text:
    John THIBODEAUX and Amy Thibodeaux, Individually and on Behalf of Emily Thibodeaux and Gabrielle Thibodeaux v. GULFGATE CONSTRUCTION, LLC, et al.
    17-495
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017

      Melvin A. Eiden, Rabalais & Hebert, 701 Robley Drive, Suite 210, Lafayette, Louisiana 70503, (337) 981-0309, Counsel for Defendant/Appellant: J. M. Drilling LLC
    Max J. Cohen-, Melanie Lockett Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, Louisiana 70139-3600, (504) 581-2450, Counsel for Defendant/Appellee: Water & Wastewater Utilities, Inc.
    Janice M. Reeves, Maride & Associates, III United Plaza, Suite 350, 8545 United Plaza Boulevard, Baton Rouge, Louisiana 70809, (225) 924-9585, Counsel for Defen-danVAppellee; - Gulfgate Construction, LLC
    Max Michael Menard, Attorney at Law, 200 Church Street, Post Office Box 1196, Youngsville, Louisiana 70592, (337) 857-6123, Counsel for' Plaintiffs/Appellees: John Thibodeaux, Amy Thibodeaux-, Gabrielle Thibodeaux, Emily Thibodeaux
    Edward Taulbee, Attorney at Law, Post Office. Box 2038, Lafayette, Louisiana 70502-2038, (337) 269-5005, Counsel for Plaintiffs/Appellees: John Thibodeaux, Amy Thibodeaux, Gabrielle Thibodeaux, Emily Thibodeaux
    Pierre M. Legrand, Marshall G. Weaver, Legrand Law Firm, 3939 North Causeway Boulevard, Suite 204, Metairie, Louisiana 70002, (504) 304-9499, Counsel for Interve-nor/Appellee: BellSouth Telecommunications, LLC
    Court composed of Ulysses Gene , Thibodeaux, Chief Judge, Phyllis M. - Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge.

|Defendant/Appellant, J. M- Drilling LLC (J. M. Drilling), appeals the trial court’s granting of a motion for summary judgment in favor of Defendant/Appellee, Gulfgate Construction, , LLC (Gulfgate Construction). For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

This negligence matter arose on June 9, 2015, when Plaintiff, John Thibodeaux, injured his right leg while splicing fiber optic cable on behalf of his employer, American Telephone & Telegraph (AT & T), at 114 Meadow Gate Drive in the Sawgrass subdivision in Lafayette, Louisiana. Thibo-deaux had to access hand holes, which are rectangular, underground vaults where fiber optic cables come together and are spliced. The two hand holes at issue were equipped with covers, i.e., lids, which rested on top of the ground. They were located near a rectangular, pre-cast slab which held an AT & T cabinet. On the day of his accident, Thibodeaux lifted a hand hole cover and placed it by the AT & T cabinet when the ground beneath him gave way, causing his right leg to fall into a hole, sustaining injury.

Prior to Thibodeaux’s accident, Gulfgate Construction and J. M. Drilling performed work on the property pursuant to separate contracts with AT & T. Gulfgate Construction’s job, which was the FI part of the project, consisted of preparing a pre-cast slab, installing a cabinet on top of the precast slab, digging two hand holes, and feeding fiber optic cable into hand hole number two. After Gulfgate Construction finished its job, J. M. Drilling performed the F2 part of the project, which consisted of installing fiber optic lines by accessing the hand holes and feeding the cable out to the rest of the subdivision.

|gIt is alleged that during operations on thé property, Gulfgate Construction and/or J. M. Drilling struck and damaged an underground sewer force main line. The main line purportedly began leaking and caused a washout under the pre-cast slab upon which the AT & T cabinet was situated, ultimately forming the hole into which Thi-bodeaux fell. The main line, which ran from a sewer lift station on the property to the street, belonged to Water & Wastewa-ter Utilities, Inc. (Wastewater), the owner and operator of the lift station. Gulfgate Construction repaired Wastewater’s broken main line after Thibodeaux’s accident. Wastewater had not marked its main line prior to the commencement of work performed by Gulfgate Construction and J. M. Drilling. The hand holes had to be repositioned as a result of the existence of the underground main line.

On August 24, 2015, Thibodeaux and his wife, Amy, individually and on behalf of their minor daughters, Gabrielle and Emily, filed suit against Gulfgate Construction, Milton Water System, Inc., and Wastewa-ter. Wastewater is the subject of a separate appeal in this court in Docket Number 17-494. Milton Water System, which has been dismissed, is not the subject of either appeal. On October 8, 2015, Thibo-deaux amended his lawsuit, adding J. M. Drilling as a defendant.

