author: SAUNDERS, Judge. AMY, J.,

text:
    Constance CORMIER v. REPUBLIC INSURANCE COMPANY, et al.
    No. 11-632.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 18, 2012.

      J. Lee Hoffoss, Jr., Claude P. Devall, and Donald W. McKnight Newman, Hof-foss & Devall, Lake Charles, LA, for Plaintiff Appellant, Constance Cormier.
    Todd Michael Ammons, Stockwell, Sie-vert, Viccellio, Clements & Shaddock, Lake Charles, LA, for Defendants/Appel-lees, Republic Insurance Company, Lamm Food Service, LLC, Ron J. Scott.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

|,The plaintiff sought damages stemming from an automobile accident for which the defendant stipulated liability. The plaintiff sought damages from an automobile accident for which defendant stipulated fault. A jury determined damages and awarded medical expenses, loss of past wages, and damages for pain and suffering. The plaintiff appeals, seeking awards for disability and loss of enjoyment of life and also requesting an increase in pain and suffering damages. For the following reasons, we affirm in part, reverse in part, and render.

Factual and Procedural Background

Constance Cormier filed this personal injury matter following an August 26, 2008 automobile accident. At the time of the accident, Ms. Cormier was stopped behind a refrigerated truck when the truck shifted into reverse, striking the front of Ms. Cor-mier’s vehicle. Several hours later, Ms. Cormier reported to the emergency room. The emergency room records reveal complaints of pain to the left neck, shoulder, and upper arm areas. She was provided pain medication at that time.

Ms. Cormier initially pursued chiropractic treatment for her complaints and, ultimately, began treatment with Dr. Clark Gunderson, an orthopedic surgeon. Dr. Gunderson’s records reveal that Ms. Cor-mier complained of left neck, shoulder, and knee pain, as well as lower back pain. Dr. Gunderson initially diagnosed Ms. Cormier as having a cervical and lumbar straining injury. He prescribed physical therapy to address the symptoms. Later, however, diagnostic testing ordered by Dr. Gunder-son revealed a disc protrusion at the C5-6 level and narrowing at the C6-7 level. While some of Ms. Cormier’s complaints improved during her early treatment, she continued to report headaches, neck, and arm pain. After a steroid injection did not resolve Ms. Cormier’s pain, Dr. Gunderson performed a Rdiscectomy and fusion at the C5-6 and C6-7 levels in July 2009. Thereafter, Ms. Cormier’s complaints of pain improved. However, she continues to experience pain and weakness.

Ms. Cormier filed this matter, seeking damages related to the accident. She named the driver of the refrigerated truck as a defendant, as well as Lamm Food Service, LLC, and its insurer, Republic Insurance Company. The matter proceeded to a jury trial, with the defendants stipulating that the defendant driver was at fault in the accident when he stepped on the accelerator after the truck was knocked into reverse. They also stipulated that Lamm Food was insured by Republic at the time of the accident.

After the remaining issues were submitted to the jury, primarily the extent of Ms. Cormier’s injuries, the jury determined that the defendants’ actions were a legal cause of Ms. Cormier’s injuries. It awarded Ms. Cormier $77,781.10 in past medical expenses and $13,985.40 in past income lost. As for general damages, the jury awarded $25,000.00 for “past mental and physical pain and suffering, discomfort, anxiety, distress, disfigurement, and inconvenience,” and $35,000.00 for “future mental and physical pain and suffering, discomfort, anxiety, distress, disfigurement, and inconvenience.” The jury denied awards for disability and loss of enjoyment and quality of life.

Ms. Cormier appealed the jury’s award, questioning the quantum of the awards for past and future pain and suffering. She also asserts that the jury erred in failing to make awards for disability and loss of enjoyment and quality of life.

Discussion

Past and Future Pain and Suffering

We first address Ms. Cormier’s contention that the $25,000.00 awarded for past pain and suffering and the $35,000.00 awarded for future pain and suffering 13was inadequate. She argues that this collective $60,000.00 award is well below what was required by the record in light of the jury’s obvious acceptance of the causation between the accident and her injuries. She instead suggests that reference to other cases merits a significant increase in the damages awarded in this area.

Louisiana Civil Code Article 2324.1 provides that: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” The supreme court has described this discretion as “vast” and “such that an appellate court should rarely disturb an award.” Howard v. Union Carbide Corp., 09-2750, p. 5 (La.10/19/10), 50 So.3d 1251, 1255-56 (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993)). Thus, in reviewing an award of general damages, an appellate court reviews the exercise of discretion by the trier of fact rather than determining what it considers an appropriate award. Id.

Only after a determination that the trier of fact abused this vast discretion does an appellate court reference prior awards. Id. (citing Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976)). Even then, it makes such reference only for the purpose of determining the highest or lowest point which is reasonably within the trier of fact’s discretion.

After review of this record, we find no abuse of discretion in the jury’s collective award of $60,000.00 for pain and suffering. This figure acknowledges that Ms. Cormier sustained injuries of such a nature as to warrant a two-level cervical fusion almost one year following the accident. During that time, Ms. Cormier was unable to work as a cashier, as revealed in the loss of wages award. However, reference to the medical records, both before and after the surgery, indicate that, while Ms. Cormier suffered from headaches and pain generally in the |4neck, shoulder and arms, the pain was not so great as to require a greater award. Instead, Ms. Cormier demonstrated improvement throughout and, generally, demonstrated a preference to not take the pain medication prescribed for her condition. Dr. Gunderson’s office notes for Ms. Cormier’s post-surgery office visits show improved complaints, although obviously not an elimination of all complaints. When questioned at trial regarding the effectiveness of the surgery, Dr. Gunderson explained that “[tjhis lady did very, very well.” He stated that, according to his discharge summary, she reported “significantly reduced arm pain.” When describing Ms. Cormier’s post-surgical visits, he explained that within one week, her wound had healed and that she had no arm pain and “had relief of her headaches.” He noted that this was the first time he had seen Ms. Cormier smile. When she returned in mid-August, Ms. Cormier told him that “she had no headaches, she was much better than prior to her surgery. She had normal strength in her arms. Again she was smiling.” Furthermore,

X-rays showed progression of her fusion, and she came back one more time on 9-30-09. She was three months post-operative. Only occasional neck pain. Her wound was healed. She had good strength. Her fusion was solid and I told her she could go back to full duty, and actually I saw her one more time on 12-11-09 for a follow-up x-ray and her fusion was solid and I discharged her.

Given this steady trend of improvement and the evidence regarding Ms. Cormier’s positive result from surgery, we find no abuse of the jury’s discretion in assessing $60,000.00 for both past and future pain and suffering. Because we find no abuse of the jury’s discretion, the standard of review does not permit reference to prior awards for similar injuries. See Coco, 341 So.2d 332.

This assignment of error lacks merit.

Disability & Loss of Enjoyment of Life and Quality of Life

| fiMs. Cormier also contends that the jury erred in failing to award her a separate general damage award for disability. She contends that this award is necessitated not only by testimony regarding Ms. Cormier’s ongoing complaints, but by Dr. Gunderson’s testimony indicating that Ms. Cormier had a “15% permanent-partial impairment to the body” in light of the cervical fusion.

