author: GENOVESE, Judge.

text:
    Rosaria Duran MAYA, Individually and on Behalf of Dayana Michelle Morales Duran and Maria Jose Morales Duran, Minors and Peter Arellano v. PRIOLA CONSTRUCTION CORPORATION.
    No. 12-1027.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      Robert L. Bonnaffons, Raymond P. Ward, Adams and Reese LLP, New Orleans, LA, for Third-Party Defendant/Appellant, CFS Enterprises, Inc., d/b/a Custom Frame Specialties.
    Andrew Blanchfield, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Appellee, Priola Construction Corporation.
    Rex D. Townsley, The Townsley Law Firm, Lake Charles, LA, for Plaintiffs, Rosaría D. Maya, individually and on behalf of Dayana Michelle Morales Duran and Maria Jose Morales Duran, minors, and Peter Arellano.
    H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, LLP, Opelousas, LA, for Intervenor, Louisiana Commerce and Trade Assoc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

1 tThird Party Defendant/Appellant, CFS Enterprises, Inc., d/b/a Custom Frame Specialties (CFS), appeals the judgment of the trial court denying its motion for partial summary judgment and granting the cross-motion for partial summary judgment filed by Third Party Plaintiff/Appel-lee, Priola Construction Company (Priola). For the following reasons, we reverse in part, affirm in part, and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2009, Priola was hired as the general contractor to construct a branch bank for the Whitney National Bank on Country Club Drive in Lake Charles, Louisiana (Whitney Bank Project). Priola entered into a construction subcontract with CFS to perform the framing work on the Whitney Bank Project. CFS then entered into a construction subcontract with Felipe Dominguez to perform the framing work on the Whitney Bank Project. Felipe Dominguez employed Jose Pilio Morales and Peter Arellano. An accident occurred on the Whitney Bank Project resulting in serious injury to Arellano and the death of Morales.

In June 2010, Plaintiffs, Rosaría Duran Maya, individually and on behalf of Daya-na Michelle Morales Duran and Maria Jose Morales Duran, minors, and Peter Arellano, filed a Petition for Damages against Priola. Plaintiffs’ petition alleged:

On or about September 15, 2009, Jose Pifio Morales (deceased) and Peter Arel-lano were participating in the construction of a bank building at 1901 Country Club Road, Lake Charles, Louisiana in Calcasieu Parish. As [Priola’s] employees began manually lifting a 1,300 pound wall frame, they called out for help to Morales and Arellano. Morales and Ar-ellano came over and positioned themselves to assist lifting the wall to an overhead height. [Priola’s] employees lost control of the wall at this point[,] and it came crashing down on Morales and Arellano. Specifically, Morales was crushed by the wall. Mr. Arellano suffered a crushed pelvis. Despite being rushed to the hospital, Mr. Morales was later pronounced dead, but not before he | ¿went through agonizing pain en route to the hospital. Mr. Arellano continues to suffer immense pain as a result of a crushed pelvis. After the foregoing! ] events[, Priola] was issued a citation for fault by the U.S. Department of Labor/OSHA.

Plaintiffs asserted that Priola’s “negligence and gross negligence was the proximate cause of [Arellano’s] injuries and [Morales’] death.”

Priola filed a general denial to Plaintiffs’ petition in July 2010. In June 2011, Priola filed a Third Party Demand against CFS, asserting contractual defenses and indemnification. According to Priola, prior to the September 15, 2009 accident, it had entered into a written construction subcontract with CFS to perform the framing work on the Whitney Bank Project. Said construction subcontract included an indemnity clause. According to Priola, “[p]ursuant to Article 7 of the contract, [CFS] agreed to notify and hold harmless Priola from all damages, losses or expenses from any claims or damages for bodily injury. The indemnification was to extend to claims resulting from performance of the contract at issue.”

In January 2012, CFS filed a motion for partial summary judgment which asserted that “[b]ased on the facts, the evidence, and the applicable law, Priola has no viable claim for contractual indemnity, and as such, partial summary judgment is proper.” According to CFS, the sentence in the indemnity clause which declared that “indemnification shall extend to claims resulting from performance of this subcontract and shall apply only to the extent that the claim or loss is caused in whole or in part by any negligent act or omission of sub-contractor or any of its agents, employees, or sub-contractors!,]” rendered Priola’s claim for indemnity invalid. CFS also argued that this court’s holding in Boykin v. PPG Industries, Inc., 08-117 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, writs denied, 08-1635, 08-1640 (La.10/31/08), 994 So.2d 537, supported its position that it did not owe [sindemnity to Priola based on the language of the indemnity clause and Louisiana’s comparative fault law.

In March 2012, Priola responded by filing a cross motion for partial summary judgment also on the issue of indemnity. Priola sought a judgment declaring that CFS owed it indemnity based on the interpretation of Article 7 of the construction subcontract. Priola argued that the language of the indemnity clause is analogous to that found in Berry v. Orleans Parish School Board, 01-3283 (La.6/21/02), 830 So.2d 283; thus, it is entitled to indemnity from CFS for its own acts of negligence.

A hearing was held on April 2, 2012. The trial court granted Priola’s motion and denied the motion filed by CFS. The trial court signed a judgment on April 24, 2012, “finding that the indemnification clause at issue requires CFS ... to indemnify Priola ... in accordance with the contents of the indemnification clause subject of the current motions.” CFS appeals.

ASSIGNMENTS OF ERROR

CFS asserts that the trial court erred: (1) “in granting Priola’s motion for summary judgment[;]” and (2) “in denying [its] motion for summary judgment.”

LAW AND DISCUSSION

Standard of Review

The governing jurisprudence relative to a motion for summary judgment and our appellate standard of review thereof has been set forth by our supreme court as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06— 363 (La.l1/29/06) ], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is |4any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07), 951 So.2d 1058]; King v. Parish National Bank, [04-337 (La.10/19/04), 885 So.2d 540]; Jones v. Estate of Santiago, [03-1424 (La.4/14/04), 870 So.2d 1002.]

Samaba v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

Assignment of Error Number One

In this assignment of error, CFS asserts that the trial court erred in granting Prio-la’s motion for summary judgment relative to the issue of indemnity in the construction subcontract.

Questions of contractual interpretation are questions of law which are subject to a de novo standard of review. Mitchell v. Patterson Ins. Co., 00-612 (La.App. 3 Cir. 12/6/00), 774 So.2d 366. Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La.Civ.Code arts. 1983 and 2045. If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La.Civ.Code art. 2046. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art. 2050. Whether or not a contract is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759. These general rules that govern the interpretation of most contracts apply to contracts of indemnity. Soverign Ins. Co. v. Tex. Pipe Line Co., 488 So.2d 982 (La.1986).

Boykin, 987 So.2d at 842.

The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. After which, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Thus, summary judgment is apropos when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusions to be drawn from the facts.
Facts are material if they determine the outcome of the legal dispute. The determination of the materiality of a particular fact must be made in light of the relevant substantive law.
1 ¡Murphy’s Lease & Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., GO-978, pp. 4-5 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, 1288, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195 (footnotes omitted).

Edwards v. Larose Scrap & Salvage, Inc., 10-596, pp. 2-3 (La.App. 3 Cir. 12/8/10), 52 So.3d 1009,1011.

Article 7, the provision of the construction subcontract at issue herein, states:

INDEMNIFICATION. To the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless Owner, Architect, Architect’s consultants, and Contractor from all damages, losses, or expenses, including attorney[] fees, from any claims or damages for bodily injury, sickness, disease, or death, or from claims for damage to tangible property, other than the Work itself. This indemnification shall extend to claims resulting from performance of this Subcontract and shall apply only to the extent that the claim or loss is caused in whole or in part by any negligent act or omission of Subcontractor or any of its agents, employees, or subcontractors. This indemnity shall be effective regardless of whether the claim or loss is caused in some part by a party to be indemnified. The obligation of Subcontractor under this Article shall not extend to claims or losses that are primarily caused by the Architect, or Architect’s consultant’s performance or failure to perform professional responsibilities.

CFS contends that Priola seeks indemnity for its own negligence, yet it alleges that there are ambiguities in the indemnity clause and that “Louisiana law disfavors construing an indemnity contract to indemnify someone for the consequences of his or her own negligence.” CFS asserts that the ambiguity in the indemnity clause must be construed against Priola because Priola is responsible for supplying its terms. According to CFS, Priola admits that the contract in question is Priola’s standard form which it uses with subcontractors; therefore, La.Civ.Code art. 2056 mandates that any doubt about the contract’s interpretation must be resolved against Priola.

We find no ambiguity in the indemnity clause of the contract between Priola and CFS. In fact, the indemnity clause specifically states that indemnity “shall happly only to the extent that the claim or loss is caused in whole or in part by any negligent act or omission of [CFS] or any of its agents, employees, or subcontractors.” CFS also argues that since there has been no adjudication of fault, the trial court’s grant of Priola’s partial summary judgment must be reversed as premature. We agree. No party to this litigation has even alleged that CFS caused or contributed to the accident for which Priola seeks indemnity. CFS was not named as a main defendant in the case. Therefore, CFS argues that even if the indemnity clause is not found to be ambiguous, since the purported contract provides that CFS’s indemnity obligation applies only to the extent of its fault, the unresolved determination of its fault presents a genuine issue of material fact, and the trial court erred in holding otherwise. We agree.