On December 20, 2016, Gulfgate Construction filed a Motion for Summary Judgment. It was granted for reasons cited in open court by the trial court following a hearing that occurred on January 30, 2017: On that same day, the trial court signed a written judgment dismissing Gulf-gate Construction from the matter based upon its finding that “there is no genuine issue of material fact that [Gulfgate Construction] is not liable for the damages sued upon.” J. M. Drilling appealed.

On appeal, J. M. Drilling alleges the following assignments of error:

1. The trial court erred in granting Gulfgate’s Motion for Summary Judgment as it should have left for the jury to decide whether the placement of the hand hole too close to the [AT & T] cabinet was a concurrent, comparative fault, causal factor to the injury suffered by Thibodeaux.
2. The trial court erred in granting Gulfgate’s Motion for Summary Judgment since questions of negligence and comparative fault are generally inappropriate for disposition by summary judgment.

We further note that Plaintiffs/Appel-lees, the Thibodeauxs, filed an appellate brief adopting all of the facts, law, and arguments asserted by J. M. Drilling. In-tervenor/Appellee, BellSouth Telecommunications, LLC, also filed an appellate brief adopting all of the facts, law, and arguments asserted by the Thibodeauxs and J. M. Drilling.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Greemon v. City of Bossier City, 10-2828, 11-89, p. 6 (La. 7/1/11), 65 So.3d 1263, 1267. A summary judgment “shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(A)(3). “The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.” La.Code Civ.P. art. 966(A)(4). “The burden of proof rests with the mover.” La.Code Civ.P. art. 966(D)(1). If the mover will not bear the burden of proof at trial on the matter at issue, however, his burden on the motion for summary judgment “does not require him to negate all essential elements of the) 4 adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. Specifically, “[t]he burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id.

DISCUSSION

I. First Assignment of Error:

In its first assignment of error, J. M. Drilling contends the. trial court erred in granting Gulfgate Construction’s Motion for Summary Judgment as it should have been left for the jury to decide whether the placement of the hand hole too close to the cabinet was a concurrent, comparative fault, causal factor to the injury suffered by Thibodeaux.

In opposition, Gulfgate Construction contends J. M. Drilling failed to prove that Gulfgate Construction’s actions were a cause-in-fact of Thibodeaux’s injuries. It asserts that J. M. Drilling only argued hypothetical arguments.

“Louisiana courts use a duty-risk analysis in negligence cases to determine whether liability exists under the facts of a particular case.” Cormier v. Albear, 99-1206, p. 6 (La.App. 3 Cir. 2/2/00), 758 So.2d 250, 254. Under this analysis, a plaintiff is required to prove five separate elements:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages.

Christy v. McCalla, 11-366, pp. 8-9 (La. 12/6/11), 79 So.3d 293, 299 (citing Pinsonneault v. Merchs. & Farmers Bank & Trust Co., 01-2217, p. 6 (La. 4/3/02), 816 So.2d 270, 275-76). “The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law.” Hanks v. Entergy Corp., 06-477, p. 21 (La. 12/18/06), 944 So.2d 564, 579. “Whether the defendant breached that duty and whether that breach was a cause in fact of plaintiffs injuries are factual questions to be determined by the factfinder.” Id. at 580. An appellate court may not set aside a trial court’s findings of fact in the absence of manifest- error or unless it is clearly wrong. Id. “[W]here there is conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and'inferences are as reasonable.” Id.

In this case, our inquiry is whether the evidence supports a finding that Gulfgate Construction’s actions were a cause-in-fact of Thibodeaux’s injury. Thibodeaux’s deposition -testimony,- which was offered 'into evidence at the hearing on the Motion-for Summary Judgment, reveals that he had to.access the inside of two hand hole boxes by sliding off the heavy covers. According to Thibodeaux’s testimony, although he was able to slide the cover off of hand hole two, he had to lift the cover off of hand hole one because it was positioned too close to the cabinet. Thibodeaux explained that, as he lifted the cover to hand hole one, he fell into a hole which had formed under his right leg, sustaining his injury. Thibodeaux opined that hand hole one was improperly placed because it was within three feet of, rather than three feet away from, the AT & T cabinet.

