text:
    In re Trent Anthony GARRETT, Sr.
    No. 2014-B-1022.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

1 t This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Trent Anthony Garrett, Sr., an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in 2006. In October 2013, this court suspended respondent from the practice of law for one year, with all but six months deferred, followed by a period of supervised probation with Ethics School, for neglecting a legal matter, failing to promptly return a complete copy of a client file, failing to cooperate with the ODC in its investigation, and failing to specifically disclose his child support arrearages on his bar application. In re: Garrett, 13-0491 (La.10/15/13), 124 So.3d 1080 (“Garrett I”). Respondent has not yet sought reinstatement from this suspension and, thus, remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

INFORMAL CHARGES

In November 2008, Benjamin Washington Turner, Jr. was involved in an automobile accident in Mississippi. In December 2008, Mr. Turner retained respondent to represent him in a claim for damages arising out of the accident. Thereafter, respondent allowed the applicable Mississippi statute of limitations to expire without filing suit on Mr. Turner’s behalf. Mr. Turner subsequently filed a legal malpractice suit against respondent in the 19th Judicial District Court for the Parish of East Baton Rouge.

In November 2011, Mr. Turner filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena for his sworn statement. During the June 2012 sworn statement, respondent chose not to respond to the allegations against him. Since that time, respondent has had no further contact with the ODC regarding Mr. Turner’s complaint.

DISCIPLINARY PROCEEDINGS

In June 2013, the ODC filed one count of formal charges against respondent, alleging his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

1 (¡Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee adopted the deemed admitted factual allegations of the formal charges as its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee recommended respondent be suspended from the practice of law for one year and one day.

Neither respondent nor the ODC filed an objection to the hearing committee’s report.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined respondent violated duties owed to his client, the legal system, and the legal profession. His actions were knowing and intentional. After | considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board found the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. The board found the following mitigating factors are present: personal or emotional problems and inexperience in the practice of law (admitted 2006).

Turning to the issue of an appropriate sanction, the board considered the case of Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), wherein the court observed that when a second attorney disciplinary proceeding involves conduct that occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously. Noting the misconduct in Garrett I occurred during the same time period in which the substantive misconduct in the present matter occurred, the board determined that based on Chatelain, the substantive conduct in this matter must be considered with the misconduct subject of Garrett I, in which respondent received a one-year suspension, with six months deferred. The board concluded that, had the court considered the substantive misconduct in this matter with the misconduct in Garrett I, it would have suspended respondent from the practice of law for one year and one day.

As to respondent’s failure to cooperate, which occurred outside of the time period subject to the Chatelain analysis, the board recommended respondent be adjudged guilty of additional misconduct to be considered when and if he applies for reinstatement to the practice of law.

Finally, the board recommended respondent be assessed with the costs and expenses of this proceeding.

|KNeither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent neglected a legal matter and failed to cooperate with the ODC in its investigation of the complaint filed against him. Accordingly, we agree respondent violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the |f,profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record further supports a finding that respondent violated duties owed to his client, the legal system, and the legal profession, causing actual harm. His actions were knowing and intentional. The baseline sanction for this type of misconduct is suspension. The aggravating and mitigating factors found by the disciplinary board are supported by the record.

Turning to the issue of an appropriate sanction, we note the misconduct in Garrett I began in 2004 and continued through April 2011, while the substantive misconduct in the instant matter occurred between 2008 and 2011. Based on Chatelain, we agree the substantive misconduct in the instant matter should be considered along with the misconduct in Garrett I. Accordingly, for his neglect of Mr. Turner’s legal matter, we will impose a one year and one day suspension, retroactive to October 15, 2013, the date of respondent’s suspension in Garrett I.

As to respondent’s failure to cooperate with the ODC in 2011 and 2012, after the substantive misconduct in Garrett I, we agree with the board’s recommendation and will adjudge respondent guilty of additional misconduct to be considered when and if he applies for reinstatement to the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Trent Anthony Garrett, Sr., Louisiana Bar Roll number 30247, be and he hereby is suspended from the practice of law for a period of one year and one day, which suspension |7shall run retroactively to the suspension imposed in In re: Garrett, 13-0491 (La.10/15/13), 124 So.3d 1080. It is further ordered that respondent be and he hereby is adjudged guilty of additional violations warranting discipline, which shall be considered in the event he seeks reinstatement after becoming eligible to do so. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Mississippi imposes a three-year statute of limitations for personal injury claims. Mississippi Code Annotated § 15-1-49 (2012).

      . In his sworn statement, respondent advised he did not want to comment on the Turner matter due to the pending malpractice suit. However, respondent further advised that he would be more than willing to comment on the matter once the suit was resolved.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Kemon J. MAGEE.
    No. 2012-K-1084.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   PER CURIAM.

| ¶ Granted in part. Defendant pleaded guilty to a first-offense grade of illegal carrying of a concealed weapon in the Municipal Court for Orleans Parish. The offense, a misdemeanor, was charged under La. R.S. 14:95(A), which requires proof of “intentional concealment of any firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.” See La. R.S. 13:2493 (Municipal Court of New Orleans has concurrent jurisdiction with Criminal District Court for “the trial of violations of state statutes which are not triable by a jury”). The state thereafter charged defendant in the Criminal District Court with a second-offense violation of La. R.S. 14:95, a felony, and with illegal possession of a stolen firearm arising from the same incident and involving the same weapon. The latter offense requires proof of the “intentional possessing, procuring, receiving or concealing of a firearm which has been the subject of any robbery or theft under circumstances which indicate the offender knew or should have known that the firearm was the subject of a robbery or theft.” La. R.S. 14:69.1. Defendant moved to quash both charges on double jeopardy grounds on the basis of his earlier guilty plea in Municipal Court. The state conceded that defendant could not be prosecuted twice for different grades of the same offense arising from the same act under the same state ^statute, but contended that the offenses of illegal possession and illegal carrying have different elements and therefore the prosecution of the former was not barred by the guilty plea to the latter. The district court granted defendant’s motion to quash, however, and the state appealed.

The court of appeal affirmed. The court of appeal applied the test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and compared the remaining charge with the offense to which defendant previously pleaded guilty to find that the elements of these offenses are different as follows: “[T]he crime of illegal carrying of a weapon required the State to establish that [defendant] intentionally concealed a weapon on his person. And the crime of illegal possession of a stolen firearm required the State to prove the firearm was stolen and that [defendant] knew or should have known it was stolen.” State v. Magee, 13-1267, p. 7, (La.App. 4 Cir. 4/23/14), 140 So.3d 370, 374-75. Thus, each crime required proof of a fact that the other did not. Nonetheless, the court of appeal found under Louisiana’s “same evidence test” that “the evidence needed to support a conviction for the offense, i.e. testimony from the police officers that they observed [defendant] intentionally possess and conceal a stolen firearm on his person while standing next to the vehicle and seated in the vehicle, would have been sufficient to convict [defendant] of the illegal carrying of a weapon, the offense to which he previously pled guilty and was sentenced in municipal court.” Magee, 13-1267 at 7, 140 So.3d at 374-75 (emphasis added).

