author: KUHN, J. THERIOT, J.,

text:
    WINN-DIXIE LOUISIANA and Sedgwick Claims Management v. PHYSICIANS SURGICAL SPECIALTY HOSPITAL.
    No. 2013 CA 0075.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 18, 2013.

      Lance S. Ostendorf, Alejandro J. Rodriguez, New Orleans, Louisiana, for Plaintiffs-Appellants, Winn-Dixie Louisiana and Sedgwick Claims Management.
    Michael M. Meunier, Adrienne L. Ganu-cheau, New Orleans, Louisiana, for Defendant-Appellee, Physicians Surgical Specialty Hospital.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   KUHN, J.

| pClaimants-appellants, employer Winn-Dixie Louisiana and Sedgwick Claims Management (collectively Winn-Dixie), appeal a judgment of the Office of Workers’ Compensation (OWC), which sustains an exception raising the objection of prescription filed by healthcare provider-appellee, Physicians Surgical Specialty Hospital (Physicians), and dismisses the employer’s claims for reimbursement of overpaid medical benefits. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

It is undisputed that Winn-Dixie’s employee, Esther Lirette, was injured in the course and scope of her employment and sought medical treatment from Physicians in March 2007. The parties agree that Winn-Dixie reimbursed Physicians for Lirette’s medical treatment an amount significantly less than the total billed by Physicians, and that Physicians thereafter requested additional payment from Winn-Dixie, urging that the services rendered to Lirette qualified as an outlier reimbursement. On November 26, 2007, Winn-Dix-ie paid Physicians an additional $24,770.45 for a total payment of $33,613.45 for Lir-ette’s medical treatment.

In July 2008, through its agent Bonnie Saucier, a medical cost analyst from RN Recovery, Inc., Winn-Dixie advised Physicians that it had been overpaid and requested reimbursement in the amount of $24,680.45. This amount was calculated based on Winn-Dixie’s conclusion that Physicians did not meet the criteria for outlier reimbursement and, therefore, was entitled under the Louisiana Workers’ IgCompensation fee schedule to payment of the per diem plus the cost of implants and a mark-up of 20%.

On March 25, 2009, a letter addressed to Physicians, but directed to Saucier’s attention from the Louisiana Workforce Commission (LWC), advised that although Winn-Dixie’s outlier special reimbursement consideration appeal had been received “it has been determined that you have failed to meet the required time frame.” As such, LWC denied Winn-Dix-ie’s request. But LWC expressly noted, “If the file had been submitted before required deadline, it is the opinion of [LWC] that the provider has failed to meet the criteria for outlier reimbursement.” LWC stated its “recommendation would be inpatient surgical per diem, plus implant reimbursement.” The letter advised, “If any party disagrees with this recommendation, a formal dispute may be filed” with OWC.

Email correspondence between Winn-Dixie, through its representative Saucier, and LWC, through its representative Brenda Ortego, resulted in another letter from LWC to Physicians, directed again to Saucier’s attention, dated April 16, 2009. This later letter simply restated the same recommendation set forth in the March 25, 2009 correspondence but without discussion of the timeliness of the outlier special reimbursement consideration appeal. Any party disagreeing with the recommendation was advised of its rights to file a formal dispute with OWC.

On April 21, 2009, and again on August 1, 2011, Winn-Dixie made demand from Physicians for the overpayment to no avail. On June 8, 2012, Winn-Dixie filed pthis disputed claim, urging entitlement to recovery of overpayment in the amount of $24,680.45.

Physician’s answered the lawsuit and filed a peremptory exception raising the objection of prescription. After a hearing, OWC sustained the exception of prescription and dismissed Winn-Dixie’s claim. This appeal followed.

DISCUSSION

La. R.S. 23:1310.3F provides in relevant part, “Except as otherwise provided ..., the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including ... employer demands for recovery for overpayment of benefits.” According to La. R.S. 23:1034.2F(1), should a dispute arise between a healthcare provider and the employer, either party may submit the dispute to OWC “in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits.”

Prescriptive limitations relate to the remedy and are usually treated as procedural. See Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399, 407. As such, under La. R.S. 23:1034.2F(1), when Winn-Dixie filed the dispute against Physicians in the OWC, it was “subject to the same procedures” as any other OWC claimant and, therefore, subject to the prescriptive periods set forth in Louisiana Workers’ Compensation Law. Accord LAC 40:5701A (prescription periods shall be as set forth in La. R.S. 23:1031.l.E, F, I, 1209, and 1234; and because this claim for reimbursement of overpayment of medical benefits by an employer to a healthcare provider does not apply to a claim for an occupational disease or of a minor or incompetent, the only applicable prescription period is as set forth in La. R.S. 23:1209).

La. R.S. 23:1209 addresses the prescriptive periods for workers’ compensation claims, stating in relevant part:

IsA. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment....
C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

Winn-Dixie urges that the jurisprudence has limited application of the one-year prescriptive period under Subsection A(2) to the payment of indemnity benefits, therefore, only Subsection C can apply. Winn-Dixie further asserts that because it seeks recovery of overpayment of medical benefits, its claim is not one for medical benefits “payable pursuant to R.S. 28:1203,” urging that as set forth in Subsection C such claims are limited to medical benefits asserted by the injured employees.

16Winn-Dixie has correctly pointed out that Subsection A has been applied to indemnity benefits, see Boquet v. Tetra Technologies, Inc., 2002-1634 (La.2/25/03), 839 So.2d 13, 15 n. 2, and that Subsection C expressly references, “[A]ll claims for medical benefits payable pursuant to R.S. 23:1203.” But because this claim arises out of the original payment of medical benefits by the employer pursuant to La. R.S. 23:1203, and mindful of the overarching jurisdictional provision of La. R.S. 23:1034.2F(1) providing that the dispute to OWC be made “in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits,” we hold that Winn-Dixie had “until the expiration of three years from the time of making the last payment of medical benefits” to timely assert its claim. See La. R.S. 23:1209C; see also Baton Rouge General Med. Ctr. v. Louisiana Rest. Ass’n, Self Insurers Serv. Bureau, 2010-2197 (La.App. 1st Cir. 3/14/12), 91 So.3d 1046, 1048 (where a plurality of this court determined that the applicable prescriptive period for a healthcare provider’s claim for penalties and attorney fees against the claimant’s employer was the same three-year prescriptive period that is applicable to its timely-filed underlying claim for medical benefits); accord St. Tammany Parish Hosp. v. Trinity Marine Products, Inc., 2010-1481 (La. App. 1st Cir. 2/16/12), 91 So.3d 985, 991 (in which an en banc plurality of this court likewise reasoned that the applicable prescriptive period for a healthcare provider’s claim for penalties and attorney fees against the claimant’s employer was the same three-year prescriptive period that is applicable to its timely-filed underlying claim for medical benefits).

Winn-Dixie overpaid Physicians on November 26, 2007, but did not file this claim for overpayment until June 6, 2012, well after the three-year period set forth |7in La. R.S. 23:1209C. Thus, OWC correctly determined that Winn-Dixie’s claim for recovery of overpayments for medical benefits is prescribed.

DECREE

For these reasons, we affirm the OWC judgment, sustaining the peremptory exception raising the objection of prescription and dismissing Winn-Dixie’s claims as untimely. Appeal costs are assessed against Winn-Dixie Louisiana and Sedg-wick Claims Management.

AFFIRMED.

THERIOT, J., dissents and will assign reasons.

THERIOT, J.,

dissents with reasons.

hit is undisputed that Winn Dixie and Sedgwick filed its claim pursuant to the procedures established by Title 23 of the Louisiana Revised Statutes. The issue is the application of La. R.S. 23:1209. I respectfully disagree with the majority that La. R.S. 23:1209(C) is applicable in the instant matter.

Louisiana Revised Statutes 23:1209 addresses the prescriptive period for workers’ compensation claims. Theodore v. Iberville Parish School Board, 12-0746, p. 3 (La.App. 1 Cir. 1/8/13), 112 So.3d 270, 271. La. R.S. 23:1209(A) provides that claims are barred unless filed within: (1) one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment for partial disability; or (3) one year from the time the injury develops if not immediately manifested, but, in any event, no more than two years after the accident. Id. La. R.S. 23:1209(0 provides that a claim for medical benefits prescribes one year from the date of the accident unless payments have been | ^agreed upon, or unless a claim is filed within one year of the accident. Where payments have been made, the claim prescribes three years from the date of the last payment of medical benefits. Id. at 271-72.

The legislative purpose of 23:1209 is three-fold: (1) to enable the employer to determine when his potential liability for an accident will cease; (2) to prevent as a matter of public policy suits based on stale claims where the evidence might be destroyed or difficult to produce; (3) to fix a statute of repose giving rise to a conclusive presumption of waiver of claim on part of the employee where he fails to bring suit within the fixed period. Nini v. Sanford Bros., Inc., 258 So.2d 647, 651 (La.App. 1 Cir.1972), affirmed, 276 So.2d 262 (La.1973). In other words, the purpose of the prescriptive period is to protect employers from the burdensome litigation of workers’ compensation claims. Jackson v. Domtar Industries, Inc., 98-1335 (La.App. 3 Cir. 4/7/99), 732 So.2d 733, writ denied, 99-1369 (La.7/2/99), 747 So.2d 21.

The legislative intent of La. R.S. 1209 does not fit the facts and issue of the instant case. Winn-Dixie and Sedgwick are not seeking protection from a claim; they are actually seeking to file a claim of their own, not against an employer, but against a medical care provider. Essentially, Physicians is attempting to use Winn-Dixie’s and Sedgwick’s statutory protections as its own; however, La.R.S. 23:1209 was not intended to protect medical care providers from stale claims. It is designed to protect employers from stale claims.

