author: PICKETT, Judge.

text:
    The HERBERT AND LULA MARIE FUSILIER REVOCABLE LIVING TRUST v. ENLINK NGL PIPELINE, LP
    17-33
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2017
    Rehearing Denied July 19, 2017

      Timothy O’Dowd, Attorney at Law, 921 Ryan St., Suite D, Lake Charles, LA 70601, (337) 310-2304, COUNSEL FOR PLAINTIFF-APPELLANT The Herbert and Lula Marie Fusilier Revocable Living Trust

      James C. Percy, Jones Walker LLP, 8555 United Plaza Blvd., 5th Floor, Baton Rouge, LA 70809, (225) 248-2000, COUNSEL FOR DEFENDANT-APPELLEE EnLink NGL Pipeline, LP
    Brett S. Venn, Jones Walker LLP, 201 St. Charles Ave., 50th Floor, New Orleans, LA 70170, (604) 582-8000, COUNSEL FOR DEFENDANT-APPELLEE En-Link NGL Pipeline, LP
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   PICKETT, Judge.

I, The plaintiff in this suit for declaratory action appeals the trial court’s grant of summary judgment in favor of the grantee of a pipeline right-of-way, dismissing his claim that the right-of-way is invalid because the grantor of the right-of-way lacked the necessary mental capacity to grant the right-of-way. For the reasons discussed below, we reverse the judgment.

FACTS

Johnny Fusilier is the son of Herbert and Lula Fusilier, who are now deceased. Prior to their death, Herbert and Lula established The Herbert Fusilier and Lula Marie .Fusilier Revocable Trust (the Trust), which consisted of a trust for Herbert and Lula and four sub-trusts, one trust for the benefit of each of their four children. Lula died in 2004, and Herbert remarried after her death. In 2009, he went to live in a nursing home. In March 2011, Johnny filed suit against Herbert to be declared the trustee of the sub-trust established for his benefit. On November 11, 2011, a judgment was signed appointing Johnny trustee as he had requested.

Under the terms of the Trust, Herbert was a settlor and trustee, and he had broad authority to sell, mortgage, lease, or otherwise contract with regard to the trust property. In May 2012 and August 2012, Herbert executed a Right-of-Way and Servitude Agreement (the Agreement) in favor EnLink NGL Pipeline, LP that authorized EnLink to construct a pipeline across property owned by the Trust.

Herbert died in January 2013-, and in January 2016, Johnny, as sole trustee of the Trust, filed suit against EnLink, seeking to have the Agreement declared null Land to be awarded damages for trespass occasioned by the construction and maintenance of the pipeline across the Trust property. Johnny alleged in his suit that Herbert did not have the mental capacity to negotiate and contract with EnLink when he executed the Agreement.

EnLink filed a motion for summary judgment, asserting that its representative who had Herbert execute the Agreement did not know and had no reason to know that Herbert did not have the capacity to execute the Agreement when he did and seeking dismissal of Johnny’s claims. En-Link supported the motion with affidavits of Trey Ellison, the leasing agent who met with Herbert to have the Agreement executed, and Claude J. Gotreaux, a friend of Herbert’s who had his power of attorney; excerpts of the depositions of Mr. Ellison and Mr. Gotreaux; and other evidence. Mr. Ellison testified that he negotiated the Agreement with Mr. Gotreaux, who then explained it to Herbert. Mr. Gotreaux went with Mr. Ellison to the. nursing home to meet with Herbert and have him sign the Agreement.

Johnny opposed the motion, arguing that allegations in his 2011 suit that he sought to be named trustee of his sub-trust because Herbert was incompetent and should be interdicted, together with Herbert’s medical records created a genuine issue of material fact as to whether Mr. Ellison should have known that Herbert lacked the mental capacity to contract when he signed the Agreement.

After a hearing on the motion,-the trial court granted summary judgment in favor of EnLink and dismissed Johnny’s suit with prejudice. Johnny appealed.

1 «ASSIGNMENTS OF ERROR

Johnny assigns four errors with the trial court proceeding for our review:

1. By demanding that a “deposition” or “affidavit” be submitted to contradict the evidence submitted with the defendant’s Motion for Summary Judgment and disregarding the circumstantial evidence submitted, the trial court commit [sic] reversible error.
2. The trial court committed reversible error by weighing the evidence.
3. The trial court committed reversible error in its application of La.Code Civ. [a]rt. 1925.
4. The trial court committed reversible error by failing to require [EnLink] to overcome the presumption that Herbert’s lack of reason could not have been unknown to [EnLink’s] agent.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria as the trial court. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La. 2/26/08), 977 So.2d 839. In order to prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that he “is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3); Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4 (La. 11/29/06), 950 So.2d 544, 547. “A fact is ‘material’ when its existence or nonexistence may be essential to [the] plaintiffs cause of action.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. “A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.

| ¿When considering a motion for summary judgment, the court cannot “consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence.” Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48). Moreover, although summary judgments are now favored, “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

EnLink has the burden of proof on its motion for nummary judgment, but. it will not have the burden of.proof at trial. La.Code Civ.P. art. 966(D)(1). Therefore, it need only establish that Johnny lacked support for one or more elements required to establish his claim. Id. If EnLink satisfies its burden on the motion, Johnny must “produce factual support sufficient to establish the existence of . a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id. Otherwise, his opposition fails.

Louisiana Civil Code Article 1918 provides that “[a]ll persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting.” Therefore, unless one of these three special exceptions is shown to apply, all persons are presumed to have the capacity to contract. Skannal v. Bamburg, 44,820 (La.App. 2 Cir. 1/27/10), 38 So.3d 227. “A contract made by a person without legal capacity is relatively null and may be rescinded only at the request of that person or his legal representative.” La.Civ.Code art. 1919. A person who is not interdicted but lacked capacity to contract when he entered into a contract can only have a contract rescinded | .¡¡because he lacked capacity by “showing that the other party knew or should have known that person’s incapacity.” La.Civ. Code art. 1925.

The party challenging capacity must prove his claim by clear and convincing evidence. Florida v. Stokes, 05-2004 (La.App. 1 Cir. 9/20/06), 944 So.2d 598. To meet this burden, the challenger must show that “the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence.” Webb v. Webb, 28,411, p. 6 (La.App. 2 Cir. 6/26/96), 677 So.2d 630, 634, writ denied, 96-2274 (La. 11/15/96), 682 So.2d 774.

EnLink introduced the affidavits and excerpts of the deposition testimony of Mr. Gotreaux and Mr. Ellison in which both men aver that: 1) they did not know Herbert did not have the capacity to contract; 2) Herbert pointed out the first Agreement he signed misstated his name as “Herbert James Fusilier,” which necessitated that he sign the second Agreement to correct the error; and 3) Herbert did not exhibit any signs or behavior that caused them to question whether he had the capacity to contract when they visited with him and executed the Agreement. Mr. Gotreaux further testified in his deposition that he regularly visited with Herbert and that through the date of his death, Herbert never exhibited any signs of not understanding him when they visited.