The court of appeal erred in this latter determination and by merging acts of possession and concealment. Under the “same evidence test” used by Louisiana courts in tandem with the Blockburger additional fact test, a court considers the actual physical and testimonial evidence necessary to secure a conviction. State v. Williams, 07-0931, p. 5 (La.2/26/08), 978 So.2d 895, 897. Under this test, if the |sevidence required to support a finding of guilty of one crime would also support a conviction for another, the defendant can be placed in jeopardy for only one of the two. State v. Coody, 448 So.2d 100,102-03 (La.1984); see also State v. Roberts, 152 La. 283, 286-87, 93 So. 95, 96-97 (1922). The test “depends on the evidence necessary for a conviction, not all the evidence introduced at trial.” State v. Steele, 387 So.2d 1175,1177 (La.1980).

In the present case, the evidence that the state would have been required to present to prove defendant illegally carried a concealed weapon, ie. that he concealed a firearm on his person, would not support a conviction for illegal possession of a stolen firearm. For that matter, evidence that the state is required to present to prove defendant illegally possessed a stolen firearm, that he possessed, received, procured, or concealed a firearm (stolen and known to him to have been stolen) would not support a conviction for carrying a weapon concealed on his person. Thus, the gravamen of the offense for which defendant will be prosecuted was not essentially included within the offense for which he has been prosecuted. State v. Nichols, 337 So.2d 1074, 1076 (La.1976) (“If one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on

both offenses, unless the gravamen of the second offense is essentially included within the offense for which first tried, in which case the second prosecution is barred because of former jeopardy.”) (citations omitted). Although the state would present the same evidence in both trials because the two crimes constituted integral acts of a single transaction, and although the state would prove the identical conduct in both prosecutions in support of the facts that it is required to prove to sustain a conviction for either offense, Louisiana’s “same evidence” test has never been the equivalent of the “same conduct” test briefly adopted by the United States Supreme Court in Grady v. Corbin, |4495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990) (“[T]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”) (footnote omitted), and then discarded less than three years later. See United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling Corbin, reinstating Blockburger as the exclusive test under Double Jeopardy Clause, and further commenting “we think it time to acknowledge what is now, three years after Grady, compellingly clear: the case was a mistake.”).

Accordingly, the application is granted in part to reverse the court of appeal to the extent that it found that the prosecution for illegal possession of a stolen firearm is prohibited by the Double Jeopardy Clause and to vacate that portion of the district court’s ruling that quashed this charge. The matter is remanded to the district court for further proceedings.


text:
    In re Jeremy Douglas DEAN.
    No. 2014-OB-1360.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   ORDER

hThe Office of Disciplinary Counsel (“ODC”) is conducting an investigation into allegations that respondent engaged in multiple instances of serious attorney misconduct, including commingling and conversion of client funds. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Jeremy Douglas Dean, Louisiana Bar Roll number 28381, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Jeremy Douglas Dean for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Jeremy Douglas Dean shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ Jefferson D. Hughes III Justice, Supreme Court of Louisiana


text:
    Robert H. GATTI, et al. v. STATE of Louisiana, through the OFFICE OF CONSERVATION, and James H. Welsh, Commissioner of Conservation, et al.
    No. 2014-C-0863.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Beusa Energy L.L.C. f/k/a Beusa Energy Inc.; Chesapeake Operating Inc.; Comstock Oil and Gas Louisiana L.L.C.; QEP Energy Company; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton rouge, 19th Judicial District Court Div. E., No. 589, 350; to the Court of Appeal, First Circuit, No. 2013 CA 0289.

Prior report: La.App., 2014 WL 3517548.

|! Writs granted. The court of appeal is reversed. The district court’s ruling, which granted the defendants’ exceptions of lack of subject matter jurisdiction, no cause of action, no right of action and prescription/peremption are reinstated. The plaintiffs’ claims are dismissed without prejudice, as originally ordered by the district court.

VICTORY, J., recused.

KNOLL, J., would deny.

HUGHES, J., would deny.


author: JOHNSON, Chief Justice, would grant rehearing. WEIMER, J., would grant the rehearing.

text:
    STATE of Louisiana in the Interest of E.C.
    No. 2013-CK-2483.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
    JOHNSON, C.J., would grant with reasons.
    WEIMER, J., would grant with reasons.
    HUGHES, J., would grant.
   JOHNSON, Chief Justice, would grant rehearing.

| TI remain convinced that it was unconscionable to remand this defendant to secure confinement in a juvenile facility in order to participate in a culinary arts program, two years after a juvenile court judge found him in compliance with his plea agreement and ordered his release.

WEIMER, J., would grant the rehearing.

hThe state’s opposition fails to respond substantively to the merits and wrongfully cites Supreme Court Rule IX, § 6, which provides that “[a]n application for rehearing will not be considered when the court has merely granted or denied an application for a writ of certiorari or a remedial or other supervisory writ.” This matter did not involve a “mere” writ grant, which is addressed by Rule IX, § 6. Instead, this court issued a per curiam opinion, for which the rule simply has no application, and does not bar rehearing. The juvenile was absolutely entitled to request a rehearing.

The state’s failure to support the merits of the per curiam underscores that the merits are insupportable and that there has been a misinterpretation of the record. There was simply no waiting list that the juvenile could sign to enter the cooking program. Despite an order by the juvenile court, the juvenile was not admitted into the program. Yet, the majority’s per curiam faults this mentally challenged juvenile for not accomplishing what the juvenile court could not accomplish and for failing to put his name on a waiting list that he was not authorized to sign.

|2According to the plea agreement, the juvenile was never required to complete the cooking program. He was only required to put forth his best effort. The juvenile court heard the evidence and viewed the testimony and evidence during multiple hearings, which generated 900 pages of record. The juvenile court concluded the juvenile had complied with the plea agreement. There is no abuse of discretion evident on this record if properly evaluated. I would, therefore, grant rehearing.

      . Any determination that it is “significant” that the juvenile avoided transfer to adult court through the plea agreement is erroneous. The state sought and filed for transfer to adult court, which was opposed. The state dismissed its own motion to transfer during the hearing, before the plea agreement was reached.


text:
    LAKE AIR CAPITAL II, LLC v. Sarath K. PERERA and Hemalie Perera.
    No. 2014-CC-1044.
    Supreme Court of Louisiana.
    May 21, 2014.
   In re Perera, Hemalie; Perera, Sar-ath; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2013-05045; to the Court of Appeal, Fourth Circuit, No. 2014-C-0378.

Not considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    STATE ex rel. Brandon LAVERGNE v. STATE of Louisiana.
    No. 13-KH-2251.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Lavergne, Brandon; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 25, 2014, Parish of Lafayette, 15th Judicial District Court Div. E, No. 138234; to the Court of Appeal, Third Circuit, No. KH 13-00314.

Reconsideration denied.


text:
    STATE ex rel. Kenneth Wayne MONTGOMERY v. STATE of Louisiana.
    No. 2013-KH-2270.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Montgomery, Kenneth Wayne;— Plaintiff; Applying for Reconsideration of this Court’s action dated May 2, 2014, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 26952-12; to the Court of Appeal, Third Circuit, No. KH 13-00678.

