author: GAIDRY, J. KUHN, J., GUIDRY, J.,

text:
    R. Lee BERRY, M.D. v. The PAUL REVERE LIFE INSURANCE COMPANY.
    No. 2008 CA 0945.
    Court of Appeal of Louisiana, First Circuit.
    July 9, 2009.
    Rehearing Denied Sept. 14, 2009.
    L. Kevin Coleman, Mandeville, Louisiana, and Fritz B. Ziegler, Covington, Louisiana, for Plaintiff/Appellant R. Lee Berry, M.D.
    Richard E. McCormack, Edward W. Trapolin Kelly G. Juneau, New Orleans, Louisiana, for Defendanf/Appellee, The Paul Revere Life Insurance Company.
    Before WHIPPLE, KUHN, GUIDRY, GAIDRY, and McCLENDON, JJ.
   GAIDRY, J.

| ¡¡This is an appeal by the plaintiff, R. Lee Berry, M.D. (Dr. Berry), of a summary judgment granted in favor of the defendant, The Paul Revere Life Insurance Company (Paul Revere). That judgment dismissed the plaintiffs claims, finding that the two disability policies issued by the defendant to the plaintiff do not provide coverage for his claimed disability of drug addiction. For the following reasons, we find the trial court erred in granting Paul Revere’s motion for summary judgment, as there remain genuine issues of material fact. For the same reason, we affirm the trial court judgment denying Dr. Berry’s motion for summary judgment. Accordingly, we reverse in part, affirm in part, and remand.

BACKGROUND FACTS

The facts leading up to Dr. Berry’s claim for disability are generally undisputed. The plaintiff was a resident in anesthesiology in the early 1990s in Arizona. After completing his residency, he practiced as a board-certified anesthesiologist from 1996 through November 2002. During that time, and culminating in November 2002, at the age of 35, Dr. Berry became addicted to prescription drugs, primarily Demerol, available to him in his practice in Covington, Louisiana. As a result, he left that medical practice in March 2001. According to Dr. Berry, he discontinued his abuse of Demerol for approximately |3one year, at which time he began working as an anesthesiologist in the state of Washington.

Dr. Berry began abusing Demerol again in the fall of 2002. On November 12, 2002, while employed in Washington, Dr. Berry attended a tubal ligation procedure while allegedly under the influence of Demerol. He was further alleged to have committed malpractice which rendered the patient under his care in a permanent vegetative state. Following this incident, he was investigated and found to have diverted narcotics from patients in five different cases. Immediately following that investigation, Dr. Berry entered the Primary Intensive Treatment portion of the Hazelden Spring-brook program in Portland, Oregon. Following the completion of the initial phase of treatment at Hazelden, Dr. Berry returned to Louisiana in January 2003 and began treatment with the “Addictive Behavior Unit” at Ochsner Clinic Foundation, and continues to date under the care of a “treatment team” of Dr. Eileen Correa, a psychologist, and Dr. Dean Hickman, a psychiatrist, both specialists in addictive disease. According to Dr. Berry, he also attends Alcoholics Anonymous (AA) meetings two to three times a week and has been drug free since November 15, 2002.

As a result of the Washington incident and further investigations, Dr. Berry’s medical licenses in Arizona, Washington, and Louisiana were suspended. The Louisiana State Board of Medical Examiners Consent Order, rendered in February 2005, specifically prohibits Dr. Berry from practicing in the field of anesthesiology. It further prohibits him from prescribing, dispensing, or administering a large variety of medications and from practicing in the fields of pain management, involving the use of controlled substances. Pursuant to the consent order, the prohibitions are to last “for the remainder of his medical career.”

| ..PROCEDURAL BACKGROUND

In January 2003, Dr. Berry filed claims for disability benefits pursuant to two separate policies he had through the defendant insurer, Paul Revere. Paul Revere paid him full disability benefits under both policies for approximately two and a half years, from March 2003 through August 2005, when it deemed him to be no longer presently disabled under the terms of the policy. At the time that Paul Revere discontinued paying disability benefits, Dr. Berry had been drug free since November 15, 2002, was in continuous rehabilitative treatment, and had no license to practice anesthesiology in the State of Louisiana (his covered occupation).

On April 5, 2006, Dr. Berry filed a petition for damages against Paul Revere, claiming that his addiction to prescription medications rendered him permanently and totally disabled from the practice of anesthesiology, because resuming his practice would require him to handle a great variety of narcotic and other controlled substances, in turn, increasing his risk of relapse. Dr. Berry alleged that Paul Revere was arbitrary and capricious in terminating his benefits, thereby entitling him to recover the full benefits under both policies, as well as statutory penalties, interest, costs, and attorney’s fees.

In May 2007, Dr. Berry filed a Motion for Summary Judgment, or alternatively, for Partial Summary Judgment, declaring that he is totally disabled from his occupation under the terms of both disability policies for the remainder of his life. He also sought judgment ordering the payment of benefits from September 1, 2005 (the date after benefits were terminated) through the date of the judgment, together with legal interest from the date due until paid. Finally, he prayed for judgment also ordering payment of the present value of all future benefits due under the two policies,' together with legal interest from the date of | fithe breach of the contract (August 31, 2005), the date benefits were terminated, until paid. Dr. Berry also alleged that Paul Revere was in bad faith and without just and reasonable grounds for terminating benefits and therefore sought statutory penalties pursuant to La. R.S. 22:657, in the amount of double the value of all past due benefits, which the plaintiff asserted to be $242,970.00 on June 13, 2007, together with costs and reasonable attorney’s fees.

The trial court denied Dr. Berry’s motion. Paul Revere subsequently filed its own motion for summary judgment asserting that there are no genuine issues of material fact and that the plaintiffs risk of relapse does not constitute a present total disability as defined and provided for in the policies at issue. Therefore, according to the defendant, Dr. Berry is not entitled to benefits, and Paul Revere is entitled to judgment in its favor, dismissing his claims with prejudice.

The trial court granted Paul Revere’s motion and dismissed plaintiffs claims in a judgment dated October 24, 2007. Dr. Berry appeals that judgment.

STANDARD OF REVIEW

An appellate court reviews the district court’s decision to grant or deny a motion for summary judgment de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Boudreaux v. Vankerlchove, 07-2555, p. 5 (La.App. 1st Cir.8/11/08), 993 So.2d 725, 729-30.

SUMMARY JUDGMENT

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

| (iThe initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but -he must point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Samaba v. Rau, 07-1726, p. 5 (La.2/26/08), 977 So.2d 880, 883. The plaintiff may not rest on mere allegations or denials, but must set forth specific facts that show that a genuine issue of material fact remains. If the plaintiff fails to meet this burden, there is no genuine issue of material fact, and the defendant is entitled to summary judgment as a matter of law. Bd. of Supervisors of La. State Univ. v. Louisiana Agr. Fin. Auth., 07-0107, p. 9 (La.App. 1st Cir.2/8/08), 984 So.2d 72, 79-80.

As mover, Paul Revere bore the burden of proving that no genuine issue of material fact remains regarding Dr. Berry’s disability status, and that it is entitled to judgment in its favor as a matter of law. Since Dr. Berry would bear the burden of proving entitlement to benefits at trial, Paul Revere need only show the absence of factual support for one or more elements of Dr. Berry’s claim for benefits.

ARGUMENTS

The sole issue in this appeal is whether Dr. Berry is entitled to disability benefits, a determination that is controlled by the policy language and the facts herein. Both policies in relevant part provide:

1.6 “Sickness” means sickness or disease which first manifests itself after the Date of Issue and while Your Policy is in force.
|71.7 “Physician” means any licensed practitioner of the healing arts practicing within the scope of his or her license. A Physician must be a person other than You.
1.8 “Physician’s Care” means the regular and personal care of a Physician which, under prevailing medical standards, is appropriate for the condition causing the disability.
1.9 “Your Occupation” means the occupation or occupations in which You are regularly engaged at the time Disability begins.
1.10 “Total Disability” means that because of Injury or Sickness:
a. You are unable to perform the important duties of Your Occupation; and
b. You are receiving Physician’s Care. We will waive this requirement if We receive written proof acceptable to Us that further Physician’s Care would be of no benefit to You.

It is undisputed by the parties that addiction is a “sickness or disease” within the meaning of the policy, and that it first manifested itself while the policy was in force. The issue turns on whether the addiction, during or after a period of rehabilitation, renders a claimant “unable to perform the important duties” required of an anesthesiologist, given that there is an ever-present risk of relapse, and whether the “Physician’s Care” is appropriate for the condition causing the disability.

Paul Revere maintains that Dr. Berry is not currently disabled under the terms of the policies, based on his years of sobriety, current rehabilitated condition, and continuous ongoing treatment by his physicians. Paul Revere further argues that at the present time, Dr. Berry has the knowledge and capability of performing the substantial functions of an anesthesiologist, and the risk that he may relapse, no matter how high, does not render him disabled from performing his occupation at the present time. Moreover, it contends, his return to the practice, although giving him access to controlled substances, does not automatically render him addicted. Paul Revere contends it would take affirmative action on Dr. Berry’s part, i.e., diverting those drugs for his own personal use or abuse, for him to become disabled and unable to perform the duties of his occupation; however, Dr. Berry Rwould not be disabled if or until that happened. In short, Paul Revere maintains that the risk of relapse into addiction alone is insufficient to render him permanently disabled, when, in a sober and rehabilitated condition, he could practice his profession.

Dr. Berry, on the other hand, maintains that his addiction, and the risk of his relapsing should he have access to the controlled substances he has a history of abusing, renders him disabled for the rest of his life under the terms of the policy. Dr. Berry relies on the expert medical opinions of both of his treating physicians that he should never return to the practice of anesthesiology, where the drugs are readily accessible, because it subjects him to a high risk of relapse. Dr. Berry further argues that the loss of his medical licenses, prohibiting him from engaging in his occupation as an anesthesiologist, legally disables him from practicing. Dr. Berry contends that such legal disability is covered within the terms of the policy, because the license suspensions were a direct result of his addiction or sickness. On either basis, Dr. Berry claims that he is disabled and entitled to lifetime benefits.

