author: GUIDRY, J. CRAIN, J.,

text:
    STATE of Louisiana v. Marcus WEBER.
    No. 2012 KA 2021.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2013.

      Richard J. Ward, Jr., District Attorney, Port Allen, LA, for Plaintiff/Appellee State of Louisiana.
    Elizabeth A. Engolio, Assistant District Attorney, Plaquemine, LA, Thomas C. Damico, Baton Rouge, LA, for Defendant/Appellant Marcus Weber.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   GUIDRY, J.

|2The defendant, Marcus Weber, was charged by bill of information with one count of vehicular homicide (count 1), a violation of La. R.S. 14:32.1, and four counts of first degree vehicular negligent injuring (counts 2-6), violations of La. R.S. 14:39.2. The defendant pled not guilty to all counts. The defendant filed a motion to suppress the blood and toxicology test. Following a hearing on the matter, the motion to suppress was denied. In a writ application, the defendant sought review of the trial court’s ruling. In an unpublished action, the writ was denied. State v. Weber, 11-0125 (La.App. 1st Cir.4/13/11). The defendant subsequently withdrew his not guilty pleas and entered a plea of guilty to the vehicular homicide charge under Crosby, reserving the right to appeal the trial court’s ruling on the motion to suppress. See State v. Crosby, 338 So.2d 584 (La.1976). The other charges (counts 2-5) were nol-prossed. The defendant was sentenced to five years imprisonment at hard labor, with two years of the sentence suspended. Upon his release, the defendant is to be placed on supervised probation for five years. The defendant now appeals, designating one assignment of error. We reverse the trial court’s ruling denying the motion to suppress and vacate the conviction and sentence. The matter is remanded to the trial court for further proceedings.

FACTS

The following facts were developed at the motion to suppress hearing. On February 10, 2008, Louisiana State Trooper Jake Patín was dispatched to a vehicular crash site at the intersection of U.S. Hwy 190 at La. Hwy 423 in Erwinville. Trooper Patín observed a Chevrolet pickup truck overturned on its roof and a red car against the shoulder. Steven Collins, the driver of the red car, had been killed and was still in the driver’s seat. The three occupants of the truck had already been transferred to the hospital. Benjamin Wilkinson had been taken |ato Baton Rouge General Medical Center, and the defendant and Donald McGehee had been taken to Our Lady of the Lake Regional Medical Center. Through a license plate check, Trooper Patín learned the defendant was the owner of the truck. There is no evidence in the record that this information was ever communicated to Louisiana State Trooper Jeremy Ballard, who was the trooper that ordered the defendant’s blood drawn. It was also determined that the truck had caused the accident.

Trooper Patín went to Baton Rouge General to speak to Wilkinson about the crash. Trooper Ballard was sent to Our Lady of the Lake to speak to the defendant and McGehee. At this point in their investigations, the troopers did not know who was driving the truck when it crashed. At the hospital, Wilkinson was conscious, but unable to speak. Communicating with Trooper Patín by nodding his head, Wilkinson consented to have his blood drawn; however, Trooper Patín never sought a response from Wilkinson regarding who was driving the truck at the time of the accident. At Our Lady of the Lake, McGehee was conscious and able to communicate. McGehee signed a consent form, allowing the withdrawal of his blood. Trooper Ballard never asked McGehee who was driving the truck at the time of the accident.

It appeared the defendant was unconscious when Trooper Ballard visited him. According to Trooper Ballard, the defendant was in “real bad condition, in critical condition.” Despite being unable to have the defendant sign a consent form because of his condition, Trooper Ballard had a nurse draw blood from the defendant. The defendant’s blood-alcohol concentration was .1 grams percent. Though it was still unknown who the driver of the truck was at the time the blood samples were taken, it was subsequently learned, days later, that the defendant was driving the truck.

1 ¿DISCUSSION

In his sole assignment of error, the defendant argues the trial court erred in denying his motion to suppress. Specifically, the defendant contends the results of the chemical test of his blood should have been suppressed because his blood was forcibly taken without a warrant, consent, or probable cause.

Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Long, 03-2592, p. 5 (La.9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005). When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 280-81. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751.

The Fourth Amendment to the United States Constitution and article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the State to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant. See La. C. Cr. P. art. 703(D). A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Young, 06-0234, p. 6 (La.App. 1st Cir.9/15/06), 943 So.2d 1118, 1122, writ denied, 06-2488 (La.5/4/07), 956 So.2d 606.

|fiIn denying the motion to suppress at the suppression hearing, the trial court stated in pertinent part:

I have a fifty/fifty chance of getting this right. I believe I’m going to make — we’re making new law here, and I’m going to rule what I believe the Louisiana Supreme Court is going to rule, because I believe they’re going to say, but for this ruling and my rationale, that they could have zeroed in on in [sic] or two or three, but they didn’t know. They would have lost that opportunity to have learned whether the driver, which I believe — I believe there’s a belief that he was driving, maybe not. Of course, that needs to be proved beyond a reasonable doubt, just like the intoxication.

The two statutory provisions addressed by the State and the defendant in their briefs are La. R.S. 32:661 and La. R.S. 32:666. Following are the relevant portions of those provisions as they appeared on the date of the incident:

§ 661. Operating a vehicle under the influence of alcoholic beverages or illegal substance or controlled dangerous substances; implied consent to chemical tests; administering of test and presumptions
A. (1) Any person, regardless of age, who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 in his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964.
(2)(a) The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person, regardless of age, to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964....
B. Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by Subsection A of this section, and the test or tests may be administered subject to the provisions of R.S. 32:662.
|fi§ 666. Refusal to submit to chemical test; submission to chemical tests; exception; effects of
A. (l)(a)(i) When a law enforcement officer has probable cause to believe that a person has violated R.S. 14:98, R.S. 14:98.1, or any other law or ordinance that prohibits operating a vehicle while intoxicated, that person may not refuse to submit to a chemical test if he has refused to submit to such test on two previous and separate occasions of any previous such violation or in any case wherein a fatality has occurred or a person has sustained serious bodily injury in a crash involving a motor vehicle. A physician, physician assistant, registered nurse, emergency medical technician, chemist, nurse practitioner, or other qualified technician shall perform a chemical test in accordance with the provisions of R.S. 32:664 when directed to do so by a law enforcement officer.

The defendant in brief argues that the blood test administered on him was an unlawful violation of his person. According to the defendant, the prosecution had the burden of establishing the police had probable cause to believe he was the driver involved in the accident and that he was under the influence of alcohol or drugs. In support of this proposition, the defendant cites State v. Wells, 08-2262 (La.7/6/10), 45 So.3d 577. A public intoxication case, we find Wells has no applicability to the instant matter.

The defendant in Wells, who was charged and convicted of possession of cocaine, was initially arrested for public intoxication and, upon a search incident to arrest, the arresting officer found crack cocaine on the defendant. Thus, the issue in Wells was whether the officer had probable cause to arrest the defendant based on the officer’s observation that the defendant appeared very intoxicated. In other words, unlike the unconscious defendant who was in a hospital before even being approached by a police officer and who had been involved in a vehicular crash, the defendant in Wells, while walking along the sidewalk, exhibited all of the outward signs and manifestations of being intoxicated, thereby giving the police officer probable cause to arrest him on the spot for public intoxication. Wells, 08-2262 at p. 3, 45 So.3d at 579-80.

|7In any event, the defendant points out correctly that law enforcement personnel did not determine who the driver of the truck was before having blood drawn from each of the occupants of that vehicle. The defendant also notes that under La. R.S. 32:666, a police officer must have probable cause to believe that a person has violated R.S. 14:98, 98.1, or any other law or ordinance that prohibits operating a vehicle while intoxicated before submitting that person to a chemical test. The defendant asserts the State’s reliance on La. R.S. 32:666 is misplaced because, by their own admission, the troopers indicated they did not have probable cause to believe the defendant was intoxicated at the time his blood was drawn. There is also no evidence in the record that Trooper Ballard, who ordered that the defendant’s blood be drawn, was ever told that the defendant was the owner of the truck that had caused the accident. Therefore, Trooper Ballard did not know at the time that the defendant owned the vehicle.

At the motion to suppress hearing, the troopers testified that at the time the blood was drawn, they had no knowledge or information of which of the three occupants of the truck had been driving at the time of the crash. They made no inquiry of the two conscious occupants of the vehicle about who was the driver. The troopers did not testify during the suppression hearing that they had any information or any evidence that alcohol or drugs were involved in the crash. For example, because the three injured occupants had all been moved to the hospital prior to the arrival of the troopers at the scene, there was no testimony about the driver being found or removed from the driver’s seat. Further, there was no testimony about beer cans or any other kind of alcohol (or drug) container being found in or near the truck; and no testimony about the smell of alcohol (or drugs) in the truck or the smell of alcohol on the occupants’ person or breath when the troopers went to the hospital to interview the occupants of the truck. Additionally, there is no evidence in the record that it was ever communicated to Trooper |SB aliar d, who ordered that the defendant’s blood be drawn, that the defendant owned the truck. Thus, it is clear that Trooper Ballard could not have had probable cause to believe that the defendant in particular was the driver of the truck nor that the driver had been intoxicated at the time he ordered the defendant’s blood to be drawn.