The two hand holes were previously dug by Gulfgate Construction, according to the deposition testimony taken from its representative and construction supervisor, Kelly Vice. Vice testified that on January 20 and 21, 2015, John Smith, Gulfgate Construction’s foreman, was excavating and digging hand| R holes on the property when he discovered and unearthed an unmarked, two-inch, polyvinyl chloride (PVC) pipe. According to Vice, Gulfgate Construction was initially unaware that the pipe was actually the main line at issue in this matter. He explained that the discovery of the pipe prevented Gulfgate Construction from placing the hand holes in its original location in accordance with AT & T specifications. Vice testified that AT & T specifications provided that hand holes' were to -be placed twelve inches from the cabinet. Vice explained that after Smith called him and informed him of the pipe’s discovery, he went to the property where he called AT & T’s engineer, John Guidry. Vice noted that after he explained the issue to Guidry, he obtained an oral variance from Guidry, instructing him to find a good spot to place the hand holes. Vice testified that he subsequently moved one of the hand, holes closer to, and less than twelve inches from, the pre-cast slab which housed the AT & T box. Vice agreed that moving the hand hole closer, to the pre-cast slab made it harder to slide open the cover. Vice indicated that he moved another hand hole closer to the street. Vice testified that Gulfgate Construction performed additional work on the property around February 25 or 26, 2015, when another employee, Harold Broussard, discovered a broken piece of white, two-inch pipe lying on the ground.

Vice testified that after Thibodeaux’s accident, Smith investigated, and repaired the hole wherein Thibodeaux sustained injury. According to Vice, Smith’s-investigation revealed that the hole formed was the result of a washout, which occurred under the pre-cast slab upon which the cabinet was situated. Vice testified that a washout occurs when an underground leak causes the dirt to open up. He revealed that Smith also discovered a two-inch, PVC pipe had pulled out of its sleeve, resulting in an opening between the pipes underneath the pre-cast slab. 17Vice testified that Smith repaired the broken, underground pipe by using an existing, piece of a two-inch pipe that was lying above ground. This existing piece of two-inch pipe, according to Vice, was the same two-inch pipe that had been previously discovered by Broussard on February 25 or 26, 2015. Vice noted that Gulfgate Construction did not retrieve the discarded, broken, white pipe until after suit was filed. Vice testified that Gulfgate Construction did not install the original underground pipe, nor did he know who installed it. Vice further noted that he told one of its employees about the existence of the unmarked pipe so that caution could be used to prevent boring into it when working in that area.

Broussard’s deposition testimony reveals that he was in charge of placing fiber optics into the right side of hand hole two. Broussard explained that prior to beginning the project, he conducted a pre-in-spection of the property. Broussard explained that during his pre-inspection, he spoke to the main bid contractor, who was present on the property and had begun boring and excavating. Broussard noted that the contractor was boring blind between AT & T equipment and the roadway in an area containing underground pipes. He explained that boring blind is dangerous because underground pipes can get “cut.”. Although Broussard was unable to remember the main bid contractor’s name, he testified that Gulfgate Construction was not the main bid contractor. Brous-sard testified that when he returned two days later, the area where the main bid contractor had been boring was dug up and contained a big patch of dirt. Brous-sard revealed that the dirt patch was not disturbed during his pre-inspectio'n two days earlier. ,He also noticed! s a broken piece of a white, two-inch pipe located next to the dug-up dirt which he had not seen during his pre-inspection. Broussard further revealed that he had known of the existence of an underground, two-inch pipe even though it was not marked, because he had been warned by his boss “to be careful.”

Smith, in his deposition testimony, also confirmed the discovery of the underground, two-inch pipe. Smith explained that he and Adam Romero, another Gulf-gate Construction employee, were digging hand holes when they uncovered the pipe. Romero’s deposition testimony supports Smith’s deposition testimony and confirms that they called their supervisor, Vice, upon the discovery of the pipe. Smith testified that the discovery of the pipe caused him to place the hand holes a little wider apart to prevent hitting the pipe. He testified that hand hole one was' moved closer to the pre-cast slab upon which the cabinet was situated. Smith noted that hand hole two was moved closer to the street. Smith agreed that placing a hand hole box at least twelve inches from the pre-cast slab can give a person room to slide the heavy hand hole cover away from the box. Smith indicated that regardless of whether the hand hqle cover at issue was located twelve or six inches away, Thibodeaux would have been unable to slide the cover off because it measured thirty by sixty inches, Smith’s testimony supports Vice’s testimony with respect to the cause of the hole into which Thibodeaux fell. Smith noted that this newly formed hole was not the result of the two hand holes he previously dug because he had tamped down the earth along the sides of the two hand hole boxes.

Other deposition testimony submitted at the hearing indicates that contractors had latitude concerning where to put their utility lines in the easement. This is evident from the deposition testimony of Walter St. Jude Comeaux, III, of Comeaux Engineering & Consulting, who prepared the construction drawings foi1fl the utility line on the property in question. In that regard, the following colloquy occurred:

Q All Right. Did your construction draw- . ings show where the various utilities easements were to be specifically located on 114 Meadow Gate?
A No. We do show ... generally speaking, where all the utilities are going to be placed. Uh, but it’s a ,.. typical detail and ... it’s just a drawing showing where everything is kind of, sort of, supposed to be.