For the following reasons, and after reviewing the evidence presented, we find that there remain genuine issues of material fact as to Dr. Berry’s ability to perform his occupation and whether or not he is totally disabled.

INTERPRETATION OF INSURANCE POLICIES

We start by recognizing that insurance policies are to be read broadly in favor of coverage and that ambiguities are construed against the insurer. Schmidt v. Blue Cross and Blue Shield of Louisiana, Inc., 33,179 (La.App. 2nd Cir.9/27/00), 769 So.2d 179, 181, writ denied, 00-3011 (La.12/15/00), 777 So.2d 1234. An insurance policy is construed as a whole, and each provision in the policy must be interpreted in light of other provisions. If an ambiguity remains after applying the general rules of contractual interpretation, the ambiguous |9insurance policy provision is construed against the insurer that furnished the policy’s text and in favor of the insured. Doe v. Breedlove, 04-0006 (La. App. 1st Cir.2/11/05), 906 So.2d 565, 570. Further, the issue of whether a contract is ambiguous or not is a question of law. Lafleur v. Dugas, 97-958, pp. 5-6 (LaApp. 3rd Cir.5/6/98), 714 So.2d 792, 794, unit denied, 98-1518 (La.9/18/98), 724 So.2d 767; Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924, 928 (La.App. 1st Cir. 1989), unit denied, 545 So.2d 1041 (La. 1989).

The record reveals no dispute over the fact that Dr. Berry’s “occupation” as defined by section 1.9 of the policy is that of an “anesthesiologist.” This does not encompass the broader occupation of physician.

As previously noted, “sickness” is defined by section 1.6 of the policy and means “sickness or disease which first manifests itself after the Date of Issue and while Your Policy is in force.” All parties agree that addiction is a sickness or disease and, in this case, Dr. Berry’s sickness falls within the definition of section 1.6 of the policy.

The policy does not define disability in terms of legal or factual disability, but sets forth at section 1.10 “Total Disability” means that “because of Injury or Sickness: (a.) You are unable to perform the important duties of Your Occupation; and (b.) You are receiving Physician’s Care. We will waive this requirement if We receive written proof acceptable to Us that further Physician’s Care would be of no benefit to You.”

Even though the policy does not define disability in terms of legal or factual disability, the State of Louisiana, like all states, requires a medical license to be issued to a doctor before he can practice his profession. The ability to obtain a license may have a bearing on the issue of disability and the doctor’s ability to perform his occupation.

| inINQUIRY INTO LEGAL “DISABILITY”

Dr. Berry first counters Paul Revere’s claim that he is not disabled under the policy by asserting that the revocation of his medical licenses in the states of Washington, Arizona, and Louisiana render him legally totally disabled, because they prohibit him from practicing his occupation of anesthesiology. He focuses in particular on the Louisiana Consent Order, which provides that he may never return to the occupation of anesthesiology or pain management.

There is no rule that legal impediments per se can never be a basis for disability. This issue should ultimately turn on the facts and the language of the insurance contract. If the suspension of the license arises out of the covered sickness, then it may be a basis for determining disability. Indeed, many jurisdictions are in accord that where a health-related disability, on its own, would make a return to work impossible, the existence of a legal disability, even one caused by the health-related disability, does not justify the denial of benefits. See Colby v. Assurant Employee Benefits, 603 F.Supp.2d 223, 245 (D.Mass., 2009); Paul Revere Life Ins. Co. v. Bava-ro, 957 F.Supp. 444, 449 (S.D.N.Y. 1997). Bavaro lays out the operative standard applied by those courts:

If [the claimant] demonstrates to the trier of fact that he is unable to work because of his mental and emotional problems then he is entitled to disability payments, despite the existence of his subsequent legal disability. If, however, the trier of fact believes that but for his legal disability he would be able to perform his occupation, then he is not entitled to disability payments.
Paul Revere Life Ins. Co. v. Bavaro, 957 F.Supp. at 449.

We recognize that some jurisdictions take the view that disability insurance policies provide coverage for factual disabilities and not legal disabilities, such as suspensions or revocations of occupational licenses. Goomar v. Centennial Life Insurance Company, 855 F.Supp. 319, 325 (S.D.Cal. 3/8/94), citing 15 G. Cough, Cyclopedia of Insurance Law § 53.41 (2d ed. 1983); see also Brumer v. National \^Life of Vermont, 874 F.Supp. 60 (E.D.N.Y. 1/24/95). In Goomar, a physician’s license was revoked after he was investigated and found to have sexually molested four female patients. Later, the physician claimed to have a certain mental illness that caused him to engage in the molestations. The Goomar court rejected the physician’s assertion that his disability led to the conduct that caused the loss of his medical license, which prevented him from engaging in his occupation, stating:

It is a general rule that disability insurance policies, such as those at issue in the instant case, provide coverage for factual disabilities (i.e., disabilities due to a sickness or injury) and not for legal disabilities.

Goomar, 855 F.Supp. at 325. The court denied the plaintiff disability benefits on that basis, concluding that his inability to practice his regular occupation was due to his license revocation rather than a sickness or injury as required by the policy language. Id. at 326.

Similarly, in Brumer, a practicing podiatrist’s license to practice was suspended for a period of eleven months as a result of his being charged with a number of offenses, including the performance of needless surgery and tests, insurance fraud, and misleading advertising. During the time his license was suspended, the podiatrist developed a medical condition that permanently affected his eyesight and rendered him physically unable to perform podiatric surgery. The court affirmed the insurance company’s denial of disability benefits, citing the general rule distinguishing legal disability from factual disability, and finding that the podiatrist’s factual disability, for which the policy would provide coverage, arose during his suspension or legal disability, when he was not engaged in the occupation of podiatry. 874 F.Supp. at 64-65. See also Allmerica Financial Life Insurance and Annuity Company v. Llewellyn, 139 F.3d 664 (9th Cir. 1997) (A chiropractor, claiming disability based on depression, was denied disability benefits because his chiropractic license was revoked as a result of an investigation revealing work-related fraudulent activities. The court concluded that the | ^chiropractor was not disabled because it was his legal disability — revocation of license — that prevented him from continuing to practice, rather than his factual disability, the claimed mental illness of depression).

Dr. Berry contends that Goomar, Brumer, and Lleivellyn are distinguishable from the issue before this court, as the parties recognize that addiction is a “sickness or disease” within the meaning of the policy. This “sickness” manifested itself while the policy was in force and as a result of this “sickness,” he cannot obtain a license to practice his “occupation” as an anesthesiologist. Dr. Berry contends that it is the “sickness” that prevents him from obtaining his license, not any criminal act allegedly resulting from the sickness.

We find this factual inquiry as to Dr. Berry’s licensing status remains a genuine issue of material fact. Our review of the record reveals that the license revocations imposed on Dr. Berry could have been based upon and in response to his addiction (sickness or disease under the policies); the negligence in the performance of his duties; his wrongful acts of diverting his patient’s medications for his own personal use; or a combination of all three. Thus, we believe there remains a genuine issue of material fact concerning whether Dr. Berry’s claim for benefits arises from factual disability and not solely on his inability to practice medicine based on the revocation of his medical licenses.

INQUIRY INTO PHYSICAL/MENTAL DISABILITY

Paul Revere argues that the facts alone establish that Dr. Berry is not disabled as defined by the policy language. The record reveals that Dr. Berry has remained drug free, sober, and under the continuous care of his treatment team | ,ssince November 2002. At the time of the hearing on the motion, Dr. Berry had been drug free and sober for almost five years. Moreover, Dr. Berry still possesses the requisite knowledge, skill, and experience required of an anesthesiologist.

Dr. Berry claims that because there is an ever-present risk of relapse, he is totally disabled from ever returning to his former occupation. He relies on the language of the insurance policy and the opinions of his treating physicians to establish that he is disabled. Those physicians contend that under the prevailing medical standard, Dr. Berry should not return to his former occupation, given that he will have direct access to narcotics to which he is addicted, thus raising the risk of his having a relapse. Paul Revere’s position is that the specific issue — whether the risk of a future relapse into addiction renders an anesthesiologist unable to perform the duties of his occupation, and therefore, disabled — is res nova in Louisiana. Defendant cites numerous cases throughout the country in which courts have addressed very similar issues and concluded that such a risk does not render a claimant presently totally disabled under the language of the policies at issue. Paul Revere asserts that the analysis employed by these other courts is sound and applicable to the facts and circumstances presented herein.

As noted earlier, the issue before us is res nova in Louisiana. Paul Revere suggests that this court follow the holding in Stanford v. Continental Casualty Company, 455 F.Supp.2d 438 (E.D.N.C.2006), affd, 514 F.3d 354 (4th Cir.2008). That court was faced with issues similar to those presented herein, with the noted distinction that the plaintiff in that case was a certified registered nurse anesthetist (CRNA) who became addicted to anesthetic drugs.

The district court in Stanford held that the risk that the plaintiff would relapse did not render him continually unable to perform the material and substantial duties of a CRNA; therefore, he was not disabled under the terms of the insurance plan. In affirming the holding that the potential risk of relapse did not | ^entitle the CRNA to disability benefits because the plan does not cover this type of potential risk, the U.S. Fourth Circuit explained the differences contemplated by the policy language:

[T]he risk of a heart attack is different from the risk of relapse into drug use. A doctor with a heart condition who enters a high-stress environment like an operating room “risks relapse” in the sense that the performance of his job duties may cause a heart attack. But an anesthetist with a drug addiction who enters an environment where drugs are readily available “risks relapse” only in the sense that the ready availability of drugs increases his temptation to resume his drug use. Whether he succumbs to that temptation remains his choice; the heart-attack prone doctor has no such choice.

Stanford, 514 F.3d at 358. The court was sympathetic to the difficulty in overcoming an addict’s temptation, but maintained that the availability of that choice distinguishes an addiction risk of relapse from those other relapse risks that would be deemed a disability under similar policy language.