Disability is awardable as an element of general damages. Wood v. American Nat. Prop. & Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1 So.3d 764. In this case, Dr. Gunderson provided testimony regarding Ms. Cormier’s disability. When asked to describe the anatomic disability rating assigned to Ms. Cormier, Dr. Gunderson explained: “[tjhere are impairment ratings. They’re anatomic impairment ratings. They’re hard for lay people to understand, but there are books published and in this case she would have a 15% permanent-partial impairment to the body as a whole and that’s an anatomic basis.”

When asked about Ms. Cormier’s limited range of motion following the surgery, Dr. Gunderson stated that: “Two of her fusions are — two of her discs are fused, so they’re not going to move, so there’s going to be reduced motion.” He remarked that residual pain in the neck and arm, as reported by Ms. Cormier, and an occasional weakness in the left hand are not unusual following this type of procedure.

Next, we will analyze Ms. Cormier’s contention that the jury abused its discretion in failing to award her general damages for loss of enjoyment and quality of life. In McGee v. AC & S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770, the supreme court explained that loss of enjoyment of life is awardable for detrimental alterations to a plaintiffs life or lifestyle or his or her inability to participate in the activities or pleasures of life that were enjoyed before the injury. Ms. Cormier argues that, in her case, the jury erred in failing to consider the impact |nthat her post-surgery limitations have had and will have on her in light of limitations inherent in her pre-existing hearing impairment. In the appellant’s brief, Ms. Cormier’s counsel contends that many routine tasks, such as housework, were unusually important to Ms. Cormier’s pre-injury lifestyle because they provided her with a feeling of independence. However, counsel argues, Ms. Cormier’s ability to perform these tasks is now limited. Ms. Cormier’s counsel also points to testimony from Ms. Cormier’s mother, who explained to the jury that her daughter does not socialize as frequently as before the accident and, also, that she becomes more easily aggravated in light of her physical limitations.

Given the uncontroverted testimony of Dr. Gunderson and the testimonies of Ms. Cormier and her mother, we find that the jury abused its discretion in failing to award Ms. Cormier damages for her resulting disability and her loss of enjoyment and quality of life. As such, we reverse the portion of the jury’s verdict that failed to award Ms. Cormier damages for her disability and her loss of enjoyment and quality of life.

Having found an abuse of discretion by the jury on these two elements of general damages, we must now decide the lowest reasonable award under the circumstances present in this case.

[A]n examination of prior awards has a limited function if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries.

Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

The jury in this case awarded Ms. Cor-mier a total of $60,000.00 for her general damages. Our review of the case law is that the lowest reasonable amount |7to award Ms. Cormier in general damages for her injuries is $110,000.00. See Bellard v. American Central Ins. Co., 07-1335, 07-1399 (La.4/18/08), 980 So.2d 654, where our supreme court raised an award of $50,000.00 for general damages to $250,000.00 (later reduced by an offset of $50,000.00 that had already been paid to the plaintiff by an insurer) for a plaintiff that underwent four surgeries including a cervical fusion; Dauzat v. Canal Ins. Co., 96-1261 (La.App. 3 Cir. 4/9/97), 692 So.2d 739, where this court awarded $100,000.00 to a plaintiff that underwent a two-level cervical fusion.; and Fox v. Texaco, Inc., 97-2126 (La.App. 1 Cir. 11/6/98), 722 So.2d 1064, where the first circuit noted that its independent review of cases involving cervical fusions revealed monetary damages from $85,000.00 to $300,000.00 in general damages.

Accordingly, we render that Ms. Cormier is entitled to $50,000.00 for her disability and loss of enjoyment and quality of live. This results in a total general damage award to Ms. Cormier of $110,000.00, the lowest reasonable amount given her injuries.

DECREE

For the foregoing reasons, the judgment of the jury is affirmed in awarding Constance Cormier $60,000.00 for her past and future pain and suffering. The jury’s judgment is reversed wherein it failed to award Constance Cormier damages for her resulting disability and loss of enjoyment of life and quality of life. After careful consideration of the record, we render that Constance Cormier is awarded $50,000.00 for her resulting disability and loss of enjoyment of life and quality of life. This results in a total general damage award to Constance Cormier of $110,000.00, the lowest reasonable award considering her injuries. All costs of this proceeding are assessed to the appellees, Republic Insurance Company, Lamm Food Service, LLC, and Ron J. Scott.

[¡AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

PETERS, J., concurs in the result.

AMY, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

hi largely agree with the majority opinion. However, I respectfully dissent from the opinion insofar as it reverses the jury’s determination that the plaintiff failed to sustain her burden of proving entitlement to damages for disability and loss of enjoyment of life. Given the evidence presented, I find that a full affirmation is warranted.

As for the plaintiffs disability claim, Dr. Gunderson explained that Ms. Cormier had a “15% permanent-partial impairment to the body” in light of the cervical fusion. However, he spoke only generally regarding disability, testifying that impairment ratings are “hard for lay people to understand, but there are books published and in this case she would have a 15% permanent-partial impairment to the body as a whole and that’s an anatomic basis.” Dr. Gunderson further briefly explained that, due to the fusion of the plaintiffs discs, “they’re not going to move, so there’s going to be reduced motion.” However, this is the limit of the evidence presented to the jury as to disability. Importantly, the plaintiff lacked explanation as to how such a disability rating would impact her future. With regard to the question of limited range of motion and the plaintiffs complaints of residual neck and arm pain, along with occasional weakness in the left hand, I point out that the jury awarded a separate amount for “future mental and physical pain and suffering, discomfort, anxiety, distress, disfigurement, and inconvenience.” For these treasons, I believe that the jury permissibly determined that the plaintiff did not prove entitlement to a distinct disability award.

Neither do I find error in the jury’s rejection of the plaintiffs claim for loss of enjoyment of life and quality of life as a separate element of damages. Ms. Cormier argues that the jury erred in failing to consider the impact that her post-surgery limitations have had and will have on her life in light of pre-existing limitations due to her hearing impairment. However, the evidence in this regard was not so compelling as to require a separate award on this element of damages. Instead, I believe that the jury could have discounted testimony in this regard and could have further considered evidence regarding a social media website wherein Ms. Cormier positively reported her social activities without reference to limitations from her surgery. Thus, I would not disturb the jury’s determination as to this claim. See, e.g., Guillory v. Lee, 09-0075 (La.6/26/09), 16 So.3d 1104.

For these reasons, I would affirm the underlying judgment in full.

      . Ms. Cormier testified at trial with the assistance of a sign language interpreter.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Wilcy Ernest MONCEAUX, Sr.
    No. 12-599.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.

      Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Wiley Ernest Monceaux, Sr.
    Michael C. Cassidy, District Attorney, Thirty-First Judicial District, Stacey C. Naquin, Assistant District Attorney, Jennings, LA, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

hln this criminal case, Defendant, Wiley Ernest Monceaux, Sr., pled guilty to the offense of attempted manslaughter and was sentenced to twenty years at hard labor. He appeals, alleging excessive sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 12, 2009, officers with the Lake Arthur Police Department responded to a call stating that Defendant was beating his ex-wife, Lucinda Monceaux, and that he had a gun. Upon arriving at the scene, the officers questioned witnesses, who advised that Defendant had beaten up his ex-wife and fled the scene.

Officers found Lucinda bleeding from the nose, with a cut above her eye, a busted lip, and a bruised and swollen face. She was sent to the hospital by ambulance. Also at the scene was Edgar Lavergne, a next door neighbor, who had intervened and fought with Defendant and had likewise been beaten up. He stated that he was able to wrestle a .22 caliber pistol from Defendant and discard it.

