author: SAUNDERS, Judge.

text:
    Richard J. HEATH v. CITY OF ALEXANDRIA, Louisiana.
    No. CA 09-28.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.
    Gregory R. Aymond, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant, Richard J. Heath.

      Lewis Olivier Lauve, Jr., Bussey & Lau-ve, Alexandria, LA, for Defendant/Appel-lee, City of Alexandria, Louisiana.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

|,FACTS AND PROCEDURAL HISTORY:

This appeal arises from a judgment of the Ninth Judicial District Court, which denied Richard J. Heath’s (hereinafter “Heath”) application for a writ of mandamus and petition for statutory penalties and attorney fees in connection with a public records request to the City of Alexandria (hereinafter “Alexandria”).

On January 25, 2008, Heath made both oral and written requests to Alexandria for certain public records. Heath requested city council resolutions and any documents authorizing the city attorney to file suit on behalf of Alexandria. Heath also requested any records authorizing a city official to sign for pay types. Donna Jones (hereinafter “Jones”), the public records custodian for Alexandria, was unsure whether the records Heath sought were public records, because, at the top of Heath’s request, he made reference to an ongoing lawsuit between himself and Alexandria. Jones referred Heath to Charles E. Johnson, Jr. (hereinafter “Johnson”), the Alexandria City Attorney. Johnson called Heath and recommended that Heath seek the requested documents through discovery, rather than through a public records request. Neither Jones nor Johnson ever provided Heath with a final determination, in writing, as to his right to inspect or copy the requested records.

Heath filed suit asserting his right to inspect the requested documents under the Public Records Act, La.R.S. 44:1-44, on March 14, 2008. After suit was filed, Johnson faxed two of the requested records to Heath’s attorney, later testifying that he “thought that it was ridiculous for a lawsuit to be filed over a council resolution and a job description.” Johnson acknowledged that these records, while sometimes copied and filed in relation to ongoing litigation, are also generally kept as part of Alexandria’s public records.

|2In its reasons for judgment, the trial court did not address Alexandria’s failure to timely allow Heath access to the requested records or the lack of a final written determination concerning Heath’s right of access to the records. In its reasons for judgment, the trial court stated that, because Alexandria provided Heath with the requested records before trial, Heath “did not prevail in his action” and therefore was not entitled to attorney fees or penalties. Heath appeals, asserting three assignments of error.

ASSIGNMENTS OF ERROR:

1. Did the trial court err by not finding that the Plaintiff won his lawsuit by the Defendant, the City of Alexandria, not allowing him to have immediate access to the records requested instead of requiring him to make that request in writing?

2. Did the trial court err in not finding that Alexandria did not respond to in writing, through its Records Custodian, to Plaintiffs Public Records request?

3. Did Plaintiff prevail in this lawsuit by Alexandria responding to the lawsuit after it was filed, and must still pay penalties and attorney’s fees?

ASSIGNMENT OF ERROR # 1:

First, Heath asserts that Alexandria violated the Public Records Law by not immediately providing him with the records he requested. We agree.

Louisiana Revised Statutes 44:33(B) provides:

(1) If the public record applied for is immediately available, because of its not being in active use at the time of the application, the public record shall be immediately presented to the authorized person applying for it. If the public record applied for is not immediately available, because of its being in active use at the time of the application, the custodian shall promptly certify this in writing to the applicant, and in his certificate shall fix a day and hour within three days, exclusive of Saturdays, Sundays, and legal public holidays, for the exercise of the right granted by this Chapter.
(2) The fact that the public records are being audited shall in no case [sbe construed as a reason or justification for a refusal to allow inspection of the records except when the public records are in active use by the auditor.

Although Johnson testified at trial that, “[i]f there’s litigation pending, [the records at issue] ... would be kept in our risk management file,” he also stated that there were “four places where that particular [requested document] would have—could be found,” including the city clerk’s office. Therefore, because a copy of the requested records was immediately available and not in active use at the time of Heath’s request, Jones failed to comply with La.R.S. 44:33(B) when she did not immediately present the records to Heath.

ASSIGNMENT OF ERROR # 2:

Heath asserts that Alexandria violated the Public Records Act when it failed to timely and appropriately respond to his public records request, as required by La. R.S. 44:35. We agree.

Louisiana Revised Statutes 44:35(A) provides that:

Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs, and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.

