author: KUHN, J. McDONALD, J.,

text:
    Alfred WATTS and Rosa Lee Watts v. GEORGIA-PACIFIC CORP. (Individually and as Successor to Bestwall Gypsum Company); Metropolitan Life Insurance Company; Foster Wheeler Energy Corporation; Minnesota Mining and Manufacturing Company (a/k/a “3M”); North American Refractories Company; General Refractories Company; Harbison-Walker Refractories Company (formerly a Division of Indresco Inc.); Uniroyal, Inc. (Successor to U.S. Rubber Company); The McCarty Corporation; Rapid American Corporation, et al.
    No. 2012 CA 0620.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 16, 2013.
    Opinion Agreeing in Part and Dissenting in Part by Judge McDonald Nov. 22, 2013.

      Denyse F. Clancy, Lindsey Goldstein, Baton Rouge, Louisiana, Attorneys for Plaintiffs/Appellees Alfred Watts, Rosa Lee Watts et al.
    H. Alston Johnson, III, Daina Bray, Baton Rouge, Louisiana, Attorneys for Defendants/Appellants Hebert Brothers Engineers, Inc.
    Before KUHN, PETTIGREW, and McDonald, jj.

      . On April 21, 2004, the trial court granted summary judgment and dismissed the Watts' claims of intentional tort, wrongful death, and loss of consortium. Writs were subsequently denied by this court, Watts v. Georgia-Pacific Corp., 2004-1186 (La.App. 1st Cir.6/7/04) (unpublished writ action) and the Louisiana Supreme Court, 2004-1705 (La.10/8/04), 883 So.2d 1018. At the trial on the merits, the Watts conceded that their recovery was limited to Alfred's survival action only. On appeal, the Watts have raised no contentions regarding entitlement to any other type of damages. Accord Rondo v. Anco Insulations Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065, 1071 (concluding that a worker’s tort claim against his employer for asbestos-caused cancer was not barred by the exclusive remedy provision of the Louisiana Workers’ Compensation Act under the pre-1975 version of the act).

   KUHN, J.

| gDefendant-appellant, Hebert Brothers Engineers, Inc. (Hebert Brothers) appeals the trial court’s judgment awarding to plaintiffs-appellees, Rosa Lee Watts and her children (the Watts), the survival action damages of the decedent, Alfred Watts, after his death from lung cancer contracted as a result of his employment with Hebert Brothers on the Dow Chemical Company (Dow) premises located in Plaquemine, Louisiana. We amend the judgment to reflect Hebert Brothers’ virile portion and, as amended, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Alfred began working as a laborer for Hebert Brothers in 1963 in the cell service unit of the chlorine plant at the Dow premises. In conjunction with the manufacturing process in the chemical plant, Alfred and his coworkers were required to handle asbestos. In 1994, after his voice box was removed as a result of laryngeal cancer, Alfred retired from Hebert Brothers. In the summer of 2001, Alfred was diagnosed with lung cancer from which he died on October 31, 2001.

Although this lawsuit, filed on September 10, 2001, named as defendants numerous entities, including those who had manufactured or distributed asbestos as well as Dow in its capacity as premises owners, Hebert Brothers was not made a Rparty to the lawsuit until the Watts filed a supplemental petition on August 29, 2003. Subsequently, the Watts dismissed all the other named defendants from the lawsuit including Dow, which was dismissed by an order signed on September 3, 2003. Thereafter, the matter proceeded to trial against Hebert Brothers.

A seven-day jury trial was held. After the presentation of evidence, the Watts moved for a directed verdict arguing, among other things, that there was no evidence of the fault of any entity other than Hebert Brothers. The trial court denied relief. Hebert Brothers then moved for a directed verdict, urging that because the Watts had not put on any evidence of the fault of anyone other than ostensibly that of Hebert Brothers, the Watts’ claims were prescribed. Emphasizing that the jury was impaneled and almost ready to deliberate, the trial court denied Hebert Brothers’ motion for a directed verdict, expressly noting that its ruling was not based on the merits of the request. Although the trial court granted leave for Hebert Brothers to seek supervisory writs, the jury was charged and retired.

After deliberations, the jury rendered a verdict finding that Hebert Brothers was negligent and that its negligence was a substantial factor in causing both Alfred’s laryngeal and lung cancers. The jury also found that Alfred, despite having been a heavy cigarette smoker who regularly consumed alcohol until the removal of his voice box in 1994, was not contributorily negligent in causing either of his cancers. Damages totaling $3,625,000.00 were awarded to the Watts for Alfred’s survival action.

Prior to entry of a final judgment, the trial court granted Hebert Brother’s motion to stay the proceedings while the issue of prescription was under supervisory review. This court subsequently issued a ruling, stating:

WRIT GRANTED IN PART; DENIED IN PART; REMANDED WITH INSTRUCTIONS. The documents presented to this Court indicate that, while the [trial] court denied [Hebert Brothers’] motion |4for directed verdict on the basis of prescription (which issue was initially raised in [Hebert Brothers’] answer), it did not consider the merits of that motion. Neither does it appear that the issue of prescription was presented to the jury for its consideration. Under the particular circumstances presented here, the application is hereby granted insofar as the case is remanded to the [trial] court with instructions to consider and rule on the merits of [Hebert Brothers’] assertion that [the Watts’] claims against it have prescribed and then to render a final judgment. Thereafter, the party or parties ultimately aggrieved by the judgment can seek a timely appeal with this Court. In all other respects, the application is hereby denied.

Watts v. Georgia-Pacific Corp., 2005-0933 (La.App. 1st Cir.6/17/05) (unpublished writ action).

A hearing was held on the remand, after which the trial court concluded that the Watts’ claims against Hebert Brothers were not prescribed. A final judgment, incorporating the jury’s verdict, was signed on June 2, 2011, and Hebert Brothers timely appealed.

On appeal, Hebert Brothers asserts the trial court erred by: (1) concluding that the Watts’ claims were not prescribed; (2) failing to render a judgment that limited Hebert Brothers’ liability to its virile share; and (3) awarding an excessive amount of damages for Alfred’s survival action in connection with his lung cancer.

PRESCRIPTION

It is undisputed that when Hebert Brothers was made a defendant in the Watts’ lawsuit, over a year had elapsed from the date of Alfred’s death. Thus, on the face of the pleadings, the Watts’ claims were prescribed. But when prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors. See La. C.C. art. 3508; see also]¿La. C.C. art. 1799 (the interruption of prescription against one solidary obligor is effective against all solidary obligors and their heirs); Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 577-78 (La.1982) (plaintiffs timely and properly filed suit against tort-feasors interrupted prescription as to his uninsured motorist carrier, who was solidarity liable to him). Hebert Brothers urges that the record is devoid of any evidence that establishes a solidary relationship between it and another timely sued defendant.

An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee. La. C.C. art. 1794. For purposes of prescription, parties are solidarity liable to the extent that they share coextensive liability to repair certain elements of the same damage. Glasgow v. PAR Minerals Corp., 2010-2011 (La.5/10/11), 70 So.3d 765, 772.

Without levying any claims challenging the jury’s conclusions that Hebert Brothers was a substantial factor in causing Alfred’s laryngeal and lung cancers or that Alfred was not contributorily negligent in causing his cancers, in this appeal, Hebert Brothers asserts that the record fails to establish Dow’s liability so as to create the necessary solidary relationship to support the trial court’s conclusion that the Watts’ claims were timely asserted. Thus, in order to prove the solidary relationship between Hebert Brothers and Dow, the Watts had to prove Dow’s liability.

Dow’s Liability:

It is undisputed in this case that it was the Dow premises upon which all manufacturing operations occurred and included Alfred’s handling of asbestos. With regard to a long-latency occupational disease claim, the law in effect at the time of the exposure applies. See Cole v. Celotex Corp., 599 So.2d 1058, 1066 (La.1992). Thus, in our examination of the record to ascertain whether Dow was 16liable under a theory of strict liability, see La. C.C. art. 2317, the limitations imposed on strict premises liability set forth in La. C.C. art. 2317.1, added by Louisiana Acts 1996, 1st Ex.Sess., No. 1, § 1, are not applicable.

In a typical negligence case against the owner of a thing (such as a manufacturing facility that utilizes asbestos in its process) that is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury, which resulted in the damage; that the owner knew or should have known of that risk; and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm. See Kent v. Gulf States Utilities Co., 418 So.2d 493, 497 (La.1982).

In a strict liability case against the same owner, the claimant is relieved only of proving the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm, which resulted in the damage (i.e., must prove the thing was defective). The resulting liability is strict in the sense that the owner’s duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts. Under strict liability concepts, the mere fact of the oumer’s relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in custody. If the owner breaches that absolute duty to discover, he is presumed to have discovered any risks presented by the thing in custody, and the owner |7accordingly will be held liable for failing to take steps to prevent injury resulting because the thing in his custody presented an unreasonable risk of injury to another. Kent, 418 So.2d at 497.

Accordingly, in a strict liability case in which the claimant asserts that the owner’s damage-causing thing presented an unreasonable risk of harm, the standard for determining liability is to presume the owner’s knowledge of the risk presented by the thing under his control and then to determine the reasonableness (according to traditional notions of blameworthiness) of the owner’s conduct, in the light of that presumed knowledge. Id.

