and Medical Center of Louisiana at New Orleans now known as Interim LSU Public Hospital, (“Interim LSU”), filed an exception of prematurity which the trial court granted, finding that the Millers’ claim is governed by the Louisiana Medical Malpractice Act (“LMMA”), La.R.S. 40:1299.41^8 and must first be presented to a Medical Review Panel (“MRP”) for a determination prior to filing a lawsuit in district court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 28, 2011, Richard A. Miller, Jr. (“Mr. Miller”) was involved in a serious motorcycle accident in Washington Parish. The Northside Emergency Medical Service (“Northside”) responded to a 911 call and transported Mr. Miller to the Riverside Medical Center (“Riverside”) where he was attended to by Dr. Barbara Cohn and other Riverside Emergency Room personnel.

Dr. Cohn determined that Mr. Miller’s condition was critical. As a result of the accident, he had sustained extensive internal injuries, which included lacerations of the lung, heart, and kidney, extensive blood loss, multiple fractures, and a flail chest, which is a crushing chest injury due to the fracture of several ribs.

In Dr. Cohn’s opinion, Mr. Miller’s critical medical condition required her to contact LERN, as Riverside did not have the necessary level of medical resources to properly treat Mr. Miller’s injuries. Dr. Cohn’s call to LERN was the|2first step in initiating the procedure to have Mr. Miller transported to a trauma facility equipped to treat Mr. Miller’s extensive injuries.

LERN was designed to serve as the clearing house for all of the resources of each medical facility and to determine which facility is best equipped to treat a particular patient’s condition. The LERN dispatch center is staffed with a trained paramedic who receives the incoming calls, and based on the information provided from the transferring health care provider, LERN makes a determination as to the appropriate trauma facility to treat the injured patient.

The LERN dispatcher informed Dr. Cohn that Mr. Miller should be transferred to Interim LSU. A call was then placed by a member of the Riverside staff at 5:36 p.m. to Acadian to request that a helicopter be dispatched to Riverside in order to transport Mr. Miller to Interim LSU.

The recorded telephone conversation between Riverside and Acadian reflects that Riverside was informed that due to a required crew change and the need for refueling of its helicopter, it would be an hour to an hour and fifteen minutes before Aca-dian could respond and arrive at Riverside to transport Mr. Miller. The Riverside staff member indicated to the Acadian dispatcher that if this period of time was not acceptable to Dr. Cohn, he would call back. No call canceling the helicopter transportation of Mr. Miller was received, and the Acadian helicopter arrived at Riverside at 7:08 p.m., some seventeen minutes after the anticipated arrival time.

Once the determination by LERN was made to transport Mr. Miller to Interim LSU, Dr. Cohn began the testing on Mr. Miller required by Interim LSU |sprior to his transport by Acadian. Upon arrival at Riverside, Acadian was not permitted to immediately transport Mr. Miller as the testing required by Interim LSU was not complete. Once the testing was completed, Mr. Miller was cleared for transport at 7:40 p.m., thirty-two minutes after Acadi-an’s arrival at Riverside.

Mr. Miller was taken to the aircraft by Riverside personnel and Acadian’s EMT/paramedic Kimberly Wesley (“Wesley”). Mr. Miller was loaded and secured for takeoff. Wesley provided constant critical care monitoring and medical treatment throughout the transport, which included placing Mr. Miller on a ventilator and suctioning his chest tube. Mr. Miller’s condition rapidly declined right before the helicopter landed in New Orleans near the Superdome, as Interim LSU did not have a helicopter landing pad and the Super-dome site was the closest landing pad to Interim LSU.

Mr. Miller was then transported by ambulance to Interim LSU, with the ambulance staff continuing to attempt to maintain Mr. Miller’s medical status. Mr. Miller unfortunately died at approximately the same time as his arrival at Interim LSU at approximately 8:12 p.m.

On December 27, 2012, the Millers timely filed a medical malpractice complaint with the Division of Administration and the Louisiana Patient’s Compensation Fund, naming Interim LSU, LERN, and Acadian, the three health care provider defendants before this court on appeal.

On December 27, 2012, the Millers also filed a petition for damages in the Fifteenth Judicial District Court, Parish of Lafayette naming LERN and Acadian as defendants. The Millers’ “First Supplemental and Amending Petition for Damages,” filed on April 2, 2013, added three other health care providers as 14defendants, Interim LSU, Northside EMS, LLC, Barbara Cohn, M.D., and her insurer, Proassurance Specialty Insurance Company (“Proassurance”).