Neither Jones nor Johnson: (1) allowed Heath access to the requested records within five days of his request, exclusive of Saturdays, Sundays, and legal public holidays, or (2) provided Heath with a final determination in wilting. Johnson’s phone call to Heath, while considerate, does not comply with the clear language of the public records doctrine. Though Alexandria ultimately provided Heath with |4copies of the requested records, it did so only after he instituted legal proceedings, roughly two months after his initial request. Thus, it is clear that Alexandria failed to comply with the requirements of La. R.S. 44:35(A), which then provides that Heath may “institute proceedings,” as he has done in this case.

ASSIGNMENT OF ERROR # 3:

Heath argues that the trial court erred in failing to award him attorney’s fees and penalties as a result of Alexandria’s failure to comply with the Public Records Act. We agree.

Louisiana Revised Statutes 44:35(D) states that:

If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorneys fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion thereof.

The record indicates that over two months had passed before Alexandria finally produced copies of the records Heath had requested. This time period is clearly beyond the five-day period provided for in La. R.S. 44:35(A). Therefore, it would appear that Heath is entitled to be awarded reasonable attorney fees and other costs of litigation as provided for in La.R.S. 44:35(D). Alexandria contends, however, that Heath did not “prevail” in his suit, as required by La.R.S. 44:35(D), because Alexandria faxed the requested public records to Heath’s attorney, thereby rendering these proceedings moot.

Were the court to accept this reasoning, it would allow public records custodians would be allowed to deny access to public records until suit has been filed and then, after a member of the public has incurred the costs of instituting proceedings, thereby unilaterally precluding the member of the public any possibility |fiof “prevailing” on his suit. This would hinder “[t]he right of the public to have access to the public records [, which] is a fundamental right, and is guaranteed by the constitution.” Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984) (citing La. Const. art. 12, § 3). Our supreme court has stated that “whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right of access.” Landis v. Moreau, 00-1157, p. 4 (La.2/21/01), 779 So.2d 691, 694. The supreme court has also recognized the legislature’s intent to provide the public with access to the public records in the least restrictive way possible. Title Research Corp., 450 So.2d 933. “To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights.” Id. at 936. Members of the public should not be forced to institute legal proceedings to obtain, at the very least, a final written determination regarding their right of access to the requested records, as provided by the Public Records Act. In this case, it was necessary for Heath to institute a proceeding in accordance with La. R.S. 44:35(A) to assert his rights, and his cause of action for an award under La. R.S. 44:35(D) arose when the statutory time delays lapsed. Johnson v. City of Pineville, 08-1234 (La.App. 3 Cir. 4/8/09), 9 So.3d. 313.

Though we have found a violation of the Public Records Law in this instance, we note that Alexandria argued in good faith that it believed the records Heath requested were part of ongoing litigation and thus not subject to disclosure under the Public Records Act. At trial, Johnson stated,

Mr. Aymond, I knew that there was a pending lawsuit between the city of Alexandria and Mr. Heath. I knew that the documents he was requesting were properly obtainable through discovery and not through a public records request. I explained that to him on the phone. I thought that I was being a courteous public servant by calling him personally and telling him that your lawyer can get these documents through |6discovery. The discoveiy rules trump the public records law if there is a suit filed[] [Heath] didn’t understand that because he is not a lawyer or for whatever reason. I object to his characterization that I was agitated. I deal with hundreds of requests like this all the time, sir.

Alexandria cites La.R.S. 44:4(15) in support of its position. Louisiana Revised Statutes 44:4 states:

This Chapter shall not apply:

(15) To any pending claims or pending claim files in the custody or control of the office of risk management, division of administration, or similar records in the custody of any municipality or parish; to any information concerning pending legal claims in the files of any attorney representing the state or any municipality in connection with the office of risk management, division of administration, or any office with similar responsibilities of any municipality or parish; or to any pending claims relating to loss reserves maintained or established by the office of risk management, division of administration, or any office with similar responsibilities of any municipality or parish, for any claims or for losses incurred but not reported; however, this Chapter shall be applicable to reserves as reported in the financial statement of the office of risk management, division of administration, or any municipality or parish. Nothing in this Paragraph shall be construed or interpreted in a manner as to prevent or inhibit in any manner the chairman and vice chairman of the Joint Legislative Committee on the Budget and the litigation subcommittee of the Joint Legislative Committee on the Budget from obtaining dollar amounts billed by and paid to contract attorneys and experts in defense of claims against the state that the chairman or vice chairman, or the subcommittee determines is necessary to perform functions and duties relative to the evaluation of performance or the determination of budget policy; however, no legislator or any committee of the legislature shall disclose any confidential information so obtained that would jeopardize or have a detrimental effect on the litigating position of the state.