The evidence introduced at trial established that Dow was the owner of the asbestos that Hebert Brothers’ employees utilized in their day-to-day operations in the cell service unit of the chlorine plant on Dow’s premises. Charles Snearl, who worked for Hebert Brothers at the Dow facility from 1972 through 1988, primarily as a foreman, testified that the orders on what day-to-day tasks were undertaken came from Dow, the workers used Dow equipment, and Dow provided the asbestos, which was utilized in the cell service unit. Sirkil Pania worked for Hebert Brothers at Dow from 1957 through 1996. He was assigned to Dow’s cell service unit from 1957 through 1972, and worked as a laborer with Alfred from 1963 through 1972. Pania testified that he and Alfred did the same type of tasks on a daily basis. In conformity with Snearl, Pania testified that all the asbestos utilized by Alfred and him was provided by Dow. Omer King Hebert, the present owner and president of Hebert Brothers, stated that no one could get on Dow’s premises without Dow’s permission, Hebert Brothers’ workers did whatever Dow told them to do, and Dow was in charge of everything at the facility. Hebert testified, “[W]e relied on ... Dow ... I mean, it was their [facility. They knew what dangers they had and didn’t have and ... we always just ... went by their [guidelines and directions.”

| sThere is really no dispute in this case that asbestos is a substance that creates an unreasonable risk of harm when inhaled. The testimony of nearly every witness who worked on Dow’s premises; Dr. Antonio Edwards, Alfred’s treating physician who diagnosed the lung cancer; and Dr. Alfredo Suarez, the pathologist who performed the autopsy on Alfred; along with the testimony of Dr. Richard Lemen, an expert in epidemiology and industrial hygiene; Dr. Arnold Brody, Dr. Jerrold Abraham, and Dr. Travis Harrison, experts in pathology; and Dr. Robert Jones, an expert in pulmonary disease, established that asbestos was a substance that created an unreasonable risk of harm. While the views of the expert witnesses reflected differing opinions on whether Alfred’s lung cancer was a result of a significant exposure to asbestos, his longtime heavy cigarette smoking, or the synergistic effect of the two factors, none disagreed with the dangerous propensities of asbestos when inhaled, and on appeal, Hebert Brothers does not suggest that asbestos inhalation in significant quantities is anything other than an unreasonable risk of harm.

Thus we turn our attention to the reasonableness of Dow’s conduct, in the light of its presumed knowledge of the risk presented by the asbestos which was under its control. Hebert Brothers presented evidence of the safety measures Dow undertook to protect both its own workers and those employed by Hebert Brothers from the dangers presented by the inhalation of significant quantities of asbestos. Both Snearl and Hebert testified about the extensive protocols in place at the Dow facility certainly no later than the 1980s. But Snearl — who testified that workers had safety equipment (including some sort of respirator) on them the entire time they worked in the asbestos vat — did not commence his employment at the Dow facility until 1972. And Hebert conceded that during his early part-time employment as an assistant timekeeper in 1972, he was not usually in the cell |aservice unit of the chlorine plant, just on occasions, and that he would use whatever safety precautions he observed workers in the unit undertaking.

Pania, however, described in detail the significant asbestos exposure that he and Alfred experienced as laborers working for Hebert Brothers at the Dow facility between 1963 and 1972 on a daily basis when no protective gear was provided. According to Pania, in putting cells together in the chlorine plant, a crew would go into a railroad box car and load sacks of raw asbestos off the car and onto a pallet. One worker would bring the pallet out with a forklift and another would begin stacking the individual sacks. Occasionally, a sack would bust open in the railroad car or when it was in transit. Once opened, the vicinity became dusty. Each sack of asbestos weighed approximately 100 pounds. When asbestos was needed in the cell-building process, a laborer (including Pa-nia and Alfred) would get a couple sacks, cut each open with a knife, and dump the raw asbestos into a vat for mixing. A ceiling fan would stir up the asbestos dust that was created upon dumping. Additionally, part of the cell-making process included use of an asbestos rope that created dust when pounded into place. The laborers were also exposed to asbestos dust in the cell breakdown process, which required use of a hatchet to physically remove baked-on asbestos, a process that also created dust; as well as in the cleanup process of the asbestos debris, which included sweeping the displaced asbestos particles into piles.

Pania acknowledged that beginning in 1974, Dow began conducting annual physical exams, had a physician on the premises, and performed chest x-rays. But he stated that between 1963 and 1972, no one ever told him of the dangers of asbestos exposure, there were no posted warning signs, he was not advised either to wear a respirator to protect himself from asbestos fibers or of the heighten danger created by asbestos inhalation and cigarette smoking.

| inGiven Pania’s undisputed testimony about the lack of any safety precautions in the Dow facility between 1963 and 1971, we find a reasonable factual basis exists to support the trial court’s implicit finding that Dow is liable based on a theory of strict custodial liability under La. C.C. art. 2317 (before Louisiana Acts 1996, 1st Ex. Sess., No. 1, § 1). Specifically, Pania’s testimony established that as a laborer, between 1963 and 1972, Alfred inhaled significant quantities of asbestos; Dow owned the asbestos, which was unreasonably dangerous, and the inhalation occurred on Dow’s premises; and Dow failed to take reasonable steps to prevent his injury. As such, there is no manifest error. See Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882-83 (La.1993).

Hebert Brothers complains about the Watts having moved for a directed verdict averring, after the close of evidence, that there was no evidence of fault of any entity other than Hebert Brothers and then took the exact opposite position after Hebert Brothers moved for a directed verdict on the issue of the timeliness of their claims against it. While we do see the irony of the changed positions the Watts argued before the trial court, arguments of counsel are not evidence. Importantly, the trial court denied the Watts’ motion for a directed verdict on that | nbasis, implicitly finding that evidence of other entities’ fault existed. Moreover, we point out by analogy that alternative assertions are frequently advanced in the legal context. Indeed, our system of pleading permits parties to assert alternative theories of liability. See La. C.C.P. art. 892 (a petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive). There is no prejudice shown by Hebert Brothers and the legal effect of the Watts’ inconsistent arguments are of no moment in our appellate review.

Accordingly, there is no error in the trial court’s determination that Dow’s liability was proven by the evidence admitted a trial. Thus, a solidary relationship existed between Hebert Brothers and Dow, a timely sued defendant, and the trial court correctly concluded that the Watts’ claims were timely.

VIRILE SHARE

The trial court incorporated the jury’s verdict awarding damages to the Watts without reducing the percentage of fault attributable to Dow that it found, after the jury’s verdict on remand from this court, was a proven co-obligor of Hebert Brothers. Because the record establishes, without dispute, that Alfred inhaled significant quantities of asbestos between 1968 and 1971, prior to the enactment of Louisiana Comparative Fault Law, the case is governed by prior law, and virile share principles apply. See Cole v. Celotex Corp., 599 So.2d at 1072-74.

| iaOn appeal, the Watts suggest that because the jury was not asked to determine whether Dow bore any fault, Hebert Brothers waived entitlement to a reduction for Dow’s virile share. But neither the Watts nor Hebert Brothers requested that Dow’s fault be presented to the jury. Thus, both Hebert Brothers and the Watts waived their rights to have the jury resolve the issue. See La. C.C.P. art. 1812A (if the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue). Some issues may be tried by a jury while others in the same trial may be decided by the judge. See Champagne v. American Southern Ins. Co., 295 So.2d 437 (La.1974). Under the particular facts of this case, we find no error in the resolution of Dow’s liability by the trial judge.

A plaintiffs release of a joint tortfeasor reduces the amount recoverable against the remaining tortfeasors by the amount of the virile share (pro rata share) of the one released. Raley v. Carter, 412 So.2d 1045, 1046 (La.1982). Nonetheless, the remaining tortfeasor is only entitled to a reduction of the award if the parties released are proven to be joint tortfeasors. Thus, a prtrial settlement shifts the burden of proving liability on the part of the released tortfeasors from the plaintiff to the remaining defendant or defendants. Raley, 412 So.2d at 1047.

At the commencement of trial, the Watts read into the record the names of thirteen defendants, including Dow, who had settled with them. Because the respective liability of the settling defendants was not established on the record, the judgment cannot be reduced to reflect their respective pro rata shares. But we have found no manifest error in the trial court’s determination that Dow was at fault in causing Alfred’s injuries. Since the record reflects Dow’s fault, the trial court erred in failing to attribute one-half the damages to Dow and reduce the total damages awarded to the Watts against Hebert Brothers by one-half. Accordingly, 11Rwe amend the judgment to award to the Watts one-half their total damages, reflecting Hebert Brothers’ virile share.

QUANTUM

In its final challenge of the trial court’s judgment, Hebert Brothers maintains that the general damages award for Alfred’s lung cancer is beyond what a reasonable trier of fact could assess and suggests the amount should be reduced. Thus, without challenging the awards made by the jury for Alfred’s laryngeal cancer, Hebert Brothers urges that jury’s award of $2,750,000.00 (consisting of $750,000.00 for physical pain and suffering, $1,000,000.00 for mental anguish, and $1,000,000.00 for loss of enjoyment of life) for the lung cancer from which Alfred died was excessive. In its appellate brief, Hebert Brothers provides us with a series of reported cases that it contends are most similar to the Watts’ and asserts that $2,000,000.00 is the maximum amount the jury could have awarded without abusing its discretion.

The trial court’s determination of the amount of an award of damages is a finding of fact. The Civil Code provides that “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La. C.C. art. 2324.1. Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. On review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Moreover, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s great discretion. It is only after articulated analysis of 114the facts discloses an abuse of discretion that the award may on appellate review, for articulated reason, be considered excessive. Only after such determination of abuse has been reached is a resort to prior awards appropriate for purposes of then determining what would be an appropriate award for the present case. However, absent an initial determination the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Rando v. Anco Insulations Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065, 1093-94.

Our review of the record shows no abuse of the jury’s vast discretion. Alfred was 69 years old when he was diagnosed with lung cancer in July 2001. Although he had suffered from laryngeal cancer and could no longer speak after the removal of his voice box, Alfred recovered fairly well from the surgery and regained his animated personality. To communicate, he wrote things down, read lips, used hand gestures, and clapped. Once he was diagnosed with lung cancer, Alfred was in denial. He could no longer walk, stand, eat, or do anything for himself. Alfred’s grown daughters had to put diapers on him and feed him with a syringe. Someone had to turn* him over every two hours. To see his doctor, he could no longer stay upright in a wheelchair, so he had to be transported by ambulance.

According to Dr. Edwards, Alfred’s treating physician beginning in 2000, when he met Alfred, he was a bright-eyed person who communicated with others through clapping. He described, “[W]hen you would say something and [Alfred] agreed with it, he clapped ... as though he was excited.” Dr. Edwards explained to the jury that during Alfred’s last three weeks of life, he stopped engaging in life. He went from an excited person to one who was nonresponsive to his environment.