After a search, the officers located Defendant at his home with both wrists slit and bleeding profusely from both arms. He was also taken to the hospital.

Lucinda gave a statement that Defendant showed up at her rental property where she was mowing the grass. He approached her and hit her in the face, knocking her to the ground. He continued to hit and kick her. Then, he pulled out a gun, put it between her eyes, and pulled the trigger twice. Luckily, the gun malfunctioned and did not fire. She stated that her neighbor, Mr. Lavergne, came over and interceded on her behalf, which allowed her to get away from Defendant. |2Two prospective renters of Lucinda’s property were there and also witnessed the occurrence. Lucinda had previously procured a protective order which was in effect at the time of this occurrence.

On September 4, 2009, the State filed a bill of information charging Defendant with attempted first degree murder. Defendant entered a plea of not guilty by reason of insanity. On October 17, 2011, Defendant entered a plea of guilty to the amended charge of attempted manslaughter, a violation of La.R.S. 14:27 and La. R.S. 14:31. On March 28, 2012, a sentencing hearing was held wherein statements were read and the trial court heard testimony and argument. On April 2, 2012, the trial court sentenced Defendant to twenty years at hard labor, and Defendant lodged this appeal.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

[The] [t]rial court erred in imposing the maximum [twenty]-year sentence against a first-time felony offender with no criminal history and a[n] uncontro-verted medical condition at the time of the offense of Alzheimer’s and paranoid psychosis who had been discharged from a VA hospital a mere three days before the offense.

DISCUSSION

Defendant pled guilty to attempted manslaughter. According to the manslaughter statute, “[wjhoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” La.R.S. 14:31(B). According to the attempt statute, “[whoever attempts to commit any crime shall be punished ... in the same manner as for the offense attempted ... [except that] such ... imprisonment shall not exceed one-half of ... the longest term of imprisonment | .^prescribed for the offense.... ” La.R.S. 14:27(D)(3). Therefore, the trial court gave Defendant the maximum sentence provided by law for attempted manslaughter.

Defendant, in brief, contends that his sentence is excessive, considering his medical condition and the fact that he is a first felony offender.

In discussing maximum sentences, this court stated in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion. State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”
|/‘Generally, maximum sentences are reserved for those cases that involve the most serious violations of the offense charged and the worst type of offender.” State v. Jones, 05-735, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, 1116.

State v. Maze, 09-1298, pp. 2-3 (La.App. 3 Cir. 5/5/10), 36 So.3d 1072, 1074-75.

At the sentencing hearing, the trial court gave sufficient, explicit, and extensive reasons justifying the twenty-year maximum sentence given to Defendant, stating (emphasis added):

You pled guilty of [sic] the crime of attempted manslaughter, which normally carries with it a possible sentence of imprisonment, at hard labor with the Department of Corrections, for not more than twenty (20) years.
The Pre-Sentence Investigation indicates that you’re sixty-five (65) years of age, born on March the 20th, 1947. You’re currently divorced, having been married once to Lucinda Gaspard in 1971. You have four (4) children from this marriage. You were divorced in 2011. You attended school in Lake Arthur, Louisiana, and you graduated from high school in 1966. After graduating, you joined the United States Navy; however, you were later discharged due to health problems. Prior to your arrest, you were employed in the construction field, and you retired from the Jefferson Davis Parish School Board for whom you worked as a maintenance supervisor for twenty-two (22) years.
The Pre-Sentence Investigation states that you do not have a juvenile criminal history. You have another arrest for false imprisonment with a weapon to which you pled guilty on October 17th, 2011. The sentencing of false imprisonment is also set for today.
According to the Pre-Sentence Investigation, on August the 12th of 2009, Lake Arthur police officers were dispatched to a home in Lake Arthur after a witness reported that you were beating your wife and had a gun in your possession. When the police arrived, witnesses advised them that you had left to get another gun because your gun had misfired. The police called for an ambulance because Ms. Marceaux— Monceaux, excuse me, was bleeding from her nose and other facial injuries. The police officers went — then went to your residence to question you, but you had attempted to harm yourself by slitting — slitting your wrists. At that point, the police transported you to the hospital for treatment. During her interview, Mrs. Monceaux told the officers that you had hit her several times in the face and had pointed the gun between her eyes and threatened to kill her. She stated that you had pulled the trigger twice, but both times the gun misfired. A neighbor intervened, and Mrs. Mon-ceaux was able to get away. You were then arrested and charged with | ¡¡attempted first degree murder and other charges. On October 17th, 2011, after withdrawing your initial plea of not guilty by reason of insanity, you pled guilty to the amended charge of attempted manslaughter.
I am going to file the Pre-Sentence Investigation into the record for further reference, if necessary.
In reviewing the Pre-Sentence Investigation, the Court takes note of the fact that you are sixty-five (65) years of age. This has been taken into consideration in mitigating against imposition of the maximum sentence; however, the Court can find no other mitigating factors.
The Court takes note of the fact that the district attorney’s office initially charged you with attempted first degree murder, but you were allowed to plead guilty to the reduced charge of attempted manslaughter. There was testimony at the sentencing hearing as to your voluntary intoxication and your use of ephedrine at the time you — at the time you committed the offense, and that these facts should be taken into consideration when pronouncing your sentence. However, the Court finds that these factors were already considered when the district attorney’s office allowed the original charge to be reduced in return for your plea of guilty. The prosecution has ample evidence in this case that you demonstrated the offense was well-planned before the incident occurred despite your claims of incapacity. Furthermore, there was testimony from the victim that you had a history of domestic abuse against both your wife and your children going back several years which predated the incident at issue herein.
In addition, the Court takes note of several aggravating factors listed in Code of Criminal Procedure Article 894.1 that requires a lengthy term of imprisonment — excuse me, of incarceration. Your conduct during the commission of the offense manifested deliberate cruelty to the victim. You used actual violence in the commission of the crime. The offense resulted in permanent injury or significant economic loss to the victim or her family, and you used a dangerous weapon in the commission of the offense.
Your involvement in this criminal activity demonstrates to this Court that you — that you cannot live in society and that this community must be protected from you. You are certainly in need of correctional treatment in a custodial environment for — for a significant period of time. Anything less would deprecate from the seriousness of your offense, would not promote respect for the law, and not — and would not provide a just punishment for the crime of which you stand convicted. This Court has an obligation to protect the public from you and will do so by — by removing you from society.
| (¡Therefore, the Court sentences you to the Department of Corrections, State of Louisiana, to — to be imprisoned at hard labor for a period of time of twenty (20) years. The Court advises you that you have two (2) years from the date this conviction and sentence becomes final to apply for postconviction relief, and you will be — you will receive credit for time previously served, and the Court is going to order the Pre-Sentence Investigation filed into the record and sealed.

At the sentencing hearing, Defendant admitted the facts and occurrence of the incident. Contrary to Defendant’s assertions, the transcript of the sentencing hearing clearly indicates that the trial court did consider Defendant’s criminal history and medical condition at the time of the offense. Although Defendant is a first felony offender, his crime was vicious and very serious. Additionally, it is undisputed that Defendant inflicted domestic physical and mental abuse upon his ex-wife in excess of thirty years. In fact, there was a protective order in effect to protect the ex-wife at the time of the offense. Additionally, the record clearly indicates that this occurrence would have resulted in a completed homicide, as opposed to an attempt, but for the misfiring of the gun and intervention by the neighbor.