Johnny introduced his affidavit, his pleadings in which he alleged that Herbert should be interdicted, certified medical records of the nursing homes where Herbert resided from 2009 through the date of his death, and certified records of the Department of Health and Hospitals regarding complaints of elder abuse against Herbert while he was a resident at LandMark.

LWhen ruling on the motion for summary judgment, the trial court stated:

The question is: Is there a fact issue? Did EnLink know or should have known? There’s been no testimony — I mean, no deposition, no affidavit of anybody there in the discussions that have been provided to show that ... they should have known, okay, or they did know that he was incapacitated at the time. I don’t think there’s an issue of material fact.

Johnny first argues that the trial court erred in not considering Herbert’s medical records and in not considering those records as circumstantial evidence supporting his claim that Herbert lacked capacity. He also urges that the trial court erred in weighing the evidence. The trial court did not indicate whether it did or did not consider Herbert’s medical records or that it did or did not weigh the evidence introduced in support of and in opposition to the motion for summary judgment. These assertions are reasonable, however, under the facts, and Johnny is correct as to the stated legal tenets.

Pursuant to La.Code Civ.P. art. 966(A)(4), certified medical records can be used to oppose a motion for summary judgment, and medical records may constitute circumstantial evidence sufficient to establish that a genuine issue of material fact exists for purposes of summary judgment. Amos v. Louisiana Med. Mut. Ins. Co., 41,302 (La.App. 2 Cir. 8/4/06), 936 So.2d 875. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.

Johnny also contends that the trial court erred in applying La.Civ.Code art. 1925 to his claims against EnLink. He argues that because Herbert is not the one trying to rescind the Agreement, Article 1925 does not apply, and that applicable provisions of the Trust must be used to determine what is required to rescind the Agreement. The Trust provides that a person ceases to qualify as trustee upon his death or incapacity; therefore, Johnny argues that he need only prove that Herbert 17lacked mental capacity to contract when he signed the Agreement. He cites no jurisprudence, code article, or treatise discussion that supports his argument.

The Louisiana Trust Code defines who may serve as a trustee to include a “natural person enjoying full capacity to contract.” La.R.S. 9:1783(A)(1). Comment (B) of the 1964 Comments to Section 1783 states: “Capacity to contract is governed by Arts. 1780-1796 [see, now, 1918 to 1926], R.C.C.” Accordingly, we find no error with the trial court’s conclusion that La.Civ.Code art. 1925 governs Johnny’s claims against EnLink.

We now consider the merits of EnLink’s motion for summary judgment. EnLink argues that it established through the testimony of Mr. Gotreaux and Mr. Ellison that Mr. Ellison had no reason to suspect that Herbert did not have the mental capacity to understand the Agreement when he executed it in May and August. It further argues that Johnny’s opposing evidence is insufficient to carry his evidentiary burden of proof at trial; therefore, no genuine issue of material fact exists.

Herbert’s certified medical records show that he was diagnosed with dementia in early 2010 and that his dementia progressively worsened thereafter. On May 11, 2011, Herbert’s records documented that his thought process was consistent with advanced dementia; his diagnosis was stated as senile dementia with delusional features. On November 21, 2011, Herbert’s physician noted that he was “far too impaired to participate in legal issues or know what he is signing.” An examination performed that day documented Herbert’s thought process, thought content, and cognition as being consistent with advancing dementia, which was described as “moderate, severe — worsening.” On May 7, 2012, just two days before Herbert first signed the Agreement, his records documented his thought | ^process as disorganized and consistent with advancing dementia and that he had impaired abstract thinking, cognition, and judgment due to dementia. In late July 2012, Herbert’s judgment and cognition were documented as being severely impaired, and a change in his medication was not discussed with him because he was deemed “too impaired to comprehend.” These are only some of the examples documenting Herbert’s failing mental health.

The Department of Health and Hospitals records show that the day Herbert signed the corrected version of the Agreement, a claim of abuse was lodged with the agency. The reporter stated that Herbert was “very confused and unable to make decisions.. The [power of attorney] ... kept bringing man from attorney’s office to have client sign papers he doesn’t understand what is being signed.” An investigation was performed, but the agency investigator could not interview Herbert because his memory was impaired. The investigator assessed Herbert as being at a high risk of harm and determined his ability to make informed decisions was “inadequate.”

EnLink’s burden of proof on its motion for summary judgment is to show .that “reasonable persons could reach only one conclusion” regarding its claim that it did not know or should not have known that Herbert lacked the capacity to contract. Smitko, 94 So.3d at 755. Although Johnny’s burden of proof on his claims is high, construing all factual inferences reasonably drawn from the evidence and resolving all doubt in Johnny’s favor, we find that Herbert’s medical records show a genuine issue of material fact exists as to whether or not Herbert’s mental condition was such that Mr. Ellison and Mr, Go-treaux should have known that he did not have the mental capacity to comprehend and negotiate the | ¡Agreement. Accordingly, we reverse the trial court’s grant of summary judgment in favor of EnLink.

EnLink cites the cases of Rabin v. Blazas, 537 So.2d 221 (La.App. 4 Cir. 1988) and Julius Cohen Jeweler, Inc. v. Succession of Jumonville, 506 So.2d 535 (La.App. 1 Cir.), unit denied, 511 So.2d 1155 (La. 1987), in support of its motion. These cases do not support EnLink’s claims because both cases were appealed after a trial on the merits, and more importantly, because no medical evidence pertaining to capacity, or lack thereof, was at issue in either, case.

DISPOSITION

For the reasons discussed herein, the trial court’s judgment granting summary judgment in favor of EnLink NGL Pipeline, LP and dismissing Johnny Fusilier’s claims against it is reversed. All costs are assessed to EnLink NGL Pipeline, LP.

REVERSED.

      . On May 9, 2012, Herbert signed an Agreement that incorrectly identified him -as "Herbert James Fusilier,” then on August 28, 2012, be signed another form of the Agreement that correctly identified him as "Herbert Fusilier."

      . In Succession of Jumonville, 506 So.2d 535, the Succession sought to have a contract to purchase jewelry declared null. A doctor’s affidavit introduced to support the Succession’s claim that the decedent did not have the capacity to enter the contract was deemed inadmissible as hearsay under then applicable jurisprudence.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    ACADEMY, LTD. v. Davita SMITH
    16-727
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2017
    Rehearing Denied July 19, 2017

      Bryan D. Scofield, Scofield & Rivera, LLC, P. O. Box 4422, Lafayette, LA 70502, Telephone: (337) 235-5353, COUNSEL FOR: Plaintiff/Appellee — Academy, LTD
    Davita Smith, In Proper Person, 237A Buford Street, Raceland, LA 70394, Telephone: (985) 686-1152, Defendant/Appel-lantt — Davita Smith
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.
   THIBODEAUX, Chief Judge.

hAn on-the-job injury occurred on August 24, 2007, while Plaintiff, Ms. Davita Smith, was employed by the Defendant, Academy Sports and Outdoors (“Academy”) in Lafayette, Louisiana. Ms. Smith appeals a trial court judgment denying her additional workers’ compensation benefits for that accident. Based on stipulations in the record, the primary issues on appeal are whether Ms. Smith is entitled to ongoing medical treatment and whether Academy is responsible for penalties and attorney fees due to the termination of benefits.