Gwen, Alfred’s second oldest daughter, testified that her father was a proud man who never asked anyone for anything. She explained that her father became | lsso depressed as a result of his condition that on his birthday in September 2001, he refused to take pictures with his children or grandchildren because he knew he would not be around much longer. When his family convinced him to take a picture, Alfred was confused and did not understand what was going on around him. In his final days, according to Gwen, Alfred was like a baby with no life in his body.

Helen, Alfred’s youngest daughter, told the jury that she watched her father go from a man to a baby after the onset of the lung cancer. She recalled that her father, a man not apt to show his emotions, cried when the doctor told him he had lung cancer. Describing her father as “a very proud man,” Helen told the jury of the indignity Alfred felt as he watched his own child put diapers on him, bathe him, and feed him through a tube. Helen stated that “his whole manhood was taken away from him” and that he could not do a thing about it. Helen testified that she could see the pain in his eyes and that, in the last three weeks of his life, his pain was constant and severe. Her testimony about Alfred’s final days was in conformity to that of Gwen. Helen reminded the jury that without a voice box, Alfred could not speak. He had communicated his feelings to his family through hugs and claps. Once he became too weak, he lost his only means of communication and so was unable to fully express his feelings in his final days.

Although the duration of his suffering from lung cancer was but a short period, it is clear from the record that the evidence proved Alfred suffered intense and severe changes in his life after the lung cancer diagnosis. Those members of his family who testified at trial established that Alfred was an old-fashioned man who took pride in being with and providing for his family. Alfred said little but demonstrated much. When he lost his ability to speak, he did not quit communicating, adapting a nonverbal articulation that those who interacted with him readily understood. But with the lung cancer, Alfred watched in constant | inphysical and emotional pain as all his means of communication vanished and life left him. In light of the testimony of his family and treating physician, we cannot say this jury abused its vast discretion in awarding the Watts the amounts of $750,000.00 for Alfred’s physical pain and suffering, $1,000,000.00 for mental anguish, and $1,000,000.00 for loss of enjoyment of life.

DECREE

For these reasons, the trial court’s judgment is amended to reduce to one-half, i.e., Hebert Brothers’ virile share, the amounts of damages awarded to the Watts. In all other respects, the judgment is affirmed. Appeal costs are assessed to Hebert Brothers Engineering, Inc.

AMENDED AND, AS AMENDED, AFFIRMED.

McDONALD, J. dissents and will assign reasons.

McDONALD, J.,

Agreeing in part and dissenting in part.

|TI must respectfully dissent from the majority opinion in several respects. First, on the issue of solidary obligors and the finding of liability on Dow; secondly, on affirming the trial court’s refusal to grant a directed verdict on behalf of the defendants; and thirdly, applying the wrong standard of review to the jury’s award of general damages. However, having made the determination that Dow and Hebert Brothers were both liable, I believe the majority is correct in finding the quantum award should be reduced as Hebert Brothers is only liable for its virile share.

The defendants point out that there seemed to be some confusion in this case. That seems to be an understatement. No one seemed to know whether comparative law principles applied, what solidary obli-gors meant, or what the law on virile share entails. The trial court even enlisted the assistance of a law professor to explain some of these principles.

For whatever reason, the plaintiffs set out from the start to prove that the only defendant with any liability was Hebert Brothers. I believe, as did the defendants, that they succeeded. The testimony and questioning of witnesses should be understood in that context.

Liability of Dow

The majority discusses the theory of strict liability in connection with fault on the part of Dow. However, at the charge conference between the trial court and the attorneys, the plaintiffs insisted that this was not a strict liability case, but rather a negligence case based on a failure to provide a safe place to work. They |?had requested a jury charge on strict liability but withdrew it. Thus, I believe the majority should not have gone down a road that the plaintiffs chose not to travel. If the plaintiffs did not believe strict liability was applicable, then I do not believe we should have considered it either.

Nevertheless, since the majority considered this issue, I will also do so. In examining this issue, I find that the testimony of the various experts demonstrated the increasing knowledge of the dangers of exposure to asbestosis, but none attributed any liability to Dow. Whether Dow had any liability is open to speculation and conjecture. This is easily understood considering the plaintiffs were determined and had an objective to prove none; their goal was to prove all liability on the part of Hebert Brothers.

Charles Snearl, a co-worker of Mr. Watts during much of the time that he worked at Dow, testified as follows:

Q: Okay. Did you have written procedures that you had to follow that Hebert Brothers gave you regarding the use of respirators and working asbestos?
A: Did I have written—
Q: From Hebert Brothers?
A: No.
Q: Did you ever have a Safety Manual from Hebert Brothers or any information about this is what you do when you’re working around asbestos?
A: No.
Q: Were you ever — did—did—were you ever trained from Hebert Brothers about how to properly fit the respirator on—
A: No.
Q: —or a mask on?
A: No.
Q: All right, and so Dow — did Hebert Brothers ever provide you vrith any escape respirator?
A: No.
Q: Did Hebert Brothers ever provide you with a dust mask?
A: No.
Q: Did Hebert Brothers ever provide you with Comfo Two?
A: No.
Q: Did Hebert Brothers ever provide you with anything in regards to safety? A: No.
laQ: Okay. So if we took what Hebert Brothers did when it came to safety, you would have no protection at all; would you?
A: (No audible response).
Q: Is that true?
A: I mean, Dow supplied us with — with the safety, but you know, Hebert Brothers didn’t give it to us, if you’re going to say it like that.
Q: And if you’re going to have to get it from Hebert Brothers, if they were going to provide you with a safe place to work, you would have gotten nothing; right?
A: (No audible response).
Q: Is that correct?
A: Yeah; I guess.
(Emphasis added.)

The majority suggests Mr. Snearl’s testimony is less important, because he did not begin to work at Dow until 1972 some nine years after Mr. Watts began working there. The majority relies heavily on the testimony of Sirkil Pania who worked there from 1957 until 1972. However, Mr. Pania’s testimony was almost the same as that of Mr. Snearl; he stated:

Q: Let’s be right up front. Did anybody every instruct you from Hebert Brothers to put on respiratory protection when you were around that slurry, when they were dumping those bags in, and the asbestos was flying up, and the fans was pushing it down, out into the building? Anybody ever tell you to wear respiratory protection?
A: No. No.
Q: Okay. In fact, sir, the only respiratory protection you were ever given by Hebert Brothers was a little escape thing; wasn’t it?
A: Right. Right.
Q: All right. In any of your time, or I should say, did you ever have any safety meetings while you worked for Hebert Brothers?
A: About once a month.
Q: All right.
A: That’s in chlorine.
Q: In chlorine.
A: That’s right.
Q: Okay. Okay, and we can talk about the other side in a moment, but for — for purposes of — of right now, we want to talk about what you were doing with Mr. Watts. So, in the Chlorine Unit, you have a safety meeting about once a month?
A: About once a month.
Q: Okay. Was there ever, ever any time between 1963 and 1972 when you were working in the Chlorine Unit that anybody at any of those safety meetings ever discussed the dangers of asbestos? A: No.
Q: Okay. We talked for a moment earlier about the escape respirator, excuse me.
A: Right.
14Q: Did anybody for Hebert Brothers ever tell you to wear a dust mask when you worked around asbestos?
A: No.
Q: Anybody [for Hebert Brothers] ever tell you to wear a respirator when you worked around—
A: No.
Q: —asbestos?
Q: Okay, and we’ve already established that nobody at Hebert Brothers ever told you about the dangers of asbestos? A: Right.
(Emphasis added.)

Again, the questions all were concerned with the failure of Hebert Brothers to provide adequate protection for Mr. Watts or other employees. But, these questions must be considered in the context of an attempt by the plaintiffs’ attorneys to prove all the responsibility was on Hebert Brothers. None of the witnesses were asked what Dow did or did not provide or did or did not tell the employees. These questions were only asked about Hebert Brothers. In spite of the lack of evidence on the issue, the majority makes a huge leap and concludes that Dow failed to take reasonable steps to prevent the injuries to Mr. Watts. There is ample evidence that Hebert Brothers failed to prevent Mr. Watts’ injuries; there is no such evidence that Dow failed to do so.

The vast majority of testimonial evidence regarding Dow’s practices was about the safety measures it instituted. Dow placed air monitors on Hebert Brothers’ employees, and provided them with safety equipment, including respirators. Dow’s plant doctor performed annual physical examinations on Hebert Brothers’ employees including chest x-rays and breathing tests, and Dow conducted safety orientations and weekly safety meetings. There is testimony that Dow supervised Hebert’s employees to the extent that Dow could cause an employee to be fired for not wearing a respirator, and that Dow employees told Hebert Brothers what work was to be done. But there was absolutely no evidence elicited by the plaintiffs that indicated an intention to establish that Dow and |fiHebert Brothers were solidarily liable. In fact, they argued vigorously that Hebert Brothers was the only party at fault.

Dow did provide the asbestos to Hebert Brothers for distribution to their employees so they could perform the tasks that Dow required. Also, there was testimony that a Dow employee was on the premises, in a supervisory capacity, when Hebert Brothers were working. However, we cannot say that Dow failed to take reasonable measures to protect persons on its premises from unreasonable risks of harm. In fact, the evidence adduced at trial established that Dow did make reasonable efforts to protect persons on its premises from harm. The plaintiffs failed to prove that these efforts were inadequate or unreasonable.

Directed Verdict/Judicial Estoppel

The plaintiffs moved for a directed verdict, arguing that it had been conclusively proven that: (1) Watts was not contribu-torily negligent; (2) Hebert Brothers was at fault; and (3) no party other than Hebert Brothers was at fault. This indicates that the plaintiffs did not have any intention of proving fault on the part of Dow, and they did not believe any proof of liability by Dow had been established. They vigorously maintained this position throughout the trial. Plaintiffs’ counsel avoided presenting any evidence of the fault of any entity other than Hebert, then advised the court that it had presented no such evidence. While I recognize that this argument is not evidence, it is certainly the plaintiffs’ opinion of the evidence.

