author: WILLIAMS, J.

text:
    STATE of Louisiana in the Interest of B.A.A.
    No. 44,494-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2009.

      William A. Pesnell, for Appellant, B.A.A.
    Tommy J. Johnson, R. Preston Mans-our, Jr., Shreveport, for Appellee, State of Louisiana.

      Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

_JjThe defendant, B.A.A., was charged with one count of attempted aggravated burglary, in violation of LSA-R.S. 14:27 and LSA-R.S. 14:60, and one count of illegal possession of a handgun by a juvenile, in violation of LSA-R.S. 14:95.8. The defendant was adjudicated delinquent on both charges and was committed to the Office of Juvenile Justice for three years. For the reasons set forth herein, we affirm the defendant’s adjudication and disposition.

FACTS

On September 29, 2008, at approximately 4:35 p.m., Bryan Adams alerted the authorities regarding a burglary in progress at his home in Shreveport, Louisiana. Adams testified that he was in his home getting ready for work when the defendant and two other individuals knocked on the front door of Adams’ residence. Adams stated that he went to the front door, looked through the peephole and saw three juveniles that he did not recognize. Adams testified that he decided not to answer the door because he “thought they were selling candy or something and I didn’t want to buy it.” Adams stated that he went back to his room and was soon alerted by the sound of the defendant pulling on Adams’ screen door, which is located at the rear of the residence. Adams testified that he could see the other two juveniles through two other windows. Adams stated that he went into another room, used his cellular phone to call the police and armed himself with a gun.

Adams testified that while he was on the phone, the defendant and one of the other juveniles (later discovered to be the defendant’s brother) | ¡removed the screen from one of Adams’ windows and attempted to open the window. Adams stated that he had hidden himself so that he could see the juveniles, but they could not see him. Adams testified that he saw the defendant throw a rock and break the window. The defendant then put his hand through the window and attempted to open it. At that point, Adams confronted the defendant with the gun and told the defendant to “freeze.” Adams testified that all three juveniles “took off running.” Adams explained that the juveniles had been in the back yard of his residence, but the only exit was through the front yard. Adams came out of the front door and met all three of the juveniles in the front yard. One of the youths, described by Adams as “the younger white male,” immediately fell to the ground. The defendant continued to run, but eventually laid down on the ground; Adams was unable to catch the third juvenile.

Officer Dennis Buckingham and Officer Guy, of the Shreveport Police Department, were dispatched to the reported burglary in progress. When the officers arrived at the scene, Adams was detaining two juveniles at gunpoint on his front lawn. Officer Buckingham placed the two youths in handcuffs and took them into custody. During a pat-down search of the defendant’s person, Officer Buckingham felt an object in the defendant’s pocket. The defendant immediately informed the officer that the object was a gun, and the officer removed a loaded revolver.

After the juveniles were detained, Officer Guy obtained contact information for their parents. Officer Guy contacted the parents and ^transported the juveniles to the detectives’ office to be questioned. Officer Guy stated that he did not read the youths their Miranda rights; rather, he stated that he advised them to “keep then-mouth shut,” and Detective Tyler conducted the investigation at the detectives’ office.

On October 1, 2008, the state filed a petition alleging that the defendant had committed attempted simple burglary. On October 21, 2008, the state filed an amended petition, alleging that the defendant had committed attempted aggravated burglary and had violated LSA-R.S. 14:95.8, which prohibits possession of a handgun by a juvenile.

Following a bench trial, the defendant was adjudicated delinquent as charged. On December 15, 2008, the court entered a disposition that the defendant should be committed to the Office of Juvenile Justice for three years. The court recommended secure care and set a rule to show cause hearing in order to require the superintendent to show cause why the defendant should not be placed in secure care. The court also recommended the Fast Track program, stating that if the defendant “acts properly in that program,” after three months, the Office of Juvenile Justice would be able to request the court to release the defendant. The court set a review date for six months from the date of disposition and concluded that it would continue to review the defendant’s sentence at intervals, to assess the defendant’s progress and determine whether the defendant should be released.

| ¿DISCUSSION

Sufficiency of the Evidence

The defendant contends the trial court erred in convicting him of “aggravated burglary.” He argues that the evidence introduced at trial was insufficient to demonstrate that he had the specific intent to commit a theft or felony on the premises. The defendant also argues that the evidence was insufficient to support a finding that he was armed with a dangerous weapon, noting that the gun was never used, referred to, or known by the victim to be in existence during the commission of the offense.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, unit denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own ^appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to the trier of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Attempt is defined by LSA-R.S. 14:27 as follows:

[A]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

LSA-R.S. 14:60 provides, in pertinent part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
A “dangerous weapon” is “any gas, liquid or other substance or instrumentality, which, in the manner used, is likely to produce death or Rgreat bodily harm.” LSA-R.S. 14:2.

In proving the crime of aggravated burglary, the state must provide evidence which supports finding beyond a reasonable doubt that the defendant made an unauthorized entry of a structure with the specific intent to commit a theft or a felony. State v. Scott, 41,690 (La.App. 2d Cir.1/24/07), 948 So.2d 1159, citing State v. Lockhart, 438 So.2d 1089 (La.1983). The unauthorized entry and the specific intent to commit a felony are separate elements of the crime. Id. Because these are separate elements, the unauthorized entry cannot be used to prove felonious intent. Id.

Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. LSA-R.S. 14:10(1); State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583, cert. denied, — U.S.-, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). See also State v. Allen, 41,548 (La.App. 2d Cir.11/15/06), 942 So.2d 1244, writ denied, 2007-0530 (La.12/7/07), 969 So.2d 619. Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Durden, 36,842 (La.App. 2d Cir.4/9/03), 842 So.2d 1244, writ denied, 2003-1350 (La.11/26/03), 860 So.2d 1131.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Hill, supra. In reviewing the correctness of such a determination, the Court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a | Treasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Hui-zar, supra.

In the instant case, the actions taken by the defendant tend directly toward unauthorized entry of Adams’ residence, while Adams was present, for the purpose of committing a felony or theft within the residence. Adams testified that the defendant and the other youths knocked on the door of his residence and, when no one answered, the defendant attempted to open doors and windows in order to gain access to the residence. Adams also stated that the defendant removed the screen from a window, threw a rock and shattered the glass and placed his hand through the glass. When Adams told the defendant to “freeze,” the defendant immediately fled the scene, allowing an inference of the defendant’s guilty conscience by the finder of fact.

In addition, the statute defining aggravated burglary does not require that the dangerous weapon be used; the statute merely requires the defendant to have been “armed with a dangerous weapon” while committing a burglary. In this case, the uncontroverted testimony of the police officers established that the defendant possessed a loaded revolver at the time of the offense.

Further, the defendant was neither charged with nor convicted of aggravated burglary; he was charged with and convicted of an attempt to commit aggravated burglary. Therefore, after reviewing the record in its entirety, we find that the evidence was sufficient to allow a reasonable finder of fact to conclude that the defendant possessed the requisite specific |sintent to commit a burglary, and performed acts which tended directly toward the accomplishment of that goal. Additionally, the defendant was armed with a dangerous weapon and the victim was home at the time of the offense. Consequently, the juvenile court did not err in adjudicating the defendant delinquent for the offense of attempted aggravated burglary. The defendant’s assignments are without merit.

Predisposition Interview/Right to Counsel

The defendant also contends he was not represented by counsel during the predisposition interview, and he was not advised of his Miranda rights or counseled that he had the right to remain silent prior to the interview. Citing LSA-Ch.C. art. 810, the defendant also argues that the law does not allow a juvenile defendant to waive his right to counsel. The defendant urges that the investigator asked questions which bore directly on the issues which the state had attempted to advance during the hearing. The defendant further argues that his adjudication was not final at the time he made the statements to the investigator because defense counsel intended to file a motion to vacate.

The Sixth and Fourteenth Amendments to the United States Constitution, as well as Article I, § 13 of the Louisiana Constitution, guarantee the accused in a criminal proceeding the right to assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Carpenter, 390 So.2d 1296 (La.1980); State v. Flanagan, 32,535 (La.App. 2d Cir.10/29/99), 744 So.2d 718. An adult defendant’s Sixth Amendment right to the assistance of counsel attaches |flonly after commencement of adversarial judicial criminal proceedings. State v. Carter, 94-2859 (La.11/27/95), 664 So.2d 367. An adult defendant does not, however, have the right to counsel at all proceedings after the right has attached; the right to counsel only protects a defendant in proceedings which may be considered to be “critical stages.” Id. at 372, 373.

All rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana, except the right to a jury trial, shall be applicable in juvenile court proceedings brought under the Louisiana Children’s Code. LSA-Ch.C. art. 808. An accused child is entitled to counsel “[a]t every stage of proceedings.” LSA-Ch.C. art. 809; See also, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In Gault, the court specifically excluded proceedings conducted after an adjudication of delinquency had been made; however, the court stated:

We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile “delinquents.” For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process.