There is no specific prescriptive period provided by statute that governs an employer’s overpayment for medical services to a medical care provider. Louisiana Civil Code article 3494 provides examples of actions that fall under a three-year prescriptive period, some of which may appear similar to the instant case, but they are not the same. Art. 3494(1) deals with |3the recovery of compensation for services rendered, but neither Winn-Dixie nor Sedg-wick provided services to Physicians. Art. 3494(4) deals with suits on open account, but again, it was Physicians, not Winn-Dixie or Sedgwick, who had an open account, and Winn-Dixie and Sedgwick had an obligation to pay Physicians for the services rendered. Art. 3494(5) deals with actions for overpayment, but they are actions for overpayment specifically of royalties from mineral production.

What Winn-Dixie and Sedgwick are essentially claiming is that they satisfied their obligation to Physicians, but paid more than what they were obligated to pay, and are now seeking to recover the overpayment. Their claim has nothing to do with medical benefits as contemplated by 23:1209(C); the medical benefits have been paid. Winn-Dixie and Sedgwick are seeking to recover overpayments. The overpayments would be an unnecessary expense incurred by Winn-Dixie and Sedgwick, and the recovery of an expense has been ruled as subject to the ten-year prescriptive period of La. C.C. art. 3499. See Pnce v. Stranco, Inc., 03-1762, p. 5 (La.App. 1 Cir. 9/8/04), 887 So.2d 82, 85, writ denied, 04-2485 (La.12/17/04), 888 So.2d 867.

Statutes providing for prescriptive periods are to be strictly construed in favor of maintaining a cause of action. David v. Our Lady of the Lake Hosp., Inc., 02-2675, p. 12 (La.7/2/03), 849 So.2d 38, 47. After giving a strict reading to La. R.S. 23:1209, alongside jurisprudence regarding its legislative intent, it is my opinion that La. R.S. 23:1209 does not apply to the instant case where an employer and workers’ compensation administrator seek to recover funds they believe were in excess of the amount they were obligated to pay to the medical care provider. The Civil Code provides “catch-all” statutes for liberative prescription of various actions, and after Previewing those articles, it is my opinion that La. C.C. art. 3499 provides the applicable prescriptive period for the instant case.

      . In the original disputed claim form, Sedg-wick Claims Management (Sedgwick) was identified as the Administrator for Winn-Dix-ie Louisiana (Winn-Dixie); but elsewhere in the record, Winn-Dixie represented that Sedgwick was its workers’ compensation carrier. Because the record fails to distinguish the role each of these parties has relative to each other and in accordance with Winn-Dixie's assertions both before OWC and in this court, we refer to these parties collectively as the employer.

      . An outlier is a statistical anomaly and permits special reimbursement consideration in cases that are atypical. See Winn-Dixie Louisiana v. HCA Mgmt. Services, L.P., 2010-2205 (La.App. 1st Cir. 6/10/11), 68 So.3d 1187, 1190; see also LAC 40:2519 (establishing outlier reimbursement).

      . Winn-Dixie claims that it attempted to comply with the procedure set forth in LAC 40:5149, entitled "Reconsideration of Disputed Reimbursements,” and that, in response, the Louisiana Workforce Commission (LWC) applied the provisions of LAC 40:5149 to Winn-Dixie as employer although the plain language of the rule addresses claims by healthcare providers. See and compare Winn-Dixie Louisiana, 68 So.3d at 1190 (finding no error in the application of the provisions of LAC 40:2519, establishing outlier reimbursement to the employer's claim despite the plain language addressing a procedure to claims by providers). Winn-Dixie via Saucier in email correspondence challenged the applicability of the procedure set forth in LAC 40:5149, in particular the time limitation, to it since it was an employer rather than a healthcare provider and despite Winn-Dixie's initiation of that procedure. Although at the OWC hearing that Winn-Dixie suggested it was enforcing the final ruling issued by LWC, OWC concluded that LWC's authority was limited to "a recommendation” and, therefore, not subject to enforcement. On appeal, the parties have not challenged that OWC determination.

      . La. R.S. 23:1203 provides in pertinent part:
      A. In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services....
      B. The obligation of the employer to furnish such care, services, treatment, drugs, and supplies ... is limited to the reimbursement ... as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less....
      C. The employer shall furnish to the employee the necessary cost of repair to or the replacement of any prosthetic device damaged or destroyed by accident in the course and scope and arising out of such employment. ...
      D. In addition, the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services ... and for the vocational rehabilitation-related mileage by the employee at the direction of the employer.

      . On appeal, Winn-Dixie asserts for the first time that it is entitled to recovery of the overpayment under a theory of unjust enrichment. This issue was not raised before OWC and therefore, is not properly before this court. See East Tangipahoa Dev. Co., LLC v. Bedico Junction, LLC, 2008-1262 (La.App. 1st Cir. 12/23/08), 5 So.3d 238, 246, writ denied, 2009-0166 (La.3/27/09), 5 So.3d 146.

      . I recognize that La. R.S. 23:1209(A) was recently amended by 2012 La. Acts, No. 783, § 1.


source: Caselaw Access Project

author: WHIPPLE, C.J.

license: Public Domain

text:
    COMPLETE MEDICAL SYSTEMS, L.L.C. v. HEALTH NET FEDERAL SERVICES, L.L.C.
    No. 2013 CA 0367.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.

      Michael A. Patterson, Baton Rouge LA, for Plaintiff/Appellant, Complete Medical Solutions, L.L.C.
    James C. Percy, David M. Kerth, Baton Rouge, LA, for Defendant/Appellee, Health Net Federal Services, L.L.C.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WHIPPLE, C.J.

| gThis matter is before us on appeal by plaintiff, Complete Medical Solutions, L.L.C., from a judgment of the trial court granting summary judgment in favor of the defendant, Health Net Federal Services, L.L.C., and dismissing plaintiffs claims with prejudice.

For the reasons that follow, we affirm

FACTS AND PROCEDURAL HISTORY

This appeal arises from a judgment rendered in connection with an invoice bearing # 5762 and dated March 28, 2011, which was issued by Complete Medical Solutions, L.L.C. (“CMS”) to Health Net Federal Services, L.L.C. (“Health Net”), and demanded payment for certain fees associated with 19 units of software and an annual maintenance fee for VISN 16, totaling $1,516,965,50. CMS is a software development company that, along with several of its development partners, was in the process of developing a software package designed to provide the Veterans Administration (“VA”), with a fee basis claims system. Health Net is a company that held several contracts with the VA to provide repricing services.

On April 12, 2011, Health Net Executive Counsel, David R. Feniger, sent a letter to Robin Hart, CMS’s Executive Administrator, acknowledging that Health Net was in receipt of invoice # 5762 and advising that Health Net would pay the annual maintenance fee for the VISN 16 software in the amount of $20,639.50 that Health Net had agreed to purchase, but noting that Health Net never agreed to compensate CMS for any other goods or services set forth in the invoice, including the additional 19 units of software, Mr. Feniger further set forth the reasons why Health Net never agreed to purchase the additional 19 units of | ..¡software, and concluded that “other than a payment in the amount of $20,689.50, Health Net will not compensate CMS for the remainder of the invoice.”

On May 11, 2011, approximately one month later, after receiving no response from CMS, Health Net sent CMS a check in the amount of $20,639.50 accompanied by a cover letter from Mr. Feniger, which stated that the enclosed check represented “payment in full for charges referenced in your company’s invoice no. 5762.” Importantly, the check also contained the notation “PAYMENT IN FULL.” CMS subsequently endorsed and deposited the check.

On July 24, 2012, CMS filed the instant suit against Health Net, contending that in reliance upon Health Net’s representation that it would pay CMS for the development of repricing software, in addition to VISN 16, CMS had included the repricing software as an additional feature in its fee basis claims system to be provided to the VA. Thus, CMS sought judgment against Health Net for the attendant costs incurred for providing these goods and services, ie., the remaining unpaid costs shown on invoice # 5762. Health Net answered the petition, asserting various affirmative defenses, including the doctrine of accord and satisfaction, which it contends precludes recovery for the claims lodged by CMS herein.

On October 9, 2012, Health Net filed a motion for summary judgment, contending that CMS’s claims against Health Net were barred by the doctrine of accord and satisfaction, and thereby seeking dismissal of all claims asserted by CMS in its petition. The motion was heard before the trial court on January 7, 2013. At the conclusion of the hearing, the trial court granted Health Net’s motion for summary judgment and dismissed CMS’s claims with prejudice. A judgment was signed on January 11, 2013.

|4CMS now appeals, contending that the trial court erred in: (1) finding that Health Net met its burden of proving all of the essential elements of the accord and satisfaction doctrine; and (2) applying the doctrine of accord and satisfaction to dismiss CMS’s claims against Health Net on a motion for summary judgment.

DISCUSSION

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia, Inc. v. Vincent, 2010-0116 (La. App. 1st Cir.9/10/10), 47 So.3d 1024, 1027, writ denied, 2010-2227 (La.11/19/10), 49 So.3d 387. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966(B)(2).

The burden of proof on a motion for summary judgment remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual | ¿dispute mandates the granting of the motion. LSA-C.C.P. art. 967(B); Pugh v. St. Tammany Parish School Board, 2007-1856 (La.App. 1st Cir.8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 2008-2316 (La.11/21/08), 996 So.2d 1113. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading. Instead, his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1035, unit denied, 97-1911 (La.10/31/97), 703 So.2d 29. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Christakis v. Clipper Construction, L.L.C., 2012-1638 (La.App. 1st Cir.4/26/13), 117 So.3d 168, 170.