For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

We must determine:

(1) whether Ms. Smith is entitled to continued medical treatment; and
(2) whether Academy is responsible for penalties and attorney fees due to termination of benefits.

II.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). The findings of the Worker’s Compensation Judge is subject to the | ¿manifest error-clearly wrong standard of review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. In Banks, the Louisiana Supreme Court elaborated on the application of that standard:

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 factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p.5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1998); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if 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).

Id. at 556.

III.

FACTS AND PROCEDURAL HISTORY

This is a workers’ compensation case filed on behalf of Ms. Smith for a work-related incident that occurred on August 24, 2007, at Academy’s store in Lafayette, La. On that date Ms. Smith claims that she was injured when a box of duck decoys fell on her back. The height of the drop and the weight of the box vary in the medical histories given to her doctors, but there appears to be no dispute about the actual accident. Ms. Smith’s chief complaint following the accident was lower back pain and pain in her right leg.

Ms. Smith was initially treated by her choice of physicians, which included Dr, Gregory Gidman, Dr. David Muldowny, and Dr. Edward Haight. Ms. Smith was also examined by Dr. John Sklar in connection with a second medical | ¡¡opinion for Academy, and Dr. Ilyes Munshi, who was appointed by the medical services section of the Office of Workers’ Compensation as an Independent Medical Examiner (“IME”).

Following the accident, Ms. Smith’s initial treating physician was Dr. Gregory Gidman, an orthopedic surgeon located in Lafayette, Louisiana. Dr. Gidman’s 2008 report stated: “No pathology has been identified to explain examinee’s sympto-mology. There is no anatomic abnormality to prevent this examinee, in my opinion from resuming activities at work.” Dr. Gid-man further noted that his physical exam was normal, and that x-rays of Ms. Smith’s lumbar spine and pelvis, as well as her MRI, were normal. Dr. Gidman concluded that Ms. Smith was not in need of any further testing or surgical intervention and that “her treatment should be a self-directed home therapy program and over-the-counter analgesics,” based solely upon her subjective complaints.

Ms. Smith then switched treating physicians and began seeing Dr. Muldowny, an orthopedic surgeon located in Lafayette, Louisiana. Dr. Muldowny released Ms. Smith from his care in March of 2008. He reported that her lumbar MRI was normal and that he “really [did] not think there are any more diagnostic studies that would be useful in determining with certainty a specific diagnosis.”

Having been released from the medical care of Dr. Gidman and Dr. Muldowny, Ms. Smith began treating with Dr. Haight, a neurologist in Houma, Louisiana. Dr. Haight diagnosed Ms. Smith with a right sciatic nerve stretch injury and low back pain. He found Ms. Smith’s lumbar MRI to not be entirely normal, and he believed there to be some bulging in the thoracic area which, he testified, “could” cause some back pain; however, that would not explain her leg pain.

LAcademy obtained a separate medical opinion (“SMO”) from Dr. Sklar. Dr. Sklar’s objective physical examination findings were entirely normal, and he disagreed with the sciatic stretch diagnosis of Dr. Haight. He noted that Ms. Smith’s MRI was entirely normal and, based upon his physical examination, he recommended that Ms. Smith “get on with her life, get back to work and get, active.” Dr. Sklar also testified that Ms. Smith could return to full duty work without restrictions and that she needed no further medical treatment.

Finally, the Office of Workers’ Compensation ordered an IME with Dr. Munshi, a board certified neurosurgeon. Dr. Munshi’s report stated that both of Ms. Smith’s MRI films were normal and that he did not think “that she had any significant radicular symptoms nor do I find any significant findings on the MRI.” Dr. Munshi further stated: “I do not think that Ms. Smith needs anymore treatment than she has already received. In fact, it would be best for her to gradually get weaned off whatever medications she is currently on.” Dr. Sklar and Dr. Munshi both opined that Ms. Smith had received an appropriate workup and course of treatment, including physical therapy and chiropractic treatment. Academy terminated payment for medical subsequent to the issuance of Dr. Munshi’s IME report.

In summary, Doctors Gidman, Muldow-ny, Sklar, and Munshi found nothing wrong with Ms. Smith. Dr. Haight admitted that his opinion was at best a “soft finding.” After December 2009, there is no medical evidence from a treating physician until January 2015, when Ms. Smith began seeing Dr. Richard Epter with the Augusta Pain Center. At that time, Ms. Smith complained of neck pain, thoracic back pain, low back pain, hip and foot pain, and pain in both shoulders. Dr. Epter treated her for sacroiliitis and chronic pain. However, nowhere Lin these records is there any reference to the August 2007 work accident. Instead, the January 27, 2015 progress note reflects a pain onset date of October 2014.

Academy argues that they have properly paid Ms. Smith weekly indemnity benefits and have provided her with reasonable and necessary medical treatment for as long as it was necessary. Ms. Smith progressed to the point where she could return to work and weekly indemnity benefits were no longer necessary. Thus, the only issue before the trial court was whether Ms. Smith was entitled to continued medical treatment.

The WCJ found in favor of Academy stating that Ms. Smith’s five year gap in treatment made it impossible to relate her current pain and injury complaints to her 2007 accident at work.

IV.

LAW AND DISCUSSION

Louisiana Revised Statutes 23:1203 states that a worker’s medical expenses are compensable only if they are caused by a work-related injury. “The claimant must establish his claim for medical benefits and show that they are related to the work accident to a reasonable certainty and by a preponderance of the evidence.” Charles v. Aetna Cas. & Sur. Co., 525 So.2d 1272, 1275 (La.App. 3 Cir.), writ denied, 531 So.2d 480 (La.1988). The January 27, 2015 report from Augusta Pain Center documented her chief complaints as neck, thoracic, low back, hip, and foot pain. However, the report documented that these complaints began in October of 2014, over seven years following her accident at Academy. Additionally, the March 18, 2015 report from Augusta Pain Center referenced sacroiliitis. These symptoms, however, began in 2015. Ms. Smith acknowledged | r,providing the information to Augusta Pain Center concerning the history of her complaints, and the Augusta Pain Center documented the complaints as starting in 2014 and 2015.

The Workers’ Compensation Judge cogently stated: “Considering the 5 year gap in treatment, the court is unable to relate her current complaints to the August 24, 2007 work accident. There, is a 5 year gap in treatment, the work accident is.not referenced and the complaints are different than the complaints 5 year[s] previous. Under the circumstances, the evidence does not preponderate in Ms. Smith’s favor.” We agree with the WCJ. The five year gap in Ms. Smith’s medical treatment undermines her causation argument. There is not sufficient evidence to satisfy Ms. Smith’s argument that Academy should continue paying for her medical treatment considering that her pain does not stem from her 2007 work accident. Moreover, the parties have further stipulated that Ms. Smith was released to work and has at times returned to work since her injury. Specifically, Doctors Gidman, Sklar, and Munshi released Ms. Smith to return to unrestricted duties.