The majority suggests this complete shift in positions is analogous to a party pleading alternative theories of liability or causes of action. The majority suggests there is no prejudice shown by Hebert Brothers and the legal effect of the plaintiffs’ inconsistent arguments is of no moment to its appellate review. This position completely ignores the facts. First, the plaintiffs’ petition made no allegations of fault on the part of Dow and alleged that Hebert Brothers was solely ^responsible for their damages. An alternative plea provides notice to the defendant of the various theories that may be raised and argued. The defendant knows what to expect and, more importantly, what he must defend against, even if it is in the nature of an alternative claim. No notice equates to prejudice to the defendant.

Secondly, this is not a case analogous to alternative pleading. Rather, it is a case where judicial estoppel should apply. The doctrine of judicial estoppel prohibits parties from deliberately changing positions according to the exigencies of the moment. The doctrine is intended to prevent the perversion of the judicial process and prevents playing fast and loose with the courts. Lowman v. Merrick, 2006-0921 (La.App.lst Cir.3/23/07), 960 So.2d 84, 92.

Plaintiffs’ counsel argued strenuously as follows in describing the evidence (or lack of evidence as to any fault by Dow):

There’s no evidence ... of fault of any other party, other than the employer. Hebert Brothers, in this case. I know there has been some talk about what goes on the verdict, but just for the record, we move [for] Directed Verdict on the issue of any other fault, other than the employer on [sic] this case. And in conjunction with that, we move for a Directed Verdict, because the only evidence uncontradicted, is the employer is at fault in this case....
In fact, the only evidence in this case, that could be — viewing in the light most favorable, is that Dow provided certain things. Dow did this, Dow did that. It’s unclear when Dow did all those things, prior to 1976, that’s the employers’ duty to provide a safe place to work. There’s no evidence that there’s any evidence that that happened. In fact, the evidence is totally opposite. If anybody did anything, it was Dow, who is not even in this case, who I have already moved for a Directed Verdict on that issue. Anyone else’s fault, any other causation, I have moved for a directed verdict on both issues, that there is ... no evidence on causation from asbestos exposure, other than Hebert Brothers, I move for that, and no evidence of fault of any other party.
The only evidence presented, from the stand, is that the plaintiffs have put evidence, through their witnesses ... that the employer failed to provide a safe place to work. Who cares what Dow did or didn’t do? [W]e move for a Directed Verdict, since there is uncon-troverted evidence that asbestos if is [sic] a cause, it was caused only because of the fault and the exposure, due to the employer. That’s the only evidence in this case.

Having advanced this argument throughout the trial, the plaintiffs should not be allowed to advance an inconsistent and different argument when the initial one 17no longer suits their needs. Indeed, the theory of judicial estoppel is designed to prevent this exact type of gamesmanship. Hotard v. State Farm Fire & Cas. Co., 286 F.3d 814, 818 (5th Cir.2002), citing Showboat Star P’ship v. Slaughter, 2000-1227 (La.4/3/01), 789 So.2d 554, 561. Quantum

I also disagree with the majority’s decision on quantum. 1 do not believe the jury’s determination of the amount of an award of general damages is a finding of fact as maintained by the majority. The majority cites La. C.C. art. 2424.1, which provides that the judge or jury has much “discretion” in the assessment of damages. Further, the majority suggests that its “review of the record shows no abuse of the jury’s vast discretion.” I think both statements correctly state the law that a general damage award is subject to a review for an abuse of discretion. In contrast, a special damage award is a factual determination and subject to review under the manifest error standard.

Special damages are those which refer to specific expenses that may be quantified and which arose out of the consequences of the defendant’s behavior. See Pirtle v. Allstate Ins. Co., 11-1063 (La.App.1st Cir.5/4/12), 92 So.3d 1064, 1067, writ denied, 12-1268 (La.9/28/12), 98 So.3d 839. The standard of review for special damages was set forth by the Louisiana Supreme Court in Kaiser v. Hardin, 06-2092 (La.4/11/07), 953 So.2d 802, 810, as follows:

Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses and lost wages. In reviewing a jury’s factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole: [In order to reverse,] [t]here must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. (Citations omitted).

Thus, special damages would include past lost wages, future loss of income or earning capacity, and past and future medical expenses.

|sOn the other hand, general damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La. App. 1st Cir.), writs denied, 605 So.2d 1373 and 1374 (La.1992). The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration. Jenkins v. State ex rel. Dep’t of Transp. and Dev., 06-1804 (La. App.lst Cir.8/19/08), 993 So.2d 749, 767, writ denied, 08-2471 (La.12/19/08), 996 So.2d 1133. Much discretion is left to the judge or jury in the assessment of general damages. La. C.C. art. 2324.1. In reviewing a general damage award, a court does not review a particular item in isolation; rather, the entire damage award is reviewed for an abuse of discretion. Smith v. Goetzman, 97-0968 (La.App.1st Cir.9/25/98), 720 So.2d 39, 48.

It is only when the general damage award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances, that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976); Turner v. Ostrowe, 01-1935 (La.App.lst Cir.9/27/02), 828 So.2d 1212, 1216-17, writ denied, 02-2940 (La.2/7/03), 836 So.2d 107.

Therefore, I believe the majority is incorrect in its assertion that the amount of an award of general damages is a finding of fact and subject to the manifest error standard of review. This appeal only involves the general damage award for 19the plaintiffs’ survival action claims. I believe a general damage award is subject to the abuse of discretion standard of review. The jury gave a general damage award of $875,000.00 for Mr. Watts’ laryngeal cancer. This was diagnosed in 1994 and resulted in the removal of his larynx and he had to live mute until his death in 2001, over seven years. The jury gave a general damage award of $2,750,000.00 for his lung cancer. It was diagnosed in the summer of 2001 and Mr. Watts died only a few months later on October 31, 2001. It is only the amount of this latter award that is being appealed, as the award for the laryngeal cancer was not appealed. The majority concludes that this award for Mr. Watts’ lung cancer was not an abuse of discretion; however, I disagree and think this amount is indeed an abuse of discretion, particularly when the amount is compared to the much lesser award for the laryngeal cancer, from which Mr. Watts suffered for a much longer time.

For these reasons, I respectfully dissent from the majority opinion. I would reverse the finding that any liability on the part of Dow was proven and, under the principle of judicial estoppel, would have prevented the plaintiffs from making that argument. Further, I would review the general damage award under an abuse of discretion standard and reduce it accordingly.

      . Although this corporate entity has had several predecessors, Hebert Brothers Engineers, Inc. is the undisputed proper party defendant.

      . The lawsuit was instituted by Alfred and his wife Rosa Lee. After Alfred's death, the trial court signed an order substituting as party plaintiffs Rosa Lee, in her capacity as Alfred’s surviving spouse, as well as Helen Mallion, Gwen Burnstein, Joyce Watts, and Alfreda Watts, who are Alfred's surviving children.

      . At the hearing held as a result of this court’s remand order, the parties argued over whether the matter was before the trial court as a directed verdict or an exception of prescription. The distinction arose because if the trial court treated the issue of whether the Watts’ claims were timely asserted as an exception of prescription, additional evidence was admissible under La. C.C.P. art. 931. Although the Watts’ additional evidence was admitted by the trial court in an abundance of caution, that evidence is not contained in our record. On appeal, the Watts maintain that the evidence admitted at the trial on the merits established the timeliness of their claims. Thus, on review, it is unnecessary to classify the procedural basis for consideration of the timeliness of the Watts’ claims, and we preter-mit such a discussion.

      .In issuing its ruling on remand, the trial court stated that "as fact finder ... [it] finds substantial evidence of Dow's ... [solidary] liability.” Hebert Brothers maintains the trial court applied the wrong standard of proof to find that the Watts had proven Dow's soli-dary liability and suggests that this constituted legal error that interdicted the fact finding process. Proof by a preponderance of the evidence means that taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not. Connelly v. Connelly, 94-0527 (La. App.lst Cir. 10/7/94), 644 So.2d 789, 798. It is axiomatic that proof by substantial evidence is necessarily a heightened standard. While we agree with Hebert Brothers' suggestion that the applicable standard of proof in this case is preponderance of the evidence, we question whether the trial court actually applied a heightened burden of proof. Even so, any such error did .not and could not have prejudiced Hebert Brothers. Thus, this assertion is without merit.

      . We note, moreover, that the record also supports a finding of Dow’s liability based on negligence. Because there is an almost universal duty to use reasonable care to avoid injury to another, see Rondo v. Anco Insulations Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065, 1086-94, Dow's custodial liability falls within the ambit of such a broad duty and this record contains evidence to support findings that Alfred experienced significant exposure to asbestos, he received an injury substantially caused by that exposure, Dow’s failure to use reasonable care to avoid injury was a cause-in-fact, i.e., a substantial factor in generating Alfred's harm, and the risk that he would develop laryngeal and lung cancers was one within the scope of Dow’s duty.

      . We find no merit in Hebert Brothers’ contention that the Watts failed to sufficiently plead a solidary relationship between it and. Dow since Dow was no longer a defendant at the time the Watts filed the supplemental petition that added Hebert Brothers; the supplemental allegations did not include any averred liability on Dow’s part; and, therefore, the Watts' "blanket allegations” of the solidary relationship of all the defendants could not have included Dow. Un-objected to evidence of issues not contained in the pleadings that is admitted at trial serves to enlarge the pleadings. Such evidence is "treated in all respects as if [it] had been raised by the pleading[s].” Hopkins v. American Cyanamia Co., 95-1088 (La. 1/16/96), 666 So.2d 615, 623-24 (citing La. C.C.P. art. 1154). Because the record contains evidence that supports a solidary relationship between Hebert Brothers and Dow, which was admitted without objection, we find no merit in this contention.