Accord and Satisfaction

The doctrine of accord and satisfaction estops a creditor from suing on a compromised debt. River Bend Capital, L.L.C. v. Lloyd’s of London, 2010-1317 (La.App. 4th Cir.4/13/11), 63 So.3d 1092, 1094, writ denied, 2011-0986 (La.6/24/11), 64 So.3d 219. For there to be a valid accord and satisfaction of a debt or claim, there must be: (1) a disputed claim; (2) a tender of a check for less than the amount of the claim by the debtor, and (3) an acceptance of the tender by the creditor. Harrington v. Aetna Life and Casualty Company, 441 So.2d 1255, 1256 (La.App. 1st Cir.1983); McClelland v. Security Industrial | ^Insurance Company, 426 So.2d 665, 669-670 (La.App. 1st Cir.1982), writ denied, 430 So.2d 94 (La.1983).

Essential to finding that a valid accord and satisfaction occurred is a showing that the creditor understood that the payment was tendered in full settlement of the dispute. Ryan v. State Farm Mutual Automobile Insurance Company, 2010-0961, 2010-0962 (La.App. 1st Cir.12/22/10), 68 So.3d 563, 569, writ denied, 2011-0172 (La.4/1/11), 60 So.3d 1250. Thus, an accord and satisfaction is not present if there is no evidence that the creditor was fully informed of the nature of the compromise offer by the debtor. Harrington v. Aetna Life and Casualty Company, 441 So.2d at 1256. However, the unilateral action by a creditor in altering an endorsement from “payment in full” to “partial payment” and negotiating the altered instrument will not change the legal import of its acceptance by the creditor as an acknowledgement of payment in full satisfaction of the obligation. Harrington v. Aetna Life and Casualty Company, 441 So.2d at 1257. Accord and satisfaction is an affirmative defense and must be specially pled in the answer. See LSA-C.C.P. art. 1005; First Municipal Leasing Corp. v. State, 422 So.2d 1182, 1185 (La.App. 1st Cir.1982), writs denied, 427 So.2d 867, 1197 (La.1983).

The doctrine of accord and satisfaction was codified by La. Acts 2007, No. 138, § 1, with the creation of LSA-C.C. art. 3079, which provides:

A compromise is also made when the claimant of a disputed or unliquidated claim, regardless of the extent of his claim, accepts a payment that the other party tenders with the clearly expressed written condition that acceptance of the payment will extinguish the obligation.

This article was not intended to change the law, but to simply give recognition to the validation by the Louisiana jurisprudence of the dispute-settling mechanism known at common law as accord and satisfaction. LSA-C.C. art. 3079, comment (a).

|7Assignment of Error Number One

In its first assignment of error, CMS contends that the trial court erred in finding that Health Net met its burden of proving all of the essential elements necessary to obtain dismissal of plaintiff’s claims based on the doctrine of accord and satisfaction.

In support of its motion for summary judgment, Health Net presented the following exhibits: (1) Health Net’s first requests for admission propounded to CMS; (2) CMS’s quote dated September 29, 2006; (3) CMS’s invoice # 5762 dated March 23, 2011; (4) Health Net’s April 12, 2011 letter to CMS; (5) Health Net’s May 11, 2011 cover letter to CMS and check in the amount of $20,639.50; (6) a copy of Health Net’s check in the amount of $20,639.50 to CMS after it had been endorsed and deposited; (7) CMS’s responses to Health Net’s first requests for admission; and (8) the affidavit of David R, Feniger, Executive Counsel to Health Net.

To prove it was entitled to judgment as a matter of law, Health Net relied on CMS’s invoice # 5762, which included the following charges:

(1) “EDI Interface Fee” for 19 units of software in the amount of $1,424,050.00 ($74,950.00 each);

(2) “PGP Encription Software License Fee” for 19 units of software in the amount of $72,276,00 ($3,804.00 each); and

(3) “Repricing EDI Interface — Annual Maintenance Fee VISN 16” in the amount of $20,639.50.

Health Net further relied on its April 12, 2011 letter to CMS, responding to invoice # 5762 and disputing the charges set forth therein, as follows:

[Health Net] is in receipt of your company’s invoice no. 5762 in the amount of $1,516,965.50. Except for the Repricing EDI Interface — Annual Maintenance Fee for VISN 16 in the amount of $20,639.50, which Health Net agreed to pay pursuant to the Purchase Order dated October 27, 2006, we never agreed (formally |sor informally) to compensate [CMS] for any other goods or services, including the items set forth in this invoice. The Purchase Order referenced above incorporated the CMS quote dated September 29, 2006, which exclusively relates to VISN 16 software and interface fees. As is clear from a review of the Purchase Order and the CMS quote, Health Net never agreed to purchase any software or licensing fees other than for VISN 16. Nor would Health Net have agreed to such compensation because (1) the work performed by CMS was made to [VA] hardware located on [VA] property; and (2) the [VA] repeatedly communicated to Health Net that such work was the responsibility of the EDI contractor (to whom CMS was the subcontractor), not Health Net.
Accordingly, other than a payment in the amount of $20,639.50, Health Net will not compensate CMS for the remainder of the invoice. [Emphasis added.]

Health Net further relied on the May 11, 2011 cover letter attached to its check, wherein Health Net stated:

Attached hereto please find a check in the amount of $20,639.50, representing payment in full for charges referenced in your company’s, invoice no. 5762. [Emphasis added.]
Should you have any questions, please feel free to contact me.

As additional support, Health Net relied on a copy of its check tendered for less than the amount of the claim, with the notation “PAYMENT IN FULL” on its face, as well as a copy of the check after it had been negotiated and deposited by CMS.

Based on the documents and the record as a whole, on review, we agree with the trial court that Health Net established that the necessary elements for dismissal of the suit under the doctrine of accord and satisfaction. Health Net’s April 12, 2011 letter to CMS clearly sets forth that it was disputing the charges set forth in invoice #5762. Thus, Health Net tendered a check for significantly less than the amount of the total charges itemized in the invoice. Moreover, the tendered partial payment by Health Net undisputedly was accepted and deposited by CMS.

|9We note that CMS countered Health Net’s motion for summary judgment, offering the following exhibits in support; (1) the affidavit of Steven R. Arter, a managing member of CMS; (2) Health Net purchase order dated October 25, 2006 and terms and conditions; (3) CMS’s invoice # 5726 dated November 25, 2009; (4) CMS’s April 6, 2011 fax to Health Net of invoice # 5762 dated March 23, 2011 and quote dated September 29, 2006; (5) CMS’s invoice # 5769 dated March 1, 2012; (6) the affidavit of Ferdinand J. Jefferson, CMS member; (7) CMS’s invoice # 5762 dated March 23, 2011 containing the notation “partial payment”; and (8) the affidavit of Robin Hart, Executive Administrator of CMS.

However, we find no merit to CMS’s contention that Health Net failed to satisfy its burden of proving that it was entitled to judgment as a matter of law and that material issues of fact remain as to whether CMS understood that the check tendered by Health Net was in full and final satisfaction of the entire invoiced amount or was payment in full for the VISN 16 annual maintenance fee. Specifically, CMS contends that the check tendered by Health Net was ambiguous, arguing that it is just as plausible that the “PAYMENT IN FULL” reference on the check could have meant payment in full for the VISN 16 annual maintenance fee. rather than payment in full for the entire invoice. We disagree.

Although the creditor must understand the restrictive endorsement if he is to be bound by the doctrine of accord and satisfaction, this does not mean the | increditor’s statement, “I did not understand,” would be sufficient to destroy the efficacy of the endorsement. Rather, the test is whether the language is sufficiently clear to apprise the negotiator of the maker’s intent to tender the amount in full settlement. Eppling v. Jon-T Chemicals, Inc., 363 So.2d 1263, 1265 (La.App. 4th Cir.1978).

In Eppling, the court determined that the payee’s action in scratching out the restrictive endorsement written by the maker strongly suggested that he was fully aware of the nature of the tender. The court further held that even if he were not, the endorsement was stated in such a way that any reasonable reader would fully understand that the check was tendered in full payment of all claims. Thus, this court concluded that plaintiff accepted the offer to compromise by negotiating the check. Eppling v. Jon-T Chemicals, Inc., 363 So.2d at 1265-1266.

To the extent that CMS relies on RTL Corporation v. Manufacturer’s Enterprises, Inc., 429 So.2d 855 (La.1983) and Fisch-bach and Moore, Inc. v. Cajun Electric Power Cooperative, Inc., 799 F.2d 194 (5th Cir.1986), we note that those cases are factually distinguishable from the instant case. In RTL Corporation, upon receipt of an invoice, the debtor responded by sending a letter to the creditor wherein he “challenged” several items on the invoice as well as the method of calculation. The creditor then proposed that the debtor pay the undisputed amount of charges. When the creditor was presented with a check marked “payment in full,” he immediately called the debtor and insisted that the check be considered only a partial payment and requested a meeting with the debtor to discuss the remainder. The debtor assented to their treatment of the check as partial payment and to again meet with them to discuss the remainder. Although the debtor agreed that the creditor insisted that the check be considered partial payment, the debtor testified that the creditor “silently let the demand pass Inwithout rejecting or acceding to it.” It was not until after the creditor received the debtor’s implied acceptance of the creditor’s proposal that the creditor substituted the words “partial payment” for “payment in full” on the check stub and deposited the check. RTL Corporation v. Manufacturer’s Enterprises, Inc., 429 So.2d at 856-857. The court concluded finding that “the parties’ subsequent negotiations on the remaining areas of dispute indicate that they did not consider this check as the final resolution of their differences.” RTL Corporation v. Manufacturer’s Enterprises, Inc., 429 So.2d at 857. In the instant case, however, there was no such proposal by CMS or an acceptance thereof by Health Net prior to its negotiation of the check or after receiving Health Net’s letter explaining that it would not pay for the additional items.