|7However, La.R.S. 44:4(15) does not to apply for two reasons. First, we note that even if the records in question were found to be exempt from disclosure under the Public Records Law, Heath was entitled to receive a final written determination as to whether he had the right of access to the records within five days from his request, exclusive of Saturdays, Sundays, and legal holidays. La.R.S. 44:35(A). At trial, Heath’s attorney asked Johnson whether he provided Heath with a written determination:

Q. Aright. Did you at any time, any time, notify Mr. Heath in writing the reasons why he was not getting the documents he had requested in writing?
A. No, I did not and I didn’t have to because I knew there was a pending suit between the city and—
Q. Well, we’re not—
A. — Mr. Heath—

Because Heath was never provided a final written determination regarding his right of access to the public records, the custodian of said records is in violation of the Public Records Law.

Second, it is clear that the records in question are not exempt from disclosure under La.R.S. 44:4(15). In adopting La. R.S. 44:4(15), the legislature was seeking to protect the work product of state, parish, and municipal attorneys.

[In] the audio-taped proceedings of the Committee on House and Governmental Affairs conducted on May 27, 1987 ... Mr. Daryl Hunt, a representative of the Division of Administration, explained to the legislative committee members that two bills being introduced, including the one that would exempt ‘pending claims or pending claim files’... from public access, were designed to ‘provide [the office of risk | smanagement, division of administration, or any office with similar responsibilities of any municipality or parish] the same rights that any lawyer building a case would have.’

Times Picayune Publ’g Corp. v. Bd. of Supervisors of La. State Univ., 02-2551, pp. 9-10 (La.App. 1 Cir. 5/9/03), 845 So.2d 599, 607, writ denied, 03-1589 (La.9/5/03), 852 So.2d 1044. We are of the opinion that it was not the intent of the legislature to provide an exception to the Public Records Law for the types of documents at issue here, the public nature of which cannot be altered by placing the originals or copies thereof in the active litigation files of a city attorney. Obviously “any lawyer” cannot exempt from disclosure a public record by placing a copy of that record in his litigation files while building a case. There appears to be no reason why a special exception should be made for public records contained in the litigation files of city attorneys or any of the other offices described by La.R.S. 44:4(15). Louisiana Revised Statutes 44:4(15) is designed to protect attorney work product and other materials‘created specifically for a particular claim. Had Alexandria been concerned about the possible release of nonpublic documents contained in Johnson’s files, La.R.S. 44:32(B) provides that “the custodian may separate the nonpublic record and make the public record available for examination.”

Accordingly, Heath is hereby awarded reasonable attorney fees in the amount of $2,500.00 and all court costs associated with this litigation, pursuant to La.R.S. |944:35(D). While La.R.S. 44:35(E)(1) provides for additional penalties where the custodian acted arbitrarily or capriciously, it does not appear from the record that such penalties are warranted in this case, given Alexandria’s courteous treatment of Heath and its good faith belief in its interpretation of La.R.S. 44:4(15).

CONCLUSION:

For the foregoing reasons, we reverse the judgment of the trial court and award Heath court costs and attorney fees in the amount of $2,500.00.

REVERSED.

      . The rules of discovery do not appear to have any bearing on a member of the public's right of access under the Public Records Law. In Bauer v. Maestri, 96-112 (La.App. 5 Cir. 6/7/96), 676 So.2d 1096, Bauer, a parish employee who had five pending civil service appeals with Jefferson Parish, sought to compel production of various parish government documents. On appeal, Jefferson Parish argued that, because Bauer had originally sought the documents through discovery in connection with his ongoing lawsuit with the parish, the documents were exempt from disclosure- under the Public Records Law. The fifth circuit rejected Jefferson Parish’s argument stating, "such a denial of discovery would not be dispositive of Bauer’s right to access under the Public Records Law." Id. at 1100.

      . Heath requested city council resolutions and job descriptions, along with any documents authorizing the city attorney to file suit on behalf of Alexandria and any records authorizing a city official to sign for pay types.