Reconsideration denied.


text:
    STATE ex rel. Brandon LAVERGNE v. STATE of Louisiana.
    No. 2013-KH-2392.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Lavergne, Brandon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, Nos. 585314FA, 58,521-F; to the Court of Appeal, Third Circuit, Nos. KH 13-00502, KH 13-00573.

Reconsideration denied.


author: JOHNSON, C.J.,

text:
    STATE ex rel. Karl DAVIS v. STATE of Louisiana.
    No. 2013-KH-0208.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Davis, Karl; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 244-290.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S/—, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S.—, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Donald Ross HUMBLE v. STATE of Louisiana.
    No. 2013-KH-0360.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Humble, Donald Ross, — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, Nos. 16066, 16067.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.—, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. John Thomas CZERE, III v. STATE of Louisiana.
    No. 2013-KH-1033.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Czere III, John Thomas; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 65012/13.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.-, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


author: JOHNSON, C.J.

text:
    STATE ex rel. Charles Wayne SNEED v. STATE of Louisiana.
    No. 2013-KH-1156.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Sneed, Charles Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bienville, 2nd Judicial District Court Div. A, No. 17360; to the Court of Appeal, Second Circuit, No. 48,-395-KH.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert, denied, Tate v. Louisiana, — U.S.—, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

JOHNSON, C.J.

In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Roderick THOMAS v. STATE of Louisiana.
    No. 2013-KH-1918.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Thomas, Roderick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 130,664.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.—, 134 S.Ct. 2663,189L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S.,-132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Aaron HAUSER v. STATE of Louisiana.
    No. 2013-KH-2028.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Hauser, Aaron; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR-1983-548; to the Court of Appeal, Third Circuit, No. KH 13-00391.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.—, 134 S.Ct. 2663,189L.Ed.2d 214 (2014)

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this. court held that Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Frederick THOMAS v. STATE of Louisiana.
    No. 2013-KH-2187.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Thomas, Frederick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 131,695.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.—, 134 S.Ct. 2663,189L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Gerald STOVES v. STATE of Louisiana.
    No. 2013-KH-2227.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Stoves, Gerald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 332640; to the Court of Appeal, First Circuit, No. 2013 KW 0942.

Denied.


text:
    STATE ex rel. John Dale HALL v. STATE of Louisiana.
    No. 2013-KH-2454.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Hall, John Dale; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Winn, 8th Judicial District Court Div. O, No. 33,807; to the Court of Appeal, Second Circuit, No. 48,753-KH.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.—, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Lue Elbert SULLIVAN v. STATE of Louisiana.
    No. 2013-KH-2487.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Sullivan, Lue Elbert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 73-996; to the Court of Appeal,' Fifth Circuit, No. 13-KH-735.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.—, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Randy KAYSEN v. STATE of Louisiana.
    No. 2013-KH-2523.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Kaysen, Randy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 82-3433; to the Court of Appeal, Fifth Circuit, No. 13-KH-748.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Earl ROBINSON, Jr. v. STATE of Louisiana.
    No. 2013-KH-2562.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Robinson Jr., Earl; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 13-WCR-240; to the Court of Appeal, First Circuit, No. 2013 CW1461.

Denied.


text:
    STATE ex rel. Jackie J. GREEN v. STATE of Louisiana.
    No. 2013-KH-2565.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Green, Jackie J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 489-299; to the Court of Appeal, Fourth Circuit, No. 2013-K-1211.

Denied.


text:
    STATE ex rel. Arthur WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-2576.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Williams, Arthur; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 99-1909; to the Court of Appeal, Fifth Circuit, No. 13-KH-632.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Harold EVANS v. STATE of Louisiana.
    No. 2013-KH-2577.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Evans, Harold; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 08-3897; to the Court of Appeal, Fifth Circuit, No. 13-KH-716.

Denied.


text:
    STATE ex rel. David A. LEE v. STATE of Louisiana.
    No. 2013-KH-2612.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Lee, David A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 405-129; to the Court of Appeal, Fourth Circuit, No. 2013-K-1302.

Denied.


text:
    STATE ex rel. Joshua G. KELLY v. STATE of Louisiana.
    No. 2013-KH-2645.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Kelly, Joshua G.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 364-278; to the Court of Appeal, Fourth Circuit, No. 2013-K-1317.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Johnnie ROBERTS, Jr. v. STATE of Louisiana.
    No. 2013-KH-2649.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Roberts Jr., Johnnie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 426-511; to the Court of Appeal, Fourth Circuit, No. 2013-K-1352.

Denied.


text:
    STATE ex rel. George Anthony COLLIER v. STATE of Louisiana.
    No. 2013-KH-2652.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Collier, George Anthony; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 10-F0136; to the Court of Appeal, Second Circuit, No. 48,855-KH.

Denied.


text:
    STATE ex rel. Kenyatta CURTIS v. STATE of Louisiana.
    No. 2013-KH-2661.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Curtis, Kenyatta; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 414-426; to the Court of Appeal, Fourth Circuit, No. 2013-K-1349.

Denied.


text:
    STATE ex rel. Jeremy COLBERT v. STATE of Louisiana.
    No. 2013-KH-2662.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Colbert, Jeremy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 444-008; to the Court of Appeal, Fourth Circuit, No. 2013-K-1358.

Denied.


text:
    Mark MADDIE v. Larry VOSBURG and Susie R. Vosburg.
    No. 2013 CW 1791.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 16, 2014.
   In Re: Larry Vosburg and Susie R. Vosburg, applying for supervisory writs, 21st Judicial District Court, Parish of Livingston, No. 137,406.

Before PETTIGREW, McDONALD, and McClendon, jj.

11 WRIT NOT CONSIDERED. Rela-tors failed to comply with Uniform Rules of Louisiana Courts of Appeal, Rule 4-3, in that their applications for extension of time to file their applications were not filed within the time fixed for that purpose. The writ application shows that the rela-tors were given until July 18, 2013, to file their writ application. They filed for an extension on July 31, 2013. On August 5, 2013, they were given an additional 30 days to file their writ application. They filed for another extension on September 10, 2013. The relators have made no showing that the delays in seeking extensions were not their fault.

Supplementation of this writ application or an application for rehearing will not be considered. Rule 4-9 and 2-18.7, Uniform Rules of Louisiana Courts of Appeal.

McClendon, j., concurs.


author: McClendon, j.

text:
    Brian J. BENOIT v. MMR GROUP, INC. d/b/a MMR Constructors, Inc. Zurich-Schaumburg.
    No. 2013 CA 0537.
    Court of Appeal of Louisiana, First Circuit.
    March 19, 2014.
    Joseph G. Albe, Robert A. Lenter, New Orleans, LA, Plaintiffs/Appellants In Proper Person.

      Terri M. Collins, Carl Robicheaux, Valerie Schexnayder, Debra T. Parker, Baton Rouge, LA, for Defendant/Appellee MMR Group, Inc. d/b/a MMR Constructors, Inc.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

I gIn this case, the attorneys for a workers’ compensation claimant appeal from a judgment denying their request to collect attorney fees from the seed money in claimant’s Medicare Set-Aside fund. For the reasons that follow, we affirm.