Moreover, in Fischbach, although the letter that accompanied the check indicated that it was in full and final settlement, the check did not contain a “payment in full” restrictive endorsement, and a notation on the check stub provided that it was in payment of two specifically identified invoices. Upon receipt, the creditor sent a letter confirming that it was accepting the check as payment of the two invoices, but that it was not accepting the check in satisfaction of any other claims. Based upon inconsistencies in the transmittal letter and the check stub concerning the purpose of the payment, the court found material issues of fact that precluded a summary judgment based on accord and satisfaction. Fischbach and Moore, Inc. v. Cajun Electric Power Cooperative, Inc., 799 F.2d at 195-196. These facts are also distinguishable from the facts in the case at hand.

Considering the April 12, 2011 letter from Health Net expressly disputing all charges except the VISN 16 annual maintenance fee, the cover letter that accompanied the check, which clearly stated that the attached “check in the amount of $20,639.50, represented] payment in full for charges referenced in [CMS’s] invoice no. 5762,” and the check marked “PAYMENT IN FULL,” we ^reject CMS’s contention that material facts remain to preclude summary judgment because it did not understand that the payment was tendered in full settlement of the dispute. By negotiating the check marked “PAYMENT IN FULL,” and in doing so without any objection CMS is deemed to have accepted Health Net’s offer made in settlement of the claim. The plain wording on the face of the check made it clear that this was not an unconditional tender. See River Bend Capital, L.L.C. v. Lloyd’s of London, 63 So.3d at 1096; cf. Leray v. Nissan Motor Corporation in U.S.A., 2005-2051 (La.App. 1st Cir.11/3/06), 950 So.2d 707, 710 (the signing and negotiating of a check alone is sufficient to establish the requirements of a valid compromise agreement under LSA-C.C. art. 3071 that could form the basis for plea of res judica-ta where the check indicated it that was in full payment).

Thus, these arguments lack merit.

Assignment of Error Number Two

In its second assignment of error. CMS contends that since matters of knowledge and Intent are material and are at issue herein, summary judgment is not appropriate. To the extent that CMS contends that its understanding and intent are material factual issues that remain in dispute, we note that on review of the grant of summary judgment, the only factual issues relevant to the defense of accord and satisfaction are whether there was (1) a disputed claim; (2) a tender of a check for less than the amount of the claim by the debt- or, and (3) an acceptance of the tender by the creditor. See River Bend Capital. L.L.C. v. Lloyd’s of London, 63 So.3d at 1096.

Here, CMS was expressly informed or aware (1) that Health Net was not going to pay the remaining charges in CMS invoice # 5762; (2) that the check tendered represented payment in full for the charges contained in CMS invoice # 5762; and (3) that the check bore the notation “PAYMENT IN FULL.” While |iswe recognize that there can be no accord and satisfaction if the written notice is insufficient to put the creditor on notice of the nature of the compromise being offered, Ryan v. State Farm Mutual Automobile Insurance Company, 68 So.3d at 569, we find the written notice sent by Health Net was clear and sufficient. The April 12, 2011 letter from Health Net, combined with the cover letter accompanying the check, combined with the notation on the front of the check, establish that CMS was fully informed of the nature of the payment by Health Net.

Specifically, on review, we find the evidence set forth by Health Net established that CMS was sufficiently informed of the basis and nature of the payment by Health Net and that after being informed of the basis for the check CMS negotiated the check. Thus, we find no material factual issues remain as to the elements set forth above.

Accordingly, this assignment of error by CMS also lacks merit.

CONCLUSION

For the above and foregoing reasons, the January 11, 2013 judgment of the trial court, granting summary judgment in favor of Health Net Federal Services, L.L.C. and dismissing all claims asserted by Complete Medical Solutions, L.L.C., is hereby-affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Complete Medical Solutions, L.L.C.

AFFIRMED.

      . According to the affidavit of David R. Feni-ger, Executive Counsel for Health Net, "repricing” is the process of comparing VA allowable rates based on fees charged by non-VA health care providers to rates that the contractor may have established with health care providers who are part of their network.

      . According to the markings on the back of the check, the check was processed and deposited by CMS on May 13, 2011.

      . To the extent that CMS relies on McClelland v. Security Industrial Insurance Company. 426 So.2d 665, 669-670 (La.App. 1st Cir.1982), writ denied, 430 So.2d 94 (La.1983), we find that McClelland is procedurally distinguishable from the instant case and not dispositive herein. In particular, in McClel-land, the plaintiff, who was uneducated and uninformed, established, without evidentiary objection, that she had been misinformed as to the basis for the check (i.e., that it was being issued as a premium refund in full settlement even after defendant's agent had informed her the policy would be honored and the claim paid). Thus, McClelland differs from this case, both factually and procedurally.


author: PETTIGREW, J.

text:
    Annette CLARK v. J-H-J INC. d/b/a Piggly Wiggly and Bunker Hill Underwriters Agency Inc.
    No. 2013 CA 0432.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.
    Anne E. Watson, Opelousas, LA, for Plaintiff-Appellant, Annette D. Clark.

      Nicholas J. Zeringue, Thibodaux, LA, for Defendants-Appellees, J-H-J, Inc, d/b/a Piggly Wiggly & Bunker Hill Underwriters Agency, Inc.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

12PIaintiff, Annette Clark, a store patron who slipped and fell on a dark colored liquid substance, allegedly sustaining injuries, appeals a judgment that granted the motion for summary judgment of defendants, J-H-J, Inc. d/b/a Piggly Wiggly and its insurer Great Midwest Insurance Company (hereinafter “Piggly Wiggly”), and dismissed her suit with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 12, 2010, Ms. Clark allegedly slipped on a liquid substance and fell near the check-out counter at the Piggly Wiggly in Baton Rouge, Louisiana, where she regularly shopped for groceries. Ms. Clark, who was alone at the time, had been in the store for approximately fifteen to twenty minutes shopping and then proceeded to check out. Ms. Clark indicated she took about two or three steps away from, the check-out counter, “and [her] right foot went that way and [she] went down on [her] left knee.” Ms. Clark sustained a broken knee cap, which required surgery to repair. On August 1, 2011, Ms. Clark filed suit against Piggly Wiggly for injuries allegedly sustained as a result of her fall.

On June 13, 2012, Piggly Wiggly filed a motion for summary judgment alleging it was entitled to judgment as a matter of law as there was no genuine issue of material fact with respect to liability. Piggly Wiggly argued that Ms. Clark could not establish that it either created the hazardous condition or had actual or constructive notice of any such condition as required by La. R.S. 9:2800.6. Following a hearing on the motion, the trial court agreed and rendered summary judgment in favor of Pig-gly Wiggly on December 20, 2012, dismissing Ms. Clark’s claims, with prejudice. From this judgment, Ms. Clark appeals, contending that the trial court erred in granting summary judgment in favor of Piggly Wiggly as there were genuine issues of material fact that precluded same.

| .¡SUMMARY JUDGMENT

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Berard v. L-3 Communications Vertex Aerospace, LLC, 2009-1202, p. 5 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 339-340, unit denied, 2010-0715 (La.6/4/10), 38 So.3d 302. The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La.Code Civ. P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806, p. 7 (La.6/25/04), 876 So.2d 764, 769. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B)(2).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009-2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied, 2010-1356 (La.9/24/10), 45 So.3d 1078.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to 14determine whether there is a genuine issue of triable fact. Hines, 2004-0806 at 1. 876 So.2d at 765. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Daniels v. USAgencies Cas. Ins. Co., 2011-1357, p. 8 (La.App. 1 Cir. 5/3/12), 92 So.3d 1049, 1055.

DISCUSSION

Louisiana Revised Statutes 9:2800.6 sets forth the burden of proof for a plaintiff in a claim against a merchant for damages due to a fall on the premises. As amended by 1996 La. Acts, No. 8, § 1, which amendments took effect May 1, 1996, subsection (B) requires the plaintiff to prove that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

To prove constructive notice, the plaintiff must show that the substance remained on the floor “for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6(0(1).

In White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, the Louisiana Supreme Court noted that the temporal element in a slip and fall claim requires a “positive showing” by the plaintiff that the hazardous condition existed for some time prior to the fall. The White court noted as follows:

There is a temporal element included: “such a period of time ...” The statute does not allow for the inference of constructive notice absent some showing of this temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. | ^Notwithstanding that such would require proving a negative, the statute simply does not provide for a shifting of the burden.
Though there is no bright line time period, a claimant must show that “the condition existed for such a period of time ...” Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden.

White, 97-0393 at 4-5, 699 So.2d at 1084-1085 (footnote omitted).

In the instant case, Ms. Clark argues that she can satisfy her burden of proving that Piggly Wiggly had constructive notice of the existence of the substance on the floor before her fall simply by the mere presence of cashiers in the area where she fell. She further directs the court’s attention to the accident report, wherein a Piggly Wiggly employee described the condition that caused the accident as “It appears that another customer rolled in a basket with busted cokes dripping and [Ms.] Clark fell in the path of that buggy.” Ms. Clark asserts that if a Piggly Wiggly employee knew the cause of the spill, it should have been cleaned up. In essence, Ms. Clark contends there is a genuine issue as to whether the condition existed for a sufficient length of time before her fall, during which Piggly Wiggly should have discovered the condition.

