author: PER CURIAM. PETTIGREW, J., HUGHES, J., GAIDRY, J., KUHN, J., GUIDRY, J., PARRO, J.,

text:
    Cathy REINHARDT, individually and on behalf of her minor son, Joseph Untz, II v. Terry L. BARGER and Barbara Barger, individually and on behalf of the Minors, Brandon Barger, Brent Barger and Jacob Barger and ABC Insurance Company.
    No. 2007 CA 2363.
    Court of Appeal of Louisiana, First Circuit.
    April 29, 2009.
    Rehearing Denied June 30, 2009.

    John W. Redman, Margaret E. Madere, New Orleans, LA, for Plaintiffs-Appellants, Cathy Reinhardt, et al.
    Peter L. Donovan, Metairie, LA, for Defendants-Appellees, Terry L. Barger, et al.
    Jude H. Trahant, Jr., Madisonville, LA, for Defendant-Appellee, Allstate Insurance Company.
    Before CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDonald, McClendon, hughes, and WELCH, JJ.

       Pettigrew and Hughes, JJ., dissent and would grant a rehearing.

   PER CURIAM.

|TIn the courts of appeal of the State of Louisiana, “[a] majority of the judges sitting in a case must concur to render judgment.” La. Const. Art. Y, § 8(B). Because the en banc panel of this court is evenly split, no majority has concurred to reverse or modify the trial court’s judgment; thus, the judgment of the trial court must stand, and the effect of the court of appeal’s vote is to affirm the trial court’s judgment as rendered. Parfait v. Transocean Offshore, Inc., 2007-1915 (La.3/14/08), 980 So.2d 634, 638-639.

TRIAL COURT JUDGMENT STANDS.

KUHN, GUIDRY, GAIDRY and HUGHES, JJ., concur and assign reasons.

PARRO, J., concurs and assigns reasons, joined by McCLENDON, J.

PETTIGREW, J., concurs and assigns reasons, joined by DOWNING and WHIPPLE, JJ.

WELCH, J., concurs with the reasons assigned by PETTIGREW and HUGHES, JJ.

McDONALD, j., concurs for reasons assigned by KUHN, GAIDRY, and PARRO, JJ.

PETTIGREW, J.,

concurring.

|, Although I am compelled to concur with the per curiam because this court’s en banc panel is evenly split, I take this opportunity to express why I am of the opinion the trial court should be reversed.

This is an action for personal injuries sustained by a minor child, who was allegedly attacked and beaten by several of the defendants. The mother of the injured minor instituted the present lawsuit, both individually and on behalf of her child, seeking recovery for the negligent and intentional acts of the defendant parents, their grown children, and their minor child for whom the parents are vicariously liable. The trial court granted summary judgment in favor of the defendants’ homeowner’s insurer based upon an intentional act exclusion contained in the policy. For the reasons that follow, I am of the opinion the trial court should be reversed and this matter should be remanded for further proceedings.

FACTS

Cathy Reinhardt, plaintiff herein, filed the instant suit on July 7, 2005, seeking to recover damages for personal injuries allegedly sustained by her minor son, Joseph Untz, II (“Joey”), when he was involved in a fight with one or more members of the Barger family in front of the Barger residence. Named as defendants in this matter are Terry L. |2Barger (“Mr. Barger”), his wife, Barbara Barger (“Mrs. Barger”), their sons, Brandon Barger, Brent Barger, and Jacob B. Barger, together with Allstate Insurance Company (“Allstate”), in its capacity as the homeowner’s insurer of Mr. and Mrs. Barger.

Ms. Reinhardt has alleged in her petition that on or about January 2, 2005, Joey was brutally attacked and beaten without provocation by Mr. Barger and his sons, Brandon, Brent, and Jacob, while on the Barger property situated at 304 Cumberland Street in Slidell, Louisiana. The record also reflects that Mr. Barger and two of his sons, Brent and Jacob, later pled guilty to simple battery on Joey in connection with this incident. The parties do not dispute that Mr. Barger and Mrs. Barger are the natural parents of Brandon, a minor at the time of the alleged beating, who resided with his parents at the Cumberland Street address.

Mr. and Mrs. Barger purchased a homeowner’s policy through Allstate that provides coverage for personal injuries sustained on the premises. Ms. Reinhardt has also alleged that Mr. and Mrs. Barger are vicariously liable for any tortious acts committed by their minor son, Brandon, pursuant to La. Civ.Code art. 2318. Additionally, the parties do not dispute that Mrs. Barger took no part in the alleged beating.

ACTION OF THE TRIAL COURT

In response to the petition for damages filed by Ms. Reinhardt, Allstate filed a motion for summary judgment seeking dismissal of Ms. Reinhardt’s claims against the insurer on the ground that the homeowner’s policy issued to the Bargers excludes from coverage any liability arising from intentional acts on the part of an insured (the “intentional acts exclusion”).

In a judgment rendered in open court on March 6, 2007, and signed on March 19, 2007, the trial court granted Allstate’s motion for summary judgment and dismissed all claims against the homeowner’s insurer with prejudice. Ms. Reinhardt thei’eafter filed an application for a supervisory writ and reversal of the summary judgment in favor of ^Allstate. This court later denied Ms. Reinhardt’s writ application and ordered that the case be remanded to the trial court with instructions to grant Ms. Reinhardt an appeal. Ms. Reinhardt was directed to submit an order for appeal to the trial court within thirty days.

Due to Ms. Reinhardt’s failure to file her motion for appeal until thirty-one days after entry of this court’s order, Allstate filed a motion seeking to dismiss the appeal. On March 5, 2008, a panel of this coui’t denied Allstate’s motion and maintained Ms. Reinhardt’s appeal.

ISSUE PRESENTED FOR REVIEW

The sole issue presented by this appeal is whether an intentional act exclusion contained within the provisions of a homeowner’s policy that purports to exclude coverage for damages resulting from a parent’s vicarious liability for the intentional acts of their minor child, contravenes the public policy of the State of Louisiana.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Coop., Inc., 2001-2956, p. 3 (La.App. 1 Cm. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cm. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does [4not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. ExxonMo- bile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

DISCUSSION

This case presents no genuine dispute as to the material facts alleged in the petition with respect to how the injury occurred. The critical issue therefore is whether, in light of the undisputed facts, Allstate is entitled to judgment as a matter of law based upon the exclusion contained within its policy. In her brief to this court, Ms. Reinhardt asserts that the legal question posed by the instant appeal is whether it is against the public policy of this state to allow a homeowner’s insurer, i.e., Allstate, to exclude coverage for damages resulting from a parent’s vicarious liability for the intentional acts of his or her minor child. For purposes of the instant appeal, Ms. Reinhardt has conceded that any intentional torts allegedly committed by the adult defendants, ie., Mr. Barger, Brent, and Jacob, are excluded from coverage under the intentional acts exclusion set forth in the Allstate policy. Ms. Reinhardt further urges that the trial court’s rendition of 15summary judgment should be i'eversed because the exclusion of coverage for a parent’s vicarious liability resulting from an intentional act committed by a minor child is against the public policy of this state as well as a specific directive of the Louisiana Commissioner of Insurance (“Commissioner”).

The interpretation of an insurance contract is nothing more than a determination of the common intent of the parties. Doerr v. Mobil Oil Corporation, 00-0947, p. 4 (La.12/19/00), 774 So.2d 119, 124; see also La. Civ.Code art.2045. The initial determination of the parties’ intent is found in the insurance policy itself. Doerr, 00-0947 at 5, 774 So.2d at 124. In analyzing a policy provision, the words, often being terms' of art, must be given their technical meaning. Id.; see also La. Civ. Code art.2047. When these technical words are unambiguous and the parties’ intent is clear, the insurance contract will be enforced as written. Doerr, 00-0947 at 5, 774 So.2d at 124; see also La. Civ.Code art.2046. Courts lack the authority to change or alter the terms of an insurance policy under the guise of interpretation. Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Company, 93-0911 (La.1/14/94), 630 So.2d 759, 764. If on the other hand, the contract cannot be construed simply, based on its language, because of an ambiguity, the court may look to extrinsic evidence to determine the parties’ intent. Doerr, 00-0947 at 5, 774 So.2d at 124.

When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms. On the other hand, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy. When making this determination, any ambiguities within the policy must be construed in favor of the insured to effect, not deny, coverage. Id.

The purpose of liability insurance is to afford the insured protection from damage claims. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Ambiguous policy provisions generally are to be construed against the insurer who issued the policy and in favor of coverage to the insured. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer, since these are prepared by the insurer and the insured had | nno voice in the preparation. Louisiana Insurance Guaranty Association, 630 So.2d at 764. The determination of whether a contract is clear or unambiguous is a question of law. Watts v. Aetna Casttalty and Surety Co., 574 So.2d 364, 369 (La.App. 1 Cm.), writ denied, 568 So.2d 1089 (La.1990). Subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. See Reynolds, 634 So.2d at 1183.