On June 22, 2004, Brian J. Benoit was allegedly involved in a work-related accident white working for MMR Constructors, Inc. Temporary total disability benefits were paid from October 22, 2004, through January 31, 2011, in the amount of $401.67 per week. Supplemental earning benefits were paid in the amount of $816.52 per month from February 1, 2011, through February 28, 2012. After filing a disputed claim for compensation, the parties, on February 28, 2012, settled the indemnity portion of the claim for $30,000.00. Thereafter, on October 9, 2012, the parties settled the medical portion of the claim for $50,846.00, which amount was determined by the Centers for Medicare and Medicaid Services (CMS) to adequately consider Medicare’s interests as Mr. Benoit was Medicare eligible. Further, as part of the settlement, Mr. Benoit entered into a Medicare Set-Aside (MSA) Structure Settlement Agreement and Release, approved by CMS. In conjunction with the medical settlement, Mr. Benoit filed a motion to dismiss his suit, which was granted on October 9, 2012.

Also on October 9, 2012, Joseph G. Albe and Robert A. Lenter, Mr. Benoit’s attorneys, filed a motion to collect $2,480.00 in attorney fees, which represented the seed money for the MSA fund. The motion was summarily denied. The attorneys filed a motion for reconsideration of the denial of their motion, which was heard on December 11, 2012. On February 4, 2018, a judgment was rendered by the Office of Workers’ Compensation (OWC), denying 1 ¡¡the attorneys’ motion for reconsideration. The attorneys appealed and requested ■written reasons for judgment. Reasons for Judgment were issued on March 25, 2013.

In its reasons, the OWC concluded that the attorneys were not entitled to the seed money in the MSA fund. The OWC stated that the MSA seed money was specifically designated as a set, calculated, dollar amount for use by Mr. Benoit to cover his medical expenses incurred during the time after the settlement of his medical claim until he received his first annuity payment. The OWC further stated that the annuity payment is the set, calculated, dollar amount and residual yearly payment used to fund Mr. Benoit’s MSA and is to be used by Mr. Benoit to cover his medical treatment for the remainder of his life. The OWC then referred to the settlement agreement, approved by CMS, and between Mr. Benoit, his employer, and the insurer. Section 9 of the Agreement, regarding Medicare Set-Aside, provides, in relevant part:

The Medicare set-aside funds in this case are to be self-administered. The Claimant has been provided with the directives issued by CMS regarding his rights and responsibilities in this regard. The Claimant understands that the MSA funds must be placed in an interest-bearing account, and this account must be separate from the individual’s personal savings and checking accounts. The funds in this account may only be used for payment of medical services related to the work injury that would normally be paid by Medicare. If payments from this account are used to pay for services that are not covered by Medicare, Medicare will not pay injury-related claims until these funds are restored to the MSA account, and then properly exhausted. (Emphasis added.)

^Finding that the agreement between Mr. Benoit and Medicare explicitly states for what the money is to be used, the OWC denied the motion to reconsider.

Having thoroughly reviewed the record presented on appeal, we find no merit in the attorneys’ assignments of error. The provisions of the MSA agreement are clear, unambiguous, and plainly state that the funds in the account can only be used for the payment of medical services related to Mr. Benoit’s work injury that would normally be paid by Medicare. Because there is no ambiguity in the agreement language, its words should be given effect Thus, we affirm the decision of the OWC denying Mr. Benoit’s attorneys a fee from the MSA seed money. This memorandum opinion is issued in compliance with Uniform Rules of Louisiana Courts of Appeal, Rule 2-16B. Costs of this appeal are assessed to the attorneys, Joseph G. Albe and Robert Lenter.

AFFIRMED.

PETTIGREW, J., concurs with results.

      . In 2011, Mr. Benoit filed a disputed claim for compensation, asserting that the proper compensation rate was not being paid to him. He also requested penalties and attorney fees.

      . Louisiana Revised Statutes 23:1141A provides in part that "[c]laims of attorneys for legal services arising under this Chapter shall not be enforceable unless reviewed and approved by a workers’ compensation judge.”

      . On May 20, 2013, this Court issued a show cause order regarding the October 9, 2012 and February 4, 2013 rulings of the OWC. We noted that neither ruling appeared to have appropriate decretal language disposing of and/or dismissing the claim(s) of the claimant. Furthermore, we noted that it was unclear whether the rulings were appealable judgments. We instructed the parties to file briefs on whether the appeal should or should not be dismissed for the above-mentioned reasons. On May 21, 2013, Mr. Albe filed a brief in response to the Court’s rule to show cause order, stating that all pending issues raised by the claimant had been resolved and the only remaining issue was whether Mr. Benoit’s attorneys by law were entitled to an attorney fee on the settlement. On August 15, 2013, a duty panel made a determination to provisionally maintain the appeal, stating: "The appeal is provisionally maintained subject to review by the merits panel." Upon our own review, we maintain the appeal.

      . In the directives given to Mr. Benoit, he was again informed that his Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) funds "may only be used to pay for medical services and prescription drug expenses related to your work injury that would normally be paid by Medicare,” and further that "[(Individuals that have a CMS-approved WCMSA as part of a workers’ compensation settlement agreement may only use the funds in the WCMSA account to pay for Medicare-covered medical services and Medicare-covered prescription drug expenses that are related to their workers’ compensation injury, illness, or disease.”

      . The OWC also referred to a 2004 memo from the director of CMS that specifically states that attorney fees cannot be charged to the set-aside arrangement. However, the memo is not part of the record, and we do not use it as a basis for our decision.


author: HIGGINBOTHAM, J.

text:
    Maria Cruz MALDONADO, Individually and as Representative of the Estate of Ulvaldo Soto Martinez, Deceased, and as Next Friend and Natural Guardian of Justin Soto-Maldonado and Usvaldo Jesus Soto-Maldonado, Minors, Maria Martinez Vasquez, as Natural Mother of Ulvaldo Soto Martinez and Gilberto Soto Martinez v. KIEWIT LOUISIANA CO. d/b/a Kiewit Massman Traylor Constructors a/k/a KMTC, Traylor Bros., Inc., Kiewit Southern Co., & Massman Construction Co., A Joint Venture, Traylor Bros., Inc. as a General Partner of KMTC, Kiewit Southern Corp. as a Partner of KMTC, Massman Construction Co. as A Partner of KMTC, GEC Louisiana Timed Managers, A Joint Venture Partnership, PB Americas, Inc. f/k/a Parsons, Brinckerhoff, Quade & Douglas, Inc. as Partner of GEC Louisiana Timed Managers, A Joint Venture Partnership, LPA Group Incorporated as Partner of GEC Louisiana Timed Managers, A Joint Venture Partnership, G.E.C. Inc. as Partner of Gee Louisiana Timed Managers, A Joint Venture Partnership, Zurich American Insurance Company, The State of Louisiana through the Department of Transportation and Development and JL Steel Reinforcing, LLC. Twin City Fire Insurance Company v. JL Steel Reinforcing, LLC, Kiewit Louisiana Co., Massman Construction Co., and Traylor Bros., Inc. d/b/a Kiewit Massman Traylor Constructors, A Joint Venture, Zurich American Insurance Company, The Louisiana Department of Transportation and Development, Arch Insurance Company, Louisiana Timed Managers, A Joint Venture Partnership.
    Nos. 2018 CA 0756, 2013 CA 0757.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2014.
    Rehearing Denied April 17, 2014.