In addition, “[a]n IME’s medical conclusions should be given significant weight because the IME is an objective party. However, the opinion of the IME is not conclusive, and the workers’ compensation judge must evaluate all of the evidence presented in making a decision as to a claimant’s medical condition.” Richardson v. Lil' River Harvesting, 09-1090 (La.App. 3 Cir. 3/10/10), 33 So.3d 418, 419; see also Fritz v. Home Furniture-Lafayette, 95-1705 (La.App, 3 Cir. 7/24/96), 677 So.2d 1132. The IME, Dr. Munshi, stated that Ms. Smith had received an appropriate workup and course of treatment, including physical therapy and chiropractic treatment, and he felt that it was appropriate to 17wean her off of her medications. More specifically, Dr. Munshi stated that Ms. Smith’s MRI films were normal arid that he could not find any evidence of deficit or serious injury. While all credible evidence must be considered, we find it significant that the IME found Ms. Smith to be without serious injury and capable of returning to work' free • of medical treatment and medications.

Attorney Fees and Penalties

Having found that the evidence exculpates Academy from any further liability, the issue of attorney fees and penalties becomes moot.

V.

CONCLUSION

Considering the foregoing and the record as a whole, we can find no manifest error in the WCJ’s finding that Ms. Smith is no longer entitled to medical treatment. Costs of this appeal are assessed to the Appellant, Ms. Davita Smith.

AFFIRMED.

      . Ms. Smith entreats us to consider several issues on appeal, such as due process under the American with Disabilities Act, departure from the Federal Rules of Civil and Criminal Procedure, and whether the Workers' Compensation Judge failed to discuss compromise settlement before approval. We decline to consider such issues as Ms. Smith stipulated during trial to the two issues now before us; thus, those are the only issues we are now considering.


author: Judge Terri F. Love LANDRIEU, J.,

text:
    Willie JONES v. GOVERNMENT EMPLOYEES INSURANCE COMPANY
    NO. 2016-CA-1168
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 2017

      Bruce C. Betzer, THE LAW OFFICE OF BRUCE C. BETZER, 3129 Bore Street, Metairie, LA 70001, And, Douglas Haramel, THE HAMMEL LAW FIRM, 1420 Veterans Memorial Blvd., Metairie, LA 70005,' COUNSEL FOR PLAINTIFF/APPELLEE., WILLIE JONES
    W. Paul Andersson, Alex P. Tilling, LEAKE & ANDERSSON, L.L.P., 1100 Poydras Street, Suite 1700, New Orleans, LA 70163-1701, COUNSEL FOR DEFENDANT/APPELLANT, GOVERNMENT EMPLOYEES INSURANCE COMPANY
    (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Terri F. Love

11 This appeal stems from the denial of an insurance claim for injuries allegedly sustained in an automobile accident in June 2011. Government Employees Insurance Company (“GEICO”) appeals the trial court’s granting of partial summary judgment in favor of the plaintiff Willie Jones (“Mr. Jones”). The trial court found GEI-CO acted in bad faith in handling Mr. Jones’ uninsured/underinsured motorist (“UM”) claim and denied GEICO’s cross-motion for summary judgment on the same issue.

Pursuant to La, R.S. 22:1892(B)(1) and 22:1973(B)(5), we find as a matter of law GEICO did not act in bad faith and is entitled to summary judgment in that it was entitled to seek judicial determination of a cognizable defense to coverage of Mr. Jones’ UM claim. We also find genuine issues of material fact preclude summary judgment as to whether GEICO knowingly misrepresented pertinent facts relating to Mr. Jones’ policy in violation of La. R.S. 22:197S(B)(1). We further find the trial court’s judgment lacks necessary decretal language and does not dispose of all issues in the underlying suit. Accordingly, we exercise our supervisory discretion and convert the appeal to a writ; reverse the trial court’s granting of partial summary judgment in favor of Mr. Jones; grant in part and deny Lin part GEICO’s writ application on the issue of bad faith; and remand for further proceedings in line with this opinion.

JURISDICTION

Before proceeding to the explanation of our holding, we first address the trial court’s June 23, 2016 judgment. “We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment.” Bd. of Sup’rs of Louisiana State Univ. & Agric. & Mech. Coll. v. Mid City Holdings, L.L.C., 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910. “ ‘A valid judgment must be precise, deñnite ánd certain.... The decree alone indicates the decision..,. The result decreed must be spelled out in lucid, unmistakable language.The quality of definiteness is essential to a proper judgment.’ ” Id. (quoting Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc., 10-477, p. 12-13 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915-16) (emphasis added). “ ‘A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.’ ” Id., 14-0506, p. 2-3, 151 So.3d at 910 (quoting Palumbo v. Shapiro, 11-0769, p. 5 (La. App. 4 Cir. 12/14/11); 81 So.3d 923, 927). “Decretal language is defined as the portion of a court’s judgment or order that officially states (‘decrees’) what the court is ordering and generally starts with the formula ‘It is hereby ordered, adjudged, and decreed that ....’” Freeman v. Phillips 66 Co., 16-0247, p. 2 (La. App. 4 Cir. 12/21/16), 208 So.3d 437, 440 (quoting Jones v. Stewart, 16-0329, p. 5 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 387 (internal quotations omitted)).

The judgment’s decree states as follows:

LIT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Plaintiff’s Motion for Partial Summary Judgment Requesting a Finding of Bad Faith was GRANTED, with attorney fees and penalties to be determined at a later date.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant’s Motion for Summary Judgment was DENIED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Judgment shall be deemed final for purposes of writ or appeal, where the Court finds no reason for delay.

The judgment’s decree fails to name the party in favor of and the party against whom each ruling is ordered. Instead, it states in general terms that “[plaintiff’s [motion] was GRANTED” and that “[d]e-fendant’s Motion for Summary Judgment was DENIED.” In addition, jurisprudence requires the judgment state what relief is granted or denied. Making general reference to the title of the pleading, the trial court summarily granted plaintiffs partial summary judgment motion. We find that although the title contains an all-encompassing request for a finding of bad faith, recitation of the pleading’s title ⅛ insufficient to state what relief is granted..

The portion of the judgment that requires special consideration is the decretal language, which begins with “the formula ‘it is hereby ordered, adjudged, and decreed....” Freeman, 16-0247, p. 2, 208 So.3d at 440 (quoting Jones, 16-0329, p. 5, 203 So.3d at 387 (internal citations omitted)). The portion of the written judgment which names the parties and their respective counsel appears before the decretal language and indicates only who was present at the hearing.