Comeaux revealed the contract drawings do not designate specific areas for placement of utilities within the AT & T servitude easement. Comeaux stated: “[I]n the drawings there’s a typical detail that shows essentially how they would like to see all the utilities placed within ... the road right-of-way and the easements, but ... that’s kind of just a general guideline.”

In this case, a construction drawing prepared for AT & T regarding the property was submitted into evidence at the hearing. It reveals that, as a general guideline, the two hand holes should be twelve inches from the cabinet. As Vice and Smith explained through their deposition testimonies, however, the two hand holes had to be moved in order to prevent hitting the underground pipe. Vice and Smith agreed that one hand hole was moved towards the pre-cast slab and the other hand hole was moved toward the street. All of the evidence and testimony in this matter, however, fails to indicate that the placement of the hand holes was a cause-in-fact of Thi-bodeaux’s injury. Rather, it shows that Gulfgate Construction prepared its work in accordance with AT & T specifications. Its decision to move the hand holes resulted from the discovery of an underground, unmarked, two-inch white PVC pipe. The hand holes were repositioned pursuant to an oral variance obtained from AT & T’s engineer. As the testimony indicated, contractors, such a^in AT & T, have latitude in deciding where to place its lines within the easement. Although one of the hand holes may have been placed closer than the suggested twelve inches from the edge of the pre-cast slab, there is no evidence indicating that this was a cause-in-fact of Thibodeaux’s injuries.

Moreover, there was no evidence presented at the hearing indicating that Gulf-gate Construction broke the main line, which caused the leak, which caused the washout, which formed the hole into which Thibodeaux fell and was injured. The trial court, therefore, did not manifestly err in finding that Gulfgate Construction was not a cause-in-fact of Thibodeaux’s injury. Accordingly, J. M. Drilling’s first assignment of error is without merit.

II. Second Assignment of Error:

In its second assignment of error, J. M. Drilling contends the trial court erred in granting Gulfgate’s Motion for Summary Judgment since questions of negligence and comparative fault are generally inappropriate for disposition by summary judgment. In support, it cites Williams v. City of New Orleans, 93-2043 (La.App. 4 Cir. 5/17/94), 637 So.2d 1130, writ denied, 94-1587 (La. 10/7/94), 644 So.2d 632, a case wherein the trial court rendered summary judgment against the City of New Orleans. There, the city argued that “the partial summary judgment of the trial court did not really determine the issue of liability because it was not dispositive of the plaintiffs comparative fault.” Id. at 1132. In reversing the trial court, the Fourth Circuit held:

It is the opinion of this Court that a determination of tort liability for purposes of granting a partial judgment includes the requirement of a determination of comparative fault, i.e., on any particular claim the question of liability must be completely resolved between the parties for and against whom the partial summary judgment is rendered. ... To put it another way, a partial summary judgment may not be granted for purposes of determining a particular! n element of liability such as notice to one party or the fault of one party where such a determination is not completely dispositive of the question of liability between the parties concerning that claim and where other issues such as comparative fault remain unresolved.

Id.

We find J. M. Drilling’s reliance on Williams, 637 So.2d 1130, is misplaced. Williams addresses whether the fault of one party is appropriate to be determined on summary judgment. In this case, the trial court did not determine that J. M. Drilling was at fault. Rather, the trial court found that there lacked sufficient evidence to proceed against Gulfgate Construction under La.Code Civ.P. arts. 966 and 967.

Accordingly, J. M. Drilling’s second assignment of error is without merit.

DECREE

The trial court’s judgment in favor of Defendant/Appellee, Gulfgate Construction, LLC, is affirmed. All costs of this appeal are assessed to Defendant/Appellant, J. M. Drilling LLC.

AFFIRMED.

      . Boring blind is a term Broussard used to describe boring a hole in the ground without the aid of a boring pit. During this process, boring rigs bore down through the surface of the ground to open up a tunnel underneath in order to facilitate the placement of conduit •for things as electrical service, sewers, or fiber optic cables,


source: Caselaw Access Project

author: Judge Marion F. Edwards, Pro Tempore .

license: Public Domain

text:
    Tracy FULTON v. DEPARTMENT OF POLICE
    NO. 2017-CA-0523
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 6, 2017

      Eric J. Hessler, 2802 Tulane Avenue, Suite # 102, New Orleans, LA 70119, COUNSEL FOR ' PLAINTIFF/APPELLANT '
    Elizabeth Robins, ASSISTANT CITY ATTORNEY, Isaka Rachell Williams, ASSISTANT CITY ATTORNEY, Churita H. Hansell, DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY, 1800 Perdido Street, City Hall — Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore .

liOfficer Tracy Fulton,appeals a decision of the New Orleans Civil Service Commission (the Commission) that affirmed the decision of the New Orleans Police Department (NOPD) to terminate, his employment as a result of an altercation between him and a citizen prpmpted by an automobile accident. Officer Fulton, a twenty-year veteran of the NOPD with permanent status as a classified employee, appealed his termination to the Commission pursuant to Art. X .§ 8(A) of the Louisiana Constitution and Civil Service Commission Rule II § 4.1. After a three day hearing, the Commission deemed the dismissal appropriate. We affirm that decision for reasons that follow.