Under La. R.S. 32:661, implied consent to submit to a chemical test occurs only after the person has been “arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages.” Section 661 is not applicable here because no one was arrested at the time the blood was taken and, as just noted, the officers had no reason to believe the driver was intoxicated. The State in brief argues the defendant was in effect placed “under arrest” at the hospital because of his extended restraint. In support of this position, the State cites State v. Caccioppo, 10-385 (La.App. 5th Cir.2/15/11), 61 So.3d 61.

Aside from the factual similarity in Caccioppo, wherein the defendant was taken to the hospital and had blood withdrawn while unconscious, we find this case inap-posite. In Caccioppo, the defendant’s vehicle was stopped in the middle of the street, blocking the right lane. The defendant was in the driver’s seat and unresponsive. The police officer at the scene found the defendant’s breathing shallow and her pulse slow. There was a strong odor of alcohol in the vehicle. The officer also found a water bottle in the center console that smelled highly of vodka. All this information led the officer to believe the defendant was intoxicated. He did not arrest her because of her medical condition and because he believed he did not have “enough to arrest her at that point.” The defendant was taken to the hospital. The officer went to the hospital with a blood alcohol kit, and a nurse drew blood from the defendant. Her BAC level was in excess of .5 grams |9percent. The officer obtained an arrest warrant and arrested her. Caccioppo, 10-385 at p. 3, 61 So.3d at 63.

Despite the officer having arrested the defendant after her BAC level was determined, the fifth circuit, in Caccioppo, found that the defendant was effectively placed “ ‘under arrest’ ” by the officer at the hospital before her blood was drawn because, even though unconscious, the defendant was effectively under the officer’s restraint at the hospital. Moreover, the officer had testified that had the defendant regained consciousness at the scene, he would have Mirandized her and given her a field sobriety test. Thus, according to the fifth circuit, the defendant was “under arrest,” within the meaning of La. R.S. 32:661, when her blood was drawn. Caccioppo, 10-385 at p. 7, 61 So.3d at 65.

As noted, there were no such indices of intoxication, either at the scene or in the hospital, in the instant matter. The Caccioppo court seemed to suggest the defendant’s prolonged restraint may have constituted a de facto arrest, but only because of the officer’s testimony and the overwhelming signs of the defendant’s intoxication for which the officer in the first instance had probable cause to arrest. The defendant cites a similar case, State v. Sherer, 354 So.2d 1038 (La.1978), on which the Caccioppo court relied. But Sherer, like Caccioppo, involved those determining factors that make it readily distinguishable from the instant matter. The defendant in Sherer, after his truck crashed, was found by a trooper still in his truck unconscious. His breath smelled like alcohol, there were beer cans in the truck, and prior to the defendant being removed from the scene by ambulance, the trooper told the ambulance driver he was filing charges against the defendant based on the evidence, which indicated he had been driving while intoxicated. Sherer, 354 So.2d at 1040-42.

| inHaving no evidence of intoxication in the instant matter, the troopers could not have had reasonable grounds, as required under Section 661, to believe the defendant was “under the influence of alcoholic beverages or any abused substance or controlled dangerous substance.” Moreover, Section 661 is inapplicable because the troopers did not know who was the driver of the truck. In both Caccioppo and Sherer, the driver was still in the vehicle when approached by the police.

Under the applicable part of La. R.S. 32:666(A)(l)(a)(i) that addresses implied consent when a fatality or serious bodily injury occurs in a crash involving a motor vehicle, a mandatory test for alcohol is required “[w]hen a law enforcement officer has probable cause to believe that a person has violated R.S. 14:98, R.S. 14:98.1, or any other law or ordinance that prohibits operating a vehicle while intoxicated.” Thus, just as with the inapplicability of Section 661 to this matter, so too is Section 666 inapplicable because the officers had no probable cause to believe the driver was intoxicated, a threshold finding to Section 666 being triggered.

Prior to the 2009 amendment. La. R.S. 32:681 provided in pertinent part:

§ 681. Postaccident drug testing; accidents involving fatalities, required
A. The operator of any motor vehicle which is involved in a collision in which a fatality occurs shall be deemed to have given consent to, and shall be administered, a chemical test or tests of his blood, urine, or other bodily substance for the purpose of determining the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 or any other impairing substance.
B. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state which is involved in a collision in which a fatality occurs....

A central issue that runs throughout the defendant’s argument in brief with respect to La. R.S. 32:661 and La. R.S. 32:666 is whether Trooper Ballard, who had blood drawn from the unconscious defendant (the other two occupants of the |n truck had consented to have blood drawn), had reasonable grounds to believe he was the driver of the truck. While La. R.S 32:681 is not mentioned in either the State’s or the defendant’s briefs, the argument set forth by the defendant, namely that Trooper Ballard had no way of knowing the defendant was the driver and therefore could not properly have had blood drawn from him pursuant to Sections 661 and 666, is equally applicable to Section 681, given the similar purpose, language, and construction of these three sections.

The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter and construing the provision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. The statute must therefore be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it. Courts should give effect to all parts of a statute and should not adopt a statutory construction that makes any part superfluous or meaningless, if that result can be avoided.

Champagne v. American Alternative Insurance Corporation, 12-1697, p. 6 (La.3/19/13), 112 So.3d 179, 183-184 (emphasis added; citations omitted).

The triggering event for the application of paragraph A of Section 681 (requiring the administration of a chemical test to determine the presence of any drug or other impairing substance) is that the operator of a vehicle is involved in a crash involving a fatality, regardless of whether intoxication was involved. However, paragraph B of Section 681 further provides an additional requirement for administration of the chemical test, and that is when the officer has “reasonable grounds” to believe that the person to be tested was the driver or person in actual physical control of the vehicle. “Reasonable grounds” is something less than probable cause. See Henry v. State, Department of Public Safety, 01-0103, p. 4 (La.App. 3d Cir.6/27/01), 788 So.2d 1286, 1289.

|12Based on the evidence presented at the suppression hearing, it was clear that Trooper Ballard, the officer who ordered the blood test, did not have reasonable grounds to believe the defendant, in particular, was the driver of the truck. Trooper Patín testified that through the truck license plate, registration, and insurance, he (i.e., Trooper Patín) learned the defendant was the owner of the truck. However, Trooper Patín did not testify that he shared this information with Trooper Ballard, and Trooper Ballard never testified that he knew who was the owner of the truck. The troopers never inquired of the other two occupants as to who was driving the vehicle. Thus, the only information Trooper Ballard had regarding the defendant was that he was one of the three people in the truck that crashed. Based on this evidence, the record clearly does not establish that Trooper Ballard had reasonable grounds to believe that the unconscious person before him at the hospital was the driver of the truck any more than either of the other two persons at the scene. As such, he lacked the authority to invoke La. R.S. 32:681 as grounds for ordering that the defendant’s blood be drawn and tested.

Therefore, we conclude that Trooper Ballard, the law enforcement officer ordering the blood test, did not have probable or reasonable cause to believe that the defendant, in particular, was the driver of the truck or that he was intoxicated. Accordingly, the defendant’s blood could not have been drawn legally under either La. R.S. 32:661, La. R.S. 32:666, or La. R.S. 32:681, and such seizure of the defendant’s blood by a nurse, at the behest of Trooper Ballard, violated the defendant’s right to privacy under Article I, Section 5 of the Louisiana Constitution and the right against an unreasonable search and seizure under both the Fourth Amendment to the United States Constitution and Article I, Section 5 of the | ^Louisiana Constitution.

The trial court erred in denying the motion to suppress. Accordingly, the trial court’s ruling on the motion to suppress is reversed, and the defendant’s conviction and sentence are vacated. The matter is remanded to the trial court for further proceedings.

RULING ON MOTION TO SUPPRESS REVERSED; CONVICTION AND SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS.

CRAIN, J., dissents and assigns reasons.

CRAIN, J.,

dissenting.

_JjFor the privilege of driving in Louisiana, the driver of a vehicle involved in a collision in which a fatality occurs is deemed to have given consent to the administration of a blood test to determine the presence of a controlled dangerous or impairing substance. La. R.S. 32:681. In this case, the majority concludes that because the police officer did not know, when the blood was drawn for testing, which of the three occupants of the truck was the driver, there was no implied consent by the driver. I respectfully disagree.

The occupants of defendant’s truck, including the defendant, had been evacuated from the scene of the fatality before the investigating officers arrived. However, by the time that defendant’s blood was drawn, the officers knew there had been a fatality, that the truck had caused the fatality, and that three people, including the defendant, occupied the truck at the time of the collision. The officers candidly acknowledged that they did not know which of the three occupants was driving the truck at the time of the collision. The only prerequisite for administration of the blood test is that the law enforcement officer directing that the test be done have reasonable grounds to believe the person to have been driving the vehicle. See, La. R.S. 32:681. I believe that under the unique 12circumstances of this case, the belief that one of the occupants was the driver constituted reasonable grounds to draw the defendant’s blood.

Importantly, the defendant who is objecting to the results of the blood test was in fact the driver. Consequently, the law deems him to have consented to the administration of the blood test. It is not necessary to address the legal implications of the use of a non-driver’s blood drawn pursuant to this statute.