      . See La. Acts 1979, No. 431.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    GWS ENGINEERING, INC. v. Randy A. GOMEZ and Michael Scott Kirby.
    No. 2012 CA 1888.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2013.
    William C. Shockey, Baton Rouge, LA, for Plaintiff/Appellee GWS Engineering, Inc.
    Roy H. Maughan, Jr., Namisha D. Patel, Joshua D. Roy, Baton Rouge, LA, for Defendant/Appellant Randy A. Gomez.

      Kimberly L. Wood, Matthew W. Bailey, Baton Rouge, LA, for Defendant/Appellant Michael Scott Kirby.
    Before: GUIDRY, CRAIN, and THERIOT, JJ.
   GUIDRY, J.

Uln this action to recover amounts allegedly due on an open account, defendants, Michael Scott Kirby and Randy Gomez, appeal from a judgment of the trial court granting summary judgment in favor of plaintiff, GWS Engineering, Inc., and awarding it $79,000.46 plus interest from the date of judicial demand until paid, attorney’s fees in the amount of twenty-five percent, and all costs of the proceeding. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On January 5, 2007, Gomez and Kirby engaged GWS to provide professional land surveying and engineering services for the development of a thirty-acre tract of land on Highland Road in Baton Rouge, Louisiana. Following the initial meeting, GWS sent an engagement letter, addressed to Kirby, outlining the initial scope of services GWS could perform for them. GWS thereafter opened a file for the new project and created an initial work order on February 1, 2007, with Gomez and Kirby listed as the clients. GWS performed professional engineering and land surveying services from January 2007 to April 2009 on an open account. Kirby paid all of the invoices on the account through December 2007 by use of temporary checks written on a Business First account. Some of these checks had a notation that they were drawn on the account of “Trinity,” some said “Highland,” and some were left blank. No further payments were made on the account after December 2007.

Thereafter, on November 13, 2009, GWS filed a petition in suit on open account, originally naming Gomez and Trinity Capital Development of Louisiana, LLC as defendants, but thereafter amending and restating its petition to name Gomez and Kirby as defendants. The petition alleged that GWS performed professional engineering and land surveying services as outlined and ordered by Gomez and Kirby |oOn an open account contract, and that Gomez and Kirby are indebted in solido to GWS for the sum of $79,000.46, plus legal interest from date of judicial demand until paid in full, reasonable attorney’s fees, and costs of the proceeding.

GWS asserted that at all pertinent times, Gomez and Kirby appeared to GWS and its employees as equal individuals in some real estate joint venture and at no time indicated that they were acting on behalf of anyone else, any entity, or representing some company, entity, or partnership. GWS also asserted that Gomez and Kirby engaged in a course of conduct that let GWS to believe they were acting on their own behalf and personally in charge of the project, requesting the work to be performed, and that they agreed to pay all amounts charged on their account with GWS in accordance with the two proposal letters.

Gomez answered the petition, generally denying GWS’s allegations and further asserting that he did not contract with GWS in his individual name or capacity nor did he sign any agreements guaranteeing the debts of Trinity Capital Development of Louisiana, LLC. Kirby also answered the petition, generally denying GWS’s allegations and further asserting that he at no time was affiliated with or associated with Highland Developments, LLC, Gulf States Health Services, Trinity Capital Partners, Trinity Capital, or any other entity in which Gomez was a member. He further asserted that he at no time held himself out to be a partner of Gomez and/or a member of the aforementioned entities, nor did he enter into any agreement, contract, or open account with GWS either individually or on behalf of an entity.

Thereafter, on May 7, 2012, GWS filed a motion for summary judgment, stating that although Gomez and Kirby allege they are not personally liable for the debt owed to GWS because they were acting on behalf of some entity, there is no proof that Gomez and Kirby were acting on behalf of an entity when they engaged GWS, that they disclosed an entity or agency relationship when they engaged GWS, or that GWS knew that Gomez and Kirby were acting on behalf of some entity. ] 4Accordingly, GWS asserted that there is no genuine issue of material fact that Gomez and Kirby failed to disclose that they were acting as mandataries of an entity when they contracted with GWS for professional engineering and land surveying services, and therefore, GWS is entitled to judgment as a matter of law finding Gomez and Kirby individually and personally liable, in solido, to GWS for the outstanding debt.

Following a hearing on the motion, the trial court granted summary judgment in favor of GWS and against Gomez and Kirby in the full amount of $79,000.46, plus interest from date of judicial demand until paid, attorney’s fees in the amount of twenty-five percent, and costs of the proceeding. Gomez and Kirby now appeal from the trial court’s judgment. GWS answered the appeal and requested an additional award of attorney’s fees for services rendered in connection with the appeal.

DISCUSSION

An appellate court’s review of a summary judgment is de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. R.G. Claitor’s Realty v. Rigell, 06-1629, p. 4 (La.App. 1st Cir.5/4/07), 961 So.2d 469, 471-72, writ denied, 07-1214 (La.9/21/07), 964 So.2d 340. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

On a motion for summary judgment, the burden of proof is on the mover. La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, he need only demonstrate the absence of factual support for one or more essential elements of the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of Immaterial fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 06-1558, p. 8 (La. App. 1st Cir.5/4/07), 961 So.2d 404, 408, writ denied, 07-1123 (La.9/21/07), 964 So.2d 338. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Fernandez, 06-1558 at p. 8, 961 So.2d at 408. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Fernandez, 06-1558 at p. 8, 961 So.2d at 408.

A mandatary who contracts in the name of the principal within the limits of his authority does not bind himself personally for the performance of the contract. La. C.C. art. 3016. On the other hand, a mandatary who contracts in his own name without disclosing his status as a manda-tary binds himself personally for the performance of the contract. La. C.C. art. 3017. Additionally, an agent who enters into a contract and discloses his status as a mandatary, though not his principal, binds himself personally for the performance of the contract. The mandatary ceases to be bound when the principal is disclosed. La. C.C. art. 3018. The agent has the burden of proving that he disclosed his agency status and the identity of his principal if he wishes to avoid personal liability. Frank’s Door & Building Supply, Inc. v. Double H. Construction Company, Inc., 459 So.2d 1273, 1275 (La.App. 1st Cir.1984).

According to the record, Gomez and Kirby met with GWS on January 5, 2007, to discuss GWS performing professional engineering and land surveying services for a thirty-acre tract of land on Highland Road. On the same date, GWS sent a work proposal to Kirby. The proposal does not bear Gomez or Kirby’s signature; however, Lon January 25, 2007, Gomez and Kirby met with GWS and requested that work begin. Thereafter, GWS performed preliminary work and issued an invoice on March 1, 2007 for services rendered from February 1, 2007 through February 25, 2007. The invoice listed Kirby as the owner and was mailed to his home address. Kirby paid the invoice with a temporary check with “Highland” handwritten on the payor line. Thereafter, several invoices were sent to Gomez and/or Kirby for preliminary work, and Kirby paid the invoices with temporary checks with “Highland,” “Trinity,” or nothing handwritten on the payor line. On January 22, 2008, GWS prepared an additional proposal of fees. This proposal, referencing assistance in obtaining a wetlands permit for the project, indicates that such work was previously proposed to be performed on a “Time Charge” basis under the “Preliminary Phase” portion of the January 5, 2007 proposal, but that GWS, though willing to continue this time charge arrangement, was requiring a $7,500.00 retainer prior to commencing the work, which would be applied toward this phase of the project. Kirby again paid the $7,500.00 retainer with a temporary check with “Trinity” handwritten on the payor line. GWS continued to perform professional engineering and land surveying services, but three invoices for these services, totaling $79,000.46, remain unpaid.

Further, in support of its motion for summary judgment, GWS submitted the affidavits of G. Wayne Sledge, the president of GWS and its primary engineer, and Brandon Acosta, employed by GWS as a senior designer, who stated that at no time did either Gomez or Kirby indicate to them or anyone else at GWS that they were acting on behalf of anyone else, any entity, or any company. Additionally, Sledge stated that when he initially met with Gomez and Kirby, they did not provide him or any other GWS employee with any business card identifying them as acting on behalf |7of some company. Sledge and Acosta stated that, at all times, they believed their clients to be Gomez and Kirby.

In opposing the motion for summary judgment, Gomez and Kirby do not assert that they expressly told Sledge or any employee of GWS that they were acting as the agents for an entity when they met with GWS to obtain its services. Rather, they assert that they are not personally liable for the debt because they presented evidence showing that sufficient evidence of the agency relationship was known by GWS so as to put it on notice of the principal/agent relationship. See J. T. Doiron, Inc. v. Lundin, 385 So.2d 450, 452-458 (La.App. 1st Cir.1980).

In 1997, the Louisiana Legislature enacted Act No. 261, which amended and reenacted Title XV of Book III of the Civil Code relative to representation, mandate, and procuration. Section 1 of Act 261 enacted La. C.C. arts. 3017 and 3018 relating to undisclosed mandate. Prior to this revision, there was no positive law in Louisiana directly addressing the concept of undisclosed mandate. Rather, the courts of this state, relying on former La. C.C. arts. 3012 and 3013 and applying common law principles of agency, held agents personally liable for debts they incurred if they failed to disclose their agency status and their principal’s identity. Frank’s Door & Building Supply, Inc., 459 So.2d at 1275-1276; J.T. Doiron, Inc., 385 So.2d at 452; Prevost v. Gomez, 251 So.2d 470, 473 (La.App. 1st Cir.1971); Chartres Corporation v. Twilbeck, 305 So.2d 730, 732 (La.App. 4th Cir.1974); Three Rivers Hardwood Lumber Co. v. Gibson, 181 So. 607, 609 (La.App. 2nd Cir.1938).