More importantly, the record does not disclose whether the trial court found GEICO to be in bad faith because GEICO delayed making tender while litigating the choice of law issue, GEICO failed to advise Mr. Jones of the specific release requirement in his policy prior to his settling with Allstate, or both.

|4The hallmark of a proper judgment is the quality of definiteness. Moreover, “[t]he specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.” Bd. of Sup’rs, 14-0506, p. 3, 151 So.3d at 910 (quoting Input/Output Marine, 10-477, p. 13, 52 So.3d at 916). The decree states that “[p]laintiffs motion for partial summary judgment requesting a finding of bad faith was GRANTED.” In that Mr. Jones pled bad faith under La. R.S. 22:1973(B)(1) in his petition, the definiteness of the decree is essential to determining what issues remain to be decided at trial. Here, however, not even reference to the record as a whole clarifies the specific relief granted. Thus, even disregarding the other omissions, we find the fact that the judgment fails to state the specific relief granted and denied in this case is insufficient to render the judgment appealable. See La. C.C.P. art. 1841; Bd. of Supervisors, 14-0506, p. 2-3, 151 So.3d at 910. Therefore, in the absence of the necessary decretal language we decline to invoke our appellate jurisdiction.

Then again, this Court is authorized to exercise our discretion to convert this appeal to an application for supervisory review. Id., 14-0506, p. 3-4, 151 So.3d at 911 (citing Stelluto v. Stelluto, 05-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39). The motions for appeal in this case were filed within the thirty-day period allowed for filing an application for supervisory writs; therefore, we exercise our discretion and convert GEICO’s appeal to an application for supervisory review. Id., 14-0506, p. 4, 151 So.3d at 911 (citing Favrot v. Favrot, 10-0986, p. 5-6 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104); Uniform Rules, Courts of Appeal, Rule 4-3.

| ¿PROCEDURAL HISTORY AND FACTUAL BACKGROUND

In June 2011, Mr. Jones was involved in an automobile accident in New Orleans. The other driver was at fault and insured by Allstate. In June 2012, Mr. Jones settled his claim against Allstate for the policy limits of $15,000.00. Mr. Jones then sought to recover from GEICO additional monies under his policy’s UM coverage for the injuries he allegedly sustained from the accident. GEICO declined coverage claiming that Mr. Jones failed to obtain GEICO’s approval prior to settling and releasing Allstate, in direct contravention to Mr. Jones’ Georgia issued policy and Georgia statutory law.

In December 2012, Mr, Jones filed a petition for damages against GEICO as his UM carrier, alleging he was injured in an automobile accident with an underinsured motorist. GEICO answered the petition in February 2013. Mr. Jones then filed a motion for partial summary judgment, seeking a judicial determination that Louisiana law, and not Georgia law, applied to his UM claim. The parties litigated the choice of law issue, and in November 2014, the trial court granted Mr. Jones’ partial summary judgment, finding Louisiana law applied to Mr. Jones’ claim.

GEICO appealed the trial court’s ruling to this Court. While the appeal was pending, Mr. Jones filed a motion to enforce the November 2014 judgment, which the trial court denied in June 2015. This Court later affirmed the trial court’s judgment applying Louisiana law to Mr. Jones’ UM claim. See Jones v. Government Employees Ins. Co., 15-0275 (La. App. 4 Cir. 12/16/15), 183 So.3d 636 (Lobrano, J., dissenting) (rejecting the majority’s application of Louisiana law to the adjudication of underlying suit).

GEICO then sought writ of certiorari from the Louisiana Supreme Court, | fiwhich was denied in March 2016. Jones v. Government Employees Ins. Co., 16-0101 (La. 3/4/16), 188 So.3d 1059. On March 30, 2016, Mr. Jones filed a second motion for partial summary judgment, claiming GEI-CO acted in bad faith in its handling of Mr. Jones’ UM claim not only in violation of La. R.S. 22:1973 but also 22:1892. The next day, GEICO made tender to Mr. Jones and subsequently filed a cross-motion for summary judgment and opposition to Mr. Jones’ partial summary judgment motion.

The trial court held a hearing on the motions on June 3, 2016. On June 23, 2016, the trial court signed the judgment granting partial summary judgment on the basis that GEICO acted in bad faith and denying GEICO’s motion for summary judgment. GEICO seeks review of this ruling.

STANDARD OF REVIEW

GEICO contends the trial court erred by granting partial summary judgment in Mr. Jones’ favor because: (1) GEICO had a reasonable basis for alleging that Georgia law applied to the policy such that GEICO cannot be exposed to penalties and attorney fees under La. R.S. 22:1973 and 22:1892 while litigating its coverage defense; (2) GEICO was entitled to litigate to conclusion the choice of law issue prior to making UM tender; and (3) the record does not factually support a finding that GEICO was arbitrary and/or capricious in its handling of Mr. Jones’ UM claim. The issue before this Court is whether the trial court properly granted Mr. Jones’ motion for partial summary judgment.

A trial court’s ruling on a motion for summary judgment is subject to de novo review. Weintraub v. State Farm Fire & Cas. Co., 08-0351, p. 2 (La. App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196-97 (citing Kimpton Hotel & Rest. Group, Inc. v. Liberty Mut. Fire Ins. Co., 07-1209, p. 3 (La. App. 4 Cir. 12/19/07), 974 o.2d 72, 75). “Appellate courts use the “same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e.; whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Id., 08-0351, p. 2, 996 So.2d at 1196-97 (quoting Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638). “After an opportunity for adequate discovery, motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C. P. art. 966(A)(3). “Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.” Barbarin v. Dudley, 00-0249, p. 6 (La. App. 4 Cir. 12/20/00), 775 So.2d 657, 660. “Any consideration as to whether the plaintiff will succeed at a trial on the merits is irrelevant and an insufficient basis to render a summary judgment against that party.” Id.; See also Lyncker v. Design Eng’g, Inc., 10-0740, p. 4-5 (La. App. 4 Cir. 10/20/10), 51 So.3d 137, 140.

ARBITRARY AND CAPRICIOUS CONDUCT OF GEICO

Louisiana law provides for the imposition of penalties against insurance companies who act in bad faith under two statutes, La. R.S. 22:1892 and 22:1973. The bad faith statutes are penal in nature and should be strictly construed. Guillory v. Lee, 09-0075, p. 37 (La. 6/26/09), 16 So.3d 1104, 1130. To establish a cause of action for penalties and attorney fees under La. R.S. 22:1892, Mr. Jones must show that: (1) GEICO received satisfactory proof of loss; (2) GEICO failed to tender payment within thirty days of receipt thereof; and (3) GEICO’s failure to pay is arbitrary, capricious, or without probable cause. La, R.S. 22:1892(A)(1) and (B)(1); See also Guillory, 09-0075, p. 30, 16 So.3d at 1126 (citing Louisiana Bag Co., Inc. v. Audubon Indent. Co., 08-0453, p. 11 (La. 12/2/08), 999 So.2d 1104, 1112-1113).