Defendant also relies upon Allen v. Minnesota Life Insurance, 216 F.Supp.2d 1377 (N.D.Ga.2001) where another court addressed the same issue under similar facts and disability policies. The court in Allen held that an anesthesiologist who developed an addictive disorder involving Fentanyl, attended rehabilitation treatment, and successfully achieved sobriety was not “disabled” within the scope of the policy, because his opiate addiction, in his rehabilitated state, did not render him unable to perform the duties of his occupation. The Allen court seemingly did not accord significant weight to plaintiffs treating physician’s testimony that plaintiff should not return to the practice of anesthesiology based on plaintiffs own fear of relapse, his previous history of “relapse behavior,” and his “demonstrated inability to follow directions.” Allen v. Minnesota Life Insurance, 216 F.Supp.2d at 1383-1384. The court rejected the physician’s opinions concluding they were “based on future potentialities rather than any present impediment.”

However, we note that there is no uniformity of opinion amongst the courts concerning the role “choice” or “free will” plays in an addict’s risk of relapse. | ^Nevertheless, we conclude that the moral implications of “choice” are not for us to decide. We additionally note that the terms “free will” or “choice” are not used in the Paul Revere policy issued to Dr. Berry.

Our sole task is to determine whether, within the confines of this policy, the risk of relapse for drug addiction is excluded as a disability. The policy at issue does not distinguish between mental and physical disabilities. In other words, the policy itself does not treat the risk of relapse for physical and mental disabilities differently. As such, we do not find that the policy at issue categorically excludes the risk of relapse for drug addiction as a basis for disability.

We find persuasive the recent opinion of the United States District Court for the District of Massachusetts in Colby v. Assu-rant Employee Benefits, and agree with that court’s position that cases such as Stanford, supra, commit a moralistic error in arbitrarily separating risk of relapse into physical sickness from risk of relapse into mental illness. Colby, 603 F.Supp.2d at 242-243. The Stanford court, and others, unilaterally rejected the risk of relapse into a mental illness without any support from the policy language. Those insurers, as Paul Revere here, could have inserted limiting language into the policies regarding risk of relapse, but did not do so. As such, we also agree with the Colby court that the focus instead should be on whether the evidence of the probability of a relapse is sufficiently high to justify a finding of disability. Id. at 243. See also Kufner v. Jefferson Pilot Financial Insurance Co., 595 F.Supp.2d 785, 797 (W.D.Mich.2009) (a district court judge found that an insurance company’s denial of disability benefits was arbitrary and capricious because it failed to account for the “extensive medical evidence” of the opioid-addicted doctor’s risk of relapsing into substance abuse) and Holzer v. MBL Life Assurance Corp., No. 97 Civ. 5834(TPG), 1999 WL 649004, at 4-6 (S.D.N.Y. Aug. 25, 1999) (A district court held in a non-ERISA case under the normal summary judgment standard, a triable issue of fact existed as to whether an | ^anesthesiologist, with a stipulated diagnosis of opioid dependence, continues to suffer from a chemical dependency that qualifies as a “sickness” within the terms of the policy after treatment and an asserted four-year abstinence. Specifically, the court opined that a triable issue of fact remained concerning whether Holzer has reached a point where he could perform the duties of an anesthesiologist without resuming his drug abuse.)

This record contains the affidavits of both of Dr. Berry’s treating physicians, Drs. Hickman and Correa. Both Paul Revere and Dr. Berry rely on the opinions contained in the affidavits to support their arguments regarding whether Dr. Berry is “disabled” pursuant to the terms of the policies.

Dr. Dean A. Hickman, a board-certified clinical psychiatrist, specializing in addiction psychiatry, is also the medical director of the Addictive Behavior Unit at Ochsner Foundation. He attested that Dr. Berry had been under his continuous care for treatment of his addictive disease since June 2004, and that Dr. Berry had been compliant with all medical requests and demands made of him, including attending several 12-step AA meetings per week and giving random urine samples. Given that the addiction for which he was treating Dr. Berry in 2004 was a relapse of a prior addiction which began in 2001, Dr. Hickman considered Dr. Berry to be unsuited to the practice of anesthesiology, since any return to the practice would expose him to the availability and administration of controlled substances and, therefore, posed a significant risk of relapse. For these reasons, Dr. Hickman attested that it was his firm opinion that Dr. Berry “should never return to the practice of anesthesiology for the remainder of his life.”

Dr. Eileen Correa, a clinical psychologist and head of the Section of Psychology and program director for the Addictive Behavior Unit at Ochsner Clinic Foundation, attested that Dr. Berry had been continuously under her care for treatment of addictive disease since February 2003, including weekly individual 117and group therapy sessions. Dr. Correa attested that Dr. Berry had been compliant with all of his medical treatment and had continuously maintained sobriety. She further attested that Dr. Berry’s recovery had been intact throughout his treatment. However, Dr. Correa also testified that Dr. Berry had been in denial as to the depth and extent of his addiction to Demerol, which resulted in his relapse and hospitalization in June 2004. Given this history, Dr. Correa also stated that due to the risk of relapse, it was her opinion that Dr. Berry should never return to the practice of anesthesiology for the remainder of his life.

Dr. Berry relies on the sworn statements and opinions of his physicians, recommending that he not return to work, as proof that his addiction renders him permanently disabled. Paul Revere also relies on these affidavits, noting that while both physicians recommend that Dr. Berry should not return to practice, neither physician opined that he could not or was physically or mentally incapable of performing the important duties of an anesthesiologist in his current state of sobriety and rehabilitation.

Yet, we find the reports of Paul Revere’s own independent medical examiners are ambivalent on the issue, as follows:

John W. Thompson, Jr., M.D., Forensic Neuropsychologist
It is my opinion that Dr. Berry was not attempting to malinger during the evaluation.
It is my opinion that Dr. Berry has a guarded prognosis.
It is my opinion that if Dr. Berry were to return to the active practice of anesthesiology he would likely relapse in a short period of time unless there was intensive supervision.
F. William Black, Ph.D.
From a neuropsychological and emotional perspective, effective treatment should result in Dr. Berry returning to his pre-substance abuse level of functioning. However, this matter is obviously markedly complicated by a history of relapsing significant substance abuse. I am very concerned that there is a strong potential that the patient would relapse if he were to return to the practice of 118anesthesiology or any other aspect of medicine where he had access to IV narcotic medications.
I do not have the sense that Dr. Berry is continuing to claim disability on the basis of choice, career dissatisfaction, and adoption of the sick role or secondary claim.

The policy at issue also requires Br. Berry to be under a “Physician’s Care.” The policy does not afford the insurer the right to select the physician or direct the manner and form of treatment. Yet, the reports of Paul Revere’s retained experts and own in-house psychiatric director, Dr. John J. Szlyk, M.D., appear to question the comprehensibility of the treatment afforded Dr. Berry. Dr. Thompson remarked that it was his opinion that Dr. Hickman and Dr. Correa are “extremely competent to provide chemical dependency treatment to Dr. Berry” yet he proposed the adoption of a more active treatment approach given Dr. Berry’s level of chemical dependency. As such, we find the medical evidence demonstrates that genuine issues of material fact remain.

We find that triable issues of material fact remain based on the affidavits submitted by Dr. Berry and Paul Revere, as to whether Dr. Berry is able to return to the important duties of his occupation without seriously risking his health and the health and well-being of the public he may serve. On the record before us, we are unable to quantify Dr. Berry’s probability of a relapse, which we find crucial to a determination of “disability”.

CONCLUSION

For all of the foregoing reasons, we find that there are genuine issues of material fact, and that neither Paul Revere nor Dr. Berry have made the requisite showing that they are entitled to judgment as a matter of law. Accordingly, the judgment of the trial court dismissing plaintiffs claims with prejudice is reversed. We affirm the trial court judgment denying Dr. Berry’s motion for summary | Hjudgment. All costs in this matter are to be equally borne by Paul Revere and Dr. Berry.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

GUIDRY, J. dissents and assigns reasons.

McCLENDON, J. dissents for the reasons assigned by judge GUIDRY.

KUHN, J., concurs and assigns reasons.

KUHN, J.,

concurring.

| iWhether Dr. Berry’s addiction is a “total disability” entitling him to insurance coverage for his claimed disability is not a legal question, but rather a determination of coverage based upon the language of the disability insurance policies and the facts of this case. As noted by this Court in the majority opinion, all parties to this lawsuit agree that Dr. Berry’s addiction is a sickness or disease. In this case, Dr. Berry’s siclmess falls within the definition of “sickness” of section 1.6 of the policies. The policies do not define disability in terms of a legal or factual disability, but set forth the following at section 1.10:

“Total Disability” means that “because of Injury or Sickness: (a.) You are unable to perform the important duties of Your Occupation; and (b.) You are receiving Physician’s Care. We will waive this requirement if We receive written proof acceptable to Us that further Physician’s Care would be of no benefit to You.”

Here, there are genuine issues of material fact concerning whether Dr. Berry is totally disabled, as defined by Section 1.10 of the disability policies. The factual inquiry in determining whether there is a total disability under the policies is |2whether Dr. Berry is “unable to perform the important duties of his occupation as an anesthesiologist” due to his risk of relapse, without serious risk to his health and the health and well-being of the public he may serve. Neither the policies nor any authority in the State of Louisiana, statutory or jurisprudential, recognize a distinction between a “legal disability” and a “factual or physical disability.” Regardless of whether Dr. Berry’s medical licenses have been revoked as a result of his addiction, the factual inquiry is whether, based upon evidence such as his physicians’ affidavits, he is totally disabled, as defined by the policies, as a result of his disease of addiction.

I disagree with the dissent that, as a matter of law, the insurance policies do not provide coverage for Dr. Berry’s addiction, now that he is a rehabilitated addict in fully sustained remission. Rather, the question of coverage should be determined solely by interpretation of the insurance policies, as applied to the facts in the case. The policies do not categorically exclude the risk of relapse for drug addiction as a basis for total disability. Paul Revere could have inserted limiting language concerning the risk of relapse for drug addiction into the policies, but did not do so.