The defendant pled guilty to vehicular homicide, that is, causing the death of another person while driving impaired, after the trial court refused to suppress the results of the blood test. I believe the trial court was correct based upon the implied consent conveyed by Louisiana Revised Statute 32:681 and would affirm. For these reasons, I respectfully dissent.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . An Attorney General opinion has stated with regard to Section 681(A), "while there is no jurisprudence or statutory provisions that specifically define the phrase 'impairing substance,’ we opine that alcohol could be defined as an impairing substance.” La. Atty. Gen. Op. No. 08-0058.

      . Similar to the matter before us, in a recent U.S. Supreme Court opinion involving a non-consensual warrantless blood draw, the police officer in that case ordered that the defendant's blood be drawn over the defendant’s objection and without a warrant "only because he believed it was not legally necessary to obtain a warrant.” Missouri v. McNeely, - U.S. -, 133 S.Ct. 1552, 1567, 185 L.Ed.2d 696 (2013). While the Court acknowledged that ”[i]t is true that as a result of the human body's natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated.” the Court nevertheless held that ‘‘[i]n those drunk driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” McNeely, - U.S. at -, 133 S.Ct. at 1560-61.
      Further, with respect to searches involving intrusions beyond the body’s surface, the U.S. Supreme Court has recognized that “[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966).
      Finally, the Court recognized in Mapp v. Ohio, 367 U.S. 643, 647, 81 S.Ct. 1684, 1687, 6 L.Ed.2d 1081 (1961) that in holding the exclusionary rule applicable to states, "constitutional provisions for the security of person and property should be liberally construed .... It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” Therefore, "[t]he criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp, 367 U.S. at 659, 81 S.Ct. at 1694.

      . Reasonable grounds is something less than probable cause. Henry v. State, Dept. of Public Safety, 01-0103 (La.App. 3 Cir. 6/27/01), 788 So.2d 1286, 1288; Musso v. Louisiana Dept. of Public Safety, 632 So.2d 826, 827 (La.App. 4 Cir.1994).

      . Applying the majority’s logic, if the defendant was unconscious and his guest passengers had been killed, the implied consent statute would not apply, but if he was driving alone and killed three people it would apply. In my opinion, under these circumstances, the unknown identity of the driver should not be used to circumvent the application of the statute.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Robert L. THOMAS v. Cynthia BRIDGES, Secretary Department of Revenue, State of Louisiana.
    No. 2012 CA 1439.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 2013.

      Miranda Y. Conner, Baton Rouge, LA, for Defendant/Appellant Cynthia Bridges, Secretary, Department of Revenue, State of Louisiana.
    Kevin P. Landreneau, Baton Rouge, LA, for Plaintiff/Appellee Robert L. Thomas.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

li>The Louisiana Department of Revenue seeks review of a district court judgment that reversed the ruling of the Louisiana Board of Tax Appeals and overturned the assessment of sales tax and penalties against the appellee, a Louisiana resident and sole member of a Montana Limited Liability Company that purchased a recreational vehicle in Louisiana. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 8, 2007, Robert Lane Thomas, a Louisiana resident, entered into an agreement to purchase a 2008 Mountain Aire RV (“the RV’) with Dixie RV Super Store, which is located in Hammond, Louisiana. On December 11, 2007, Angels Rocks, LLC was formed under the laws of the State of Montana, with the sole member being Mr. Thomas. On December 14, 2007, Angels Rocks purchased the RV for the sum of $351,800.00. The State of Montana subsequently issued a Certificate of Title for the RV in the name of Angels Rocks.

On November 5, 2009, the Louisiana Department of Revenue issued a Notice of Proposed Tax Due to Mr. Thomas, asserting that Mr. Thomas personally owed the sales tax on the RV. The Department issued a final notice on July 20, 2010, asserting that Mr. Thomas personally owed sales tax and penalties totaling $46,509.60.

On March 18, 2010, Mr. Thomas filed a petition for review with the Board of Tax Appeals, alleging that Angels Rocks purchased the vehicle, and as such, he does not personally owe any sales tax to the State of Louisiana. Following a hearing, the Board took the matter under advisement On September 16, 2010, the Board issued a judgment against Mr. Thomas, finding that he was personally liable for the sales tax and penalties.

On October 15, 2010, Mr. Thomas, pursuant to LSA-R.S. 47:1434, appealed the Board’s decision to the 21st Judicial District Court. In response, the | ^Department filed an exception raising the objection of no right of action, asserting that Mr. Thomas’s appeal should be dismissed for failing to follow the procedure outlined in LSA-R.S. 47:1434. The district court denied the Department’s exception. Subsequently, the district court reversed the Board’s decision and dismissed the assessment of sales tax and penalties against Mr. Thomas.

The Department has timely appealed, assigning the following as error:

[ 1] The 21st JDC erred by denying the Department of Revenue’s Motion to Dismiss based upon the Exception of No Right of Action.
[ 2] The 21st JDC also erred by reversing the Louisiana Board of Tax Appeals decision upholding the Department’s assessment against Mr. Thomas for taxes due on the purchase of the RV.

DISCUSSION

In its first assignment, the Department asserts that the district court erred in failing to dismiss the petition because Mr. Thomas failed to follow the procedural steps for judicial review of Board decisions as set out in LSA-R.S. 47:1434. The statute requires that a taxpayer file a petition for review with the district court within thirty days of the Board’s decision or judgment and “post bond, with surety approved by the board ... [as] a condition precedent to the filing of any petition for review in any district court.”

The Department notes that Mr. Thomas did not post the bond for the appeal with the Board at the same time he provided notice of his intention to file his petition for judicial review. The Department avers that the statute requires the posting of bond as a “condition precedent” to filing a petition for judicial |4review. Rather than post a bond, the Board notes that Mr. Thomas filed an “Irrevocable Standby Letter of Credit” on October 27, 2010. The Board asserts that the letter of credit was not a proper “bond” as required by the statute and was untimely insofar as the bond was filed beyond the thirty-day period set forth in LSA-R.S. 47:1434.

In opposition, Mr. Thomas contends that he does have a right to bring an action and that the Department has filed an improper exception. We agree that Mr. Thomas, as a taxpayer against whom a judgment was rendered assessing him with an obligation to pay sales tax, is a member and falls squarely into the class of persons that has a right to appeal an assessment. Nevertheless, our courts look beyond the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceeding; thus, a pleading is construed for what it really is, not for what it is erroneously called. Rochon v. Young, 08-1349 (La.App. 1 Cir. 2/13/09), 6 So.3d 890, 892, writ denied, 09-0745 (La.1/29/10), 25 So.3d 824, cert. denied, - U.S. -, 130 S.Ct. 3325, 176 L.Ed.2d 1216 (2010). Accordingly, we construe the Department’s motion simply as one to dismiss the appeal.

We also recognize that appeals are favored and should be maintained when possible. Richardson v. North Oaks Hosp., 11-1258 (La.App. 1 Cir. 2/13/12), 91 So.3d 361, 364. “Appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. An appeal is not to be dismissed for a mere technicality. Unless the ground urged for dismissal is free from doubt, the appeal should not be dismissed.” Stadtlander v. Ryan’s Family Steakhouses, Inc., 34,384 (La.App. 2 Cir. 4/4/01), 794 So.2d 881, 885, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790 (citations omitted).

Mr. Thomas alleges that the Board informed him that it would accept a letter of credit in lieu of posting a bond. Mr. Thomas asserts that he relied on statements made by the Board regarding the time and method for posting the bond, and acquired a letter of credit to serve as his bond. Mr. Thomas further avers that based on these facts, the district court concluded that the Board was |aestopped or otherwise barred from raising issues with regards to the bond on appeal.

A hearing on the Department’s exception was held on May 2, 2011. Kirk Boe, an officer at Hancock Bank, and Kim Pinegar, the legal assistant for Mr. Thomas’s attorney, testified at the hearing. Mr. Boe indicated that he was advised by Marie Williams, Secretary-Clerk of the Board, that the Board would accept a letter of credit in lieu of posting a bond. Mr. Boe also indicated that Ms. Williams informed him that only the notice of intent to appeal was required to be filed by October 18, 2010, and that it was not necessary to have the letter of credit filed at that time.

Ms. Pinegar testified that she telephoned Ms. Williams to verify that the information provided to Mr. Boe was correct. Ms. Williams confirmed that Mr. Thomas would not need to have the letter of credit filed before October 18, 2010, provided that the notice of intent to file an appeal was filed by the October 18, 2010 deadline.

The Board presented no witnesses at the hearing and does not dispute the testimony given by Mr. Boe and Ms. Pinegar.

Under these circumstances, and given that the ground for dismissal urged by the Department is not free from doubt, we find no error in the district court denying the Board’s motion seeking to dismiss the appeal. Assignment of error number one is without merit.

In its second assignment of error, the Department alleges that the district court erred in reversing the Board’s decision. The Department recognizes that while members, managers, and employees of LLCs are protected from debts, obligations, and liabilities of the company, LSA-R.S. 12:1320D provides that | fi“[n]othing ... shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him.... ” The Department contends that Mr. Thomas committed fraud in setting up an LLC in Montana for the sole purpose of avoiding Louisiana sales tax such that Mr. Thomas is individually liable for the sales tax in Louisiana. The Department contends that under the five-factor test supplied by the Louisiana Supreme Court in Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164, 1168 (La.1991), the LLC’s veil should be pierced to hold Mr. Thomas, as the LLC’s alter ego, liable for the taxes.