In re Gault, supra, 387 U.S. at 13, 87 S.Ct. 1428. The Court further noted that: “[t]he problems of pre-adjudication treatment of juveniles, and of post-adjudication disposition are unique to the juvenile process; hence what we hold in this opinion with regard to the procedural requirements at the adjudicatory stage has no necessary applicability to other steps of the 1 ^juvenile process.” In re Gault, supra at 31, 87 S.Ct. 1428 (footnote 48).

Following adjudication of delinquency, a court may, in its discretion, order “such physical and mental examination and evaluation of the child as may be helpful in determining a fair and just disposition.” LSA-Ch.C. art. 888. LSA-Ch.C. art. 890 provides:

A.In making the investigation, the probation officer shall investigate and report to the court regarding:
(1)The circumstances attending the commission of the offense; the attitudes of the child and his parents toward the offense; the prior offenses committed by the child, including other referrals or contacts not resulting in juvenile court petitions; and, when applicable, the disposition of companion cases arising out of this offense.
(2) The impact on the victim, if a child is adjudicated of or admits to a delinquent act involving a victim. The court shall require that a victim impact statement be included in the predisposition report. The victim impact statement shall include factual information as to whether the victim or his family has suffered, as a result of the offense, any monetary loss, medical expense, or physical impairment, and shall include any other information deemed relevant. The district attorney may also file a victim impact statement with the court.
(3) The child’s home environment including his family’s composition and dynamics, stability, economic status, participation in community or religious activities, and any physical, mental, or emotional handicaps, substance abuse, or criminal history of any of its members.
(4) The child’s current physical description, developmental and medical history, social adjustment in the community, school record, including the name and address of the school where the child is registered and enrolled, employment or vocational interest, significant behavior patterns, or other personality traits relevant to his rehabilitation.
B. The report shall contain a list of all persons contacted |nin completing the investigation and their relationship to the child.
C. The report shall contain a brief statement of the child’s identified behavioral problems and the probation officer’s assessment of cause and potential for rehabilitation, indicating specifically those resources available in the community or within the child’s extended family which could provide needed assistance to the child and his family.
D. The report shall contain recommendations for suggested disposition, including, if applicable, special conditions of supervision.

The analogous provision in the Louisiana Criminal Code is the definition of a presentence investigation report. LSA-C.Cr.P. art. 875. The presentence investigation report (or “PSI”) is an aid to the court, not a right of the defendant, and the court is not required to order that the report be prepared. State v. Bell, 377 So.2d 275 (La.1979). A defendant has a right to a hearing in order to challenge any false information contained in the PSI. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Many federal courts, and at least one Louisiana court of appeal, have held that a defendant does not have a right to counsel during an interview with a probation officer in the presentence investigation. In Brown v. Butler, 811 F.2d 938 (5th Cir. 1987), the defendant was convicted of forgery. During the presentence investigation interview, the defendant informed the probation officer that he had supported himself for a number of years by periodically traveling across the country passing bad checks. The court rejected the defendant’s argument that he was entitled to counsel during the interview, stating:

JjgfThe defendant] was interviewed by a probation officer, who is an arm of the court charged with assisting the court in arriving at a fair sentence. We conclude that such an interview is not a critical stage of the proceeding in which counsel’s presence or advice is necessary to protect the defendant’s right to a fair trial.

Id. at 941. See also, State v. Pete, 2003-0694 (La.App. 4th Cir.9/24/03), 857 So.2d 1107; Castro v. Ward, 138 F.3d 810 (10th Cir.1998); United States v. Gordon, 4 F.3d 1567 (10th Cir.1993); U.S. v. Tisdale, 952 F.2d 934 (6th Cir.1992); United States v. Hicks, 948 F.2d 877 (4th Cir.1991); United States v. Jackson, 886 F.2d 838 (7th Cir. 1989); Baumann v. United States, 692 F.2d 565 (9th Cir.1982).

We conclude that the predisposition investigation does not constitute a stage of the proceedings such that the defendant was entitled to counsel. A predisposition investigation is ordered by the court after the court has adjudicated delinquency; therefore, a juvenile does not have a constitutional right to counsel during interviews conducted during the investigation. We note that a predisposition investigation serves only as an aid to the court, and is neither an adjudicative nor a punitive stage which could result in a juvenile’s commitment to an institution. Consequently, unpersuaded by the defendant’s argument, we conclude that conducting the predisposition interview of the defendant without counsel did not constitute a violation of the defendant’s right to counsel.

Additionally, we find nothing in the record to support the defendant’s argument that the proceedings were not final when he made the statements to the investigator because his attorney intended to file a motion to vacate |1sthe adjudication. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, the defendant’s adjudication and his three-year commitment to the Office of Juvenile Justice are hereby affirmed.

ADJUDICATION AFFIRMED; DISPOSITION AFFIRMED.

      . At the time of the offense, the defendant was 16 years old.

      . We note that the defendant was adjudicated delinquent for the charge of attempted aggravated burglary.

      . It is proper, but not mandatory, for the sufficiency issue to be raised in the trial court by a LSA-C.Cr.P. art. 821 motion. It is also proper to raise the issue solely by a LSA-C.Cr.P. art. 920 assignment of error to the appellate court without the necessity of any foundation motion, under Article 821 or otherwise, in the trial court. State v. Green, 28,994 (La.App. 2d Cir.2/26/97), 691 So.2d 1273.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Sherry Fleming READ, Plaintiff-Appellant v. PEL-STATE OIL COMPANY, Defendant-Appellee.
    No. 44,218-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2009.
    James M. Johnson, Minden, for Appellant, Sherry Fleming Read.
    Casten & Pearce by Claude Wilbur Bo-okter, Jr., Shreveport, for Appellees Pel-State Oil Company, Inc. and Bridgefield Casualty Insurance Company.
    Lunn, Irion, Salley, Carlisle & Gardner by Walter S. Salley, Shreveport, for Appel-lees Pel-State Oil Company, Inc. and AIG Insurance Company.
    Before GASKINS, PEATROSS and DREW, JJ.
   DREW, J.

L Sherry Read, who sustained a back injury at work, appeals a judgment denying her claim for workers’ compensation benefits. AIG Insurance Company has answered the appeal, seeking reimbursement for workers’ compensation benefits that it paid for an earlier knee injury sustained by Read.

We affirm.

FACTS

In 2001, Read began working for Pel-State Oil Company, which operates convenience stores. Read was employed first as a cashier, then as an assistant manager. Read injured her left knee at work on August 28, 2002. AIG was Pel-State’s workers’ comp insurer at the time. AIG paid weekly indemnity benefits of $228.14 to Read until August 22, 2005.

On March 3, 2004, Read injured her back while attempting to free a barrel full of ice that had become stuck on a door threshold that Read had tried to roll the barrel across. Read sought medical treatment for her injured back and continued working at her job, but with a light-duty restriction.

Read lost her job on May 5, 2004, because continued employment with Pel-State violated the company’s anti-nepotism rules. Read’s daughter was a district manager for Pel-State.

Read filed a claim for compensation against Pel-State. An answer was filed by Pel-State and Bridgefield Casualty Insurance Company. Read amended her claim to add AIG as a defendant. Seeking reimbursement for benefits paid after March 4, 2004, AIG and Pel-State (in response to the [¡¡2002 accident) filed a cross-claim against Bridgefield. AIG and Pel-State (in response to the 2002 accident) also filed a third-party demand against Pel-State in which it was asserted that AIG incorrectly paid benefits to Read after September 1, 2003.

Following a trial on the merits, the WCJ rendered judgment dismissing: (i) Read’s claims for indemnity benefits and additional medical benefits against Pel-State and Bridgefield because of the March 2004 aggravation of her preexisting back injury; (ii) the cross-claim for reimbursement against Bridgefield; and (iii) the third-party demand against Pel-State.

Read has appealed the denial of her claims. AIG and Pel-State (in response to the 2002 accident) answered the appeal on the issue of reimbursement from Bridge-field.

DISCUSSION

Read argues on appeal that the WCJ erred in denying her claim for indemnity benefits related to the 2004 accident and for additional medical benefits.

An injured employee seeking temporary total disability (“TTD”) benefits must prove by clear and convincing evidence that he is physically unable to engage in any employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.4/7/04), 870 So.2d 515. To prove a matter by clear and convincing evidence means to |,.¡demonstrate that the existence of a disputed fact is highly probable, ie., much more probable than its nonexistence. Id. A claimant may prove disability through medical and lay testimony. The WCJ must weigh all of the evidence to determine if the claimant has met his burden of proving temporary total disability. Id.

Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. A workers’ compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Taylor v. Wal-Mart Stores, Inc., 40,179 (La.App. 2d Cir.9/21/05), 914 So.2d 579, writ not considered, 2006-0144 (La.4/17/06), 926 So.2d 500, cert. denied, 549 U.S. 1157, 127 S.Ct. 982, 166 L.Ed.2d 783 (2007).

After Read injured her knee in 2002, she missed several weeks of work and underwent arthroscopic knee surgery. She had returned to her normal job duties as assistant manager by March 2004. As assistant manager, her job duties included running the store, meeting with delivery people, stocking shelves and coolers, keeping the store clean, and working the register. She routinely had to pick up cases of beer, drinks, and groceries.

Read returned to work the day after her 2004 back injury, but testified that she could not do anything. Read was treated for her back injury on RMarch 9, 2004. She told the physician that her symptoms had completely resolved after an earlier lower back surgery, and that she had had no back symptoms since her surgery. The diagnosis was back and left leg pain due to lumbar radiculopathy. Suggested treatment was physical therapy, nonaddictive medication, and light-duty work. Read was directed to avoid repetitive bending or lifting more than 10 pounds. An MRI taken on March 26, 2004, showed mild degenerative changes at L2-3 and L5-S1.

Read apparently did not miss any work at Pel-State after hurting her back, and she was essentially working full-time while doing light-duty work at the store when she was fired. Read applied for unemployment compensation after losing her job. She testified that she has not tried to find another job because her back pain has been so bad at times that she could not move. She added that her back was hurting during the two months that she worked before her termination.

Read testified that her left knee had recovered enough by March 2004 that she would still be working but for her back injury. Read admitted that her preexisting back condition has caused occasional back flareups and problems since the late 1980s.

Read has a well-documented medical history involving her lower back and left knee. Introduced at trial were Read’s medical records and the depositions of four physicians who had treated her.

Read underwent a lumbar discectomy in 1988 after she hurt her back in a motor vehicle accident earlier that year. A 1991 MRI of the lumbar 1 ñspine showed desiccation at L4-5 and L5-S1, and a slight bulge at L4 and L5.

In 1992, Read was referred to the Pain Management Service at LSU Hospital in Shreveport for treatment of low back and left lower extremity pain. Read reported to the doctors at LSU that the 1988 lumbar discectomy had provided relief for four months, but then the symptoms began recurring in the same distribution and quality and with increased intensity.

Dr. William Bundrick, an orthopaedic surgeon, first treated Read’s left knee in April of 2003. Dr. Don Burt, Dr. Bun-drick’s partner, treated Read on September 18, 2003. It was noted during that visit that Read was having considerable pain in the low back and left hip that radiated into the left leg. Read told Dr. Burt that she was doing well until she had to lift some heavy material at work. Dr. Burt’s impression was nerve root irritation possibly secondary to recurrent disc herniation at the L5-S1 level. Read was given a cortisone injection in her back and was told to rest for a few days.

When Dr. Bundriek treated Read on November 11, 2003, pain in the lower back and down the left leg appeared to be the predominant factor at the time. Dr. Bun-drick testified that he does not treat patients for back injuries, and was treating Read only for her left knee. After examining Read on January 12, 2004, Dr. Bun-drick believed that the left knee pain she was experiencing on attempted extension of the knee with the hip flexed was coming from nerve root irritation in her back. There was no mention of |fiher back pain in the records from Read’s last two visits with Dr. Bundriek, which were on April 29 and August 10 of 2004.

Dr. Carl Goodman, an orthopaedic surgeon, treated Read in 2004. In Dr. Goodman’s opinion, Read had probably experienced an aggravation of her lumbar disc syndrome in March of 2004. He first treated Read on April 13. She complained primarily of low back pain with burning and tingling in her left leg. An X-ray and a MRI showed degenerative disc changes at L5 with mild midline disc bulge. Dr. Goodman’s impression was lumbar strain and sprain with degenerative lumbar disc disease. Dr. Goodman remarked that the lumbar strain and sprain was an acute finding, and the degenerative disease was preexisting. He limited Read to light-duty work, and expected gradual improvement over the next six weeks.

Read returned to Dr. Goodman on April 20 with increased back and left leg pain. She reported that she had been unable to work on April 19 or April 20. Dr. Goodman recommended that she return to work the next day with the same light-duty restriction. He prescribed a six-day treatment of Cortisone tablets.

When Read was treated by Dr. Goodman on May 4, she reported having some improvement in her back and left leg. Dr. Goodman’s impression at that time was a resolving low back syndrome. The next day, Read called Dr. Goodman’s office with complaints of being in a lot of pain. Ul-tram, a pain reliever, was prescribed for her.

Read next saw Dr. Goodman on June 3. Her complaints were increased back and left leg pain, and she had not improved since her last |7visit. Dr. Goodman thought this was the same pain that Read had complained about a month earlier. His impression was lumbar strain and sprain, and his recommendation was to continue with light-duty work. Home exercises were discussed.

Read called Dr. Goodman’s office on July 20. She reported that her back went out, she wanted to be referred to a doctor in Texas where she had moved, and she wanted a prescription called in. Dr. Goodman last treated Read on July 26. She had increased back and left leg complaints, with her primary complaint being low back pain with sciatic type pain down to the mid left calf. Dr. Goodman thought these were the same complaints as earlier, and that she was doing about the same as before. His impressions were lumbar strain and sprain, and degenerative lumbar disc disease. Dr. Goodman noted that he could find no objective abnormalities to explain her continued pain and disability; however, he was not suggesting that she was exaggerating her symptoms. He told her that he had no further treatment to offer, and that she could continue to do light-duty tasks at work.

On August 11, 2004, Read underwent a medical examination to determine her fitness to be a commercial driver. On a form she filled out, she reported the March 2004 back injury, but she checked “No” to “Chronic low back pain” in the Health History section of the form. Read passed the physical exam. Dr. Frederick Price, who performed the exam, believed that he examined Read for a return to work physical, and did not know why a Department of Transportation (“DOT”) form was completed. He explained that Read received a certification that she could drive. Read could not recall |sif the reason she had the examination was to obtain DOT certification or to return to work in another capacity. Dr. Price obtained a release to full duty with no restrictions from Dr. Goodman.

Dr. Gerald Foox, who specialized in or-thopaedic medicine and pain management, began treating Read’s left knee on August 27, 2004. During this visit, Read did not complain about back pain, and her back was not specifically examined.

Dr. Foox first treated Read for her back problem on September 24, 2004. She indicated that the March 2004 accident did not cause a flareup, but caused a new injury to the lower back. She told Dr. Foox that her back pain had been constant since the accident; however, he questioned this based on his August 2004 exam and the physical done by Dr. Price.

Dr. Foox’s first impression was lumbar syndrome, but his impression later changed to internal disc disruption syndrome because based on an MRI, he suspected that there was an internal problem in the L5-S1 disc.

Dr. Foox agreed it was possible that his treatment of Read through June of 2005 was related to a flareup of her chronic back condition instead of the March 2004 accident. He did not know of anything in her history or from his examinations that suggested that anything other than flareups was causing her complaints of back pain during the period that he treated her. Dr. Foox agreed that the 1988 discectomy made her more prone to flareups or aggravations caused by incidents, but he was unaware if the surgery was in the area of L5-S1. Dr. Foox believed that any aggravation of her chronic back condition caused by the March 2004 accident had resolved at the time 19of the August 2004 examination by Dr. Price. In June of 2005, Dr. Foox assigned a whole person impairment rating of 4% to Read based only on the left knee condition.

Dr. Foox testified that because of Read’s back condition, he would have restricted the amount of lifting, bending, stooping, and squatting that she did. Dr. Foox agreed that at the time his deposition was taken, he did not have sufficient information to say whether or not Read could work.

Read presented at the emergency room at LSU Hospital on September 27, 2005, with complaints of pain in her low back with sharp pain radiating down her left leg to her foot. She reported that the severity of the radicular symptoms had increased over the last few days, and that she had had chronic back pain since her 2004 accident. The diagnosis was back strain. Read returned to LSU’s ER on March 16, 2006, with complaints of low back pain that had worsened over the last three months. The diagnosis was lumbosacral neuritis.

Dr. Goodman mentioned that patients who have had lumbar disk surgery are more susceptible to flareups or incidents of back pain. He agreed that flareups experienced by Read would be consistent with someone who had a chronic lumbar disk syndrome.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-elearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but linwhether the fact finder’s conclusion was a reasonable one. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

The trial court correctly found that Read failed to establish by clear and convincing evidence that she was temporarily and totally disabled at any time after the March 2004 accident. Read worked for nearly two months after the accident, her termination was unrelated to her injury, she applied for unemployment compensation, and she has not looked for work elsewhere.

Based upon our review of this record, we cannot conclude that the trial court was clearly wrong in denying indemnity benefits and additional medical expenses. We also find no error in the denial of AIG’s reimbursement claim.