Similarly, La. R.S. 22:1973(A) provides that an insurer “owes to his insured a duty of good faith and fair dealing,” which includes “an affirmative duty to- adjust claims fairly and promptly and to make reasonable effort to settle claims with the insured or the claimant,-or both.” An insurer, who breaches its duty under the statute,' shall be liable for damages resulting from that breach. Id. The statute also states that a breach includes “[flailing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.” La. R.S. 22:1973(B)(5).

The Louisiana Supreme Court has held that “arbitrary, capricious, or without probable cause” is synonymous with “vexatious,” Guillory, 09-0075, p. 31, 16 So.3d at 1127 (citing Reed v. State Farm Mut. Auto Ins. Co., 03-0107, p. 13-14 (La. 10/21/03), 857 So.2d 1012, 1021. “Furthermore, a ‘vexatious refusal to pay means ‘unjustified, without reasonable or probable cause or excuse.’ [...] Both phrases describe an insurer whose willful refusal of a claim is not based on a good-faith defense.” Id. (quoting Reed, 03-0107, p. 13-14, 857 So.2d at 1021).

Only when the facts “negate probable cause for nonpayment” should penalties be imposed. Id. (quoting Louisiana Bag, 08-0453, p. 14, 999 So.2d at 1114); See also McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1092 (La. 1985). Therefore, whether an insurer’s refusal to tender payment is arbitrary, capricious, or without probable cause “depends on the facts known to the insurer-at the time of its action.” Guillory, 09-0075, p. 31-32, 16 So.3d at 1127. Jurisprudence demonstrates that courts have declined to assess penalties “when the insurer has a ^reasonable basis to defend the claim and acts in good-faith reliance on that defense.” Id. (citing Louisiana Bag, 08-0453, p.15, 999 So.2d at 1115). Additionally, -when there is a legitimate question as to .coverage and the extent and causation of a claim, “bad faith should not be inferred from an insurer’s failure to. pay...within the statutory time limits when a. reasonable basis to defend the claim exists.” Id. (citing Reed, 857 So.2d at 1021). “An insurer, who does not tender unconditionally a reasonable payment, a figure over which reasonable minds could not differ, will be subject to penalties and attorney’s fees.” Id.; McDill, 475 So.2d at 1091-92 (“This amount would be unconditionally tendered to the plaintiff not in settlement of the case, but to show their good faith in the matter .and to comply with the duties imposed upon them under their contract of insurance with the insured”).

In his- petition, Mr. Jones contends that he did not become aware, that he was issued a Georgia policy or that any specific language was required for a release until GEICO received the signed release and rejected his claim. Consequently, Mr. Jones filed suit against GEICO under La. R.S. 22:1269(B)(1)(c) and sought statutory penalties for bad faith under La. R.S. 22:1973(B)(1). Mr. Jones alleges that as GEICO’s insured he was owed a duty of good faith and fair dealing. He maintains that GEICO induced him to waive his UM claim when it intentionally failed to notify him that a specific release was required to protect his claim. Mr. Jones asserts in his petition that this alleged misrepresentation is a breach of duty and act of bad faith, for which statutory penalties should be imposed.

In addition to seeking partial summary judgment on his bad faith claim under La. R.S. 22:1973(B)(1), Mr. Jones asserts that GEICO was also arbitrary and capricious when it delayed making tender within the statutory limits of him | ^presenting to it due proof of loss pursuant to La. R.S. 22:1892(A)(1) and (B)(1) and La. R.S. 22:1973(B)(5).

Delayed Tender

We address first Mr. Jones’ claim that GEICO acted in bad faith when it delayed making tender in violation of the statutory time limitations. The record indicates that GEICO rejected Mr.' Jones’ claim because, in its assessment, Mr. Jones was issued a Georgia insurance policy. Under both the policy’s terms and Georgia law’s requirements, GEICO avers that Mr. Jones waived his UM claim and -extinguished GEICO’s subrogation rights when he settled his underlying tort claim with Allstate without expressly reserving any rights to pursue a UM claim. Although the parties agreed that under Georgia law Mr. Jones’ claim would be extinguished, the parties disagreed as to- which state’s 'law should apply to the policy. GEICO argues that the choice of law issue was “paramount” to the underlying claim against it because Georgia law would have , been an affirmative defense to UM coverage. For that reason, GEICO contends it delayed making tender while the parties litigated the choice of law issue.

We cannot say that the delay in making tender while GEICO litigated the application of Georgia law as a coverage defense rises to the level of 'arbitrary and capricious conduct so as to warrant the imposition of penalties and attorney fees. GEICO explains that it issued Mr. Jones a Georgia policy based on the Georgia address he provided. According to GEICO, it “rates its policies in the state and at the address provided” by the insured, and at no time did Mr. Jones “formally request that GEI-CO change the address on his policy to one in Louisiana.” The application of Georgia law in this case would have extinguished Mr. Jones’ UM claim. Considering, the pri-ma facie evidence of the relationship „ of each state to the | nparties and the dispute, including the policy language, the Georgia address Mr. Jones provided, and evidence of Mr. Jones connections to the state of Louisiana, a legitimate question existed as to whether Georgia or Louisiana law applied to Mr. Jones’ policy. Thus, on its face, the choice of law issue was a substantial legal issue.

Further, the fact that the appeal of the choice of law issue resulted in a 2-1 split decision, with one judge dissenting, demonstrates the potential merit and reasonableness of GEICO’s position. The fact that a majority disagreed with GEICO on the choice of law issue is not evidence that GEICO’s position was baseless or made in bad faith. As a result, bad faith cannot be inferred from GEICO’s actions because evidence of the relationship of each state to the parties and the dispute shows there was reasonable doubt as to whether Georgia or Louisiana law applied and whether, if Georgia law applied, GEICO would be obligated to pay Mr. Jones’ UM claim.

Similarly, Mr. Jones’ argument that pursuant to McDill GEICO was at all times obligated to tender payment is without merit. Mr. Jones avers that when he initially filed his claim he provided GEICO with satisfactory proof of loss. Mr. Jones contends that as a result GEICO was -required to tender payment regardless of whether GEICO possessed and litigated a good faith coverage defense. GEICO’s untimely McDill tender, Mr. Jones argues, is arbitrary, capricious, and without probable cause.

The evidence establishes that GEICO’s decision to litigate the choice of law conflict was objectively reasonable. GEICO was entitled to a judicial determination of its coverage defense before it was obligated to make a tender pursuant to La. R.S. 22:1892(B)(1) and 22:1973(B)(5). Had GEI-CO prevailed on |12the choice of law issue, Mr. Jones would have no claim against GEICO. Thus, whether Mr. Jones presented satisfactory proof of loss in order to trigger a McDill tender obligation would be immaterial. For that reason, GEICO maintains that McDill was “irrelevant until GEICO’s coverage defense had been fully litigated.” GEICO tendered payment within thirty days of the Louisiana Supreme Court’s denial of GEICO’s writ, which brought finality to the choice of law issue.