We find that the portion of the indemnity clause which states that indemnification “shall apply only to the extent that the claim or loss is caused in whole or in part by any negligent act or omission of Subcontractor” clearly raises a genuine issue of material fact which has yet to be adjudicated. The indemnity clause is contingent upon and triggered by the legal determination of fault attributed to CFS. There is no dispute that fault of the parties has not been legally determined. The allocation of fault is a question of fact. When, as here, a genuine issue of material fact remains, the matter is not ripe for summary judgment. Therefore, the trial court’s grant of summary judgment in favor of Priola must be reversed.

Assignment of Error Number Two

In this assignment of error, CFS seeks a judgment on appeal granting its motion for summary judgment against Priola. Having found questions of material fact relative to the indemnification provision of the construction subcontract as set 17forth above in Assignment of Error Number One, we affirm the trial court’s denial of CFS’s motion for summary judgment.

DECREE

The judgment of the trial court granting summary judgment in favor of Priola Construction Company is reversed. The judgment of the trial court denying the motion for summary judgment filed by CFS Enterprises, Inc., d/b/a Custom Frame Specialties, is affirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion. We assess costs of this appeal equally among both parties.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . Louisiana Civil Code Article 2056 provides: “In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.”


source: Caselaw Access Project

license: Public Domain

text:
    Bryan E. MOBLEY v. CITY OF DeRIDDER, Jose Chapa, Individually and in his Capacity as a DeRidder City Police Officer, Lance Grant, Individually and in his Capacity as a Beauregard Parish Deputy Sheriff, Derek Smith, Individually and in his Capacity as a Beauregard Parish Deputy Sheriff, Beauregard Memorial Hospital, Kim Lamitina, Individually and in her Capacity as a R.N. at Beauregard Memorial Hospital.
    No. 12-1069.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      Mitchel M. Evans, II, DeRidder, LA, for PlaintifiyAppellant, Bryan E. Mobley.
    David R. Lestage, Hall, Lestage & Lan-dreneau, DeRidder, LA, for Defendants/Appellees, Derek Smith and Lance Grant, individually and as Deputies Sheriff of Beauregard Parish, Louisiana.
    Bradley C. Myers, Kean Miller LLP, Baton Rouge, LA, Terrence D. McCay, Kean Miller LLP, Lake Charles, LA, for Defendants/Appellees, City of DeRidder and Jose Chapa.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiff, Bryan E. Mobley, filed suit for damages against Defendants, the City of DeRidder, Jose Chapa (Officer Chapa), Lance Grant (Deputy Grant), Derek Smith (Deputy Smith), Beauregard Memorial Hospital, and Kim Lamitina (Nurse Lami-tina). Mr. Mobley alleges he sustained personal injury when Beauregard Parish Sheriff Deputies Grant and Smith, DeRid-der City Police Officer Chapa, and Beauregard Memorial Hospital Nurse Lamitina forcibly obtained a urine sample from him through the use of a catheter subsequent to his arrest for driving while intoxicated. Defendants, the City of DeRidder, Officer Chapa, Deputy Grant, and Deputy Smith, filed motions for summary judgment which were granted by the trial court. Mr. Mob-ley appeals the trial court’s grant of these motions for summary judgment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 24, 2010, Deputies Grant and Smith arrested Mr. Mobley for driving while intoxicated. Before his arrest, Mr. Mobley refused to submit to a field sobriety test. After his arrest, Mr. Mobley also refused to submit to a breathalyzer test. A search warrant was procured to obtain bodily fluids — both blood and urine — from Mr. Mobley. In order to effectuate the search warrant, Mr. Mobley was taken to Beauregard Memorial Hospital. Though he initially resisted efforts to execute the search warrant, Mr. Mobley ultimately complied and permitted the withdrawal of a blood sample by medical personnel; however, he forcefully refused to render a urine sample. A urine sample was obtained from Mr. Mobley through the use of a catheter by medical personnel and the use of physical restraint by law enforcement officers.

| ?Mr. Mobley filed a Petition for Damages pro se on May 23, 2011. In his petition, Mr. Mobley alleged that he “was restrained by excessive force” while medical personnel and law enforcement officers “used a catheter to forcefully take [his] urine[.]” His pleading requested damages for the physical and psychological injuries he claims he suffered from the alleged use of excessive force.

On December 9, 2011, Deputies Grant and Smith filed a motion for summary judgment, asserting that they “used only that force reasonable and necessary against [Mr. Mobley] in order to effectuate the execution of the search warrant for [his] bodily fluids.” Deputies Grant and Smith sought summary judgment pursuant to La.Code Civ.P. art. 966(C)(2) on the basis that Mr. Mobley “cannot establish lack of probable cause for the issuance of the warrant or the use of unreasonable force in its execution^ therefore], he cannot prove essential elements necessary for him to prevail at a trial in this case[.]”

On January 13, 2012, the City of DeRid-der and Officer Chapa also filed a motion for summary judgment, asserting that Mr. Mobley “has not and cannot present sufficient factual support showing that [Officer] Chapa used force, much less excessive force, in assisting [Deputies Grant and Smith] in obtaining blood and urine samples from [him] pursuant to the valid warrant obtained by the Deputies.” Therefore, the City of DeRidder and Officer Chapa joined Deputies Grant and Smith in seeking summary judgment pursuant to La.Code Civ.P. art. 966(C)(2).

The evidence before the trial court in support of the motions for summary judgment included affidavits of Officer Chapa, Deputy Smith, and Deputy Grant, with each disputing the use of unreasonable or excessive force in the execution of [3the search warrant. Also offered were the Search Warrant Application and the Order of Search signed by the trial court judge.

In opposition to the motion for summary judgment, Mr. Mobley offered: Exhibit A, Incident Report Number E-00686-10; and, Exhibit B, an in globo offering which contained the Search Warrant Application, the Order of Search, the report from Southwest Louisiana Criminalistics Laboratory, and a document entitled “Urinalysis to Determine Blood Alcohol in DUI Investigations” to which Mr. Mobley refers in his opposition memorandum as “Learned Treatises.”

The matter was heard on March 12, 2012, at which time both motions for summary judgment were granted. On May 10, 2012, the trial court issued written Reasons for Judgment, wherein he stated:

A judge may issue a search warrant authorizing the search of a person for bodily samples. La.C.Cr.P. Art. 163.1. In order to execute a search warrant, a peace officer may use such means and force as are authorized for arrest. La. C.Cr.P. Art. 164. A person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained. La.C.Cr.P. Art. 220. Therefore, it follows that a peace officer executing a search warrant may use reasonable force to execute the search, and also to overcome any resistance or threatened resistance of the person being searched.
Of particular note is that in the underlying criminal matter entitled “State of Louisiana v. Bryan E. Mobley”, Docket No. CR-2010-0462 in this court, the defense asserted that the search warrant violated Mr. Mobley’s constitutional rights. The trial court upheld the issuance of the search warrant and writs to the Third Circuit Court of Appeal were denied[,] and the trial court’s judgment was upheld.
The use of excessive force by the defendants is an essential element in ... Mr. Mobley’s case. Defendants have submitted affidavits which attest that Defendants used only the level of force necessary to execute the search and to overcome the resistance of Mr. Mobley. These affidavits, along with the defendants’ pleadings and briefs, point out a lack of factual support for Mr. Mobley’s claims. At this point in the proceedings, the burden shifted to Mr. Mobley to produce factual support sufficient to establish that he |4would be able to satisfy his evidentiary burden at trial of proving the use of excessive force. Mr. Mobley failed to produce any factual support of this claim. There was no evidence offered, other than the mere allegations of Mr. Mobley’s pleadings, to show that defendants struck, choked, or otherwise used force disproportionate to Mr. Mob-ley’s resistance. Additionally, Mr. Mob-ley has offered no evidence of physical injury as a result of being restrained by police. Therefore, the Court concludes that Mr. Mobley has failed to produce factual support sufficient to establish that he will be able to satisfy his eviden-tiary burden at trial.

On the same day, the trial court signed two judgments granting the motions for summary judgment, and Mr. Mobley’s claims against the City of DeRidder, Officer Chapa, Deputy Smith, and Deputy Grant were dismissed. It is from these judgments that Mr. Mobley appeals.

ASSIGNMENT OF ERROR

In his sole assignment of error, Mr. Mobley asserts that “[t]he trial court committed an abuse of discretion in failing to consider expert treatises, which address! ] the inappropriate use of urinalysis for determining an arrestee’s blood alcohol concentration at time of arrest.”

LAW

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06— 363 (La.11/29/06) ], 950 So.2d 544, [see La. Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07) ], 951 So.2d 1058[ ]; King v. Parish National Bank, [04-337 (La.10/19/04) ], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04) ], 870 So.2d 1002[.]

Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

| ^Louisiana Code of Civil Procedure Article 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he ■will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

DISCUSSION

Mr. Mobley’s sole assignment of error confínes the issue before this court to a rather narrow inquiry: whether the trial court’s holding is wrong because it presumably failed to rely on treatises which disapprove of the use of urinalysis to determine an individual’s blood alcohol concentration. Mr. Mobley concedes in his appellate brief that “there is no factual dispute as to the existence of probable cause at the time of ... arrest.” He asserts that “the inquiry herein should be focused on the use of force by the arresting agency in securing samples of ... bodily fluids, in order to determine Blood Alcohol Concentration[ ] (BAC) at the time of [his] traffic stop.” Mr. Mobley argues that “the [j]udgment of the [t]rial [c]ourt should be reversed, as it failed to take judicial notice of expert treatises, which frown[] upon the use of urinalysis in Blood Alcohol Concentration determinations^]”

Deputies Grant and Smith counter, arguing that “[t]he [c]ourt found that based upon the submissions to it, there was not any dispute as to material fact. Counsel for Mr. Mobley has not demonstrated any error of the [t]rial [c]ourt in that regard.” The City of DeRidder and Officer Chapa assert that “[although Judge Anderson did not specifically reference ‘the learned treatises’ favored by [Mr. Mobley], there is no evidence in the record that Judge Anderson failed to ^consider the information in reaching his decision.” The City of DeRidder and Officer Chapa contend that “Judge Anderson was not required to take ‘judicial notice’ of such ‘learned treatises.’ ” We agree.

We find no merit to Mr. Mobley’s appeal. The trial court is not bound to take judicial notice of what Mr. Mobley contends are “Learned Treatises” wrangling over the use of urinalysis. See La. Code Evid. 201 and 202. Nor is the trial court bound by treatises, period. The trial court is bound to consider the facts in evidence, to apply the law to those facts, and to render a decision. Based on the evidence, the trial court found no genuine issues of material fact and that Defendants were entitled to summary judgment as a matter of law.

Pursuant to our de novo review of the record, we conclude that the trial court was correct in holding that Mr. Mobley failed to produce sufficient evidence to establish that he will be able to prove his claim at trial. There is no genuine issue of material fact and the City of DeRidder, Officer Chapa, Deputy Grant, and Deputy Smith are entitled to judgment as a matter of law.

DECREE

For the foregoing reasons, the motions for summary judgment granted in favor of Defendants/Appellees, the City of DeRid-der, Joseph Chapa, Lance Grant, and Derek Smith are affirmed. Costs of this appeal are assessed against PlaintiffiAp-pellant, Bryan E. Mobley.

AFFIRMED.

      . Beauregard Memorial Hospital and Kim Lamitina were dismissed from this matter pursuant to an exception of prematurity.

      . Since December 19, 2011, Mr. Mobley has secured counsel and is no longer pro se.


author: PAINTER, Judge.

text:
    LITTLE CAPITOL OF LOUISIANA, INC., Diesi Development Corporation, et al. v. TOWN OF HENDERSON.
    No. 12-1089.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.
    Michael D. Hebert, Jerry L. Mallet, Lafayette, LA, for Defendant-Appellant, Town of Henderson.
    W. Glenn Soileau, Breaux Bridge, LA, for Plaintiffs-Appellees, Little Capitol of Louisiana, Inc., Diesi Development Corporation, Sal Diesi, Tommy Diesi, Jackie Ser-rette, Karen Serrette, Kimberly Serrette, Susy Breaux, and Freddie Breaux.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

Lin this suit to declare an annexation ordinance invalid as unreasonable, Defendants, the Town of Henderson (the Town) appeals a judgment in favor of Plaintiff, Little Capitol of Louisiana, Inc., Diesi Development Corporation, Sal Diesi, Tommy Diesi, Jackie Serrette, Karen Serrette, Kimberly Serrette, Susy Breaux, and Freddie Breaux (collectively referred to hereinafter as I — 10 Businesses) finding the annexation unreasonable pursuant to a motion for summary judgment. Finding that genuine issues of fact remain, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On February 14, 2011, the Town adopted Ordinance 2011-001 annexing approximately forty-six acres of land in St. Martin Parish generally to the west of the Town and north of La. Hwy. 352 extending to La. Hwy. 347, including land to the north and south of Exit 115 from I — 10.

On February 17, 2011, Little Capitol and the Diesis filed a Petition in Opposition to Annexation and Extension of the Corporate Limits of the Town of Henderson. Plaintiffs asserted that the annexation was solely for the purpose of providing revenue to the Town, that the Town could not provide any services to the area to be annexed, and that, as a result, the annexation was unreasonable. Other parties intervened as Plaintiffs in the matter.

The Town answered the suit, and on March 12, 2012, Plaintiffs filed a Motion for Summary Judgment arguing that no issue of material fact remained but that the annexation was unreasonable. The trial court granted the motion, stating in written reasons that it found that: “[Plaintiffs have sustained them burden of proof that the annexation is unreasonable by an abundance of the evidence.”

The Town appeals.

| .DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Potter v. First Federal Sav. and Loan Ass’n, 615 So.2d 318 (La.1993). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A fact is “material” if its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute. Cormier v. Wise, 93-1434 (La. App. 3 Cir. 6/1/94), 638 So.2d 688. A fact is “at issue” if there exists any reasonable doubt as to its existence. Durrosseau v. Century 21 Flavin Realty, Inc., 594 So.2d 1036 (La.App. 3 Cir. 1992).

City of Alexandria v. Ratclijfe Const')". Co., LLC, 11-1200, p. 3 (La.App.'3 Cir. 2/8/12), 95 So.3d 1076, 1079-80 (citing Dinger v. Shea, 96^48, (La.App. 3 Cir. 12/11/96), 685 So.2d 485).

Faced with an issue of the reasonability of an annexation, the second circuit, in Hollingsworth v. City of Minden, 34,943, pp. 3-4 (La.App. 2 Cir. 8/22/01), 793 So.2d 1265, 1267, reversed and remanded on other grounds, 01-2658 (La.6/21/02), 828 So.2d 514, stated that:

In a suit to contest a proposed extension of corporate limits, the sole questions to be presented to the court are whether the proposed extension is reasonable and whether state and municipal requirements for annexation were met. La. R.S. 33:174(B). The Hollingsworths contend only that the annexation was unreasonable. Opponents of an annexation ordinance have the burden of proving the unreasonableness of the ordinance by abundant evidence. Nix v. Village of Castor, 116 So.2d 99 (La.App. 2 Cir.1959).
The reasonableness of enlargement of municipal boundaries is determined by considering factors such as a substantial increase in population; the need for additional area for construction of homes, mercantile, manufacturing or industrial establishments; a need for additional land area to accommodate the present or reasonably anticipated future growth of the municipality; and the extension of police, fire, sanitary protection or other municipal services to substantial numbers of residents of adjacent areas. Kansas City \ ^Southern Ry. Co. v. City of Shreveport, 354 So.2d 1362 (La.1978), ceH. denied, 439 U.S. 829, 99 S.Ct. 103, 58 L.Ed.2d 122 (1978); Nix v. Village of Castor, supra. The court considers generally the benefits and detriments to both the municipality and the area to be annexed. Kansas City Southern Ry. Co. v. City of Shreveport, supra.

The court in Hollingsworth further noted that: upon the particular facts in any given situation. Barbe v. City of Lake Charles, 45 So.2d 62, 216 La. 871 (La. 1949). Such a fact-driven inquiry necessarily involves a weighing of evidence. Consideration of the weight of the evidence is improper on a motion for summary judgment, and it is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Smith v. Lynn, 32,093 (La. App.2d Cir.8/18/99), 749 So.2d 692.

[I]n an annexation contest, what is reasonable or unreasonable depends largely

Id. at 1269

In support of their motion, the 1-10 Businesses attached:

1. R.S. 33:172-174 Statute on Annexation.
2. List and copy of decision of cases cited.
3. “Old” Town of Henderson.
4. Population of Henderson.
5. Thirty-six Photographs of undeveloped property within present city limits.
6. Deposition Mayor Sherbin Collette.
7. Map showing portion of Interstate 10 within the city limits and annexation sought in this case.
8. Reasons for Judgment of Judge Wattigny .
9. Decision of Third Circuit of Appeal.
10. Photographs of forty-six businesses sought to be annexed.
11. Affidavit of Bobby Guidry.
12. Photographs of boundary through yards in neighborhood.
13. Ordinance on Nuisances and Junk Cars.
14. Affidavit of Honorable Ronnie Theriot, Sheriff of St. Martin Parish.
15. Affidavit of St. Martin Sales Tax Administrator Carla Richard.
16. Photographs of Businesses’ commercial sewage plants.
17. Map and List of Streets of the Town of Henderson which are hard surface[d] and those not hard surface^].
18. Photographs of trash heaps and junk cars.
1419. Interstate 10 Exit 115 presently within the city limits.
20. Affidavit of Parish Permits Officer Reggie Neveu.
21. Affidavit[s] of Lawrence Picard, Jackie Serrette, and Freddie Breaux.
22. Affidavit of Peggy Choplin.

The affidavits included affidavits of residents and business owners in the annexed area, who testified that they did not want their property to be annexed. The affidavit of the Parish Permits Officer for St. Martin Parish states that no permits for new businesses in the Town have been issued since November 2008. The affidavit of the Sheriff of St. Martin Parish states that all calls for the Town are sent through the Sheriffs Department dispatch system because the Town has no police dispatcher and that the two departments cooperate in policing the annexed area. The 1-10 Businesses argue that the Town is not in need of additional property because it has not grown in population in four decades, that there is a substantial amount of land available south of the Town if room for growth were needed, that the annexation is an attempt to increase the Town’s tax revenue because of the business growth at Interstate 10 Exit 115, and that the Mayor in his deposition admitted that the Town had nothing to offer those businesses in terms of services.

