author: THERIOT, J.

text:
    Helen Amarena CHRISTAKIS and Nicholas Christakis v. CLIPPER CONSTRUCTION, L.L.C., Clipper Estates Master Homeowners’ Association, Inc., ABC Insurance Company(s).
    No. 2012 CA 1638.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.
    Rehearing Denied July 8, 2013.

      Wayne A. Collier, Slidell, LA, for Plaintiffs/Appellants Helen Amarena Christakis and Nicholas Christakis.
    Glen B. Adams, Denia S. Aiyegbuis, New Orleans, LA, for Defendant/Appellee Clipper Estates Master, Homeowners’ Association, Inc.
    Michael S. Futrell, Metairie, LA, for Defendant/Appellee Scottsdale Insurance Co.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

Lin this slip and fall suit, the plaintiffs appeal a summary judgment dismissing their claims with prejudice against one defendant. We affirm.

FACTS AND PROCEDURAL HISTORY

On April 2, 2008, a rainy day, Helen Christakis slipped and fell on a wet welcome mat outside the front door of a “model home” in Clipper Estates Subdivision. Several entities, including Clipper Construction, L.L.C. (“Clipper Construction”) and Clipper Estates Master Homeowners’ Association, Inc. (“CEMHA”), maintained offices in the model home. Mrs. Christak-is entered the model home on the day of the accident to drop off a check to CEM-HA for her homeowners’ association dues.

Mrs. Christakis and her husband, Nickolas Christakis, filed a suit for damages against CEMHA and Clipper Construction. CEMHA filed a motion for summary judgment, which was granted by the trial court on May 14, 2012, Plaintiffs filed a motion for new trial, which was denied, and this appeal followed.

DISCUSSION

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, 10-0116, p. 4 (LaApp. 1 Cir. 9/10/10), 47 So.Sd 1024, 1027, writ denied, 10-2227 (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 on file, 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. La. C.C.P. 966(B).

|3The 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. La. 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. Pugh v. St. Tammany Parish School Board, 07-1856, p. 2 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 08-2316 (La.11/21/08), 996 So.2d 1118; see also La. 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, p. 7 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ 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 Rapplicable to this case. Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

We are responsible for the damage occasioned by things which we have in our custody. La. C.C. art. 2317. However, the owner or custodian of a thing is only answerable for the damage caused by its ruin, vice, or defect upon a showing that he knew or, in the exercise of reasonable care, should have known, of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. La. C.C. art. 2317.1.

CEMHA pointed out in its motion for summary judgment that the plaintiffs had no evidence to prove an essential element of their claim, i.e., that CEMHA had notice of an unreasonably dangerous condition on the premises prior to Mrs. Chris-takis’s accident. In support of its motion for summary judgment, CEMHA offered the affidavit of Ludy Pittman, an employee of Clipper Construction who was working in the model home at the time of the accident. Ms. Pittman’s affidavit states that prior to Mrs. Christakis’s alleged slip and fall, no other person advised that the front entrance or the welcome mat was wet.

In response to the motion for summary judgment, the plaintiffs filed Mrs. Christakis’s affidavit stating that CEMHA was “familiar with the conditions at the entranceway [and] knew or should have known that a rain event causes an unsafe condition at the entranceway.” This affidavit is insufficient to establish that the plaintiffs will be able to carry their burden of proof, as it simply contains conclusory allegations of fact rather than specific facts based upon personal knowledge. Affidavits with conclusory allegations of fact which are devoid of specific facts are not sufficient to | r,defeat summary judgment. Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 09-1633 (La.4/23/10), 35 So.3d 1053, 1062. The plaintiffs did not come forward with any evidence to show that they would be able to carry their burden of proving actual or constructive knowledge by CEMHA at trial; therefore, there is no genuine issue of material fact and summary judgment is appropriate.

Plaintiffs also argue that the court erred in proceeding to summary judgment before the case was set for trial and before adequate discovery was complete. Louisiana Code of Civil Procedure article 966(C)(1) provides that summary judgment may be granted “[ajfter adequate discovery or after a case is set for trial.”

Trial courts in Louisiana have broad discretion when regulating pretrial discovery, which will not be disturbed on appeal absent a clear showing of abuse. Daniels v. USAgencies Cas. Ins. Co., 11-1357, p. 6 (La.App. 1 Cir. 5/3/12), 92 So.3d 1049, 1054. It is not an abuse of a trial court’s wide discretion to entertain a motion for summary judgment before discovery has been completed. It is within the trial court’s discretion to render a summary judgment or require further discovery. While parties must have a fair opportunity to conduct discovery and present their claims, there is no absolute right to delay action on a motion for summary judgment until discovery is complete. Id.

This suit was filed three-and-a-half years prior to the hearing on the motion for summary judgment. Plaintiffs did not object at the hearing on the motion for summary judgment to the prematurity of the motion, nor did plaintiffs request more time to conduct additional discovery. Under these circumstances, the trial court did not abuse its broad discretion in granting summary judgment before the completion of plaintiffs’ discovery.

| (¡CONCLUSION

The summary judgment dismissing plaintiffs’ claims against CEMHA is affirmed. Costs of this appeal are assessed to the plaintiffs, Helen and Nickolas Chris-takis.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 967(B) provides:
      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, but 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.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Charles SLOCUM v. NORTHLAKE DRIVELINE.
    No. 2012 CA 1572.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Michael W. Whitehead, Livingston, LA, for Plaintiff-2nd Appellant Charles Slocum.
    Richard J. Voelker, Covington, LA, for Defendants-Appellees Northlake Driveline and Luba Casualty Ins. Company.
    David T. Butler, Jr., Baton Rouge, LA, for Plaintiff-in-Reconvention-Appellant LEMIC Insurance Company.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

| gCIaimant, Charles Slocum, and one of his employer’s insurers, LEMIC Insurance Company (“LEMIC”), appeal from a judgment of the Office of Workers’ Compensation (“OWC”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At all times pertinent hereto, Mr. Slocum was employed as a machinist and welder at Northlake Driveline, Inc. (“Northlake”), and had been so employed for over 20 years. On April 2, 2001, Mr. Slocum suffered a work-related injury when a forklift blade fell on his right foot, crushing it. Following this injury, Mr. Slocum returned to work in a modified capacity and continued working. At the time of the 2001 injury, Northlake was covered through a policy of workers’ compensation insurance issued by LEMIC. LEMIC paid indemnity and medical benefits to Mr. Slocum arising out of the 2001 injury.

Subsequently, on October 1, 2007, Mr. Slocum experienced an electrocution accident while at work. Mr. Slocum was taken to Slidell Memorial Hospital where he was evaluated by a cardiologist, who determined there was no damage to Mr. Slocum’s heart. A few days later, Mr. Slocum was seen by his family physician, who released him without restrictions. Despite the fact that Mr. Slocum did not file a claim for workers’ compensation benefits in the immediate aftermath of the electrocution, Northlake and LUBA Casualty Insurance Company (“LUBA”), Northlake’s workers’ compensation insurer at the time, voluntarily gave Mr. Slocum one week of TTD benefits for the week immediately following the incident. Again, Mr. Slocum returned to work at Northlake and worked continuously from the date of his electrocution until November 2009.

On March 31, 2009, Mr. Slocum filed a disputed claim for compensation against Northlake and LUBA, alleging that no wage or medical benefits had been paid, that he had been denied his choice of physician, and that he had not been reimbursed for his prescriptions or mileage. In addition, Mr. Slocum made a request for attorney fees and penalties. In response thereto, Northlake and LUBA filed exceptions raising the objections of no cause and/or right of action and prescription. Following a hearing on the | (¡exceptions, Mr. Slocum was ordered by the OWC to file an amended petition, within the time allotted, alleging a “developmental injury” with specific facts.

On July 1, 2009, Mr. Slocum filed an amended disputed claim for compensation. Mr. Slocum alleged in this amended claim that he “suffered a developmental injury causing temporary disability more than one year but no later than two years from the date of his accident” entitling him to benefits. However, his amended claim was devoid of any specific facts in support of his alleged “developmental injury.” Northlake and LUBA again responded with exceptions raising the objections of no cause and/or no right of action and prescription. In an order rendered on August 14, 2009, the OWC sustained the no cause of action exception, granting Mr. Slocum an additional 10 days to plead specific facts and dates as to the developmental injury. The prescription exception was deferred.

On August 24, 2009, Mr. Slocum filed a second amending claim, alleging that the injuries he sustained on October 1, 2007, aggravated the pre-existing disability to his right foot and ankle and that the October 1, 2007 injuries placed “increased load-bearing tension, stress and overuse” on his left foot and ankle, resulting in surgery to his left foot. Northlake and LUBA filed an answer to Mr. Slocum’s first and second amended claim forms, again reurging the prescription exception. The prescription exception was heard by the OWC on October 8, 2010. In an order dated October 12, 2012, the OWC sustained the prescription exception, offering the following written reasons:

Defendant paid one week of TTD on October 12, 2007 after the work-related accident on October 1, 2007.
Claimant did not file a disputed 1008 until March 30, 2009, which was less than three years after the last indemnity payment was made. Defendant does not urge that the SEB claim has prescribed.
Claimant filed an amended 1008 on June 29, 2009 for a “development injury” and TTD. This was filed within two years of the accident. However, claimant’s contention that claimant was later again disabled due to another condition related to the same accident is rejected.
Claimant’s right to Temporary Total Disability benefits has prescribed.