CONCLUSION

At appellant’s costs, the judgment is AFFIRMED.

      . AIG provided coverage until August 31, 2003.

      . A physician treating Read in 2004 recorded in her medical history that she had injured her left knee at work in September of 2003.


author: LANDRIEU, Judge. LOMBARD, J.,

text:
    David C. FLETTRICH, A Professional Engineering Corporation v. TOURO INFIRMARY, and Sher Garner Cahill Richter Klein McAlister & Hilbert, LLC.
    No. 2007-CA-1621.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 20, 2009.

      David A. Dalia, New Orleans, LA, for David C. Flettrich, A Professional Engineering Corporation.
    James M. Garner, Debra J. Fischman, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Touro Infirmary and Sher, Garner, Cahill, Richter, Klein, McAlister & Hilbert, L.L.C.
    (Court Composed of Judge PATRICIA R. MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU).
   LANDRIEU, Judge.

hThe plaintiff, David C. Flettrich, a professional engineering corporation (“Mr. Flettrich”), appeals a summary judgment rendered in favor of the law firm, Sher Garner Cahill Richter Klein, McAlister & Hilbert, L.L.C. (“Sher Garner”), dismissing his claims against the firm. We reverse the trial court judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Mr. Flettrich filed a petition for suit on open account, attorney’s fees and unjust enrichment against Sher Garner and its client, Touro Infirmary (“Touro”). In his petition, Mr. Flettrich alleges that Sher Garner solicited his professional services as an expert consultant and witness for Touro, in the matter of Touro Infirmary v. Sizeler Architects, C.D.C. No. 02-6220, a suit brought by Touro for alleged design deficiencies in its Woldenberg Nursing Home/ Assisted Living Facility. Mr. Flettrich further alleges that Sher Garner solicited his professional services on several prior projects dating back to 2001.

In correspondence dated July 18, 2003, Mr. Flettrich submitted an invoice for $98,946.76 and its fee structure to Frank Folino (“Mr. Folino”), Vice President of Touro, for the services rendered on the Woldenberg litigation. In separate ^correspondence also dated July 18, 2003, he submitted the same invoice to Sher Garner, asking that Touro be billed.

In correspondence dated August 29, 2003, Mr. Flettrich’s counsel, David Dalia (“Mr. Dalia”), made a formal demand for payment of the invoice enclosed in the earlier correspondence. Believing Mr. Flettrich’s fees were exaggerated, Touro paid him $10,000.00 for the services rendered on the Woldenberg litigation. Having received no payment from either Touro or Sher Garner for the outstanding balance, Mr. Flettrich filed the instant action.

Sher Garner filed a motion for summary judgment arguing that Mr. Flettrich’s claims against the firm should be dismissed for the following reasons: 1) Sher Garner was Touro’s disclosed agent and, therefore, was exempt from liability under La. C.C. art. 3016; 2) Sher Garner and Mr. Flettrich never agreed to the price of his professional engineering services and, thus, no contract existed between them; and, 3) Sher Garner was not enriched by the services and, therefore, Mr. Flettrich has no claim for unjust enrichment. Mr. Flettrich opposed the motion.

Following a hearing, the trial court rendered a summary judgment in favor of Sher Garner. In written reasons for judgment, the trial court set forth his findings of fact, stating:

... Sher Garner is insulated from liability against Flettrich’s claims. It is undisputed that Sher Garner is Touro’s disclosed agent, Flettrich was on notice of this principal-agent relationship, Sher Garner did not bind itself personally to Flettrich, and Sher Garner did not exceed the scope of its authority granted by Touro.
Flettrich has failed evidence (sic) showing otherwise. Indeed, Flettrich has conceded in its Petition that Sher Garner is Touro’s “agent.” Further, Flettrich concedes in its paragraph 21 of its Petition that Sher | ^Garner “instructed the Petitioner [Flettrich] to bill defendant Touro Infirmary, to the attention of Mr. Frank Folino.” Additionally, the e-mail of May 26, 2003 from Sher Garner to Flettrich shows that the engagement of Flettrich’s services, if any, was made by Touro and that Sher Garner merely acted as Tour’s disclosed agent.

On appeal, Mr: Flettrich contends the trial court erred in granting summary judgment, because a genuine issue of material fact remains as to whether or not Sher Garner exceeded the scope of its authority granted by Touro with respect to the use of his professional services in the Woldenberg litigation.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of 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. King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545. A motion for summary judgment will 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 mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Favored in Louisiana, the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, and should be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). La. C.C.P. art. 966(C)(2) provides, in pertinent part:

The burden of proof remains with the movant. 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 |4the 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. art. 3016 provides that “[a] mandatary who contracts in the name of the principal within the limits of his authority does not bind himself personally for the performance of the contract.” Pursuant to La. C.C. art. 3019, “a mandatary who exceeds his authority is personally bound to the third person with whom he contracts, unless the person knew at the time the contract was made that the man-datary had exceeded his authority or unless the principal ratifies the contract.”

Mr. Flettrich contends that even if Sher Garner was Touro’s disclosed agent when the firm obtained his services as a forensic expert witness for Touro in the Wolden-berg litigation, neither Touro nor the law firm ever expressed a “limit” as to the amount of time and/or money that he was to expend on the matter. As alleged in his original petition, Mr. Flettrich claims that Sher Garner initially solicited his services through a telephone conversation initiated by Martha Curtis, an attorney with Sher Garner. According to him, Sher Garner had used his services on three other projects and, as a result of a dispute concerning his fees, he filed a collection suit against Sher Garner in February 2003. With that in mind, he advised Sher Garner that he would provide his services in the Woldenberg litigation only under certain conditions. Specifically, Mr. Flettrich would invoice his services on an hourly basis in accordance with his published forensic rates in effect at the time of each billing; the terms of payment would be net due upon receipt of invoice; and, interest would be charged for at the rate of 15% per annum |Ron the unpaid balance (1.25% per month), commencing 10 days after the date of the invoice. Mr. Flettrich reminded Sher Garner that the three conditions were identical to the same conditions provided to the firm on February 19, 2003, in the Phillip Sowa residence project.

Mr. Flettrich alleged that several days after the phone conversation, he received a letter dated March 21, 2003 from Sher Garner expressing its appreciation that he had agreed to serve as an expert in the Woldenberg litigation. The letter included the trial date, a copy of the trial court’s scheduling order, and a request that he provide the firm with his initial verbal impression by May 2, 2003 and a written report by June 2, 2003. According to Mr. Flettrich, he received a second letter dated April 29, 2003 from Sher Garner, requesting his expert opinion regarding the allegations of negligence set forth in Tou-ro’s original and amended petitions in the Woldenberg case, particularly “the plumbing, electrical and mechanical aspects of the case.” Enclosed with that letter were copies of the Touro’s original and supplemental petitions; the agreement between Touro and Sizeler; change orders to the construction contract; and a set of the architectural drawings. Mr. Flettrich alleged that he received a third letter from Sher Garner on May 5, 2003, asking him to review a series of 18 letters and correspondences between Touro and other entities concerning the defective design and implementation of the “fire pump” at the Woldenberg Nursing Home/Assisted Living Facility prior to preparing his report. Mr. Flettrich further alleged that 1 (¡between April 25, 2003 and July 18, 2003, he did all the work that Sher Garner had authorized.

In support of its motion for summary judgment arguing that it was acting as Touro’s disclosed agent when it requested Mr. Flettrich to serve as an expert, Sher Garner submitted the affidavit of Mr. Foli-no, who averred the following. Touro hired Sher Garner to serve as Touro’s disclosed agent and legal counsel in the Touro v. Sizeler Architects case. In connection with the Woldenberg litigation, Touro authorized Sher Garner to obtain the services of Mr. Flettrich to provide forensic expert witness consultation. On behalf of Touro, Sher Garner contacted Mr. Flettrich and requested that he provide “limited” forensic expert witness consultation in the case. In an e-mail dated May 26, 2003, Touro, via Sher Garner, directed Mr. Flettrich to send the bill for his “limited” services to Touro to the attention of Mr. Folino. Mr. Flettrich was instructed to provide Touro with a retention agreement between himself and Touro but failed to do so. - Thus, Touro and Mr. Flettrich never executed a retention agreement. Mr. Flettrich did not reach an agreement with Touro, either individually or through its disclosed agent Sher Garner, regarding his rates, cost structure, and payment for his services. Mr. Flett-rich did not provide Touro or Sher Garner with an itemization of his hourly rates or an itemization of his time spent on the Woldenberg case prior to submitting his invoice for payment in July 2003. Along with the affidavit, Sher Garner submitted a copy of the May 26, 2003 e-mail and a copy of October 30, 2003 letter to Sher Garner from Mr. Dalia, who acknowledged that Sher Garner |7was acting as Touro’s agent when it engaged his client as an expert in the Woldenberg litigation.