      . It is well-settled that public records custodians “do not have authority to transfer custody of public records to another so as to insulate those records from public inspection.'' Times-Picayune Publ'g. Co. v. Johnson, 94-790, pp. 3-4 (La.App. 4 Cir. 10/3/94), 645 So.2d 1174, 1176, writ denied, 95-83 (La.3/17/95), 651 So.2d 260.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alphonse J. GILMORE.
    No. 2008-KA-1398.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 6, 2009.
    Leon A. Cannizzaro, Jr., District Attorney, David S. Pipes, Jr., Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

|! Defendant-Appellant appeals his conviction and sentence for unauthorized use of a motor vehicle. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant Alphonse Gilmore was charged on November 28, 2007 with one count of unauthorized use of a motor vehicle, a charge to which he pled not guilty at his arraignment on December 10, 2007. The court heard and denied a motion to suppress the evidence on January 9, 2008.

At trial, Anthony Augello (“Augello”) testified that he owned a gold Chevy Malibu. On September 25, 2007, he parked the Malibu in a self-service parking lot across the street from University Hospital at approximately 11:00 a.m. Auguello stated that he could not remember if he locked the car, but that he took his keys with him when he left the car, and a valet key was left in the center console of the car. When Aguello returned to the parking lot at approximately 5:00 p.m. after receiving medical treatment, the car was gone, and he reported the theft of his car to the police.

la-Arguello further testified that when he retrieved the car a few days later, the car had no broken windows or other evidence that the car had been broken into; that his old driver’s license, which he had stuck in some plastic that was over the driver’s side door, was still in the place where he had left it; and his registration to the car was still in the glove compartment. Notably, Aguello stated that he did not know Defendant and had not given him permission to use his car.

Detective Todd Durel (“Det. Durel”) testified that on September 27, 2007, he was conducting a surveillance of 3403 Paris Avenue, and shortly after 1:30 p.m. he saw two men, Defendant Alphonse Gilmore and Sterling Harris, exit the residence and walk to a gold 2005 Chevy Malibu. Det. Durel stated that he observed Gilmore use a key, which was by itself on a key ring, to enter the car, and that Gilmore entered the driver’s side of the car, while Harris entered the passenger side. Det. Durel noted that the men left in the car, returned almost an hour later, and again left in the car approximately half an hour after that, at which time Defendant used the key to enter the car and drive away. After running the license plate number on the car and learning that it had been reported stolen two days earlier, Det. Durel testified that because he was conducting the surveillance, he radioed other officers who met with him and ultimately arrested Defendant at the scene. Det. Durel did not prepare the police report, nor did he speak with the vehicle’s owner.

Similarly, Officer Michael Stalbert (“Off. Stalbert”) testified that he met with Det. Durel and verified that the car was stolen; he arrested Defendant as he was standing next to the car, searched him, and found the key to the car in Defendant’s pants pocket, which opened and started the car. Off. Stalbert stated |3that his partner, Officer Robert Guesnon (“Off. Guesnon”), subsequently notified the vehicle’s owner. Off. Stalbert did not write the police report for the incident, and, when questioned, could not explain why one part of the report indicated that the car was stolen at 10:00 a.m. while another part of the report indicated that it was stolen around 3:00 p.m. Off. Stalbert further testified that he never saw defendant driving the car and did not call for crime lab personnel to examine the car because Det. Durel had observed defendant driving the car.

The testimony of Off. Guesnon corroborated that of his partner, Off. Stalbert. In addition, he testified that he contacted the owner of the car on his cell phone, and when the owner indicated he could not retrieve the car at that time, he had the car towed, and he provided the key to the towing company. Off. Guesnon stated that when he saw the car, it did not have any broken windows or door locks, and the steering wheel was intact. He stated that he did not ask the owner if defendant had permission to use the car because the car had been reported stolen.

Defendant also testified, and denied knowing that the car was stolen or even using the car, and admitted that he did not have a driver’s license. He testified that on the day of his arrest, he was visiting his friends Ronald and Akeem Crawford at their house at 3403 Paris Avenue, and that he was in the bathroom when police officers kicked in the door to the house. He testified that the officers burst into the bathroom and took him to the front of the house where the other people in the house were being held. Defendant insisted that the officers did not find the key to the car in his pocket, but in a sofa inside the house.

On May 5, 2008, a six-person jury found Defendant guilty as charged. After ordering a presentence investigation, the court sentenced defendant to serve two |4years at hard labor. Counsel orally moved for reconsideration of sentence, and the court denied the motion. This appeal followed.

DISCUSSION

Errors Patent

A review of the record reveals no patent errors.

Assignment of Error

By his sole assignment of error, the appellant contends that the State failed to present sufficient evidence to support his conviction. Specifically, he argues that there was no evidence that he knew the car was stolen and thus knew that he did not have permission to use the car.