Defendant claims to have Alzheimer’s disease, but his expert, Dr. Lawrence Dilks, a neuropsychiatrist, testified at the sentencing hearing and only gave a diagnosis of “mild cognitive decline” — a precursor to Alzheimer’s disease. This was noted by the trial court in its sentencing.

Considering the factors leading up to and through Defendant’s commission of this offense and its companion charge, the benefit of allowing Defendant to plead down to the lesser offense of attempted manslaughter as opposed to attempted first degree murder and a potential fifty-year sentence therefor, and the mitigating factors alleged by Defendant, we find no manifest abuse of discretion by 17the trial court in sentencing Defendant to the maximum twenty years at hard labor for the lesser offense of attempted manslaughter.

DISPOSITION

Defendant’s sentence is affirmed.

AFFIRMED.

      . Defendant also pled guilty to a companion charge, false imprisonment with a weapon, which is the subject of a separate appeal.


author: McClendon, j.

text:
    IBERIABANK v. LIVE OAK CIRCLE DEVELOPMENT, L.L.C.
    No. 2012 CA 1636.
    Court of Appeal of Louisiana, First Circuit.
    May 13, 2013.

      Stephen P. Strohschein, E. Stewart Spielman, Baton Rouge, LA, for Plain-tiffiAppellee, Iberia Bank.
    Phillip W. Preis, Michael T. Bell, Baton Rouge, LA, for Intervenors/Appellants, Ruby Ann Harrell Walsh and RW Real Estate — Star Road Development, LLC.
    Janet S. Boles, Baton Rouge, LA, for Defendant/Appellee Edley H. Jones, III.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

|2Intervenors appeal a judgment of the district court granting an exception raising the objection of no cause of action and dismissing their intervention with prejudice. For the following reasons, we recognize that the intervenors have no right of action to intervene in the underlying exec-utory process proceedings, grant the exception raising the objection of no right of action, and dismiss intervenors’ action without prejudice.

FACTS AND PROCEDURAL HISTORY

Allen Walsh and John McClelland created various business entities (Walsh/MeClelland entities) to purchase real estate to develop condominiums. The Walsh/McClelland entities included Live Oak Circle Development, LLC, among others. The Walsh/McClelland entities borrowed funds from IberiaBank to purchase the real estate associated with the various entities. Allen Walsh and John McClel-land guaranteed these loans.

Allen Walsh and Ruby Walsh, husband and wife, owned other entities (Walsh/ Walsh entities) through which they made other real estate investments. The Walsh/ Walsh entities also borrowed money from IberiaBank to purchase the real estate acquired by their entities. These loans were guaranteed by Allen Walsh and Ruby Walsh.

The Walsh/McClelland entities and the Walsh/Walsh entities began experiencing financial difficulties due to a decline in the value of condominium properties, and the entities fell behind on a number of loan payments. To renegotiate various loans, the Walsh/McClelland entities and the Walsh/Walsh entities entered into a “Master Business Loan Agreement” with Iber-iaBank on September 30, 2010.

In the Master Business Loan Agreement, Ruby Walsh acknowledged and reaffirmed her guarantee as to the Walsh/ Walsh entities. Ruby Walsh also | ^provided a security interest “in and over certain real property owned by Ruby A. Walsh in Rankin County, Mississippi” as additional and new collateral securing the Walsh/Walsh entities’ obligations to Iberia-Bank.

Despite the Master Business Loan Agreement, the loans remained in default. Accordingly, the parties executed a “First Amended Master Business Loan Agreement” on June 14, 2011. In connection therewith, Ruby Walsh signed an “All-Encompassing Guaranty,” which Iberia-Bank asserts guaranteed all obligations owed by both the Walsh/Walsh entities and the Walsh/McClelland entities.

Because the loans remained in default, IberiaBank began executory proceedings in Louisiana. Specifically, at issue here, on May 14, 2012, IberiaBank filed a “Petition for Executory Process” in the 19th Judicial District Court, naming Live Oak Circle Development, LLC, a Walsh/McClelland entity, defendant. The district court issued a Writ of Seizure and Sale on May 16, 2003, ordering the seizure and sale of Live Oak’s condominium units.

Also, IberiaBank filed notices of intent to sell the Mississippi property. The Mississippi foreclosure is separate and distinct from the executory proceedings against Live Oak filed in the 19th Judicial District Court.

On June 1, 2012, Ruby Walsh and her company, RW Real Estate — Star Road Development, LLC, (Appellants) intervened in the above referenced executory process proceedings and filed a “Motion for Temporary Restraining Order, Preliminary Injunction and Suit for Damages,” naming IberiaBank as a defendant. Therein, Appellants sought to enjoin Iber-iaBank from selling the Mississippi property of Ruby Walsh or RW Real Estate, alleging that the property does not secure any obligations owed by the Walsh/McClel-land entities.

In response to the intervention, Iberia-Bank filed exceptions raising the objections of lack of subject matter jurisdiction, improper cumulation of actions, and no cause of action. IberiaBank urged that the 19th Judicial District Court Rlacked subject matter jurisdiction to enjoin the foreclosure proceedings in Mississippi, that the intervention sought to improperly cu-mulate the pending executory process proceedings with an ordinary proceeding, and that Appellants failed to state a cause of action.

At a hearing on the exceptions, the district court denied IberiaBank’s exception of lack of subject matter jurisdiction, finding that it had subject matter jurisdiction to address the validity of the loans. The district court then granted the exception raising the objection of improper cumulation of actions, and ordered the claims to be tried separately. Subsequently, the district court also granted IberiaBank’s exception of no cause of action, dismissing all claims set forth by Appellants with prejudice.

Appellants have sought review of the district court ruling granting IberiaBank’s exception of no cause of action. Iberia-Bank has answered the appeal contending that the district court erred in failing to grant its exception of lack of subject matter jurisdiction.

DISCUSSION

SUBJECT MATTER JURISDICTION

In answer to the appeal, Iberia-Bank asserts that the trial court lacked subject matter jurisdiction to consider the merits of the intervention. Subject matter jurisdiction is a threshold issue insofar a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. LSA-C.C.P. art. 3; Bordelon v. Dehnert, 99-2625 (La.App. 1 Cir. 9/22/00), 770 So.2d 433, 435, writ denied, 2000-2923 (La.3/19/01), 787 So.2d 995. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings based upon the object of the demand, the amount in dispute, or the value of the right asserted. LSA-C.C.P. art. 2. Subject matter jurisdiction cannot be waived by the parties, and the lack thereof can be recognized by the court at any time, with or without formal exception. LSA-C.C.P. arts. 3, 925; Bordelon, 770 So.2d at 435. Accordingly, we will address IberiaBank’s answer to the appeal first.

| JberiaBank concedes that there is no prohibition on a Louisiana court determining the legal rights and obligations between the parties to an action, and that a Louisiana court has the power to determine the validity of the loan agreements. See Dickerson v. Scott, 476 So.2d 524, 526-27 (La.App. 1 Cir.1985).