Although the initial burden of proof was on Piggly Wiggly, it will not bear the burden of proof at trial on the issue of constructive notice. As such, Piggly Wiggly did not need to negate this element of Ms. Clark’s claim. In order to shift the burden to Ms. Clark, Piggly Wiggly only had to point out that there was an absence of factual support for this element. The burden then shifted to Ms. Clark, as the non-moving party, to produce factual support sufficient to establish that she would be able to establish constructive notice at trial. La.Code Civ. P. art. 966(C)(2); Janney, 2009-2103 at 5, 40 So.3d at 288-289.

As in White, plaintiff herein presented no evidence whatsoever to show that the liquid was on the floor for any length of time to establish the temporal element set forth 16⅛ White. Ms. Clark could not establish constructive notice by Piggly Wiggly as she submitted no testimony or evidence establishing the length of time the spill remained on the floor. She testified in her deposition that before she fell, she did not see anything on the floor. Ms. Clark was unable to say what she slipped in — only that she knew she slipped in something. When asked if she had any idea how long that “something” had been on the floor before she fell, she responded “no.” In fact, she candidly admitted that she had no evidence to show how long that “substance” was on the floor before she fell.

Ms. Clark argues in brief that the facts of White are distinguishable from the case at hand. Unlike the plaintiff in White, Ms. Clark points out that the liquid she fell in was brown, not clear. Ms. Clark also notes that when she fell, she was in close proximity to at least two cashiers who had no impediments blocking their view of where she fell. These contentions, however, are not dispositive of the issue of how long the liquid substance had been on the floor. Even assuming arguendo that the substance had dripped from another customer’s basket, no evidence was presented to suggest or show that it was there long enough for Piggly Wiggly to discover the condition through reasonable care. Indeed, as the evidence in the record reveals, store employees performed safety inspections every half hour, including just prior to the time of Ms. Clark’s alleged fall. As indicated in an affidavit given by Brent McGough, the store manager on duty at the time of the incident, Mr. McGough stated that at 8:30 a.m. and 9:00 a.m. on the day of the incident, he did a safety inspection of the area where Ms. Clark fell and did not observe any hazards in the area. The time of the accident was reported to be 9:00 a.m. He further indicated that after Ms. Clark’s fall, he inspected the floor where the incident occurred, and he “ran a paper towel over the area to clean the drops.” He “did not feel that a mop was necessary as the ‘spill’ was very minimal.”

Applying the principles set forth in White, we find that the evidence submitted by Ms. Clark falls far short of the proof required to establish constructive notice. We |7flnd that Ms. Clark failed to satisfy her burden of proving that the liquid had been on the floor for such a period of time that Piggly Wiggly should have discovered its existence. White, 97-0393 at 7, 699 So.2d at 1086.

After careful review, we find no error in the trial court’s conclusion that Piggly Wiggly was entitled to judgment in its favor as a matter of law. The record amply supports the trial court’s conclusion that Ms. Clark failed to prove the temporal element necessary to establish defendant had notice, an essential element of Ms. Clark’s claim under La. R.S. 9:2800.6. Thus, the trial court properly rendered summary judgment herein.

CONCLUSION

For the above and foregoing reasons, we affirm the December 20, 2012 judgment of the trial court granting summary judgment in favor of defendants, J-H-J, Inc. d/b/a Piggly Wiggly and its insurer Great Midwest Insurance Company, and dismissing, with prejudice, Annette Clark’s claims. All costs associated with this appeal are assessed against plaintiff-appellant, Annette Clark.

AFFIRMED.

      . Although Bunker Hill Underwriters Agency Inc. was originally named in Ms. Clark’s petition for damages, Great Midwest Insurance Company was identified in Piggly Wiggly’s answer as its insurer.

      . The summary judgment in this case was signed on December 20, 2012, Thus, it is governed by the version of Article 966 in effect after its amendment by 2012 La. Acts, No. 257, § 1.

      . Although the court in White interpreted the version of La. R.S, 9:2800.6 in effect prior to the 1996 amendments, the requirement in the statute that the plaintiff prove that the condition existed for "such a period of time” was not changed by the 1996 amendments. Thus, the analysis in White regarding the temporal element of La. R.S. 9:2800.6 is equally applicable to the instant case.

      . According to Ms. Clark, her daughters, who are the ones who cleaned her pants after the accident, told her the stain on her pants "looked like Coke; it was dark.”


author: McClendon, j.

text:
    Hattie M. PIDGEON v. Mark Allen PIDGEON.
    No. 2013 CA 0435.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.
    Rehearing Denied Dec. 5, 2013.

      Alfreda Tillman Bester, Baton Rouge, Louisiana, for Plaintiff/Appellant, Hattie M. Pidgeon.
    Richard D. Bankston, Steven L. Preje-an, Baton Rouge, Louisiana, for Interve-nor/Appellee, Tower Credit, Inc.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

|2In this appeal, the plaintiff challenges a judgment that granted a motion to return security filed by the intervening creditor. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 30, 1999, Tower Credit, Inc. (Tower) recorded a Baton Rouge City Court judgment obtained on July 28, 1999, against Mark Pidgeon in the public records of East Baton Rouge Parish. As part of its collection efforts, Tower searched the public records and learned that Mr. Pid-geon owned a usufruct over a piece of immovable property in East Baton Rouge Parish. Mr. Pidgeon’s mother, Hattie Pid-geon, granted the usufruct to her son by an Act of Donation dated October 31,1990, which was recorded in the public records of East Baton Rouge Parish on November 2,1990.

On March 16, 2000, Tower filed a request for a writ of fieri facias with the Clerk of Court of the Baton Rouge City Court. Pursuant to that request, the Baton Rouge City Constable issued the writ and notice, seized the usufruct, and set the judicial sale for September 13, 2000. On August 8, 2000, after the notice and seizure, but before the sale, Ms. Pidgeon executed an “Act of Termination of Usu-fruct.” The purported act, which was not signed by Mr. Pidgeon, was recorded in the public records of East Baton Rouge Parish on August 10, 2000. On the morning of September 13, 2000, Ms. Pidgeon obtained a temporary restraining order from Baton Rouge City Court, barring the judicial sale of the usufruct.

Thereafter, on September 15, 2000, Tower filed a Petition to Annul Termination of Usufruct in the 19th Judicial District Court, in which it named Ms. Pidgeon as defendant. Subsequently, Ms. Pidgeon filed a motion to dismiss, asserting that Tower did not have a cause of action. The trial court granted Ms. |3Pidgeon’s motion, and Tower appealed. On December 31, 2002, this court reversed, holding that Tower possessed a cause of action.

Shortly thereafter, on January 14, 2003, Ms. Pidgeon filed a petition to terminate the usufruct in a different division of the 19th Judicial District Court. The suit only named Mr. Pidgeon as a defendant, and no service was requested or made on Tower. When Mr. Pidgeon failed to respond to the suit, Ms. Pidgeon obtained a default judgment on May 14, 2003, terminating the usufruct. Upon learning of the default judgment, Tower filed a petition, on July 15, 2003, in this matter to annul the May 14, 2003 judgment terminating the usu-fruct.

On July 20, 2004, Tower filed a motion for summary judgment. After a hearing, the trial court found that Tower, despite its right to be notified of an action against the recorded property interest, was not notified of the suit to terminate the usu-fruct filed by Ms. Pidgeon. The trial court granted summary judgment in Tower’s favor on January 31, 2005, annulling the May 14, 2003 judgment that terminated the usufruct. Ms. Pidgeon appealed the judgment, and we affirmed. See Pidgeon v. Pidgeon, 05-1223 (La.App. 1 Cir. 6/21/06), 939 So.2d 376. Thereafter, pursuant to Tower’s motion to post security under LSA-C.C. art. 625, the trial court ordered that Tower post security in the amount of $25,000.00, which it did on November 21, 2007.

On May 31, 2008, fire damage rendered the subject property uninhabitable. On October 27, 2010, Ms. Pidgeon filed an ex parte motion, requesting that the security be released to her. The matter was set for hearing, and the motion was denied on January 19, 2011. On October 25, 2012, Tower 14filed its own motion for the return of the $25,000.00 security. The motion was heard and judgment was signed on December 3, 2012, granting the motion and ordering the clerk of court to return the $25,000.00 security to Tower. Thereafter, on December 17, 2012, the trial court signed a final judgment granting Ms. Pid-geon’s motion to terminate the usufruct. Ms. Pidgeon now appeals the December 3, 2012 judgment that ordered the return of the security to Tower.

DISCUSSION

In her appeal, Ms. Pidgeon argues that a judgment creditor of a usufructuary may not intervene to prevent termination of a usufruct without repairing the damage caused by the usufructuary, without pledging security for the future, and without being required to fulfill the obligations imposed upon the usufructuary in the act of donation. However, Tower argues that according to LSA-C.C. art. 625, the $25,000.00 only secures the future and, thus, does not cover any damage incurred prior to its posting. Tower also contends that it is not responsible for extraordinary repairs under LSA-C.C. art. 577 and, thus, is not responsible for the fire damage to the property on May 31, 2008.

Tower further asserts that for the twenty-two months between the time Ms. Pid-geon’s motion to return the security was denied and the filing of Tower’s motion to return the security, Ms. Pidgeon failed to present any evidence of any damage to the property that would be covered by the security. When Tower filed its motion, it argued that it no longer had a legally enforceable obligation |5owed by the usu-fructuary. The Baton Rouge City Court judgment was older than ten years and had prescribed. Because it was no longer a judgment creditor of Mr. Pidgeon, Tower withdrew its opposition to the termination of the usufruct. Tower therefore argued that since it was no longer in a position to prevent the termination of the usufruct, the security was no longer needed.