The exclusionary clause contained in the Allstaté policy that formed the basis of the trial court’s grant of summary judgment provides as follows:

SECTION II — Family Liability and Guest Medical Protection
Coverage X
Family Liability Protection
Losses We Cover Under Coverage X:
Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.
* * * *
Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of any insured person. This exclusion applies even if:
a) such insured person lacks the mental capacity to govern his or her conduct;
b) such bodily injury or property damage is of a different kind or degree than intended or reasonably expected; or
c) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime. [Bold emphasis supplied]

|7In connection with the trial court’s grant of Allstate’s motion for summary judgment, the following colloquy took place:

THE COURT:
I grant the Motion for Summary Judgment. I think it’s well established that insurance companies are only responsible for the negligent acts of their [sic] minor children. The only thing you could possibly argue is that they didn’t mean to beat him up so badly, or they didn’t understand their own strength. Also, your client had a little bit to do with this. He went over their [sic] with a bat after an argument ensued, alleged, about him calling too late at night and he went over to settle the score. I guess he was friends with one of the Bargers, and I guess he didn’t expect to get beaten up.
I note your objection for the record.
[Counsel for defendant ALLSTATE]:
I’ll prepare a judgment, Your Honor.
THE COURT:
The Court finds, as a matter of fact, there’s no genuine issue of material fact as to the exclusion in the policy. It’s quite clear from all the pleadings that Allstate has no liability in this matter, at least no obligation to pay for any damages, I should say. I do note, even procedurally today, I think it’s alleged that [Joey] is now a major, but the record doesn’t reflect that he’s been substituted. And since there was no objection raised, I will not address that.
[Counsel for plaintiff]:
Your Honor, just so I’m clear, the Court is making a finding that, as a matter of law, Directive 152 does not apply to intentional acts of minors.
THE COURT:
Yes.
[Counsel for plaintiff]:
Thank you, Your Honor.

In granting Allstate’s motion for summary judgment, the trial court explicitly ruled that Directive Number 152 issued by the Commissioner did not apply to the intentional acts of minors. On appeal Ms. Reinhardt relies upon this directive and argues that the trial court’s grant of summary judgment should be reversed because the exclusion of coverage for a parent’s vicarious liability resulting from an intentional act committed by his or her minor child is against the public policy of this state.

RThe Commissioner of Insurance is a constitutionally-created office, and the elected official holding that office is statutorily charged with the administration of the Louisiana Insurance Code and the protection of the public interest relative to insurance matters. See La. Const. art. IV, § 11; La. R.S. 22:2. In accordance with these statutory mandates, the Commissioner is authorized to promulgate rules and regulations which the Commissioner deems necessary. La. R.S. 22:3. Thus, any rules and regulations issued by the Commissioner are done so with the public’s interest foremost in mind.

On June 9, 2000, the Commissioner issued Directive Number 152, a copy of which is contained within the record of this matter, in response to this court’s decision in Baugh v. Ray, 97-2625 (La.App. 1 Cir. 5/5/99), 751 So.2d 888 (on rehearing). The question presented to the court in Baugh was whether it was against public policy for a homeowner’s insurer to limit coverage due to statutorily-imposed vicarious parental liability without specifically advising the insured of the reduction in coverage. In its per curiam opinion in Baugh, a panel of this court held that our “law does not mandate insurance coverage for vicarious liability arising from the acts of one’s children, and there is no state law or public policy prohibiting a lower limit for parental vicarious liability.” Baugh, 97-2625 at 1, 751 So.2d at 888-89.

In issuing Directive Number 152, the Commissioner reasoned:

When consumers purchase homeowner’s insurance, their intent is to purchase a broad package policy to protect themselves from a broad range of risks that may arise out of homeownership and personal liability. A limitation for liability coverage related to children is not a reasonable expectation of the policyholder. No homeowner would knowingly purchase a homeowner’s policy limiting coverage for them liability with respect to their children.'

As part of this same directive, the Commissioner further declared:

Because the Department of Insurance is charged with the duty of regulating the business of insurance in the public interest, the Department of Insurance views the use of any type of limitation clause in a |flhomeowner’s policy which results in limiting the liability coverage of an insurer for parents’ vicarious liability for acts of their children is against the public interest. [Bold emphasis supplied]

In response to the arguments put forth by Ms. Reinhardt, Allstate contends on appeal that the Allstate policy at issue does not contain any provision addressed in Directive 152.

Additionally, Allstate contends that on its face, Directive 152 does not pertain to the intentional acts exclusion. Allstate argues that Directive 152 does not state that an insurer’s coverage of the parents’ vicai'ious liability for the tort of a child is broader than the parent’s liability for their own torts, or broader than the explicit language of the insuring agreements of the policy. Liability arising from intentional acts is excluded from coverage, whether the parents’ liability is vicarious, for their child’s intentional tort, or direct, for them own intentional tort.

Recently this court handed down the case of P.D. v. S.W.L., 07-2534 (La.App. 1 Cir. 7/21/08), 993 So.2d 240, writ denied, 08-2770 (La.2/13/09), 999 So.2d 1146. In P.D., this court found that the homeowner’s policy issued to the defendants contained an exclusion providing for no personal liability or medical payments coverage for “bodily injury ... [a]rising out of sexual molestation” and precluded coverage under the policy for alleged acts of non-consensual sexual intercourse and non-consensual sexual conduct by defendants’ minor child. See P.D., 07-2534 at 14, 993 So.2d at 248. Although this court was not persuaded by the plaintiffs argument that pursuant to Directive 152, any exclusion that limited coverage for the parent’s vicarious liability for the alleged acts of sexual molestation by their son violated public policy, this court specifically found that the issue of whether Directive 152 precluded application of the sexual molestation exclusion with respect to parental vicarious liability was not an issue before this court. See P.D., 07-2534 at 13, 993 So.2d at 248. Furthermore the court in P.D. specifically pretermitted consideration of the issue of whether it is against the public policy of this State to allow a homeowner’s insurer to exclude coverage for damages resulting from a parent’s vicarious liability for intentional acts of his or her minor child. Id.

| 10In Perkins v. Shaheen, 03-1254 (La.App. 3 Cm. 3/3/04), 867 So.2d 135, the Third Circuit interpreted language from a Fai-m Bureau policy similar to the Allstate provision at issue in this case, and in effect concluded that Directive 152 issued by the Commissioner only prohibits exclusions resulting from a child’s negligent acts, but does not prohibit an exclusion for a minor’s intentional acts. Perkins, 03-1254 at 5, 867 So.2d at 139.

Ms. Reinhardt asserts that the court’s holding in Perkins is not binding on this court. Ms. Reinhardt further points to the fact that Directive 152, pursuant to its terms, is not restricted in its application to parental liability stemming only from a child’s negligent acts. Directive 152 clearly states that “the Department of Insurance views the use of any type of limitation clause in a homeowner’s policy which results in limiting the liability coverage of an insurer for parents’ vicarious liability for acts of their children is against the public interest.” [Emphasis supplied]. It is the position of Ms. Reinhardt that if, in drafting Directive 152, the Commissioner had intended to restrict his comments on parental vicarious liability only to negligent acts, he could have easily done so.

It is the job of the courts to resolve disputes over insurance coverage. Doerr, 00-0947 at 24, 774 So.2d at 134; see La. Const. art. V, § 1. Because of the Commissioner’s role in the regulation of Louisiana insurance law, his opinion regarding matters within his province, such as protection of the public interest in the realm of insurance, is persuasive. Doerr, 00-0947 at 23-24, 774 So.2d at 134. Directive 152 was issued by the Commissioner in direct response to this court’s ruling in Baugh, wherein this court held that an insurance clause limiting parental vicarious liability for the acts of one’s minor children was not contrary to public policy. The Baugh case dealt with an intentional act (i.e., sexual assault) by a minor on another individual. Directive 152 established a public policy prohibiting an insurer from limiting the liability coverage available to parents due to their statutorily-imposed vicarious liability for both the negligent and intentional acts of their minor children.

Directive 152 further declares that “[a] limitation for liability coverage related to children is not a reasonable expectation of the policyholder. No homeowner would Inknowingly purchase a homeowner’s policy limiting coverage for their liability with respect to their children.”

Considering the foregoing, it is my opinion that any exclusion in the Allstate policy that purports to limit coverage to Mr. and Mrs. Barger for their vicarious liability stemming from the acts of their minor child must be considered null and against the public policy of this state.

CONCLUSION

For the reasons set forth above, I would reverse the summary judgment in favor of Allstate, and remand this case to the trial court for further proceedings. I would further hold to the extent this concurring opinion is inconsistent with this court’s previous opinions in Baugh and P.D., these previous opinions would be expressly overruled. .

HUGHES, J.,

concurring with the PER CURIAM action of the court.

IT respectfully disagree with this court’s action. The Commissioner’s Directive 152 is not binding. But Louisiana law forces parents to be responsible for their minor children. They cannot contract away this responsibility. It should be against public policy for an insurer to exclude this risk. It is not a fair bargain for the parents.

The intentional acts exclusion is to prevent adults from acting poorly because they will be covered by the insurance company, not to hang parents out for every shoving match or rock thrown. If parents are required to be responsible for these acts they should have the opportunity to purchase insurance for them.

GAIDRY, J.,

concurring.

hi concur in the per curiam opinion, but believe that the trial court’s judgment should be affirmed on the merits. The policy language is unambiguous in excluding coverage for the intentional or criminal acts or omissions of any “insured person.” Brandon Barger was the minor dependent son of the named insureds and resided with them. He was thus an “insured person” as defined in the policy.