The Louisiana Supreme Court set forth the standard for evaluating a claim of insufficient evidence in State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

|5See also State v. Batiste, 2006-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810; State v. Sykes, 2004-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

In this case, defendant was convicted of unauthorized use of a motor vehicle, which is defined by La. R.S. 14:68.4 as “the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.” La. R.S. 14:68.4 (emphasis added). Defendant argues that the State failed to show that he took the car or that he had “fraudulent intent” in his use of the car, citing State v. Bias, 400 So.2d 650, 652 (La.1981). The Court in Bias noted that although La. R.S. 14:68 (the unauthorized use of a movable) did not require that a person act with an intent to deprive the owner permanently of his property, it “must reasonably be construed to require the existence of fraudulent intent.” Bias, 400 So.2d at 652.

In State v. Coleman, 2002-1487 (La.App. 4 Cir. 10/9/02), 830 So.2d 341, this Court found that the elements of La. R.S. 14:68.4 are established if the State proves that a defendant knowingly used a motor vehicle without the owner’s consent. In Coleman, the defendant was hired as a driver for the Salvation Army. Coleman, 830 So.2d at 342. His duties were to drive the company’s van and transport workers; he had a set route and schedule in which to com-píete his work. Id. He failed to pick up the workers on his second day of work, and did not contact the owner until several days later, when he called to say that the van had been stolen. Id. On appeal, this Court upheld his conviction for La. R.S. 14:68.4, finding that he knew that his use of the van was unauthorized once he deviated | (¡from the route and schedule and failed to return the van. Id. See also State v. Vanado, 01-367 (La.App. 5 Cir. 9/13/01), 798 So.2d 191.

Similarly, in State v. Jefferson, 97-2949 (La.App. 4 Cir. 4/21/99), 735 So.2d 769, this court upheld a conviction pursuant to La. R.S. 14:68.4. Defendant Jefferson was the driver of the car, which she insisted she had borrowed from someone, but only knew the person’s first name and did not know her address or phone number. This Court found that these factors could have made the jury suspicious of Jefferson’s innocence, along with the fact that the car contained a rental agreement in another person’s name, which should have alerted Jefferson that the car was stolen.

Defendant argues that because there was no damage to the car and that he used a key to enter and drive the car, the State did not establish that he knowingly used the car without permission, However, as noted by the State, the owner’s driver’s license was still inside the car, over the driver’s door, at the time the car was seized, as well as the car’s registration, which was listed in the owner’s name, Accordingly, defendant should have known that the car did not belong to him. See Jefferson, supra. Although defendant testified that he did not drive the car, that he |7only saw the car for the first time when the officers removed him from the residence, and that he did not have the key to the car, the officers’ testimony on each of these points plainly disputed that of defendant. It is well-settled that a factfinder’s credibility decision should not be disturbed unless clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. In this case, the factfinder ostensibly found the officers’ testimony more credible than that of defendant. Moreover, the jury heard the owner’s testimony confirming that he neither knew defendant nor gave defendant permission to use his vehicle.

For the foregoing reasons, we find that the State elicited sufficient evidence for the jury to find defendant guilty of the unauthorized use of a motor vehicle beyond a reasonable doubt. Accordingly, the defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . Det. Durel testified that he did not observe anyone else driving the car.

      .Mr. Young's testimony at trial indicates that the defendant had authority to drive the van along a certain route at a certain time so as to drop off and pick up the Salvation Army workers. He did not have authority to use the van for his own purposes. Moreover, he was given a cell phone to use in emergencies. He diverted the van from its proper use, did not complete his route, and did not take the van back to the Salvation Army officer. Furthermore, he did not call his office to report any problem until after he was incarcerated. Obviously, the reasonable inference is that the defendant attempted to use the van belonging to the Salvation Army without its consent and for his own purposes after he received possession of it. The evidence supports the jury's guilty verdict. This assignment is without merit.

        State v. Coleman, 830 So.2d 341, 343.

      . Similarly, courts have upheld unauthorized use convictions in cases where defendants have taken cars from a dealer's lot for a “test drive” and not returned the cars. See State v. Spencer, 97-811 (La.App. 5 Cir. 1/27/98), 707 So.2d 119; State v. Carmon, 539 So.2d 752 (La.App. 3 Cir.1989).