Even if Mr. Thomas created the LLC to minimize his tax liability, there is no evidence in the record that Mr. Thomas committed fraud. Creating a Montana LLC for the purpose of reducing one’s tax liability does not amount to fraud. We note that “tax avoidance” is defined as “[t]he act of taking advantage of legally available tax-planning opportunities in order to minimize one’s tax liability.” Black’s Law Dictionary 1599 (9th ed.2009) (emphasis added). Contrast “tax evasion,” which is “[t]he willful attempt to defeat or circumvent the tax law in order to illegally reduce one’s tax liability.” Black’s Law Dictionary 1599 (9th ed.2009)(emphasis added).

Further, applying the Riggins factors, the record fails to establish that Mr. Thomas was Angels Rocks, LLC’s alter ego such that the entity’s veil should be pierced.

In making its ruling, the district court stated:

I reviewed the entire file ... I reviewed the case law cited, the statutes, the transcripts from the Board of Tax Appeals in June and August 2010 and am going to reverse the judgment of the Board of Tax Appeal and find Mr. Thomas does not owe the sales tax and |7penalties assessed with the R.V. purchased for Angels Rocks. What he did was permissible under the law ... counsel for Mr. Thomas’s argument is well founded in the law and the statutes.

We find no error in the district court’s ruling. Assignment of error number two is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal in the amount of $362.00 are assessed to appellant, the Louisiana Department of Revenue.

AFFIRMED.

      . Although the purchase agreement was signed by Lane Thomas and Connie Thomas, the buyer was listed as “Angels Rocks, LLC” on the purchase agreement and on the bill of sale.

      . Louisiana Revised Statutes 47:1434 further provides, in pertinent part:
      Thereafter, and within the thirty calendar days from the date of the rendering and signing of such decision or judgment of the board, the taxpayer may file his petition for review with the proper district court, setting forth specifically any errors which may have been committed by the board in reaching its decision or judgment.
      When the district judge has ordered the review, a copy of the order and petition shall be mailed to the secretary-clerk of the board, and the opposing party or counsel representing him, and the order shall command the secretary-clerk of the board to send up within twenty days from the date thereof the original transcript of the record, together with all exhibits and evidence thereto attached ...

      . Hancock Bank issued the letter of credit for Mr. Thomas’s appeal to the district court.

      . The Board also asserts that Mr. Thomas did not specifically assign any errors nor did he attach a copy of an order to his petition as required by LSA-R.S. 47:1434. However, paragraphs 5 through 11 of Mr. Thomas's petition specifically allege why Mr. Thomas believed the Department's assessment against him was made in error. Additionally, LSA-R.S. 47:1434 does not specifically require that an "order” be filed with the petition. Nevertheless, the district court did sign an order, which was subsequently mailed to the Board, thereby curing any defect.

      . Some of the factors courts consider when determining whether to apply the alter ego doctrine include, but are not limited to: 1) commingling of corporate and shareholder funds; 2) failure to follow statutory formalities for incorporating and transacting corporate affairs; 3) undercapitalization; 4) failure to provide separate bank accounts and bookkeeping records; and 5) failure to hold regular shareholder and director meetings, Riggins, 590 So.2d at 1168.

      . Moreover, the record reflects that the vehicle is being housed in Mississippi. Nothing in the record suggests that the vehicle is being housed or used in Louisiana such that any other tax may be owed.


author: MOORE, J.

text:
    Judi MILKE, Plaintiff-Appellant v. RATCLIFF ANIMAL HOSPITAL, INC. through Dr. Keith RATCLIFF, and Dr. Tracy Pierce, Individually, Defendant-Appellees.
    No. 48,130-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 10, 2013.

      Judith Milke, Pro Se.
    Ben Marshall, Jr., Shreveport, LA, for Appellee Ratcliff Animal Hospital.
    Koeppel Traylor, LLC, New Orleans, LA, by Peter S. Koeppel, Chet D. Traylor, for Appellee Zurich American Ins. Co.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   MOORE, J.

It The plaintiffs 6-month-old Yorkshire Terrier, Slade, died during the postoperative recovery period following routine neutering surgery. Plaintiff filed suit in Shreveport City Court against the operating veterinarian, the clinic, and their insurer, alleging that their negligence during postoperative care caused Slade’s death, and the insurer failed to fairly adjust her claim. Five years after the petition was filed, the defendants moved for summary-judgment alleging that the plaintiff will not be able to carry her burden of proof at trial. It supported its motion with an affidavit from an expert stating that the standard of care during Slade’s surgery and recovery had not been breached. After a hearing, the court concluded that the plaintiff failed to produce evidence that the alleged postoperative acts or omissions were negligent or that the defendants breached a duty owed to plaintiff, nor did she show that the alleged negligent acts or omissions were a cause of Slade’s death. It also held that the insurer had properly adjusted the plaintiffs claim. The trial court rendered summary judgment dismissing the plaintiffs claims against the defendants. From this judgment, the plaintiff appeals. For the following reasons, we affirm.

Facts

On August 28, 2007, Judi Milke (hereinafter “Milke” or “plaintiff’), brought Slade, a 6-month-old, 4/¿-pound Yorkshire Terrier, to the Ratcliff Animal Hospital to have him neutered and to have some of his teeth removed. Prior to the procedure, Milke signed a waiver declining a blood test used to ascertain certain disorders of the liver, kidneys or blood that could cause an adverse reaction to anesthesia, at a cost of $118.50. Dr. |2Tracy Pierce, who had treated Slade previously at the clinic, performed the neutering procedure shortly before noon, beginning at approximately 11:45 a.m.

Milke returned to the clinic shortly after 12:00 p.m. to check on Slade and pick up another dog, Perdu, a 16-year-old mixed breed that she had also brought to the clinic that morning for evaluation. The receptionist asked her to wait to speak with Dr. Pierce. Dr. Pierce brought the plaintiff to a vacant room to speak with her, telling her that the surgery was uneventful and Slade was now breathing on his own. During the conversation, Dr. Pierce was summoned by an assistant. Approximately 20 minutes later, she returned and informed the plaintiff that Slade had died. Apparently very upset, Milke immediately left the clinic. There is no evidence that Milke and Dr. Pierce had any conversations regarding Slade’s death at this time.

The plaintiff alleged that, following the surgery, Dr. Pierce left Slade, still intubat-ed, to be monitored by an unlicensed veterinary assistant, Amber Starr Green, who brought the dog into another room to clip its toenails. While performing this task, she noticed that Slade was pale with a shallow pulse and shallow breathing. Amber sought help from another assistant, Rebecca Walker, who moved Slade back to the surgery room and reconnected his en-dotracheal tube to oxygen and began CPR. Amber summoned Dr. Pierce from her meeting with Milke.

Dr. Pierce returned to the room, assessed Slade, and determined that he had no pulse and was not breathing. While continuing CPR, she injected Slade’s intu-bation tube twice with epinephrine (Adrenalin) and injected |sDoxapram IV (a respiratory stimulant). These medications and CPR efforts failed to revive Slade. At 12:30 p.m., Slade expired. Dr. Pierce then informed Milke of this.

Later that afternoon, the plaintiff returned to retrieve Slade’s body. She alleges that she received the dog in a plastic “garbage bag.” She brought the dog home and placed him on her sofa. She reports that a large amount of blood was coming out from the dog’s mouth, and she contends the amount of blood was far more excessive than what could have come from having the three teeth extracted.

The plaintiff is an attorney and represents herself in this case. She contends that she was unable to obtain a straight answer from Dr. Pierce regarding the dog’s death. She alleges that Dr. Pierce refused to talk to her about what happened and referred her to her malpractice insurer, Zurich American Ins. Co. She later met with Dr. Keith Ratcliff, the owner of the clinic, but Dr. Ratcliff stated he was out of the office at the time of the incident and did not examine the dog postmortem. Dr. Ratcliff said he had not spoken with any employees about the incident, although the plaintiff alleges that he ordered that his anesthesia machines be checked immediately after Slade’s death.

Plaintiff filed a claim with the defendants’ insurer, Zurich, who subsequently concluded there had been no malpractice and denied the claim. Zurich stated in open court that it made an offer to settle the claim for $750, the price Milke paid for the dog. Milke countered, demanding | .^approximately $30,000.

The plaintiff filed suit in Shreveport City Court on August 18, 2008, naming Dr. Pierce and the Ratcliff Animal Clinic, through its owner, Dr. Ratcliff, as defendants. She alleged that Dr. Pierce and the clinic were negligent and specifically pleaded the doctrine of res ipsa loquitur. Plaintiff later amended her petition, adding Zurich as a defendant who had acted in bad faith regarding her claim.

After nearly five years of written discovery requests, responses and motions to compel, the defendants moved for summary judgment on grounds that the plaintiff could not produce any evidence that the standard of care was breached, and that any alleged breach was the cause of Slade’s death. After a hearing, the trial court granted the motion and dismissed the suit. The court rendered an opinion stating that there was no evidence that any of the alleged acts or omissions were negligent or a breach of a duty of care, but assuming they were, there was no evidence it was a cause of Slade’s death. The plaintiff filed this appeal.

Assignments of Error

The plaintiff asserts six assignments of error in the trial court’s judgment.

(1) The trial court erred in failing to find Drs. Pierce and Ratcliff were negligent and their negligence was the cause of Slade’s death.

(2) The trial court erred in failing to strike the affidavit of Dr. Hancock, the defendants’ expert.