In opposition to Sher Garner’s motion for summary judgment, Mr. Flettrich submitted his own affidavit, which reiterated the allegations made in his petition. He also submitted copies of the written and email correspondence between Sher Garner and himself regarding the Woldenberg litigation, and a copy of Touro’s pre-trial witness list listing him as Touro’s only engineering expert.

Although Sher Garner contends Mr. Flettrich’s services were limited to the fire pump issue and relies on Mr. Folino’s sworn statement that Sher Garner requested Mr. Flettrich to provide “limited” expert services, the evidence in the record does not support that statement. The correspondence between Sher Garner and Mr. Flettrich clearly indicates that Mr. Flettrich was asked to consider all the allegations of negligence against Sizeler asserted by Touro in its original and supplemental petitions, placing particular emphasis on the plumbing, electrical and mechanical issues. The allegations included design errors; design omissions; construction defects; failure to adequately staff the project; failure to provide CAD drawings; and failure to properly oversee the construction project, among others.

Notwithstanding Mr. Folino’s affidavit, the record contains no evidence of the extent or scope of the mandate granted to Sher Garner by Touro upon which the trial court could determine Sher Garner did not exceed its authority in retaining and instructing Mr. Flettrich as to the work expected of him on the Woldenberg litigation. In the absence of such evidence, and considering the fact that Touro paid only $10,000.00 of the $98,946.76 that Mr. Flett-rich alleged was owed to him and the fact that Sher Garner had used Mr. Flettrich as an expert on prior projects, we conclude that an unresolved factual issue still exists as to whether or not Sher |sGarner exceeded the scope of its authority granted by Touro with respect to the use of Mr. Flett-rich’s services in the Woldenberg litigation. Thus, we find the trial court erred in granting the motion for summary judgment and dismissing Mr. Flettrich’s claims against Sher Garner.

CONCLUSION

Accordingly, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LOMBARD, J., dissents with reasons.

LOMBARD, J.,

dissents with reasons.

Gin my view, the trial court properly granted Sher Garner’s Motion for Summary Judgment dismissing Mr. Flettrich’s claims against it. No genuine issues of material fact exist that would preclude summary judgment in this case. The facts in the record are clear that Sher Garner was acting on Touro’s behalf, and as Tou-ro’s disclosed agent, in hiring Mr. Flettrich as an expert in the Woldenberg litigation. Moreover, there is no evidence in the record to indicate that Sher Garner exceeded the authority granted by Touro in conveying to Mr. Flettrich the content and scope of the expert services needed from him. Mr. Flettrich has not come forth with any facts to indicate that Sher Garner bound itself personally to compensate him for his expert services in the Woldenberg litigation. Thus, Sher Garner cannot now be held responsible for Touro’s alleged failure to pay Mr. Flettrich for the work he performed. Accordingly, Sher Garner is entitled to summary judgment as a matter of law.

For these reasons, I respectfully dissent from the majority’s opinion.

      . Mr. Flettrich alleged that between 2001 and 2003, Sher Garner had used his services on the FBI Regional Building project, the Marseilles Condominiums project, and the Phillip Sowa residence project. He also alleged that his fees of $18,348.75 on the Marseilles Condominiums project were billed to and paid by Sher Garner.

      . Attached to the petition is a copy of the fee schedule that Mr. Flettrich provided to Sher Garner in the Phillip Sowa residence project.

      . Mr. Flettrich attached to his original petition copies of the three letters, his billing invoice, and the spreadsheets and time sheets documenting his work and time expended on the litigation.


author: MARION F. EDWARDS, Judge.

text:
    Valerie DURAPAU v. Diane F. KALLENBORN and State Farm Mutual Automobile Insurance Company.
    No. 09-CA-79.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.
    Vincent J. Glorioso, Jr., Maria B. Glorio-so, Vincent J. Glorioso, III, The Glorioso Law Firm, New Orleans, Louisiana, for PlaintiffiAppellant.
    Burt K. Carnahan, Pamela K. Richard, Lobman, Carnahan, Batt, Angelle & Nader, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKS HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| ¡¡Plaintiff/appellant, Valerie Durapau (“Ms. Durapau”), appeals an adverse decision of the trial court in an action for damages resulting from an automobile accident. The judgment on appeal is a judgment in which the trial court adopted a jury determination that defendant/appel-lee, Diane Kallenborn (“Ms. Kallenborn”), was negligent in the accident, but that negligence was not the legal cause of the accident. For reasons that follow, we affirm.

Ms. Durapau filed this action seeking damages as a result of a traffic accident that happened on January 23, 2007 at the intersection of Metairie Road and Magnolia Drive in Metairie, Louisiana. Ms. Du-rapau was riding a small motor scooter, traveling East on Metairie Road toward New Orleans. Ms. Kallenborn was driving a sports utility vehicle (“SUV”) on Magnolia Drive. The two vehicles collided at the intersection, which is controlled by a traffic light. Ms. Durapau suffered multiple injuries as a result of the accident. Ms. Durapau filed a |3negligence action, naming Ms. Kallenborn and her insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), as defendants in the lawsuit.

The matter went before a jury for trial, after which the jury returned a verdict form containing the following questions and answers:

1. Do you find Diane F. Kallenborn negligent in regards to the motor vehicle accident of January 23, 2007? Yes 10 No 2
If the answer to this question is “Yes”, please proceed to question No. 2. If the answer to this question is “No”, please stop here. Do not answer any further questions. Sign this form and notify the bailiff.
2. Was the negligence of Diane F. Kal-lenborn a legal cause of the motor vehicle accident of January 23, 2007? Yes 3 No 9

Subsequently, the trial court adopted the jury verdict and rendered judgment in accordance with the above determinations. Ms. Durapau filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. The motion was denied by the trial court, and this appeal followed.

FACTS

At the trial on the merits, the parties stipulated that Ms. Durapau’s medical expenses totaled $29,918, of which $24,277 has been waived by health care providers. Five thousand six hundred forty-two dollars ($5,642) is still owed to health care providers. The parties also stipulated that the injuries consist of a left tibia fibula fracture, which required surgery and the insertion of a rod. Other injuries included a concussion, facial lacerations, and multiple contusions. Additional stipulations established State Farm as Ms. Kallenborn’s insurer and introduced medical records, wage and earnings documents, and photos into the record.

|4Ms. Durapau testified that she is a student at the University of New Orleans and works at the House of Blues as a waitress. On the day of the accident, she left hex mother’s home on Bath Street at about 3 p.m. She traveled down Labarre Road and turned left onto Metairie Road on her way to her home on Papworth Street. She was driving a scooter and traveling about 30 miles per hour. She was wearing a helmet. As she approached Haynes Middle School, about 150 feet away from the intersection of Metairie Road and Magnolia, Ms. Durapau saw that the light was green. About ten feet before she reached the intersection, the light turned yellow. Ms. Durapau saw an SUV stopped on Magnolia Street, “inching up forward.” Ms. Durapau testified that she assumed the SUV intended to make a right turn on the red light and was checking to see if there were any vehicles coming. However, Ms. Durapau recalled seeing the SUV “shoot out in front” of her just before the impact. Ms. Durapau assumed that Ms. Kallenborn saw the scooter coming, so she did not blow her horn or attempt to brake before she entered the intersection. Ms. Durapau did not recall seeing any witnesses at the scene.

Ms. Kallenborn testified that she was driving a Suburban at the time of the accident. She was on her way home from driving carpool from Jesuit School in New Orleans where her son is a student. She dropped the last child off at his home on Livingston Street and turned onto Magnolia on her way home with her son. She stopped at the red light at the intersection of Magnolia and Metairie Road. Ms. Kal-lenborn testified that traffic was heavy because it’s the time of day that schools are letting out. She was stopped at the red light for about 30 seconds. When the light turned green, she looked left and right and then proceeded into the intersection. When she got to the middle of Mé-tame Road, she saw a scooter traveling toward her on Metairie Road. It did not slow down or veer off. The scooter rammed into the rear door on the driver’s side of the SUV.

1 ¡Ms. Kallenborn testified that she could not open her door because of damage sustained in the collision. She climbed over the back seat to check on her son then got out to check on the driver of the scooter. There were several people around who called 9-1-1. Ms. Kallenborn made calls to a neighbor and her husband. While she was calling, a woman, later identified as Beverly Scala (“Ms. Scala”), was helping Ms. Durapau. Ms. Durapau was screaming and in obvious pain. Ms. Scala tried to put something under Ms. Durapau’s head. Ms. Durapau asked what happened and Ms. Scala told her, “Honey, you ran a red light.” Ms. Kallenborn explained that, although Ms. Scala lives nearby, the two women did not know each other before the accident.