Mr. Slocum sought supervisory writs with this court from the October 12, 2010 order of the OWC. On December 17, 2010, this court denied the writ application, with the |4following language: “We decline to exercise our supervisory jurisdiction. Relator has an adequate remedy on appeal after all matters at issue are resolved. See Smith v. UNR Home Products, 614 So.2d 54, 54-55 (La.1993).” See Slocum v. Northlake Driveline, 2010-2090 (La.App. 1 Cir. 12/17/10) (unpublished writ action).

During discovery conducted in this matter, LUBA determined that Mr. Slocum was receiving medical benefits related to the injuries arising out of the work-related injury in April 2001 at Northlake. Accordingly, LUBA filed a third party demand against LEMIC for indemnification of any amounts LUBA may be cast in judgment for arising out of the October 2007 work-related accident. LEMIC answered the third party demand, admitting that it insured Northlake at the time of the April 2001 incident and further acknowledging that it continued to pay benefits due to Mr. Slocum related to the injuries sustained in that accident. Additionally, LEMIC, as plaintiff in reconvention, sought reimbursement from LUBA for all amounts that LEMIC has paid that are attributable to the October 2007 incident. LEMIC then amended its answer to the third party demand to allege that it last provided workers’ compensation coverage to North-lake on September 2, 2004, and that any claim for indemnity benefits as to LEMIC have prescribed.

The matter proceeded to trial before the OWC on October 13, 2011, and was taken under advisement. Thereafter, on February 15, 2012, the OWC issued judgment dismissing Mr. Slocum’s claim against LUBA with prejudice, finding that Mr. Slocum’s claim against Northlake for indemnity benefits had prescribed and dismissing it with prejudice, dismissing LUBA’s third party demand against LEM-IC for reimbursement with prejudice, and dismissing LEMIC’s reconventional demand against LUBA with prejudice. LEMIC timely filed an application for new trial, which was denied by the OWC. Mr. Slocum and LEMIC have both appealed herein.

In his appeal, Mr. Slocum assigns the following specifications of error:

1. Whether the trial court committed manifest error by misinterpreting LSA-R.S. 23:1209A and holding that the prescriptive period for temporary total disability benefits was triggered by the voluntary and erroneous payment of one week of indemnity benefits for injuries to unrelated parts of claimant’s body and in absence of any disabling medical evidence legally required for entitlement to TTD indemnity benefits when all medical evidence revealed that claimant’s actual disabling condition for | swhich he did make a claim did not manifest itself until months following the date of his 10/01/07 accident.
2. The trial court committed manifest error by dismissing claimant’s SEB indemnity claim against Northlake Drive-line when the claimant timely filed his claim for indemnity benefits within three years of his first receipt of indemnity from defendants as specified in LSA-R.S. 23:1221(3).
3. The trial court committed manifest and reversible error and issued a judgment in contravention of overwhelming medical and lay evidence by ruling that claimant failed to carry his burden of proof for entitlement to SEB benefits pursuant to LSA-R.S. 23:1221(3).
4. The trial court committed manifest error when it failed to recognize that defendant, LUBA’s handling of the claim was arbitrary and capricious when LUBA failed to both properly investigate the claim and award indemnity benefits when faced with uncontradicted disabling medical evidence that definitively linked claimant’s disability to his on-the job accident.

LEMIC assigns only one issue for our review as follows:

The trial court committed manifest error in holding that Charles Slocum’s October 1, 2007 accident did not cause any continuing disabilities or injuries and by holding it did not aggravate any preexisting conditions, thus improperly concluding that the injuries by Charles Slocum were due to a progressive condition resulting from the April 2, 2001 accident and not the responsibility of [LUBA].

APPLICABLE LAW

Standard of Review

In a workers’ compensation case, as in other cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. The two-part test for the appellate review of facts is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial coui’t’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the | fimanifest error standard demands great deference to the findings of the trier of fact, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, “[i]f the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. BE & K Const., 2001-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

Burden of Proof/Causation

The Louisiana Workers’ Compensation Act provides coverage to an employee for personal injury caused by an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme, as adopted by the legislature, and must establish that the accident was employment related, that the accident caused the injury, and that the injury caused the disability. Hirstius v. Tropicare Service, LLC, 2011-1080, p. 2 (La.App. 1 Cir. 12/21/11), 80 So.3d 1215, 1216.

Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Id. A worker’s testimony is sufficient to discharge the burden of proving an accident, provided that two elements are first satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances surrounding the alleged incident. Carter v. Lakeview Regional Medical Center, 2004-1794, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 686, 688.

“Accident” is defined in La. R.S. 23:1021(1) as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is 17more than simply a gradual deterioration or progressive degeneration.” Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88.

An employee in a workers’ compensation action has the burden of establishing a causal link between the accident and the subsequent disabling condition. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320, 324 (La.1985). Where, as here, the employee suffered from a preexisting medical condition, he may still prevail if he proves that the accident “aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed.” Id. In Walton, the Louisiana Supreme Court recognized the existence of a presumption to aid plaintiffs in eases involving a pre-existing condition:

In order for the employee to recover, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found. A claimant’s disability is presumed to have resulted from an accident, however, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and the disabling condition, ... or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.
Preexisting disease or infirmity of the employee does not disqualify a claim if the work-injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. Correlatively, when an employee proves that before the accident he had not manifested disabling symptoms, but that commencing with the accident the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition, the employee’s work injury is presumed to have aggravated, accelerated or combined with his preexisting disease or infirmity to produce his disability.

Walton, 475 So.2d at 324-325 (citations omitted).

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including | sboth lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Batiste v. Tenet Healthcare Corp., 2009-1192, p. 4 (La.App. 1 Cir. 2/12/10), 35 So.3d 352, 355, writ denied, 2010-0559 (La.5/7/10), 34 So.3d 864.

Indemnity Benefits

An employee seeking to recover indemnity benefits for a temporary or permanent total disability must prove by clear and convincing evidence that he is physically unable to engage in any gainful occupation, whether or not the same type of work he was engaged in at the time of the injury. La. R.S. 23:1221(1)(c) and (2)(c). To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, in other words, much more probable than not. Carter v. Williamson Eye Center, 2004-0527, p. 8 (La.App. 1 Cir. 2/11/05), 906 So.2d 503, 508. An employee is entitled to receive supplemental earnings benefits if he sustains a work-related Injury that results in his inability to earn ninety percent or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Lafleur v. Alec Elec., 2004-0003, p. 5 (La. App. 1 Cir. 12/30/04), 898 So.2d 474, 478, writs denied. 2005-0276, 2005-0277 (La.4/8/05), 898 So.2d 1287, 1288.

Statutory Penalties

Under the applicable statutory provisions of La. R.S. 23:1201(F), penalties and attorney fees are recoverable unless “the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201 F(2). A claim is reasonably controverted when the employer has sufficient factual and/or medical information to reasonably counter evidence presented by the claimant. Pitre v. Buddy’s Seafood, 2011-0175, p. 10 (La.App. 1 Cir. 8/16/12), 102 So.3d 815, 823, writ denied, 2012-2058 (La.11/16/12), 102 So.3d 41. A determination of whether an employer has failed to reasonably controvert a claim [ais a question of fact and is subject to the manifest error standard of review. Atwell v. First General Services, 2006-0392, p. 13 (La.App. 1 Cir. 12/28/06), 951 So.2d 348, 357, writ denied, 2007-0126 (La.3/16/07), 952 So.2d 699. The decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Frith v. Riverwood, Inc., 2004-1086, p. 12 (La.1/19/05), 892 So.2d 7, 15.

ANALYSIS

In the instant case, after hearing from the witnesses and considering the documentary evidence in the record, the OWC concluded that Mr. Slocum was within the course and scope of his employment with Northlake when he suffered work-related accidents on April 2, 2001, and October 1/2007. Following our exhaustive review of the record and exhibits in this matter, we are unable to say the OWC erred in determining that Mr. Slocum sustained these work-related accidents as defined in La.R.S. 23:1021(1). The OWC’s ruling is reasonable and supported by the record.

The next issue we must address is the OWC finding that Mr. Slocum’s claim for indemnity benefits against Northlake was prescribed. With regard to the applicable prescriptive periods, La. R.S. 23:1209(A) provides, as follows:

A. (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, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within three years from the date of the accident.
(4) However, in all cases described in Paragraph (3) of this Subsection, where the proceedings have begun after two years from the 110date of the work accident but within three years from the date of the work accident, the employee may be entitled to temporary total disability benefits for a period not to exceed six months and the payment of such temporary total disability benefits in accordance with this Paragraph only shall not operate to toll or interrupt prescription as to any other benefit as provided in R.S. 23:1221.

Mr. Slocum’s claim for TTD benefits arises under La. R.S. 23:1221(1), as follows:

(1) Temporary total.
(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

On appeal, Mr. Slocum argues that the essential question for this court to consider is whether the voluntary and admittedly erroneous payment of one week of TTD benefits to Mr. Slocum following the October 2007 incident triggered the prescriptive period in La. R.S. 23:1209(A). Mr. Slocum argues that he did not have a valid cause of action for TTD benefits related to his feet and legs at the time of the October 2007 incident as he was not disabled. Thus, Mr. Slocum maintains, the payment of one week of TTD benefits related to a heart and blood pressure exam did not trigger the prescriptive period enunciated in La. R.S. 23:1209(A).