The public policy of this state has long been that an intentional tortfeasor should not be allowed to insure his intentional wrongful acts and thereby elude ultimate personal responsibility for them. The mere fact that the liability of the parents of a minor tortfeasor is vicarious does not in any way negate the rationale for that public policy. This conclusion is self-evident from the parallel policy underlying the strict liability of parents for the torts of their minor children. See La. C.C. art. 2318. The basis for imposition of such liability on parents is their right and duty to control the behavior of their minor children. If parents could be said to “reasonably expect” that them liability insurer would assume financial ^responsibility for their child’s intentional delictual acts, or even crimes, then the parents would have even less incentive to regulate their child’s behavior. (Irresponsible parents might even encourage such behavior on the part of their child, or use their child to commit intentional acts on their behalf, secure in the belief that their insurer would “pick up the tab.”) Directive No. 152 does not explicitly address the issue of vicarious liability for intentional acts, as opposed to negligence, and cannot logically be read as establishing or recognizing a new public policy contrary to the longstanding public policy supporting an “intentional acts” exclusion in a liability policy.

KUHN, J.,

concurring.

| ¶ While this court cannot reach an executable majority addressing the merits of this case, I write separately to address why the trial court’s judgment should be affirmed on the merits.

Plaintiff, Cathy Reinhardt, does not challenge that the acts of defendant, Mr. Barger, and his sons were intentional and that the language of Allstate’s homeowners’ policy excludes liability arising from intentional acts, unless the policy language is deemed against public policy. Plaintiffs sole argument advanced on appeal is that the “intentional act” exclusion contravenes Louisiana public policy, because it applies to a parent’s vicarious liability for the acts of a minor under La. C.C. art. 2318. Plaintiff relies on Louisiana Insurance Commissioner’s Directive 152 to support her argument. That directive states, in pertinent part:

When consumers purchase homeowner’s insurance, them intent is to purchase a broad package policy to protect themselves from a broad range of risks that may arise out of homeownership and personal liability. A limitation for liability coverage related to children is not a reasonable expectation of the policyholder. No homeowner would knowingly purchase a homeowner’s policy limiting coverage for them liability with respect to their children.
Because the Department of Insurance is charged with the duty of regulating the business of insurance in the public interest, the Department of Insurance views the use of any type of limitation clause in a homeowner’s policy which results in limiting the liability coverage of an insurer for parents’ vicarious liability for acts of their children is against the public interest.

|2This language does not specifically address intentional acts of a minor, so it is unclear whether the Commissioner contemplated the factual situation at hand or was attempting to solely address blanket reductions in coverage when the liability is based on the vicarious liability of the parents’ minor children, which would also limit liability for negligent acts. But even if the Commissioner contemplated exclusions for liability based on intentional acts of minors, the Commissioner’s directive is not controlling in this case.

The Office of the Commissioner of Insurance is a constitutionally-created office, and the elected official holding that office is charged with the administration of the Insurance Code and the protection of the public interest in the realm of insurance. See La. Const. Art. IV § 11; La. R.S. 22:2; Doerr v. Mobil Oil Corp., 00-0947, pp. 23-24 (La.12/19/00), 774 So.2d 119, 134. Due to the Commissioner’s role in the regulation of Louisiana insurance law, his opinion regarding matters within this province is persuasive. However, it is the job of the courts to resolve disputes over insurance coverage. See La. Const. Art. V, § 1; Doerr, 00-0947 at p. 24, 774 So.2d at 134. Thus, we cannot allow the commissioner to usurp either the legislative or judicial role.

As a strict constructionist, I believe the role of the judiciary is to apply the laws as written by the legislature. Pursuant to La. C.C. art.2047, “[t]he words of a contract must be given their generally prevailing meaning.” Because there is no ambiguity in the policy in question, its words should be given effect. In the absence of a conflict with a statute or public policy, insurers have the same rights as individuals to limit their liability and impose whatever conditions they desire upon their obligations. Sims v. Mulheam Funeral Home, Inc., 07-0054 (La.5/22/07), 956 So.2d 583, 595. The insurance policy establishes the limits of liability, and that policy is the law between the parties. Id. at pp. 18-19, 956 So.2d Rat 595. When the provisions of the policy are clear and unambiguous, we must enforce the policy as written. La. C.C. art.2046.

The apparent public policy consideration underlying the exclusion of insurance coverage for intentional torts is that a person should not have advance protection against the consequences of his intentional wrongdoing. I see no compelling public policy argument that would contradict the extension of this principle to minors who engage in intentional wrongdoing. Why should the insurer bear the costs that arise from this intentional activity rather than the parents who should be supervising their minor children? Thus, I conclude that Allstate’s policy language should be given effect, and this court should affirm the trial court’s judgment, which granted Allstate’s motion for summary judgment and dismissed plaintiffs claims against Allstate.

GUIDRY, J.,

concurring.

_JjI concur in the per curiam opinion. The language of the policy at issue unambiguously excludes coverage for the intentional or criminal acts or omissions of any “insured person.” Brandon Barger was an insured person as defined by the policy. Therefore, I would affirm the decision of the trial court.

PARRO, J.,

concurring.

hi concur in the per curiam opinion essentially for the reasons set forth by Judge Kuhn. I write separately to emphasize the significance that the division of powers between the legislative, executive, and judicial branches of government has on the merits of this case. See LSA-Const. art. II, § 1.

The sources of law are legislation and custom. LSA-C.C. art. 1. Legislation is the superior source of law in Louisiana. LSA-C.C. art. 1, Revision Comments— 1987, comments (a) and (c). Legislation is a solemn expression of legislative will. LSA-C.C. art. 2. The Louisiana Insurance Code (Code) was enacted by the legislature to regulate the insurance industry, an industry affected with the public interest, in all of its phases. See LSA-R.S. 22:2(A)(1). Pursuant to the authority contained in the Constitution of Louisiana, the office of the commissioner of insurance (commissioner) was created. The duty of the commissioner is to administer the provisions of the Code. LSA-R.S. 22:2(A)(1). Louisiana Revised Statute 22:11 gives the commissioner authority to promulgate rules and regulations necessary for the “implementation” of the Code. Due |2to the commissioner’s role in the regulation of Louisiana insurance law, his opinion regarding matters within this province is persuasive. Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119. However, the commissioner is not the final, definitive arbiter for the interpretation and reconciliation of the Code and insurance policy language. That role is, of course, constitutionally assigned to the judiciary. ANR Pipeline Company v. Louisiana Tax Commission, 01-2594 (La.App. 1st Cir.3/20/02), 815 So.2d 178, 183-84, affirmed and remanded, 02-1479 (La.7/2/03), 851 So.2d 1145. Thus, it is the job of the courts to resolve disputes over insurance coverage. See LSA-Const. art. V, § 1; Doerr, 774 So.2d at 134. By giving the commissioner the authority to administer the Code, the legislature certainly did not intend to empower the commissioner to promulgate rules and regulations that would supersede legislation.

The role of the judiciary is to apply the laws as written by the legislature. See LSA-C.C. art. 9. When a law is clear and unambiguous and its application does not lead to absurd consequences, courts are bound to apply the law as written without resort to determining the legislative intent. See LSA-C.C. art. 9. The words of a law must be given their generally prevailing meaning. LSA-C.C. art. 11.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. LSA-C.C. art.1906. Parties are free to contract for any object that is lawful, possible, and determined or determinable. LSA-C.C. art.1971. Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. LSA-C.C. art. 1983. The words of a contract must be given their generally prevailing meaning. LSA-C.C. art.2047. An insurance policy is a contract between the parties and should be construed |3using the general rules of interpretation of contracts set forth in the Civil Code. LeBlanc v. Aysenne, 05-0297 (La.1/19/06), 921 So.2d 85, 89. Because there is no ambiguity in the policy in question, its words should be given effect. In the absence of a conflict with a statute or public policy, insurers have the same rights as individuals to limit their liability and impose whatever conditions they desire upon their obligations. Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La.5/22/07), 956 So.2d 583, 595.

This court has previously considered whether an endorsement to an insurance policy, limiting the insurer’s liability coverage if liability was due to a statutorily-imposed parental vicarious liability, was against public policy. See Baugh v. Ray, 97-2625 (La.App. 1st Cir.5/5/99), 751 So.2d 888, 888-89. In Baugh, this court found that the law does not mandate insurance coverage for vicarious liability arising from the acts of one’s children and that there is no state law or public policy prohibiting a lower limit for parental vicarious liability. Id. I believe, under the facts of this case, that any attempt by the commissioner in issuing Directive Number 152 to establish a contrary public policy constituted an unauthorized exercise of legislative and/or judicial power.

Accordingly, I would affirm the judgment of the trial court granting Allstate’s motion for summary judgment and dismissing all claims against the homeowner’s insurer, with prejudice.

      . It was later revealed that Joey had a baseball bat concealed in his pants leg for "insurance.”

      . It should be noted that the depositions of the parties in this matter reveal some discrepancy as to who was present and their roles in the battery.

      . In maintaining Ms. Reinhardt’s appeal, this court ruled that although she failed to file an order for appeal within the delay, Ms. Reinhardt nevertheless filed a notice of her intention to seek writs together with a request for a return date order that was signed by the trial court within the delay. In its denial of Allstate's motion, this court cited In Re Howard, 541 So.2d 195, 197 (La. 1989), and ruled that said pleading could be treated as a timely motion for a devolutive appeal.