Paul Revere asserts that Dr. Berry’s disease is the result of “poor choices” related to drug use, implying that he can avoid a relapse if he so wills. As noted in the majority opinion, the terms “free will” and “choice” are not used in the disability policies, and the policies do not distinguish between the relapse of physical and mental diseases. Furthermore, Paul Revere’s position is inconsistent with the evidence in the record establishing that Dr. Berry’s addiction is a disease. It is illogical to conclude that a person with a disease has chosen to be sick and thus, disabled.

GUIDRY, J.,

dissenting.

U dissent because I believe the majority mistakes the issue before us, which is strictly the legal issue of whether there is coverage pursuant to a disability policy for Dr. Berry in his present state of addiction. While acknowledging that the facts are “generally Undisputed”, the majority finds there is a genuine issue of material fact concerning the degree (i.e., quantification) of the risk of relapse faced by Dr. Berry should he return to the practice of anesthesiology. Based on this alleged “genuine issue of material fact”, the majority remands to the trial court for further proceedings where such “quantifying” evidence can be presented to the court. However, “materiality” is determined by the applicable substantive law which, in this case, is interpretation of a contract. As explained herein, the plain language of the policy simply does not cover the risk of relapse, no matter how great or small, that Dr. Berry will go back to drug use that would then render him incapable of mentally and physically performing the essential functions of an anesthesiologist.

That Dr. Berry faces a risk of relapse as a result of his addiction is not a disputed fact. Nor does the degree of this risk affect the resolution of the issue Rbefore us. The issue is not whether Dr. Berry’s risk of relapse is so great that he is incapable of performing the material functions of his job, but whether risk of relapse is covered by the policy language in question. Indeed, evidence has already been presented regarding this issue, and it is undisputed that as a result of his addiction, Dr. Berry maintains a high risk of relapse. Moreover, the evidence is clear that this risk of relapse is high enough that his treating physicians recommend that he not return to his former profession as an anesthesiology. Defendant does not dispute this evidence, and for all intents and purposes, it can be presumed that Dr. Berry is at the highest risk possible, which is the most that will be established on remand.

However, even assuming the evidence proves he has the greatest risk of relapse, the resolution of the issue before us is unaffected, as there is no genuine issue of material fact relevant to whether the policies at issue provide coverage to Dr. Berry at the present time. The defendants maintain, and I must agree that, as a matter of law, the insurance policies no longer provide coverage for Dr. Berry’s addiction, now that he is a rehabilitated addict in full sustained remission. I reach this result applying Louisiana’s very clear and well-established law concerning summary judgments, contract interpretation, burden of proof and standard of review.

SUMMARY JUDGMENT

Summary judgments are now favored by law. La. C.C.P. art. 966(B). The mover, in this case, defendant/insurer, Paul Revere, bears the initial burden of showing there in no genuine issue of material fact, but need only point out that there is an absence of factual support for one or more elements essential to plaintiffs claim. La. C.C.P. art. (C)(2). Paul Revere bore that burden by ^introducing the deposition of Dr. Berry and excerpts of a neuropsycho-logical report by F. William Black, Ph.D., supporting its assertion that Dr. Berry, although an addict, is currently mentally, physically and functionally capable of performing the essential functions of an anesthesiologist based on his rehabilitated state. This evidence reveals, and is undisputed that Dr. Berry successfully completed an inpatient treatment program in 2002, has at least five years of successful sobriety, is drug-free and continues to receive appropriate medical treatment for his addiction and was in a rehabilitated state (“full sustained remission”) at the time of trial. This evidence also establishes that despite his addiction, Dr. Berry continues to possess the education, knowledge, skill, and physical ability to perform all material functions required of an anesthesiologist. The neuropsychological report of Dr. Black reveals that Dr. Berry has a diagnosis of Opioid Dependency, in remission. This report also reveals that Dr. Berry denied having any problems with cognitive functioning, and that his prior problems with attention, concentration and memory were no longer problematic. Finally, I agree with the defendant that even the plaintiffs’ own treating physicians, Dr. Dean Hickman and Eileen Correa, Ph.D., who acknowledged the ever-present risk of relapse facing every addict and cautioned against Dr. Berry resuming the practice of anesthesiology because of that risk, were unable to state with any amount of certainty that Dr. Berry was incapable of performing the daily functions and job requirements of his profession. Defendant maintained this evidence proves there in no coverage under the policy because Dr. Berry’s current state of addiction does not render him unable to perform the essential functions of his job as anesthesiologist.

At this point, the burden shifted to Dr. Berry to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, \Aie., that because of sickness or injury — in his case, addiction — he is unable to perform the duties of his occupation as an anesthesiologist. Dr. Berry must set forth specific facts that show that a genuine issue of material fact remains regarding his ability to perform his job functions. See Samaha v. Rau, 07-1726, p. 5 (La.2/26/08), 977 So.2d 880, 883. The only evidence presented by the plaintiff in opposition to the defendant’s motion and initial showing consists only of the aforementioned affidavits by his physicians attesting that he will forever have a risk of relapse, and that because of this, they would recommend that he not return to the practice of anesthesiology, where the risk in all likelihood would increase. Unlike the majority, I find these affidavits insufficient to raise a genuine issue of material fact. Again, it is not the degree of risk at issue, rather, it is whether Dr. Berry can perform the necessary job requirements. There is no evidence presented that Dr. Berry cannot. Moreover, a remand for the introduction of more evidence concerning the degree of the risk, assuming the highest level of risk is shown to exist, still falls short of establishing that he is currently disabled within the scope of the policy language.

CONTRACT INTERPRETATION

I agree with the majority that insurance policies are to be broadly construed in favor of coverage and that all ambiguities are construed against the insurer. However, the majority fails to articulate, and I can find no ambiguity in the policy language to trigger a construction in favor of coverage. As a matter of law, the policy language in the policies at issue, which bears language commonly used in disability policies, is clear and wholly unambiguous. No one disputes that addiction is a “sickness or illness” within the scope of the policy language. Further, there is no dispute as to what constitutes the “important duties” of the ^occupation of anesthesiology. Most importantly, there is also no dispute that Dr. Berry, presently and currently, due to the treatment received and his rehabilitated state, has retained all knowledge, skill and ability to perform these duties. Thus, a straight-forward application of the clear and unambiguous policy language yields the inescapable conclusion that Dr. Berry is not disabled within the terms of the policies.

BURDEN OF PROOF/STANDARD OF REVIEW and the COLBY CASE

The majority relies on a federal district court opinion, Colby v. Assurant Employee Benefits, 603 F.Supp.2d 223, 245 (D.Mass., 2009), for placing the focus on “whether the evidence of the probability of a relapse is sufficiently high to justify a finding of liability,” rather than focusing on whether an addicted person, who has been successfully rehabilitated, is covered under the policy language. The court, as does the majority in this case, mistakes the issue— which is whether there is coverage under the policy — for one reliant on quantitative evidence regarding the degree of risk. Moreover, there is no dispute that Dr. Berry is at a high risk of relapse. Quite simply, applying the language pertaining to coverage from the policy to the undisputed facts leads to the inevitable conclusion that “risk of relapse” no matter how high, is simply not covered under the policies.

Moreover, I find Colby distinguishable on several distinct and significant bases. Colby dealt with an ERISA long-term disability plan and was decided under an “arbitrary and capricious” standard applicable to the plan administrator’s denial of benefits under a similar scenario. The court remanded the matter for | consideration of the risk of relapse evidence in that case, which the plan administrator had categorically excluded from its analysis as a basis for disability. The court found the administrator was arbitrary and capricious in refusing to consider the evidence about the risk of relapse into addiction of an anesthesiologist who became addicted to Fentanyl. The record in this case reflects the evidence of risk of relapse was fully considered by the trial court.

Further, the standard of review is wholly different. The arbitrary and capricious standard employed by the Colby court is applicable on review of an ERISA plan administrators decision regarding disability benefits, implying a certain amount of discretion is allowed the administrator in reaching that decision. Conversely, as aforementioned, we are guided by rules of contract interpretation which compel us to apply the direct language pursuant to the prevailing and common meaning of the terms used when such language is clear and unambiguous. As stated earlier, in my opinion the policy language is clear and unambiguous: if sickness prevents a person from performing the primary functions of one’s occupation, he is disabled and entitled to disability benefits. If the sickness does not prevent the person from performing such functions, he is not disabled or entitled to benefits under the policy. There is no degree of discretion on this court, or any other, in reaching this determination.

Further, on a motion for summary judgment, our sole inquiry is whether there exists any genuine issue of material fact precluding judgment as a matter of law. I simply cannot agree that there is any fact in dispute that would be more easily resolved if more evidence is presented. It simply does not matter how high the risk of relapse when that risk, in and of itself, is not disabling. The plaintiff bore the burden of proving in this case, factual support for his contention that he is |7unable to perform the required functions of his job as an anesthesiologist. He presented the evidence he had available, the affidavits of his treating physicians. These affidavits fall short of the proof necessary to defeat summary judgment in this matter. While they strongly caution about the risk of relapse, neither physician attested that the plaintiff was unable to perform those duties. The most this evidence establishes is that, upon a return to work and to the functions which he can perform, Dr. Berry will face a higher risk of relapse than if he did not. That is simply not enough, under the policy language, to entitle him to benefits. The majority’s decision to remand for the presentation of more evidence, in essence, gives the plaintiff a “second bite at the apple” to meet the burden he failed to meet on summary judgment. Instead, the judgment should be rendered on the evidence presented, which in this case, warrants a granting of the summary judgment in favor of defendant, finding no disability benefits are owed under the policy.