Ms. Kallenborn testified that two police officers came to the scene shortly after the accident. One of the officers told her to move her car off to the side and she complied. Ms. Scala told one of the officers she witnessed the accident and gave details. Ms. Kallenborn also gave the officer her account of what happened.

Ms. Kallenborn stated that she has lived in the area for about eight years and was familiar with the intersection and the sequence of lights. She stated that, when the light turns red for Metairie Road traffic, the light turns green for Magnolia first than for Codifer, assuming there are cars on Magnolia waiting for the light.

Ms. Kallenborn stated with certainty that she waited until the light on Magnolia was green before entering the intersection. She denied anticipating the light and going forward while the light was still red. She saw the motorcycle driving on Metairie Road about to hit her car, but she could not be precise about how many seconds that was before the impact happened. However, Ms. Kallenborn testified that she was in the center of Metairie Road when she saw Ms. Durapau coming, and there was no way to avoid the accident.

IfiMs. Scala testified that she lives about two blocks away from the intersection at which the accident occurred. She was stopped at a red light on Codifer when she witnessed the accident. She was in the left lane and could see the light facing Metairie Road. It was green at the time. The light went from green to yellow and finally to red. A few seconds later, Ms. Scala saw a motor scooter approaching the intersection, traveling eastbound on Me-tairie Road. The scooter ran into the side of a truck that had entered the intersection from Magnolia Street. Ms. Scala estimated the speed of the motor scooter at about 35 miles per hour. Ms. Scala pulled over, parked her car, and went over to see if she could help the motor scooter rider. The rider had a large gash in her chin and her leg appeared to be broken. The rider asked Ms. Scala what happened, to which Ms. Scala replied, “Baby, you ran a red light.”

Ms. Scala also testified that Officer Lamar Hooks, Jr. (“Officer Hooks”), with whom Ms. Scala is acquainted, was driving by and stopped to direct traffic until the investigating officer arrived on the scene. Shortly afterward, Officer Dominick Im-bornone (“Officer Imbornone”) arrived and conducted the accident investigation. Ms. Scala testified that she also knows Officer Imbornone’s wife.

Officer Imbornone testified at trial regarding his investigation of the accident. He stated that, when he arrived on the scene, there was a motor scooter lying on top of the rider in the intersection of Me-tairie Road and Magnolia Street. The second vehicle involved was an SUV parked on the corner of Codifer Street and Me-tairie Road. Officer Hooks was already there, directing traffic and rendering aid to Ms. Durapau. Officer Hooks had called emergency medical personnel, who had not yet arrived.

Ms. Durapau was in extreme pain, so Officer Imbornone was unable to get a statement from her. However, he did obtain statements from Ms. Kallenborn and |7Ms. Scala. Ms. Scala told Officer Imbor-none that Ms. Kallenborn was stopped at the red light at Magnolia. When the signal turned green, she proceeded onto Me-tairie Road and was struck by a motor scooter traveling eastbound on Metairie Road that ran a red light.

Officer Imbornone confirmed Ms. Scala’s testimony that his wife had formerly worked for Ms. Scala but had quit about four years before the accident. He stated that nothing in that relationship affected this accident report.

Officer Hooks testified that he was driving eastbound on Metairie Road at the time of the accident. There were about ten cars in front of his as he stopped for the red light at Magnolia. When the light turned green and traffic did not move, he became aware of a problem at the intersection. Officer Hooks turned on the lights on his police car and drove up a turning lane to discover the cause of the obstruction. He saw Ms. Durapau on the ground and her motor scooter was on top of her. The SUV was parked off to the side.

Ms. Scala was there trying to help Ms. Durapau. Officer Hooks’ first concern was to aid Ms. Durapau, who was in great pain. He called in to report the accident and to get medical help for Ms. Durapau.

Officer Hooks testified that he has known Ms. Scala for about twenty years because he is friends with Ms. Scala’s son. Ms. Scala told Officer Hooks that she saw the suburban cross the intersection and the motor scooter run the red light and hit it.

Officer Hooks also stated that he recalled seeing Ms. Scala in the Shell Service Station parking lot at the intersection of Metairie Road and Codifer as he was driving up Metairie Road to the intersection.

Stephen Strength (“Mr. Strength”), a civil engineer employed by the Louisiana Department of Transportation and Development as the District Traffic |sOperations Engineer, testified as an expert witness. Mr. Strength explained that he is responsible for conducting studies related to improving safety and efficiency of the State highway system within the New Orleans Metropolitan Area. His department oversees the maintenance and operation of traffic signals, signs, striping, setting of speed limits, and other related responsibilities.

Mr. Strength testified that the intersection at which the accident happened is a merge of Metairie Road, Codifer Street, and Magnolia Street. He explained that on the Codifer and Magnolia approaches to Metairie Road there is a traffic light. There is also a left-turn arrow that comes on simultaneously with the green light on each approach street. To aid in his explanation, Mr. Strength produced a Traffic Signal Inventory form for that intersection dated October 19, 2006, which shows the pattern and sequencing of the traffic lights. He verified that the pattern and sequencing has not been changed since that day and would have been the same on the day of the accident.

Mr. Strength testified that the intersection in question has detectors imbedded in the pavement of all three streets to sense the traffic flow. The detectors adjust the timing of the traffic lights within a pre-set maximum and minimum time as necessary to keep traffic flowing smoothly.

The normal sequence is a green light for both approaches of Metairie Road simultaneously, followed by a green phase for the Codifer approach, followed by one for Magnolia. However, it is possible for the detectors to skip an approach if there is no vehicle there. Once either or both phases to a red light for the approach streets is complete, the light on Metairie Road would turn green and remain so until a vehicle approached on Codifer or Magnolia. Mr. Strength further explained that the span of time for a green light on Metairie Road is from ten to forty-five 13seconds depending on the amount of traffic. However, if there were no traffic on the two side streets, the green light on Metairie Road would stay lit for an unlimited time.

For the green light at Magnolia, the minimum period is three seconds and the maximum is ten seconds. If a vehicle moves onto Metairie Road from Magnolia when the light turns green, and no other vehicle is detected, the light will go to yellow and phase to red. However, the system allows for “passage time” to ensure a vehicle starting out on a green light crosses the intersection safely. Thus, the light will stay green on the side streets longer if another vehicle is detected in the intersection.

Mr. Strength also explained that there is an additional red clearance time during which the light will be red for all three streets. The minimum for the red light hold is 2.4 seconds and the maximum is 3.1 seconds depending on the amount and location of the traffic.

Mr. Strength testified that there were no malfunctions in the traffic light regulating that intersection around the date of the accident according to maintenance records. He further stated that the sensors in the street would be able to detect the small scooter that Ms. Durapau was riding.

Raymond Burkart (“Mr. Burkart”), an expert in traffic accident reconstruction, testified at trial. He stated that he reviewed the Traffic Signal Inventory, and the depositions of the parties and a witness and the investigating officer. Further, Mr. Burkart went out to the accident scene to conduct an investigation. He took certain measurements and photographs to aid in his reconstruction of the accident.

Mr. Burkart testified that the timing sequence he personally observed in his investigation supported Mr. Strength’s testimony. Mr. Burkart’s testified there is | insome question about where Ms. Scala was located when the accident happened and also discrepancies in the time line. In Ms. Scala’s deposition, she first stated she watched the SUV for about twenty seconds; later, she changed the estimate to about five seconds. Given the detectors and the sequence of the lights, that is a problem.

Mr. Burkart testified that the light facing Metairie Road is visible from Magnolia. His assumption was that Ms. Kallenborn anticipated the green light and entered the intersection early, before the light actually turned green.

LAW AND ANALYSIS

As previously stated, the jury ultimately found that Ms. Kallenborn was negligent, but that negligence was not a legal cause of the accident. The nature of Ms. Kallenborn’s negligence is not evident from the findings of the jury. The trial court adopted the jury’s verdict in a final judgment. A motion for a JNOV was filed by Ms. Durapau and denied by the trial court. In that same judgment, the trial court also denied an alternative motion for new trial and made the verdict of the jury the judgment of the court.

The judgment on review is a judgment denying Ms. Durapau’s motion for JNOV. A JNOV is permissible pursuant to La. C.C.P. art. 1811. The strict criteria for granting a JNOV is predicated on the rule that when there is a jury, the jury is the trier of fact. Issues regarding finding of facts and determinations on credibility are within the purview of the trier of fact. A reviewing court does not assess the credibility of witnesses or reweigh the evidence. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.

InConsidering the above principles, the Louisiana Supreme Court has set forth the criteria to be used in determining when a JNOV is proper as follows:

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions .... In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party....

In reviewing a JNOV, an appellate court must first determine whether the district judge erred in granting the JNOV by using the above-mentioned criteria in the same way as the district judge in deciding whether to grant the motion. Thus, the appellate court must determine whether the “facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.”