We agree with Mr. Slocum’s argument that this one week payment of TTD benefits when there was in fact no disability does not operate to start the clock on prescription as it relates to Mr. Slocum’s claim for indemnity benefits against Northlake. However, our inquiry on the prescription issue does not end here. As correctly pointed out in brief by Northlake and LUBA, the underlying basis for the OWC’s conclusion that Mr. Slocum’s claim for indemnity benefits was prescribed was clearly not the one week payment of TTD benefits to Mr. Slocum in October 2007. Rather, the OWC found Mr. Slocum’s claim for TTD benefits against Northlake to be prescribed because the accident that caused the alleged disabling condition was the 2001 accident wherein Mr. Slocum’s foot was injured by the forklift blade. The OWC concluded that Mr. Slocum did not carry his burden of proof that he suffered any continuing or developing injury due to |nthe October 2007 electrical shock incident, nor did he prove that the electrical shock incident aggravated a pre-existing condition of his lower extremities.

Louisiana Revised Statutes 23:1209(A) provides that an injury not resulting at the time of, or developing immediately after, the accident is a developing injury. Generally speaking, development of the injury actually means development of the disability, and disability marks the time from which it is clear that the employee is no longer able to perform the duties of his or her employment in a satisfactory manner. Swearingen v. Air Products & Chemical, Inc., 481 So.2d 122, 124 (La.1986). The Louisiana Supreme Court has consistently held that an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Winford v. Conerly Corp., 2004-1278, p. 5 (La.3/11/05), 897 So.2d 560, 564; Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859, p. 4 (La.4/10/95), 652 So.2d 1323, 1326.

The jurisprudence offers guidelines for establishing when a developing injury has reached the disabling point for purposes of applicability of this exception to the one-year prescriptive period. In the case of the retained employee who continues to work with symptoms that might have been held to be disabling (if litigated), but that did not become manifestly disabling to the employee until he was physically forced to quit his work, the disability does not become manifest or “develop” until that date, because to select an earlier date would be dealing in conjecture. In cases of this nature, the policy is to encourage rather than penalize an employee, who continues working despite a work-related medical condition, which is painful, but not then disabling. Pitre, 2011-0175 at 8-9, 102 So.3d at 822.

li2In its written reasons for judgment rendered on February 15, 2012, the OWC thoroughly addressed the issues now raised by Mr. Slocum and LEMIC in the present appeals:

Claimant Charles Slocum began work in June 1996 with employer Northlake Driveline (Northlake) as a welder and machinist.
The heart of this case involves the same employer but two separate work-related work accidents with different insurers for each accident. The first accident was a crushing injury to claimant’s [right] foot when the insurer was LEM-IC Ins. Co. (LEMIC) on April 2, 2001. The second accident was an electrical shock when the insurer was LUBA Casualty Ins. Co. (LUBA) on October 1, 2007.
Claimant was unable to work for a period of time due to the crushing accident in 2001. LEMIC paid medical bills and indemnity benefits. Subsequently, claimant returned to work in a modified position. Claimant continued to work this same modified job until he eventually stopped working for Northlake in 2009.
Claimant suffered another accident in 2007 when he suffered a work-related electrical shock. He was sent to the hospital and was found not to have any continuing medical problems nor did claimant make any claims that he did. Claimant was paid one week of TTD indemnity. Defendant Northlake’s exception of No Cause of Action and Prescription as to TTD was heard on October 8, 2010 and an order granting these exceptions was signed on October 12, 2010. In less than seven days, claimant returned to work.
Claimant continued to work for Northlake until January of 2009 when he testified that he could no longer perform the work due to disability in his extremities — left and right legs and feet.
No evidence presented by any doctor totally disables claimant from working at all due to any reason. After the 2007 accident, claimant admits to working light duty and the employer accommodated his restrictions regardless of the cause of them.
From the crushing injury in 2001 until before the electrical shock in 2007, claimant’s complaints and complications due to the crushing injury continued to escalate as the years went on. The medical records are detailed and all admitted into evidence. In 2007 before the October 1, 2007 electrical shock, claimant saw various treating physicians for his lower extremities in January, February, April, May, June, August and September. Then on October 1, 2007 he suffered the electrical shock. Claimant’s problems were continuing to get progressively worse before the electrical shock.
Dr. Domangue, claimant’s treating pain management physician, opined that the electrical shock aggravated the preexisting injury because it was only after the electrical shock that claimant was referred to him for pain management by his physician Dr. Hake. However, this basis does not carry claimant’s burden of proof because almost two years had passed between the occurrence of the electrical shock and the referral to pain management.
| ]SThe OWC Court appointed a [podiatrist] and neurologist to examine and opine on claimant’s physical complaints and conditions. Claimant had numerous treating physicians and defendants had several second medical opinion physicians.
Based on all the evidence presented, claimant did not carry his burden of proof that the electrical shock on October 1, 2007 caused any continuing disabilities or injuries nor did it aggravate any pre-existing conditions. Claimant did not suffer a “developmental injury” due to the electrical shock of October 1, 2007. The complaints by claimant were due to the progressive condition as a result of the injury of April 2, 2001.
All issues herein were reasonably controverted. Hence no penalties and no attorney fees were assessed.

As this court has previously noted, the determinations by the OWC as to whether Mr. Slocum discharged his burden of proof was a factual determination that will not be disturbed on review in the absence of manifest error. The OWC concluded that the medical evidence showed that Mr. Slocum’s complaints were not due to the electrical shock of October 1, 2007, but rather due to the progressive condition as a result of the April 2, 2001 injury to his right foot. Based upon a complete review of the record, we decline to say that the OWC was clearly wrong in finding that Mr. Slocum did not suffer a disability as a result of the 2007 accident, Mr. Slocum was clearly not in “good health” prior to the 2007 accident such that he would be entitled to the presumption of disability simply by virtue of symptoms manifesting themselves after the accident. See Walton, 475 So.2d at 324. There is a reasonable factual basis in the medical evidence in the record to support the OWC’s finding that Mr. Slocum’s complaints following the 2007 accident were not caused by the 2007 accident, but rather were related to the 2001 accident and his continuing medical problems that persisted as a result of that incident. Thus, while Mr. Slocum proved a work-related accident occurred, he failed to prove that the accident caused an injury, which in turn caused a disability. See Hirstius, 2011-1080 at 2, 80 So.3d at 1216. Having failed in his burden of proof, Mr. Slocum’s claim for workers’ compensation benefits must also fail. Accordingly, we find no error in the OWC judgment and affirm in all respects.

| UDECREE

For the above and foregoing reasons, the February 15, 2012 judgment of the OWC is affirmed. All costs associated with this appeal are assessed equally between the two appellants, Charles Slocum and LEMIC.

AFFIRMED.

McDONALD, J., concurs.


author: HIGGINBOTHAM, J.

text:
    Milton HOLT, Individually and on behalf of his Minor Children, Ciara Holt and Jase Holt, and Amy Holt, Individually and on behalf of her Minor Children, Mariah Miller and Tristan Miller v. Tammy M. TORINO and Direct General Insurance Company of Louisiana and RPM Pizza, LLC and Domino’s Pizza, LLC.
    No. 2012 CA 1579.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Jason L. Melancon, Robert C. Rimes, Baton Rouge, LA, for Plaintiff-Appellants, Milton and Amy Holt.
    Nicole M. Boyer, Metairie, LA, for Defendant-Appellees, RPM Pizza, LLC and Domino’s Pizza, LLC.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   HIGGINBOTHAM, J.

| ;>This suit in tort for damages arises out of an automobile accident that occurred between plaintiff, Milton Holt, and defendant, Tammy M. Torino. This appeal is from the granting of a summary judgment in favor of RPM Pizza, LLC (RPM Pizza) and Domino’s Pizza LLC (Dominos), in which the trial court found that defendant Torino was not in the course and scope of her employment with RPM Pizza and Do-minos at the time of the accident. Plaintiffs, Milton Holt, individually and on behalf of his minor children, Ciara Holt and Jase Holt, and Amy Holt individually and on behalf of her minor children, Mariah Miller and Tristan Miller, collectively “the Holts,” appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 11, 2009, Torino, an employee of RPM Pizza, a franchisee of Dominos, clocked in for her shift at approximately 3:00 p.m. She left early from her shift “around 7:25 p.m.” to go home because she was feeling tired. Around 8:20 p.m. while driving home, she crossed the center line into the other lane of traffic on North Flannery Road in Baton Rouge, Louisiana and struck head-on a vehicle driven by Milton Holt. As a result of the accident, the Holts suffered damages. The Holts filed suit on December 3, 2010, naming as defendants: (1) Tammy M. Torino; (2) Direct General Insurance Company of Louisiana; (3) RPM Pizza, as Tori-no’s employer; (4) Dominos, as franchisor of RPM Pizza; and (5) State Farm Mutual Automobile Insurance Company, by amended petition, as underinsured motorist insurer for Milton Holt. Plaintiffs alleged that at the time of the accident Torino was in the course and scope of her employment with RPM Pizza and Domi-nos.

|sOn February 13, 2012, RPM Pizza and Dominos filed a motion for summary judgment, which requested that the claims against them be dismissed because Torino was not employed by Dominos and RPM Pizza owed no duty to the plaintiffs. Plaintiffs filed a counter motion for partial summary judgment on April 2, 2012, requesting that the trial court find Torino was in the course of her employment at the time of the accident. On May 31, 2012, judgment was signed granting summary judgment in favor of and dismissing all claims against RPM Pizza and Domi-nos, and denying plaintiffs’ motion for partial summary judgment.