      Charles G. Clayton, IV, Allison R. Colon, Richard Edward King, Jennifer L. Simmons, New Orleans, LA, Attorneys for Defendants-Appellants, Kiewit Louisiana Co., Massman Construction Co., and Tray-lor Bros., Inc., A Joint Venture, and Zurich American Insurance Company.
    Seth A. Schmeeckle, Rachel A. Clark, Shaundra M. Westerhoff, Terrill W. Boy-kin, New Orleans, LA, Attorneys for Defendant-Appellant Twin City Fire Insurance Company.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   HIGGINBOTHAM, J.

|aThis is an appeal from a judgment rendered after a bench trial in a declaratory judgment action. At issue on appeal is whether an insurer’s duty to defend an additional insured in an underlying tort suit terminated at some point after the original petition was filed; and, if so, exactly when the duty to defend ended. The trial court rendered judgment against the insurer finding that it owed a duty to defend the additional insured through the appeal process for the acts alleged in the petition in the underlying tort suit. We amend the trial court judgment in part by modifying the time period of the insurer’s duty to defend and, as amended, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Twin City Fire Insurance Company (Twin City) issued a comprehensive general liability policy (CGL) to JL Steel Reinforcing, LLC (JL Steel). JL Steel was a subcontractor to KMTC-JV, which was the general contractor on a Department of Transportation and Development (DOTD) construction project to widen the Huey P. Long Bridge. The subcontract between KMTC-JV and JL Steel required Twin City’s insured, JL Steel, to provide insurance coverage to KMTC-JV as an “additional insured.” JL Steel procured insurance from Twin City to comply with the subcontract and provide additional insured coverage for organizations with which JL Steel contracted.

During the bridge-widening project on June 12, 2009, a fatal accident occurred. JL Steel employees, Ulvaldo Soto Martinez and Martin Reyes, were killed when the steel cage where they were working on top of a bridge-column footing collapsed. On September 2, 2009, plaintiffs, Maria C. Maldonado, widow of decedent Ulvaldo Soto Martinez, and Gilberto Soto Martinez, decedent’s brother, filed a wrongful death and survival action (Maldonado, et al. v. Kiewit Louisiana Co., et al. c/w Twin City | ^Fire Insurance Company v. JL Steel Reinforcing, LLC, et al., 2012-1868 c/w 2012-1869 (La.App. 1st Cir. 5/30/14), — So.3d -), hereafter referred to as “the Maldonado matter,” in the Nineteenth Judicial District Court. Plaintiffs in the Maldonado matter sued twelve defendants, including KMTC-JV and its insurer, Zurich American Insurance Company (Zurich), alleging liability for causing Ulvaldo Soto Martinez’s death. Four supplemental and amending petitions were subsequently-filed by plaintiffs in the Maldonado matter.

On May 25, 2011, after several defendants named in the tort suit, including KMTC-JV and Zurich, demanded defense and indemnification from JL Steel pursuant to their respective subcontracts, Twin City filed a petition for declaratory judgment. Twin City sought a judgment declaring that its policy precluded additional insured coverage for the claims asserted against KMTC-JV in the underlying Maldonado matter as of March 21, 2011, because on that date the plaintiffs in the Maldonado matter filed their third supplemental and amended petition, which: (1) removed JL Steel as a defendant; (2) withdrew all allegations of fault on the part of JL Steel; and (3) no longer alleged that KMTC-JV was vicariously liable for acts or omissions of JL Steel. Twin City’s petition for declaratory judgment was consolidated with the underlying Maldonado matter.

KMTC-JV filed a motion for summary judgment in the underlying Maldonado matter on June 7, 2011, arguing that it qualified as the statutory employer of JL Steel and its employees. The trial court granted KMTC-JV’s motion on May 9, 2012. As a result, KMTC-JV could no longer be found liable for negligence in the Maldonado matter. In order to recover from KMTC-JV in the underlying Maldonado matter, 15plaintiffs would be required to prove that KMTC-JV acted intentionally in causing Ulvaldo Soto Martinez’s death.

The Maldonado matter was tried before a jury on May 9-18, 2012. On May 18, 2012, the jury returned a verdict in favor of plaintiffs and against KMTC-JV, Keiwit Engineering Co. (KECO), and Modjeski & Masters, Inc. (M & M), for 80%, 10%, and 10% fault, respectively. The jury found 0% fault on the part of “any other persons.” Judgment was signed in accordance with the jury verdict on May 30, 2012. Defendants’ appeal of the adverse judgment in the Maldonado matter is currently pending before this court.

On September 14, 2012, KMTC-JV and Zurich filed a motion for partial summary judgment regarding outstanding defense costs against Twin City. At a hearing on November 26, 2012, the trial court ruled from the bench and ordered Twin City “to pay the defense costs to their insured.” The judgment was signed on January 28, 2013, granting KMTC-JV’s motion in part and holding that Twin City owed a duty to defend KMTC-JV under its policy.

On December 4, 2012, a bench trial was conducted on Twin City’s suit for declaratory judgment. The trial court found in favor of KMTC-JV. The judgment, signed on January 22, 2013, states that Twin City’s CGL insurance policy issued to JL Steel affords coverage to KMTC-JV as an “additional insured” under endorsement | (¡“Additional Insured by Contract or Agreement — Option III,” and Twin City has a duty to defend KMTC-JV “through the appeal process” in the Maldonado matter. On February 15, 2013, the trial court granted Twin City’s motion for suspensive appeal.

SUMMARY OF DISPUTE

Twin City

Twin City advises that Texas law applies to the issue of contract interpretation in this case, but Twin City acknowledges that the law is the same for both Texas and Louisiana. Twin City argues that the trial court erred as a matter of law in finding that its duty to defend KMTC-JV did not terminate on one of three alternative dates. Twin City urges that its policy only provides KMTC-JV coverage as an additional insured to the extent that KMTC-JV’s liability is “caused by” the fault of JL Steel. The first date Twin City claims that its duty to defend terminated is March 21, 2011. On that date, plaintiffs in the Maldonado matter amended their petition to delete all ^allegations of fault against JL Steel and its agents. Twin City maintains that its duty to defend terminated on that date because the operative petition no longer alleges a claim that could possibly be covered by the policy’s additional insured endorsement.

Alternatively, Twin City argues that its duty to defend terminated on May 9, 2012, when the trial court granted KMTC-JV’s motion for summary judgment finding KMTC-JV to be the statutory employer of JL Steel and its employees. Consequently, Twin City insists that at that point KMTC-JV could only be cast in liability to plaintiffs in the Maldonado matter for its own intentional acts, which are excluded from coverage. In the third amended petition in the Maldonado matter, plaintiffs did not allege any liability of JL Steel whatsoever. Further, the petition in the Maldonado matter did not allege that KMTC-JV was vicariously liable for acts or omissions of JL Steel, which Twin City argues is fatal to KMTC-JV’s claim that it is entitled to coverage under the Twin City policy as an additional insured.