      . In upholding Jefferson's conviction, this Court distinguished State in Interest of O.B., 559 So.2d 31 (La.App. 4 Cir.1990). In that case, this Court reversed a delinquency adjudication based upon the fact that the defendant was the backseat passenger in a stolen car that had a key in the ignition and damage to the steering column that was not visible from the defendant's seat.


author: COOKS, Judge.

text:
    Sheila ROMERO, et al. v. ALLSTATE INSURANCE COMPANY, et al.
    Nos. 08-256, 08-536.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 2009.

      John W. Penny, Jr., Lafayette, LA, for Appellee, Percy J. Daigle and Allstate Insurance Company.
    Patrick J. Briney, Richard R. Montgomery, Lafayette, LA, for Appellant, Markel American Insurance Company.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   COOKS, Judge.

|, FACTS AND PROCEDURAL HISTORY

On April 8, 2001, Sheila Romero and David Romero were riding their Honda Gold Wing motorcycle on Mitchell Boyer Road in St. Martin Parish, Louisiana. Mrs. Romero was the passenger. Defendant Percy J. Daigle was backing out of his private driveway when his vehicle struck the Romero’s motorcycle throwing the Romero’s from their motorcycle. Mr. Daigle’s vehicle was insured by Allstate Insurance Company (Allstate) with a policy limit of $25,000.00 per person/$50,000.00 per accident. The Romero’s motorcycle was insured by Markel American Insurance Company (Markel) which policy included uninsured/underinsured (UM) coverage with a $100,000.00 policy limit.

Mrs. Romero offered to settle her claims against Mr. Daigle and Allstate in November of 2001, requesting the policy limit of $25,000.00. Allstate did not respond to the offer, nor did it make any counter offer or seek to obtain a release of its insured. In February 2002, the Romeros filed suit against Mr. Daigle and Allstate Insurance Company as well as Markel American Insurance as UM carrier. Markel American Insurance Company unconditionally tendered $25,000.00 to Mrs. Romero in April of 2002, under its UM policy. In May of 2002 Mrs. Romero again offered to settle with Mr. Daigle and Allstate for Allstate’s policy limits of $25,000.00, and, at that time, offered to settle with Markel for its remaining $75,000.00 UM policy limit. Allstate did not respond to Mrs. Romero’s settlement offer. In June 2002, Markel filed a Cross-Claim against Mr. Daigle and Allstate to recover the $25,000.00 it had tendered to Mrs. Romero in April 2002. Markel unconditionally tendered its remaining policy limits of $75,000.00 to Mrs. Romero in August 2002, reserving its sub-rogation rights against Mr. Daigle and Allstate, for the UM policy limits of 12$100,000.00. In September of 2002, Allstate tendered its policy limit of $25,000.00 plus interest to Mrs. Romero. Markel thereafter amended its Cross-Claim against Mr. Daigle and Allstate seeking recovery of the entire $100,000.00 paid to Mrs. Romero.

In February 2003, Markel filed a Motion To Determine Conflict-Free Counsel. The trial court ruled a conflict of interest existed between Mr. Daigle and his insurance company, Allstate, requiring separate legal representation. In response to this ruling, Allstate entered into an agreement with Mr. Daigle and, therein, agreed to “defend, hold harmless, and indemnify Percy Daigle in the above captioned matter and to satisfy any judgment he is legally obligated to pay.” Markel thereafter filed a Supplemental and Amending Cross-Claim in April 2006, alleging that, as a result of the Agreement between Allstate and Mr. Daigle, the two were now liable in solido for any judgments rendered against Mr. Daigle, including legal interest, regardless of the original limits of coverage in Allstate’s policy with Mr. Dai-gle. In August of 2006, Allstate filed a Motion For Summary Judgment Or Alternatively Motion To Dismiss, and in January of 2007, Markel filed a Cross Motion For Partial Summary Judgment, alleging that Mr. Daigle was solely at fault in the accident and, therefore, solely liable for any injuries to Mrs. Romero. Markel again alleged that Allstate and Mr. Daigle were liable in solido for any judgments rendered against Mr. Daigle and Allstate.

After a hearing on February 1, 2007, the trial court granted Markel’s Motion For Partial Summary Judgment, finding Mr. Daigle solely at fault. The trial court denied Markel’s motion as to solidary liability and granted Allstate’s Motion For Summary Judgment/Motion To Dismiss, ruling that Allstate was not solidarily liable.