LEGAL VERSUS PHYSICAL DISABILITY

Dr. Berry also contends that he is rendered disabled and unable to perform the essential job functions of an anesthesiologist because the evidence reveals that his medical license has been revoked in the three states (Washington, Arizona, and Louisiana) in which they had issued. The majority concludes that there remain genuine issues of material fact regarding “Dr. Berry’s licensing status.” To the contrary, the record contains all the documentary evidence available concerning all three revocations; each document is replete with a detailed account of Dr. Berry’s actions in Washington, where as a result of his improper diversion of controlled substances and negligent acts associated therewith resulted in one of his patients being in a comatose state. It is abundantly clear that Dr. Berry’s license revocations were a direct consequence of his actions in connection with that case in|RWashington. In fact, it is unknown whether but for that incident, when Dr. Berry’s addiction would have been discovered. Moreover, there is no indication whatsoever that his licenses were in any danger of revocation based on his addiction alone; rather, the record is clear that it was this tragic incident that occurred in Washington where a patient was rendered comatose that formed the bases for all three license revocations. The majority fails to articulate a genuine issue of material fact regarding the license revocations, and I cannot find one.

Furthermore, the jurisprudence also supports a finding that legal disability does not constitute a valid basis for disability benefits. Courts consistently hold that legal disabilities, such as license revocations, are not the type of disabilities contemplated by or included within the scope of disability policies.

Although the issue is res nova in Louisiana, other jurisdictions have addressed the effect of a legal disability vis a vis factual disability as contemplated by insurance policies. The general rule is that disability insurance policies provide coverage for factual disabilities and not legal disabilities, such as suspensions or revocations of occupational licenses. Goomar v. Centennial Life Insurance Company, 855 F.Supp. 319, 325 (S.D.Cal. 3/8/94), citing 15 G. Cough, Cyclopedia of Insurance Law § 53.41 (2d ed. 1983); see also, Brumer v. National Life of Vermont, 874 F.Supp. 60 (E.D.N.Y. 1/24/95); Allmerica Financial Life Insurance and Annuity Company v. Llewellyn, 139 F.3d 664 (9th Cir.1997); Massachusetts Mutual Life Insurance Company v. Millstein, 129 F.3d 688 (2nd Cir.1997); Massachusetts Mutual Life Insurance Company v. Ouellette, 159 Vt. 187, 617 A.2d 132 (1992). A close reading of all these cases reflects that the only exception to this general rule is when the legal impediment (license revocation) is based solely on the physical impediment.

| flIn this case, it is clear that Dr. Berry’s license was revoked as a result of his negligent acts in diverting drugs for his own personal use during the performance of his duties as anesthesiologist, and was not a direct consequence of his addiction. Consequently, the legal impediment is not sufficient to invoke the policies coverage. In any event, Dr. Berry has failed to prove that he is disabled under the policy because of the prohibitions imposed by his license revocations.

CONCLUSION

For all of the foregoing reasons, together with some real concern over the potential ramifications and unwanted message to addicted persons that the majority opinion may cause, I strongly dissent from the opinion remanding this matter for further evidence that is neither material nor relevant to the issue before this court.

      . In his brief, the plaintiff also assigns error to the trial court's denial of his previously filed motion for summary judgment by judgment signed on August 21, 2007. The denial of a motion for summary judgment is an interlocutory judgment, which the trial court may change at any time up to final judgment. Although the motion and order for devolutive appeal seeks review of only the October 24, 2007 judgment granting defendant’s motion for summary judgment, we may examine and review the interlocutory ruling on an appeal from a final judgment. Young v. City of Plaquemine, 04-2305 (La.App. 1st Cir. 11/4/05), 927 So.2d 408. Therefore, we consider the correctness of the prior interlocutory ruling, denying plaintiff's motion for summary judgment.

      . The record indicates that Dr. Berry practiced out of the Lakeview Hospital in Coving-ton, Louisiana, for Lakeview Anesthesia Associates from January 1997 through March 2001. In May 2001, he began working through Staff Care, a company that places physicians in temporary positions throughout the country. Staff Care placed Dr. Berry as an anesthesiologist at Kadlec Medical Center in Richland, Washington, where he practiced until November 2002.

      . Plaintiff asserted the amount of past benefits due was $121,485.00 as of June 13, 2007.

      . Plaintiff asserted the present value of future benefits was $1,538,947.00 as of June 13, 2007.

      . Likewise, Dr. Berry, also as mover for summary judgment, bore the burden of establishing the absence of genuine issues of material fact and entitlement to judgment as a matter of law.

      . We note that Goomar, Brumer and Llewellyn are distinguishable because in each of those cases the legal disability occurred prior to the requests for benefits based on a physical disability. Although the insureds in Goomar and Llewellyn may have suffered from an illness prior to the onset of the legal disability, the illness did not become disabling until after that time. By contrast, Dr. Berry had a documented substance abuse problem dating back at least to 2002, began receiving disability benefits in March 2003, and did not sustain the revocation of his medical licenses until 2004 in the state of Washington and until 2005 in Louisiana and Arizona.

      . It is important to note that Paul Revere paid Dr. Berry full disability benefits under both policies for approximately two and on half years, when he was disabled by his addiction, from March 2003 through August 2005, during which time he was afforded all rehabilitation efforts, the aim of which is to return an addict to a rehabilitated state so that he may be able to function as a recovering addict. By all accounts, the record reveals that Dr. Berry has been successfully rehabilitated as a result of these efforts.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Mary TRIPLETT, et al. v. BOARD OF ELEMENTARY AND SECONDARY EDUCATION and the Louisiana Department of Education, Through Paul G. Pastorek, in His Official Capacity as Superintendent of Education, et al.
    No. 2009 CA 0691.
    Court of Appeal of Louisiana, First Circuit.
    July 13, 2009.

      Jonathan C. Augustine and Valarie Briggs Bargas and Tarvald Anthony Smith, Baton Rouge, Louisiana, for Plaintiffs/Appellants Mary B. Triplett, et al.
    Michael H. Rubin, M. Brent Hicks, Jon Ann Giblin and Angelique D. Freel, Assistant Attorney General, Baton Rouge, Louisiana, for Defendant/Appellee the State Board of Elementary and Secondary Education.

      Michael D. Hunt, Jane H. Barney, Baton Rouge, Louisiana, for Defendant/Appellee St. Paul Guardian Insurance Co.
    Kwame I. Asanté and Darryl L. Robertson, Baton Rouge, Louisiana, for Amicus Curiae National Association for the Advancement of Colored People (NAACP)— Baton Rouge Branch.
    Eugene J. Radcliff, Baton Rouge, Louisiana, for Amicus Curiae Former Louisiana House Speaker Pro Tempore Joseph A. Delpit and The Louisiana Black Leadership Assembly.
    Amy L. Maccherone, New Orleans, Louisiana, for Amicus Curiae the Louisiana Association of Educators.
    Alfred Williams, Baton Rouge, Louisiana, for Amicus Curiae East Baton Rouge Federation of Teachers.
    Before KUHN, PETTIGREW, and GAIDRY, JJ.
   GAIDRY, J.

|3Plaintiffs take this appeal from a trial court judgment sustaining a declinatory exception raising the objection of lack of jurisdiction, and a peremptory exception raising the objections of no cause of action and no right of action, and dismissing plaintiffs’ suit, with prejudice. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On February 11, 2009, plaintiffs, Mary B. Triplett, Deborah Ross, Pearl Porter, Edwin W. Lee, and Viki Guillot, filed a petition seeking injunctive and declaratory relief. The Louisiana State Board of Elementary and Secondary Education (BESE), the Louisiana Department of Education (DOE), and the State of Louisiana, through Attorney General James D. Caldwell (State), were named as defendants. According to the petition, in January 2009, BESE approved the recommendation of Paul Pastorek, the Superintendent of DOE, that eight schools be transferred from the control of the East Baton Rouge Parish (EBRP) School Board to the Recovery School District (RSD), effective July 1, 2009. In their suit, plaintiffs sought a preliminary injunction enjoining the transfer of the eight schools “until such time [that] the defendants construct a school facility to comply with governing law and provide an alternative school.” The basis for this demand is plaintiffs’ allegation that BESE and the RSD are in direct violation of La. R.S. 17:416.2 A(l), because the RSD has not established an alternative school for suspended or expelled students. Additionally, plaintiffs sought a permanent injunction enjoining transfer of the schools, as well as a declaratory judgment that La. R.S. 17:1990 AQL) & (2), La. R.S. 17:1990 B(l)(b), and La. R.S. 17:1990 B(4)(a), which provide variously for |4the creation of the RSD, its operation and expenditure of funds, are unconstitutional as applied to plaintiffs.

Plaintiffs subsequently filed an ex parte motion to dismiss the DOE from this suit on the grounds that BESE, rather than the DOE, was the proper party against whom their demands for relief should be asserted. The trial court granted plaintiffs’ motion and dismissed the DOE from these proceedings.

The State, through the Attorney General, filed a peremptory exception of no cause of action asserting it should be dismissed from this suit because, although state law provides for service on the Attorney General when a statute is alleged to be unconstitutional,- no legal basis exists to hold it liable to plaintiffs. In addition, all defendants jointly filed a declinatory exception raising the objection of lack of jurisdiction directed to plaintiffs’ demand for injunctive relief compelling defendants to construct and maintain an alternative school. They also filed a peremptory exception raising the objections of no cause of action, no right of action, and failure to join an indispensable party (the EBRP School Board).

A hearing was held on the exceptions on February 26, 2009. During the hearing, plaintiffs made an oral motion for leave to amend their petition, which the trial court denied. Since there was no objection to the exception of no cause of action filed by the Attorney General, on behalf of the State, the trial court sustained that exception. The court then took the remaining exceptions under advisement.

On March 12, 2009, the trial court issued a written judgment sustaining the exception of no cause of action filed on behalf of the State, through the Attorney General, and dismissed it as a party in this suit. On the |fisame date, the trial court issued a second written judgment that sustained the exception of lack of jurisdiction, the exception of no cause of action, and the exception of no right of action filed by BESE, and dismissed plaintiffs’ suit with prejudice. In view of these rulings, the trial court concluded the exception of failure to join an indispensable party was moot.