IberiaBank contends, however, that the district court lacks jurisdiction to enjoin the Mississippi foreclosure proceedings over Mississippi real property. Iberia-Bank urges that the power to enjoin such proceedings lies solely with a Mississippi court. IberiaBank notes that “judgments of one state cannot directly affect or determine title to immovable property.” Dickerson, 476 So.2d at 526. IberiaBank asserts that enjoining the Mississippi foreclosure would have a direct effect on the Mississippi immovable property. Iberia-Bank concludes that any judgment affecting a Mississippi immovable would be outside of the scope of any Louisiana court.

Essentially, Appellants seek injunctive relief preventing IberiaBank from taking any action to authorize the sale until the existence of the scope of the underlying obligation is determined. Because the relief sought seeks to enjoin IberiaBank from taking adverse action in Louisiana, we conclude that the district court did not err in denying IberiaBank’s exception raising the objection of lack of subject matter jurisdiction. Accordingly, IberiaBank’s assignment of error raised in its answer to the appeal is without merit.

CAUSE OF ACTION

IberiaBank also urges that Appellants, as a matter of law, have no cause of action to intervene in an executory proceeding. IberiaBank notes that Live Oak, the defendant in IberiaBank’s executory process action, had only two options to halt the seizure and sale of the property. Live Oak could have either sought an injunction or suspensively appealed the district court’s order of seizure and sale. LSA-C.C.P. art. 2642. IberiaBank notes that the defendant did neither and the property was sold.

IfilberiaBank avers that Appellants, as third parties, intervened in the Live Oak executory proceeding to assert an independent cause of action that was wholly unrelated to the seizure and sale of the Live Oak property. IberiaBank asserts that not only was that intervention an attempt to improperly cumulate an ordinary and executory proceeding, as the district court recognized, the intervention had no procedural foundation upon which to stand. IberiaBank avers that Appellants never claimed ownership of, a security interest in, or a privilege on the property such that an intervention was appropriate as authorized by LSA-C.C.P. art. 1092. IberiaBank concludes that absent a foundation upon which to intervene, the district court did not err in granting the exception raising the objection of no cause of action.

Because IberiaBank’s complaint is the lack of connexity between the intervention and the principal demand, the proper exception is one raising the objection of no right of action of the particular intervenors. Cf. Mid-South Car & Truck Rental v. Moore, 516 So.2d 1224, 1226 (La.App. 2 Cir.1987) (“If Crawford’s complaint is lack of connexity between the third party demand and the principal demand, ... the exception is not improper cumulation of actions or improper joinder of parties ..., but is the exception of no right of action of the particular third party plaintiff.”)

Although IberiaBank’s arguments have been addressed within the context of various exceptions, we look beyond the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceeding; thus, a pleading is construed for what it really is, not for what it is erroneously called. Rochon v. Young, 08-1349 (La.App. 1 Cir. 2/13/09), 6 So.3d 890, 892, writ denied, 09-0745 (La.1/29/10), 25 So.3d 824, cert. dismissed, -U.S.-, 130 S.Ct. 3325, 176 L.Ed.2d 1216 (2010). Moreover, the exception of no right of action may be noticed by the appellate court on its own motion. LSA-C.C.P. art. 927(B). As such, we address IberiaBank’s arguments within the context of the exception raising the objection of no right of action.

Interventions are provided for in LSA-C.C.P. art. 1091, as follows:

|7A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

Article 1091 and the cases construing it establish that an intervenor must have a justiciable interest in, and a connexity to, the principal action. Clark v. State, Dept. of Revenue, 02-0703 (La.App. 1 Cir. 5/9/03), 849 So.2d 700, 705. “[Justiciable right,” as it is used in the context of an intervention, has been defined as “the right of a party to seek redress or a remedy against either plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it.” Clark, 849 So.2d at 705 (quoting Amoco Production Company v. Columbia Gas Transmission Corporation, 455 So.2d 1260, 1264 (La.App. 4 Cir.), writs denied, 459 So.2d 542 (La.1984), 459 So.2d 543 (La.1984)).

It is well settled that an interve-nor takes the proceedings as he finds them. Strain v. Trinchard, 2005-1438 (La.App. 1 Cir. 6/9/06), 938 So.2d 1008, 1013. The intervenor cannot change the issue between the parties, and can raise no new one. He must take the suit as he finds it without raising issues between the defendant and the plaintiff that they have not themselves raised. Mike M. Marcello, Inc. v. Louisiana Gaming Control Bd., 04-0488 (La.App. 1 Cir. 5/6/05), 903 So.2d 545, 548. The intervenor’s rights are confined to joining or resisting either the plaintiff or the defendant, or to opposing both. LSA-C.C.P. art. 1091. The reason why the intervenor’s rights are so limited is because he always has his own remedy by a separate action to inject new issues. Mike M. Marcello, Inc., 903 So.2d at 548.

Appellants aver that the loan agreement is the subject of both the intervention and the primary action. Appellants also note that IberiaBank seeks to reserve claims against them for any deficiencies arising from the sale of Live | sOak’s assets. Appellants conclude that such connexity is sufficient to support an intervention.

We disagree. Appellants do not and have never sought to halt the seizure or sale of Live Oak’s property nor have they claimed that the executory process was deficient in any manner. Rather, Appellants sought to expand the scope of the executory proceedings by seeking a declaration of their rights under the various loan agreements, which expansion was not limited solely to Appellant’s relationship with Live Oak or the executory process at issue here. Clearly, Appellants attempted to inject new issues into the executory proceedings. Accordingly, because Appellants had no right to intervene in the executory proceedings to raise new issues, we grant the exception raising the objection of no right of action and dismiss Appellants’ intervention. Because the dismissal is not determinative of the merits of Appellants’ intervention, such dismissal is without prejudice. See LSA-C.C.P. arts. 1673 and 1841.

CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment denying the exception raising the objection of lack of subject matter jurisdiction and granting the exception raising the objection of improper cumulation of actions. We vacate the district court’s judgment granting the exception raising the objection of no cause of action. We recognize and grant the exception raising the objection of no right of action and dismiss the intervention filed by Ruby Walsh and RW Real Estate— Star Road Development, LLC without prejudice. Costs of this appeal are assessed equally between the parties.

JUDGMENT AFFIRMED IN PART; JUDGMENT VACATED IN PART; RENDERED.

HIGGINBOTHAM, J., concurs.

      . The other Walsh/McClelland entities include City View Condominiums, LLC and McWall Development, LLC.

      . These entities included Jeffersonian Condominiums, LLC and A & R Properties, LLC.

      . Edley H. Jones, III, the trustee of the Mississippi Deeds of Trust over the Mississippi property owned by Ruby Walsh and Star Road, was also named a defendant. Ruby Walsh and Star Road subsequently dismissed Mr. Jones from the litigation without prejudice.


author: KLINE, J.

text:
    Priscilla BROWN v. STATE of Louisiana, through the DEPARTMENT OF HEALTH AND HOSPITALS, Earl K. Long Medical Center.
    No. 2012 CA 1653.
    Court of Appeal of Louisiana, First Circuit.
    May 28, 2013.
    Ted Williams, Baton Rouge, LA, for Plaintiff/Appellant, Priscilla Brown.
    James D. “Buddy” Caldwell, Attorney General, Richard R. Ray, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellee, State of Louisiana through the Department of Health and Hospitals, Earl K. Long Medical Center.
    Before PARRO, WELCH, and KLINE, JJ.