In another alternative argument, Twin City urges that its duty to defend terminated on May 30, 2012, when the trial court entered judgment in accordance with the jury verdict finding that JL Steel was not at fault. Twin City argues that, since no party appealed the finding of no fault as to JL Steel, the judgment is final and KMTC-JV cannot be held liable for JL Steel’s fault, which is a prerequisite to KMTC-JV’s entitlement to coverage under Twin City’s policy’s additional insured endorsement. Twin City further argues that it owes no duty to defend KMTC-JV through the appeal process in the Maldonado matter, because the trial court’s judgment granting KMTC-JV statutory employer status and its judgment finding no fault on the part of JL Steel are final and preclude coverage for KMTC-JV, thereby terminating its duty to defend. Thus, Twin City declares that regardless of the outcome of the appeal in the Maldonado matter, KMTC-JV cannot be held liable for the fault of JL Steel.

IsFinally, Twin City points out that the trial court did not specifically rule on the duty to indemnify; however, if the words of the judgment are interpreted to require it to indemnify KMTC-JV for amounts it may ultimately be cast in judgment to plaintiffs in the Maldonado matter, Twin City argues that the trial court erred as a matter of law. Twin City asserts that it cannot owe KMTC-JV indemnity for an award against KMTC-JV in the Maldonado matter since KMTC-JV was cast in liability for its own intentional acts. JL Steel was not found at fault. Under that scenario, Twin City argues that there is no possibility that KMTC-JV could be cast in liability for injuries caused by the fault of JL Steel; thus, there is no coverage under the Twin City policy, and, indemnity is precluded as a matter of law.

KMTC-JV and Zurich

KMTC-JV and its insurer, Zurich, argue that Louisiana law, not Texas law, applies in this matter. They argue that Louisiana law requires Twin City to defend KMTC-JV if allegations in the petition in the Maldonado matter potentially support a covered claim. KMTC-JV and Zurich point out that the plaintiffs’ allegations in the Maldonado matter did not unambiguously exclude coverage; and thus, Twin City owes them a duty to defend.

KMTC-JV and Zurich argue that the third and fourth supplemental and amended petitions in the Maldonado matter “maintained all other previous allegations,” suggesting that those petitions continued to allege fault on the part of JL Steel. They also allege that, though JL Steel was dismissed as a defendant prior to the filing of the third supplemental and amended petition in the Maldonado matter, the jury could still have found JL Steel at fault, and that fault could have been apportioned under La. Civ.Code. art. 2328. Because it was possible that a jury could have found JL Steel at fault, KMTC-JV and Zurich maintain that coverage was possible under the Twin City policy.

19KMTC-JV and Zurich acknowledge that the Twin City policy language states that KMTC-JV is an additional insured to the extent it is liable for damage caused by JL Steel or those acting on JL Steel’s behalf. However, they argue that Louisiana law does not require that vicarious liability be alleged in order for an additional insured endorsement to provide coverage. They assert that Louisiana jurisprudence supports a broad interpretation of additional insured endorsements, which allows coverage for an additional insured’s own negligence.

KMTC-JV and Zurich assert that once an insurer has a duty to defend, it must defend regardless of the outcome of the suit. They disagree with Twin City’s contention that its duty to defend ended when the trial court rendered judgment in accordance with the jury verdict in the underlying Maldonado matter. KMTC-JV and Zurich argue that the May 80, 2012 judgment could be overturned on the appeal of the Maldonado matter that is currently pending before this court, so there is still a possibility that KMTC-JV could be cast in liability for the fault of JL Steel. Thus, according to KMTC-JV and Zurich, Twin City’s duty to defend is continuing.

Additionally, KMTC-JV and Zurich maintain that the subcontract between JL Steel and KMTC-JV required JL Steel to procure insurance providing coverage to KMTC-JV as an additional insured. They assert that Twin City “agreed” that KMTC-JV was an insured under the policy and that it would provide KMTC-JVs defense. They also argue that Twin City judicially admitted that KMTC-JV was an additional insured under its policy when JL Steel filed a motion for partial summary judgment seeking a ruling that JL Steel had met its contractual obligation to provide additional insured insurance coverage to KMTC-JV.

Finally, KMTC-JV and Zurich argue that whether Twin City owes KMTC-JV indemnity depends on facts actually established in the underlying Maldonado matter. They maintain that the trial court’s declaratory judgment of January 22, 2013 holding that the Twin City policy “affords coverage” to KMTC-JV and that Twin City owes a Imduty to defend KMTC-JV through the appeal process means that Twin City owes both a duty to defend and to indemnify KMTC-JV for any judgment for which it is ultimately cast in the underlying Maldonado matter.

APPLICABLE LAW

Resolution of the issues presented on appeal requires the application of several legal principles. Preliminarily, we note that it is not necessary to conduct a choice-of-law analysis to determine which state’s law to apply in situations such as this, when the law of the two involved states is the same. See Champagne v. Ward, 2003-3211 (La.1/19/05), 893 So.2d 773, 786; Wendling v. Chambliss, 2009-1422 (La.App. 1st Cir.3/26/10), 36 So.3d 333, 335. In this case, relevant law regarding contract interpretation, an insurer’s duty to defend, and the duty to indemnify is the same in Texas as it is in Louisiana. Accordingly, we will apply Louisiana law in the instant case.

Insurance Policy Interpretation

Under Louisiana law, an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Mayo v. State Farm Mut. Auto. Ins. Co., 2003-1801 (La.2/25/04), 869 So.2d 96, 99. The judiciary’s role in interpreting insurance policies is to determine the common intent of the parties to the contract. Id.; See also La. Civ.Code. art. 2045. Courts look first to the insurance policy itself in order to determine the parties’ intent. See La. Civ.Code art. 2046; Doerr v. Mobil Oil Corp., 2000-0947 (La.12/19/00), 774 So.2d 119, 124. Words and phrases in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ.Code art. 2047. See also Doerr, 774 So.2d at 124. When a contract can be |n construed from the four corners of the policy without extrinsic evidence, the question of contractual interpretation is answered as a matter of law. Brown v. Drillers, Inc., 630 So.2d 741, 749-750 (La.1994). However, if the contract cannot be construed based on language contained therein due to an ambiguity, the court may look to extrinsic evidence to determine the parties’ intent. Doerr, 774 So.2d at 124.

Interpretation of an insurance contract is a matter of law. Miller v. Superior Shipyard and Fabrication, Inc., 2001-2907 (La.App. 1st Cir.8/20/03), 859 So.2d 159, 162-163. To recover on an insurance policy, an insured must prove that its loss is covered by the policy. Id., 859 So.2d at 162. If the insured meets his burden, the insurer then has the burden of proving the applicability of policy exclusions. Doerr, 774 So.2d at 124.