In brief to this Court, Ms. Durapau asserts the decision by the jury, and the final judgment rendered by the trial court adopting that decision, is based on manifestly erroneous factual and legal findings. In support of that assertion, Ms. Durapau argues that causation was not at issue. Consequently, the only issue to be resolved at trial was the negligence of the parties. Specifically, whether one or both drivers ran red lights and the percentage of fault, if any, that should be attributed to Ms. Durapau. In conclusion, Ms. Durapau argues the trial court’s decision to deny the motion for a JNOV was in error.

|12The main thrust of Ms. Durapau’s argument is that, once the jury found negligence in Ms. Kallenborn’s actions, causation is a given. We note that, although Ms. Durapau emphasizes that there was no issue of causation as between the accident and the injuries, that fact does not preclude the issue of legal cause for the accident.

Ms. Kallenborn and State Farm argue that negligence and legal cause are separate elements to be considered by the jury, and that the finding that Ms. Kallenborn’s negligence was not a legal cause of the accident is supported by competent evidence presented at trial.

Ms. Durapau’s cause of action was based on a theory of negligence which requires a duty/risk analysis. A duty/risk analysis involves five elements, which must be proved by the plaintiff: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).

Given the above-cited jurisprudence, we agree with Ms. Kallenborn’s assessment that negligence and legal cause are two separate elements which must both be proven in order to be successful in a negligence cause of action. Conversely, we reject Ms. Durapau’s assertion that legal cause is a “given” once negligence is proven.

Ms. Durapau argues that once negligence of a defendant is found in a two-vehicle accident intersectional collision, causation is a given. She further argues 113that a finding of negligence with a finding of no causation is unreasonable. In support of that theory, Ms. Durapau cites Eubanks v. Dr. John Solomon Chiropractic Clinic, et al. Eubanks is a medical malpractice action in which Mr. Eubanks suffered acute pain immediately after neck manipulation by a chiropractor and was diagnosed with a ruptured cervical disc. The jury found no liability and dismissed plaintiffs action. The trial court granted a JNOV upon a finding by the trial court that “the jury disregarded the charges on causation, and that the facts and inferences point so strongly and overwhelmingly in favor of plaintiff that reasonable men could not have arrived at a contrary verdict.”

Eubanks is clearly distinguishable from the matter before us. The issue in Eu-banks related to a causal connection between the treatment of the plaintiff and the injury, a matter which has been established in the matter before us by stipulation. It is also an appeal from the grant of a JNOV. The trial court in Eubanks used the proper standard for granting a JNOV and, given the facts presented, this Court affirmed the trial court.

Another case relied upon by Ms. Dura-pau is also distinguishable. She cites Jackson v. A.L. & W. Moore Trucking for the proposition that the only permissible view of the evidence is that Ms. Kallen-born’s negligence was a legal cause of the accident. In Jackson, the jury found that both drivers in an intersectional collision were negligent and assigned fault to each. However, the jury also found that neither was a legal cause of the accident. In that case, the trial judge correctly found that the jury was confused and the verdict was contrary to law and facts. If both drivers were determined to be negligent, and assessed degrees of fault, then there must be a finding of legal cause by the driver(s).

|uIn the instant case, the jury found that Ms. Kallenborn was negligent, although the specific actions leading to that determination are not evident. There was no determination of Ms. Durapau’s negligence. The jury found that, although Ms. Kallenborn’s conduct was substandard, it was not the legal cause of the accident. Under the duty/risk analysis the jury found that, although Ms. Kallenborn had a duty to Ms. Durapau and that Ms. Kallen-born breached that duty, that breach was not within the scope of liability or scope of protection owned to Ms. Durapau.

Ms. Durapau argues in brief that Ms. Kallenborn “simply presumed her light would turn green” and proceeded into the intersection too early. Ms. Durapau argues that the opinion of her expert, that but for Ms. Kallenborn’s “jumping” the light the collision would not have occurred, was not contradicted. Although that may be Ms. Durapau’s determination of the facts, we are reminded that a JNOV should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover.

We do not find the evidence presented at trial reaches that high standard. The evidence opposed to the motion is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. The jury could have found that Ms. Durapau ran a red light and was the legal cause of the accident and that Ms. Kallenbom’s negligent actions was minor and not a legal cause of the accident.

hfiGiven the jurisprudence and the facts of this case, we do not find the trial court erred in denying the JNOY and affirming the verdict of the jury. Accordingly, we affirm the judgment of the trial court and assign all costs of this appeal to Ms. Dura-pau.

AFFIRMED.

      . Mr. Strength was unable to attend the trial so his testimony was offered by video deposition.

      . Smith v. State, Dep’t of Transp. & Dev., 04-1317, 04-1594 (La.3/11/05), 899 So.2d 516.

      . Castillo v. Clerk of Court for 29th Judicial District, 06-662 (La.App. 5 Cir. 1/30/07), 951 So.2d 1258, writ denied, 07-0359 (La.3/30/07), 953 So.2d 69.

      . Joseph v. Broussard Rice Mill, Inc., 00-0628 (La. 10/30/00), 772 So.2d 94, 99 (citations omitted).

      . VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La.l 1/28/01), 801 So.2d 331, 339.

      . Id. (quoting Joseph, 772 So.2d at 99).

      . Smith v. AFS, Inc., 08-332 (La.App. 5 Cir. 10/28/08), 998 So.2d 168, 169-170.

        . 99-425 (La.App. 5 Cir. 2/16/00), 756 So.2d 517.

      . Id. at 519.

      . 609 So.2d 1064 (La.App. 2 Cir. 1992).

      . Joseph v. Broussard Rice Mill, Inc., supra.

      . Id.


author: BROWN, Chief Judge.

text:
    ARGONAUT GREAT CENTRAL INSURANCE COMPANY, Plaintiff-Appellant v. W. David HAMMETT and Davenport, Files & Kelly, L.L.P., Defendants-Appellees.
    No. 44,308-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 3, 2009.

      The Bezou Law Firm by Jacques Bezou, Christine Voelkel, Mandeville, for Appellant.
    Allen & Gooch, a Law Corporation by James H. Gibson, Lafayette, for Appellees.
    Before BROWN, WILLIAMS, and GASKINS, JJ.
   BROWN, Chief Judge.

hOn May 2, 2000, plaintiff, Argonaut Great Central Insurance Company (“Argonaut”), instituted this legal malpractice action naming attorney W. David Hammett, and the law firm of Davenport, Files and Kelly, L.L.P. (“Hammett/Davenport”), as defendants. The alleged malpractice concerns Hammett/Davenport’s failure to timely file Argonaut’s third party claim(s) for negligence and indemnity against Argonaut’s broker/agent Powell Insurance Company (“Powell”). This matter previously came before this court in Argonaut Great Cent. Ins. Co. v. Hammett, 39,024 (La.App. 2d Cir.11/17/04), 887 So.2d 704, writ denied, 04-3172 (La.02/25/05), 894 So.2d 1151, as a result of Argonaut’s objection to the granting of a motion for summary judgment in favor of defendants by the trial court. This court reversed the judgment of the trial court and remanded for further proceedings. On remand, following additional discovery, Hammett/Davenport filed a second motion for summary judgment, which the trial court granted. We are constrained to again reverse and remand.

Facts

This action arises out of an automobile/motorcycle accident that occurred on May 25, 1995. The relevant facts and procedural history are set forth in this court’s opinion in Huffman v. Goodman, 34,361 (La.App. 2d Cir.04/04/01), 784 So.2d 718, writ denied, 01-1331 (La.06/22/01), 794 So.2d 791.

In Huffman, this court affirmed the dismissal of Argonaut’s third party claims for negligence and indemnity against Powell because they had |¡>been extinguished by peremption, and the supreme court subsequently denied writs. In our opinion, this court wrote:

[W]e begin our analysis with the three-year peremptive period. Argonaut’s cross claim/third party demand was filed on October 17, 1998, clearly more than three years after the issuance of the binder [by Powell] on May 23, 1995.
Argonaut’s cross claim/third party demand [against Powell] was extinguished by the three-year peremptive period. In light of this finding, the issue of the one-year peremptive period is moot.

Huffman, 784 So.2d at 730, 734.

As a result of this ruling, the legal malpractice action against Argonaut’s attorneys, Hammett/Davenport followed.

Discussion

As set forth by this court in Huffman, supra, the three-year peremptive period against the broker/agent began in May 1995, the date Powell issued a $1,000,000 binder for hired and non-owned (“H & NO”) coverage in favor of Podnuh’s BarB-Q contrary to instructions given by Argonaut. In Huffman’s lawsuit, Argonaut was named as a defendant in October 1997. Argonaut hired Hammett/Davenport as its attorneys in November 1997. Because the three-year peremptive period ended in May 1998, Hammett/Davenport had approximately seven months to assert Argonaut’s claim against Powell; however, a claim was not filed until October 1998.