LAW AND ANALYSIS

Plaintiffs contend that the trial court erred in granting RPM Pizza and Domino’s motion for summary judgment and in denying plaintiffs’ counter motion for summary judgment on the issues of RPM Pizza’s negligence and vicarious liability and Domino’s negligence.

A. Summary Judgment Law

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. Granda v. State Farm Mutual Insurance Company, 2004-2012 (La.App. 1st Cir.2/10/06), 935 So.2d 698, 701. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

On a motion for summary judgment, the initial burden of proof is on the moving party. However, if the moving party will not bear the burden of proof at trial on the matter before the court, the moving party’s burden of proof on the [ ¿motion is satisfied by pointing 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 non-moving party must produce factual support sufficient to establish that it will be able to satisfy its eviden-tiary burden of proof at trial. Failure to do so shows that there is no genuine issue of material fact. La.Code Civ. P. art. 966(C)(2). Accordingly, 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. Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La.6/30/00), 764 So.2d 37, 40; see also La.Code Civ. P. art. 967(B).

Summary judgments are reviewed on appeal de novo. Granda, 935 So.2d at 701. Thus, this court uses the same criteria as the trial court in determining whether summary judgment is appropriate — whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002, 1006. A “genuine issue” is a “triable issue,” that is, an issue on which reasonable persons could disagree. If, on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 2006-1558 (La.App. 1st Cir.5/4/07), 961 So.2d 404, 408, ivrit denied, 2007-1123 (La.9/21/07), 964 So.2d 333.

A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 2005-1233 (La.App. 1st Cir.6/9/06), 938 So.2d 766, 769. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can only be seen in light |sof the substantive law applicable to the case. Dickerson v. Piccadilly Restaurants, Inc., 99-2633 (La.App. 1st Cir.12/22/00), 785 So.2d 842, 844.

B. Vicarious Liability

Under Louisiana law, an employer is answerable for the damage occasioned by its servant in the exercise of the functions in which the servant is employed. Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, 510. La. Civ.Code art. 2320. Specifically, an employer is liable for its employee’s torts committed if, at the time, the employee was acting within the course and scope of his employment. Id.; Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996. An employee is acting within the course and scope of his employment when the employee’s action is “of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.” Timmons, 761 So.2d at 510.

Generally, courts consider four factors when assessing vicarious liability, including whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during working hours; and (4) occurred on the employer’s premises. Baumeister, 673 So.2d at 996-997; see also LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). It is not necessary that each factor is present in each case, and each case must be decided on its own merits. Ellender, 2006-2005 (La.App. 1st Cir.6/15/07), 965 So.2d at 901; Baumeister, 673 So.2d at 997. The determinative question is whether the employee’s tortious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest. Ellender, 965 So.2d at 901; Richard v. Hall, 2003-1488 (La.4/23/04), 874 So.2d 131, 139.

| fiIf the purpose of serving the master’s business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service. The scope of risk attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks. Ellender, 965 So.2d at 901-902; Richard, 874 So.2d at 138.

Each case, then, requires a factual analysis individual in nature, and prior cases serve merely as illustrations of analogous situations and not as hard-and-fast rules. There are, however, some generally accepted jurisprudential principles followed by appellate courts. First, courts have fairly consistently held that going to and from work is not an employment function for which the employer should be held liable. Brown v. Wolfe, 525 So.2d 355, 356 (La.App. 1st Cir.), writ denied, 530 So.2d 569 (La.1988). Further, an employer is not ordinarily liable for an employee’s torts committed while going to and from lunch. McGee v. State Farm, Mutual Automobile Insurance Company, 428 So.2d 1287 (La.App. 3rd Cir.1983), and Laird v. Travelers Indemnity Company, 236 So.2d 561 (La.App. 4 Cir.1970).

In this case, the plaintiffs will have the burden of proving that Torino was in the course and scope of her employment with RPM Pizza at the time of the accident. Thus, on the motion for summary judgment, RPM Pizza and Dominos bore the burden of pointing out an absence of factual support for the plaintiffs’ claim that Torino was in the course and scope of her employment at the time of the accident.

RPM Pizza and Dominos in support of their motion for summary judgment introduced the following: (1) the deposition of Torino, which included the accident report and payroll showing when she clocked in and out; (2) the affidavit of Mark Murret, who is employed as the director of claims and securities for RPM Pizza; and (3) the affidavit of Joseph P. Devereaux, who is employed as the director of | franchise services for Dominos. According to the payroll document and the testimony of Torino, she was clocked out and on her way home at the time of the accident. Thus, RPM Pizza and Dominos, demonstrated that To-rino was not on the employer’s premises, she was not on the clock, and she was not doing anything reasonably incidental to performance of her employment duties, pointed out an absence of factual support for the plaintiffs’ claim that Torino was in the course and scope of her employment at the time of the accident. Therefore, plaintiffs were required to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial.

In opposition to the motion for summary judgment and in favor of the counter motion for summary judgment, plaintiffs attached the deposition of Torino and the deposition of Jana D. Carlisle, an employee of RPM Pizza and the manager who clocked Torino out on the night of the accident.

Plaintiffs contend that there are genuine issues of material fact regarding the negligence of RPM Pizza, because RPM Pizza’s manager had “actual knowledge that Tori-no was too impaired to drive” and the manager required her to drive her personal car home instead of obtaining a ride. Plaintiffs argue that Torino’s manager directly instructed her to take her car home instead of getting a ride so she could return to work later and that the request was for the benefit of the employer’s business objectives.

At the time of the accident, Torino was thirty years old. In her deposition, Torino stated she was “really exhausted” and her co-workers “noticed [she] was tired and wanted [her] to go home and get some rest.” She said she was going to find a ride but was told “Just go ahead and go home” and “go get some rest because we’ll call you in later. We’ll probably need you to come back to work later.” Torino said “it wasn’t a fight or anything just a couple of words back and forth.” According to the deposition testimony of Carlisle, the manager, on the | anight of the accident, Torino came to her and told her she wasn’t feeling that well and Carlisle told her “let’s check you out, I will let you go home.” Carlisle did not recall Torino looking sleepy. When asked if she told Torino to rest because they may need her to come back, Carlisle stated, “If she was feeling better, I probably did tell her that. I don’t remember that, but I probably did.” Carlisle did not recall telling Torino not to get a ride and to drive herself home because she would need her vehicle to come back later in the evening.

Torino described how she felt on the way home stating: “I felt myself really tired and I was — I was going to pull over, but I was not very far from being home and I said I’m just going to make it ... you know? I was going to try to make it.” Torino could not remember specifically how the accident happened, but thought she swerved into other lane because she was either dozing off or turning around to adjust a piece of cardboard that was “flapping” in her driver’s side back window.

Based on our de novo review of the evidence offered in support of and in opposition to the motions for summary judgment, we find that no genuine issues of material fact remain as to whether Torino was acting in the course and scope of her employment with RPM Pizza at the time of the accident. Plaintiffs failed to present sufficient evidence to prove that they would be able to meet their evidentiary burden at trial. On the night of the accident, Torino, an adult employee who was clocked out and on her way home, was in the best position to determine whether she was able to drive home. Torino admitted that she considered pulling over but made a decision not to. Further, we find no duty on the part of RPM Pizza to public highway users to protect them from potential negligent driving of an off-duty employee.

Torino’s tortious conduct was not so closely connected in time, place, and causation to her employment duties as to be regarded as. a risk of harm fairly | ^attributable to the employer’s business. She was on her way home. Her manager stating that they may need her later in the night was not sufficient authority over To-rino to consider her in the course and scope of her employment.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of and dismissing all claims against defendants, RPM Pizza and Dominos, and denying summary judgment in favor of plaintiffs. All costs of the appeal are assessed to plaintiffs.

AFFIRMED.

      . Plaintiffs' claims against Torino and Direct General Insurance Company were dismissed by judgment signed on March 5, 2011.

      . On April 11, 2012, State Farm Mutual Automobile Company filed a brief in opposition to the motion for summary judgment filed by RPM Pizza and Dominos.

      .We reviewed the denial of plaintiffs' motion for summary judgment under our supervisory jurisdiction. See Hood v. Cotter, 2008-0215 (La. 12/2/08), 5 So.3d 819, 823-824.

      . Because we found no liability on the part of RPM Pizza, we further find no negligence on the part of Domino’s as franchisor.


text:
    Sidney WILLIAMS v. Brian HARDING Individually, and as in Employment with Louisiana State Police, and Louisiana State Police.
    No. 2012 CA 1595.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Joslyn R. Alex, Breaux Bridge, LA, for Plaintiff-Appellant Sidney Williams.
    James D. “Buddy” Caldwell, Attorney General, Darrell J. Saltamachia, Special Asst. Attorney General, Baton Rouge, LA, for Defendants-Appellees State of Louisiana, through the Louisiana State Police and Trooper Brian Harding.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   HIGGINBOTHAM, J.

12Plaintiff, Sidney Williams, appeals the grant of summary judgment in favor of defendants, Brian Harding, individually, and in his capacity as a Louisiana State Trooper, and the State of Louisiana through the Louisiana State Police (“State Police”). Finding no error, we affirm.