As the party claiming coverage under the policy issued by Twin City, KMTC-JV has the burden to prove coverage. The named insured in the policy is JL Steel; KMTC-JV is not named in the policy. Thus, KMTC-JV must show that it falls under the additional insured endorsement to prove entitlement to coverage.

Duty to Defend

Under Louisiana law, the duty to defend is broader than the duty to indemnify. See Henly v. Phillips Abita Lumber Co., 2006-1856 (La.App. 1st Cir.10/3/07), 971 So.2d 1104, 1109. The issue of whether a liability insurer has a duty to defend a civil action against its insured is determined by application of the “eight-corners rule,” under which an insurer must look to the “four corners” of the plaintiffs petition and the “four corners” of its policy to determine whether it owes that duty. Id.

The insurer’s duty to defend suits brought against its insured is determined by the factual allegations of the injured plaintiffs petition with the insurer being obligated to furnish a defense unless it is clear from the petition that the policy unambiguously excludes coverage. Henly, 971 So.2d at 1109. Assuming the factual | ^allegations of the petition are true, if there could be both (1) coverage under the policy, and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Id. Additionally, the factual allegations of the petition are to be liberally interpreted in determining whether they set forth grounds which bring the claim within the scope of the insurer’s duty to defend the suit brought against its insured. Id.

If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured. The most recently amended complaint provided to the insurer must be examined to determine whether there is a duty to defend. When uncontroverted facts preclude the possibility of a duty to indemnify, the duty to defend ceases and the duty to indemnify is negated. See Allstate Ins. Co. v. Roy, 94-1072 (La.App. 1st Cir.4/7/95), 653 So.2d 1327, 1333, units denied, 95-1121, 95-1215 (La.6/16/95), 655 So.2d 339; Pylant v. Lof-ton, 626 So.2d 83, 87 (La.App. 3d Cir.1993), quoting Veillon v. U.S. Fire Ins. Co., 590 So.2d 1368, 1371 (La.App. 3d Cir.1991).

The Policy

The interpretation of the additional insured endorsement is a question of law. We must examine the specific language of the endorsement to determine its meaning. Miller, 859 So.2d at 163. The policy endorsement in Twin City’s policy which contains the relevant policy language is entitled, “Additional Insured By Contract Or Agreement — Option III.” Substituting the names of the parties and omitting language not applicable to the dispute, the endorsement provides, in pertinent part:

SCHEDULE

Name of Additional Insured Person(s) or Organization(s): ALL

Designated Project(s) or Location(s) of Covered Operations^] ALL

A. Section II — Who is an Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule above with whom you [JL Steel] agreed in a written contract or written agreement to provide insurance such as is afforded under this policy, but only to the extent that such person or organization is liable for “bodily injury”, | ^“property damage” or “personal and advertising injury” caused by your [JL Steel’s] acts or omissions or the acts or omissions of those acting on your [JL Steel’s] behalf:
1. In the performance of your [JL Steel’s] ongoing operations for such additional insured at the project(s) or loeation(s) designated in the Schedule[.]

(Emphasis added.)

The plain wording of the Twin City policy’s endorsement shows that the policy applies when liability is sought to be imposed upon the additional insured (KMTC-JV) because of something the named insured (JL Steel) is alleged to have done or failed to do. Thus, in order for KMTC-JV to have a right to a defense under the policy, the petition in the Maldonado matter must allege that KMTC-JV’s liability is caused by JL Steel’s negligence, or, at least the allegations must not unambiguously exclude that possibility. This is so, because it is clear from the policy language that the parties only intended KMTC-JV to be covered if it could be cast in liability, vicariously, for the fault of JL Steel. Further, the policy language unambiguously precludes coverage for claims against KMTC-JV for its own negligence or intentional acts.

A similar additional insured endorsement was reviewed by a Texas court in Shell Chemical v. Discover Property & Cas. Ins. Co., Civ. A No. H-09-2583, 2010 WL 1338068 at ⅜2, (S.D.Tex.3/29/10). In that case, the court noted that the policy provided additional insured coverage to Shell, “but only with respect to [Shell’s] legal liability for acts or omissions of [the named insured].” The court concluded that the language was clear and unambiguous, and that the parties intended to provide coverage and a duty to defend Shell as an additional insured only to the extent that an injured party claimed that Shell was vicariously liable for the named insured’s acts or omissions. The court found that since plaintiffs did not assert a cause of action against Shell based on the named insured’s acts or omissions, but rather based only | uon Shell’s own alleged fault, the policy did not require the insurer to provide a defense to Shell as an additional insured. Id.

Similarly, in the instant case we conclude that the clear and unambiguous language in Twin City’s additional insured policy provision issued to JL Steel expressly limits coverage to the additional insured’s vicarious liability for the fault of the named insured, JL Steel. We must now review the allegations set forth in the petition in the Maldonado matter to determine whether those allegations bring the claim within the scope of coverage under the Twin City policy and whether, therefore, Twin City owes a duty to defend KMTC-JV in the underlying Maldonado matter.

Petitions in the Maldonado Matter

In the original petition in the Maldonado matter, plaintiffs named JL Steel as a defendant, alleging that JL Steel was liable along with all other named defendants. Allegations in the petition did not unambiguously exclude coverage, and thus initially, Twin City owed KMTC-JV a defense. However, the inquiry does not end there. When a petition is amended, the duty to defend analysis must be performed again to determine whether the amended petition alleges liability that is potentially within the scope of coverage. See Spitzfaden v. Daigle Welding Service, Inc., 607 So.2d 951, 955 (La.App. 4th Cir. 1992), writ denied, 612 So.2d 59 (La.1993) (the duty to defend did not arise until plaintiffs filed their second amended petition); Consolidated Underwriters v. Loyd W. Richardson Const. Corp., 444 S.W.2d 781, 783-84 (Tex.Civ.App.1969) (duty to defend terminated when the petition was amended to allege facts that rendered a policy exclusion applicable precluding coverage); American Empire Surplus Lines Ins. Co. v. Crum & Forster Specialty Ins. Co., No. Civ. H-06-0004, 2006 WL 1441854, at *6 (S.D.Tex.5/23/06) (duty to defend is determined by examining the most recently amended complaint); see also Baltimore Gas and Elec. Co. v. Commercial Union Ins. Co., 113 MdApp. 540, _⅛571-72, 688 A.2d 496, 511 (1997) (the duty to defend terminated when plaintiffs in the underlying suit revised allegations to sue additional insured solely for its own negligence and the court granted a motion to dismiss the named insured from the underlying litigation).

In the Maldonado matter, the third and fourth supplemental and amended petitions do not allege fault on the part of JL Steel. Prior to filing their third supplemental and amended petition, plaintiffs in the Maldonado matter filed a motion to dismiss JL Steel. The trial court signed a judgment of dismissal of JL Steel on March 11, 2011. On March 21, 2011, when plaintiffs filed their third amended petition deleting all allegations of fault against JL

Steel, the petition in the Maldonado matter ceased to allege any claim that could be covered by Twin City’s additional insured policy endorsement. While the duty to defend certainly terminated by that date, we find that it actually terminated prior thereto. As this court concluded in Roy, 658 So.2d at 1838, the duty of an insurer to defend is triggered when the petition suggests the potential for coverage; however, when an event occurs which shows that coverage is unambiguously excluded, the duty to defend the insured terminates. We conclude that Twin City owed KMTC-JV a duty to defend through the date of the occurrence that eliminated any possibility that KMTC-JV could have been cast in liability, vicariously, for the fault of JL Steel. That date is March 11, |1fi2011, the date on which the trial court signed a judgment dismissing JL Steel with prejudice from the underlying Maldonado matter.