The trial court agreed, finding that the city court judgment was extinguished and no longer enforceable. Thus, the seizure of the usufruct was no longer in existence. Additionally, extraordinary repairs are those for the reconstruction of the whqle or of a substantial part of the property subject to the usufruct. See LSA-C.C. art. 578. Further, the trial court noted that neither party was in disagreement that the repairs necessitated by the fire in this case were extraordinary. Therefore, Ms. Pidgeon was responsible for the extraordinary repairs caused by the fire, and the trial court ordered the return of the security to Tower.

Upon our thorough review of the record, we can find no factual or legal error in the decision of the trial court ordering the return of the security to Tower.

CONCLUSION

For the foregoing reasons, we affirm the December 3, 2012 judgment of the trial court by memorandum opinion issued in compliance with Uniform Rules, Louisiana Courts of Appeal, Rule 2-16.1.B. Costs of this appeal are assessed to Hattie M. Pid-geon.

AFFIRMED.

      . The act of termination was based on Article 623 of the Louisiana Civil Code which provides:
      The usufruct may be terminated by the naked owner if the usufructuary commits waste, alienates things without authority, neglects to make ordinary repairs, or abuses his enjoyment in any other manner.

      . We found that a naked owner cannot unilaterally terminate a donation of a usufruct and must seek a judicial termination by filing suit to terminate. See Tower Credit, Inc. v. Pidgeon, 02-0183 (La.App. 1 Cir. 12/31/02), 837 So.2d 766 (unpublished opinion).

      . On July 2, 2003, Mark Pidgeon filed for bankruptcy relief in the United States District Court for the Middle District of Louisiana. The parties agree that on October 27, 2003, the bankruptcy court lifted the stay insofar as it affected the usufruct,

      .Louisiana Civil Code article 625 provides:
      A creditor of the usufructuary may intervene and may prevent termination of the usufruct and delivery of the property to the naked owner by offering to repair the damages caused by the usufructuary and by giving security for the future.

      . Ms. Pidgeon admitted that her son never provided routine maintenance or made any ordinary repairs to the property since the usufruct was given in 1990.

      . Louisiana Civil Code article 577 provides:
      The usufructuary is responsible for ordinary maintenance and repairs for keeping the property subject to the usufruct in good order, whether the need for these repairs arises from accident or force majeure, the normal use of things, or his fault or neglect.
      The naked owner is responsible for extraordinary repairs, unless they have become necessary as a result of the usufructu-ary’s fault or neglect in which case the usufructuary is bound to make them at his cost.
      Extraordinary repairs are those for the reconstruction of the whole or of a substantial part of the property subject to the usufruct. All others are ordinary repairs, LSA-C.C. art. 578.

      . On August 26, 2010, the Baton Rouge City Court signed its judgment extinguishing and dissolving Tower’s seizure of Mr. Pidgeon’s usufruct on the subject property.

      . Ms. Pidgeon conceded in her opposition to Tower’s motion to return the security that "Tower ... no longer has a claim or any interest in the subject property.”

      . Although Ms. Pidgeon continues to argue in this appeal that the trial court erred when it allowed Tower to intervene to prevent termination of the usufruct without requiring Tower to repair the damage caused by the usu-fructuary, the only judgment appealed from was the December 3, 2011 judgment ordering the return of the security.


author: DRAKE, J.

text:
    WYNNCO CONSTRUCTION LLC v. Claude BERGERON.
    No. 2013 CA 0250.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2013.

      Matthew W. Pryor, Barbara Lane Irwin, Timothy E. Pujol, Gonzales, Louisiana, for PlaintiffAppellant, Wynnco Construction, L.L.C.
    John A. Moore, Elizabeth L. Adams, Baton Rouge, Louisiana, for Garnishee/Defendant/Appellee, Level Construction & Development, L.L.C.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   DRAKE, J.

[ gPlaintiff/Appellant, Wynnco Construction, L.L.C. (“Wynnco”), appeals a final judgment of the district court that denied its motion for judgment pro confesso. Garnishee/Defendant/Appellee, Level Construction and Development, L.L.C. (“Level”), answers and appeals the portion of the judgment that awarded attorney fees to Wynnco. For the following reasons, we affirm.

BACKGROUND

This dispute arises out of a garnishment proceeding instituted by the judgment creditor, Wynnco, against the debtor, Jennifer Bergeron. Ms. Bergeron was cast in judgment in February 2012 in the amount of $18,261.24, plus accrued interest and all costs of the proceeding.

Wynnco filed a petition for garnishment of Ms. Bergeron’s wages to satisfy the debt, naming Level garnishee, as the employer of Ms. Bergeron. As a result of the filing, the district court issued an order of garnishment, and Level was personally-served with garnishment interrogatories on May 25, 2012. Level provided answers to the garnishment interrogatories in a sworn letter, which was delivered and received by Wynnco on June 12, 2012. Also on June 12, 2012, Wynnco fax filed a motion for judgment pro confesso, seeking the entirety of Ms. Bergeron’s debt, as well as attorney fees from Level.

A contradictory hearing was held on Wynnco’s motion for judgment pro confes-so on September 11, 2012. Following the hearing, on October 5, 2012, the trial court rendered judgment, denying Wynnco’s motion for judgment pro confesso and awarding it $1,000 in attorney fees. Wynnco now appeals. In its | «¡answer, Level requested a reversal of the portion of the judgment that awarded attorney fees to Wynnco.

LAW AND DISCUSSION

Garnishment Proceeding.

Under Louisiana law, a garnishment proceeding is nothing more than a streamlined legal process facilitating a judgment creditor’s seizing property of a judgment debtor in the hands of a third party. Tower Credit, Inc. v. Carpenter, 2001-2875 (La.9/4/02), 825 So.2d 1125, 1127. Garnishment proceedings generally are governed by Louisiana Code of Civil Procedure articles 2411-2417. Id. Service upon the garnishee of the petition, citation, and interrogatories operates to seize any property of or credit due the judgment debtor held by the garnishee at the moment of service, though the amount and kind of such property will not be known until the garnishee answers. Id. at 1128; La. C.C.P. art. 2411(B). It is the garnishee’s duty to answer all proper interrogatories and to make all proper disclosures concerning property of the debtor in its possession. The garnishee must file his sworn answers to the interrogatories within fifteen days from the date of service. La. C.C.P. art. 2412(D). Regarding the judgment debtor who is an employee, from the moment of the seizure, the garnishee becomes the legal custodian of future wages (as well as unpaid current wages) and is obliged to hold them as a custodian subject to the order of the court. Tower Credit, 825 So.2d at 1128. The test of a garnishee’s liability to the judgment creditor is whether the garnishee has in his hands the principal debtor’s property, funds, or credits, for the recovery of which the debtor has a present subsisting cause of action. Id.

The garnishee’s failure to file a sworn answer to garnishment interrogatories creates a prima facie case against the garnishee under Louisiana Code of Civil LProcedure article 2413, which is rebutta-ble if the garnishee presents evidence of its actual debt or lack thereof to the debt- or. Tower Credit, 825 So.2d at 1128. If the garnishee fails to timely answer the garnishment interrogatories, the seizing creditor may move for a judgment pro confesso, i.e., a judgment against the garnishee for the amount of the judgment, plus interest and costs. See La. C.C.P. art. 2413. The judgment pro confesso is not self executing, and until a contradictory motion is filed against the garnishee for the amount of the judgment, the stage is not set for a default judgment against the garnishee. Tower Credit, 825 So.2d at 1128; see La. C.C.P. art. 2413(A). A contradictory hearing must be conducted on the motion and the garnishee must be given an opportunity to present evidence of the actual indebtedness, employment of the debtor, character of the employment, prior garnishments, and other facts relevant to the garnishment proceeding. After the hearing on the rule to show cause, judgment must be rendered against the garnishee unless he proves that he either had no property of, or was not indebted to, the judgment debtor. Tower Credit, 825 So.2d at 1128; see La. C.C.P. art. 2413(B).

If the garnishee does not satisfy this burden, he may still limit his liability by proving the amount of property or indebtedness owed to the debtor, and the judgment against him shall be limited to the delivery of the property or payment of the 1 .^indebtedness. Tower Credit, 825 So.2d at 1128; see La. C.C.P. arts. 2413(B) and 2415. Where the garnishee establishes that he did not have any funds in his possession or under his control belonging to the debtor at the time of service of garnishment, the district court must deny judgment pro confesso, but must award the creditor the costs and reasonable attorney’s fees associated with the motion for judgment pro confesso. Tower Credit, 825 So.2d at 1130; see La. C.C.P. art. 2413(C).

In the instant case, garnishment interrogatories were personally served upon Level on May 25, 2012. Level provided Wynnco with answers to the garnishment interrogatories in a sworn letter which was received by counsel of record for Wynnco on June 12, 2012. Wynnco argues that Level’s failure to timely file answers to the interrogatories constituted prima facie proof that it had property of or was indebted to Wynnco to the extent of the judgment. See La. C.C.P. art. 2413(A).