In J.T. Doiron, Inc., 385 So.2d at 452-453, this court addressed what constituted disclosure sufficient to put a third party on notice of a principal/agent ^relationship and determined that while actual written or verbal communication by the agent to the party with whom he is dealing is the best method to disclose the agent’s status, an agent may still be able to escape individual liability by proving that sufficient indicia of the agency relationship were known by the third party so as to put him on notice of the principal/agent relationship. Other courts prior and subsequent to the J.T. Doiron decision have similarly focused on whether the facts and circumstances of the case demonstrated that the third party was on notice of the principal/agent relationship in determining whether to impose personal liability on a purported agent. See George v. White, 12-101 (La.App. 5th Cir.10/30/12), 101 So.3d 1036; Irrigation Mart, Inc. v. Gray, 42,-442 (La.App. 2nd Cir.9/19/07), 965 So.2d 988, writ not considered, 07-2108 (La.12/14/07), 970 So.2d 522; Andrus v. Bourque, 442 So.2d 1383 (La.App. 3rd Cir. 1983); Three Rivers Hardwood Lumber Co., 181 So. 607; see also, Instant Print Centers, Inc. v. Crowley, 01-0336 (La.App. 1st Cir.3/28/02), 814 So.2d 69; Wilson v. McNabb, 157 So.2d 897 (La.App. 1st Cir. 1963).

GWS asserts that J.T. Doiron, however, was superseded by the enactment of La. C.C. art. 3017. We disagree. The plain language of article 3017, which closely resembles the pre-revision jurisprudence, simply states that “[a] mandatary who contracts in his own name without disclosing his status as a mandatary binds himself personally for the performance of the contract.” Article 3017 does not, however, address what type of disclosure is sufficient to absolve an agent of personal liability; specifically, it does not specify that an agent is required to expressly disclose, either verbally or in writing, that he is acting as an agent.

“Disclose,” as that term is generally defined, means “to expose to view” or “to make known.” Webster’s New College Dictionary 330 (3rd ed. 2008). The language in J.T. Doiron and its progeny allowing for proof of “sufficient indicia of the agency relationship” comports with the generally-prevailing meaning of “disclose,” and 1 ¡¡therefore, we find that it is still applicable in determining whether an agent has disclosed his status as a mandatary to the third party. Cf. La. R.S. 24:177(C); see also Irrigation Mart, Inc., 42,442 at pp. 3-5, 965 So.2d at 991-992 (applying the rule enunciated in J.T. Doiron in conjunction with article 3017).

The determination of whether an agency relationship exists and in turn, whether that relationship has been disclosed, is a factual determination which must be decided on a case-by-case basis. See George, 12-101 at p. 13, 101 So.3d at 1044; Rodgers v. North Louisiana Amusement & Gaming, L.L.C., 45,700 (La.App. 2 Cir. 12/15/10), 56 So.3d 289, 291, writ denied, 11-0120 (La.3/4/11), 58 So.3d 481. In opposing GWS’s motion for summary judgment, Gomez offered a no work affidavit, signed by Sledge a short time after meeting with Gomez and Kirby, which states that at the request of Trinity Capital Development of Louisiana, Inc., he inspected the job site, which is the same site listed on GWS’s proposal, work orders and invoices, and that no work has begun at the site and no materials have been furnished. Gomez also introduced copies of invoices sent by GWS to Gomez and/or Kirby with checks paid from Trinity’s account. Additionally, Gomez introduced a copy of the second proposal sent by GWS to Kirby and Highland Development, LLC, which contained additional terms and an updated fee schedule. The retainer for this proposal was also paid by Kirby with a check identifying “Trinity” as the payor. Further, the unpaid charges on the account for services rendered by GWS, for which GWS is now seeking payment, were incurred subsequent to the second proposal and the payment thereof.

Accordingly, from our review of this and other evidence in the record, we find that a genuine issue of material fact exists as to whether sufficient indicia of the agency relationship were known by GWS when it contracted to provide professional engineering and land surveying services so as to put it on notice of Gomez and Kirby’s status as agents.

^CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court, granting summary judgment in favor of GWS and awarding it $79,000.46 plus interest from the date of judicial demand until paid, attorney’s fees in the amount of twenty-five percent, and all costs of the proceeding, and remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to GWS Engineering, Inc.

REVERSED AND REMANDED.

      . The trial court signed an order on December 20, 2010, granting GWS’s motion for leave to file an amended and restated petition and ordering that GWS's amended and restated petition be filed and that the caption be amended to read: GWS Engineering, Inc. v. Randy A. Gomez and Michael Scott Kirby.

      . We note that in his brief, Gomez asserts that the only invoices bearing his name as an owner were invoices from 2008 and 2009, which he asserts did not originally list him as the owner, but were altered in response to the instant litigation. However, an invoice dated November 5, 2007 lists Kirby as an owner and is addressed to Gomez's attention.

      . Former La. C.C. art. 3012 provided: "The mandatary, who has communicated his authority to a person with whom he contracts in that capacity, is not answerable to the latter for anything done beyond it, unless he has entered into a personal guarantee.”
      Former La. C.C. art. 3013 provided: "The mandatary is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers.”

      . In light of the reversal of the trial court's summary judgment, we deny GWS’s request for an award of additional attorney’s fees for services rendered in connection with the appeal.


author: ROSEMARY LEDET, Judge.

text:
    Daniel P. and Shirley J. WAGNER, Michael J. and Michelle H. Appleton, Individually and on Behalf of their Minor Children, Hunter and Mason Appleton v. TAMMANY HOLDING COMPANY, LLC, et al.
    No. 2013-CA-0374.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 2013.

      James K. Ordeneaux, Andrew L. Plauche’, Jr., Attie B. Carville, Plauche’ Maselli Parkerson LLP, New Orleans, LA, for Plaintiff/App ellee.
    Robert S. Reich, Lawrence Richard Plunkett, Jr., Jonathan Markovich, Reich, Album & Plunkett, L.L.C., Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| ¶ This is an insurance coverage dispute. From the trial court’s judgment granting the motion for summary judgment filed by the third-party defendant, Houston Specialty Insurance Company (“Houston”), the third-party plaintiff, St. Tammany Holding Company, LLC (“THC”), appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2010, THC leased to the Louisiana Department of Transportation and Development (“DOTD”) approximately seventy of the three thousand acres of undeveloped vacant land that THC owned in St. Tammany Parish (the “Leased Property”). According to the lease agreement, the purpose of the lease was as follows:

The leased premises will be used as a mobilization, lay-down and staging area for DOTD and CPRA/OCPR [Coastal Protection and Restoration Authority of the State of Louisiana/Office of Coastal Protection and Restoration] projects to demolish, store, and degrade a portion of the Existing Twin Span Bridge across eastern Lake Pontchartrain between St. Tammany and Orleans Parishes, which is no longer open as a highway for vehicular traffic.

|2The lease also provided for the placement on the Leased Property of “[t]wo (2) triple-wide jobsite trailers with heating and air conditioning systems, approximately thirty-six (36') feet in width by sixty (60') feet in length” for the use of DOTD’s contractors. Thus, the purpose of the lease was to use the Leased Property as the staging area for DOTD’s contractors’ concrete crushing operations.

In January 2012, four individuals who reside in the residential area adjacent to the Leased Property (the “Plaintiffs”) commenced the instant suit against, among others, THC. The allegations contained in Plaintiffs’ petition pertinent to the instant coverage dispute are as follows:

• In connection with the demolition of the original 1-10 Twin Spans, [THC] entered into a lease in September 2010 with the DOTD, whereby an undeveloped portion of [THC’s property — the Leased Property] that is directly adjacent to Lakeshore Estates would be used as a staging area.
• Once bridge pieces are placed at the staging area, they are sorted, reduced in size, ground into smaller sizes, placed in metal rebar mattresses, and transported from the staging area to a land bridge in Lake Borgne and/or to Bayou Savage.
• The work performed by [DOTD’s contractors] ... produces extremely high levels of concrete dust and particulate matter composed of quartz and other forms of crystalline silica. Uncontrolled dust becomes airborne and is blown from the staging area. This dust accumulates on the properties of the Petitioners, including, but not limited to, on their homes, cars, boats, etc., in their pools and ponds, and in their homes. The airborne dust also causes adverse health effects to the Petitioners via contact to the skin and eyes and via inhalation.
• The work performed by [DOTD’s contractors] ... generates high level of vibrations and movement of the ground.... The vibrations, movement of the ground and/or pile driving has resulted in cracks at various points in the concrete slabs and homes of Petitioners.
• On a typical day and/or night, the dust, noise, and vibrations emanating from the concrete crushing operations can be seen, heard, and felt throughout the Areas of Concern. The dust, noise, and vibrations are sufficient to cause | ¡¡physical discomfort and annoyance to Petitioners, and any person of ordinary sensibilities, thereby constituting a nuisance.
• Pursuant to La. C.C. arts. 667-669, THC ... ha[s] an affirmative duty not to use the property in a manner that unreasonably deprives their neighbors of reasonable enjoyment of their neighboring home and/or property.

Plaintiffs prayed for injunctive relief, a declaratory judgment, class certification, and damages.

In April 2012, THC filed a third party demand against its insurer, Houston. In its third party demand, THC alleged that the following facts supported its claim: (i) it had answered and denied the allegations of Plaintiffs’ petition; (ii) it had incurred, and will continue to incur (despite its denial of liability), costs in defending Plaintiffs’ suit; (iii) Houston had in effect for the policy period of April 16, 2011, through April 16, 2012, a commercial general liability (“CGL”) policy that provided THC with defense and coverage for Plaintiffs’ alleged damages; (iv) THC notified Houston of Plaintiffs’ claim and made a demand for defense and coverage under its policy; (v) on March 16, 2012, Houston denied THC’s claim for coverage and defense. THC averred that Houston’s denial of coverage and defense was unreasonable, arbitrary, and capricious and prayed for penalties and attorneys’ fees under La. R.S. 22:1892. It also averred that Houston breached its duty of good faith and fair dealing under La. R.S. 22:1973.