Plaintiffs did not appeal the judgment dismissing the State, through the Attorney General. However, they have appealed the judgment sustaining BESE’s exceptions and dismissing this matter, with prejudice. On appeal, plaintiffs raise four assignments of error alleging that the trial court erred in: (1) sustaining BESE’s exceptions without allowing plaintiffs an opportunity to amend their petition; (2) refusing to issue a preliminary injunction; (3) ruling on BESE’s exceptions after concluding it lacked subject matter jurisdiction to adjudicate the same; and (4) sustaining the exception of no right of action.

DEMAND FOR INJUNCTIVE RELIEF

Plaintiffs contend the trial court erred in sustaining BESE’s exceptions of lack of jurisdiction and no cause of action without allowing them an opportunity to amend. They maintain they are entitled under La. C.C.P. arts. 932 and 934 to an opportunity to amend their petition.

Louisiana Revised Statutes 17:416.2 A(l) requires that the governing authority of a school system that suspends or expels a student shall retain supervision over that student using “alternative education programs.” Alleging that the RSD does not have an alternative school, plaintiffs sought injunctive relief in their petition to enjoin the transfer of the eight schools from the EBRP school system to the RSD and compelling defendants “to construct and independently maintain an alternative school, in compliance with LA. REV. STAT. § 17:416.2.” Defendants responded by filing an | f,exception asserting the trial court lacked jurisdiction under La. C.C.P. art. 3601 A to consider injunctive relief compelling construction of an alternative school. This provision states that:

An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; provided, however, that no court shall have jurisdiction to issue, or cause to be issued, any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board, or agency, or any officer, administrator, or head thereof, or any officer of the state of Louisiana in any suit involving the expenditure of public funds under any statute or law of this state to compel the expenditure of state funds when the director of such department, board, or agency or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency.... (Emphasis added.)

Attached to their declinatory exception, defendants submitted affidavits from both the Superintendent of the DOE and the President of BESE stating there were no monies in their current budgets set aside for constructing or maintaining an alternative school. Further, the affidavits certified that an injunction compelling the DOE or BESE to construct and maintain an alternative school, as prayed for in plaintiffs’ petition, would have the effect of creating deficits in their respective budgets. On the basis of these affidavits, the trial court ruled it lacked “jurisdiction on the request for injunctive relief (on the issue of the construction of alternative schools),” and sustained the exception of lack of jurisdiction.

On appeal, plaintiffs do not contest the correctness of the trial court’s ruling. Instead, they assert the trial court erred in sustaining the exception without allowing them an opportunity to amend. They allege they could have amended the petition to pray for compliance with La. R.S. 17:416.2 A(l) in a number of ways that would not have caused budget deficits. At oral argument, plaintiffs’ counsel indicated that, if given an | opportunity to amend, plaintiffs would pray that BESE be compelled to comply with La. R.S. 17:416.2 A(l) by providing alternative education programs, rather than by constructing an alternative school. Plaintiffs maintain they were clearly entitled to an opportunity to amend under La. C.C.P. art. 932.

It is true that La, C.C.P. art. 932 A requires that a party be given an opportunity to amend their petition when the grounds of a declinatory exception can be removed by amendment. However, La. C.C.P. art. 932 B clearly provides that a demand should be dismissed if the grounds of the objection cannot be removed. Thus, in instances where there is no way in which a petition can be amended to provide a court with subject matter jurisdiction over a claim, the trial court is not required to allow an amendment. See Hawthorne v. Couch, 40,162, p. 8 (La. App.2d Cir.9/21/05), 911 So.2d 907, 911-12.

In the instance case, we find no error in the trial court’s refusal to allow plaintiffs an opportunity to amend. Any new alternative education program that the trial court might order BESE to institute by issuing a mandatory injunction undoubtedly would require the expenditure of funds to setup, maintain, and operate the program. The affidavits submitted by BESE indicate there were no monies in the budgets of either the DOE or BESE “for the cost of constructing or maintaining an alternative school.” Accordingly, plaintiffs could not have amended their petition in such a way as to provide the trial court with jurisdiction over plaintiffs’ request for mandatory injunctive relief.

Moreover, even if plaintiffs were able to amend their petition in such a manner as to negate the jurisdictional defect existing under La. C.C.P. art. 3601 A, it would be to no avail, since we can conceive of no way that | Rplaintiffs can state a cause of action against BESE, the only defendant remaining in this suit, for the injunctive relief they seek.

In ruling on an exception of no cause of action, the court must determine whether the law affords any relief to the claimant if he proves the factual allegations in the petition at trial. United Teachers of New Orleans v. State Board of Elementary and Secondary Education, 07-0031, p. 9 (La.App. 1st Cir.3/26/08), 985 So.2d 184,193. The exception is triable on the face of the petition. See La. C.C.P. art. 931. Moreover, for purposes of deciding the exception, all well-pleaded facts in the petition must be accepted as true. United Teachers, 07-0031 at p. 8, 985 So.2d at 192.

If the grounds of the objection of no cause of action can be removed by amendment, the plaintiff should be given an opportunity to amend the petition. However, if the grounds of the objection cannot be so removed, the action should be dismissed. See La. C.C.P. art. 934; United Teachers, 07-0031 at p. 9, 985 So.2d at 193. The decision whether to allow amendment is within the sound discretion of the trial court. Stroscher v. Stroscher, 01-2769, p. 4 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 523.

Under La. R.S. 17:416.2 A(l), suspended or expelled students shall remain under the supervision of the governing authority of the school system taking such action using alternative education programs that are approved by BESE. Thus, the duty to provide alternative education programs is placed on the governing authority of the school system that suspended or expelled the student, with BESE’s duty being only to approve the alternative education programs. The allegations of plaintiffs’ petition relate to students suspended or expelled by the RSD. Louisiana Revised Statutes 17:1990 A(2) provides that the RSD is to be administered by the DOE. Thus, BESE does not have a duty under La. R.S. 17:416.2 A(l) to provide an alternative ^program for students suspended or expelled by the RSD. Therefore, plaintiffs cannot state a cause of action for mandatory injunctive relief against BESE compelling it to provide such a program for students suspended or expelled by the RSD.

The trial court also held that the petition failed to state a cause of action as to plaintiffs’ demand for injunctive relief to enjoin the transfer of the schools until construction of an alternative school, because nothing in La. R.S. 17:416.2 mandated construction or maintenance of an alternative school. The court observed that this provision merely required that suspended or expelled students remain under the supervision of the school system that suspended or expelled them “using alternative education programs.” The court did not allow plaintiffs an opportunity to amend their petition.

Based on our de novo review, we agree that plaintiffs’ petition failed to state a cause of action against BESE on this claim. Plaintiffs’ demand for injunctive relief to enjoin the transfer of the schools until an alternative school is constructed is based on La. R.S. 17:416.2 A(l). However, as noted by the trial court, this provision does not require a school system to construct an alternative school. Therefore, the petition sets forth no legal basis to enjoin the transfer.

Moreover, we can envision no amendment by which plaintiffs can state a cause of action against BESE, based on the RSD’s alleged noncompliance with La. R.S. 17:416.2 A(l), which would entitle plaintiffs to enjoin the transfer of the schools. Pursuant to La. R.S. 17:10.5 and 17:10.7, BESE is granted authority to transfer schools to the RSD. Furthermore, as we stated previously, BESE does not have a statutory duty under La. R.S. 17:416.2 A(l) to provide alternative school programs for students suspended | inor expelled by the RSD. We find no abuse of the trial court’s sound discretion in its refusal to allow plaintiffs an opportunity to amend their petition, since it would have been futile to do so

For these reasons, the trial court properly sustained the exceptions of lack of jurisdiction and no cause of action as to plaintiffs’ demand for injunctive relief, and did not abuse its discretion in refusing to allow an amendment of the petition.

DEMAND FOR DECLARATORY JUDGMENT

In their petition, plaintiffs also sought a declaratory judgment declaring three sections of La. R.S. 17:1990 to be unconstitutional, as applied. The trial court held the petition failed to state a cause of action for declaratory judgment as to any of these three claims.

In Louisiana, it is a well-settled principle that statutes are presumed to be constitutional unless fundamental rights, privileges and immunities are involved. World Trade Center Taxing District v. All Taxpayers, Property Owners, 05-0374, p. 11 (La.6/29/05), 908 So.2d 623, 632. Moreover, unlike the federal constitution, the provisions of our state constitution are not grants of power, but rather are limitations on the otherwise plenary power of the legislature. The legislature may enact any statute that the state constitution does not prohibit. World Trade Center, 05-0374 at p. 11, 908 So.2d at 632.

| „Accordingly, a party seeking a declaration of unconstitutionality must point to a particular constitutional provision that prohibits the legislature from enacting the statute at issue. It must be shown clearly and convincingly that it was the intent of the constitutional provision to deny the legislature the power to enact the statute in question. When considering a constitutional challenge, the question before the court is whether the constitution limits the legislature, either expressly or impliedly, from enacting that statute in question. World Trade Center, 05-0374 at p. 12, 908 So.2d at 632.

The first constitutional claim plaintiffs raise in the petition is that La. R.S. 17:1990 B(l)(b) is unconstitutional, as applied. Specifically, plaintiffs allege the RSD’s receipt and retention of an annual Minimum Foundation Program (MFP) allocation that would otherwise be allocated to the EBRP school system, combined with the RSD’s failure to operate an alternative school, violates the requirement of La. Const. Art. VIII, § 13(B) that the EBRP school system receive equitable funding for its students. Plaintiffs further allege an inequity in funding occurs because the DOE has not established “a reimbursement system for the MFP dollars EBR otherwise [loses] to the RSD and does not receive the requisite refund when students leave RSD-operated schools and attend EBR-operated schools.... ” Essentially, plaintiffs complain that the funds do not follow if a student begins the school year in a RSD school, but later transfers to a school in the EBRP school system.