      . Hon. William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   KLINE, J.

| ^Priscilla Brown appeals a final judgment of the Office of Workers’ Compensation (“OWC”) regarding the calculation of her temporary total disability benefits and the denial of her claim for penalties and attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2010, Priscilla Brown was employed by the State of Louisiana through the Department of Health and Hospitals (“DHH”) at Earl K. Long Medical Center (“EKL”). Ms. Brown was a full-time employee who worked 40 hours per week. Ms. Brown earned an hourly wage of $10.48, plus time and a half for any hours she worked over 40 hours per week. Claimant avers she worked an average of 43 hours per week in the four-week period before she suffered an injury by accident, on April 17, 2010, while in the course and scope of her employment with DHH. Claimant has received workers’ compensation temporary total disability (“TTD”) benefits since the April 17, 2010 accident at a rate of $296.95 per week, based on an average weekly wage of $445.42. Ms. Brown contends DHH miscalculated her average weekly wage, and she is, therefore, entitled to penalties and attorney fees. Ms. Brown believes benefits are payable to her in the amount of $310.91 per week, based on an average weekly wage rate of $466.36.

The trial of the claim was conducted on May 31, 2012. The disputed issues were limited to the calculation of the average weekly wage amount upon which Ms. Brown’s TTD benefits were based. The workers’ compensation judge (“WCJ”) held that DHH’s calculation of Ms. Brown’s TTD benefits at a weekly rate of $296.95, based on an average weekly wage of $445.42, was correct. The WCJ denied Ms. Brown’s claim for penalties and attorney fees. From that judgment, signed on June 15, 2012, Ms. Brown has instituted this appeal.

| ^STANDARD OF REVIEW

In a workers’ compensation case, the appellate court’s review of fact is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Harrison v. Auto King, 03-1620 (La.App. 1 Cir. 5/14/04), 879 So.2d 796, 799.

LAW AND DISCUSSION

Calculation of Average Weekly Wage

Claimant assigns error on the part of the WCJ for finding that the DHH calculation of her average weekly wage at $445.42, with a corresponding weekly TTD rate of $296.95, was correct. Ms. Brown asserts that her average weekly wage was $466.36, rather than $445.42 (a difference of $13.96). Ms. Brown alleges that her average weekly wage should be calculated based on the average hours she actually worked in the four full weeks preceding her accident, multiplied by her hourly wage rate. At the time of her accident, Ms. Brown was paid an hourly wage of $10.48. For any hours worked over 40, she was paid time and a half, and these overtime hours were paid to her in the form of compensatory “K-time.” At the trial of this matter, Ms. Brown testified that her overtime hours were hours she actually worked, but were not reflected in her paycheck.

The record indicates that Ms. Brown was a full-time employee who worked 40 hours per week. The calculation of Ms. Brown’s average weekly wage is governed by Louisiana Revised Statutes 23:1021(12)(a)(i), which provides:

(12) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
14(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater[.]

Claimant’s accident occurred on April 17, 2010. The four full weeks preceding the date of her accident were the weeks ending March 21, March 28, April 4, and April 11, 2010. Ms. Brown testified at trial that she worked a total of 40 hours for the weeks ending March 21, March 28, and April 11, 2010. She further testified that she worked 52 hours for the week ending April 4, 2010. Claimant testified that she earned compensatory “K-time” for the 12 overtime hours she worked that week. Thus, Ms. Brown contends that in the four full weeks preceding her accident, she averaged 48 hours per week.

The record indicates that Ms. Brown used annual leave, sick leave, and compensatory leave during the four full weeks preceding her injury, such that she did not actually work 40 hours per week during that period. In the four weeks prior to her accident, the record indicates that Ms. Brown actually worked 31.1 hours, 12 hours, 36 hours, and 32.2 hours, respectively. However, because Ms. Brown is a full-time employee, she is entitled to the presumption of having worked at least 40 hours under Section 1021(12)(a)(i).

Ms. Brown contends the WCJ erred in calculating her average weekly wage by failing to include her compensatory “K-time” for the extra 12 hours she worked during the week ending April 4, 2010. Louisiana Revised Statutes 23:1021(12)(f) provides:

(f) Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage |,.Including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.

The Louisiana Supreme Court has stated that the word “taxable” was intended by the Legislature to be expanded to include “potentially” taxable fringe benefits that had not yet been received (or used) by an employee, but would be received only “at some uncertain point in the future.” Hargrave v. State ex rel. Dept. of Transp. & Dev., 10-1044 pp. 9-10 (La.1/19/11), 54 So.3d 1102, 1107. The WCJ based the calculation of Ms. Brown’s average weekly wage on the actual earnings reflected in her payroll records for the four weeks preceding her accident. The WCJ did not credit Ms. Brown with 52 hours for the week ending April 4, 2010, and calculated the wages based on a 40-hour work week. The calculation of $445.42, as Ms. Brown’s average weekly wage, represents the averaged, actual earnings received by her and taxed in the four full weeks prior to her injury. The trial court held that Ms. Brown was not entitled to include compensatory “K-time,” which was accrued, but not used, in the calculation of her average weekly wage rate. Accordingly, the WCJ correctly based Ms. Brown’s average weekly wage upon wages and benefits actually taxed during the four full weeks prior to her injury.

After a thorough review of the record and the jurisprudence, we cannot say that the WCJ committed manifest error or was clearly wrong in calculating Ms. Brown’s average weekly wage rate.

Penalties and Attorney Fees

Ms. Brown assigns error on the part of the WCJ for denying her claim for penalties and attorney fees. Pursuant to Louisiana Revised Statutes 23:1201(F), failure to provide benefits will result in a penalty and attorney fees unless the claim is reasonably controverted. Attorney fees (as well as penalties) awarded for failing to reasonably controvert the claim are statutory fees assessed against the employer. McCarroll v. Airport Shuttle, Inc., 00-1123 p. 5 (La.11/28/00), 773 So.2d 694, 698. In the present case, the WCJ did not err in holding that DHH did not miscalculate Ms. Brown’s average weekly wage. Thus, no penalties or attorney fees are due.

DECREE

Therefore, for the foregoing reasons, the June 15, 2012 judgment of the Office of Workers’ Compensation Administration, District 5, is affirmed. Costs are assessed against Ms. Brown.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Monica GANGE and Ramir Bioc, Individually, and on behalf of their Minor Child, Celeste Bioc v. Eslam J. HAMED, State Farm Mutual Automobile Insurance Company, Ray Brandt Infinity of Metairie, LLC, Tokio Marine Ins. Co., Stepping Stones Montessori, Inc., Allstate Insurance Company, and Progressive Insurance Company. Shuichi and Jacqueline Sato, Individually, and on behalf of Their Minor Child, Kein Sato v. Eslam J. Hamed, State Farm Mutual Automobile Insurance Company, Ray Brandt Infinity of Metairie, LLC, Tokio Marine Insurance Company, Stepping Stones Montessori, Inc., Allstate Insurance Company, and Progressive Insurance Company.
    Nos. 12-CA-510, 12-CA-511.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.
    Rehearing Denied July 25, 2013.