In response, Houston filed an answer admitting that it issued a policy of insurance to THC, that it was notified of Plaintiffs’ claims against THC, that certain demands had been made by THC, and that a written denial of coverage was made by Houston to THC in March 2012. Houston also filed a motion for summary judgment seeking dismissal of THC’s claims. In support of its motion, Houston submitted the following statement of uncontested facts:

|41. Plaintiffs have sued THC on allegations that it owned and leased immovable property (the Leased Property) to the DOTD and that it has legal liability arising out of the activities and operation of the DOTD and others on the Leased Property.
BUSINESS DESCRIPTION:
LOCATION NUMBER
1
CLASSIFICATION AND PREMIUM
2. There are no allegations that the legal liability of THC arises out of activities or operations conducted on the Leased Property by THC itself.
3. THC, in truth and fact, neither occupied the Leased Property nor performed any operations or activities of any nature on the leased property-
4. Houston issued a Commercial Lines Policy with a term of 4/16/11 to 4/16/12 to THC, but the policy provided inter alia:
NAMED INSURED ADDENDUM IT IS HEREBY AGREED AND UNDERSTOOD THAT THE NAMED INSURED SHALL READ AS FOLLOWS:
Tammany Dirt Company, LLC Tammany Holding Company Lakeshore Estates Building, Inc.
DIRT EXCAVATION & SALES
ADDRESS OR ALL PREMISES YOU OWN, RENT OR OCCUPY
3600 Lakeshore, Slidell, LA 70461
THESE DECLARATIONS, TOGETHER WITH THE COMMON POLICY CONDITIONS AND COVERAGE FORM(S) AND ANY ENDORSEMENT^), COMPLETE THE ABOVE NUMBERED POLICY.
CLASSIFICATION LIMITATION
This endorsement modifies insurance provided under the following part:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
It is agreed and understood that COVERAGE under this policy is specifically limited to those operations described by the classification in the Commercial General Liability Declarations Page or endorsed hereon.
All other terms and conditions remain unchanged.
CLASSLIMIT101 (08/10)
5. Houston’s policy was applied for, ordered, and issued as a replacement policy for a policy held by Tammany Dirt Company for its dirt excavation activities on property separate and apart from the property which THC leased to DOTD.
6. There are no allegations that the alleged legal liability of THC in this case results from any activities or operations of THC itself, and specifically there are no allegations that the alleged legal liability of THC arises out of “sand or gravel digging,” “excavation,” “vacant land,” or “distributors/no food or drink” by THC.

THC admitted that it had been sued by Plaintiffs, but it otherwise denied Houston’s statement of uncontested facts. Insofar as the policy is concerned, THC responded that the policy itself was the best evidence of its terms. THC also filed a | ficross motion for summary judgment seeking judgment against Houston on the issues of insurance coverage and defense, and statutory penalties and attorneys’ fees.

Following a hearing, the trial court on November 16, 2012, rendered judgment granting Houston’s motion for summary judgment and denying THC’s cross motion. This appeal followed.

|7DISCUSSION

We recently summarized the law applicable to summary judgment on the issue of insurance coverage and the proper interpretation of insurance contracts in Orleans Parish School Bd. v. Lexington Ins. Co., 12-1686, pp. 8-10 (La.App. 4 Cir. 6/5/13), 118 So.3d 1203, 1211-12, stating:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law....
⅜ * ‡ ⅝ Hi *
Whether an insurance policy provides for, or precludes, coverage as a matter of law is an issue that can be resolved within the framework of a motion for summary judgment. Sumner v. Mathes, 10-0438, p. 6 (La.App. 4 Cir. 11/24/10), 52 So.3d 931, 935. Generally, the interpretation of an insurance policy is a question of law. Armenia Coffee Corp. v. American National Fire Ins. Co., 06-0409, p. 6 (La.App. 4 Cir. 11/21/06), 946 So.2d 249, 253. Likewise, the determination of whether a contract is clear or ambiguous is a question of law. Cadwallader v. Allstate Ins. Co., 02-1637, p. 4 (La.6/27/03), 848 So.2d 577, 580. On the other hand, when a contract is determined to be ambiguous, an issue of material fact exists; and the matter is not ripe for summary judgment. Johnson v. Orleans Parish School Bd., 10-1388, p. 11 (LaApp. 4 Cir. 12/20/11), 80 So.3d 1175, 1183 (citation omitted).

Id. We also summarized the elemental legal principles that govern the analysis of insurance policies, stating:

Is* An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code.
• The parties’ intent as reflected by the words in the policy determine the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. LSA-C.C. Art. 2047.
• An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.
• Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume.
• [I]f the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. LSA-C.C. Art. 2046 (providing that when the words of a contract are clear, no further interpretation may be made to determine the parties’ intent).
• When the language of an insurance policy is clear, courts lack the authority to change or alter its terms under the guise of interpretation. The determination of whether a contract is clear or ambiguous is a question of law.

Id., 12-1686 at pp. 10-11, 118 So.3d at 1212-13 (quoting Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763-64 (citations omitted)).

In this case, the trial court, in finding in Houston’s favor, relied solely on its determination that the Leased Property was not vacant land under the classification limitation endorsement. In so finding, the trial court provided the following oral reasons for its ruling:

The character of the land changed from vacant to non vacant land when you put that material on there and didn’t disclose that to 19your underwriter, and I think that at that point in time you lost your coverage. So I find that there’s no coverage under this policy, so I will deny your summary judgment and grant their summary judgment.

On appeal, THC contends that the trial court erred in failing to consider two of the other listed classifications — sand or gravel digging and excavation. It contends that the policy does not require that the listed operations be conducted by a named insured. THC further contends that the trial court erred in finding the undeveloped, vacant character of the Leased Property changed. THC still further contends that the trial court erred in failing to find that Houston, at a minimum, had a duty to defend.

Houston counters that the trial court’s ruling is legally correct. In support, it emphasizes that its policy is a specialized policy because it contains a 1 ^classifications limitation endorsement. Under that endorsement, the policy provides coverage for liabilities arising out of the four specifically listed operations—excavation, sand and gravel digging, distributors—no food or drink, and vacant land— of only its insured—either the named insured, TDC, or the additional insureds, one of which is THC. Houston contends that none of the specifically listed operations are alleged to have been conducted by either THC of TDC on the Leased Property. Indeed, THC admits it conducted no operations on the Leased Property. Houston further contends that the Leased Property cannot be considered vacant land given “the very crux of the [P]laintiffs’ entire case is that their pristine residential environment adjacent to the once ‘vacant land’ has now been spoiled by the massive operations and activities of DOTD and/or its contractors—not any THC activities— on the land that used to be vacant.”

A classification limitation endorsement is essentially an exclusion that ties coverage to specifically listed operations of the insured. “Commercial general liability [CGL] policies are designed to protect the insured against losses to third parties arising out of the operation of the insured’s business. Consequently, a loss must arise out of the insured’s business operations in order to be covered under the policy issued to the insured.” 9A COUCH ON INS. § 129:2. A classification limitation endorsement “restricts coverage available under a CGL policy to specific operations of the insured while excluding coverage for activities falling outside the scope of those operations.” Joseph E.B. (Jeb) Stewart, Classification Limitations in Liability Insurance Policies, 54 No. 5 DRI For Def. 34 (May 2012) (“Stewart ”). This court has upheld the application of unambiguous classification limitation endorsements to preclude coverage. See Wickramasekra v. Associated Intern. Ins. Co., 02-2474, p. 7 (La.App. 4 Cir. 6/25/03), 890 So.2d 569, 574.

|nTo determine whether a classification limitation endorsement excludes coverage for a particular claim, it is necessary to consider the following four factors:

(1) the language of the classification limitation, which usually appears in an exclusionary endorsement;
(2) the classified operations, which appear on the declarations portion of the policy;
(3) the allegations contained in the complaint; and
(4) the law applicable to the claim for coverage.

Stewart, supra.

Applying those factors to the facts of this case, we first note that the classification limitation endorsement in Houston’s policy reads as follows: “It is agreed and understood that COVERAGE under this policy is specifically limited to those operations described by the classification on the Commercial General Liability Declarations Page or endorsed hereon.” The four classified operations listed on the declaration sheet of Houston’s policy are as follows: (1) Sand or Gravel Digging; (2) Excavation; (3) Vacant Land; and (4) Distributors-no food or drink.

The allegations contained in Plaintiffs’ petition pertinent to the instant insurance coverage dispute, as noted earlier in this opinion, are that the concrete crushing operations on the Leased Property generated noise, emitted high levels of concrete dust and particulate matter, and caused ground vibrations. Plaintiffs further averred that the noise, dust, and vibrations were sufficient to cause nearby residents to suffer physical discomfort, annoyance, and damages. Plaintiffs averred that on a typical day, the noise, dust, and vibrations constituted a nuisance under La. C.C. arts. 667 to 669 and La. C.C. art. 2315. Plaintiffs alleged that THC, as a 112landowner-lessor, had an affirmative duty, under the nuisance articles not to use its property in a manner that unreasonably deprives its neighbors of reasonable enjoyment of their property. As cited in Plaintiffs’ petition, the law on which their claims against THC is based is the nuisance articles of the Civil Code.

As noted above, THC’s first argument regarding the classification limitation endorsement is that nothing in Houston’s policy limits the application of the classifications to operations by the insured. This argument is belied by the nature and purpose of a classification limitation endorsement, which is to tie the insured’s operations to the coverage. Stewart, supra. It is undisputed that no insured conducted any operations on the Leased Property. THC’s reliance on the other classifications — sand or gravel digging and excavation — is thus misplaced. The trial court correctly focused solely on the vacant land classification.

Houston’s policy is devoid of a definition of the term vacant land. THC contends that there is no Louisiana jurisprudence addressing the meaning of the term vacant land in the commercial insurance context; rather, the Louisiana jurisprudence addressing the issue does so in the context of a homeowner’s policy. See Foret v. Louisiana Farm Bureau Cas. Ins. Co., 582 So.2d 989 (La.App. 1st Cir.1991); Tolbert v. Ryder, 345 So.2d 548 (LaApp. 3d Cir. 1977). THC contends that the Louisiana jurisprudence addressing the issue defines vacant land by focusing on the lack of a permanent structure on the property. Likewise, THC points out that Houston’s corporate representative and senior underwriter, Paul Wesley Kyle, Jr., acknowledged in his deposition that one of the definitions of vacant land is land on which there are no permanent structures. THC contends that the Leased Property is undeveloped land with no permanent structures and that its alleged liability arises strictly because of its status as owner-lessor of vacant, | ^undeveloped land. Hence, THC contends that the trial court erred in finding that the character of its Leased Property changed.