Louisiana Revised Statutes 17:1990 B(l)(b), which deals with the expenditure of funds received by the RSD, provides that:

The expenditure of funds shall be subject to the requirements of the approved Minimum Foundation Program formula that |i2apply to a city, parish, or other local public school system and shall be subject to audit in the same manner.

Louisiana Constitution Article VIII, § 13(B), the section of the constitution that plaintiffs allege La. R.S. 17:1990 B(l)(b) violates, provides that:

The State Board of Elementary and Secondary Education, or its successor, shall annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems.... The legislature shall annually appropriate funds sufficient to fully fund the current cost to the state of such a program as determined by applying the approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools.... The funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education, or its successor, and approved by the legislature prior to making the appropriation.... (Emphasis added.)

Our review of the petition reveals it fails to state a cause of action to have La. R.S. 17:1990 B(l)(b) declared unconstitutional. This statutory provision merely provides that the RSD’s expenditure of MFP funds shall be subject to the same requirements applied to local school systems. Moreover, the receipt by the RSD of MFP funds that would otherwise go to the local school board under Article VIII, § 13(B) is authorized by La. Const. Art. VIII, § 3(A), which provides, in pertinent part, that:

The State Board of Elementary and Secondary Education ... shall have the power to supervise, manage, and operate or provide for the supervision, management, and operation of a public elementary or secondary school which has been determined to be failing, including the power to receive, control, and expend state funds appropriated and allocated pursuant to Section 13(B) of this Article, any local contribution required by Section 13 of this Article, and any other local revenue available to a school board with responsibility for a school determined to be failing in amounts that are calculated based on the number of students in attendance in such a school, all in the manner provided by and in accordance with law. (Emphasis added.)

_JjjThis provision grants the right to BESE to receive and expend MFP funds and other local revenues on behalf of failing schools that would otherwise go to the local school system. Further, once BESE has transferred a failing school to the RSD to supervise, manage, and operate there is no inequity in the RSD receiving those funds for that purpose.

We likewise find no merit in the allegation that La. R.S. 17:1990 B(1)(b) is unconstitutional because the DOE allegedly has not set up a system to make funding adjustments in situations where a student leaves a RSD school and begins attending a EBRP school. Further examination of this statute reveals that it delineates in a separate section that the amount to be allocated or transferred to the RSD (including MFP funds and local revenues) shall be estimated or calculated by the DOE based on the most recent projected student counts. This provision further provides that the “[ajllocations to be transferred shall be adjusted during the year as necessary to reflect actual student counts ....” See La. R.S. 17:1990 C(2)(c).

Therefore, the statute challenged by plaintiffs specifically provides a mechanism to address the situation that plaintiffs complain occurs when students leave the RSD and return to the EBRP school system. It places the responsibility for making such adjustments on the DOE. Thus, even accepting as true plaintiffs’ allegation that the DOE has failed to discharge this duty, this fact would not render La. R.S. 17:1990 B(l)(b) unconstitutional. The situation plaintiffs complain of results, not from La. R.S. 17:1990 being unconstitutional, but from DOE’s alleged non-compliance with its statutory duty to make necessary adjustments based on actual student counts. We note that, although the DOE originally was a named defendant, it was dismissed from this suit on plaintiffs’ motion.

114Plaintiffs’ second constitutional claim is that La. R.S. 17:1990 B(4)(a), which grants the RSD the use of the school buildings and facilities transferred to its control while requiring the EBRP school system to be responsible for capital maintenance, violates La. Const. Art. VII, § 14(A), which prohibits the donation or loan of property belonging to the state or its political subdivision. In the petition, plaintiffs allege La. R.S. 17:1990 B(4)(a) requires that the EBRP school system “donate and/or loan them property, both immovable (publieally owned school buildings) and movable (their continually paid ad valorem property tax dollars) to another governmental entity, which in turn give the things of value to private companies that hold and/or operate ... charters at the respective schools.” (Footnote omitted.) They further allege that, after four EBRP school system schools were transferred to the RSD in 2008, “the Department [of Education] issued charters to privately owned third-parties to manage the day-to-day operation of the four schools, pursuant to which, the third-parties have unfettered use of and access to the buildings, and Petitioners’ ad valorem and sales tax dollars.... ”

Louisiana Constitution Article VII, § 14(A) provides that:

Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. (Emphasis added.)

Louisiana Revised Statutes 17:1990 B(4)(a) provides that:

The school district shall have the right to use any school building and all facilities and property otherwise part of the school and recognized as part of the facilities or assets of the school prior to its placement in the school district.... Such use shall be unrestricted, except that the school district shall be responsible for and obligated to provide for routine maintenance and repair such that the facilities and property are maintained in as good an order as when the right of use was acquired by the district. There shall be no requirement for the | j r,district to provide for the type of extensive repair to buildings or facilities that would be considered to be a capital expense. Such extensive repairs shall be provided by the governing authority of the city, parish, or other local public school system or other public entity which is responsible for the facility.

The trial court found that the petition did not state a cause of action with respect to this claim, noting that Article VII, § 14(A) begins with the language, “Except as otherwise provided.” The trial court concluded that La. Const. Art. VIII, § 3(A) constitutes such an exception in that it grants BESE the power to manage and operate failing schools or to provide for the management and operations of those schools. Based on our de novo examination of the petition, we agree that it fails to state a cause of action for a declaratory judgment declaring La. R.S. 17:1990 B(4)(a) to be unconstitutional, as applied.

Louisiana Constitution Article VIII, § 3(A) authorizes BESE to supervise, manage and operate failing schools or to provide for their supervision, management, and operation. In instances where BESE has transferred failing schools to the RSD for this purpose, La. R.S. 17:1990 B(4)(a) does not transfer ownership of the school buildings, but merely grants the RSD the right to use the school buildings in order to carry out its charge to supervise, manage and operate those schools. It would be impossible for the RSD to operate the schools without the right to use the school buildings. Thus, allowing the RSD the use of the school buildings is a necessary component in implementing the authority granted to BESE in Article VIII, § 3(A) to provide for the supervision, management, and operation of failing schools. As such, we believe the RSD’s use of the school buildings is authorized by this constitutional provision and provides an exception to the general prohibition against the loan of public property, 11(ieven assuming for the sake of argument that the use of the school buildings could be considered a loan within the contemplation of Article VII, § 14(A).

On the same grounds, we reject plaintiffs’ contention that the use of EBRP ad valorem property taxes to operate the RSD schools constitutes a violation of Article VTI, § 14(A). According to Article VIII, § 3(A), BESE’s power to manage and operate a failing school includes the “power to receive, control, and expend state funds appropriated and allocated pursuant to Section 13(B) of this Article, any local contribution required by Section 13 of this Article, and any other local revenue available to a school board ... in amounts that are calculated based on the number of students in attendance in such a school.” Thus, this constitutional provision specifically authorizes the use of the local funds to operate the RSD schools.

Additionally, we find no merit in plaintiffs’ contention that a conflict exists between the provisions of Article VII, § 14(A) and Article VIII, § 3(A) to the extent that the latter article authorizes BESE to receive local ad valorem property taxes for the supervision, management, and operation of failing schools. The provisions of these two articles are not inconsistent. The general prohibition provided in Article VTI, § 14(A) against donations and loans of public property is qualified by the language “[e]xcept as otherwise provided by this constitution.” Thus, these two constructional provisions are reconcilable by their plain terms.

Plaintiffs’ final constitutional claim is that La. R.S. 17:1990 A(l) & (2), which relate to the creation of the RSD, are unconstitutional because the | ^legislature violated the express limitations of La. Const. Art. VTII, § 9(A) in creating a state-wide “school board” or “school district.”

Louisiana Revised Statutes 17:1990(A) provides that:

(1) The Recovery School District, referred to as the “school district” or the “district”, is hereby established to provide an appropriate education for children attending any public elementary or secondary school operated under the jurisdiction and direction of any city, parish, or other local public school board or any other public entity, referred to in this Section as “the prior system”, which has been transferred to its jurisdiction pursuant to R.S. 17:10.5 or 10.7.
(2) The school district shall be administered by the state Department of Education, subject to the approval of the State Board of Elementary and Secondary Education, referred to in this Section as “the state board”.

Article VIII, § 9(A) provides that “[t]he legislature shall create parish school boards and provide for the election of their members.”

In their petition, plaintiffs assert that, “notwithstanding the semantic difference between ‘district’ and ‘board,’ ” the RSD “operates and functions as a state-wide school board.” It further alleges that “the RSD’s actions are an unconstitutional usurpation of local school boards’ control and their tax dollars because the entire creation of the RSD exceeded the express and limited scope of control and/or authority the state Constitution gives the legislature to create entities that have governing and/or managerial control over local public schools.”

Even accepting as true for purposes of BESE’s exception plaintiffs’ allegation that the RSD operates and functions as a statewide school board, the petition fails to state a cause of action as to this claim. As previously noted, the legislature has the power to pass any legislation not prohibited by the constitution. World Trade Center, 05-0374 at p. 11, 908 So.2d at 632. In this case, while Article VIII, § 9(A) requires that the legislature create parish school boards, it does not prohibit the legislature from creating other 11sschooI boards. Since the constitution did not prohibit it, the creation of the RSD was within the plenary power of the legislature. Therefore, plaintiffs’ petition fails to state a cause of action for declaratory judgment declaring La. R.S. 17:1990 A(l) & (2) to be unconstitutional, as applied.

As previously mentioned, an action should be dismissed under La. C.C.P. art. 934, when the grounds of an objection raised by a preemptory exception cannot be removed by amendment of the petition. In this case, having determined from our de novo review that the statutes challenged by plaintiffs are not unconstitutional, as applied, there is no manner in which plaintiffs could amend the petition to state a cause of action for declaratory judgment declaring them to be unconstitutional. Accordingly, the trial court properly dismissed this suit.