All health care provider defendants, except Northside, filed dilatory exceptions of prematurity in response to the Millers’ petitions. Each asserted they were qualified health care providers pursuant to the LMMA, La.R.S. 40:1299.39 & 40:1299.41. As qualified health care providers under the LMMA, providing medical care to Mr. Miller, each claimed to be entitled to have the Millers’ claims dismissed without prejudice pending review and notification of an opinion by the MRP, pursuant to La.R.S. 40:1299.47(A)(2)(a) & (B)(l)(a)(i). In granting the health care provider defendants’ exceptions, the exceptors assert that the Millers would not be prejudiced, as under the LMMA prescription is suspended in state district court until the MRP sends notification of its opinion, following which the Millers would have ninety days to file suit in state district court.

A hearing was held on the health care defendants’ exception of prematurity on July 22, 2013. At the beginning of the hearing, the dilatory exception of prematurity filed by Dr. Barbara Cohn and her insurer, Proassurance, was granted by the trial court without opposition, and the Millers’ claims as to these defendants were dismissed without prejudice in a separate judgment signed by the trial court on July 22, 2013. The dismissal of Dr. Cohn and her insurer is not subject to this appeal.

The hearing on Acadian, LERN, and Interim LSU’s exceptions of prematurity continued with oral argument, after which the trial court took the matter under advisement. The trial court issued its written reasons for judgment on July 26, 2013, and granted the exceptions of prematurity dismissing the Millers’ claims without prejudice for the three remaining health care provider defendants, |fiAcadian, LERN, and Interim LSU. A judgment reflecting the trial court’s ruling was signed on August 15, 2013, and is the source of the Millers’ timely appeal to this court.

ASSIGNMENT OF ERROR

The district court erred by granting Acadian, LERN, and Interim LSU’s Dilatory Exceptions of Prematurity and dismissing Appellant’s case.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 926(A)(1) contains the dilatory exception of prematurity, which “questions whether the cause of action has matured to the point where it is ripe for judicial determination.” Spradlin v. Acadia-St. Landry Med. Found., 98-1977, p. 4 (La.2/29/00), 758 So.2d 116,119. Louisiana Code of Civil Procedure Article 423 provides in pertinent part, “When an action is brought on an obligation before the right to enforce it has accrued, the action shall be dismissed as premature, but it may be brought again after this right has accrued.”

Louisiana Revised Statutes 40:1299.47(A) requires review by a medical review panel for any qualified health care provider covered under the Medical Malpractice Act. The statute further provides, “No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to the Section.” La.R.S. 40:1299(B)(l)(a)(i).

The Louisiana Supreme Court has emphasized that the Louisiana Medical Malpractice Act’s “limitations on tort liability for a qualified health care provider | 6apply strictly to claims ‘arising from medical malpractice,’ La.Rev.Stat. 40:1209.4(1), and that all other tort liability on the part of the qualified health care provider is governed by general tort law.” Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-451, p. 5 (La.12/1/04), 888 So.2d 782, 786.

We conduct a de novo review of the trial court’s grant of the dilatory exception of prematurity as the issue of whether a claim sounds in medical malpractice involves a question of law. Eldridge v. Heritage Manor, L.L.C., 06-718 (La.App. 3 Cir. 11/02/06), 942 So.2d 743. The burden of proof is on the moving parties, in this case the defendant health care providers, to show that each is entitled to a medical review panel because the allegations made by the claimant fall within the LMMA. Williamson, 888 So.2d 782.

When a dilatory exception of prematurity is raised, La.Code Civ.P. art. 930 allows the introduction of evidence at the contradictory hearing on the exception to “support or controvert any of the objections pleaded.” If evidence is admitted at the hearing, and in this case, evidence submitted by Acadian was admitted -without objection by the Millers, “the exception must be resolved on the evidence presented, rather than on the allegations in the petition.” SteriFx, Inc. v. Roden, 41,383, p. 4 (La.App. 2 Cir. 8/25/06), 939 So.2d 533, 536.

Louisiana Revised Statutes 40:1299.41(A)(13) defines medical malpractice as:

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

17Louisiana Revised Statutes 40:1299.41(A)(22) & (9) further defines the terms of tort and health care pursuant to the LMMA as follows:

“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill. “Health care” means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.

It is undisputed that Acadian, LERN, and Interim LSU are all qualified health care providers pursuant to La.R.S. 40:1299.39. Based on the requirements stated above, the supreme court in Coleman v. Deno, 813 So.2d 303, 315-16 (La.2002), set forth six factors in making a determination of whether certain conduct by a qualified health care provider constitutes “malpractice,” as defined under the LMMA:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
(3) whether the pertinent act or omission involved assessment of the patient’s condition,
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
(5) whether the injury would have occurred if the patient had not sought treatment, and
(6) whether the tort alleged was intentional.

| ⅝Allegations Against the Health Care Providers

The trial court in its written reasons for ruling specifically addressed the issue at hand, whether or not the claims made by the Millers against all three health care providers, Acadian, LERN, and Interim LSU, were covered by the LMMA.