(3) The trial court erred in failing to apply res ipsa loquitur.

| s(4) The trial court erred in failing to grant the plaintiffs second motion to compel against Zurich.

(5) The trial court erred in failing to find that Zurich was in bad faith.

(6) The trial court erred by granting summary judgment in favor of all defendants.

The appellate record contains numerous exhibits, responses to interrogatories and requests for admission submitted in support of and opposition to the motion, including Zurich’s complete insurance file of this claim and the deposition of Dr. Robert Hancock, defendants’ expert.

Discussion

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The mover need not negate every essential element of the opponent’s claim, action or defense; he need only point out the absence of factual support for one or more essential elements. La. C.C.P. art. 966 C(l). If the opponent then fails to produce sufficient support to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2); Babin v. Winn-Dixie La., 2000-0078 (La.6/30/00), 764 So.2d 37; Capital One, NA v. Walters, 47,157 (La.App. 2 Cir. 6/20/12), 94 So.3d 972. An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967 B; Samaha v. Rau, supra; Brooks v. Transamerica Financial Advisors, 45,833 (La.App. 2 Cir. 2/2/11), 57 So.3d 1153.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein; sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. La. C.C.P. art. 967 A; Samaha v. Rau, supra.

Appellate review of summary judgment is de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sensebe v. Canal Indem. Co., 2010-0703 (La.1/28/11), 58 So.3d 441.

In their motion for summary judgment, the defendants allege that the plaintiff cannot prove the elements of her claim, namely, the applicable standard of care and a breach of that standard of care and that such breach, if proven, caused Slade’s death. They allege that the same standards used to analyze medical malpractice cases are applicable in veterinary malpractice cases, that is, “to exercise the degree of skill ordinarily employed under similar circumstances by members of their profession in good standing in the community.” Dyess v. Caraway, 190 So.2d 666 (La.App. 2 Cir. 9/27/66); Ladnier v. Norwood, 781 F.2d 490 (5 Cir. 1/30/86) (Applying Louisiana law).

Accordingly, a plaintiff must prove by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002. See also, La. R.S. 9:2794. The defendants contend that the plaintiff has not produced any expert testimony to establish these elements of her claim.

The defendants attached to their motion for summary judgment the affidavit of Dr. Robert Hancock, a veterinarian board certified by the American College of Veterinary Surgeons. After summarizing his review of Dr. Pierce’s notes of the procedure, Dr. Hancock’s affidavit states:

No issues were reported with the surgical procedures. However, it is noted [Slade] was allowed to recover on oxygen postoperatively with the technician in charge. A heart rate of 100 was recorded. The technician recovering the patient notified Dr. Pierce that the patient was not breathing and did not have a heartbeat. CPR was performed and was unsuccessful. A necropsy was offered and declined by lathe owner.
Based on the information listed in the record there is no violation of the standard of care with how the patient was treated or recovered. Based on the present records, the patient had no issues until after surgery. There are no guarantees in any surgery or anesthesia. While anesthetic complications are rare, they do occur. CPR was started appropriately by Dr. Pierce. Dr. Pierce acted responsibly and in accordance with acceptable patient treatment. Dr. Pierce acted appropriately and in my opinion acted within the standard of care of a veterinarian.

Plaintiff did not submit an opposing expert affidavit and indicated that she did not intend to do so. She strenuously argues that her claim is a simple negligence claim in which she is not required to show by expert testimony a “standard of care” that was breached and caused Slade’s death. She contends that her opposing documentary evidence regarding postoperative protocols and her statistical data of surgical mortality rates among dogs submitted in opposition to the motion for summary judgment, along with the medical records and discovery responses regarding Slade’s postoperative care, show that Dr. Pierce and the clinic were negligent, and, under the doctrine of res ipsa loquitur, created an inference that more probably than not negligence caused Slade’s death.

The trial court treated Milke’s claim as a negligence claim, stating that she must prove that the specific postoperative acts, errors or omissions she complained about were negligent, a breach of a duty of care, and that this conduct or breach of a duty of care was a cause in fact of Slade’s death. It concluded that plaintiff had not produced any evidence that the acts, errors or omissions alleged were negligent, nor had she proven that they were the cause of Slade’s death.

|nWe now turn to our de novo consideration of the defendants’ motion and whether, as required by La. C.C.P. art. 966, the plaintiff has produced factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial.

Reduced to its salient points, Milke’s contention that Dr. Pierce and Ratcliff Clinic were negligent and that negligence caused Slade’s death is directed solely at Slade’s postoperative care, and not any aspect of the actual neutering surgery detailed by Dr. Hancock’s affidavit. According to Milke, Dr. Pierce was negligent for failing to remove the endotracheal tube — a tube inserted into the trachea (intubation) and attached to a ventilator during surgery — following the surgery. She contends that a proper protocol required that, after removing Slade from the ventilator, Dr. Pierce, as the anesthetist, must remain ■with Slade until he exhibited a swallowing reflex, signaling that the endotracheal tube could be safely removed (extubation). Then, she should have extubated Slade and taken a reading of his temperature, pulse and respiration (“TPR”). Instead, Dr. Pierce disconnected Slade from the ventilator, but then left the room to speak with Milke, leaving the endotracheal tube in Slade while being monitored by Amber Greene, and who took Slade into another room that had no electronic monitor and no ventilator. She alleges that leaving the endotracheal tube in Slade while removing him from the surgery table, moving and repositioning him in Amber’s lap, more likely than not caused his death. She alleges that Dr. Pierce and the clinic were negligent for not having an established post-operative protocol following neutering surgery, for performing or | inattempting to perform an unauthorized nail trim, and for employing an unqualified staff to handle postoperative care.

Of the 24 exhibits attached to her opposition, two consist of Slade’s medical record including Dr. Pierce’s surgical notes and her account of the incident in a letter to Zurich, which track her surgical notes. Dr. Pierce stated:

Amber Green was the technician assisting in this surgery. Monitoring of the patient was both manual and by pulse oximetry. The castration was uneventful, then I removed 3 deciduous teeth from Slade. Once this was complete, the Sevofurane was turned off and Slade was allowed to breathe oxygen for 3 — 4 minutes. His heart rate was 100 bpm, regular and strong. The oxygen was then turned off, ET tube disconnected from anesthesia machine and cuff deflated. I left at this point to go talk to Ms. Milke about her dogs, while Amber continued to monitor Slade. After approx. 2-3 minutes, Amber asked me to come check on Slade because he had stopped breathing. Rebecca Walker was performing CPR and had reconnected the ET tube back to oxygen. I assessed the patient and found no heartbeat and no respiration. Gave positive respiration with no results, while Rebecca was giving chest compressions. Turned respiration over to Amber and injected 0.5 cc epinephrine into ET tube. Injected 0.5 cc Doxapram IV. Injected another 0.5 cc epinephrine IC to no avail. Chest compressions and ventilation continued with no success. Expired at approximately 12:30 p.m.

Amber Green assisted Dr. Pierce during the surgery. Her account of the incident is found in a response to interrogatories. After Dr. Pierce left to speak with Ms. Milke, Amber remained in the surgery room to monitor Slade until he showed signs of awakening. She brought Slade to Room 2 for observation and monitoring until he was fully awake and to perform a nail trim. While on her lap on a towel, she noticed paleness, shallow pulse, and shallow breathing. She immediately notified Rebecca Walker, who took Slade back to the surgery room, reconnected his ET tube to theJjjventilator and began CPR. According to Amber, Slade did not ever exhibit the swallow reflex, which would signal the time to remove the ET tube.

Milke provided copies of electronic texts of two articles entitled, “Surgery/Anesthesia Recovery Protocol,” and “Responding to Adverse Events in Recovery” available from an Internet website regarding veterinary practice. In her appellate brief Milke also cites an article entitled “Anesthesia Guidelines for Dogs and Cats,” from the Journal of the American Animal Hospital Association, Nov/Dec 2011, 47:377-385, 383. These articles on postoperative protocol state:

The anesthetist MUST stay with their patient until the endotracheal tube has been removed, and at least one TPR has been recorded.... Remove endotra-cheal tube once animal has regained swallow reflex.

Plaintiff also submitted an abstract from a United Kingdom study on the risks of anesthetic and sedation-related mortality in small animals (dogs, cats, and rabbits). The study concludes that in healthy dogs, the risk of death related to anesthesia and sedation is only .05% or “1 in 895.” Additionally, 47% of the deaths in dogs occurred postoperatively. The study concludes that “[g]reater patient care in the postoperative period could reduce fatalities.”

A key issue raised in this case is whether the plaintiff must have the opinion of an expert to successfully oppose the defendants’ motion for summary judgment. The defendants provided an affidavit by an expert concluding that the standard of care was not breached. We note that the defendant was not required to provide any such affidavit since it is the |12plaintiffs burden of proof to show that the defendants’ conduct was negligent or breached a standard of care that caused the plaintiffs injury. Samaha v. Rau, supra. The plaintiff argues that because she is couching her suit as a claim in negligence under La. C.C. art. 2315, she need not establish by expert testimony a standard of care, breach of that standard of care and causation, but rather can rely on circumstantial evidence to show that Dr. Pierce and the clinic were negligent and that such negligence more probably than not caused Slade’s death.