FACTS

On September 4, 2013,. while off-duty and driving his personal vehicle, Officer Fulton was involved in an automobile accident with E.C. at-the intersection of Earhart Boulevard and Monroe Street. Officer Fulton was stopped at a red light when E.C., who was driving a pickup truck, attempted to enter the turning lane. E.C.’s vehicle jumped the curb, and struck the rear fender of the Fulton vehicle. Fulton got out- of his car to inspect the damage and went over to the other vehicle. Officer Fulton began yelling at E.C. and his passengers, and attempted to open the 12driver door which was locked. Fulton then opened the rear door. A twelve-year-old child in the back seat of E.C’s vehicle and two other passengers were frightened and screamed at E.C. to drive off. Officer Fulton slammed the car door and E.C. drove to: his home about five blocks away. Fulton got into his car and followed E.C. while calling police to report a hit and run accident.

When E.C. parked in front of his home, Officer Fulton parked behind the vehicle and angrily confronted E.C. Fulton was still on the telephone with police at this point, and some of Officer Fulton’s angry confrontation was overheard by the officer taking the report.

The argument escalated into a physical fight. According to the evidence presented at the hearing, E.C. kicked at Officer Fulton and Fulton punched E.C., who stumbled to his truck and got a machete. Fulton went to his vehicle and retrieved his service weapon. As a result of the fight, E.C. was injured and was taken by paramedics to the hospital. The hospital report shows that E.C. was diagnosed with a fractured nose, dislocated jaw, headache and concussion syndrome.

The matter was -investigated by Sergeant Omar Diaz, a twenty-one year veteran of NOPD in the Police Integrity Bureau Criminal Section. Sergeant Diaz testified at the hearing. He stated that he was called to the scene of the altercation in the 8500 block of Forchey Street and interviewed several witnesses including E.C. and his two passengers. Sergeant Diaz concluded that E.C.’s pickup truck hit the rear of Fulton’s auto by paint markings and scratches to the vehicles. The sergeant also listened to an audio recording of a call between Officer Fulton and the Second District Police Station. In that recording, Officer Fulton is heard saying “I wish you f- — g would” in what appeared to be a threat. Although it appeared |aboth Officer Fulton and E.C. had weapons, it was not apparent which individual was the first to retrieve that weapon.

As a result of the incident, Officer Fulton was arrested and charged with second degree battery while off-duty. NOPD issued an emergency suspension and ultimately terminated Officer Fulton’s employment. Fulton appealed the termination to the Civil Service Commission. Prior to the Commission hearing, the parties stipulated that Officer Fulton was tried on the second degree battery charge and found not guilty by a jury.

DISCUSSION

Initially we note that Fulton’s brief does contain a statement of jurisdiction, an assignment of errors, or a list of issues presented for our review as required by Louisiana Uniform Rules of Courts of Appeal, Rule 2-12.4. NOPD has noted these deficiencies in its brief and urged dismissal of the appeal. Fulton has filed a reply brief acknowledging these defects and attempted to correct them. Despite Rule 2-12.4, assignments of error are not necessary in an appeal. Appellate courts have the authority to consider an issue even in the absence of an assignment of error. Accordingly, we will consider the merits of this appeal.

The appointing authority, which is the employer of an employee in the classified civil service, is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. New Orleans police officers are included in the protection guaranteed by this provision.14However, the protection of civil service employees is only against firing or other discipline without cause.

“Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” “The appointing authority must prove by a preponderance of the evidence the occurrence of the complained of activity and that the conduct impaired the efficient operation of the public service.” In the instant case we are concerned with the actions of a police officer. “(S)ince the public puts its trust in the police department as a guardian of its safety, it is essential the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust.”

“The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty.” The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. “The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty.”

The appellate standard of review of a factual decision of the Commission is the manifestly erroneous/clearly wrong standard. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, the appellate court should not modify the Commission’s order unless it was arbitrary, capricious, or characterized by an abuse of discretion. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission.