The Millers’ relevant allegations against Acadian are contained in paragraphs thirteen and fourteen of the petition and state as follows:

13.
Acadian did not respond in a reasonable [manner] to the request to transport Richard from Riverside to New Orleans as above described. The estimated 50 minutes to arrive at Riverside was unreasonably lengthy. Moreover, the actual 92 minutes it took for Acadi-an[’s] helicopter to arrive at Riverside was even more unreasonable. Additionally, Acadian did not inform LERN or Riverside personnel that such an inordinate period of time would have lapsed before arrival at Riverside.
14.
Acadian’s failure to provide reasonably expeditious helicopter service, and their failure to notify LERN and/or Riverside personnel of the time it would take to get to Riverside, ultimately resulted in Richard being denied timely medical care he needed which denial resulted in his death.

The relevant allegations in the Millers’ petition against LERN are as follows:

15.
LERN was created by the state of Louisiana to protect citizens of this state “against unnecessary trauma and time-sensitive related deaths and incidents of morbidity due to trauma....” As such, LERN was tasked to create a comprehensive, coordinated statewide system for access to regional trauma-patient care throughout the state. (R.S. 40:2841).
16.
LERN has created a network of hospitals and “Participating Pre-hospital Providers” (i.e., ambulance and EMS services) that result in LERN acting as a facilitator/dispatcher for placement of patients in need of emergency medical treatment for medical conditions. LERN functions as a database of the availability of medical resources at the various network hospitals. It also functions as a coordinator and dispatcher related to the transportation of such patients by directing where the patient should be transported.
_b.lL
In this matter, LERN was guilty of negligence in not ensuring that its contracted Pre-hospital Provider (North-shore EMS) communicated with LERN about Richard’s medical condition and needs from the scene of the accident. LERN was also negligent in taking an unreasonable amount of time to coordinate transportation of Richard once LERN had been notified of his medical condition and needs. LERN was also negligent in failing to track/monitor the transportation that was initiated with Acadian. Moreover, LERN was negligent in not altering the transportation method and/or destination in spite of the excessive delays especially in light of Richard’s extremely critical medical condition.
18.
The utter failures by LERN constitute gross negligence by LERN. LERN’s actions are especially egregious considering that their actions were exactly what LERN was created and tasked to prevent. The creation of LERN and delegating such far-reaching authority and responsibility has resulted in LERN being the focal point for coordinating placement and transportation of critically needy patients such that when it fails to properly function (as in this case) their negligence is willful, wanton and grossly in disregard for the safety of patients.

The relevant allegation against Interim LSU is as follows:

30.
University Hospital refused to allow decedent to be transferred to it, a facility that was capable of preforming the needed surgery, until it was sent the results of a diagnostic test, thus delaying the transfer process during this critical time, an action that caused and/or contributed to Mr. Miller’s death and that falls outside the ambit of Louisiana Medical Malpractice Act.

The trial court in its written reasons summed up the Millers’ contentions against the three health care providers and stated, “Plaintiff contends that the defendants’ failure to timely transport her husband to a medical facility equipped to treat his injuries was a factor that contributed to his death. The MMA expressly includes within its definition of malpractice the ‘failure to render services timely.’ La. R.S. 40:1299.41(A)(18).”

The trial court further stated, “[Djespite predicating her claims on a delay in rendering treatment, plaintiffs argue that the MMA does not apply, because the | indefendants were providing transportation services rather than medical treatment.” Like the trial court, we disagree with the Millers’ claims.

In reviewing the Millers’ petition and the medical records and recording of the telephone conversation between Riverside personnel and Acadian, it is clear that the actions of each of the health care providers before the court were intertwined. All were working in concert to attempt to provide the most expeditious medical treatment to Mr. Miller. It is undisputed that he was in very critical condition.

LERN and Interim LSU

The facts and allegations made by the Millers confirm that a medical determination had to be made by LERN in order to choose the most suitable medical facility to treat Mr. Miller’s injuries. The Millers argue in their reply brief, that neither LERN nor Interim LSU offered evidence at the hearing to establish they are entitled to the protections of the LMMA. This argument has no merit, as the allegations in the Millers’ petition clearly discuss the function of LERN, which was created to expedite the transfer of seriously injured patients to the medical facility best suited to treat the patient’s injuries.