We find no meaningful distinction in this case whether the plaintiffs claim is classified as a negligence claim or veterinary malpractice. In either case, the plaintiff must establish that the defendants owed the plaintiff a certain duty that was breached, and the breach caused the harm suffered by the plaintiff. In the context of the practice of medicine or veterinary medicine, where the duty owed to the plaintiff involves a degree of skill in the treatment of a patient, that duty is generally determined by a “standard of care” owed to a patient against which the alleged wrongful conduct is measured.

In Pfiffner v. Correa, 99-0924, (La.10/17/94), 94-0963 (La.10/17/94), 643 So.2d 1228, the court observed that expert testimony is not always required to show negligence:

Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence. See Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986). Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and [ ^failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician’s fault. See id. at 719-20. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, see, e.g., Riser v. American Medical Int’l Inc., 620 So.2d 372, 377 (La.App. 5 Cir.1993), or the alleged negligence consists of violating a statute and/or the hospital’s bylaws, see, e.g., Hastings, 498 So.2d at 722 (violation of LSA-R.S. 40:2113.4 which imposes duty on a hospital to make emergency services available to all persons in the community without regard to income or insurance protection and hospital bylaws establishing duties for on-call physicians), expert testimony is also unnecessary to establish a malpractice claim.
We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:279Jfs requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician, which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the injury alleged.

Id. at 1233-34 (Emphasis supplied).

Whether expert testimony is needed, then, turns on whether the veterinary medical issues and factual issues are such that lay jury could perceive negligence in Dr. Pierce’s conduct as well as any veterinary expert could. In our view, all of the plaintiffs allegations of negligent conduct against Dr. Pierce and the Ratcliff clinic require the testimony of an expert to establish a standard of care and whether that standard of care was breached, and an opinion whether a breach of the standard of care more 114likely than not caused Slade’s death.

For example, the plaintiff alleges that Dr. Pierce’s failure to remain with Slade after disconnecting the ET tube following surgery until he exhibited a swallowing reflex and then remove the ET tube constituted negligence. As noted, plaintiff submitted the printout of an Internet article to support this argument. While this document looks promising for the plaintiffs case, it is not competent evidence. Smith v. Roman Catholic Church of Archdiocese of New Orleans, 2008-0181 (La.App. 4 Cir. 11/12/08), 995 So.2d 1257, writ denied, 2009-0110 (La.3/27/09), 5 So.3d 142. It is essentially hearsay, but could possibly qualify as a learned treatise under the hearsay exception if referred to and attached by an expert in testimony or an affidavit. Id.; La. C.E. 803(18). A “standard of care” is a legal determination, whereas standards or practices of a profession, such as the protocols offered as evidence here, are factual matters. While the two are frequently coterminous, i.e., the standard, practice or protocol is, in effect, the standard of care, it is not necessarily the case. Thus, an expert is needed to establish whether the protocols asserted in the document are required by the local standard of care.

Plaintiff also alleges that it was negligent for Dr. Pierce to allow Amber Green to remove Slade to Room 2, which had no monitors and oxygen, with the ET tube still inserted. Although she alleges that leaving the ET tube in Slade’s throat caused his death, there is no evidence of this. Again, expert testimony is needed to determine if this conduct violated the 11sstandard of care and likely resulted in Slade’s death, especially since Slade continued to be monitored by Amber Green, who said Slade never exhibited a swallow reflex, which would have indicated that he could keep his airway open without the need of the ET tube.

We conclude that there is a need for expert testimony to support all of plaintiffs allegations of negligence. However, as noted by the trial court, even if we assumed that she has shown that Dr. Pierce or the clinic breached a standard of care required by the profession, there is simply no evidence that the alleged negligent conduct caused Slade’s death. The statistical data submitted by plaintiff showing that only .05% of healthy dogs (1 in 895) die as a result of surgery does not, in our view, create an inference of negligence unless it is shown that these deaths more likely than not were caused by substandard postoperative care. As noted by Dr. Hancock, the incidence of death due to anesthesia is rare, but it does happen. Although the United Kingdom study submitted by the plaintiff concluded that the mortality rate could be reduced by 47% with improved postoperative care, more than half, 53%, of the mortalities would not be eliminated by improved postoperative care.

For these reasons, based on our de novo review, we conclude that the trial court correctly determined that the plaintiff will be unable to meet her evidentiary burden of proof at trial. We conclude, therefore that her first assignment of error is without merit.

The plaintiff contends by her second assignment of error that the trial court erred by failing to strike the affidavit of Dr. Hancock. While we agree |1fiwith the plaintiff that Dr. Hancock’s affidavit is not particularly enlightening regarding the standards of postoperative care and contains factual errors, such as incorrectly stating that Slade was 4 months old instead of 6 months old, and incorrectly stating that Amber observed that Slade stopped breathing contrary to her answer to interrogatories, it does not appear that the trial court gave much weight to the affidavit. The trial court did not mention Dr. Hancock’s affidavit in its analysis of the plaintiffs claims of negligence against Dr. Pierce and the Ratcliff clinic, and it referenced it only while evaluating the claim that Zurich did not attempt to adjust her claim fairly, noting that Zurich did evaluate the plaintiffs claim and developed expert opinion evidence. As the supreme court observed in Samaha v. Rau, supra, a defendant in a malpractice case who moves for summary judgment on grounds that the plaintiff cannot meet one or more of the elements in its burden of proof is not required to submit an affidavit regarding the standard of care or causation. We conclude that this assignment is without merit.

In her third assignment, the plaintiff asserts that the trial court erred in failing to apply the doctrine of res ipsa loquitur. In Linnear v. Centerpoint Energy Entex/Reliant Energy, 2006-3030 (La.9/5/07), 966 So.2d 36, the supreme court explained the proper application of the doctrine of res ipsa loquitur:

The doctrine of res ipsa loquitur applies in cases where the plaintiff uses circumstantial evidence alone to prove negligence by the defendant.... The doctrine, meaning “the |17thing speaks for itself,” permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury.... [T]he doctrine applies when three criteria are met. First, the injury is the kind which ordinarily does not occur in the absence of negligence. While the plaintiff does not have to eliminate all other possible causes, he must present evidence indicating at least a probability that the accident would not have occurred absent negligence. Second, the evidence must sufficiently eliminate other more probable causes of the injury, such as the conduct of the plaintiff or a third person. The circumstances must warrant an inference of negligence. Third, the negligence of the defendant must fall within the scope of his duty to plaintiff. This may, but not necessarily, be proved in instances where the defendant had exclusive control of the thing that caused the injury.

The court stated that “the trial judge determines whether reasonable minds could differ on the presence of all three criteria. If reasonable minds could not conclude that all three criteria are satisfied, then the legal requirements for the use of res ipsa loquitur are not met.” Id. at 44.

Applying this standard, we find that this case does not pass the first requirement. The evidence simply does not establish that this injury was of the kind which does not ordinarily occur in the absence of negligence. As explained in Lin-near, “the event must be such that in light of ordinary experience it gives rise to an inference that someone must have been negligent.” Id. While the plaintiff presented evidence, albeit incompetent evidence, that 99.95% of healthy dogs recover from surgery and that only 1 in 895 suffer death, that statistic alone does not imply that the .05% mortality is due to negligence. Unfortunately, the plaintiff declined an necropsy that might have revealed the cause of death.

Therefore, the trial court did not err in failing to apply the doctrine of res ipsa loquitur.

|]8By her fourth assignment of error, the plaintiff alleges that the trial court erred in failing to grant her second motion to compel against Zurich. Plaintiff sought in discovery documents related to Zurich’s claims process, information on the identity of three doctors, specific information concerning a Dr. Ellis, and the relationship between Zurich and the AVMA/PLIT (American Veterinary Medical Association and Professional Liability Insurance Trust), and whether “Slade’s claim was processed as a malpractice claim or property claim,” and what the notation “xref 211591” means on Bates page number ZCF-007.

Zurich released to the plaintiff its entire claim file consisting of 373 pages. It opposed the motion on grounds that the discovery requests were harassing and overly burdensome and were not related to the litigation.

The court issued an opinion on the motion to compel. It found that discovery questions by the plaintiff regarding all information about the claims procedures of Zurich were irrelevant since a claim was made by the plaintiff, processed and ultimately denied by Zurich. It further found that Zurich’s answer and defense in the lawsuit demonstrated clearly that it considered the case to be a malpractice claim, not a property claim. As far as Zurich’s relationship with three other doctors and the AVMA/PLIT, the court said that this information does not appear to be related to the plaintiffs claim and she is not entitled to it as a third party.

Regarding Dr. Ellis, plaintiff submits that the file shows that Dr. Ellis was a Trust Doctor (PLIT) and allegedly wrote a letter asking questions about the postoperative procedures. There is no record of a response to his 119questions. Since postoperative negligence is the basis of her claim, plaintiff considers the information relevant.

The trial court has broad discretion in ruling on pretrial discovery, and an appellate court should not upset such a ruling absent an abuse of that discretion. Walker, Tooke & Lyons, L.L.P. v. Sapp, 37,966 (La.App. 2 Cir. 12/10/03), 862 So.2d 414, writ not cons., 2004-0088 (La.3/19/04), 869 So.2d 836. This broad discretion includes the right to refuse or limit discovery of matters that are not relevant to the issues. Id.