The Commission conducted a three-day hearing in which it considered the allegations against Fulton, that he committed a second degree battery while off-duty, and failed to conduct himself in a professional manner. The Commission handed down a judgment with extensive reasons, in which it affirmed NOPD’s decision to terminate Officer Fulton’s employment as a result of the incident. In the judgment, the Commission examined both the initial contact at the time of the automobile accident and the second interaction at E.C’s home. The Commission also considered the calls made by Fulton to the command desk in which he initially reported following a vehicle that had just struck his car and refused to stop, and the second call in which he updated his location.

After consideration of all of the evidence presented, the Commission concluded that the appointing authority had sufficient cause to terminate the employment and that Fulton’s actions adversely impacted NOPD”s efficient operations. The Commission found that “NOPD has a duty and responsibility to deter aggressive interactions between officers and residents whether on or off-duty. | ^Furthermore, NOPD must ensure that all personnel represent themselves and NOPD in a professional and lawful manner, even when off-duty.”

The Commission’s basis for the finding of sufficient cause rests on an analysis of the elements of the crime of second degree battery and the law of self-defense as it relates to this matter. Additionally, the Commission discussed the proper standard of proof. The Commission determined that the “beyond a reasonable doubt” standard required for a criminal conviction does not apply in this instance, and determined that the standard of proof herein is “preponderance of the evidence.” We agree.

An acquittal on a criminal charge does not preclude a civil service disciplinary action based on the same set of facts. The state’s burden of proving every element of a crime beyond a reasonable doubt in a criminal proceeding does not apply in administrative proceedings. The appointing authority in an administrative proceeding need only prove by a preponderance of the evidence that the complained of action occurred and that it impaired the efficient operation of the public service.

Second degree battery is defined by La. R.S. 14:34.1 as a battery committed without- the' consent of the victim when the offender intentionally inflicts serious bodily injury; That statute further provides that:

For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ,-or mental faculty, or a substantial risk of death. . ■

RFulton does not' dispute the fact that he hit E.C. 'and severely injured him; rather, Fulton' argues that his actions were justified as self-defense. The Commission considered the facts of this matter and concluded that Fulton could not claim self-défensé because he was the aggressor in the interaction between the two parties.

La. R.S. 14:21 provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he - desires to withdraw and discontinue the conflict.

The Commission observed that E.C. did not speed away from the accident; but instead stopped for a red light, giving Fulton the' opportunity to get the license plate number, make, model and color of E.C.’s vehicle and to communicate that information to the command desk. The Commission noted that Fulton approached E.C.’s vehicle after the accident and hit, then opened the rear door, followed E.C. to his home and confronted E.C. for the second time. Further, Fulton did not withdraw from the confrontation before striking E.C. in the face. The Commission found it was not necessary for Fulton to angrily confront E.C. at the scene of the accident or to aggressively open the rear door of E.C.’s vehicle. Nor was it‘necessary for Fulton to follow E.C. to his home and continue the confrontation after E.C. drove off in fear.

The' Commission also found that E.C.’s response in assuming a “fighting stance” and kicking at Fulton was a reasonable response to Fulton’s aggression. The Commission noted that Fulton could have reported the accident and withdrawn from the conflict at several points before punching E.C. in the face and abdomen. However, he chose not to. Considering the facts presented to, the Commission, we |sdo not find the Commission was- manifestly erroneous in its .finding that Fulton was the aggressor and not . entitled to claim self-defense.

The Commission found Fulton’s decision to aggressively confront E.C. at the scene of the accident and opening the vehicle door was “inappropriate and needlessly escalated an already difficult'situation.” Furthermore, while Fulton could have chosen to simply write down the license plate number and other information on E.C.’s vehicle and report the accident to police, he chose .a “far more aggressive approach.” Such action, in the Commission’s view, adversely impacted NOPD’s efficient operations. We find that there is a rational basis for that finding and; accordingly, the Commission’s ruling is not “arbitrary and capricious,”

For the foregoing reasons, we affirm the ruling of the Civil Service Commission upholding the termination of employment of Officer Fulton by the New Orleans Police Department. ...

AFFIRMED

      . La. C.C.P. art. 2129.

      . Merrill v. Greyhound Lines, Inc., 2010-2827 (La. 4/29/11), 60 So.3d 600, 601.

      . See La. Const. art. X, § 8(A).

      . See Walters v. Dep’t of Police of New Orleans, 454 So.2d 106, 112 (La. 1984).

      . La. Const. Art. X, § 12; Fihlman v. New Orleans Police Dept., 00-2360 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

      . Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir. 1990), (citing, Fisher v. Department of Health and Human Resources, Office of Human Development, 517 So.2d 318 (La.App. 1st Cir.1987).

      . Narcisse v. Department of Police, 12-1267 (La.App. 4 Cir. 3/6/13), 110 So.3d 692, 697 citing Barquet v. Dep't of Welfare, 620 So.2d 501, 505 (La.App. 4th Cir.1993).