The Town opposed the motion, filing in support of its opposition:

1. A copy of Ordinance 2011-001.
2. The affidavit of Mayor Sherbin Col-lette with an attached letter from the State of Louisiana Department of Environmental Quality (DEQ).
3. The affidavit of Leroy Guidry, Chief of Police for the Town, with attached Mutual Assistance Agreement with the St. Martin Parish Sheriffs Department.

The affidavit of Mayor Collette states that he requested that the DEQ investigate complaints of strong offensive odors coming from businesses in the proposed annex and that a letter from the DEQ indicated that the sanitary systems run by the businesses presented a public health risk to that area as well as to the [sTown. He further testified, via affidavit, that the Town has a municipal sewerage system which it is able to extend to the annexed area. In his affidavit, Chief Guidry testified that the St. Martin Parish Sheriffs Department regularly calls on the Town’s Police Department to answer calls in the annexed area, including calls at businesses in the area. The Town argues that it is prepared to extend police and sewer services to the annexed area and to invest in improving the infrastructure of the area.

After reviewing the “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted,” this court cannot, without weighing the evidence, assess the reasonableness of the annexation. Therefore, we find that a grant of summary judgment is not appropriate. Accordingly, the judgment of the trial court is reversed, and the matter is remanded to the trial court for further proceedings.

CONCLUSION

For these reasons, the judgment of the trial court granting summary judgment in favor of Plaintiffs is reversed. The matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Plaintiffs, Little Capitol of Louisiana, Inc., Diesi Development Corporation, Sal Diesi, Tommy Diesi, Jackie Serrette, Karen Serrette, Kimberly Ser-rette, Susy Breaux, and Freddie Breaux.

REVERSED AND REMANDED.

      . These reasons for judgment originate in an earlier annexation attempt by the Town of a similar area, which was ultimately found, after a trial on the merits, to be unreasonable because the tract annexed was non-contiguous.

      . Roberts v. Town of Henderson, 08-443 (La. App. 3 Cir. 11/5/08), 998 So.2d 272. is the opinion of this court on appeal from the judgment rendered in the earlier annexation attempt referenced in footnote 1.


author: AMY, Judge.

text:
    Shanelle CHAPMAN v. COUSHATTA TRIBE OF LOUISIANA, et al.
    No. 12-1168.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      Michael B. Miller, Miller and Associates, Crowley, LA, for Plaintiff/Appellant, Sha-nelle Chapman.
    M. Jeremy Berthon, Johnson, Rahman & Thomas, Baton Rouge, LA, for Defendants/Appellees, Louisiana Workers’ Compensation Corporation, Coushatta Tribe of Louisiana.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   AMY, Judge.

hThe employee appeals the workers’ compensation judge’s determination that the employer demonstrated her ability to earn ninety percent of her pre-injury wage and that it proved the availability of suitable jobs. The employee specifically contests the workers’ compensation judge’s rejection of her assertion that the employer’s rehabilitation efforts were insufficient. The employee appeals. For the following reasons, we affirm.

Factual and Procedural Background

Shanelle Chapman sustained injury in the course and scope of her employment as a cook at the Coushatta Casino Resort. Pursuant to a 2007 consent judgment, the Coushatta Tribe of Louisiana and its workers’ compensation insurer, Louisiana Workers’ Compensation Corporation, began providing supplemental earnings benefits at a rate of $230.91.

This matter arises from the defendants’ filing of a Motion for Modification of Judgment in November 2011, wherein they alleged that the claimant had been released to return to work from a sedentary to a full duty capacity by her physicians. The defendants also asserted that a vocational rehabilitation counselor, Buster Fontenot, had provided vocational rehabilitation to Ms. Chapman and had further identified available positions within Ms. Chapman’s work capabilities. Therefore, the defendants sought a modification of the consent judgment to reflect that Ms. Chapman’s entitlement to SEBs was based on a post-accident wage earning capacity.

At the hearing on the motion for modification, Ms. Chapman challenged the adequacy of the vocational rehabilitation offered. However, the workers’ compensation judge ruled in favor of the defendants, finding Ms. Chapman capable |2of earning ninety percent or more of her pre-injury wages. Therefore, the resulting ruling declared that the employer “has no further obligation to pay workers’ compensation disability benefits.” The workers’ compensation ruling further declared that “the vocational rehabilitation provided was appropriate and job placement is not required.”

The claimant appeals that ruling, assigning the following as error:

1. The workers’ compensation judge erred in allowing the rehabilitation file of Mr. Buster Fontenot and the statements of Mr. Fontenot’s employees into evidence.
2. It was error for the workers’ compensation judge to award the Coushatta Tribe of Louisiana and LWCC a credit against Shanelle Chapman’s indemnity benefits.

Discussion

Evidence

Ms. Chapman first briefly touches upon an evidentiary issue encountered at the compensation hearing. Namely, she contends that the defendants should not have been permitted to introduce Mr. Fonte-not’s vocational rehabilitation file into evidence. Ms. Chapman asserts that, despite the defendants having had the file in their possession for several months before the hearing, it was not provided to her attorney until the day of the hearing. Ms. Chapman contends that the five minutes provided by the workers’ compensation judge for review of the file was inadequate. Having reviewed the transcript, we find no merit in this assignment of error.

The transcript reveals that Ms. Chapman’s attorney primarily questioned the contents of the compensation file, suggesting that certain documents that he had in his possession had been removed. The attorney otherwise suggested that certain |saspects of the related testimony constituted hearsay as some documentation was initially generated by vocational consultants who did not testify at trial. On this point, however, the workers’ compensation judge pointed out that she would allow Mr. Fontenot to testify and would make a specific ruling regarding the admissibility of the file afterward. Ms. Chapman’s objection was revisited at several points of Mr. Fontenot’s testimony. At the end of the hearing, the following exchange and ruling occurred:

[Ms. Chapman’s counsel]:

Judge, I did object. And as we have seen by the testimony of the witness, there were more than one document missing from these particular records. Both of those documents are crucial, the original interview form and the documents concerning what he was supposed to do in providing vocational rehabilitation. I was given this information about ... five minutes before you came in, Judge. I have not looked through all the records and compared them with mine, but there are other records missing, too, the portions of which I don’t know, so I object on the fact that they’re not complete. I don’t have a problem with the ones that I have seen being authentic but they’re just not complete; that was my — basically, that was my objection to it.

[Defense counsel]:

You Honor, they should be allowed in and give it whatever weight you believe it’s due, especially since he’s been able to identify two of the things he believes should have been in there that weren’t and those have been admitted without any objection from me.

THE COURT:

The Court is going to allow the records to be admitted into evidence, but I will also recognize that some of the documents that were discussed with Mr. Fontenot are not in the record, so I agree with both of you: They should be admitted and they are not — the records are not complete.

Louisiana Revised Statutes 23:1317 requires that a workers’ compensation judge’s factual findings be based on competent evidence. See also Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375. However, the statute further provides that workers’ compensation judges are not bound by technical rules of evidence or procedure. Id. See also La.Code Evid. art. 1101(B). |4Rather, on review, an appellate court considers whether a workers’ compensation judge’s factual findings are reasonably supported by competent evidence. Chais-son, 708 So.2d 375.

Given the circumstances here, we find that the workers’ compensation judge permissibly found the vocational rehabilitation file to be competent evidence. Mr. Fontenot testified regarding the course of the multi-year rehabilitation efforts expended in this case. He did so under extensive cross-examination by the claimant’s attorney, a portion of which explicitly addressed the completeness and adequacy of the file at issue. As pointed out in the above colloquy, some of this questioning addressed documents that the attorney had in his possession, but which were not seemingly contained in the counselor’s file.

In light of the testimony provided, as well as the procedural and evidentiary standards applicable in workers’ compensation matters, we find no merit in the assertion that the workers’ compensation judge erred in admitting the file into evidence.

This assignment lacks merit.

Benefits

Ms. Chapman next questions the workers’ compensation judge’s ultimate determination that the defendants satisfied their burden of proving that she is capable of earning ninety percent of her pre-injury wages, and that the employer is, therefore, no longer obligated to pay workers’ compensation disability benefits. Instead, Ms. Chapman asserts that the employer failed to provide adequate | ¿vocational rehabilitation services. She alleges many deficiencies in the services rendered. Ms. Chapman’s arguments in brief echo those she made below in an effort to establish that the vocational rehabilitation services offered to her were insufficient.

While Ms. Chapman frames this case as one involving sufficiency of the vocational rehabilitation efforts, it was not instituted under La.R.S, 23:1226(B)(3)(a) for the purpose of questioning the quality of the vocational rehabilitation she was receiving. Instead, the chief question before the workers’ compensation judge involved the defendants’ attempt to prove that Ms. Chapman was no longer entitled to the SEB benefits that she had been receiving. We review this assignment of error within that framework.

Louisiana Revised Statutes 23:1221(3)(c)(i) provides as follows with regard to the availability of SEBs:

Notwithstanding the provisions of Sub-paragraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region.

| Jn Clay v. Our Lady of Lourdes Reg. Med,. Ctr., 11-1797 (La.5/8/12), 93 So.3d 536, the supreme court addressed La.R.S. 23:1221(3)(c)(i) in the context of the parties’ respective burdens of proof. It stated that, once an employee meets his or her initial burden of entitlement to benefits, an employer attempting to defeat that claim “must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region.” Id. at 539.