After our review of the trial court opinion, and the briefed arguments of plaintiff and Zurich, we find no abuse of discretion in the trial court’s ruling and adopt the reasons stated therein.

By her fifth assignment of error, the plaintiff alleges that the trial court erred by failing to find Zurich in bad faith. Plaintiff contends that Zurich has steadfastly sought to delay the case for five years. Plaintiff cites La. 22:1973A, which imposes a duty on insurers to adjust claims fairly and promptly and make reasonable efforts to settle. The statute reads:

A.An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A of this Section:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an |20agreement is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
(6) Failing to pay claims pursuant to R.S. 22:1893 when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
D. The provisions of this Section shall not be applicable to claims made under health and accident insurance policies.

Although a right of action is available to both insureds and third party claimants under this statute, only commission of one of specific acts listed in statute will support private action under such statute. Smith v. Midland Risk Ins. Co., 29,793 (La.App. 2 Cir. 9/24/97), 699 So.2d 1192. In other words, third parties must establish that the insurer did one of the listed acts under Section B.

After review, we conclude that the trial court correctly found that Zurich promptly investigated the plaintiffs claim and determined that no malpractice had occurred. We simply find no merit in the plaintiffs claim that Zurich was in bad faith.

| a|This assignment is without merit.

Plaintiffs sixth assignment alleges that the trial court erred in failing to assess damages. Because there has been no judgment of liability against the defendants, no damages are warranted.

CONCLUSION

For the reasons stated in our de novo review above, we conclude that the trial court did not err in rendering summary judgment dismissing the plaintiffs claims at her cost. Accordingly, the judgment of the trial court is affirmed at the cost of the appellant.

AFFIRMED.

      . Dr. Pierce’s notes indicate that she met twice with Milke in the weeks following the incident to discuss the incident.

      . R.S. 9:2794A, establishes the burden of proof in malpractice claims against physicians, dentists, optometrists, and chiropractic physicians. It does not specifically list veterinarians in the statute. The statute states that a plaintiff must prove:
      (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

      . The exhibit cites http://ruralareavet.org/ PDF/Clinic Protocols-Recovery.pdf.

      . Joseph H. BCing. "The Standard of Care for Veterinarians in Medical Malpractice Claims,” 58 Tenn. L.Rev. 1, 5 (Fall, 1990).

      . The trial court did erroneously state that Slade's death was instantaneous, which it possibly determined from Dr. Hancock’s affidavit stating that Slade just stopped breathing.


author: KING, JUSTICE,

text:
    Charlie HONEYCUTT v. Tommy COLEMAN, Atlanta Casualty Companies, Atlanta Casualty Company and American Premier Insurance Company.
    No. 2010-CT-01470-SCT.
    Supreme Court of Mississippi.
    May 30, 2013.
    Rehearing Denied Sept. 12, 2013.

      Joseph E. Roberts, Jr., Jackson, attorney for appellant.
    John W. Crowell, Columbus, Thomas Y. Page, Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

KING, JUSTICE,

for the Court:

¶ 1. Charles Honeycutt (Charles) was injured in an automobile accident involving a Mississippi state trooper. He sued the state trooper and two automobile-insurance providers — Atlanta Casualty Company (Atlanta Casualty) and American Premier Insurance Company (American Premier). The trial court granted the defendants’ motions for summary judgment. On appeal, the Court of Appeals affirmed the trial court’s grant of summary judgment.

¶ 2. Charles filed a writ of certiorari, protesting the grant of summary judgment for American Premier and its affirmance, and we granted his petition. Charles raises two issues:

I. Whether the trial court and the Court of Appeals erred by finding an insurance agent does not have a duty to explain uninsured-motorist coverage.
II. Whether summary judgment was granted improperly.

We find that, in order to obtain a knowing and voluntary waiver of uninsured-motorist coverage (UM coverage), an insurance agent does have a duty to explain UM coverage to the insured. We also find that summary judgment was not proper in this case. Thus, we reverse the Court of Appeals’ judgment and reverse the Lowndes County Circuit Court’s judgment, remanding the case to the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 3. On May 15, 1994, Charles, a minor at the time, was involved in a car accident at the intersection of Highway 45 and Wa-verly Road in Columbus, Mississippi. Charles was a passenger in Matthew Blax-ton’s vehicle. At a flashing yellow light, Blaxton made a left-hand turn, and his vehicle collided with Mississippi State Trooper Tommy Coleman’s patrol car. Charles was injured as a result of the collision.

¶4. On April 16, 2001, Charles filed a lawsuit against Trooper Coleman, Atlanta Casualty, and American Premier. All defendants filed motions for summary judgment. On March 16, 2005, the trial court entered an order granting Trooper Coleman’s motion for summary judgment pursuant to the Mississippi Tort Claims Act, finding that Trooper Coleman was acting within the course and scope of his employment and that Charles’s claims were barred by the one-year statute of limitations.

¶ 5. The trial court granted Atlanta Casualty’s motion for summary judgment on August 27, 2010. Prior to the accident, Atlanta Casualty had been the Honeycutt family’s automobile insurer. However, Atlanta Casualty argued that, prior to the accident, it had cancelled the Honeycutts’ insurance policy for unpaid premiums. The trial court determined that Atlanta Casualty effectively had canceled the Ho-neycutts’ insurance policy and granted Atlanta Casualty’s motion for summary judgment.

¶ 6. At the time of the accident, the Honeycutts had an insurance policy provided by American Premier, which was in effect. In its motion for summary judgment, American Premier argued that the Honeycutts had signed a waiver of UM coverage. Bernice Sam Honeycutt (Sam), Charles’s father, acknowledged signing a waiver of UM coverage but claimed that the waiver was not given knowingly. Charles argued that the insurance agent had a duty to explain UM coverage to his parents, and the insurance agent had failed to do so. The trial court determined that the insurance agent did not have a duty to explain UM coverage to the Ho-neycutts and granted American Premier’s motion for summary judgment.

¶ 7. On September 8, 2010, Charles appealed and challenged the trial court’s grant of summary judgment as to all defendants. The Court of Appeals affirmed the trial court’s judgment. Charles petitioned this Court for writ of certiorari, which we granted. Charles does not contest the Court of Appeals’ holding regarding Trooper Coleman and Atlanta Casualty. Thus, we do not address these issues. Charles challenges only the grant of summary judgment for American Premier.

ANALYSIS

I. Insurance Agent’s Duty to Explain Uninsured-Motorist Coverage

¶ 8. In its order granting summary judgment, the trial court stated that “the Mississippi Supreme Court overruled its prior ruling that insurance agents are required to explain to the insured the ramifications of rejecting UM coverage.” Affirming, the Court of Appeals determined that knowledge of the contents of the contract was imputed to the Honeycutts, and the insurance agent did not have a duty to explain every provision of the contract. Honeycutt v. Coleman, 120 So.3d 407, at 411-14 (¶¶ 10-19) (Miss.Ct.App.2012).

¶ 9. Charles argues that the trial court and the Court of Appeals misinterpreted caselaw regarding an insurance agent’s duty to explain UM coverage to an insured. We agree. Two cases are at issue: Aetna Casualty and Surety Company v. Berry, 669 So.2d 56 (Miss.1996) (Berry), and Owens v. Mississippi Farm Bureau Casualty Insurance Company, 910 So.2d 1065 (Miss.2005).

¶ 10. Mississippi law gives an insured the right to purchase UM coverage. Miss.Code Ann. § 83-11-101 (Rev.2011). If the insured chooses to reject UM coverage, the statute requires that the insured reject UM coverage in writing. Id. Under Mississippi caselaw, a written waiver is not effective unless it can be demonstrated that the insurer sufficiently explained UM coverage to the insured and obtained a knowing and informed waiver of UM coverage. See Atlanta Cas. Co. v. Payne, 603 So.2d 343, 348 (Miss.1992).

¶ 11. In Berry, the Court held that an insurance agent has a duty to explain a waiver of UM coverage and to explain the option to purchase additional UM coverage. Berry, 669 So.2d at 76-77. The Court stated that:

We hold that in order for an insured to have an option to increase UM limits not to exceed the limits of the policy, or for the insured to completely reject UM coverage in writing, an insurance agent has a duty to explain UM coverage as outlined above. An agent is not necessarily under a duty to recommend that the insured exercise the option of obtaining UM coverage up to the limits of the policy; however, before an insured may make an intelligent decision about how much UM coverage he wants, or make a knowing waiver of UM coverage in writing (which the agent must obtain if there is to be no UM coverage under the policy), he must understand what he is entitled to.

Id. Berry addressed two separate issues: (1) a waiver of UM coverage and (2) purchasing additional UM coverage above the statutory minimum. Berry required the insurance agent to explain the waiver of UM coverage and, if the insured chose to waive UM coverage, to obtain a written waiver. Id. If the insured chose to obtain UM coverage, Berry required the insurance agent to inform the insured that he or she had the option to purchase additional UM coverage, not to exceed the policy’s limits. Id.