      . Regis v. Dep’t of Police, 2013-1124 (La. 6/28/13), 121 So.3d 665, 666.

      . Pope v. New Orleans Police Dept., 2004-1888 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 5 (citing La. Const. art. X, § 12).

      . Id. (citing, Branighan v. Department of Police, 362 So.2d 1221, 1222, (La.App. 4 Cir. 1978)).

      . Cure v. Dep’t of Police, 2007-0166 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, see also La. Const. Art. X, § 12.

      . Id. 964 So.2d at 1094-1095.

      . Id. 964 So.2d at 1095.

      . Bailey v. Dep't of Pub. Safety & Corr., 2005-2474 (La. App. 1 Cir. 12/6/06), 951 So.2d 234, 240,(citing, Department of Public Safety and Corrections v. Hooker, 558 So.2d 676, 678 (La.App. 1st Cir. 1990)).

      . See, Walters v. Department of Police of New Orleans, 454 So.2d 106 (La. 1984).

      . Cittadino v. Dep’t of Police, supra.


author: JUDGE SANDRA CABRINA JENKINS

text:
    Donald MORGAN v. ENTERGY NEW ORLEANS, INC.
    NO. 2016-CA-1250
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 6, 2017

      Mary W. Russo, Dominick F. Impastato, III, FRISCHHERTZ POULLIARD FRISCHHERTZ & IMPASTATO, LLC, 1130 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Sheryl M. Howard, Christian B. Bogart, Meredith L. Simoneaux, DUPLASS ZWAIN BOURGEOIS PFISTER & WEINSTOCK, Three Lakeway Center, Suite 2900, 3838 N. Causeway Boulevard, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

| fin this personal injury action, plaintiff Donald Morgan appeals the trial court’s October 7, 2016 judgment granting a peremptory exception of prescription filed by defendant/appellee Cox Communications Louisiana, LLC (“Cox”). For the reasons that follow, we reverse the trial court’s judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On September 17, 2013, Mr. Morgan filed an Original Petition for Damages (the “Petition”) against Entergy New Orleans, Inc. (“Entergy”). The Petition alleged that Mr. Morgan sustained personal injuries on February 9, 2013 when he tripped and fell over an unguarded guy wire attached to a utility pole owned by Entergy. Along with the Petition, Mr. Morgan served interrogatories and requests for production of documents (the “Discovery Requests”) on En-tergy which, among other things, asked for the identity of all persons and entities that owned, leased, installed, worked on, or had “any interest in” the utility pole at issue, including those who were responsible for attaching the guy wire.

|2On November 7, 2013, Entergy responded to the Discovery Requests (the “Discovery Responses”). Entergy did not identify any persons or entities as required, but simply made blanket references to an attached 1982 agreement between New Orleans Public Service Inc. (“NOPSI”) and South Central Bell Telephone Company (“Bell”) (the “Enter-gy/BellSouth Joint Use Agreement”). Under the agreement, in exchange for rental payments, NOPSI gave Bell the right to use NOPSI’s utility poles to attach Bell’s wires and cables needed in the construction, operation, and maintenance of Bell’s facilities.

Based on the Entergy/BellSouth Joint Use Agreement, Mr. Morgan filed a First Amended Petition on January 27, 2014 naming BellSouth Communication Systems, LLC, and BellSouth Telecommunications, LLC (collectively, “BellSouth”), and Bell as additional defendants.

On February 6, 2014, during a Rule 10.1 discovery conference, counsel for Entergy told counsel for Mr. Morgan that the En-tergy/BellSouth Joint Use Agreement specified which utility had the authority to attach guy wires at certain heights on the pole, and-.that the height.of the wire at issue signified that BellSouth was responsible for the wire.

On February’9, 2014, three days after Entergy confirmed that BellSouth was responsible for the wire, the one-year prescriptive period for Mr. Morgan’s tort claims ended. Based on this information from Entergy, on March 13, 2014, Mr. Morgan propounded discovery requests to BellSouth to confirm that BellSouth'was lathe owner of the guy wire. On October 13, 2014, BellSouth responded to Mr. Morgan’s discovery requests, denying ownership of, and responsibility for, the wire.

On November 3, 2014, nine months after expiration of the one-year prescriptive period, Entergy supplemented its original Discovery Responses by producing a July 16, 1982 agreement between Louisiana Power & Light Company (“LP & L”) and Cox (the “Entergy/Cox Joint Use Agreement”). Under this agreement, in exchange for rental payments, Entergy gave Cox the right to use Entergy’s utility poles for the attachment of Cox’s wires and cables needed to furnish cable communication system service to Orleans Parish. Based on the Entergy/Cox Joint Use Agreement, on March 13, 2015, Mr. Morgan filed a Second Amended Petition naming Cox as a defendant.