In this case, it is unquestioned that Ms. Chapman was receiving SEBs resulting from a back injury, that she could no longer perform her former position, and that her pain management physician determined that she had reached maximum medical improvement. Thus, the employer attempted to demonstrate the availability of certain jobs in the employee’s or the employer’s community or reasonable geographic region pursuant to La.R.S. 23:1221(3)(c)(i).

On this latter element of job availability, the supreme court has explained that an employer may satisfy its burden of proof by establishing, with competent evidence, at a minimum:

(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

Clay, 93 So.3d at 539 (quoting Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, pp. 10-11 (La.7/1/97), 696 So.2d 551, 557).

|7In this case, the workers’ compensation judge stated the following in finding that the defendants had sustained their burden of proof:

It is ordered that the claimant is capable of earning 90 percent or more of her pre-injury wages and, therefore, defendant has no further obligation to pay workers’ compensation disability benefits. The vocational rehabilitation provided was appropriate and job placement is not required.
The claimant is not working. The vocational rehabilitation counselor located jobs approved by claimant’s doctors. The claimant argues that it is impractical for her to accept the jobs because she does not have transportation and the jobs are not within her geographic region.
In this case, the claimant is a 27-year-old female. The jobs presented to the claimant were approved by claimant’s treating physicians. She applied for the jobs in Eunice; however, one called her back. After reviewing the record, the Court finds that the vocational rehabilitation provided was appropriate under Banks and job placement was not required. The Court considered the fact that the claimant applied for the jobs and did not get a job. Since the Supreme Court in Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 2011-C-1797 (05-18-2012) has made it very clear that courts cannot monitor claimants who may apply but sabotage efforts to actually obtain the jobs. For these reasons, job placement is not required and the claimant is capable of earning 90 percent or more of her pre-injury wages and, therefore, defendant has no obligation to pay benefits.

Our review of the record reveals no manifest error in this ruling. Instead, the record indicates that Mr. Fontenot performed a vocational assessment and repeated job surveys beginning in 2007. It further indicates that Ms. Chapman’s pain management physician and orthopedic surgeon approved a number of those positions as suitable for her limitations. After the final survey, in November 2011, Ms. Chapman’s pain management physician again confirmed that she had reached maximum medical improvement and that she could return to some type of employment, with a lifting capacity of no more than ten to fifteen pounds.

_[£fhe pain management physician approved six of the nine positions submitted by Mr. Fontenot, including positions as a security worker, a sewing machine operator, a hotel front desk clerk, a custodian, and a cashier. The physician did, however, deny approval of two additional clerk positions and a customer service representative position. The job descriptions for each, including the hourly wage attributable to each, is included within the defendants’ exhibit. Admittedly, Mr. Fontenot did not testify regarding the number of hours the job applicant for these positions would be expected to work each week. However, given the otherwise detailed nature of the job descriptions, and in light of the hourly wage contained on the descriptions, we find no manifest error in a determination that such an omission was not fatal to the overall proof regarding the amount of wages offered by each position.

Mr. Fontenot testified that, while he may not have personally verified the availability of the positions at the time they were submitted, a consultant did so. Further, while Ms. Chapman explained that she applied for and did not receive the positions submitted, the supreme court has repeatedly remarked that actual job placement is not required. Clay, 93 So.3d 536 (citing Seal v. Gaylord, Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161). See also Banks, 696 So.2d 551.

Neither do we find merit in Ms. Chapman’s position that the workers’ compensation judge should have considered the positions unavailable since she did not have a vehicle to reach those in communities outside of her hometown of Eunice. Significantly, La.R.S. 23:1221(3)(c)(i) provides only that the employer must demonstrate that a job is “available to the employee in the employee’s or employer’s community or reasonable geographic region.” (Emphasis added.) Additionally, the workers’ compensation judge was aware that Ms. Chapman had |9been able to find transportation to her previous place of employment and, as established on cross-examination, she had access to transportation, whether through family members or a vehicle she had in her possession during the time period in questions. In short, the record supports the conclusion that job availability within the reasonable geographic region was demonstrated.

Finally, Ms. Chapman devotes a portion of her argument questioning whether Mr. Fontenot abided by a written agreement entered into at the request of her attorney. She contends that his actions violated the agreement given certain bills submitted to the insurer which were not included in the rehabilitation file, certain communications with the defendants to which the claimant’s attorney was not a party, and the submission of job descriptions that she contends were inappropriate under the circumstances. Further, Ms. Chapman argues, as she did at trial, that Mr. Fontenot violated ethical rules applicable to vocational rehabilitation counselors.

Notably, however, this is not a case arising under La.R.S. 23:1226(B)(3)(a) in which the workers’ compensation court had previously ordered such employee-requested conditions. See Hargrave v. State, DOTD, 12-0341 (La.10/16/12), 100 So.3d 786 (wherein the Louisiana Supreme Court rejected a court’s requirement that a vocational rehabilitation counselor comply with certain prophylactic claimant-requested conditions absent evidence as to an actual dispute regarding the quality of the services provided by the counselor or the necessity of such services.) Rather, this case involved an employer’s attempt to satisfy its burden of Improving that an employee was no longer entitled to payment of SEB benefits. In this context, we find no error in the workers’ compensation judge’s determination that the alleged deviations from the claimant-requested conditions or the ethical standards were not sufficient to have undermined the defendants’ evidence regarding their burden of proof under La.R.S. 23:1221(3)(c)(i).

This assignment lacks merit.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed. Costs of this proceeding are assessed to the appellant, Shanelle Chapman.

AFFIRMED.

      . The workers' compensation judge addressed the issue of the adequacy of the file, stating: "I think, as fact finder, I can decide whether they need to be in his file or otherwise. If they have to do with Ms. Chapman, with Ms. Chapman's case, presumably they should be in the file. In this case, these documents are not.”

      . La.R.S. 23:1226(B)(3)(a) provides that:
      The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The procedure for hearing such claims shall be expedited as provided in R.S. 23:1124.

      . Similarly, Ms. Chapman's reliance on a 1995 opinion from this court, Maxie v. Brown Indus., Inc., 95-19 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La. 10/6/95), 661 So.2d 469, is not persuasive in this case. Rather, since Maxie, La.R.S. 23:1226 has been amended to provide an injured employee with an avenue for review of the quality of the vocational rehabilitation services provided. In Hargrave, 100 So.3d 786, the supreme court recognized the significance of this legislation following the jurisprudence of the 1980s and 1990s addressing inadequate vocational rehabilitation services. Again, Ms. Chapman did not seek the remedy available to her through La.R.S. 23:1226(B)(3)(a).


text:
    Cindy COLWELL v. The SUMMIT RETIREMENT CENTER.
    No. 12-1186.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      George A. Flournoy, Flournoy & Dog-gett (APLC), Alexandria, LA, for Plaintiff-Appellee, Cindy Colwell.
    Lawrence B. Frieman, Janna C. Berger-on, Juge, Napolitano, Guilbeau, Ruli & Frieman, Covington, LA, for Defendant-Appellant, The Summit Retirement Center.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

hThe Summit Retirement Center (Summit) appeals the ruling of the Workers’ Compensation Judge (WCJ) finding in favor of Cindy Colwell (Colwell) and awarding temporary total disability (TTD) benefits, medical expenses, travel expenses, $8,000.00 in penalties, and $10,000.00 in attorney fees. We affirm and award Col-well an additional $3,500.00 in attorney fees for work done in connection with this appeal.

FACTS AND PROCEDURAL HISTORY

Colwell, a registered nurse, was employed by Summit. At approximately 4:00 p.m. on Friday, February 11, 2011, Colwell was assisting another nurse in transferring a patient from a wheelchair to a bed. Col-well alleged that the transfer was difficult because the patient was heavyset and that this was the only strenuous activity that she had to perform at work that day. Colwell left work at 5:00 p.m., drove home, and then later met her daughter and granddaughter for dinner. At dinner, Col-well began to feel burning and tingling in her neck. Over the weekend, the pain significantly worsened, and, on Sunday, she reported the transfer incident to her supervisor and told her supervisor that she was going to the emergency room. Col-well’s mother took her to the emergency room. She attempted to return to work on February 21 and 22, 2011, but was unable to do so. Her primary care physician, Dr. Bruce Barton, took Colwell off work and referred her to a neurosurgeon, Dr. Gregory Dowd (Dr. Dowd). An MRI showed a C5-6 disc protrusion. Dr. Dowd related this to the transfer incident of February 11, 2011. Colwell began conservative treatment and returned to work on light duty on April 4, 2011. Summit terminated Colwell’s employment on June 20, 2011, but did pay (and is continuing to pay) indemnity benefits.

1 gColwell began treating with Dr. Clark Gunderson (Dr. Gunderson), an orthopedist, on July 5, 2011. She underwent an anterior cervical fusion performed by Dr. Gunderson on November 21, 2011. Summit paid for the surgery. At present, she is still treating with Dr. Gunderson and has not been released to return to work because, in addition to her neck problems, she is suffering from carpal tunnel syndrome and depression.