¶ 12. In 2005, the Court partially overruled Berry. See Owens, 910 So.2d at 1073-75 (¶¶ 31-40). Owens dealt with whether an insurance agent has a duty to explain an insured’s right to purchase additional UM coverage over the statutory minimum. See id. at 1068 (¶ 8). The Court affirmed that waiver of UM coverage could be obtained only by a knowing and intelligent waiver. Id. at 1074 (¶ 34). But the Court determined that an insurance agent did not have a duty to explain additional UM coverage above the statutory minimum, overruling Berry on this point. Id. at 1074 (¶ 35). The Court stated that:

The agent’s requirement announced in Berry is in two parts. The first requires explanation of UM coverage prior to obtaining the waiver required by Miss. Code Ann. § 83-11-101. The second requires explanation of an insured’s right to increase UM benefits from the statutory limit to the liability limit of the policy.
Although we question the seemingly absolute requirement of explanation by the insurance agent, we fully agree and hold that the statutorily required waiver of UM coverage may be obtained only from a fully-informed insured. That is to say, the waiver must be knowing and intelligent. This distinction is important since there may be instances where the insured-separate and apart from any explanation by the agent-is already fully aware of the intricacies of UM coverage, including the costs and benefits, and being fully informed, chooses to waive UM coverage. Under such circumstances, no logical reason exists to require a redundant explanation from the agent. The simple principle announced here is that no statutorily-required waiver of UM benefits is effective unless the waiver was obtained from an insured who was reasonably knowledgeable and informed of the costs and benefits of such UM coverage prior to signing the waiver. To this extent, we reaffirm the holding in Berry.
However, we reject and overrule the implication in Berry that an insurance agent has the absolute, court-created duty to explain an insured’s right to purchase additional UM coverage, over and above the amount of coverage required by statute.

Owens, 910 So.2d at 1074 (¶¶ 33-35) (emphasis added).

¶ 13. In subsequent cases, the Court noted its partial overruling of Berry. See Alley v. N. Ins. Co., 926 So.2d 906, 909 (¶ 6) (Miss.2006). And previously, the Court of Appeals correctly had explained the effect of Owens on the Berry holding, stating that:

However, Mississippi law does not require an insurance agent to explain the costs, risks, and benefits of carrying UM coverage over the statutory minimum. In Owens, the Mississippi Supreme Court distinguished two separate issues that [the appellant’s] brief conflates. First, when an insured waives UM coverage altogether, there is a question as to whether that waiver was knowing and intelligent. In answering that question, the court will often look to whether the agent explained UM coverage to the insured. Second and distinct is the question as to whether an agent has a legal duty to explain the costs, risks, and benefits of carrying UM coverage over the statutory minimum. On that second question, the supreme court clearly answered in the negative.

Reid v. Miss. Farm Bureau Cas. Ins. Co., 63 So.3d 1238, 1240 (¶ 9) (Miss.Ct.App.2010). Based on the above, we find that the trial court and the Court of Appeals incorrectly interpreted the Court’s holding in Owens.

¶ 14. As previously mentioned, the question in Owens was whether an insurance agent has a duty to explain an insured’s right to purchase additional UM coverage above the statutory minimum. The Court determined that no such duty existed, partially overruling Berry. Owens, 910 So.2d at 1074 (¶ 35). The Owens Court questioned whether an insurance agent absolutely was required to explain a waiver of UM coverage if the insured was “already fully aware of the intricacies of UM coverage, including the costs and benefits ....” Id. at 1074 (¶ 34). Because Owens did not concern a waiver of UM coverage, the question was not before the Court, and the language is dicta. Owens did not take the extra step to overrule Berry’s holding on this matter. Thus, we deem it appropriate to clarify the application of Berry.

¶ 15. First, any waiver of UM coverage must be made knowingly and intelligently, and the waiver must be in writing. Second, the insurance carrier bears the burden of proving that any waiver of UM coverage was made knowingly and intelligently. Third, the insurance carrier may meet that burden of proof by establishing that it provided an explanation, appropriate to the client, of UM coverage. The insurance carrier also may establish that the client was fully knowledgeable through other sources of the purposes and benefits of UM coverage. Fourth, any document signed by the client which allegedly states that an explanation was given to the client may be considered by the fact finder, but this is not disposi-tive as to whether the client gave a knowing and intelligent waiver of UM coverage. Fifth, the client may rebut, through appropriate evidence, any proof offered by the carrier. And sixth, whether a client made a knowing and intelligent waiver of UM coverage ultimately is a question of fact to be resolved by the trier of fact.

II. Summary Judgment

¶ 16. Next, Charles argues that the trial court erred by granting summary judgment in favor of American Premier, and the Court of Appeals erred by making factual findings to affirm the trial court’s holding.

¶ 17. We review the trial court’s grant or denial of summary judgment de novo. Poppenheimer v. Estate of Coyle, 98 So.3d 1059, 1062 (¶ 7) (Miss.2012). Summary judgment is proper “if 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 any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The moving party has the burden to show that no genuine issue of material fact exists. Poppenheimer, 98 So.3d at 1062 (¶ 8). Accordingly, we review the evidence in the light most favorable to the nonmoving party. Id.

¶ 18. Although the Honeycutts had signed a waiver of UM coverage, Sam and Barbara testified that they had not understood the importance of such rejection, and the insurance agent had failed to explain the waiver. In fact, Sam indicated that he had asked for “full coverage,” and he had “assumed full coverage covered everything.” Based on this testimony, Charles maintains that a genuine issue of material fact exists regarding whether his parents gave a knowing and intelligent waiver of UM coverage. American Premier argues that the provision signed by the Honey-cutts was sufficient to show that it had obtained a knowing and intelligent waiver of UM coverage.

¶ 19. The provision signed by the Ho-neycutts reads as follows:

State law requires that no automobile liability insurance policy be issued or delivered unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury, death or property damage from the owner or operator of an uninsured motor vehicle and permits any insured named in the policy to select or reject uninsured motorist coverage for this policy and any renewal hereof. I acknowledge and agree that I have been given the option to purchase uninsured motorist coverage within limits no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law and up to an amount not to exceed that provided in the policy of bodily injury liability insurance or to reject the coverage entirely. After having uninsured motorist coverage offered and explained, I have voluntarily and intentionally exercised this option as indicated below and as shown on the other side of this application.

A checkmark is beside the statement “I reject uninsured motorist coverage in its entirety,” and the provision is signed and dated.

¶ 20. American Premier argues that this provision is sufficient proof that the Honeycutts made a knowing and intelligent waiver of UM coverage. According to American Premier, the Honeycutts were responsible for reading the provision prior to signing it and, by signing the provision, they are charged with knowledge of its contents. The Court of Appeals came to this same conclusion when affirming the trial court’s judgment.

¶ 21. While the waiver of UM coverage signed by the Honeycutts can be considered in determining whether they made a knowing and intelligent waiver of UM coverage, we find that the document is not outcome-determinative. The Honey-cutts testified that, although Sam signed the provision, they did not read the provision and (notwithstanding the assertion of an explanation contained in that provision) the insurance agent failed to explain the waiver of UM coverage. Barbara testified that “they just tell you you don’t have to bother reading it, just initial it or sign it.” Owens makes clear that the insured must be “reasonably knowledgeable and informed of the costs and benefits of such UM coverage prior to signing the waiver.” Owens, 910 So.2d at 1074 (¶ 34). The waiver provision itself neither explains the benefits of UM coverage nor the consequences of rejecting UM coverage. American Premier argues that the Honeycutts had a history of rejecting UM coverage, and this is sufficient proof that they gave a knowing waiver. It certainly is plausible that the Honeycutts were aware of the intricacies of UM coverage, but this determination should be made by the fact-finder.

¶ 22. Viewing the evidence in the light most favorable to Charles, we find a genuine issue of material fact exists regarding whether the insurance agent explained the costs and benefits and whether the Honeycutts gave a knowing and intelligent waiver of UM coverage. Because the evidence presents a genuine issue of material fact that should be decided by the fact-finder, the trial court erred by granting American Premier’s motion for summary judgement.

CONCLUSION

¶ 23. Insurance agents must obtain a knowing and intelligent waiver of UM coverage and obtain that waiver in writing. A provision signed by the insured, which purportedly waives UM coverage, may be considered as evidence of whether the insured gave a knowing and intelligent waiver. However, the existence of the document is not outcome-determinative. The Honeycutts presented a genuine issue of material fact regarding whether they gave a knowing and intelligent waiver of UM coverage. Thus, the trial court erred by granting summary judgment. In regard to the American Premier insurance policy, we reverse the judgment of the Court of Appeals, and we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

¶ 24. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Miss.Code Ann. §§ 11-46-1 to -23 (Rev. 2012).

      . See Miss.Code Ann. § 11-46-11(3) (Rev. 2012).

      . The Honeycutts had signed a waiver of UM coverage with Atlanta Casualty.

      . Confusion existed regarding which parent actually had signed the waiver of UM coverage for the American Premier policy — Barbara Honeycutt, Charles’s mother, or Bernice Sam Honeycutt (Sam), Charles’s father.

      . Honeycutt v. Coleman, 120 So.3d 407 (Miss.Ct.App.2012).

      . The Court stated that:
      In the case before us today, there is no issue of knowing, intelligent waiver, since Mr. Owens did not waive the statutory minimum UM coverage. Rather, Mrs. Owens claims that her husband’s Farm Bureau agent, Smith, did not explain the right to purchase UM coverage equal to the bodily injury liability limits under their policy.

        Owens, 910 So.2d at 1075 (¶ 36).

      . In his deposition, Sam testified that he did not place the check mark on the provision. According to Sam, the insurance agent would fill out the forms beforehand, and he would sign the documents.