      . It should be noted that five months after the issuance of Directive 152, this court issued its opinion in Neuman v. Mauffray, 99-2297 (La.App. 1 Cir. 11/8/00), 771 So.2d 283. In Neuman, 99-2297 at 3-4, 771 So.2d at 285, this court held that an intentional act exclusion in an Allstate homeowner’s policy excluded coverage for intentional acts committed by an insured minor in addition to a claim of negligent supervision directed against the parents of said minor. A similar ruling was made in the case of Leslie v. Andrews, 04-2053 (La.App. 4 Cir. 5/25/05), 905 So.2d 368, 372-373, writ denied, 05-1161 (La.5/5/05), 901 So.2d 1077. In both Neuman and Leslie, no issue of Directive 152 was raised by the parties or addressed by the courts; therefore, we find those cases are distinguishable from the case at hand and we decline to follow same.

      . LSA-Const. art. IV, § 11.

      . It has long been the law of this land that it is emphatically the province and duty of the judicial branch to say what the law is. The judicial power is vested in Louisiana courts by Article V, Section 1 of the Louisiana Constitution. The separation of powers doctrine is set forth in LSA-Const. art. II, § 2: "Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” Thus, unless authorized by the Constitution, the executive branch cannot exercise judicial power. ANR Pipeline Com-parry, 815 So.2d at 183-84. The Department of Insurance is included as part of the executive branch of state government; the commissioner serves as the executive head and chief administrative officer of the Department and is also referred to as the "secretary.” See LSA-R.S. 36:4(A)(16), 682, and 685.

      .Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity. LSA-C.C. art. 7.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge. JASMINE, J.

license: Public Domain

text:
    In re B.E.S. Applying for Intrafamily Adoption.
    No. 08-CA-777.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 6, 2009.

      Bernadette R. Lee, Edith H. Morris, Suzanne Ecuyer Bayle, Attorneys at Law, New Orleans, LA, Betsy Fischer, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Mark A. Marino, Attorney at Law, Des-trehan, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, MADELINE JASMINE, Pro Tempore, and JEROME M. WINSBERG, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

|2This is an appeal from a judgment of the trial court denying a petition for intra-family adoption. For the reasons stated herein, we reverse the trial court’s judgment and render judgment in favor of petitioners.

Fact and Procedural History

The minor child, B.E.S. was born on January 22, 2004 and has resided with her mother, C.S.P., since her birth. Although C.S.P. was not married at the time of the child’s birth and the name of the child’s father does not appear on the birth certificate, there is apparently no dispute that K.M.B. is the child’s biological father.

On July 30, 2006, C.S.P. married V.J.P., Jr., and C.S.P. was granted sole custody of B.E.S. one year later. On January 16, 2008, C.S.P. and V.J.P., Jr. filed the present petition for an intrafamily adoption pursuant to |sLSA-Ch. C. art. 1255. On February 19, 2008, K.M.B. filed an opposition to the petition for adoption.

At the trial of this matter in July of 2008, C.S.P. testified that K.M.B. was in jail at the time of the birth of B.E.S. K.M.B. was released from jail when B.E.S. was two and a half years old. He returned to jail just after B.E.S. turned three. During the time K.M.B. was not in jail, B.E.S. visited with K.M.B. twice a week for a few hours and every other Friday over night. K.M.B. lived with his parents at the time of these visits.

C.S.P. testified that in February of 2007, she brought the child to K.M.B. for an over night visit. She explained that the child had been sick and asked that the child not be taken to a birthday party that evening. C.S.P. testified that K.M.B responded that it was his night and he would do whatever he wanted with the child. C.S.P. testified that she asked the father of K.M.B, B.B. to make sure the child was not taken out that night. B.B. responded that K.M.B. could do whatever he wanted with the child. C.S.P. further testified that B.B. then pushed her out of the house and slammed her against the wall causing her husband to “pull the two of them off of me.” C.S.P. testified that this caused the child to cry. She explained that after this incident when the child saw pictures of KM.B.’s family, she would state she did not go to their house because they are mean and they pushed her mom. A-though the police were called, no charges were filed as a result of this event. C.S.P. testified that K.M.B. went back to jail shortly after this incident.

C.S.P. testified that the last birthday or Christmas card B.E.S. received from K.M.B. was in January 2007. C.S.P. further testified that B.E.S. had not received any cards, phone calls, or communication of any |.¡kind from K.M.B. between February of 2007 and June of 2008; nor had there been any visits between B.E.S. and K.M.B.’s family since that time. C.S.P. admitted that there was no court order of support from K.M.B.; however, K.M.B. had paid support of $400 or $450 per month for several months while he was working.

C.S.P. testified that Y.J.P., Jr. had been a part of B.E.S.’s life since she was one and one half years old and he was the only father B.E.S. has ever known. She explained that Y.J.P., Jr. does “everything” for the child including putting her to bed and waking her up and taking her to school. She described the relationship between her husband and her child as very close. C.S.P. testified that she and her husband own a home in which the child has her own room. C.S.P. had been employed at the same company for six years while her husband had been in his position for two years. She explained that they had sufficient income to provide for the needs of the child.

V.J.P., Jr.’s testimony corroborated that of C.S.P. V.J.P, Jr. testified that he expresses to B.E.S. how much he loves her and described the progression of their relationship. He testified as to various activities he and B.E.S. do together. V.J.P., Jr. testified that he understood that if he adopted B.E.S. he would be responsible for her mental and physical well-being and that he was willing to do so. His testimony regarding the incident of February 2007 corroborated that of his wife.

B.B., KM.B.’s father, testified that while his son visited B.E.S. they had a close and loving relationship. With regard to the February 2007 incident, B.B. testified that he heard C.S.P. tell K.M.B that because he had not paid support he could not keep the child for the night. K.M.B. stated |sthat he would get a check to C.S.P. by the end of the night. B.B. then offered to write a check for support. B.B. testified that C.S.P. then stated to him “you are always getting him out of trouble.” B.B. stated that at that time he approached C.S.P. and asked her to leave his home. He explained that she would not leave and he tried closing the door. At that point V.J.P., Jr. pushed B.B. B.B. testified that they gave the child back to C.S.P. The police were called but no charges were filed. B.B. testified that there had been no contact between his family and B.E.S. since February 2007 because C.S.P. “would not let us.”

K.M.B. testified that before he went to prison the second time, he had a great relationship with B.E.S. He testified that he spent as much time as he could with the child. K.M.B. testified he is in prison on a work release program and hopes to open his own business and purchase a home upon his expected release date of July 13, 2009. He further testified that he has been steadily employed except for the time he was incarcerated.

K.M.B. testified that he had not had any contact with B.E.S. since February 2007 because he is “seared to call over there or send something because of the threats she made to my parents.” He acknowledged that there is no court order prohibiting him from sending gifts to B.E.S. He further acknowledged that he did not'provide financial support for B.E.S. since he had been incarcerated. K.M.B. testified that it is a blessing that V.J.P., Jr. is in B.E.S.’s life and that V.J.P., Jr. could do as good a job as he in acting as the child’s father. K.M.B. explained that it was not in the child’s best interest to be adopted because when he gets out of prison he will reestablish a relationship with the child.

|(;A.B., KM.B.’s sister, testified that she and her sister put presents on the porch of the home where B.E.S. lives. As they were leaving C.S.P. drove up and told them they did not have to do this. She later got a message from C.S.P. stating that if she or her family came on C.S.P.’s property again she would call the police. This message was passed along to K.M.B.

A.B. testified that K.M.B. and B.E.S. “adored each other”. She explained that while K.M.B. was not in prison, he saw B.E.S. two or three times per week and that K.M.B. spent as much time as possible with the child. A.B. further testified that when K.M.B. was incarcerated the first time, she and her family visited with B.E.S. and had a very close relationship with the child. A.B. stated they had not had any contact with B.E.S. since February 2007 because they were not allowed to. She described two incidents where she saw the child in public but was not allowed to talk to the child. A.B.’s testimony regarding the February 2007 incident corroborated that of K.M.B. and B.B.

The testimony of G.B., K.M.B.’s mother, regarding the February 2007 incident corroborated that of the rest of her family. G.B. testified she called C.S.P. on more than one occasion after this incident and was told they could not see the child. G.B. testified that it was not in the child’s best interest to allow the adoption because K.M.B. “loves her to death” and the rest of the family loves her as well. On cross-examination, G.B. admitted she and her husband had not filed for any type of court order allowing them to visit with the child.

At the conclusion of the hearing, the trial court denied the petition for adoption, finding that petitioners failed to prove the father failed to visit or 17communicate with the child without just cause for a period in excess of six months. This timely appeal by C.S.P. and V.J.P., Jr. followed.

Law and Discussion

Intrafamily adoptions, such as the one here involving a stepparent and spouse of the custodial parent of the child, are authorized by the Louisiana Children’s Code, articles 1170 and 1243. Although La. Ch.C. art. 1193 requires the consent of the biological parent, consent may be dispensed with upon proof that the spouse of the stepparent has been granted custody of the child and the other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months. La. Ch. C. art. 1245(C). The court is to heai and take into consideration information from all sources concerning the intrafamily adoption, and the basic consideration shall be the best interests of the child. La. Ch.C. art. 1255(A). When the court has granted custody to the child’s parent married to the stepparent petitioner, there shall be a rebuttable presumption that this adoption is in the best interests of the child. La. Ch. C. art. 1255(B).