A garnishee’s answers to interrogatories are effective, so as to avoid a judgment pro confesso, so long as they are provided before the judgment creditor files a motion for judgment pro confesso. Pic- toria Lumber Co. v. Woodson, 13 La.App. 30, 33, 127 So. 95, 97 (La.App. 2nd Cir. 1930). We liken this present situation to answering a petition before a confirmation of default. This court has held that, up until the time the rule is heard, the court may permit the garnishee to file his answers in an attempt to rebut the judgment creditor’s prima facie case. All Star Floor Covering, Inc. v. Stitt, 2000-2049 (La.App. 1 Cir. 11/14/01), 804 So.2d 705, 708, writ denied, 2002-0406 (La.4/19/02), 813 So.2d 1085, and writ denied, 2002-0421 (La.4/19/02), 813 So.2d 1088; citing Hou-ma Mortgage & Loan, Inc. v. Marshall, 94-0728 (La.App. 1 Cir. 11/9/95), 664 So.2d 1199, 1205; see also Commercial Sec. Co., Inc. v. Corsaro, 417 So.2d 1346, 1349 (La. App. 3d Cir.1982); see also Sec. Ins. Co. of Hartford v. Holliday, 363 So.2d 246, 248 (La.App. 4th Cir.1978), tvrit denied, 370 So.2d 577 (La.1979).

At the contradictory hearing, Level introduced and filed into evidence the sworn answers to interrogatories that it had provided to Wynnco, which were set forth in a letter dated June 1, 2012, signed and notarized on June 5, 2012. Wynnco was in receipt of the letter on June 12, 2012. Level also introduced a copy of a check stub in the amount of $905.88, which represented the garnished wages of Ms. Ber-geron from the date of service of the motion for judgment pro confesso to the date of the institution of bankruptcy proceedings by Ms. Bergeron, which Level had remitted to the Sheriff of East Baton Rouge Parish. Following the contradictory hearing, the district court determined that Level substantially complied with Louisiana Code of Civil Procedure article 2413, so as to preclude the granting of a judgment pro confesso. The court stated:

I’m going to deny the judgment pro confesso, not because there’s an automatic stay, but because they have, in fact, provided answers prior to the date of judgment and they have, in fact, made such payments that they would otherwise be liable to pay under the garnishment. So that being said, I’m going to deny the judgment pro confesso.

We therefore conclude that the garnishee, upon contradictory hearing, presented sufficient evidence that it had paid the full amount owed by it to the judgment debtor. The district court did not err in denying Wynneo’s motion for judgment pro confes-so and awarding Wynnco reasonable attorney fees associated with Wynneo’s filing of the motion. See La. C.C.P. art. 2413(C).

DECREE

Considering the foregoing, the judgment of the district court that denied the motion for judgment pro confesso and awarded attorney fees is affirmed. All costs of this appeal are equally east to the parties.

AFFIRMED.

      . On June 18, 2012, Jennifer Bergeron and her husband, Claude Bergeron, instituted a bankruptcy proceeding, case number 12-10907, in the United States Bankruptcy Court for the Middle District of Louisiana. An automatic stay was effective June 18.2012, as to all actions seeking to enforce or collect judgments against Jennifer Bergeron’s estate. See 11 U.S.C. § 362.

      . Following rendition of judgment, Level brought a motion for new trial, which was heard and denied in open court on January 14, 2013.

      .Article 2413 entitled "[ejffect of garnishee’s failure to answer,” provides, in pertinent part:
      A. If the garnishee fails to answer within the delay provided by Article 2412, the judgment creditor may proceed by contradictory motion against the garnishee for the amount of the unpaid judgment, with interest and costs ... The failure of the garnishee to answer prior to the filing of such a contradictory motion is prima facie proof that he has property of or is indebted to the judgment debtor to the extent of the judgment, interest, and costs.
      B. Judgment shall be rendered against the garnishee on trial of the motion unless he proves that he had no property of and was not indebted to the judgment debtor. If on the trial of such motion, the garnishee proves the amount of such property or indebtedness, the judgment against the garnishee shall be limited to the delivery of the property or payment of the indebtedness, as provided in Article 2415.

      . We note, as did the district court, a disparity in the language of the pertinent Louisiana Code of Civil Procedure articles regarding whether or not the answers to garnishment interrogatories must be filed. Article 2412(D) provides that a garnishee “shall file” his sworn answers to the interrogatories; however, Article 2413(A) states "if the garnishee fails to answer,” but makes no mention of filing said answers.

      . Comment (b) to Louisiana Code of Civil Procedure article 2413 states that "[tjhis article also codifies the rule announced in Victoria Lumber Co. v. Woodson, 13 La.App. 30, 127 So. 95 (1930), to the effect that the answers of the garnishee will be effective, if filed at any time before the seizing creditor has taken positive action against him, though he has failed to answer within the time prescribed by law.”

      . Louisiana Code of Civil Procedure article 2413(C) states that "[r]egardless of the decision on the contradictory motion, the court shall render judgment against the garnishee for the costs and a reasonable attorney fee for the motion."


author: GUIDRY, J. DRAKE, J.,

text:
    John L. DAVIS v. J.R. LOGGING, INC.
    No. 2013 CA 0568.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2013.
    Rehearing Denied March 24, 2014.

      John B. Lambremont, Sr., Baton Rouge, LA, for Plaintiff/Appellant, John L. Davis.
    Teresa Leyva Martin, Scott R. Huete, New Orleans, LA, for Defendants/Appel-lees, J.R. Logging, Inc. and Praetorian Insurance Company.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   GUIDRY, J.

|2In this workers’ compensation case, claimant, John L. Davis, appeals from a judgment of the Office of Workers’ Compensation (OWC) sustaining a peremptory exception raising the objection of res judi-cata in favor of defendant, J.R. Logging, Inc., and dismissing his claim for compensation with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

John L. Davis was employed by J.R. Logging, Inc. (J.R. Logging) as a personnel and delivery truck driver and a vehicle and equipment mechanic. On October 11, 2010, while driving home from work in a company truck, Davis experienced a dizzy spell that made him lose control of the truck and crash into a ditch.

On February 2, 2011, Davis filed a disputed claim for compensation, asserting injury to his back, neck, and head as a result of the alleged work accident on October 11, 2010. Davis asserted that he was entitled to indemnity benefits, medical benefits, penalties, and attorney’s fees and the determination of his disability status. J.R. Logging filed an answer to Davis’ disputed claim for compensation, denying that Davis was in the course and scope of employment at the time of the alleged accident and that Davis’ injuries arose out of his employment.

Thereafter, J.R. Logging filed a peremptory exception raising the objection of res judicata, asserting that Davis’ alleged injuries arose out of a 2005 work accident while employed by J.R. Logging, and that all claims arising from this accident were settled between the parties and dismissed by the OWC on May 20, 2008. J.R. Logging also filed a peremptory exception raising the objection of prescription, asserting that, although the disputed claim for compensation lists the Rdate of accident/injury as October 11, 2010, subsequent pleadings and medical records refer to an alleged work injury in 2005. Therefore, J.R. Logging asserted that because the instant disputed claim for compensation was not filed until February 2, 2011, any claim based on a 2005 injury is clearly prescribed.

Davis subsequently filed an amended disputed claim for compensation naming J.R. Logging’s workers’ compensation carrier, Praetorian Insurance Company, as an additional defendant. Following trial, the OWC judge signed a judgment sustaining J.R. Logging’s exception raising the objection of res judicata, and dismissing Davis’ claim with prejudice. Additionally, the OWC found that even if Davis’ claim was not barred by res judicata, Davis failed to carry his burden of proof that he suffered a work related accident with injury during the course and scope of his employment with J.R. Logging. Davis now appeals from this judgment.

DISCUSSION

Louisiana Revised Statute 13:4231 provides, in pertinent part, the following regarding res judicata:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

The chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. Landry v. Town of Livingston Police Department, 10-0673, p. 5 (La.App. 1st Cir. 12/22/10), 54 So.3d 772, 776. However, the Louisiana Supreme Court has also emphasized that all of the following elements must be satisfied in order for res judicata to preclude a second action: (1) the first judgment is valid and final; (2) |4the parties are the same; (3) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (4) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053.

The peremptory exception raising the objection of res judicata is based on the conclusive legal presumption of a thing previously adjudged between the same parties. Labiche v. Louisiana Patients’ Compensation Fund Oversight Board, 98-2880, p. 5 (La.App. 1st Cir. 2/18/00), 753 So.2d 376, 380. Although the exception of res judicata typically contemplates the existence of a final judgment on the merits, it also applies where there is a transaction or settlement of a dispute that has been entered into by the parties. Ortego v. State Department of Transportation and Development; 96-1322, p. 6 (La.2/25/97), 689 So.2d 1358, 1363.

The burden of proving the facts essential to sustaining the objection is on the party pleading the objection. If any doubt exists as to its application, the exception raising the objection of res judica-ta must be overruled and the second lawsuit maintained. Landry, 10-0673 at p. 5, 54 So.3d at 776. When an objection of res judicata is raised before the case is submitted and evidence is received on the objection, the standard of review on appeal is manifest error. Landry, 10-0673 at p. 5, 54 So.3d at 776.

In the instant case, J.R. Logging introduced copies of compromise documents in connection with the 2005 work accident. The Joint Petition to Compromise and Settle Worker’s Compensation Claim states that while working for J.R. Logging on May 28, 2005, Davis suffered injuries to his arm and forehead when a boom dipped down and caused the grapple to mash Davis’ arm and resulted in a laceration to Davis’ forehead. The petition stated that the parties [smutually agreed that a fair and just settlement of their respective rights would be attained through the payment to Davis of $90,000.00 in a lump sum. The parties further agreed:

that upon payment of said lump sum to employee by employer, that employer and insurer shall be forever released and relieved from all further and future liability claims of employee of whatsoever nature and kind arising heretofore or which may hereafter arise under said statutes, growing out of any accident and/or injury occurring prior to this date. [Emphasis added.]