Likewise, Interim LSU is a trauma center with the staff and facilities to treat seriously injured patients. The Millers’ petition alleges that although Interim LSU was capable of performing the necessary surgery on Mr. Miller, Interim LSU delayed his transport until diagnostic testing could be completed and sent to Interim LSU. Obviously, this testing is a medical determination designed to assist the personnel at Interim LSU in determining what type of surgeon and facilities would be required to treat Mr. Miller once he arrived. In addition, the testing was necessary to determine whether Mr. Miller was stable enough for the transfer to Intake place to Interim LSU, or whether the transport should be attempted as a last life-saving effort.

It is clear that both the determination made by LERN and the testing required by Interim LSU were medically related and will require review by the MRP in order to determine if their actions and the alleged delay breached the standard of care for an emergency network such as LERN and a hospital such as Interim LSU.

Acadian

The Millers specifically argue that the actions of Acadian are not medically related, but occurred between the time of the call from Riverside at 5:36 p.m. and their arrival at 7:08 p.m., some ninety-two minutes later, in excess of the fifty minutes they allege in their petition the Acadi-an helicopter was estimated to arrive. The recording of the telephone conversation submitted into evidence by Acadian reflects that the Riverside staff member who contacted Acadian for Dr. Cohn was informed that it would be at least an hour and fifteen minutes before Acadian could respond. The delay was due to the unavailability of a helicopter, which was on another mission and required a crew change and the need to refuel before departure for Riverside.

The recording also reflects that the Aca-dian dispatcher requested that the Riverside staff member contact Acadian if this time period was not acceptable to Dr. Cohn. No call was ever made to Acadian to cancel the helicopter and the Acadian helicopter arrived at Riverside at 7:08 p.m., some seventeen minutes later than originally anticipated.

Although Acadian arrived at 7:08 p.m., the Acadian personnel were unable to load and begin transport of Mr. Miller until 7:40 p.m., as the testing required by | ^Interim LSU was not complete. Unfortunately, Mr. Miller died upon his arrival at Interim LSU.

The Millers argued that Robinson v. Allen Par. Police Jury, 05-394, (La.App. 3 Cir. 12/30/05), 918 So.2d 535, writ denied, 06-233 (La.4/24/06), 926 So.2d 552, applied to this case. In Robinson a panel of this court found that the failure of Acadian to timely transport a patient due to a mechanical failure of a helicopter was not covered under the LMMA, because it was not “treatment related” or the result of a “dereliction of professional skill.” Robinson, 918 So.2d at 539.

The trial court correctly distinguished a mechanical failure from the circumstances where the only available helicopter was on another mission and would require a crew change and refueling before it could respond to transport Mr. Miller. The trial court then determined from the medical records submitted by Acadian that it was more expeditious to transport Mr. Miller by helicopter than to risk the trip across Lake Pontchartrain and the likely delays due to traffic congestion when they reached the city of New Orleans. The condition of the roads and the effects of a potentially rough ride on Mr. Miller’s condition were also considered. The trial court then found that the determination to wait for the helicopter was an exercise of medical judgment in light of Mr. Miller’s critical injuries.

The trial court in its ruling determined that all three of the health care providers’ medical decisions and actions taken on behalf of Mr. Miller were intertwined and cannot be separated for the purposes of the court’s analysis. We agree. Therefore, each health care provider is entitled to a review and opinion issued by a MRP to determine if the standard of care applicable to each was breached in the alleged delay of the treatment provided by all three health care | TSproviders prior to Mr. Miller’s death.

CONCLUSION

For the foregoing reasons, we affirm the ruling of the trial court granting the dilatory exceptions of prematurity filed on behalf of Acadian Ambulance Service, Inc., Louisiana Emergency Response Network, and Medical Center of Louisiana at New Orleans, now known as Interim LSU Public Hospital, dismissing without prejudice the claims of Brenna Ash Miller, Individually and as the duly appointed guardian of the minor child Skyler Miller, and the individual authorized to make the claim on behalf of the Estate of Richard A. Miller, Jr., pursuant to the LMMA. All costs of this appeal are assessed to Brenna Ash Miller.

AFFIRMED.

      . At the hearing on the exception, Acadian introduced into evidence the medical records and the recording of the initial telephone call between Riverside and Acadian concerning Mr. Miller's medical transportation to Interim LSU by Acadian, without objection from the Millers.

      . The trial court’s written reasons for judgment only reference the exceptions of prematurity filed by Acadian and LERN, however the judgment issued on August 15, 2013, also grants the exception of prematurity filed by Interim LSU and dismisses the Millers' claims against it as well.