The trial judge is vested with great discretion in determining whether an adoption is in the best interest of the child and each case must be decided on its own facts. The trial court’s discretion is not absolute and a determination of best interest is subject to reversal if the record reveals manifest error in the determination. In re Orgeron, 94-458, p. 4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1137, 1139.

|8On appeal, appellants ai-gue the trial court erred in finding K.M.B. had just cause for his failure to communicate or attempt to communicate with B.E.S. for a period in excess of six months. They point to the testimony that K.M.B. had no contact with the child and had not sent any cards, gifts, or attempted any communication since February 2007, a period of over one year. Appellants argue that K.M.B.’s incarceration and fear that C.S.P. will call the police on his parents is not just cause for his failure to communicate with the child. They contend that K.M.B. has only been a presence in the child’s life for approximately six months and she has no bond or attachment to him.

Appellants further argue that the trial court erred in not considering the best interest of the child. Appellants point to a colloquy between the child’s maternal grandmother and the trial judge where in the grandmother asked if the standard for allowing adoption was in the best interest of the child and the trial judge responded “that’s custody.” Appellants then point to testimony regarding the closeness of the relationship between B.E.S. and V.J.P., Jr. and V.J.P., Jr.’s commitment to the child. Appellants contend K.M.B. has had numerous attempts to “get his life together and prove himself as a father” and has failed. They argue he is not now nor has he ever been a real father to B.E.S.

Appellee responds that the trial court’s decision was based on credibility determinations and as such is subject to the manifest error standard of review. Appellee contends that based on the testimony, the trial court was convinced of K.M.B.’s substantial commitment to his parental rights by deciding that the adoption was not legally prudent. Appellee argues the appellants failed to meet their burden of proof that the failure of [flK.M.B. to communicate with B.E.S. was without just cause. Appellee contends the trial court placed little emphasis on the fact that he was incarcerated; rather, the trial court made a rational finding that K.M.B.’s failure to communicate was justified under the circumstances. Appellee further argues the trial court did not have to consider the best interest of the child because it declined to terminate K.M.B.’s parental rights, having found that his failure to communicate was justified.

After careful review of the record in this case, we find the trial court’s factual findings to be manifestly erroneous. The record does not support the trial court’s finding that appellants failed to prove K.M.B.’s failure to communicate with the child was without just cause. Incarceration is not just cause for failure to communicate. In re Fleming, 01-1405, (La.App. 5 Cir. 4/30/02), 817 So.2d 371. We further find that KM.B.’s fear that C.S.P. would call the police on his parents is not just cause for failure to communicate. There was no court order preventing K.M.B. from sending cards, gifts, and/or, letters to B.E.S. Further, we find there is no evidence in the record to establish that K.M.B. has a substantial commitment to his parental responsibilities. K.M.B. paid support for a few months during the child’s four and one half year life. K.M.B. testified that he is saving money through a work release program to start a business when he gets out of prison and that he plans to buy a house. When asked about financial support of his child, K.M.B. responded that he is “unable to at this time.”

Moreover, we find the trial court erred in not considering the best interest of the child. K.M.B. went to jail for breaking into C.S.P.’s house and attempting to hurt her. The other charges are not clear from the record, but it is clear that K.M.B. was placed on probation on two occasions and | ipwas sent to jail for violation of probation. As this court has noted previously, adults can take many years to get their lives together which can be very disruptive to their children. See, State v. M.P. 538 So.2d 1112, (La.App. 5 Cir.1989). Our review of the record indicates K.M.B. failed to rebut the presumption that this adoption is in the best interests of the minor child and the trial court erred in determining otherwise.

Finally, appellants contend the trial court erred in failing to appoint an attorney for B.E.S. prior to the hearing in this matter, relying on the holding of In re T.M.L., 06-1442 (La.App. 1 Cir. 12/28/06), 951 So.2d 364. In that case, the First Circuit cited to La. Ch.C. art. 1137(B) which applies to surrender procedure. However, intrafamily adoptions, such as the one here, are governed by La. Ch.C. arts. 1243, et seq. La. Ch.C. art. 1245.1 which provides a right to counsel to the child of a parent whose consent to the adoption is required. However, La. Ch.C. art. 1245 specifies the circumstances under which parental consent for an intrafamily adoption is not required, i.e., “the other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.” As previously stated herein, petitioners met their burden of proving consent of K.M.B. to the adoption was not required in this case, and the trial court therefore did not err in failing to appoint counsel for B.E.S.

Conclusion

J^jFor the foregoing reasons, the trial court’s judgment dated August 1, 2008 is hereby reversed. The petition for intra-family adoption of the minor child B.E.S. by V.J.P., Jr. is hereby granted. Each party shall bear its own costs of this appeal.

REVERSED AND RENDERED.

JASMINE, J., dissents with reasons.

JASMINE, J.

dissents with reasons.

1,1 disagree with the majority’s finding that petitioners met their burden of proving the consent of K.M.B. was not needed for the adoption. Accordingly, I find the trial court erred in failing to appoint an attorney to represent B.E.S. See, In re T.M.L., 06-1142 (La.App. 1 Cir. 12/28/06), 951 So.2d 364. Therefore, I would vacate the trial court judgment and remand for rehearing after appointment of counsel for B.E.S.

      . The initials of the child and the parties are used to protect the identity of the minor child. Uniform Rules, Court of Appeal, Rule 5-2.

      . This provision was added by Acts 2008, No. 778, § 1, and became effective following the hearing in the present case. Although the statute is not applicable in the present case, it is nevertheless instructive of the legislature’s intent to provide for the appointment of counsel only where consent is required.


author: McDonald, j.

text:
    STATE of Louisiana v. Kirk P. LANDRY.
    No. 2008 KA 1553.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.
    Rehearing Denied June 19, 2009.

      Thomas M. McCormick, Terri R. Lacy, Assistant Attorneys General, Louisiana Department of Justice, Baton Rouge, LA, for Appellee-State of Louisiana.
    Karl J. Koch, Vincent S. Sotile, Jr., Prai-rieville, LA, for Defendant/Appellant, Kirk P. Landry.
    Before PETTIGREW, McDONALD, HUGHES, JJ.
   McDonald, j.

12Pefendant, Kirk Landry, was originally charged by grand jury indictment with one count of insurance fraud, a violation of La. R.S. 22:1243 (now La. R.S. 22:1924 as renumbered by 2008 La. Acts, No. 415, § 1, effective January 1, 2009). Defendant pled not guilty. The bill of indictment was subsequently amended to allege defendant committed insurance fraud by committing fraudulent insurance acts as defined by La. R.S. 22:1242(l)(a)(ii) and (iv) (now La. R.S. 22:1923(1)(a)(ii) and (iv) as renumbered by 2008 La. Acts, No. 415, § 1, effective January 1, 2009). Defendant was arraigned on the amended bill and entered a plea of not guilty. Defendant proceeded to trial before a jury and was found guilty as charged.

The trial court sentenced defendant to one year at hard labor, suspended, and placed defendant on probation.

Defendant appeals, citing the following as error:

1. The jury erred in returning a guilty verdict, and the District Court erred in denying appellant’s post-verdict motion for judgment of acquittal, because even when viewed in a light most favorable to the State, there was absolutely no evidence to prove several of the elements of the charged offense, namely:
(a) The State failed to prove that the defendant’s allegedly false statements were made to an insurer, reinsurer, purported insurer or reinsurer, broker, or any agent thei'eof; and
(b) The State failed to prove that the defendant made any “statements” at all as that term is defined by La. R.S. 22:1242(1).
2. The trial court erred in instructing the jury regarding the charged offense, in that the listing of elements provided to the jury was inaccurate and inconsistent with the statutory language; the court erred in refusing to give Defendant’s Requested Special Instruction number 1, which correctly set forth the elements.
|:i3. Even when the conviction is analyzed using the incorrect elements instructed to the jury, no reasonable juror could have found that the State proved each element beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution.
4. The trial court erred in refusing to fully admit into evidence Defense Exhibit 4, an e-mail from Insurance Service Office (ISO) representative Ed Straw, which was relied upon by experts for both sides and was a business record of the Property Insurance Association of Louisiana (PIAL), and which specifically addressed the allegedly false statements.
5. The trial court erred in refusing to instruct the jury consistent with Defendant’s Requested Special Jury Instruction numbers 2 and 3 regarding good faith and mistake, where the defense showed that the defendant relied upon the advice of a respected consultant in taking the actions claimed to be criminal.
6.The trial court erred in reading a portion of La. R.S. 22:1405 to the jury in instructions; no part of the statute should have been read, but if any part was read the entire statute should have been read.

We affirm defendant’s conviction and sentence.

FACTS

On September 4, 2001, defendant, who was the Fire Chief of the City of Donald-sonville Fire Department (DFD), sent a letter to Raymond Jacobs, the Mayor of Donaldsonville. The letter addressed the issue of a City Employee Firefighter Support Program that defendant previously requested through a letter dated July 3, 2001. In the September 4 letter, defendant wrote in pertinent part:

I am deeply concerned about our manpower response to emergencies. Our manpower response is at a level in which I would consider a safety issue. I am also concerned about our ability to maintain the positive protection classes we have achieved. One specific area of concern we have identified is “Credit for Company Personnel” (manpower response). Credit for Company Personnel carries a weight of 15 points. In the year 2000 survey the City scored 5.97 points for manpower. This was achieved by averaging 16.5 firefighters at each structure fire alarm. Today, we are averaging less than 8. ^Allowing city employees to train with the fire department and respond to structure fires will supplement the current response.