BACKGROUND

Mr. Williams filed suit against Trooper Harding, individually and in his official capacity as a state trooper, and the State Police, alleging that Trooper Harding used excessive force when he shot Mr. Williams during a routine traffic stop from which Mr. Williams attempted to flee. Mr. Williams also alleged that the State Police inadequately trained Trooper Harding. Trooper Harding and the State Police answered the lawsuit, denying all of Mr. Williams’s allegations and asserting that Trooper Harding acted lawfully and in self-defense when he shot Mr. Williams. Trooper Harding and the State Police also specifically pled the defenses of discretionary and qualified immunity.

This case began with a traffic stop on the night of February 17, 2009, in Houma, Louisiana. The encounter was recorded by Trooper Harding’s dash-cam video in his marked State Police unit. While on duty and patrolling, Trooper Harding stopped Mr. Williams’s vehicle, because he observed Mr. Williams driving in a careless, erratic, and suspicious manner, which he thought was an indication that the driver could be impaired. Trooper Harding quickly ascertained that Mr. Williams was driving with an expired driver’s license and tag, and he immediately noticed that Mr. Williams smelled of alcohol and marijuana. Although Mr. Williams appeared nervous as he attempted to explain his situation, he answered Trooper Harding’s questions, and he cooperated by producing an open, half-empty bottle of beer that he had been drinking while driving. | .¡However, Mr. Williams refused to give Trooper Harding what appeared to be a marijuana butt that he was holding in his hand.

While Trooper Harding was requesting that the marijuana be handed over, Mr. Williams suddenly fled into a dark, vacant field located adjacent to the parking lot area where the traffic stop occurred. Once Mr. Williams began running, the encounter was no longer within the range of the dash-cam video camera lens mounted on Trooper Harding’s vehicle; however, some aspects of the foot pursuit were audio-recorded. As Trooper Harding chased Mr. Williams, he verbally commanded Mr. Williams to stop before he deployed his police-issued taser, which slowed, but did not stop, Mr. Williams. Trooper Harding eventually tackled Mr. Williams, in an attempt to get control of him; nevertheless, Mr. Williams fought and continued to resist. During their confrontation, Trooper Harding inadvertently dropped his taser on the ground. Mr. Williams picked it up and immediately used it in a “drive stun” maneuver by placing it directly on Trooper Harding’s neck.

The taser shot incapacitated Trooper Harding, making it difficult for him to breathe. He temporarily lost all feeling and muscle control from the waist up, became very dizzy, and was on the verge of passing out. Mr. Williams did not leave the scene while Trooper Harding was debilitated; instead, Trooper Harding felt Mr. Williams on top of him, attempting to pull his service revolver out of its holster. In fear of losing his life, Trooper Harding rolled on his side in an effort to protect his firearm while simultaneously kicking Mr. Williams off of him. Convinced that Mr. Williams was trying to take his revolver to shoot him, Trooper Harding managed to hold Mr. Williams off of him with his leg while he pulled his revolver and fired one shot into Mr. Williams’s left flank/abdomen. Although Mr. Williams fell after being shot, he persisted in his resistance as |/Trooper Harding handcuffed him. After backup arrived, Trooper Harding and Mr. Williams were both transported to a hospital for treatment.

Mr. Williams was eventually convicted and sentenced for seven felonies, including aggravated battery, attempt to disarm a police officer, and possession with intent to distribute cocaine and other illegal narcotic painkillers, in connection with the confrontation with Trooper Harding. The validity of Mr. Williams’s convictions has not been overturned or modified on appeal, expunged, or called into question in any way. Additionally, Trooper Harding was cleared by the State Police of any wrong doing arising out of the incident, including the discharge of his firearm while in the line of duty. Even so, Mr. Williams filed this lawsuit for damages the same month he was convicted, claiming that his constitutional rights were violated because he was the victim of excessive and unreasonable force at the hands of Trooper Harding. Mr. Williams alleged that Trooper Harding was inadequately trained for this type of situation that only escalated when Trooper Harding pursued him into the vacant field. Trooper Harding and the State Police answered the lawsuit, generally denying all of Mr. Williams’s allegations and raising the affirmative defenses of self-defense, qualified/discretionary immunity, and estoppel from a collateral attack on the underlying facts of the final judgments of conviction that gave rise to Mr. Williams’s claims.

Trooper Harding, individually and in his capacity as a state trooper, along with the State Police, filed a motion for summary judgment on the issue of liability, maintaining that Trooper Harding’s use of force was reasonable and justifiable, as it was done in self-defense, that Mr. Williams was legally barred from collaterally attacking his convictions, and further asserting the defense of qualified/discretionary immunity. After a hearing, where counsel for Mr. Williams waived his appearance and/or forfeited his right to oral argument, the | strial court granted the motion for summary judgment, and dismissed Mr. Williams’s petition with prejudice. Mr. Williams appealed, arguing that the trial court erred in granting the summary judgment in favor of Trooper Harding and the State Police.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue, of material fact and whether the movant is entitled to judgment as a matter of law. Cutsinger v. Redfern, 2008-2607 (La.5/22/09), 12 So.3d 945, 949. Judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

The initial burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. 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, and the mover is entitled to summary judgment. The adverse party may not rest on the mere allegations or denials of his pleading. His response, by affidavits or otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. See La.Code Civ. P. art. 966(C)(2); La.Code Civ. P. art. 967(B); Robles v. ExxonMobile, 2002-0854 (La. App. 1st Cir.3/28/03), 844 So.2d 339, 341.

| (¡DISCUSSION

Mr. Williams’s lawsuit alleges general claims for damages under 42 U.S.C. § 1983 and state law for personal injury arising out of a Fourth Amendment excessive force claim against Trooper Harding and the State Police. Trooper Harding and the State Police moved for summary judgment on the grounds that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), barred Mr. Williams’s claims, and that Trooper Harding and the State Police are entitled to qualified/discretionary immunity, pursuant to La. R.S. 9:2798.1.

In Heck, 512 U.S. at 486-87, 114 S.Ct. at 2372, the Supreme Court held that a plaintiff who has been convicted of a crime cannot bring a § 1983 claim challenging the constitutionality of his conviction unless that conviction has been reversed, expunged, declared invalid, or called into question by federal habeas corpus. Heck bars claims for harm caused by actions whose unlawfulness would render a conviction or sentence invalid. Id. Thus, unless the conviction has been overturned, a plaintiff cannot bring a § 1983 claim if prevailing on that claim would imply that his conviction was invalid. Arnold v. Town of Slaughter, 100 Fed.Appx. 321, 323 (5th Cir.2004), cert. denied, 543 U.S. 966, 125 S.Ct. 429, 160 L.Ed.2d 336 (2004). A Louisiana conviction for aggravated battery of a police officer is a conviction that prevents a plaintiff from bringing an excessive force claim in connection with the incident, because a finding that the officer used excessive force would necessarily mean that the plaintiff was somehow justified in the battery, which would undermine the conviction See Id. See also Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir.1996).

Despite the jury’s criminal convictions of Mr. Williams for aggravated battery and attempt to disarm a police officer Mr. Williams’s civil lawsuit contends that he was not engaged in any aggressive behavior towards Trooper Harding, that he was unarmed and was not attempting to gain control over |7Trooper Harding’s firearm, and that Trooper Harding’s use of deadly force was unreasonably excessive. Thus, Mr. Williams’s lawsuit squarely challenges the jury’s factual determinations in his criminal trial that underlies his convictions for aggravated battery and attempt to disarm a police officer. If Mr. Williams were to prevail, he will have established that his criminal convictions lack any basis.

Jurisprudence clearly holds that civil suits are not allowed to collaterally attack previous criminal convictions. Therefore, since this lawsuit challenges the validity of Mr. Williams’s convictions, it is the type of excessive force claim that is barred by Heck and its progeny. See Arnold, 100 Fed.Appx. at 324-325; Hudson, 98 F.3d at 872-873. Furthermore, since Mr. Williams did not introduce any evidence to support or prove that his convictions or sentences have been reversed on direct appeal, expunged by executive order, or declared invalid by any tribunal authorized to make such a determination, the trial court correctly dismissed Mr. Williams’s claims. We find that Trooper Harding and the State Police were entitled to summary judgment as a matter of law on the Fourth Amendment excessive force claims.

Our review of Louisiana case law reveals that the Heck rationale is equally applicable to Mr. Williams’s state law claims for excessive force that necessarily attack the validity of his underlying convictions. Thus, due to the Heck bar to this civil action, there is no underlying tortious act on the part of Trooper Harding, because as a matter of law (due to his conviction for aggravated battery upon Trooper Harding), Mr. Williams cannot show that Trooper Harding used |sexcessive force. Likewise, the reasoning of Heck precludes Mr. Williams’s ability to prove vicarious liability on the part of the State Police for excessive force. Furthermore, Mr. Williams failed to produce any factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof regarding inadequate policies or training on the part of the State Police. Mr. Williams may not rest on the mere allegations of his pleadings. La.Code Civ. P. art. 966(C)(2). Thus, there is no genuine issue of material fact and all of Mr. Williams’s state law claims were properly dismissed by summary judgment. See Penn v. St. Tammany Parish Sheriff’s Office, 2002-0893 (La.App. 1st Cir.4/2/03), 843 So.2d 1157, 1160-1161. Because of our holding, we pretermit discussion of the affirmative defenses of qualified/discretionary immunity.