Colwell filed a disputed claim for compensation seeking payment of medical expenses, travel expenses, and penalties and attorney fees. Following trial, the WCJ found that Colwell had met her burden of proving that she suffered a work-related accident on February 11, 2011, and was entitled to TTD benefits; that Colwell had met her burden of proving that her carpal tunnel syndrome was work-related and that Summit was responsible for medical treatment associated therewith; that Summit was responsible for payment of the costs of treatment for depression and associated medications; and that Summit was responsible for travel expenses. The WCJ further awarded Colwell $8,000.00 in penalties for Summit’s failure to pay for antidepressant medication, failure to pay hotel and meal expenses, failure to pay mileage expenses, failure to pay medication costs, and failure to pay for a rib x-ray. Colwell was also awarded $10,000.00 in attorney fees. Summit filed this appeal, and Col-well answered the appeal seeking an increased award of attorney fees for work necessitated by this appeal. For the following reasons, we affirm the ruling of the WCJ in its entirety and award an additional $3,500.00 in attorney fees for work done in connection with this appeal.

DISCUSSION

In Stogner v. Smith & Smith, LLC, 11-413, p. 4 (La.App. 1 Cir. 11/9/11), 80 So.3d 47, 50 (citations omitted), the first circuit succinctly stated that: “The | ¡¡employee in a workers’ compensation action must prove by a preponderance of the evidence that a work-related event occurred and that an injury was sustained.”

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. All-man v. Washington Parish Police Jury, 2004-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86. Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Thus, “[i]f the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Const, 2001-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.
The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately, the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Severio v. J.E. Merit Constructors, Inc., 2002-0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 465, 469.

Batiste v. Tenet Healthcare Corp., 09-1192, pp. 3-5 (La.App. 1 Cir. 2/12/10), 35 So.3d 352, 354-55, writ denied, 10-559 (La.5/7/10), 34 So.3d 864.

Summit first argues that the WCJ committed manifest error in finding that an “accident” as defined by La.R.S. 23:1021 occurred. In that statute, the term “accident” is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1). However, the jurisprudence is clear that “when the performance of the [4usual and customary duties of a workman cause or contribute to a physical breakdown the statutory requirements for an accidental injury are present” and that “[t]he accident need not produce instantaneous objective symptoms of injury.” Brasseaux v. Argonaut Ins. Co., (La.App. 3 Cir. 5/25/83), 432 So.2d 1153, 1155 (citations omitted). Summit contends that Colwell admitted that she did not experience any pain, discomfort, or any sign of injury at the time the transfer was performed. After a thorough review of the record, we agree with the WCJ that there is no evidence that prior to February 11, 2011, Colwell had any type of problem performing her job functions and that she met her burden of proving the occurrence of a work-related accident.

Summit also argues that the WCJ committed manifest error in finding that Colwell’s neck complaints and carpal tunnel syndrome were causally related to her alleged accident. We agree with the WCJ’s finding that Colwell was entitled to the presumption of causation because there was no evidence that she manifested any disabling symptoms before February 11, 2011. Furthermore, the evidence and testimony indicated that all symptoms commenced within hours of the accident and manifested themselves thereafter. The medical testimony also. evidenced a reasonable possibility of causal connection between the accident and onset of the disabling symptoms, both in Colwell’s neck and hands. Carmena v. St. Anthony’s Home, 11-1181 (LaApp. 1 Cir. 5/2/12), 92 So.3d 539. Thus, there is no merit to this assignment of error.

Summit further argues that the WCJ erred in ordering it to pay for antidepressant medications. The WCJ noted that there was no evidence or testimony to contradict that presented by Colwell as to her depression. Therefore, we find no error in the WCJ’s ruling that Summit was responsible for the payment of antijde-pressant6 medications or in the award of a penalty for failure to timely authorize payment for depression medications.

Next, Summit alleges manifest error in the WCJ’s order that it pay and reimburse travel expenses and mileage costs. Having already found that the WCJ was correct in finding that Colwell proved a work-related accident and that her injuries were causally related thereto, we find no error in the WCJ’s ordering Summit to pay for medically necessitated travel expenses and mileage pursuant to La.R.S. 23:1203.

Summit also argues that the WCJ erred in ordering it to pay for prescription medication costs where Colwell did not prove that the bills were reasonable, necessary, and related to the work accident. Colwell introduced numerous bills for prescription medications as well as records of payments by Summit. Based on this evidence, the WCJ ordered Summit to pay the following medical expenses that it found to be outstanding: (1) $1,085.53 to Professional Pharmacy for outstanding medication expenses; (2) $3.64 to Wal-greens; (3) $200.09 to Walgreens and CVS; and (4) $417.94 to Walgreens and CVS. Again, having already found that the WCJ was correct in finding that Colwell proved a work-related accident and that her injuries were causally related thereto, we find no manifest error in the WCJ’s ordering Summit to pay the outstanding medical expenses it found to be reasonable, necessary, and related to the accident at issue herein.

Summit alleges manifest error in the WCJ’s award of $8,000.00 in penalties for failure to pay for anti-depressant medication, failure to pay hotel and meal expenses, failure to pay mileage expenses, failure to pay medication costs, and failure to pay for a rib x-ray. The failure to pay benefits will result in the imposition of penalties “unless the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no |ficontrol.” La.R.S. 23:1201(F)(2). We find no error in the award of penalties because Summit offered no evidence of any reasonable justification for its denial of the benefits for which penalties were imposed.

Finally, Summit argues that the WCJ improperly ruled on the issue of the nature and extent of Colwell’s disability because that issue was not in dispute. We find no merit to this assignment of error because the nature and extent of Colwell’s disability was listed in her initial filing of a disputed claim for compensation.

Colwell is entitled to an increase in attorney fees as requested in her answer to appeal for additional time incurred in defending Summit’s unsuccessful appeal. Frith v. Riverwood Inc., 04-1086 (La.1/19/05), 892 So.2d 7. We find an additional attorney fee of $3,500.00 is warranted given the issues in this case and the amount of work necessitated by the appeal.

DECREE

For all of the foregoing reasons, we affirm the judgment of the WCJ. Additionally, we award $3,500.00 in attorney fees to Plaintiff-Appellee, Cindy Colwell, for work done on this appeal. All costs of this appeal are assessed to Defendant-Appellant, The Summit Retirement Center.

AFFIRMED.


text:
    Beverly E. LEDET v. John J. CAMPO, Jr., et al.
    No. 12-1193.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      Mark A. Watson, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Ap-pellee, Patrick C. Mathews.

      Eugene A. Ledet, Jr., Dalrymple & Le-det, LLC, Alexandria, LA, for Plaintiff/Appellant, Beverly E. Ledet.
    Stephen Dale Cronin, Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for Defendant/Appellee, Safeco Insurance Company of America.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   AMY, Judge.

hThe plaintiff in this matter, Beverly E. Ledet, was a shared employee of Dr. John J. Campo and Dr. Patrick C. Mathews, who operated a dental practice together. Both employers decided to change Ms. Ledet’s compensation structure, and Dr. Mathews had a conversation with Ms. Le-det concerning the changes in compensation and office policy. Thereafter, both of her employers decided to terminate Ms. Ledet’s employment, and Dr. Mathews telephoned Ms. Ledet to inform her of that decision. Ms. Ledet filed suit, alleging, among other claims, that Dr. Mathews tor-tiously interfered with her employment contract with Dr. Campo. Dr. Mathews and his homeowners’ insurer filed motions for summary judgment, which were both granted by the trial court. This appeal follows. For the following reasons, we affirm.

Factual and Procedural Background

Ms. Ledet is a dental hygienist. For eight years, she was employed by two dentists, John J. Campo, DDS, PLLC, and Patrick C. Mathews, DDS, LLC. The record indicates that Dr. Mathews and Dr. Campo operated as separate entities but that they shared a dental practice pursuant to a written agreement. According to deposition testimony, Dr. Mathews now owns a majority of the practice. Ms. Le-det received separate paychecks and separate W-2s from both Dr. Mathews and Dr. Campo.

According to the record, Dr. Campo and Dr. Mathews decided to change the compensation structure for their dental hygienists from commission to salary. Dr. Mathews spoke with Ms. Ledet about the change, as well as about office policy, on 12July 29, 2010. Although Dr. Mathews and Ms. Ledet agreed generally about the content of that meeting, the tenor of the conversation is in dispute. Dr. Mathews testified in his deposition that Ms. Ledet was disrespectful and that he could tell from her tone that she was unhappy. According to Dr. Mathews, Ms. Ledet pointed her finger at him and spoke in a loud and aggressive manner. Ms. Ledet denies that the conversation was anything but professional and additionally contends that Dr. Mathews “made accusations about the way [she] was practicing hygiene.”

Both Dr. Mathews and Dr. Campo testified that they discussed the situation. Both testified that Dr. Campo initially suggested that they should terminate Ms. Le-det’s employment and that they both agreed to let her go. According to Dr. Mathews, “the straw that broke the camel’s back” was not that Ms. Ledet acted inappropriately during their conversation the day before, but that another employee had reported to him that she had an uncomfortable conversation with Ms. Ledet wherein Ms. Ledet accused her of “interfering” with Ms. Ledet’s “business.” Dr. Campo testified that he based his decision primarily on Ms. Ledet’s apparent refusal to accept the pay change. According to Dr. Campo, when he briefly spoke with Ms. Ledet before her conversation with Dr. Mathews, she “basically” told him she was not going to agree to the pay change.