Despite the concerns expressed by defendant, there is no indication that the City of Donaldsonville undertook training of City employees for firefighter support. In early 2002, Crystal Thomas, who was the secretary for defendant and also a firefighter, witnessed a meeting between defendant and Tom Cassisa. Cassisa had been retained by the Donaldsonville City Council to assist the DFD in preparing for the PIAL rating process.

According to Thomas, defendant and Cassisa were reviewing fire reports from 2001 that were going to be submitted to PIAL. Thomas overheard Cassisa telling defendant “Kirk, this is going to hurt you, you don’t have enough people on the scene,” and “Kirk, this is going to hurt you, you don’t have enough trucks on the scene.” However, at no time did Thomas hear Cassisa tell defendant to change the reports.

Following the meeting, defendant went back into his office. Approximately ten minutes later, defendant came back out with some books and stated to Thomas that he needed something taken care of. Thomas explained she was busy at the moment and asked whether the assignment could wait. Defendant said it could and went back into his office. Approximately thirty minutes later, defendant came out of his office and told Thomas that he would “take care of it.”

Thomas then observed defendant sit at her computer, open the electronic files containing the fire reports, and over the course of the next hour, alter the fire reports, including adding specific names to each report. According to Thomas, defendant did not have any documents or records in front of him as reference materials, and appeared to be randomly changing lathe reports. Thomas was later instructed by defendant to use these altered reports when providing information to PIAL for the rating process.

The PIAL grading of the DFD conducted in May 2002 reflected a grade of 76.72 (out of 100) for the City, which placed it in a Class 3 protection category, while Fire District 2 (outside City limits) received a grade of 60.39, which placed it in a Class 4 protection category.

James McDonald, a Fire Captain with the DFD, subsequently learned that defendant had changed some of his fire reports without consulting him. McDonald acknowledged this made him angry. At trial, McDonald admitted that he and defendant did not get along, but that defendant’s changing of his fire reports caused him great concern, because at that time, the DFD was trying to get more personnel, and defendant’s actions of adding personnel to the reports could make it appear the fire department did not need more firefighters.

After speaking with several local politicians and law enforcement personnel regarding defendant’s actions, McDonald was eventually referred to the Louisiana Insurance Fraud Division of the Louisiana State Police (LSP) by a private attorney. In October 2003, Detective Barry Ward of the LSP Insurance Fraud Unit met with James McDonald and Mike Sullivan, who also was affiliated with the DFD. McDonald and Sullivan alleged that defendant had falsified fire reports in order to get a better rating from PIAL. Ward was able to verify that DFD reports had been altered by comparing the copies McDonald brought him to copies of the same reports on file with the State Fire Marshall’s Office.

Based on his initial investigation, Ward obtained and executed a search warrant at the DFD for documents related to PIAL, fire reports, personnel reports, and other documents related to fire suppression. Ward | ¿was able to determine that twenty-six fire reports from the period of January 2001 until July 16, 2001, had been altered to reflect that more personnel or apparatus responded to an incident as compared to the numbers reported on the fire reports on file at the State Fire Marshall’s Office.

Blaine Rabe, a division manager at PIAL, was accepted as an expert in PIAL ratings. According to Rabe, PIAL performs fire protection and building code gradings. Rabe testified that there are three main areas covered by the fire suppression rating schedules. These areas include communication, fire department (including manpower response), and water supply. Rabe testified that PIAL is not an insurance company, does not sell insurance, does not reinsure, nor is it an insurance broker or agent for any insurer. However, Rabe stated that every insurance company that writes fire insurance in Louisiana is required to be a member of PIAL. The ratings PIAL assigns are communicated to insurance companies that use those ratings to set their premiums.

The State also presented testimony from Doug Hendry, an auditor for PIAL, who conducted the performance rating of the DFD based on their reports submitted in 2002. Hendry testified that the information PIAL receives is confidential and is not directly disseminated to any insurance company. Instead, PIAL publishes the fire ratings of each department. Insurance companies in Louisiana that issue any type of fire coverage are required to be members of PIAL. According to Hendry, PIAL conducts a grading process of all fire departments in Louisiana. This grading process is used by insurance companies to promulgate rates related to fire insurance policies, homeowner’s policies, and commercial fire policies. The classification of each fire department by PIAL is one of the criteria considered by insurers in evaluating the fire protection of a community. LHendry conceded that if the information used to determine the fire department’s classification is based on false information, then the insurance companies using that rating would also be basing their policy rates on false information.

The majority of the evidence presented by the State and disputed by the defense concerned whether personnel and equipment called to the scene of a fire, but cancelled prior to actually arriving at the scene, could be accurately reported as responding to the fire scene on a fire report. The State’s witnesses maintained that for equipment and personnel to be considered as responding to a fire, they must be physically present at the scene. However, the defense presented testimony from several witnesses, including Tom Cassisa, who was accepted as an expert in PIAL grading, that personnel and/or equipment initially called to a fire scene, but cancelled prior to arrival, could be considered as responding to a fire despite never being physically present at the scene. The defense maintained that defendant’s actions of altering fire reports were merely a way to comply with this allowance of the rules.

SUFFICIENCY OF THE EVIDENCE

In defendant’s first and third assignments of error, he argues the jury verdict against him should be reversed. First, defendant asserts that the State failed to prove the elements of the charged offense. Second, defendant argues that even if the incorrect elements of the offense are used, the State failed to prove each element beyond a reasonable doubt.

Standard of Review

A conviction based on insufficient evidence cannot stand, as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a | sconviction is whether, 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 beyond a reasonable doubt. See La.C.Cr.P. art. 821; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207, p. 10 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585, p. 5 (La.App. 1st Cir.6/21/02), 822 So.2d 141, 144.

Defendant was charged with one count of insurance fraud, which was specified in the charging instrument as a violation of La. R.S. 22:1243. The applicable portion of La. R.S. 22:1243 provides:

A. Any person who, with the intent to injure, defraud, or deceive any insurance company, or the Department of Insurance, or any insured or other party in interest, or any third party claimant:
(1) Commits any fraudulent insurance . act as defined in R.S. 22:1242;

Louisiana Revised Statute 22:1242 provides in pertinent part:

(1) “Fraudulent insurance act” shall include but not be limited to acts or omissions committed by any person who, knowingly and with intent to defraud:
(a) Presents, causes to be presented, or prepares with knowledge or belief that it will be presented to or by an insurer, reinsurer, purported insurer or reinsurer, broker, or any agent thereof, any oral or written statement which he knows to contain materially false information as part of, or in support of, or denial of, or concerning any fact material to or conceals any information concerning any fact material to the following:
(ii) The rating of any insurance policy.
(iv) Premiums paid on any insurance policy.

| ¡[Defendant's initial argument is that the activity he was' charged with, i.e., making false statements in fire reports that were used by PIAL in determining the classification of the DFD, is not a crime under the statute he was charged with violating. Specifically, defendant asserts that the State failed to prove he made false statements to an insurer, reinsurer, purported insurer or reinsurer, broker, or any agent thereof as required by La. R.S. 22:1242(l)(a). According to defendant, the only entity presented with the altered fire reports was PIAL, which is a statutorily-created rating organization. Defendant points to the testimony of Rabe, Hendry, and Cassisa, all of whom had worked for PIAL and all of whom testified that PIAL was not an insurer, reinsurer, purported insurer, broker or agent thereof.

The interpretation of a statute begins with the language of the statute itself. Louisiana criminal statutes must be given a genuine construction, according to the fair import of their words, taken in them usual sense, in connection with the context, and with reference to the purpose of the provision. La. R.S. 14:3. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the legislature’s intent. La. C.C. art. 9. When the language of the law is susceptible of different meanings, however, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. arts. 10 & 12; State v. Skipper, 2004-2137, p. 3 (La.6/2 9/05), 906 So.2d 399, 402-03.

|[nIt is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. Thus, criminal statutes are given a narrow interpretation, and any ambiguity in the substantive provisions of a statute as written is resolved in favor of the accused and against the State. The principle of lenity is premised on the idea that a person should not be criminally punished unless the law provides a fair warning of what conduct will be considered criminal. The rule is based on principles of due process that no person should be forced to guess as to whether his conduct is prohibited. State v. Carr, 99-2209, pp. 4-5 (La.5/26/00), 761 So.2d 1271, 1274.

However, we also note La. R.S. 14:4, which addresses conduct made criminal under several articles, provides as follows:

Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an offender’s conduct is:
(1) Criminal according to a general article of this Code or Section of this Chapter of the Revised Statutes and also according to a special article of this Code or Section of this Chapter of the Revised Statutes; or
(2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and also according to some other provision of the Revised Statutes, some special statute, or some constitutional provision.

In support of arguing that the State failed to meet its burden of proof on each element of the crime of insurance fraud, defendant also points to La. R.S. 22:1416 (now La. R.S. 22:1474 as renumbered by 2008 La. Acts, No. 415, § 1, effective January 1, 2009), which criminalizes providing false information to a rating organization, such as PIAL.