Finally, in light of our conclusion that the trial court properly sustained the exceptions of lack of jurisdiction and no cause of action, we pretermit the issue of whether plaintiffs had a right of action to bring this suit.

CONCLUSION

For the reasons assigned, the judgment of the trial court is affirmed. Plaintiffs are to pay all costs of this appeal.

AFFIRMED.

PETTIGREW, J., Concurs.

      . The eight schools are: Capitol Elementary, Capitol Middle, Dalton Elementary, Banks Elementary, Park Elementary, Lanier Elementary, Crestworth Middle, and Kenilworth Middle.

      . See La. C.C.P. art. 1880.

      . Plaintiffs also complain that "[ajfter ruling it did not have subject matter jurisdiction, the Trial Court proceeded to address the merits. ..." However, an examination of the record reveals that plaintiffs have misconstrued the trial court’s ruling. The exception of lack of jurisdiction filed by BESE was not directed at the entire case, but solely at plaintiffs’ request for an injunction compelling defen-dams "to construct and independently maintain an alternative school." Further, the written ruling issued by the trial court clearly indicates it did not rule that it totally lacked jurisdiction in this case. Rather, the trial courts’ ruling was limited to finding that it lacked jurisdiction under La. C.C.P. art. 3601 to issue a mandatory injunction compelling BESE to construct an alternative school.

      . We express no opinion as to whether the use of the school buildings by the RSD, as well as the receipt of ad valorem property taxes, actually constitutes a "donation” or “loan” of property within the contemplation of La. Const. Art. VII, § 14(A). It is unnecessary for us to reach this issue, in view of our conclusion that La. Const. Art. VIII, § 3(A) would in any event provide an exception to the prohibition of La. Const. Art. VII, § 14(A).


text:
    STATE of Louisiana v. Rocky Lee DANOS.
    No. 2008 KA 2085.
    Court of Appeal of Louisiana, First Circuit.
    July 22, 2009.
    Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, Louisiana, for Appellee, State of Louisiana.
    John T. Bourgeois, Thibodaux, Louisiana, for Defendant/Appellant, Rocky Lee Danos.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|2Pefendant, Rocky Lee Danos, was charged by bill of information with driving while intoxicated (DWI), fourth offense, a violation of La. R.S. 14:98(E). Pursuant to a plea agreement, defendant entered a plea of guilty, but reserved his right to appeal the trial court’s order of restitution to the victims. See State v. Crosby, 338 So.2d 584 (La.1976). In accordance with the plea agreement, the trial court sentenced defendant to serve twelve years at hard labor, sixty days of that being without benefit of probation, parole, or suspension of sentence. The trial court also imposed a fine of $5,000.00 and ordered defendant to pay restitution to the victims in the amount of $20,000.00. The trial court ordered defendant’s sentence for DWI, fourth offense, to be served consecutively to defendant’s sentence for his conviction for DWI, third offense.

Defendant appeals, citing the following as error:

1. Can the trial court order restitution when there is no evidence as to the amount of restitution in the proceedings?
2. Is the imposition of restitution on top of a large fíne and long, hard labor sentence cruel and unusual punishment?

Because we find the first assignment of error requires a full evidentiary hearing on the amount of restitution, we vacate the trial court’s order of restitution and pre-termit discussion of defendant’s remaining assignment of error. Defendant’s conviction and sentence are otherwise affirmed.

JjFACTS

On August 18, 2006, defendant was involved in a vehicular accident on Louisiana Highway 56 in Chauvin. Defendant had moved into the oncoming lane of traffic while passing a vehicle in his lane and collided head-on with a vehicle driven by Allie Authement. A four-year old child, Joshua Miller, was a passenger in Authement’s vehicle.

Defendant was partially ejected through the windshield of his vehicle. After being extricated from the wreckage, defendant was transported to Chaubert Medical Center. A blood sample collected from defendant subsequently revealed his blood alcohol level was .19 grams percent.

RESTITUTION

In defendant’s first assignment of error, he contends the trial court erred in ordering restitution when there was no evidence as to the amount of restitution in the proceedings.

During the sentencing, the prosecutor referenced that Miller spent three days in the hospital following the accident for observation and that Authement sustained a neck injury and a shattered left wrist for which she underwent surgery and physical therapy. The prosecutor further stated that Authement would soon undergo a series of injections for her neck injury and that the doctors would “take it from there” to see if surgery would be necessary in the future.

In ordering restitution, the trial court stated, “The Court understands that the medical bills that have been incurred by the victims and the expected treatment will exceed $100,000.00.”

Prior to January 1, 2000, the collection of restitution from a defendant had to be accomplished in the criminal courts as a condition of probation pursuant to either La.Code Crim. P. art. 895(A)(7) or La. Code Crim. P. art. |4895.1(A), which meant that at least some portion of the sentence itself was suspended. However, with the enactment of La.Code Crim. P. art. 883.2 (effective January 1, 2000), restitution can now be implemented as part of the sentence itself without need of probationary conditions.

Louisiana Code of Criminal Procedure article 883.2(A) provides in pertinent part:

In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as part of any sentence that the court shall impose.

Sources of information relied upon by the sentencing court are varied and may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrest as well as conviction records. Because the scope of information available to the court for sentencing purposes is so broad, the defendant has a due process right to rebut prejudicially false or misleading information that may affect the sentencing determination. State v. Myles, 94-0217, pp. 2-3 (La.6/3/94), 638 So.2d 218, 219 (per curiam).

In the present case, there was no testimony or documentary evidence offered by the State at the sentencing hearing to support the trial court’s assertion that the victim’s costs and expected treatment would exceed $100,000.00. We note that Authement was present at the hearing but did not testify.

While we recognize there is a broad range of information available to a sentencing court, we cannot ignore the mandatory nature of La.Code Crim. P. art. 883.2 nor the defendant’s due process right to rebut false or misleading information. Moreover, we note that although defendant pled Ifiguilty to the instant offense, he specifically reserved the right to appeal the trial court’s order of restitution to the victims. Under these circumstances and because there was no evidence introduced on which to base the trial court’s award of restitution, we remand this matter to the trial court in order for the trial court to conduct an evidentiary hearing on the amount of restitution. See State v. Walder, 2007-0198 (La.10/5/07), 965 So.2d 865 (per curiam). See also La.Code Crim. P. art. 881.4.

CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART, RESTITUTION ORDER VACATED, AND CASE REMANDED FOR EVIDENTIA-RY HEARING.

KUHN, J., concurs with reasons.

GUIDRY, J., dissents and assigns reasons.

KUHN, J.,

concurring.

_JjI agree with the result to remand as a justifiable measure to insure that the record is complete for consideration of defendant’s excessive sentence claim. But I point out that defendant neither objected to, nor assigned as error in this appeal, the introduction of any “misleading or false information.” Clearly, defendant’s complaint is solely that the sentence was excessive because of the amount assessed against him, an issue that has not been addressed by our disposition of this appeal. A more accurate way of addressing this issue is to note that excessiveness cannot be considered unless there is evidence placed in the record about the amount of restitution owed and, if defendant wishes, his ability to pay such restitution. To hold that defendant has a “due process right to rebut false or misleading information” as justification for the remand is unnecessary. This holding implies that the moment of sentence is adversarial and suggests that there is no need for a defendant to object to information as false or misleading because on review the courts of appeal will make that determination in order to ensure no denial of a defendant’s due process rights.

In cases such as this one where defendant did not complain when mandatory restitution was imposed, and did not object that any information provided was “false or misleading” insofar as the order of restitution, there is no need to review the record, as suggested by the plurality opinion, to ascertain whether “defendant’s due process right to rebut false or misleading information” has been violated. | gOtherwise, every time the trial court relies on a presentence investigation report (PSI), for example, in fashioning its sentence, the plurality’s holding suggests that this court has a duty to review “whether defendant’s due process right to rebut false or misleading information” was violated by the trial court’s reliance on the PSI. I agree that an evidentiary hearing should be held to address defendant’s ex-cessiveness claim and, accordingly, concur in the remand.

GUIDRY, J.,

dissenting.

| Relying on the per curiam opinion, State v. Walder, 07-0198 (La.10/5/07), 965 So.2d 865, the majority grants the State what only could be described as a second bite at the apple by virtue of remanding this matter to the trial court to allow the State to present evidence to support the defendant being additionally sentenced under La. C. Cr. P. art. 883.2 While it is observed that in State v. Sandifer, 359 So.2d 990 (La.1978), the Louisiana Supreme Court vacated the order of restitution and remanded the matter to the trial court to conduct an evidentiary hearing on the proper amount of restitution owed, in that case the Court expressly noted that because the conditions of probation are subject to modification at any time pursuant to La. C. Cr. P. art. 896, such action was warranted. Sandifer, 359 So.2d at 992-93. As the order of restitution in the present matter is not a “condition of probation,” it is not subject to modification pursuant to La. C. Cr. P. art. 896.

The majority points out that there was no testimony or documentary evidence offered by the State at the sentencing hearing to support the trial court’s $20,000 restitution award and even goes on to point out that the victim was present at the hearing, but did not testify. I therefore believe that to remand this matter to |2the trial court to allow the prosecution an additional opportunity present evidence on the issue of restitution is improper. Accordingly, I respectfully dissent.

      . Immediately prior to defendant entering his guilty plea in the present case, defendant entered a guilty plea to DWI, third offense, in State v. Danos, docket number 477,220, Thirty-Second Judicial District Court, Parish of Terrebonne. The trial court sentenced defendant to serve three years at hard labor, with thirty days to be served without benefit of probation, parole, or suspension of sentence, and to pay a fine of $2,000.00. Defendant acknowledged an August 23, 2002 conviction for DWI, first offense, in docket number 02-695-01-02, Houma City Court, and a February 10, 2004 conviction for DWI, second offense, in docket number 388,543, Seventeenth Judicial District Court, Parish of Lafourche.

      . We note that the authorization for restitution in that matter was based on La. R.S. 14:102.2(D), unlike the codal authority at issue in the present case, La.Code Crim. P. art. 883.2(A).