The next day, Dr. Mathews called Ms. Ledet and informed her that both he and Dr. Campo were terminating her employment. Dr. Mathews testified that he told Ms. Ledet that the way she had spoken with him was part of the reason he and 13Pr. Campo were terminating her employment. Dr. Mathews also told her that he had spoken with other dentists about terminating her employment.

Thereafter, Ms. Ledet brought this action initially against John J. Campo, DDS, PLLC, and Patrick C. Mathews, DDS, LLC. Therein, she alleged that Dr. Mathews made derogatory comments about her abilities as a hygienist and “numerous false accusations” about their meeting concerning the change in pay. Ms. Ledet also alleged that Dr. Campo and Dr. Mathews “openly bragged” about the termination with office personnel and others. According to her complaint, Ms. Ledet has been “emotionally devastated and has been unable to find employment in the Alexandria, Louisiana area.” Ms. Ledet asserted claims under theories of defamation of character, intentional infliction of emotional distress, libel and slander, negligent misrepresentation, breach of contract, and “other actions.” With regard to damages, Ms. Ledet sought damages for severe emotional distress, defamation of her name in the dental community, loss of wages, and “other damages.”

After Ms. Ledet amended her petition to name Dr. Mathews, individually, as a defendant, she voluntarily dismissed her claims concerning defamation of character, intentional infliction of emotional distress, libel and slander, and “other actions.” She also dismissed her claim for damages for defamation in the dental community. Ms. Ledet also amended her petition to name Dr. Mathews’ homeowners’ insurance company, SAFECO Insurance Company of America.

| thereafter, Dr. Mathews and SAFE-CO filed separate motions for summary judgment. Therein, Dr. Mathews argued that, because Ms. Ledet was an at-will employee, he could not be held liable for his actions in terminating her employment and, in any case, Ms. Ledet had no evidence that she had any loss of wages as a result of the termination. SAFECO contended that, because all of Dr. Mathews’ alleged actions were taken as part of his business pursuits, SAFECO, as Dr. Mathews’ homeowners’ insurer, had no liability under the policy it issued to Dr. Mathews. SAFECO also noted that Ms. Ledet was an at-will employee of Dr. Mathews and Dr. Campo. Further, SAFECO observed that Ms. Ledet testified at her deposition that she had not sought any medical or psychological treatment as a result of her termination, that she denied having any medical condition that would relate to those incidents, and that she testified that no one had ever informed her that they would not hire her because of something that Dr. Mathews had said to them about her.

Ms. Ledet responded, contending that Dr. Mathews tortiously interfered with her contract of employment with Dr. Campo by misrepresenting their conversation of July 29, 2010 and because “all of the facts that resulted in Campo terminating Ms. Ledet came straight from Mathews.” Ms. Ledet also pointed to Dr. Mathews’ cell phone records, which showed that Dr. Mathews spoke several times with one of the other dental hygienists, and implied that these conversations had something to do with the termination of her employment. With regard to SAFECO’s contention that there was no coverage under its homeowners’ insurance policy, Ms. |fiLedet contended that “dishonesty, moral turpitude and the like are not actions arising out of the business pursuits of the insured, namely, dentistry in this case.”

After a hearing, the trial court granted both motions for summary judgment and dismissed Ms. Ledet’s claims against Patrick C. Mathews, DDS, LLC, Dr. Mathews, individually, and SAFECO. Ms. Le-det appeals, asserting as error:

1. Was it manifestly erroneous and legal error for the trial court to have required “privity of contract ” between Dr. Mathews, Ms. Ledet, and Dr. Cam-po, as prerequisite to a breach of contract claim by Ledet against Mathews?
2. Was it manifestly erroneous and legal error for the court to summarily determine issues of intent, motive, malice, and good faith, subjective facts rarely determined by summary judgment?
8. Was it manifestly erroneous and legal error for the court to summarily conclude the conduct of Dr. Mathews involved business pursuits, and was therefore excluded under the SAFECO policy of insurance, when issues of intent, motive and good faith had yet to be determined?

Discussion

Motions for Summary Judgment — Dr. Mathews

Louisiana Code of Civil Procedure Article 966 permits a party to seek summary judgment, which shall be granted when “there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(C)(1). Further, although the burden of proof remains with the mov-ant,

if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to | ^satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

“Appellate courts review a trial court’s grant or denial of a motion for summary judgment using the de novo standard of review, under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate in any given case.” Boykin v. PPG Industries, Inc., 08-117, p. 4 (La. App. 3 Cir. 6/18/08), 987 So.2d 888, 842 (citing Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226), writ denied, 08-1635, 08-1640 (La.10/31/08), 994 So.2d 537.

Before delving into the substance of her assignments of error, we observe that the trial court found that Ms. Ledet’s claim for tortious interference with a contract was precluded under 9 to 5 Fashions, Inc. v. Spumey, 538 So.2d 228 (La.1989). In 9 to 5 Fashions, the supreme court revisited its previous jurisprudence concerning tortious interference with a contract and found that:

an officer of a corporation owes an obligation to a third person having a contractual relationship with the corporation to refrain from acts intentionally causing the company to breach the contract or to make performance more burdensome, difficult or impossible or of less value to the one entitled to performance, unless the officer has reasonable justification for his conduct. The officer’s action is justified, and he is entitled to a privilege of immunity, if he acted within the scope of his corporate authority and in the reasonable belief that his action was for the benefit of the corporation.

Id. at 231.

The trial court rejected Ms. Ledet’s claim for tortious interference with a contract on the basis that 9 to 5 Fashions limits liability to corporate officers and that there was no evidence that Dr. Mathews was an officer of Dr. Campo’s professional limited liability company. See Fav-rot v. Favrot, 10-986 (La.App. 4 |7Cir. 2/9/11), 68 So.3d 1099, writ denied, 11-636 (La.5/6/11), 62 So.3d 127; Tech. Control Sys., Inc. v. Green, 01-955 (La.App. 3 Cir. 2/27/02), 809 So.2d 1204, writ denied, 02-962 (La.5/31/02), 817 So.2d 100. We find nothing in Ms. Ledet’s brief to this court indicating that she is contesting that issue and, therefore, do not address that portion of the trial court’s judgment.

Next, Ms. Ledet contends that the trial court erred in finding that there was no privity of contract between herself, Dr. Mathews, and Dr. Campo that would impose a duty of good faith upon Dr. Mathews in his dealings with Dr. Campo with regard to Ms. Ledet. Ms. Ledet argues that her claim is not that Dr. Mathews’ termination of her employment on his own behalf was improper, but that “the cause of action focuses on whether Dr. Mathews’ conduct in misrepresenting facts to Dr. Campo constitutes a breach of his obligation to perform in good faith, and resulting damages.” In support of this contention, Ms. Ledet refers to La. Civ. Code art. 1759, which states “[Gjood faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation.” Ms. Ledet also notes that comment (e) to La.Civ.Code art.2024, which addresses the termination of contracts of unspecified duration, contemplates that “[i]n proceeding under this Article, the parties must comply with the overriding duty of good faith. Reasonable advance notice will usually be required to avoid unwarranted injury to the interest of the other party.”

We find no merit to Ms. Ledet’s assertion that Dr. Mathews is liable for breach of contract by violating the duty of good faith. In order to succeed on a breach of contract claim, the plaintiff must prove the existence of the contract, a breach of the obligations therein, and damages. Favrot, 68 So.3d 1099. Louisiana Civil Code Article 1983 requires that “[ejontracts must be performed in good | sfaith.” However, “[jjudicial determination of good-faith (or bad-faith) failure to perform a conventional obligation is always preceded by a failure to perform, or a breach of the contract.” Favrot, 68 So.3d at 1110. In Favrot, two brothers, Semmes and James, contracted with their father concerning the transfer of interest in the family business. The father promised that he would sell each of his sons a portion of his interest in the business, if both remained employed with the business for three years. However, if either was to leave employment within that time, voluntarily or involuntarily, the other would purchase the entirety of the interest. “The brothers soon started squabbling,” and, before the three-year period expired, the father fired Semmes. Id. at 1106. Thereafter, Semmes brought suit against James, alleging breach of contract and tor-tious interference with a contract. The fourth circuit rejected both of those claims. In addressing the breach of contract claim, which was based on an allegation that the brothers were bound by an obligation of good faith, the fourth circuit noted that Semmes “can point to no obligation expressed in the agreement which James is bound to perform for Semmes.” Id. at 1107. The fourth circuit concluded that the duty of good faith only attaches when there is a failure to perform an obligation and that, since James owed no obligation to Semmes, there was no breach of contract with regard to a breach of the duty of good faith. Id.

A review of the record indicates that Dr. Mathews pointed out the absence of factual support for Ms. Ledet’s claims of breach of contract, namely, that Ms. Ledet was an at-will employee and that Dr. Mathews could not therefore be liable for damages associated with termination of her employment. Thus, in order to |fldefeat Dr. Mathews’ motion for summary judgment, Ms. Ledet had to show that she could meet her evidentiary burden at trial. Pursuant to the holding in Favrot, 68 So.3d 1099, in order to find that Dr. Mathews breached a duty of good faith towards Ms. Ledet, there must first be a finding that Dr. Mathews owed an obligation to Ms. Ledet.