InWe agree that the evidence adduced at trial did not prove or even suggest defendant directly presented any insurer with the altered fire reports. However, the statute at issue also uses the following language in its definition of fraudulent insurance acts. Specifically, a close reading of La. R.S. 22:1242(( )(a) also provides that “acts or omissions committed by any person who, knowingly and with intent to defraud ... prepares with knowledge or belief that it will be presented to ... an insurer ... any ... written statement which he knows to contain materially false information.... ” (Emphasis added.)

Clearly, the statute prohibits a person who has prepared a statement that he knows contains materially false information from directly presenting this information to an insurer. However, the statute also prohibits a person from preparing a statement containing materially false information, if it is known or believed that such information will be presented to an insurer. The fact that the person who has prepared the false statement is not the person or entity who presents such information to the insurer is not a required element for conviction under the statute. What is a required element is that the statement containing the false information be prepared with knowledge that it will be presented to an insurer.

In the present case, the State alleged that defendant altered the fire reports to reflect more fire department assets responded to certain fires. Based on the September 4, 2001 letter from defendant to the mayor, it is evident that defendant was aware that manpower response would directly affect his department’s fire protection classification. As testified by Rabe, | igPIAL’s purpose in rating fire departments is so insurers can determine the amount of premiums for policies in that area. Accordingly, the jury had a reasonable basis to conclude defendant’s act of inflating the manpower response on the fire reports was materially false information that defendant knew would be presented to insurers.

Secondly, defendant argues the State failed to prove he made any “statements” at all as defined by La. R.S. 22:1242(2). In brief, defendant argues that “statement” is a “term of art.”

Louisiana Revised Statute 22:1242(2) provides:

“Statement” includes but is not limited to any notice, statement, proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, bill for services, diagnosis, prescription, hospital or doctor records, test results, x-rays, or other evidence of loss, injury, or expense.

Defendant argues the language of the statute indicates the legislature’s focus is clearly aimed at false claims made with an insurer. According to defendant, the history of the DFD as documented in the fire reports in connection with certain fires does not fall within the definition of the term “statement” in the charged statute.

We disagree. Again, defendant’s assertions of the interpretation of the statute fail to consider the whole statute. First, in defining “statement,” the legislature chose to include statement as a definition, which causes us to consider the most basic definition of such as found in Black’s Law Dictionary. Black’s defines a statement in pertinent part as, “nonverbal conduct intended as an assertion.” Black’s Law Dictionary 1416 (7th ed.1999).

Moreover, we do not find the legislature’s focus in this language to be limited to false claims made with an insurer. Such an interpretation would not take into account the legislature’s encompassing of insurance fraud to |13include instances of false information concerning an application for the issuance of an insurance policy or, as at issue in this case, the rating of any insurance policy. See La. R.S.22:1242(l)(a)(i) & (ii).

Accordingly, since we find defendant’s conduct, if proven by the State, would be encompassed by the statute under which he was charged, we now examine the sufficiency of the evidence.

In his third assignment of error, defendant argues the State failed to prove he made any materially false statements. Defendant maintains that the changes he made to reports by adjusting the figures for apparatus and manpower were made in compliance with the rules and suggested by Cassisa, the consultant. In support of this, defendant points to the fact that PIAL did not provide instructions on their forms; that the information he provided accurately reflected the equipment and manpower dispatched to certain working fires; that the State failed to prove defendant made any statements to anyone in connection with the water shuttle; and that the State failed to prove he acted with the intent to defraud.

Viewing the evidence in the light most favorable to the prosecution, we find the evidence supports the jury’s determination. At the outset, we note that even if defendant were allowed to alter the fire reports to reflect all the equipment and personnel that were dispatched, as opposed to actually being present at the scene of a fire, the record indicates that these reports contained materially false information regarding the fire department’s fire protection classification.

The defense presented evidence through the testimony of Steve Rodrigue, who had spent time working with DFD in his capacity as an Assistant Fire Chief of the Pierre Part Volunteer Fire Department, and Chief Chuck Montero, also of the DFD, that during the time the fires that were the | ^subject of these reports occurred, the standard response of the DFD included a ladder response. A ladder response was explained as two engines comprising a ladder. Both men testified that the first truck on the scene tended to be manned by the three on-duty paid firefighters, while the rest of the standard response (equipment and volunteers or off-duty personnel) would arrive later. Oftentimes, the later-responding personnel and equipment were cancelled before reaching the scene.

However, the testimony of how defendant went about altering the fire reports to supposedly reflect “dispatch” is contradicted by the testimony by Thomas indi-eating that the repoi'ts were altered in a “random” fashion, with defendant not referencing any other records, or any of the fire captains for the DFD, to check for accuracy. The jury could have placed great weight in Thomas’s eyewitness testimony that defendant altered the fire reports soon after meeting with Cassisa, who had indicated that the information in certain reports would “hurt” the DFD in their PIAL rating. Moreover, there were several instances wherein defendant altered the reports to indicate the presence of firefighters who could not possibly have been dispatched to a fire.

The first example of this is State exhibit 3B, which reports a fire response to an incident occurring on January 23, 2001. Thomas is listed as responding to a fire; however, Thomas’s testimony contradicted the fact she was even dispatched, because she was nine months pregnant at the time. The prosecution also showed that De-Wayne Gibson, who had worked for the DFD since January 1989, was reflected as responding to two separate incidents in July 2001. Gibson testified that in July 2001 he was in California for National Guard activities. Another report dated September 1152001 also reflected Gibson’s response to a fire, despite the fact he had begun working for the Gonzales Fire Department in June 2001.

Further, defendant argues that he made no false statements to anyone in regard to the water shuttle. The water shuttle portion of PIAL’s testing accounts for 35 out of a possible 100 grading points to determine a department’s fire rating. Overall scores from 90 to 100 place a fire district in best or Class 1 rating, while 80-89 places a fire district in a second-best or Class 2 rating, and so on to zero. A department’s inability to participate in a water shuttle test would automatically drop a fire department to a score of 65, or a Class 4 rating.

In arguing the State failed to prove defendant made any false statements to anyone regarding the water shuttle, defendant has attempted to argue that his altered reports (whether false or not) did not contribute to a lower ranking by PIAL. Thus, he asserts the State failed to prove the altered fire reports were “material” to the rating of the insurance policies that would be necessary to satisfy the necessary elements of insurance fraud.

We disagree. The jury apparently concluded that the altered fire reports reflecting a greater presence of firefighters at certain fire scenes were material to the rating of the DFD and the policies issued in the area based on that rating. Although the defendant only altered fire reports and had no dealings with any PIAL representative regarding the water shuttle, his actions clearly affected the water shuttle performed by DFD.

Hendry, who witnessed the water shuttle performed by the DFD, testified that only the average manpower response as reflected on the fire reports submitted by the DFD could participate in the water shuttle. Hendry admitted this was a “loosely applied” rule. However, the State showed that the average manpower response of the DFD on the original reports (not | ^altered by defendant to reflect “dispatched” personnel) reflected an average manpower response of 6.15. The altered reports reflected an average manpower response of 12. When the DFD conducted their water shuttle test, they used 17 people.

Hendry testified that despite the loose enforcement of the water shuttle participation rules, he would never have allowed the DFD to use two times the number of people to participate. Hendry testified that using the accurate data of people who were present at the fire scenes would have reduced the number of participants in the water shuttle, making it more likely the department’s water shuttle score would have been lower. Because the DFD Fire District 2’s score was 60.39, any drop in score based on the water shuttle would have lowered its rating.

Clearly, the jury determined that defendant’s actions of altering the fire reports to reflect an increased manpower response had resulted in his providing materially false information. The jury concluded the DFD’s rating was material to the ratings and premiums of policies issued in that area. The jury’s conclusion that the altered fire reports reflecting a higher manpower response were material to the policies issued is clearly a factual finding. We cannot say this factual finding is erroneous.

Finally, defendant argues that the State failed to prove he acted with the intent to defraud. Defendant argues that the paperwork provided to Hendry and PIAL at the time of the grading specifically disclosed that he was claiming credit for equipment and trucks that were never physically present at the scene of the fires. Defendant claims that Hendry was provided with a printout entitled “Unit Responses by Incident.” According to this | 17document, it reflects that some apparatus dispatched to a particular fire were “cancelled” as reflected in the column for “Response Code.” Defendant argues that such disclosure clearly negates that he had any intent to defraud when he altered the reports.

We disagree. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503, p. 13 (La.11/25/96), 684 So.2d 382, 390. Due to the difficulty of presenting direct evidence as to the defendant’s state of mind, the trier of fact may infer intent from the facts and circumstances of a transaction and the defendant’s actions. The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La.App. 1st Cir.1986); see also State v. Graham, 420 So.2d 1126, 1127-28 (La.1982).

In examining the evidence under our standard of review, the jury was presented with the September 4, 2001 letter from defendant requesting the Mayor to allow city employees to be trained in fire fighting. Defendant clearly states in this letter that he is concerned about his department’s manpower response to the point it has become a safety issue. Defendant further states in this letter that he is concerned that the fire department’s classification will be negatively affected because of the decrease in available manpower response. Defendant informs the Mayor that previously the DFD scored 5.97 points (out of a possible 15) when it averaged 16.5 firefighters at each structure fire; however, the current average was “less than 8.”