It is settled law that when an insurer has a reasonable basis for defending a claim and acts in good-faith reliance on that defense, statutory penalties are inappropriate. Although Mr. Jones contends that GElCO acted arbitrarily and capriciously when it delayed making tender, he has failed to submit evidence that shows it is undisputed that GEICO’s decision to litigate the choice of law issue to its conclusion was unreasonable or without probable cause. Smith v. Casino New Orleans Casino, 12-0292, p. 11 (La. 10/8/12), 101 So.3d 507, 514 (“... allegations, inferences, and speculation are not sufficient to create a genuine issue of material fact....”). Consequently, we find GEICO possessed a reasonable basis for litigating the application of Georgia law as a coverage defense without being subject to statutory penalties. Insofar as GEICO pursued judicial determination on the choice of law issue, we find GEICO did not act in bad faith and is entitled to summary judgment as a matter of law. Therefore, GEICO’s writ and cross-motion for summary judgment are granted in part.

Misrepresentation of the Policy Terms

We consider next Mr. Jones’ claim that GEICO acted in bad faith in violation of La. R.S. 22:1973(B)(1) when it allegedly misrepresented by omission pertinent facts regarding Mr. Jones’ UM coverage.

As a procedural matter, Mr. Jones claims GEICO waived the issue on review | ^because it failed to address the allegations of misrepresentation on summary judgment or in its brief to this Court. Mr. Jones argues that we should consider the issue abandoned and affirm the trial court’s ruling on this basis alone. While GEICO may not have discussed La. R.S. 22:1973(B)(1) in express terms, the record shows that GEICO argued that the underlying facts, including the facts which gave rise to GEICO’s Georgia law coverage defense, do not support Mr. Jones’ allegations of misrepresentation. Moreover, the trial court’s judgment summarily grants Mr. Jones’ motion for partial summary judgment. It is unclear whether the trial court found GEICO acted in bad faith by delaying tender while it litigated the choice of law issue, by omitting pertinent facts about the issued policy in violation of La. R.S. 22:1973(B)(1), or both.

GEICO argued at the hearing on summary judgment that in filing its opposition to the motion for partial summary judgment, GEICO was not seeking to absolve itself of any obligation under its policy. Rather, GEICO opposed partial summary judgment as to the penalty aspect and argued that it has a right to seek the redress of the courts on a cognizable defense. Therefore, we address the misrepresentation issue to the extent the trial court’s ruling also found GEICO violated La. R.S. 22:1973(B)(1).

In Prime Ins. Co. v. Imperial Fire & Cas. Ins. Co., 14-0323, p. 10 (La. App. 4 Cir. 10/1/14), 151 So.3d 670, 677, this Court explained summary judgment “is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, knowledge and malice; that calls for credibility determinations and the weighing of testimony,” Id. (citing Stewart Title of Louisiana v. Chevron, U.S.A., Inc., 12-1369, p. 6 (La. App. 4 Cir. 3/27/13), 112 So.3d 949, 952). Likewise, “summary judgment is rarely appropriate for the disposition of issues requiring a | udetermination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case.” Id. (citing Greater Lafourche Port Com’n v. James Const. Group, LLC, 11-1548, p. 7 (La. App. 1 Cir. 9/21/12), 104 So.3d 84, 88). In this case, the allegation of misrepresentation by omission is a question of fact which is inappropriate for summary judgment.

The crux of Mr. Jones’ bad faith claim is that by failing to notify Mr. Jones or his counsel that a specific release was required, GEICO induced him to waive his UM claim in order to avoid tendering payment under the policy. The allegation of bad faith in this instance, however, is built on the assumption that GEICO knew Mr. Jones and his counsel were unaware that a specific release was required and seized upon the opportunity created by that knowledge. In other words, GEICO knew that it possessed important information that Mr. Jones did not and intentionally took advantage of his ignorance.

In support of his contention, Mr. Jones points to the deposition testimony of GEI-CO’s claims adjuster Charlene Melvin. She testified that after receiving notice of the claim GEICO learned that his policy was confected in Georgia and that a specific release was required. She also testified that she did not believe that GEICO had a duty to inform Mr. Jones because he was represented by counsel. The evidence further indicates that the parties corresponded several times regarding the UM claim and the Allstate release, but no mention was made about the need for specific release language. Thus, Mr. Jones submits that GEICO’s knowledge of the discrepancy gave rise to a duty to inform him of the same and of what was required to recover under his specific policy.

Mr. Jones also claims that he did not know he was issued a Georgia policy until GEICO rejected his claim. Mr. Jones avers that he renewed his policy online 11Band did not review the terms of the Georgia policy that GEICO allegedly mailed to the Georgia address he provided. He insists that GEICO was aware that he registered his vehicle in Louisiana and provided GEICO with his Louisiana registration and insurance cards as well as his Louisiana driver’s license. Mr. Jones submits that this evidence supports his position that GEICO took advantage of the fact that he believed he was issued a Louisiana policy and was not aware that specific language was required in the Allstate release to preserve his UM claim.

On the other hand, GEICO avers that Mr. Jones mischaraeterizes the evidence. GEICO maintains that it did not issue Mr. Jones a Georgia policy at random. GEICO notes that Mr. Jones was previously listed as a co-insured under his then-fíancé’s policy, which was originally issued in Louisiana and then subsequently changed to Georgia when Mr. Jones and his fiancé moved to the state following Hurricane Katrina. When Mr. Jones later applied for coverage of his own, Mr. Jones identified Georgia as his address. GEICO also states that the only way a policy is changed from one state to another is upon the request of the insured. GEICO alleges that Mr. Jones’ policy was repeatedly renewed and rated in Georgia as a Georgia risk based on the Georgia address Mr. Jones provided. It further contends that there is no record of Mr. Jones requesting his policy be switched from Georgia to ‘ Louisiana. Moreover, GEICO notes that years of correspondence referencing Mr. Jones’ Georgia address and the terms of the Georgia policy prove GEICO’s application of Georgia law and its denial of Mr.- Jones’ claim on this basis was anything but arbitrary and capricious.

Notably, the parties in this case do not dispute the underlying facts so as much as they dispute each other’s interpretation of the facts. Mr. Jones claims that |'1nGEICO intentionally failed to disclose critical information pertaining to his policy. GEICO contends that Mr. Jones himself made several misrepresentations upon which GEI-CO reasonably relied to handle his UM claim in the first place. The parties’ differing reasonable interpretations highlights the subjective nature of the misrepresentation claim. In that the evidence is susceptible to differing reasonable interpretations, it is for the jury, not the court, to decide which interpretation to accept.