In August 2007, Markel filed a Motion For Partial Summary Judgment, alleging that Mr. Daigle is not entitled to any credits for amounts paid by Allstate to |sMrs. Romero against any judgment obtained by Markel. Mr. Daigle filed a Motion for Partial Summary Judgment in September 2007, alleging that he is entitled to a credit for amounts paid by Allstate. The trial Court granted Markel’s motion and denied Mr. Daigle’s motion, ruling Mr. Daigle is not entitled to a credit for any amounts paid by Allstate to Mrs. Romero. In November 2007, the trial court entered a final judgment confirming its rulings.

Mr. Daigle has filed for supervisory writs seeking review of the trial court’s ruling granting Markel’s Motion For Summary Judgment on the issue of Mr. Dai-gle’s entitlement to a credit for any amounts paid by Allstate. In December 2007, Markel filed a devolutive appeal regarding the trial court’s ruling granting Allstate’s Motion For Summary Judgment/Motion To Dismiss finding there was no solidary liability between Allstate and Mr. Daigle. Allstate has appealed the trial court’s grant of Markel’s Motion For Partial Summary Judgment as to the liability of Mr. Daigle and Markel’s Motion For Partial Summary Judgment on the issue of Mr. Daigle’s entitlement to any credit for amounts paid by Allstate. This Court has consolidated the Application For Supervisory Writ filed by Mr. Daigle, and Allstate with the devolutive appeals taken by Mr. Daigle and Markel.

ANALYSIS

The Agreement entered into between Allstate and its insured Mr. Daigle to resolve the conflict of interest in representation found by the trial judge is the focus of our initial review. Allstate argues that this agreement did not change its financial exposure for the liability of Daigle which it contends is limited by the contract of insurance it issued covering Daigle’s liability up to $25,000.00. Markel argues that the limited coverage agreement between Allstate and its insured was superseded by the subsequent agreement at issue here. Louisiana Civil Code Article 1978 provides: 14“A contracting party may stipulate a benefit for a third person called a third party beneficiary. Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.” The Code further provides: “The stipulation gives the third party beneficiary the right to demand performance from the promisor.” La. Civ.Code art. 1981. See also Guidry v. Hedburg, 98-228 (La.App. 3 Cir.11/4/98), 722 So.2d 1036, rehearing denied.

Further we held in Guidry, Supra, when one party contracts to perform an obligation owed by another party to the third party there usually occurs a recognition of that third-party beneficiary’s rights. Id. citing Tallo v. Stroh Brewery Co., 544 So.2d 452 (La.App. 4 Cir.1989) writ denied 547 So.2d 355 (La.1989). Our Civil Code recognized such agreements as stipulations pour autnn See Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969). In Hazelwood, Farm, Inc. v. Liberty Oil and. Gas Corp., 2001-0345 (La.App.3 Cir. 6/20/01), 790 So.2d 93, writ denied 01-2115 (La.7/26/01), 794 So.2d 834 we again recognized the right of the third party beneficiary created by a stipulation pou-rautrui expressly finding that Hazelwood, the third party beneficiary, had a right to sue Gulf/Chevron for damages, such right having been acquired by virtue of a stipulation pour autrui which made Hazelwood the third party beneficiary of the contract made by others.

We find in this case the voluntary agreement between Allstate and Dai-gle created a stipulation pour autrui, which made Markel a third party beneficiary, and created Markets right to demand performance from Allstate in accordance with the terms of the stipulation which did not set any limitation on the amount of Allstate’s financial exposure for Daigle’s liability. We are mindful that Allstate complains it should not be held solidarity responsible with Daigle. Allstate’s position is premised | son the limitation found in its original contract with Daigle and its agreement to provide coverage up to $25,000.00. As discussed in the body of this opinion, we find that the original insurance contract is not controlling in resolving the alleged solidary responsibility of Allstate. In solido liability may occur either by operation of law or by contract. Markel does not allege that the law automatically imposes solidary responsibility on Allstate. Markel asserts that Allstate, by virtue of its subsequent agreement with Daigle, contractually agreed to place itself in his stead and to pay Mrs. Romero any judgment Daigle is legally obligated to pay. Markel as subrogee of Plaintiff has the right to demand from Allstate payment of the judgment to the same extent and in the same amount that Plaintiff could demand payment from Dai-gle.

We find Allstate is entitled to a credit for amounts paid by it on behalf of Daigle to Mrs. Romero. In Hazelwood, applying the precepts of the law on stipulations pour autrui, we found that Gulf/Chevron was responsible to the third party beneficiary for all damages caused by its actions based on the language in the contract “Grantee shall be responsible for all damages caused by his operations.” Hazelwood, 790 So.2d at 101. Likewise, in the present case, Allstate entered into a written agreement which states “Allstate Insurance Company has agreed to defend, hold harmless, and indemnify Percy Daigle in the above captioned matter and to satisfy any judgment he is legally obligated to pay.” Daigle is only legally obligated to pay the judgment, less any credit for payment previously made to Mrs. Romero by him personalty or on his behalf.