As a result of defendants’ failure to timely file a claim against Powell, Argonaut instigated the instant action against Hammett/Davenport for legal malpractice. Hammett/Davenport now argues that the one-year peremptive | ¡¡period provided in La. R.S. 9:5606 applies, and therefore, when they were retained in November 1997, Argonaut’s underlying action against Powell was already extinguished.

La. R.S. 9:5606 states, in pertinent part:
A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

In the first Argonaut case, this court explained the issue presented at that juncture. This explanation is equally relevant in the instant case, also involving a summary judgment motion filed by defendants.

In Huffman, as previously stated, we found Argonaut’s third-party claim against Powell to be perempted under the three-year peremptive period of La. R.S. 9:5606. Accordingly, in that opinion, we did not address application of the one-year peremptive period.
La. R.S. 9:5606 establishes a one-year peremptive period in which a party can file suit against an insurance agent. This period begins running from the date the plaintiff discovered or should have discovered the alleged act, omission, or neglect. Once it commences, the peremptive period is not subject to contra non valentem; the discovery rule merely provides the starting point of the peremptive period and is not a suspension or interruption as with contra non.
See Huffman, supra. The action is extinguished if the plaintiff fails to file within the one-year period.
|4In the current action, application of the one-year period is a critical inquiry as Hammett/Davenport argues, inter alia, that Argonaut’s third-party claim was perempted under the one-year period before it was hired, as Argonaut’s counsel in the matter' in November 1997. For this reason, Hammett/Davenport asserts that the trial court was correct to grant summary judgment in its favor in this malpractice action. On the other hand, Argonaut maintains that there are genuine issues of material fact regarding when it had actual or constructive knowledge of the error made by Powell in binding H & NO coverage to Pod-nuh’s. After reviewing the deposition testimony and documents submitted on the motion, we agree that factual disputes exist in this regard sufficient to make summary judgment inappropriate on this issue.
As previously stated, the one-year per-emptive period commences on the date the plaintiff discovered or should have discovered the alleged act, omission, or neglect, which, in this case, is Powell’s erroneous issuance of the binder reflecting hired and non-owned coverage in favor of Podnuh’s in May 1995. The specific issue, therefore, is when Argonaut discovered or should have discovered Powell’s erroneous issuance of the binder.

Argonaut, 887 So.2d at 708-09.

The newly discovered evidence presented by defendants in this second motion for summary judgment showed that in August 1995, Powell issued two certificates of insurance to third parties which erroneously indicated that Podnuh’s had H & NO coverage from Argonaut. Powell also issued certificates of coverage to third parties in August and October 1996 which again indicated that Podnuh’s had H & NO coverage through Argonaut. Powell’s explanation for the issuance of the certificates is that, once the information was mistakenly entered into the agency’s computer (i.e., when the “x” marks were mistakenly placed on the binder), the computer would automatically note the H & NO coverage until corrected. Copies of each of these certificates of insurance were sent to and received |Bby Argonaut, and Argonaut’s receipt of those certificates is the basis for the claim that Argonaut had knowledge of the error as early as August of 1995.

Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Waste Management of Louisiana, L.L.C. v. Labor Finders International, 43,-052 (La.App. 2d Cir.02/27/08), 978 So.2d 1058. A motion for summary 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 as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

A “genuine issue” is one on which reasonable persons could disagree. Khan v. Richey, 40,805 (La.App. 2d Cir.04/19/06), 927 So.2d 1267, unit denied, 06-1425 (La.11/03/06), 940 So.2d 662. A “material fact” is one which potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Id.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and doubt must be resolved in the opponent’s favor. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.02/29/00), 755 So.2d 226; Knowles v. McCright’s Phar macy, Inc., 34,559 (La.App. 2d Cir.04/04/01), 785 So.2d 101. Summary judgment is usually inappropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. | Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.07/05/94), 639 So.2d 730.

Whereas the first Argonaut case examined the issuance and receipt of the binders as well as the certificates of insurance to determine whether Argonaut had actual or constructive knowledge of Powell’s error, the focus of the second motion for summary judgment and this appeal is only upon the certificates of insurance. Thus, the issue presently before us is whether the certificates of insurance issued by Powell, copies of which were sent to and received by Argonaut, constituted constructive knowledge on Argonaut’s part of erroneously bound H & NO coverage so as to commence the one-year peremptive period set forth in La. R.S. 9:5606.

As previously stated, the discovery rule merely provides the starting point for the running of the one-year peremptive period, and once commenced it cannot be suspended or interrupted. Huffman, supra. If a plaintiff fails to file his/her action within the peremptive period, that action is extinguished. La. C.C. art. 3458. Should, however, a plaintiff never glean actual or constructive knowledge of the alleged act, omission, or neglect, the action must nonetheless be brought within three years of the alleged act, omission, or neglect. Huffman, supra.

An injured party has constructive knowledge when it has sufficient information to incite curiosity, excite attention, or put a reasonable person on guard and to call for an inquiry. The Kroger Co. v. L.G. Barcus & Sons, Inc., 43,804 (La.App. 2d Cir.01/14/09), 2 So.3d 1163; Thomas v. Crawford, 42,386 (La.App. 2d Cir.09/26/07), 966 So.2d 786.

|7In the case sub judice, Hammett/Davenport contends that Argonaut had constructive knowledge of facts such that it could have known about Powell’s binding H & NO coverage in favor of Podnuh’s as early as August 1995, which is when Argonaut began receiving copies of certificates of insurance from Powell indicating that such coverage was in effect. Argonaut asserts, however, that the certificates of insurance were issued for the benefit of third parties, and as such, and in accordance with standard practices in the insurance business, the certificates did not warrant careful examination as they related to the underlying policy. In fact, the deposition testimony of Argonaut’s underwriters states that, although it could be done, it was standard practice not to compare certificates of insurance with the related policies.

The trial court’s basis for granting Hammett/Davenport’s motion for summary judgment rested solely upon the discovery of additional evidence showing when Argonaut received possession of the certificates of insurance. In fact, the trial court stated that “there are no genuine issues of material fact as to when (August 1995) Argonaut received possession of the certificates of insurance and other relevant documents.” Although it may be correct that there are no genuine issues of material fact as to when Argonaut received the certificates of insurance, we find that there remains a genuine issue of material fact as to whether the certificates of insurance themselves impute constructive knowledge of Powell’s error to Argonaut. The certificates of insurance reflecting H & NO coverage were attached to requests from Powell to add additional insureds, locations, or mortgagees and were issued for the Isbenefit of third party certificate holders. None of the documents or the certificates that were attached pertained to H & NO coverage. And while establishing possession of certain documents is often sufficient to prove actual or constructive knowledge of the contents of those and related documents, this is not an absolute.

Thus, the question is whether Argonaut’s mere possession of the certificates of insurance, which reflected H & NO coverage but did not directly pertain to the H & NO coverage, would prove knowledge of their content. If it were determined that Argonaut acted reasonably in its handling of the certificates of insurance issued by Powell, should it nonetheless be charged with constructive knowledge of Powell’s erroneous binding of H & NO coverage as a result of receiving the certificates? Further, would that not essentially be saying that an insurance company’s receipt of certificates of insurance should incite curiosity and require an inquiry into whether improper coverage has been reflected? We note that it could potentially be overly onerous on a large insurance company such as Argonaut to require its underwriters to reassess an underlying policy each time it receives a certificate of insurance from one of its agents. The determination of the above queries has a direct effect on when Argonaut discovered or should have discovered Powell’s error.

Simply put, this is not a matter of whether Argonaut could have discovered Powell’s error, but rather a matter of whether, due to its possession of the certificates of insurance, Argonaut should have discovered Powell’s error. See La. R.S. 9:5606. The reasonableness of ^Argonaut’s standard practice of not comparing certificates of insurance to the related policy, whether that practice is in conformity with the standard practice of the insurance business as a whole, and whether Argonaut had a heightened duty to examine the certificates of insurance pertaining to Podnuh’s since it had previously denied Podnuh’s H & NO coverage, are all issues on which either reasonable persons could disagree or the weighing of conflicting evidence is required. As such, there clearly remains a genuine issue of material fact as to whether, as a result of receiving the certificates of insurance, Argonaut should have discovered Powell’s error.

Thus, after resolving all doubt in favor of Argonaut, we find that the trial court erred in granting summary judgment based upon its determination that no genuine issues of material fact exist regarding when, prior to being sued in October 1997, Argonaut discovered or should have discovered Powell’s erroneous binding of H & NO coverage in favor of Podnuh’s.

Conclusion

For the reasons stated herein, the judgment of the trial court granting summary judgment in favor of defendants, W. David Hammett and Davenport, Files & Kelly, L.L.P., is hereby reversed, and the matter is remanded for further proceedings. Costs of this appeal are assessed to defendants.