Our review of the record reveals that Ms. Ledet presented no evidence indicating that Dr. Mathews owed her any obligation pursuant to her at-will employment with Dr. Campo. Dr. Mathews testified that he entered into a contract with Dr. Campo concerning the operation of the dental practice. However, no copy of the agreement was submitted as evidence and there is nothing in the testimony indicating that the agreement contemplated that Dr. Mathews would owe any obligations towards Dr. Campo’s employees. Further, Ms. Ledet submitted no evidence indicating that her at-will employment with Dr. Mathews imposed upon him any duties with regard to her employment with Dr. Campo.

Accordingly, we find that, with regard to Ms. Ledet’s breach of contract claims, there is no genuine issue of material fact and that Dr. Mathews is entitled to judgment as a matter of law. This assignment of error is without merit.

Motion for Summary Judgment — SAFE-CO

SAFECO also filed a (notion for summary judgment, seeking to be dismissed from this suit on the basis that there was no coverage for Ms. Ledet’s 1 inclaims against Dr. Mathews under his homeowners’ insurance policy. SAFECO contends that its policy contains a coverage exclusion for “business pursuits” and that “[a]ll of the events that are at issue in the instant litigation involved the Plaintiffs employment with Dr. Mathews.”

In support of its contention that there is no coverage for Ms. Ledet’s claims under its policy, SAFECO submitted into evidence copies of both a homeowners’ insurance policy and an umbrella policy. The policy names Patrick Mathews and Kelly Mathews as insureds. The homeowners’ policy, in relevant part, indicates that “Personal Liability” coverage “do[es] not apply to bodily injury or property damage ... “arising out of the business pursuits of any insured.” Further, the homeowners’ policy provides that “Personal Offense” is defined as “injury arising out of one or more of the following offenses: ... libel, slander, defamation of character” and that personal offense “[c]overage does not include ... injury arising out of the business pursuits of any insured.” Additionally, the umbrella policy contains a provision that the policy does not apply to “personal injury” “arising out of the oral or written publication of material; if done by or at the direction of an insured with knowledge of its falsity,” as well as “bodily injury, personal injury, or property damage” “sustained by any person as the result of an offense directly or indirectly related to the employment of this person by any insured” or “arising out of any act or omission of any insured as an officer or member of the board of directors of any corporation or organization.” (Emphasis in original).

The trial court granted SAFECO’s motion for summary judgment, finding that Ms. Ledet failed to produce anything other than “speculation” that Dr. Mathews’ alleged actions were anything other than actions taken as part of the management of his dental practice.

InMs. Ledet’s assignments of error with regard to SAFECO’s motion for summary judgment allege that the trial court erred in considering “intent, motive, malice, and good faith” and in concluding that Dr. Mathews’ conduct only involved business pursuits. In her brief to this court, Ms. Ledet cites no authority but references several phone calls between Dr. Mathews and another dental hygienist during the time period at issue herein. Ms. Ledet calls those calls “quite peculiar” and asserts that “if explored further, [the telephone conversations] will answer questions such as motive, intent and bad faith.”

In Collins v. Farris, 03-1991, pp. 3-4 (La.App. 1 Cir. 11/3/04), 897 So.2d 634, 637-38, the first circuit discussed claims that coverage was not provided under a policy, stating that:

An insurer seeking to avoid coverage through summary judgment has the burden of proof that coverage is not provided under the policy. See Gaylord Chemical Corp. v. ProPump, Inc., 98-2367 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 352; Smith v. Terrebonne Parish Consol. Gov’t, 02-1423 (La.App. 1st Cir.7/02/03), 858 So.2d 671, 673. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183; Brown v. Coregis Ins. Co., 99-0048 (La.App. 1st Cir.2/18/00), 752 So.2d 347, 352.

Interpretation of Insurance Policy

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763; see LSA-C.C. arts.2045-2057. Analysis should begin with a review of the words in the insurance contract, and the contract must be enforced as written when the words are clear and explicit and lead to no absurd consequences. See LSA-C.C. art.2046; Dyess v. American Nat. Prop. & Cas. Co., 03-1971 (La.App. 1st Cir.6/25/04), 886 So.2d 448, 451. If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. _[i2Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); see LSA-C.C. art.2056.

Further, the second circuit addressed the purpose of “business pursuits” exclusions in Stills v. Mims, 42,799, pp. 5-6 (La.App. 2 Cir. 12/5/07), 973 So.2d 118, 121, stating that:

The business pursuits exclusion in a homeowner’s policy is intended to exclude risks that should be covered under different policies. Richard v. Milazzo, 2001-2233 (La.App. 1st Cir.11/8/02), 831 So.2d 1055. For example, the commercial risks of a business would typically be covered by a commercial liability policy, whereas the risks associated with a rental dwelling would typically be insured by rental property insurance. Id. The removal of the risks associated with business enterprises or rental properties helps to lower the rates of homeowner’s insurance by eliminating non-essential coverages. Jackson v. Frisará, 96[-]0547 (La.App. 1st Cir.12/20/96), 685 So.2d 622, writs denied, 97-0193 (La.3/14/97), 689 So.2d 1386 and 97-0201 (La.3/14/97), 689 So.2d 387; Blue Ridge Ins. Co. v. Newman, 453 So.2d 554 (La. 1984). Also, the phrase “arising out of,” as used in the exclusion, implies an element of causality rather than the proximate cause. Elorza v. Massey, 00-313 (La.App. 5th Cir.3/14/01), 783 So.2d 453.

“Although summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice, ... ‘summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.’ ” Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006. Further, “[m]ere conclusory allegations, improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact. Such allegations, inferences and speculation are insufficient to satisfy the opponent’s burden of proof, even if contained in a deposition.” Sears v. Home Depot USA, Inc., 06-201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747 (La.1/26/07), 948 So.2d 168 (citations omitted). See also Trudell v. Crowder, 99-496 (La.App. 3 Cir. 10/13/99), 747 So.2d 142.

1 13Ms. Ledet offers only speculation and offers no concrete evidence concerning Dr. Mathews’ motivation in communicating (or, according to Ms. Ledet, mis-communicat-ing) the circumstances of his July 29, 2010 conversation with Ms. Ledet to Dr. Cam-po. Absent Ms. Ledet’s insinuations and speculative allegations, our review of the record herein reveals that all of Ms. Le-det’s remaining claims arise out of the circumstances of the termination of her employment by Dr. Mathews and Dr. Campo. SAFECO’s policy clearly excludes injuries arising out of the business pursuits of the insured. We find that there is no reasonable interpretation of the policy which would exclude the termination of Ms. Ledet’s employment from Dr. Mathews’ business pursuits. Further, Ms. Ledet has dismissed those claims that may have involved Dr. Mathews’ actions outside the scope of his dental practice, i.e., her claims for defamation of character, intentional infliction of emotional distress, libel and slander, and “other actions.”

Accordingly, we find no genuine issue of material fact with regard to SAFECO’s motion for summary judgment and that SAFECO is entitled to judgment as a matter of law. These assignments of error are without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of Patrick C. Mathews; Patrick C. Mathews, DDS, LLC; and SAFECO Insurance Company of America. The costs of this appeal are allocated to the plaintiff-appellant, Beverly E. Ledet.

AFFIRMED.

      . Ms. Ledet testified that she worked solely for Dr. Campo until Dr. Mathews joined his practice approximately eight years before the incident at issue herein.

      . According to Dr. Mathews, he spoke with Dr. Campo and his father-in-law about the situation. Dr. Mathews testified that his father-in-law is also a dentist and that, when he spoke to him about Ms. Ledet, he did not tell his father-in-law which hygienist he was referring to.

      . Dr. Mathews, individually, and Patrick C. Mathews, DDS, LLC, jointly filed the motion for summary judgment. We note that the parties generally do not make a narrative distinction between Dr. Mathews and his corporate entity, and, unless appropriate, neither shall we.

      . La.Code Civ.P. art. 966 was amended in 2012 by Act 257.

      . The record indicates that Ms. Ledet concedes that her employment with Drs. Campo and Mathews was at-will. Pursuant to La. Civ.Code. art. 2747, ''[a] man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.” See also Que-bedeaux v. Dow Chem. Co., 01-2297, p. 5 (La.6/21/02), 820 So.2d 542, 545 ("When the employer and employee are silent on the terms of the employment contract, the civil code provides the default rule of employment-at-will.”). Further, an employer may generally terminate an at-will employee’s employment at any time for any reason without incurring liability, as long as that reason does not violate state or federal law. Id. "Beyond that, the reasons for termination need not be accurate, fair or reasonable.” Bell v. Touro Infirmary, Inc., 00-824, p. 4 (La.App. 4 Cir. 3/21/01), 785 So.2d 926, 928.

      . Additionally, we note that Ms. Ledet deposed Dr. Mathews concerning the subject of the phone calls between him and the other dental hygienist. Dr. Mathews testified that he was not sure about the content of those phone calls, but that he may have called the other hygienist to discuss her ''uncomfortable” conversation with Ms. Ledet and to see if she could help arrange a substitute hygienist for Ms. Ledet.