      W. Evan Plauché, Joseph L. Spilman, III, Justin E. Alsterberg, Evan J. Berger-on, Attorneys at Law, Metairie, LA, for Defendant/Appellant.
    Thomas M. Young, Attorney at Law, Metairie, LA, for Defendant/Appellee, 3rd Appellant.
    Adrianne L. Baumgartner, Attorney at Law, Covington, LA, for Defendant/Appel-lee, 2nd Appellant.

      Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

lsOn December 28, 2011, the trial court granted-in-part and denied-in-part cross-motions for summary judgment filed by Ray Brandt Infiniti of Metairie, LLC (“Ray Brandt”) and Tokio Marine & Nichi-do Fire Insurance Co. Ltd (“Tokio Marine”). Ray Brandt, Tokio Marine, and together, National Union Fire Insurance Company and New Hampshire Insurance company, each appealed assigning various errors of the trial court. In each of these assignments, appellants argue either that the trial court erred in its determination of Ray Brandt’s coverage under Tokio Marine’s commercial auto policy, or that the trial court erred in its determination of Ray Brandt’s coverage under Tokio Marine’s commercial umbrella policy. For the following reasons, we find that the trial court erred both |4when it determined that Ray Brandt was only covered to the mandatory mínimums of the Louisiana Motor Vehicle Safety Responsibility Law, La. R.S. 32:900, under Tokio Marine’s commercial auto policy numbered CA6401849-00, and when it determined that Ray Brandt was not covered under Tokio Marine’s commercial umbrella policy numbered CU6402014-00. We find that both policies afforded Ray Brandt coverage.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Monica Gange and Ramir Bioc, individually and on behalf of their minor child, Celeste Bioc, filed suit for injuries sustained to their daughter on December 8, 2010, when a vehicle driven by defendant, Eslam Hamed, crashed into the wall of a school building. At the time of the accident, Ms. Hamed was driving a loaner vehicle issued to her through the Infiniti loaner car program (while Ray Brandt repaired her personal vehicle). Plaintiffs filed suit against: Ms. Hamed; her insurer, State Farm Mutual Automobile Insurance Company; Ray Brandt; Ray Brandt’s insurers, New Hampshire Insurance Company and National Union Fire Insurance Company; and the loaner vehicle’s insurer, Tokio Marine. The allegations against Ray Brandt are that its employees reversed the vehicle’s floor mats to ensure that they would not become soiled during Ms. Hamed’s use. Plaintiffs allege that Ray Brandt’s actions caused the accident because its employees flipped the loaner Infiniti vehicle’s floor mats to protect their cleanliness prior to lending the vehicle to Ms. Hamed, and that this action allowed the floor mat to bunch under the accelerator and prevented Ms. Hamed from applying the brake.

During the relevant time, Ray Brandt was insured through its commercial general liability insurer, New Hampshire Insurance Company, and its umbrella policy insurer, National Union Fire Insurance Company. Tokio Marine insured the 1 r,vehicle issued through the Infiniti loaner program and also insured Ms. Hamed as the driver of the loaner vehicle. The parties dispute whether Tokio Marine also insures Ray Brandt as a participant in the Infiniti loaner program.

Ray Brandt and Tokio Marine filed cross-motions for summary judgment on the issue of Ray Brandt’s coverage. Tokio Marine denies that it provides any coverage whatsoever to Ray Brandt. Ray Brandt however asserts that the Tokio Marine policies additionally insured it for its alleged actions in preparing the loaner vehicle for Ms. Hamed’s use.

Infiniti required Ray Brandt and all other Infiniti dealers to participate in its service loaner car program at issue here, and to lease Infiniti brand vehicles from Infini-ti Financial Services (“IFS”) to populate the loaner car program. IFS required the dealers to insure these loaner vehicles through Tokio Marine through a nationwide insurance program.

As required as a participant in the Infin-iti loaner car program, Ray Brandt paid insurance premiums for the Tokio Marine commercial auto insurance coverage of the vehicles it used in the program. In a sworn affidavit submitted in support of Ray Brandt’s motion for summary judgment, Mr. Raymond J. Brandt stated that in 2010, Ray Brandt had, on average, fifty-one vehicles in the loaner car program each month. Mr. Brandt further swore that Ray Brandt paid $27.09 per vehicle, per month, to insure these vehicles, for an average monthly cost of $1,383.85, and a total cost that year of $16,606.17. Ray Brandt argued in its motion for summary judgment that, given the allegations and the evidence, it was entitled to defense and indemnity by Tokio Marine for the liability asserted by plaintiffs.

Tokio Marine contends here, as it did before the trial court, that Ray Brandt is not a named insured under either its commercial auto or umbrella policy, and [ fithat Ray Brandt was not “using” the vehicle as a permissive user at the time of the accident. Tokio Marine further argues that even if Ray Brandt was “using” the vehicle as part of its service and repair business, that use was specifically excluded from policy coverage under both the commercial liability and umbrella policies.

On December 28, 2011, the trial court granted-in-part and denied-in-part each motion. The trial court did not find that Ray Brandt was a named insured on the commercial auto policy pursuant to either its “Schedule of Named Insureds”, or its March 31, 2010 endorsement which added, “All authorized Infiniti dealers with respect to their interest in all loaner vehicles” to the extent those dealers qualified under the “Who Is An Insured” provision paragraph “a. You for any covered ‘auto’.” Rather, the trial court found that Ray Brandt’s alleged mat flipping rendered it a “Permissive User” as defined in the “Who Is An Insured” provision, paragraph “b.” Having found Ray Brandt to be a paragraph “b” permissive user, the trial court found that Ray Brandt’s use was in the business of servicing and repairing a vehicle, and therefore Ray Brandt’s coverage was limited in the commercial auto policy, pursuant to the Louisiana Endorsement, to the minimum financial requirements of La. R.S. 32:900. The trial court also found that Ray Brandt was excluded entirely from the umbrella policy coverage by the “Who Is An Insured” provision of “b(3).”

The trial court designated its judgment as final and the appellants have lodged this appeal to determine coverage issues under the Tokio Marine policies.

DISCUSSION

Several parties to this matter appealed, each assigning various errors. For simplicity, we will first address whether Ray Brandt was covered under Tokio Marine’s commercial auto policy. We will then address whether Ray Brandt was insured under Tokio |7Marine’s commercial umbrella policy.

Appellate courts review summary judgments on a de novo basis under the same criteria governing the trial court’s consideration of whether a summary judgment is appropriate. The motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute which can be resolved properly within the framework of a motion for summary judgment. Smith v. Lyons, 12-799 (La.App. 3 Cir. 12/28/12), 2012 WL 6720552 (citing Johnson v. Allstate Ins. Co., 95-1953 (La.App. 1 Cir. 5/10/96), 673 So.2d 345, 347, writ denied, 96-1292 (La.6/28/96), 675 So.2d 1126).

Commercial Auto Policy Coverage

On the question of whether Ray Brandt was insured under the commercial auto policy issued by Tokio Marine, for its employees’ alleged flipping of the mat, we must first look to the policy language itself.

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. Id. (citing Central Louisiana Electric Co. v. Westinghouse, 579 So.2d 981 (La.1991)). However, any ambiguous provisions in an insurance contract must be construed in favor of | ^coverage to the insured and against the insurer who issued the policy. Id. (citing Breland v. Schilling, 550 So.2d 609 (La.1989)).