CONCLUSION

Twin City owes KMTC-JV the cost of defense from the date of the first-filed petition in the underlying Maldonado matter through and including March 11, 2011, the date that JL Steel was dismissed, with prejudice, from the Maldonado matter. Clearly, Twin City owes no duty to defend KMTC-JV beyond that date. Accordingly, we amend the trial court’s January 22, 2013 judgment in part to modify the time period that Twin City owes a duty to defend KMTC-JV. Twin City’s duty to defend KMTC-JV ends on March 11, 2011, the date that JL Steel was dismissed with prejudice from the underlying Maldonado matter, rather than through the appeal process of the Maldonado matter. As amended, the trial court’s judgment is affirmed. All costs of this appeal are assessed against KMTC-JV and Zurich American Insurance Company.

MOTIONS TO SUPPLEMENT GRANTED; TRIAL COURT JUDGMENT AMENDED IN PART, AND AS AMENDED, AFFIRMED.

      . The policy period was June 30, 2008, to June 30, 2009.

      . KMTC-JV was a joint venture made up of Kiewit Louisiana Co., Massman Construction Co., and Traylor Bros., Inc.

      . Twin City acknowledged each demand and responded with a complete reservation of rights on the grounds that the Twin City policy provided coverage to additional insureds, but only when the additional insured is found to be vicariously liable for the conduct of JL Steel or those acting on its behalf.

      . Twin City filed a motion for summary judgment in December of 2011, seeking a ruling that it did not owe a duty to defend KMTC-JV in the Maldonado matter since the plaintiffs' third supplemental and amended petition failed to allege any fault on the part of JL Steel, Thus, Twin City maintained that coverage was precluded under the additional insured endorsement. The trial court denied Twin City's motion on March 30, 2012.

      . On June 11, 2012, Twin City filed a post-trial motion to re-urge its motion for summary judgment seeking a declaration that its policy did not provide coverage to KMTC-JV as an additional insured. On July 26, 2012, Twin City filed yet another motion for summary judgment on the coverage issue in the declaratory judgment action, seeking a declaration that its policy did not provide coverage to KMTC-JV for claims asserted in the Maldonado matter.

      . In a related appeal also decided this date, Twin City appealed the trial court’s January 28, 2013 judgment granting KMTC-JV’s motion for partial summary judgment for defense costs. See Maldonado, et al. v. Kiewit Louisiana Co., et al. consol, with Twin City Fire Ins. Co. v. JL Steel Reinforcing, LLC, et al., 2013-0758 and 2013-0759 (La.App. 1st Cir. 3/24/14), 2014 WL 1203180 (unpublished) {Twin City II). In that related appeal, this court amended the judgment in part, and affirmed the judgment as amended to limit the time period of Twin City's duty to defend, for the reasons more fully set forth herein.

      . Twin City's petition for declaratory judgment requested a "declaration and construction of coverage under insurance policies at issue” and prayed for judgment in its favor "declaring the respective rights and obligations of [Twin City] as they relate to the defendants.” The petition is broad enough to encompass a judgment defining the time period for Twin City's duty to defend (and responsibility for defense costs), as well as a judgment declaring the rights and obligations of Twin City regarding the additional insured, KMTC-JV.

      . After the record on appeal was lodged, this court issued a rule to show cause as to whether the January 22, 2013 judgment was final and appealable. The judgment was rendered after a trial on the merits in the suit for declaratory judgment. Plaintiff, Twin City, alleged that coverage under its policy was limited to liability caused by the acts or omissions of the named insured, JL Steel, and thus, the policy only provided coverage to the additional insureds in situations where the additional insured was held vicariously liable for conduct of JL Steel or those acting on its behalf. Twin City prayed for judgment in its favor "declaring the respective rights and obligations of [Twin City] as they relate to the [KMTC-JV and Zurich]” and that Twin City be granted any and all further relief to which it is justly entitled. We conclude that this judgment is final and appealable. See Succession of Brantley, 96-1307 (La.App. 1st Cir.06/20/97), 697 So.2d 16, 18; Whitaker Const. Co., Inc. v. Larkin Development Corp., 34,297 (La.App. 2d Cir. 12/6/00), 775 So.2d 571, 573, writ denied, 2001-0068 (La.3/16/01), 787 So.2d 312. The judgment resolved all issues pending before the trial court in the declaratory judgment action. Twin City did not specifically pray for judgment on the issue of the duty to indemnify. Moreover, even if the issue of indemnity was said to be still outstanding, since we ultimately find that the judgment must be amended in part, this court could assert its plenary power to exercise supervisory jurisdiction, in the interest of judicial efficiency and justice. See Stelluto v. Stelluto, 2005-0074 (La.6/29/05), 914 So.2d 34, 39; Roberson v. Roberson, 2012-2052 (La. App. 1st Cir.8/5/13), 122 So.3d 561, 564; Succession of Brantley, 697 So.2d at 19. Either way, we conclude a review of the merits of the January 22, 2013 judgment is properly before this court. Additionally, we grant KMTC-JV’s and Zurich’s motions to correct/supplement the record by adding their memorandum and six exhibits in support of their motion for summary judgment for unpaid defense costs.

      . For examples of consistent Texas law, see 'Williams Consol. I, Ltd./BSI Holdings, Inc. v. TIG Ins. Co., 230 S.W.3d 895, 901-902 (Tex. Civ.App.2007); Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex.2006); State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex. 1998); Balandrán v. Safeco Ins. Co. of America, 972 S.W.2d 738, 740-741 (Tex. 1998); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998).

      . See also Southern Snow Mfg. Co., Inc. v. SnoWizard Holdings, Inc., 921 F.Supp.2d 548, 566-67 (E.D.La.2013) (duty to defend ends when undisputed facts established in discovery unambiguously precluded coverage); New Hampshire Ins. Co. v. Barrett, Civ. A No. 01-2929, 2002 WL 1308585, at *3-4 (E.D.La. 2002) (duty to defend ended when insurer established undisputed facts precluding coverage); Pylant, 626 So.2d at 87-88 (despite allegations of negligence in plaintiffs’ petitions, the undisputed facts established in plaintiffs’ depositions showed that the conduct was intentional such the policy’s intentional act exclusion applied and the court found that the policy unambiguously excluded coverage; thus, there was no duty to defend). In the Maldonado matter, the jury expressly found that no “other person(s) or company(s) were at fault" other than KMTC-JV, KECO, and M & M. The jury specifically allocated 0% fault to "any other person(s).”

      . Since Twin City’s duty to defend ended, as a matter of law Twin City has no duty to indemnify KMTC-JV for any amount in which it could be cast in liability to plaintiffs in the underlying Maldonado matter.