Clearly, there was a basis for the jury to conclude defendant was aware the decreased manpower response was going to affect the fire | ^protection classification of the DFD. Moreover, the jury was presented with testimony from Thomas, who described how after defendant met with Cas-sisa and was informed that manpower and equipment l’eflected on the fire reports would “hurt,” defendant was seen randomly changing the reports (some of which were a year old) to reflect more personnel and equipment responding to fires. Moreover, some of the reports changed by defendant had been drafted by McDonald, who testified that defendant never consulted him prior to changing his reports in order to ensure accuracy.

Viewing this evidence in the light most favorable to the prosecution, we find the evidence supports the jury’s determination that defendant was guilty of this offense. As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385, p. 9 (La.App. 1st Cir.11/5/99), 745 So.2d 217, 223, writ denied, 2000-0829 (La.11/13/00), 774 So.2d 971. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Glynn, 94-0332, p. 32 (La.App. 1st Cir.4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La.10/6/95), 661 So.2d 464. Further, in reviewing the evidence, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207, p. 14 (La.11/29/06), 946 So.2d 654, 662.

These assignments of error are without merit.

EXCLUSION OF E-MAIL FROM ED STRAW

In his fourth assignment of error, defendant contends the trial court erred in refusing to allow an e-mail from ISO representative Ed Straw to PIAL auditor Doug Hendry into evidence. Defendant contends that the e-mail discusses the central issue in this case, i.e., whether it was proper to |l0claim credit for fire department assets dispatched to a fire, but can-celled prior to actual arrival at the scene, because the chief on the scene had determined they were unnecessai’y.

The record reflects that the e-mail at issue was first mentioned during defense counsel’s cross-examination of Rabe. When the e-mail was first mentioned, the prosecutor asked to approach the bench, at which time an off-the-record discussion was held. Shortly thereafter, defense counsel attempted to introduce the e-mail, but the trial court indicated that it would only be marked for identification purposes.

As the State’s brief points out, defendant was given a significant amount of latitude in discussing the e-mail exchange through the entirety of the trial. The record also reflects that defense counsel cross-examined Rabe, Hendry, and Cassisa regarding the e-mail, and discussed the email in both opening and closing statements. Thus, defendant was only limited to utilizing the e-mail insofar as its publication to the jury was concerned. During closing arguments, the trial court reminded defense counsel that the contents of what Straw had discussed with Hendry were introduced through verbal testimony, and that defense counsel was free to argue anything relating to what came out in open court.

Despite defendant’s contentions regarding the authority of the Straw e-mail, the State introduced evidence from Rabe and Hendry, who both testified that Louisiana does not always adhere to ISO’s rules. That testimony, coupled with the fact that fire department grading is conducted in Louisiana by PIAL, as opposed to ISO, directly affected the relevancy of an e-mail exchange between representatives of ISO and PIAL, regarding the opinion of what constituted a dispatch.

LoUnder these circumstances, we cannot see how the trial court’s refusal to admit the e-mail into evidence was error. This assignment of error is without merit.

FAILURE TO PROVIDE SPECIAL JURY INSTRUCTIONS

In defendant’s second assignment of error, he contends the trial court erred in instructing the jury regarding the charged offense, in that the listing of elements provided to the jury was inaccurate and inconsistent with the statutory language; and the trial court erred in refusing to give Defendant’s Special Jury Instruction Number 1, which correctly set forth the elements.

Defendant specifically argues the trial court failed to instruct the jury on the requirement that the false statements, be made to an insurer, reinsurer, purported insurer, broker, or any agent thereof. Defendant further argues the instructions omitted the requirement that the false statements must be material to the ratings of an insurance policy or material to the premiums charged on an insurance policy, as opposed to merely material to ratings and premiums.

Louisiana Code of Criminal Procedure article 807 provides in pertinent part, “A requested special jury charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

Defendant’s requested Special Jury Instruction No. 1 provided:

The elements of insurance fraud are as ' follows:
1. That the defendant presented, caused to be presented, or prepared with knowledge or belief that it will be presented, any oral or written statement;
2. That the defendant knew this statement to contain materially false information;
| g13. That the statement was presented to an insurer, reinsurer, purported insurer or reinsurer, broker, or any agent thereof;
4. That the statement was presented as part of, or in support of, or denial of, or concerning any fact material to or concealing any information material to, the rating of any insurance policy, or the premiums paid on any insurance policy. The term “statement” includes but is not limited to any notice, statement, proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, bill for services, diagnosis, prescription, hospital or doctor records, test results, x-rays, or other evidence of loss, injury, or expense.

The transcript of the trial court’s jury charges reflects the trial court included the following in its charges to the jury:

A fraudulent insurance [act] shall include but not be limited to acts or occasions committed by any person who knowingly and with intent to defraud presents, causes to be presented or prepares with knowledge or belief that it will be presented to or by an insurer, reinsurer, purported insurer or reinsurer, broker or any agent thereof any oral or written statement which he knows to contain materially false information as part of or in support or denial or concerning any fact material to or conceal any information concerning any fact material to the following; the rating of any insurance policy or premiums paid on any insurance policy.

The trial court went on to provide a verbatim reading of the definition of statement as found in La. R.S. 22:1242(2) and defendant’s requested jury instruction.

Because we find the information contained in Defendant’s Requested Special Jury Instruction Number 1 was, in fact, contained in the trial court’s general charges to the jury, we find this assignment of error to be without merit.

GOOD FAITH AND MISTAKE OF FACT

In defendant’s fifth assignment of error, he argues the trial court erred in refusing to provide the jury with his special jury instructions pertaining to good faith reliance on a third party and a mistake of fact. Defendant contends that a central theme of the defense was that he acted in good faith 12aand followed the advice of Cassisa, who had been hired by the City to consult with him in the PIAL grading process. Further, defendant maintains that even if his actions were “wrong,” they were committed under a mistaken belief that they were proper.

In support of this theory, defendant submitted Requested Special Jury Instruction Number 2, which provided:

Because the crime of insurance fraud requires that the defendant act knowingly and with the intent to defraud, a defendant’s good faith is a complete defense to the charge. If you find that the defendant reasonably and in good faith relied upon the advice of a consultant, you may find that his reliance precludes the formation of the required mental element. Likewise, the defendant’s reasonable ignorance of fact, or reasonable mistake of fact, which precludes the presence of the mental element required is a defense to the charge.
Authority: Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278; La. R.S. 14:16.

Mistake of fact is a defense where the reasonable mistake of fact precludes the presence of any mental element required in that crime. La. R.S. 14:16; see State v. Converse, 529 So.2d 459, 465 (La.App. 1st Cir.), writ denied, 533 So.2d 355 (La.1988).

Defendant contends that this charge should have been given to the jury because of the testimony presented that the consultant, Cassisa, advised him to change the reports to indicate how many fire department assets had been dispatched and can-celled before arrival at the scene. Defendant argues that this reliance on Cassisa’s advice precluded the intent necessary to satisfy the elements of the crime.

We disagree. First, we note that at no time did Cassisa testify that he advised defendant to alter any of the fire reports as was done in this case. Second, we note that the general charge instructed the jury as to the requisite knowledge and intent needed for the crime, and the additional charge would Rnhave been redundant. See State v. Williams, 471 So.2d 255, 261 (La.App. 1st Cir.), writ denied, 475 So.2d 1102 (La.1985).

Accordingly, this assignment of error is without merit.

READING OF A PORTION OF La. R.S. 22:1405

In defendant’s final assignment of error, he argues that the trial court erred in reading a portion of La. R.S. 22:1405, which is the statute creating PIAL. Defendant contends that reading this portion of the statute allowed the State to suggest that PIAL was in some way an insurer itself, and that only a portion of the statute was read.

After reviewing the trial court’s instructions to the jury, we find the trial court explained that every insurance company writing policies in this state must adhere to the rules promulgated by PIAL. The trial court went on to instruct the jury as to the purpose of the creation of PIAL; how insurance companies had to adhere to the rates promulgated by PIAL; and that changes in fire protection classification in an area could result in adjusted premiums for polices in the area affected.

We do not find the trial court’s instructions in any way suggested that PIAL was an insurance company. Rather, we find the trial court accurately instructed the jury on the purpose and role of PIAL regarding fire protection classifications and insurers.

We agree with the State’s contention that it was unnecessary to read the entire language of La. R.S. 22:1405, because of the length of the statute. Rather, given the circumstances of this case, it was necessary for the jury to have an understanding of what PIAL is and its role as far as fire departments and insurance companies. Further, defense counsel was clearly able to present evidence that PIAL was, in fact, not an insurance company.

This assignment of error is without merit.

J^CONVICTION AND SENTENCE AFFIRMED.

      . Defendant maintains the fire reports reviewed by PIAL are not false.

      . See La. R.S. 22:1405 (now La. R.S. 22:1460 as renumbered by 2008 La. Acts, No. 415, § 1, effective January 1, 2009.)

      . Louisiana Revised Statute 22:1416 provides: No person or organization shall willfully withhold information from or knowingly give false or misleading information to the commission ... any statistical agency designated by him, any rating organization, or any insurer which will affect the rates or premiums chargeable under this Part. A violation of this Section shall subject the one guilty of such violation to the penalties provided for violation of this Part.

      . The September 4, 2001 letter from defendant to the Donaldsonville Mayor indicated the DFD average response to a fire was “less than 8” as opposed to an average response in 2000 of 16.5 firefighters at a scene.