We now turn to the trial court’s determination of liability. As we have previously held in Hayes v. Covey, 06-382, p. 2 (La.App. 3 Cir. 9/27/06), 939 So.2d 630, 631 (quoting Hines v. Garrett, 04-806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66):

|fiWe review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. Art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. Hayes v. Covey, 2006-382, (La.App. 3 Cir. 9/27/06), 939 So.2d 630.

Where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a mater of law,” then summary judgment is appropriate. La.Code Civ.P. art. 966(B). Bellard v. Am. Cent. Ins., 958 So.2d 107 (La.App. 3 Cir. 5/30/07). We further explained in Hayes, “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. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.” Hayes, 939 So.2d at 631 (quoting Hines v. Garrett, 04-806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66). The determination of whether a fact is material must be determined in light of the relevant substantive law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d 898, writ denied, 03-1388 (La.9/13/03), 853 So.2d 645. See also Hayes, Id.

Louisiana law provides the following: “The driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic”. La. R.S. 32:281 A.

Louisiana Revised Statute 32:124 further provides:

The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto a sidewalk area 17extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.

This Court has previously held it is the reversing motorist who has the heightened duty to avoid an accident.

An unusual degree of care is required of motorists who drive vehicles from a private driveway into a highway, and this requirement is increased when the vehicle is being backed into the highway.” Josey v. Granite State Fire Ins. Co., 122 So.2d 303 (La.App. 2 Cir.1960). When executing such a maneuver, the motorist must proceed with utmost caution and use great care and attention to be sure that it can be accomplished without interfering with other vehicles. Schackai v. Tenneco Oil Co., 436 So.2d 729, 732 (La.App. 4 Cir.1983). Further, this court has previously held that a driver who is already on the roadway has the right to assume that a motorist on a private driveway will not enter the roadway until the driver has already passed. Valin v. Barnes, 550 So.2d 352 (La.App. 3 Cir.), writ denied, 552 So.2d 399 (La.1989). Beard v. Coregis Ins. Co.[,] 07-314 (La.App. 3 Cir. 10/17/07), 968 So.2d 278.

We likewise held in Melancon v. Lafayette Ins. Co., 05-762 (La.App. 3 Cir. 3/29/06), 926 So.2d 693:

Pursuant to La. R.S. 32:281(A), a driver must not back his vehicle unless he can do so safely and without interfering with traffic. The driver of a backing vehicle has a high duty of care to determine whether he can back his vehicle safely. Citing Andrews v. Mosley Well Serv., 514 So.2d 491 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987). Melancon, 926 So.2d at 705.

A review of the record establishes there is no genuine dispute that Mr. Daigle was backing out of his driveway onto the public roadway while Mr. Romero was driving along Mitchell Boyer Road. The record further shows there is no genuine legal dispute that Mr. Daigle had a duty not to back his vehicle into the highway unless he could do so safely. This duty is described in the law as a “high duty of care.” Andrews, 514 So.2d at 496 Furthermore, even if Mr. Romero saw Mr. Daigle backing out of his driveway, he had a right to assume that Mr. Daigle would not enter the highway until Mr. Romero had safely gone past him. Valin v. Barnes, 550 So.2d 8at 355-356 and Beard v. Coregis, 968 So.2d at 283-284. There is no genuine factual dispute that Mr. Daigle failed to observe the high degree of care imposed upon him and that he did not yield the right of way to Mr. Romero. Allstate presented no evidence at the Motion For Summary Judgment on liability which created a genuine factual dispute and the law clearly dictates the liability consequence of Mr. Daigle’s admitted failure. The trial court acted properly in granting the Motion For Partial Summary Judgment finding Mr. Dai-gle solely at fault.

CONCLUSION

Mr. Daigle’s application for supervisory writs is granted; he is entitled to credit for any amounts paid by Allstate to Mrs. Romero.

Motion For Partial Summary Judgment as to liability Affirmed.

Motion For Summary Judgment Or Dismissal Reversed.

Costs are assessed equally between Markel American Insurance Company and Allstate Insurance Company.

DECREE

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

SULLIVAN J., concurs in the result.

EZELL, J., concurs in the result.