The commercial auto policy lists as its named insured “Infiniti Financial Services” and other entities, not including Ray Brandt. An endorsement to the policy states however, in relevant part, that:

This endorsement changes the policy.
This endorsement identifies person(s) or organizations(s) who are “insureds” under the Who Is An Insured provision of the coverage form. This endorsement does not alter coverage provided in the coverage form.
Schedule
Name of person(s) or organizations(s): All authorized Infiniti dealers with respect to their interest in all loaner vehicles.
* * *
Each person or organization shown in the schedule is an “insured” for liability coverage, but only to the extent that person or organization qualifies as an “insured” under the Who Is An Insured provision contained in section II of the coverage from.
(Emphasis in original).

This endorsement clearly adds coverage for “authorized Infiniti dealers with respect to their interest in all loaner vehicles.” Here, Ray Brandt was such a dealer.

This endorsement however clearly states that such added coverage was “only to the extent that person or organization qualifies as an ‘insured’ under the Who Is An Insured provision.” Therefore, to determine the extent of coverage provided to Ray Brandt by this endorsement, we must determine the extent to |3which Ray Brandt qualifies as an insured under the policy’s “Who Is An Insured provision.” In relevant part, this provision states,

The following are “insureds”:
a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(3) Someone using a covered “auto” while he or she is working in a business of selling, servicing, repairing, parking or storing “autos” unless that business is yours.

This provision sets out two classes of entities which are covered by the endorsement; “a. You for any covered ‘auto’ ” and, subject to enumerated exclusions, “b. Anyone else while using with your permission a covered ‘auto.’ ”

Under the plain reading of these words alone, Ray Brandt qualified as the “you” that was covered to the extent of “any covered ‘auto’.” These words however, cannot be read in isolation. Certain appellants argue that, as it is used in the rest of the policy, the term “you” refers to the named insured, not Ray Brandt, who was added by the above quoted endorsement. They contend that to include Ray Brandt in the term “you” would be to not interpret the policy as a whole.

If an endorsement is attached to an insurance policy, and the policy and endorsement are parts of the same contract, the endorsement becomes part of the contract, and the two must be construed together. Mattingly v. Sportsline, Inc., 98-230 (La.App. 5 Cir. 10/28/98), 720 So.2d 1227, 1230, writ denied, 98-2938 (La.1/29/99), 736 So.2d 830 (citing Smith v. Western Preferred Cas. Co., 424 So.2d 375 (La.App. 2nd Cir.1982)). If there is a conflict between the endorsement and the policy, the endorsement must prevail. Id. An insurance contract is construed as a whole and each provision in the policy must be interpreted in light of the other provisions so that each is given meaning. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1029 (citing La. C.C. art. 2050; Central La. Elec. Co. v. Westinghouse Elec. Corp., supra). One portion of the policy should not be construed separately at the expense of disregarding other provisions. Id.

Under these principles, we find that this endorsement would have provided no coverage to Ray Brandt if we were to construe Ray Brandt to be within the section “b” class of “anyone else” and not within the section “a” class of “you.” Classifying Ray Brandt as “anyone else” in section “b” would subject Ray Brandt to the paragraph “b(3)” exclusion of permissive users if they are “working in a business of selling, servicing, repairing, parking or storing ‘autos’.” (emphasis added). Because Ray Brandt’s business is essentially, “selling, servicing, repairing, parking, or storing ‘autos’,” the paragraph “b(3)” exclusion would totally exclude coverage for Ray Brandt when it worked in its own business. Such a finding would render meaningless the endorsement’s words providing coverage to Infiniti dealers such as Ray Brandt.

Further, we find that this policy is at least ambiguous as to whether Ray Brandt was included within the class of “you” in the “Who Is An Insured” provision because of the policy’s “Business Auto Coverage Form.” This coverage form, defines the words “you” and “your” as they are used in the “Who Is An Insured” provision and are referred to throughout the policy as “the Named Insured shown in the Declarations.” That referenced declarations page however, in relevant part, states that the named insureds are:

ITEM ONE
Named Insured
INFINITI FINANCIAL SERVICES, A
(SEE NAMED INSURED ENDT)

| nNo part of the declarations page indicates whether “NAMED INSURED ENDT” refers to the policy’s “Schedule of Named Insured” amendment, the policy’s endorsement providing an extent of coverage for Infiniti dealers such as Ray Brandt, or some combination of the two.

Because we will not read the words in the policy to be meaningless, and because we construe ambiguity in policies in favor of coverage, we find that Ray Brandt is provided coverage under the “Who Is An Insured” section “a. You for any covered ‘auto’.”

Because we find that Ray Brandt is provided coverage by the endorsement to the policy because Ray Brandt is within the “Who Is An Insured” section “a. You for any covered ‘auto,’ ” other arguments of appellants are moot. Therefore, we find that the trial court erred in determining that Ray Brandt was only covered to the limits of La. R.S. 32:900. We hold instead that Ray Brandt, to the extent that its liability arises from a covered auto, was an “insured” under Tokio Marine’s commercial auto policy.

Umbrella Policy

On the next question of whether Ray Brandt is afforded coverage under Tokio Marine’s commercial umbrella policy, we must again start with the clear and unambiguous language of the policy. See Smith v. Matthews, supra. Tokio Marine’s commercial umbrella policy, in relevant part, provides that to:

[a]ny additional insured under any policy of “underlying insurance” will automatically be an ‘insured’ under this insurance. If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance required by the contract, less any amounts payable by any “underlying insurance”.

112This umbrella policy includes the above discussed commercial auto policy as an underlying insurance policy. This umbrella policy does not however define its use of the term “additional insured.” Here, we find that Ray Brandt, by virtue of the underlying commercial auto policy’s endorsement, is an “additional insured” covered by Tokio Marine’s umbrella policy.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and hold that, to the extent that Ray Brandt’s liability arises from a covered auto, Ray Brandt is an insured under Tokio Marine’s commercial auto policy. We also hold that, to the same extent, Ray Brandt is insured under Tokio Marine’s commercial umbrella policy. In light of our findings, we remand this case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . While it does not appear from the record that either Union National or New Hampshire opposed Tokio Marine’s Motion for Summary Judgment in the trial court, thus creating a serious issue regarding their standing to appeal the trial court's judgment, this apparent failure does not impact our decision in this matter. Therefore, we will not address this issue.

      . The policy contains a "Schedule of Named Insureds” amendment to the policy’s "the named insured on form IL9 05 003.” Although this amendment adds other named insureds, it does not specifically add Ray Brandt as a named insured.

      . The first page of the “Business Auto Coverage Form Declarations” of the Tokio Marine policy supports the reading that the above quoted endorsement was meant to modify the "named insured” portion of the policy. In relevant part, that declarations page states, "ITEM ONE Named Insured INFINITI FINANCIAL SERVICES, A (SEE NAMED INSURED ENDT)”

      . Because we find that Ray Brandt is afforded coverage under the "You” provision of the Who Is An Insured section, the question of whether Ray Brandt was "using” the auto when it performed the alleged negligent act of flipping the mat is moot.

      . Certain appellants argue that this policy provides coverage in the event that a loaner car program customer takes one of the autos, incurs a loss, and turns out not to have insurance. This argument does not change the merits of our analysis however, because such a loss could not be incurred against Ray Brandt unless Ray Brandt used the vehicle in some way to be contributorily liable. Any such use however would occur while Ray Brandt was in its business, as described above, and therefore would be excluded from coverage.