Houston counters that the term vacant land has been defined by the jurisprudence in a “common sense fashion.” In support, Houston cites Foret, supra, as the leading Louisiana case on the issue. Houston also cites the definition of “vacant” in Black’s Law Dictionary, (9th ed.2009) (“Black’s ”), in which reference is made to “vacant land;” specifically, Black’s definition of the term is as follows:

1. Empty; unoccupied. <vacant office >. Courts have sometimes distinguished vacant from unoccupied, holding that vacant means completely empty while unoccupied means not routinely characterized by the presence of a human being. 2. Absolutely free, unclaimed, and unoccupied <vacant land>. 3. (Of an estate) abandoned; having no heir or claimant. — The term implies either abandonment or nonoccupancy for any purpose.

Black’s, supra.

Addressing the significance of the context — homeowner’s policy versus other types of liability insurance — in which the issue arises, a commentator notes:

Coverage under a homeowner’s insurance policy is often extended to any vacant land, other than farm land, owned or rented by the insured. Other liability insurance contracts specifically encompass activities connected with vacant land, or less frequently, exclude coverage on the basis of vacancy. Keeping in mind the established rule that ambiguities in a policy are to be resolved against the insurer, courts have generally focused on the character of the risk intended to be assumed by the insurer, as well as on the plain, ordinary, dictionary definition of the word “vacant.”

K. Reynaga, What Constitutes “Vacant Land” Within Meaning of Liability or Property Insurance Policy Provisions, 47 A.L.R.5th 585 (1997). Regardless of the context in which the coverage issue arises, the principle of statutory construction that an undefined policy term should be construed based on the plain, ordinary meaning of the term applies. Indeed, this is a well-settled rule of statutory | ^construction that applies to insurance contracts. See Orleans Parish School Bd., supra (citing La. C.C. art.2047).

In Foret, supra, the homeowner’s policy at issue contained no definition of the term vacant land. Construing the term, the First Circuit reasoned:

The common or ordinary meaning of the term “vacant” is empty or unoccupied. Tolbert v. Ryder, 345 So.2d 548 (La.App. 3d Cir.1977), the only Louisiana case interpreting this policy provision, held that land on which 300 or more head of cattle grazed and on which farm buildings were located was not vacant. “Vacant” is thus not synonymous with “uninhabited.”
The term “vacant” has been interpreted by Florida courts as meaning devoid of inanimate objects or permanently affixed structures. American Motorist Ins. Co. v. Steffens, 429 So.2d 335 (Fla. App.1983); O’Conner v. Safeco Ins. Co., 352 So.2d 1244 (Fla.App.1977); Hehemann v. Michigan Millers Mutual Ins. Co., 240 So.2d 851 (Fla.App.1970). For-et and Cheramie were in the process of permanently affixing the mobile home to the lot at the time of the accident. Although the process had not been completed, the lot was no more vacant than if a slab had been poured for construction of a home. The lot was not empty; it was occupied by the mobile home. The accident site thus was not an insured premises under the policy.

Foret, 582 So.2d at 990.

Using an ordinary and common meaning of the term, we find the Leased Property is not vacant land. The Leased Property, like the property in Foret, supra, is not empty; it is occupied. Pursuant to the terms of the lease, it is occupied by two triple-wide jobsite trailers for DOTD’s contractors. Moreover, as alleged in Plaintiffs’ petition and established by the photographs included in the petition, a large-scale concrete crushing operation is being conducted on the Leased Property, which is the staging area for that operation. Given these undisputed facts, based on an ordinary and common meaning of the term, we find the Leased Property is not |1fivacant land. Thus, as the trial court correctly concluded, the vacant land classification is inapplicable; and there is no coverage under the terms of Houston’s policy for Plaintiffs’ claims.

Turning to the duty to defend, we find Houston has no duty to defend because there is no coverage based on the allegations of the petition. As this court has noted, “[i]t is settled that when an exclusion to a policy is applicable, the insurer owes no duty to defend or indemnify the insured.” Louisiana Citizens Property Ins. Corp. v. Age, 12-0805, p. 4 (La.App. 4 Cir. 11/28/12), 104 So.3d 675, 677 (citing Crabtree v. Hayes-Dockside, Inc., 612 So.2d 249, 251 (La.App. 4th Cir.1992)); see also Elliott v. Continental Casualty Co., 06-1505 (La.2/22/07), 949 So.2d 1247; Louisiana Stadium & Exposition District v. BFS Diversified Products, L.L.C. 10-0587 (La.App. 4 Cir. 9/15/10), 49 So.3d 49. As noted, a classification limitation endorsement is essentially an exclusion. Given our finding that there is no coverage based on the classification limitation endorsement, we find there is no duty to defend.

Our finding that Houston has neither a duty to defend nor to indemnify THC makes it unnecessary for us to address THC’s claim for penalties and attorneys’ fees under La. R.S. 22:1892 and La. R.S. 22:1973. Accordingly, we find the trial court did not err in granting Houston’s motion for summary judgment and denying THC’s cross motion for summary judgment.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The original I — 10 Twin Span Bridge, which connected Orleans and St. Tammany Parishes over a portion of Lake Pontchartrain, was damaged in August 2005 by Hurricane Katrina.

      . Tammany Dirt Company, LLC (“TDC”), THC’s wholly owned subsidiary, was formed in 2010 to perform dirt excavating activities. TDC initially obtained insurance from James River Insurance Company for the term April 16, 2010 to April 16, 2011. In its application for insurance with James River, TDC’s representative stated that all of its business operations at the premises were for dirt excavation and sales. In his deposition, THC's manager, Joseph Durel Landry, testified that when the James River policy expired, TDC desired to obtain similar coverage from Houston.

      . In support of its motion, THC submitted the following statement of uncontested facts:
      1. Houston issued a Commercial General Liability policy to THC, which was effective from April 16, 2011 to April 16, 2012 and covers the period plaintiffs allegedly sustained personal injuries and property damage.
      2. THC’s liability is limited in this suit to its status as landowner/lessor.
      3. THC put Houston on notice of this claim on February 6, 2012.
      4. THC’s policy with Houston covers claims made by Plaintiffs in this matter.
      5. THC tendered the defense of this matter to Houston, but Houston rejected and continues to reject this tender.
      6. No evidence has ever been discovered in this matter that would unambiguously exclude coverage for THC under Houston’s policy.
      7. When THC tendered its defense to Houston, Houston had sufficient information to know whether it should accept Houston’s defense.
      8. It has been over sixty days since THC tendered its defense to Houston.
      9. Plaintiffs allege the land on which the activities are being conducted is “undeveloped.”
      10. Houston admits that a definition of "vacant land” is land without any permanent buildings.
      11. There are no permanent buildings on the land involved herein.
      12. Plaintiffs allege that crystalline silica, a component of sand, is being carried through the air from the land involved herein causing personal injuries and property damages.
      13. Houston's policy does not define any of the operations set forth in its Classification Limitations.
      14. NASDI, one of DOTD’s contractors, is using five excavators on the project.
      15. Houston has not alleged any policy exclusions preclude coverage in this matter.

        16. Houston’s denial of coverage and defense is arbitrary, capricious, and without probable cause.

      . The trial court also certified as final for purposes of appeal, pursuant to La. C.C.P. art.1915, the judgment denying the cross motion for summary judgment filed by the third party plaintiff, THC. See Marseilles Homeowners Condominium Ass’n, Inc. v. Broadm-oor, L.L.C., 12-1233, p. 3 (La.App. 4 Cir. 2/27/13), 111 So.3d 1099, 1103, n. 3 (noting that "in the context of cross-motions for summary judgment, a party may obtain appellate review of the judgment denying its motion when it appeals the judgment which granted the opposing party relief on the issue” and citing Favrot v. Favrot, 10-0986, p. 2 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102 n. 1).

      . On April 9, 2012, Katrina Darcey, the insurance agent's account manager, sent the following email to the Houston's regarding a renewal quote for THC for the following year:
      Please revise your quote to reflect the change below as per your email. Also, of the 3000 acres of vacant land 70 acres is leased to the Louisiana Department of Transportation. Please review your quote to include LRO for 70 acres.
      Houston’s underwriter responded the following day by email, stating:
      Based upon the exposures below, we prefer to withdraw our quote as we do not have any intent to pick up the following exposures:
      The insured now leases 70 acres of the 3000 acres to the Louisiana Department of Transportation. The Louisiana Department of Transportation leases the 70 acres to Nasdi, LLC and Bertucci Contracting Company, LLC. Nasdi, LLC was hired by the LA DOT to demo an old bridge and Nasdi, LLC transports the concrete from the demand bridge to the 70 acres and breaks the concrete into smaller pieces. Bertucci Contracting Company, LLC then puts the broken concrete in metal baskets and transports it to Lake Borne where they will line the shoreline of Lake Borne to help prevent erosion. NOTE: The only involvement Tammany Holding Company, LLC has is they own the 3000 acres of land.
      Since we are very close to the renewal date, I will provide you with a 30 day quote, should you need additional time to replace this coverage. Please remember that the classification limitation endorsement is included with this quote, per expiring.

      . The inapplicability of the other classification besides "vacant land” — "distributors—no food or drink” — is not disputed.

      . In Tolbert v. Ryder, 345 So.2d 548 (La.App. 3d Cir.1977), the defendants argued that the homeowner's policy afforded coverage to vacant land. Rejecting that contention, the Third Circuit reasoned that "[t]he land in question had farm buildings on it, and the Ryders conducted a cattle operation thereon to the extent of running between three and four hundred head of cattle on this property.” Ryder, 345 So.2d at 553.

      . Contrary to THC's contention, we find the trial court implicitly made this same finding.