CONCLUSION

For the outlined reasons, we affirm the summary judgment granted in favor of defendants-appellees, Brian Harding, individually and in his official capacity as a Louisiana State Trooper, and the State of Louisiana through the Louisiana State Police, dismissing all of Mr. Williams’s claims. All costs of this appeal are to be paid by plaintiff-appellant. Sidney Williams.

AFFIRMED.

      . See Boudreaux v. State, Dept. of Public Safety, 479 So.2d 416, 417 (La.App. 1st Cir.1985); Duke v. State, Dept. of Public Safety, 424 So.2d 1262, 1264 (La.App. 3d Cir. 1982); and Roberson v. Town of Pollock, 2005-332 (La. App. 3d Cir.11/9/05), 915 So.2d 426, 433-434 (in dissent), writ denied, 2006-0213 (La.4/24/06), 926 So.2d 550. See also Sheppard v. City of Alexandria, 2012 WL 3961820, p. 2 (W.D.La.9/10/12)(unpublished) (following Heck by not allowing state law claims to withstand summary judgment if the claims challenge the validity of the underlying criminal conviction); Bates v. McKenna, 2012 WL 3309381, p. 7 (W.D.La.8/13/12)(unpublished) (citing the Heck bar to a state law vicarious liability claim for unlawful arrest and excessive force, as well as the plaintiff's claims against the arresting officer); Anderson v. City of Minden, 2009 WL 1374122, pp. 5-6 (W.D.La.5/15/09)(unpublished) (applying the Heck standard to state law civil actions and precluding such action if it would invalidate a criminal conviction).

      . See Restrepo v. Fortunato, 556 So.2d 1362, 1363 (La.App. 5th Cir.), writ denied, 560 So.2d 11 (La. 1990), holding that if a plaintiff is convicted of a crime for which he was arrested and indicted, then he has no cause of action for false imprisonment as a matter of law; and Rabalais v. Blanche, 524 So.2d 772, 773 (La.App. 3d Cir. 1988), holding that an action for malicious prosecution could not be maintained when the plaintiff was convicted for an offense for which she was arrested.
        See also O’Brien v. Town of Glenmora, 2008-309 (La.App. 3d Cir. 11/5/08), 997 So.2d 753, 756, holding that a plaintiffs claims against the arresting officer and town were precluded by his conviction of the crime for which he was arrested.

      . We distinguish Penn, 843 So.2d at 1159, in part, from the facts of this case because in Penn the plaintiff's excessive force claim was independent of his conviction for battery committed upon the police officer. In the case sub judice, Mr. Williams’s excessive force claim is inextricably related to the viability of his underlying conviction for aggravated battery.


author: HIGGINBOTHAM, J. WHIPPLE, C.J.,

text:
    Denise BREAZEALE and Thomas Breazeale, individually, and on behalf of the Minor Child, Thomas Breazeale, Jr. v. T.T. and C.T., individually, and as Parents and Legal Guardian of J.T., and ABC Insurance Company.
    No. 2012 CA 1703.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.
    Rehearing Denied June 28, 2013.

      Allain F. Hardin, Eric M. Daigle, New Orleans, LA, for Plaintiffs-lst Appellants, Denise Breazeale and Thomas Breazeale, individually, and on behalf of the minor child, Thomas Breazeale, Jr.
    Wayne R. Maldonado, Matthew J. Un-garino, Albert D. Giraud, Metairie, LA, Michael J. Bourquard, Slidell, LA, for Defendants-Appellees, T.T. and C.T., individually, and as parents and legal guardian of J.T.

      David S. Pittman, Harry P. Pastuszek, Jr., Faith E. Richard, Covington, LA, for Intervenor-2nd Appellant, St. Tammany Parish School Board.
    Walker K. Jamison, III, Marjorie B. Breaux, Lafayette, LA, for Defendant>-Ap-pellee, Bankers Specialty Insurance Company.
    Before: WHIPPLE, C.J., McClendon, and Higginbotham, jj.

      . We have altered the caption, using initials in lieu of names of defendants-appellees, to protect the identity of the minor, child involved in this appeal.

   HIGGINBOTHAM, J.

laThis is an action for personal injuries sustained by a special-education teacher, who was allegedly attacked by a ten-year-old special-education student. The teacher seeks recovery for the negligent and intentional acts of the minor child’s parents and the minor, for whom the parents are vicariously liable. The trial court granted summary judgment in favor of the parents’ homeowner’s insurer based upon an intentional act exclusion contained in the homeowner’s policy. For the following reasons, we affirm.

FACTS

Denise Breazeale and her husband, Thomas Breazeale, both individually and on behalf of their minor child, Thomas Breazeale, Jr., (“the Breazeales”), plaintiffs herein, filed the instant lawsuit seeking to recover damages for personal injuries allegedly sustained by Ms. Breazeale when she was physically assaulted by J.T., a ten-year-old autistic student. The incident happened at the Lake Harbor Middle School in Mandeville, Louisiana, on August 26, 2010. J.T.’s parents, T.T. and C.T., both individually, and as the parents and legal guardians of J.T., were named as defendants, together with Bankers Specialty Insurance Company (“Bankers”), in its capacity as the homeowner’s insurer of J.T.’s parents. The St. Tammany Parish School Board (“School Board”) intervened in the lawsuit to recover workers’ compensation benefits and medical expenses paid to, and on behalf of, Ms. Breazeale, adopting all allegations of the Breazeales’ petition for damages.

|4In the petition, Ms. Breazeale alleged that J.T.’s parents were vicariously and/or strictly liable for the violent actions of their minor child, who injured Ms. Breazeale by hitting, kicking, scratching, pulling, grabbing, and pushing her into the wall and floor while at school, causing her physical and emotional injuries. The petition alleges that J.T.’s actions constituted negligence, and/or alternatively, an intentional tort. Additionally, the petition alleges that J.T.’s parents were negligent in failing to obtain proper treatment, programs, and medication for J.T., failing to warn of J.T.’s propensity for physical contact, and failing to keep J.T. home from school when he was agitated.

Initially, on June 28, 2011, J.T.’s parents and Bankers filed a joint answer, generally denying all of the Breazeales’ allegations, except to admit that Bankers issued a policy of insurance that was the best evidence of its contents, terms, and limitations. J.T.’s parents and Bankers also served initial discovery requests on the Breazeales. But then on August 8, 2011, after filing a motion and order to substitute separate counsel of record, Bankers filed a supplemental and amending answer solely on its behalf, asserting that the policy of insurance issued to J.T.’s parents excluded coverage for intentional acts. Bankers filed a similar response to the School Board’s petition for intervention, asserting the coverage defense. J.T.’s parents filed a separate answer to the School Board’s intervention on August 18, 2011, the same day that Bankers issued, by certified mail, a reservation-of-rights letter to J.T.’s parents. The letter advised J.T.’s parents that Bankers would continue to investigate coverage issues pursuant to a reservation of rights, because some of the lawsuit’s allegations may not meet policy definitions and some policy exclusions may apply.

Thereafter, Bankers filed a motion for summary judgment on September 21, 2011. Bankers sought dismissal on the ground that the homeowner’s insurance policy issued to J.T.’s parents excludes from coverage any liability arising from the | ^intentional acts on the part of an insured (the “intentional acts exclusion”), including the related claim of the School Board for recovery of workers’ compensation and medical benefits paid to or on behalf of Ms. Breazeale. In support of its motion, Bankers attached a certified copy of the insurance policy as an exhibit, with references to the policy’s endorsement that modified the intentional acts exclusion. Bankers also attached excerpts from Ms. Breazeale’s deposition, showing that J.T.’s ten-minute attack should be characterized as an intentional act, which is specifically excluded by the policy.

J.T.’s parents opposed Bankers’ motion for summary judgment, arguing that by initially answering the Breazeales’ lawsuit jointly, on behalf of Bankers and J.T.’s parents, Bankers conduct resulted in a waiver of coverage defenses and created a conflict between J.T.’s parents and their attorneys, who initially represented both Bankers and J.T.’s parents. In support of their opposition, J.T.’s parents attached the reservation-of-rights letter they received from Bankers, affidavits by J.T.’s parents, and a letter from the initial counsel of record informing J.T.’s parents of the insurance coverage issue. Alternatively, J.T.’s parents argued that Bankers’ intentional acts exclusion contravenes the public policy of the State of Louisiana. J.T.’s parents cited a directive issued by the Commissioner of Insurance on June 9, 2000, known as Directive Number 152, which they attached to their opposition.

The Breazeales also opposed Bankers’ motion for summary judgment, for the same reasons urged by J.T.’s parents, i.e., that the intentional acts exclusion is against Louisiana’s public policy, and that Bankers waived its coverage defense by not properly advising, notifying, and protecting the interests of its insureds. The Breazeales did not offer any evidence in support of their opposition.

After a hearing, the trial court took the matter under advisement before issuing reasons for judgment on May 11, 2012. The trial court signed a judgment |fion May 31, 2012, granting summary judgment in favor of Bankers and dismissing all of the Breazeales’ claims, as well as the claims of the School Board, against Bankers. J.T.’s parents did not file an appeal, but the Breazeales and the School Board both appealed. Essentially, both appellants argue that the trial court erred in granting summary judgment in favor of Bankers, because Bankers knowingly relinquished and waived its right to deny coverage to its insureds when it initially defended the lawsuit without retaining conflict counsel for J.T.’s parents. Additionally, the Breaz-eales assert that the trial court erred in failing to find that the intentional acts exclusion in the Bankers’ policy contravenes the public policy of the State of Louisiana and that it violates a directive of the Commissioner of Insurance.