J.R. Logging also introduced a copy of the order signed by the OWC on May 20, 2008, approving the aforementioned settlement and also introduced a copy of the joint motion to dismiss Davis’ claim. See La. R.S. 23:1272. Finally, J.R. Logging introduced a copy of the receipt and release executed by Davis acknowledging that he forever releases J.R. Logging from “all claims of whatsoever nature and kind which may have arisen heretofore or which may hereafter arise from any accident of any sort or injury occurring prior to this date.”

In filing his disputed claim for compensation regarding the October 11, 2010 accident, Davis asserted that he sustained disabling injuries to his head as a result of that accident. This disabling head injury, as asserted by Davis, is a dizziness disorder. However, the testimony and medical evidence in the record indicate that the dizzy spells from which Davis suffers arise from the injuries he sustained to his head in the 2005 accident. Particularly, Dr. Peter Roland, who is board certified in oto-laryngology, testified on behalf of Davis and stated that the 2005 head injury led to the development of Davis’ dizziness disorder, diagnosed as Meniere’s Disease. Additionally, Davis admitted, and the medical records support, that in seeking medical attention for his dizzy spells, both prior to and after the October 11, 2010 accident, he related to medical personnel that he had been suffering from dizzy spells since 2008, and that he had sustained a blunt force trauma to his head in a 2005 accident.

|RAs such, because Davis’ instant claim for compensation, seeking compensation for injuries to his head, arises out of the head injury sustained in the 2005 work accident, and all future liability claims of Davis arising out of that head injury were compromised between the same parties in the May 20, 2008 settlement, we find no error in the OWC’s determination that Davis’ instant claim for compensation is barred by res judicata.

Davis asserts on appeal, however, that, even if his instant claim for compensation is barred by res judicata, exceptional circumstances exist so as to justify relief from the effects of res judicata. See La. R.S. 13:4232(A)(1). The discretion given to courts to grant relief from a judgment on the basis of exceptional circumstances allows the courts to balance the principle of res judicata with the interests of justice. However, this discretion must be exercised on a case-by-case basis, and such relief should be granted only in truly exceptional cases, otherwise the purpose of res judicata would be defeated. La. R.S. 13:4232, Comment-1990. The exceptional circumstances exception generally applies to complex procedural situations in which litigants are deprived of the opportunity to present their claims due to unanticipated quirks in the system, to factual situations that could not be anticipated by the parties, or to decisions that are totally beyond the control of the parties. McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC, 09-1357, pp. 11-12 (La.App. 1st Cir. 2/12/10), 86 So.3d 272, 279, unit denied, 10-0701 (La.5/28/10), 36 So.3d 253.

From our review of the record, there is no evidence to support that Davis was deprived of the opportunity to present his claim due to unanticipated quirks in the system. Further, because Davis voluntarily entered into a compromise whereby he settled future claims for injuries arising out of his head wound, we cannot say that such settlement was beyond his control nor that his need for future medical care related to that wound was unanticipated by the parties. Therefore, we do not |7find that the OWC abused its discretion in failing to find that exceptional circumstances exist so as to justify relief from the effects of res judicata.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC, sustaining J.R. Logging’s exception raising the objection of res judicata and dismissing Davis’ claim for compensation with prejudice. All costs of this appeal are assessed to John L, Davis.

AFFIRMED.

ERNEST G. DRAKE concurs with Result only and assigns written Reasons.

DRAKE, J.,

concurring in result only.

|,I concur in the result of the majority opinion for the reasons set forth below.

Res Judicata

The burden of proving the facts essential to sustaining the objection is on the party pleading the objection and if any doubt exists as to the application of res judicata, the objection raising the peremptory exception of res judicata must be overruled and the second lawsuit maintained. Landry v. Town of Livingston Police Department, 10-0673 (La.App. 1 Cir. 12/22/10), 54 So.3d 772, 776.

In Mitchell v. Travelers Ins. Co., 136 So.2d 143 (La.App. 3d Cir.1961), a claimant was injured while at work. He had previously suffered a similar injury three years earlier. The court held that if the second accident produced an aggravation of the previously latent disability or a disabling intensification of previously mild complaints, the injured employee was entitled to compensation for total disability for the second accident. Id. at 144-145.

In the present case, the claimant returned to work after the 2005 accident. Even if he did have dizziness, it was not until after the second accident that he claims he was totally unable to work. See Employers Liability Assurance Corp. v. General Accident, Fire, & Life Assurance Corp., 148 So.2d 425, 432-33 (La.App. 1 Cir.1962), writ denied, 244 La. 114, 150 So.2d 583 (1963). In Duncan v. R.J. Reynolds, Inc., 305 So.2d 707 (La.App. 4 Cir.1974), the claimant injured himself while at work. Two years later he again injured himself with the same employer. It was determined that the second accident aggravated the pre-existing condition and resulted in the claimant’s current condition. An aggravation of a preexisting condition is fully compensable. Id. at 709.

Even though Davis had dizzy spells pri- or to the 2010 accident, at no time did it disable him or prevent him from working. The employer knew the claimant had dizzy spells but did not believe they were an impediment to his working. Prior to the 2010 accident, the dizzy spells had lessened in frequency, and at the time of the accident, Davis had not had a dizzy spell for several months and had not seen Dr. Sheik for seven months.

After the 2010 accident, the dizzy spells were exacerbated in frequency and severity. In the days following the accident, the claimant had, nearly daily, dizzy spells, nausea, and attacks causing him to fall, and he was temporarily unable to drive. Davis was unable to resume his duties as a personnel and delivery driver because of his inability to drive. Davis was not diagnosed with Meniere’s disease until after his 2010 accident. Dr. Peter Roland, who testified on behalf of Davis, opined that Meniere’s disease started with the 2005 head injury, but that it was greatly exacerbated by the 2010 automobile accident.

Furthermore, the fact that an employee has received compensation in one or more previous compromise settlements will not bar him from collecting compensation for another injury. Sibley v. Solvay Process Co., 25 So.2d 101, 103 (La.App. 1 Cir.1946). Davis claims that his 2010 accident exacerbated his pre-existing injuries. The compromise relied upon by defendant does not contain a waiver of future accidents or future injuries. In Davis v. The Home Depot, 96-850 (La.App. 5 Cir. 2/25/97), 690 So.2d 208, writ denied, 97-0728 (La.5/1/97), 693 So.2d 740, the plaintiff injured her back while working for defendant in 1990. She reinjured her back in 1994 while working for the defendant. The claimant had settled the 1990 claim, and the defendant filed an exception of res judicata. The court found that the trial court was manifestly erroneous in finding that claimant was barred by res judicata from bringing suit for the 1994 injury. The court noted that the claimant alleged that she was injured again in the 1994 accident.

Transactions and compromises regulate the differences that appear clearly to be comprehended in them by the parties and they do not extend to differences which the parties never intended to include in them. The burden of proof in the present case is clearly on defendant to establish the requisites for a valid compromise, including the parties’ intent to settle the differences being asserted in the action in which it is interposed. Even when valid, releases of future actions are narrowly construed by the courts to assure that the parties fully understand which rights have been released, and further, that they understand the resulting consequences. As a result, if the release instrument leaves any doubt as to whether a particular future action is covered by the compromise, it should be construed as not covering such future action. Davis, 690 So.2d at 212.

The court in Davis found that the claimant did not waive any future accidents or future injuries. Furthermore, under La. R.S. 13:4231, the cause of action, which arose in 1994 after the rendition of the final compromise judgment, could not have been asserted earlier and was, therefore, not precluded by that compromise judgment.

Similarly, the claimant in the present case has brought a claim for an injury which occurred after the compromise judgment. He also claims an ^aggravation of the condition which resulted from the 2005 accident or that another injury occurred in 2010. Therefore, the workers’ compensation judge committed manifest error in granting the exception of res judicata.

Course and Scope

Because the majority affirms the exception of res judicata, it does not discuss the issue of whether the accident was in the course and scope of claimant’s employment. However, the workers’ compensation judge stated in the judgment, “And, even if not barred by Res Judicata, claimant John L. Davis failed to carry his burden of proof that he suffered a work related accident with injury during the course and scope of employment with defendant.”

Claimant argued that because he was on call twenty-four hours a day, this automobile accident was employment related. Contrary to claimant’s assertion, the mere fact an ■ employee is “on call” does not automatically give rise to employer liability. Rather, an employee’s “on call” status simply gives rise to a question of whether the employee was acting within the scope of his employment at the time of the accident. See Migliore v. Gill, 11-407 (La. App. 5 Cir. 12/13/11), 81 So.3d 900, 903, writ denied, 12-0094 (La.3/9/12), 84 So.3d 555. There is no twenty-four hour liability rule for on-call employees, but rather, the nature of the employee’s activities at the time of an accident is determinative of whether compensation is owed. Id.

There is no evidence in the record that Davis was on-call at the time of this accident. Therefore, the workers’ compensation judge correctly held that Davis did not prove he suffered a work related accident with injury during the course and scope of his employment with defendant. Consequently, I would dismiss claimant’s suit for failure to carry his burden of proof at trial.

      . At the hearing of this matter, Davis admitted that he no longer claimed neck and back disability as a result of the October 11, 2010 accident.

      . Because we affirm the OWC's decision sustaining the exception raising the objection of res judicata, we pretermit discussion of whether the OWC erred in finding that Davis failed to prove that he suffered a work related accident and injury during the course and scope of his employment with J.R. Logging.