Genuine issues of material fact preclude summary judgment on the question of whether GEICO knowingly misrepresented pertinent facts relating to Mr. Jones’ policy to avoid coverage liability. Whether misrepresentations were intentionally made to avoid coverage liability is a question of credibility, and questions of credibility are inherently factual. The parties’ interpretation of the events and whether Mr. Jones’ contentions are plausible are questions of fact that are inappropriate for summary judgment. Issues of motive, intent, good faith, knowledge, and malice are all at play with respect to Mr. Jones’ allegation of bad faith pursuant to La. R.S. 22:1973(B)(1) and GEICO’s underlying liar bility. We find no compelling reason to depart from established jurisprudence declining to grant summary judgment when determination of the reasonableness of a party’s actions hinges on questions of credibility and the weighing of evidence. Therefore, the trial court’s ruling with respect to Mr. Jones’ bad faith claim under La. R.S. 22:1973(B)(1) is reversed. However, because genuine issues of material fact preclude summary judgment on the misrepresentation issue at this time, GEICO’s Jjjwrit and cross-motion for summary judgment are denied in part.

CONCLUSION

Based on the foregoing reasons, the trial court’s ruling granting partial summary judgment in favor, of Mr. Jones is reversed. We find GÉICO had a reasonable basis to seek judicial determination of the choice of law issue. Thus, it did not act'in bad faith when it tendered payment outside the statutory time limits and within thirty days of the ruling on the choice of law issue becoming final. Therefore, insofar as GEICO sought judicial determination of the choice of law issue, we find as matter of law that GEICO is entitled to summary judgment as to the alleged violations of La. R.S. 22:1892(B)(1) and 22:1973(B)(5).

To the extent the trial court found GEI-CO acted in bad faith in violation of La. R.S. 22:1973(B)(1), the ruling is reversed. The parties’ accounts of the surrounding facts and circumstances demonstrate competing interpretations of the evidence that require weighing of evidence and credibility determinations. In that the reasonableness of GEICO’s conduct is at issue, we find whether GEICO acted in bad faith by allegedly misrepresenting information relating, to Mr. Jones’ UM claim under La. R.S. 22:1973(B)(1) is not appropriate for summary judgment.

DECREE

Accordingly, we convert the appeal to a writ; reverse the trial court’s judgment granting partial summary judgment in Mr. Jones’ favor; grant in part and deny in part GEICO’s writ application; and remand the matter for further | ^proceedings in line with this opinion.

APPEAL CONVERTED TO WRIT; WRIT GRANTED IN PART; DENIED IN PART; REVERSED AND REMANDED

LANDRIEU, J., CONCURS WITH REASONS

LOBRANO, J., CONCURS IN THE RESULT

LANDRIEU, J.,

CONCURS WITH REASONS

11 This case arises from a lawsuit for personal injuries brought by Mr. Jones against his uninsured motorist carrier, GEICO. GEICO defended the suit on several grounds, one being a coverage defense as to whether Georgia law or Louisiana law applied to the policy at issue. If Georgia law applied, the plaintiffs suit against GEICO would fail because Mr. Jones settled his case with the underlying liability carrier, Allstate, without providing GEICO notice of the settlement and/or without reserving GEICO’s right of subrogation against Allstate. If Louisiana law applied, the plaintiffs failure to do either of the above would be irrelevant, and GEICO would owe the plaintiff coverage and certain duties under its policy. Among these duties is the right of good faith and fair dealing, obligating GEICO to make a “good faith tender” in accordance with McDill v. Utica Mut. Ins. Co., 475 So.2d 1085 (La. 1985).

As discussed by the majority, the parties litigated the choice of law issue to finality, with the end result being a finding that Louisiana law applied to Mr. Jones’ GEI-CO policy. Within thirty days of the judgment on that issue becoming final, GEICO made a tender to Mr. Jones. The amount of the tender is not at issue.'

The issue before us arises from a motion for partial summary judgment filed by Mr. Jones seeking a declaration that GEICO acted in bad faith by failing to 12make the tender sooner. It his motion, Mr. Jones asserted that GEICO’s choice of law defense was without merit and that GEICO had failed to inform him, prior to his settling with Allstate, of its assertion that Georgia law applied to his policy. GEICO filed a cross-motion for summary judgment and an opposition to the plaintiffs motion. The trial court heard both motions on June 3, 2016. On June 23,2016, the trial court issued a written judgment granting Mr. Jones’ motion for partial summary judgment finding that GEICO acted in bad faith, and denying GEIGO’s motion for summary judgment.

GEICO has appealed the June 23, 2016 judgment asserting that the trial court erred by granting Mr. Jones’ motion for partial summary judgment and by denying GEICO’s motion for summary judgment.

I respectfully disagree with the majority’s finding that the judgment before us lacks sufficient decretal language. The judgment names the parties and their respective counsel. It leaves no doubt as to the party in favor of whom each ruling is ordered, the party against whom each ruling is ordered, or the relief that is granted. Accordingly, I find that our appellate jurisdiction is properly invoked.

I concur in the majority’s reversal of the trial court’s granting of Mr. Jones’ motion for summary judgment. I agree that GEI-CO had a legitimate coverage defense. However, I am confused by the majority’s finding that “as a matter of law GEICO is entitled to summary judgment as to the alleged violation of La. R.S. 22:1892(B)(1) and 22:1973 (B)(5),” which appears to be inconsistent with its concurrent finding that that genuine issues of material fact remain as to whether GEICO can be found to have misrepresented the terms of Mr. Jones’ policy. I disagree that there are genuine issues of fact that would preclude summary judgment in favor of GEICO on this issue. The record does not reveal whether the [atrial court found GEICO to be in bad faith because GEICO delayed making a tender while litigating the choice of law issue, or because GEICO failed to advise the plaintiff that Georgia law applied to his policy prior to the plaintiff settling with Allstate, or both. However, as the majority notes, a trial court’s ruling on summary judgment is subject to de novo review. I find no law, nor has the plaintiff cited any, holding that an insurer has a duty to inform its insured of which state’s law applies to the insured’s policy, or that the failure to provide such information constitutes misrepresentation of policy terms. Therefore, I would find as a matter of law that GEICO was not in bad faith for misrepresenting the policy terms. I thus concur in the majority’s granting of summary judgment in favor of GEICO.

For the reasons stated, I respectfully concur in the result reached by the majority.

hLOBRANO, J., CONCURS IN THE RESULT.

      . In Jones, this Court noted that although the decretal language omitted naming the plaintiff against whom the ruling was ordered, the omission was "insignificant” because the case involved only a single plaintiff. Id., 16-0329, p. 5 (La.App. 4 Cir. 10/5/16), 203 So.3d 384, 387-88 n. 4.

      . Given there is some factual overlap in consideration of the bad faith allegations, our findings could be interpreted as being inconsistent with each other. However, the inquiries are different. Determination of whether GEICO may delay making tender while it litigated the choice of law issue may consider some of the same underlying evidence, but the inquiry is a legal one and for the court to decide before a trial on the merits. Conversely, determination qf whether GEICO intentionally misrepresented information about UM coverage is purely factual, resolution of which is specific to the parties and this case, and for the trier of fact to decide. '

      . Pursuant to La. C.C.P. 1915(B), the trial court certified this judgment as final and ap-pealable with no just reason for delay.