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. Johnson v. Evan Hall Sugar Co-op., Inc., 2001-2956 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover Is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B)(2). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338 (La.App. 1st Cir.2/14/03), 845 So.2d 498, 501-502.

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 17there 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); Robles v. ExxonMobile, 2002-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

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. Allen v. State ex rel. Ernest N. Morial—New Orleans Exhibition Hall Authority, 2002-1072 (La.4/9/03), 842 So.2d 373, 377. 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 the case. Foreman v. Danos and CurOle Marine Contractors, Inc., 97-2038 (La. App. 1st Cir.9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637. A summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Westerfield v. LaFleur, 493 So.2d 600, 605 (La.1986). An insurer seeking to avoid coverage through summary judgment must prove that some exclusion applies to preclude coverage. Jackson v. Frisard, 96-0547 (LaApp. 1st Cir.12/20/96), 685 So.2d 622, 629, units denied, 97-0193, 97-0201 (La.3/14/97), 689 So.2d 1386, 1387.

|RLAW AND ANALYSIS

Waiver

The Breazeales and the School Board have both assigned error to the trial court’s grant of summary judgment, arguing that Bankers waived its right to deny coverage to J.T.’s parents because Bankers initially defended the lawsuit without retaining separate conflict counsel for J.T.’s parents. The Breazeales, the School Board, and J.T.’s parents all raised the waiver issue in their oppositions to Bankers’ motion for summary judgment. But the trial court’s reasons for judgment and the summary judgment were silent with respect to waiver. Ordinarily, silence in a written judgment as to any matter that was placed before the trial court is deemed a rejection of that demand or issue. Hayes v. Louisiana State Penitentiary, 2006-0553 (La.App. 1st Cir, 8/15/07), 970 So.2d 547, 554 n. 9, writ denied, 2007-2258 (La.1/25/08), 973 So.2d 758. Thus, we deem the trial court’s silence on the waiver issue as a denial of that contention.

J.T. and his parents, as the insureds under Bankers’ policy, are actually the most appropriate parties to complain about the trial court’s denial of the waiver issue, but they have not filed an appeal from the trial court’s grant of summary judgment in favor of Bankers. However, we note that under Louisiana’s direct action statute, La. R.S. 22:1269(B), the Breazeales have standing, along with the insureds, to be fully apprised of any affirmative defenses such as coverage defenses. See Hiser v. Rajki, 97-2208 (La.App. 1st Cir.9/30/97), 700 So.2d 1302. Thus, we find that the waiver issue is properly before us.

|9The issue of waiver is complicated because it is interwoven with an insurer’s duty to defend its insured. If the policy calls for a defense of the claim, an insurer has the obligation to provide a defense to its insured, even if ultimately the insurers may have no liability under the policy. Dugas Pest Control of Baton Rouge, Inc. v. Mutual Fire, Marine and Inland Ins. Co., 504 So.2d 1051, 1053 (La. App. 1st Cir.1987). To protect its own interest, an insurer can simultaneously provide its insured with a defense and contest coverage with its insured. Id., 504 So.2d at 1054. If an insurer has knowledge of facts indicating non-coverage and voluntarily assumes the insured’s defense without obtaining a non-waiver agreement to reserve its rights, the insurer effectively waives all such policy defenses. Peavey Company v. M/V ANPA, 971 F.2d 1168, 1175 (5th Cir.1992). The insurer’s notice of intent to avail itself of the defense of non-coverage must be timely. Id.

For Bankers’ claim of non-waiver to be plausible, Bankers must show that it issued its reservation-of-rights letter to J.T.’s parents and employed separate counsel within a reasonable time after it was informed of the claim against its insureds. See Emery v. Progressive Cas. Ins. Co., 2010-0327 (La.App. 1st Cir.9/10/10), 49 So.3d 17, 21; Dugas Pest Control, 504 So.2d at 1054. It is undisputed that Bankers provided separate counsel for J.T.’s parents from the moment that Bankers asserted its coverage defense in a supplemental and amending answer that was filed approximately six weeks after the initial jointly filed answer. Shortly thereafter, within ten days, Bankers issued a reservation-of-rights letter to J.T.’s parents, advising them of the coverage de-fense. On the same |10date of that letter, J.T.’s parents filed a separate answer to the School Board’s intervention, through the same counsel that had been provided for them by Bankers.

Since the Breazeales and the School Board are seeking to avoid the application of the intentional acts exclusion, they had the burden of proving that Bankers waived its right to assert its policy exclusion. See L.T. v. Chandler, 40,417 (La.App.2d Cir.12/14/05), 917 So.2d 753, 757. But there is no evidence in the record that J.T.’s parents’ legal representation was ever compromised, that J.T.’s parents were prejudiced in any way, that J.T.’s parents relied on any representation by Bankers that there definitely was insurance coverage for the Breazeales’ claims, or that Bankers’ assertion of its coverage defense/policy exclusion was untimely. When J.T.’s parents filed their separate answer to the School Board’s intervention, they did so with knowledge of Bankers’ coverage defense as clearly set forth in the reservation-of-rights letter that was sent to them by certified mail. Thus, by filing this separate answer, J.T.’s parents implicitly agreed that Bankers had reserved its coverage defense. See 15 William Shelby McKenzie & H. Alston Johnson, III, Louisiana Civil Law Treatise: Insurance Law and Practice, § 7:7, at 643 (4th Ed.2012). Therefore, our de novo review of the record reveals nothing that would create a genuine issue of material fact as to waiver. The Breazeales and the School Board failed to come forward with evidence sufficient to support a finding that Bankers waived its coverage defense. Accordingly, we find that the assignments of error regarding waiver are without merit, and the trial court’s rejection of the waiver issue was proper.

Intentional Acts Exclusion

The other issue presented in this appeal is whether, in light of the undisputed facts, Bankers is entitled to judgment as a matter of law based upon the intentional acts exclusion contained within its policy. The Breazeales maintain that the legal Inquestion posed is whether it is against the public policy of this State to allow a homeowner’s insurer to exclude coverage for damages resulting from parents’ vicarious liability for the intentional acts of their minor child.

In Doerr v. Mobil Oil Corp., 2000-0947 (La.12/19/00), 774 So.2d 119, the Supreme Court succinctly stated the law pertaining to insurance contracts, as follows:

The interpretation of an insurance contract is nothing more than a determination of the common intent of the parties .... [T]he initial determination of the parties’ intent is found in the insurance policy itself.... In analyzing a policy provision, the words, often being terms of art, must be given their technical meaning.... When those technical words are unambiguous and the parties’ intent is clear, the insurance contract will be enforced as written.... If, on the other hand, the contract cannot be construed simply, based on its language, because of an ambiguity, the court may look to extrinsic evidence to determine the parties’ intent.
When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms.... On the other hand, the insurer bears the burden of proving the applicability of an exclusionaiy clause within a policy.... Importantly, when making this determination, any ambiguities within the policy must be construed in favor of the insured to effect, not deny, coverage.

Id., 774 So.2d at 124 (citations omitted). The determination of whether a contract is clear or unambiguous is a question of law. Watts v. Aetna Cas. and Sur. Co., 574 So.2d 364, 369 (La.App. 1st Cir.), unit denied, 568 So.2d 1089 (La.1990). Subject to the rules of interpretation, it is well-settled that an insurer may limit liability and impose reasonable restrictions upon its policy obligations provided that such limitations do not conflict with statutory provisions or public policy. Cutsinger v. Redfern, 2008-2607 (La.5/22/09), 12 So.3d 945, 949.

The applicable exclusionary clause, as modified by a special provision endorsement for Louisiana dated March 30, 2010, is contained in the Bankers’ policy, and provides, in pertinent part, as follows:

SPECIAL PROVISIONS — LOUISIANA
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
Jb*
SECTION II — LIABILITY COVERAGES
SECTION II — EXCLUSIONS
E. Coverage E — Personal Liability and Coverage F — Medical Payments to Others
Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to:
Paragraph 1. Expected or Intended Injury is deleted in all forms and replaced by the following:
We do not cover any “bodily injury” or “property damage” intended by, or caused by or originating from or in connection to or which may be expected to result from the intentional or criminal acts or omissions of any insured person. This exclusion applies even if:
a. Such insured person lacks the mental capacity to govern his or her conduct;
b. Such bodily injury or property damage is of a different kind or degree than that intended or reasonably expected; or
c. Such bodily injury or property [damage] is sustained by a differ- . ent person than that intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with or convicted of a crime.
This exclusion applies regardless of the number of “insureds”, the number of claims made, or the number of persons injured.
(Italicized emphasis supplied.)

This exclusionary clause formed the basis of the trial court’s grant of summary judgment in this case. The language is almost identical to language in an exclusionary clause that we considered en banc in Reinhardt v. Barger, 2007-2363 (La.App. 1st Cir.4/29/09), 15 So.3d 122, 126, unit denied, 2009-1786 (La.11/20/09), 25 So.3d 811, In Reinhardt, this court was unable to render a majority opinion to reverse or modify the trial court’s judgment; thus, the judgment of the trial court in that case was effectively affirmed in upholding the validity of the intentional act exclusion by summary judgment. Id., 15 So.3d at 122. In Reinhardt, the sole issue was whether the intentional act exclusion contained within the provisions of a homeowner’s policy that purported to exclude coverage for damages resulting from a parent’s vicarious liability for the intentional acts of | istheir minor child, contravened the public policy of the State of Louisiana, as stated in Commissioner of Insurance Directive Number 152. Id., 15 So.3d at 124 and 127 (Pettigrew, J., concurring). This issue is again squarely presented by this appeal.

Directive Number 152 was issued by the Commissioner of Insurance in response to this court’s decision in Baugh v. Ray, 97-2625 (La.App. 1st Cir.5/5/99), 751 So.2d 888 (per curiam on rehearing), where this court determined that the law does not mandate insurance coverage for vicarious liability arising from the acts of one’s children. We further determined in Baugh, 751 So.2d at 888-889, that there is no state law or public policy prohibiting a lower limit for parental vicarious liability. See Reinhardt, 15 So.3d at 127. Baugh has never been judicially overruled or superseded by legislative act.

By issuing Directive Number 152, the Commissioner of Insurance expressed concern over the limitations of vicarious parental liability in homeowners’ policies, and directed insurers to modify their policy language by deleting the exclusion. Directive Number 152 states, in pertinent part:

When consumers purchase homeowner’s insurance, their intent is to purchase a broad package policy to protect themselves from a broad range of risks that may arise out of homeownership and personal liability. A limitation for liability coverage related to children is not a reasonable expectation of the policyholder. No homeowner would knowingly purchase a homeowner’s policy limiting coverage for their liability with respect to their children.
_l±f * *
BECAUSE THE DEPARTMENT OF INSURANCE IS CHARGED WITH THE DUTY OF REGULATING THE BUSINESS OF INSURANCE IN THE PUBLIC INTEREST, THE DEPARTMENT OF INSURANCE VIEWS THE USE OF ANY TYPE OF LIMITATION CLAUSE IN A HOMEOWNER’S POLICY WHICH RESULTS IN LIMITING THE LIABILITY COVERAGE OF AN INSURER FOR PARENTS’ VICARIOUS LIABILITY FOR ACTS OF THEIR CHILDREN IS AGAINST THE PUBLIC INTEREST.
Property and Casualty insurers whose policies contain a limitation of vicarious parental liability in their homeowner’s policies, endorsements or exclusions are hereby directed to modify their contracts by submitting a revised policy form, or an endorsement, deleting the exclusion.

The Breazeales urge us to find that based on Directive Number 152, public policy dictates that the intentional acts exclusion should not apply. However, this court has previously held that we are not bound by the opinion of the Commissioner of Insurance with respect to whether a policy provision violates public policy. P.D. v. S.W.L., 2007-2584 (La.App. 1st Cir.7/21/08), 993 So.2d 240, 248, writ denied, 2008-2770 (La.2/13/09), 999 So.2d 1146. It is the job of the courts to resolve disputes over insurance coverage. See Doerr, 774 So.2d at 134. See also La. Const, art. V, § 1. The opinion of the Commissioner of Insurance is persuasive, but not binding. See Reinhardt, 15 So.3d at 131 and 132 (Kuhn, J., concurring, and Parro, J., concurring) (citing Doerr, 774 So.2d at 134). We cannot allow the Commissioner to usurp either the legislative or judicial role, by issuing a directive that constitutes an unauthorized exercise of legislative and/or judicial power. Id., 15 So.3d at 131 and 133 (Kuhn, J., concurring, and Parro, J., concurring). The duty of the Commissioner is to administer the provisions of the Insurance Code. La. R.S. 22:2(A)(1). Louisiana Revised Statute 22:11 gives the Commissioner authority to promulgate rules and regulations necessary for the implementation of the Code. Reinhardt, 15 So.3d at 132 (Parro, J., concurring). The Commissioner is not the final arbiter for the interpretation and reconciliation 11sof the Code and insurance policy language. That role is constitutionally assigned to the judiciary. Id.

Because there is no ambiguity in the policy language at issue, its words should be given effect. Additionally, in the absence of a conflict with a statute or public policy, insurers have the same rights as individuals to limit their liability and impose whatever conditions they desire upon their obligations. Id., 15 So.3d at 131 and 132-133 (Kuhn, J., concurring, and Parro, J., concurring) (citing Sims v. Mulhearn Funeral Home, Inc., 2007-0054 (La.5/22/07), 956 So.2d 583, 595.) Because the contract of insurance at issue unambiguously excludes coverage for the intentional or criminal acts of any insured person, even if the insured person lacks the mental capacity to govern his conduct, we affirm the decision of the trial court to uphold the exclusionary language in Bankers’ policy.

CONCLUSION

Accordingly, we affirm the judgment of the trial court granting Bankers Specialty Insurance Company’s motion for summary judgment and dismissing all claims against Bankers Specialty Insurance Company, ■with prejudice. Costs of this appeal are equally assessed to plaintiffs-lst appellants, Denise Breazeale and Thomas Breazeale, and intervenors-2nd appellants, St. Tammany Parish School Board.

MOTION DENIED; JUDGMENT AFFIRMED.

WHIPPLE, C.J., concurs and assigns reasons.

WHIPPLE, C.J.,

concurring.

Ill respectfully concur in the result, which is legally correct. However, for the reasons set forth in Judge Pettigrew’s concurring opinion in Reinhardt, I again find that this is a matter that cries out for and warrants legislative action to protect the public from a virtually useless “insurance” policy. See Reinhardt v. Barger, 2007-2363 (La.App. 1st Cir.4/29/09), 15 So.3d 122, 125-129, writ denied, 2009-1786 (La.11/20/09), 25 So.3d 811.

      . To protect the identity of the minor child involved in this appeal, we will use initials rather than full names of the minor child's parents and the child throughout this opinion. See Uniform Rules — Courts of Appeal, Rule 5-2. J.T.’s official diagnosis is Autism Spectrum Disorder.

      . Bankers was formally named as a defendant in the Breazeales' first supplemental and amending petition filed on June 6, 2011. The Bankers’ homeowner’s policy issued to J.T.'s parents provided personal liability coverage and medical payments coverage for claims made or suits brought against an insured. An "insured” includes residents of the household who are relatives or are under the age of 21 and in the care of the named insured.

      . Waiver occurs when there is an existing right, knowledge of its existence, and an actual intention to relinquish it, or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished. A waiver may apply to any provision of an insurance contract, even though this may have the effect of bringing within coverage risks originally excluded or not covered. Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213, 1216; Emery v. Progressive Cas. Ins. Co., 2010-0327 (La.App. 1st Cir.9/10/10), 49 So.3d 17, 21.

      . A reservation-of-rights letter has been held to be a sufficient non-waiver agreement. See T.H.E. Ins. Co. v. Larsen Intermodal Services, Inc., 242 F.3d 667, 675 (5th Cir.2001). A non-waiver agreement or reservation-of-rights letter, made between the insurer and the insured, is a document whereby the insurer undertakes the insured's defense with the stipulation that the insurer does not waive its right to deny coverage. See Vargas v. Daniell Battery Mfg. Co., Inc., 93-2282 (La.App. 1st Cir. 12/29/94), 648 So.2d 1103, 1106; W.T.A. v. Yeager, 2002-881 (La.App. 3d Cir. 12/11/02), 832 So.2d 1217, 1219; Cassey v. Stewart, 31,-437 (La.App. 2d Cir. 1/20/99), 727 So.2d 655, 658 n. 3, writ denied, 99-0811 (La.4/30/99), 743 So.2d 209. Even though initially, the insurer may provide the potential insured with a defense against the claim, this is not an admission that the policy provides coverage. W.T.A., 832 So.2d at 1219.

        . Only a partial copy of Directive Number 152, issued by the Commissioner of Insurance on June 9, 2000, is contained within the record of this matter. However, because Directive Number 152 is a matter of public record and has been considered by this court on numerous occasions, we find that the Breazeales’ motion seeking leave to attach Directive Number 152 and a new section to their brief is unnecessary. Therefore, we deny the Breazeales' motion.

      . The Breazeales argue that a different result from Reinhardt (effectively upholding the validity of the intentional acts exclusion) should take place under the facts presented in the case sub judice, because the underlying facts in Reinhardt did not involve the mental capacity of the minor. We reject this reasoning, however, because the exclusionary language in both cases specifically applied "even if ... [s]uch insured person lacks the mental capacity to govern his or her conduct[.]” See Kimble on behalf of Dedon v. Allstate Ins. Co., 97-0481 (La.App. 1st Cir.4/8/98), 710 So.2d 1146, 1148-1149, writ denied, 98-1801 (La. 10/16/98), 726 So.2d 907 (where we upheld a similar exclusionary clause in a case where the insured lacked the mental capacity to govern his conduct, and we found no violation of public policy).

      . In determining the meaning of words of an insurance policy, the words and phrases used in the policy should be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ.Code art. 2047; Cadwallader v. Allstate Ins. Co., 2002-1637 (La.6/27/03), 848 So.2d 577, 580. When the meaning of the words is clear, the court should look no further in determining the intent of the parties. Norfolk Southern Corp. v. California Union Ins. Co., 2002-0369 (La. App. 1st Cir.9/12/03), 859 So.2d 167, 189, writ denied. 2003-2742 (La.12/19/03), 861 So.2d 579.