On September 8, 2015, Mr.- Morgan voluntarily dismissed BellSouth from the action, without prejudice. On April 6, 2016, the trial court granted Entergy’s Motion for Summary Judgment and dismissed Mr. Morgan’s ciatos against Entergy, with prejudice.

On June 23, 2016, Cox filed an Exception of Prescription, seeking dismissal of Mr. Morgan’s claims. After conducting a hearing on September 23, 2016, the trial court signed a judgment dated October 7, 2016 sustaining Cox’s Exception of Prescription. The trial court stated that, even though the result was “harsh,” the court was bound by the Supreme Court’s decision in Renfroe v. State ex rel. Dept. of Transp. & Dev., 01-1646 (La. 2/26/02), 809 So.2d 947 (“Renfroe ”),

Mr. Morgan timely appealed.

IJDISCUSSION

Standard of Review

“When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.” In re Med. Review Panel of Hurst, 16-0934, p. 4 (La. App. 4 Cir. 6/3/17), 220 So.3d 121, 125-26, writ denied, 17-803 (La. 9/22/17), 228 So.3d 744, 2017 WL 45465661 “The relevant issue in a manifest error inquiry is not whether the finder'of fact'was right or wrong, but whether its decision was a reasonable one.” Id., 16-0934, p. 4, 220 So.3d at 126.

“If the trial court commits an error of law, however, the applicable standard of review is de novo.” Richard v. Richard, 14-1365, p. 9 (La. App. 4 Cir. 6/3/15), 171 So.3d 1097, 1102-03. “The standard controlling our review of a peremptory exception of prescription also requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished.” Jones v. Sewerage & Water Bd., 16-0691, p. 3 (La. App. 4 Cir. 3/8/17), 213 So.3d 497, 499.

Mr. Morgan contends that: (1) the trial court erred in failing to apply the doctrine of contra non valentem to suspend prescription of his claim against Cox; and (2) the trial court erred in deciding that Renfroe was controlling, and sustaining Cox’s Exception of Prescription.

| ^Contra Non Valentem

Mr. Morgan’s delictual action is subject to a one-year prescriptive period, which commenced to run on the day the injury was sustained. See La, C.C. art. 3492. Mr. Morgan was allegedly injured on February 9, 2013, and he filed suit against Cox on March 13, 2015. Thus, the Second Amended Petition is prescribed on its face.

Mr. Morgan relies on the doctrine of contra non valentem, which is a judicially created exception to the general rules of prescription that is applied to ameliorate the sometimes harsh consequences resulting from the strict interpretation of prescription statutes, Bergeron v. Pan Am. Assurance Co., 98-2421, p. 9 (La. App. 4 Cir. 4/7/99), 731 So.2d 1037, 1042. This doctrine ' operates to suspend prescription when the plaintiff is prevented from acting under one of four scenarios: (1) where there was some legal cause which prevented the courts or their officers from acting or taking cognizance of the plaintiffs action; (2) where there was some condition or matter coupled with the contract or connected with the proceedings which prevented the plaintiff from availing himself of his cause of action; (3) where the defendant has done some act effectually to prevent the plaintiff from availing himself of his cause of action; and (4) where'the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. Bayou Fleet, Inc. v. Bollinger Shipyards, Inc., 15-0487, pp. 12-13 (La. App. 4 Cir. 7/21/16), 197 So.3d 797, 806.

| (¡The fourth category of contra non valentem applies only when “the plaintiffs ignorance of his cause of action cannot be attributable to his own willfulness or neglect, as a plaintiff is deemed to know what he could have learned by reasonable diligence.” Ferrara v. Starmed Staffing, LP, 10-0589, pp. 6-7 (La. App. 4 Cir. 10/6/10), 50 So.3d 861, 866.

Mr. Morgan contends ..that the fourth category (also known as the “discovery rule”) applies in this case because he was reasonably diligent in his efforts to discover the identity of the owner of the guy wire. Mr. Morgan also argues that, despite his diligence, the “fact that someone other than Entergy or BellSouth owned the guy wire was not reasonably discoverable ... within the one-year prescriptive period.”

In order to establish “reasonable diligence,” Mr. Morgan relies on the following facts taken from the record:

• On February 9, 2013, Mr. Morgan allegedly tripped over a guy wire attached to a utility pole located at the intersection of Canal Street and South Jefferson Davis Parkway and sustained injuries.
• Before suit was filed, counsel for Mr. Morgan went out to the intersection and inspected the pole. After finding a tag identifying a company that was no longer viable, counsel was able to learn that the pole belonged to Entergy. There were no other markings on the pole that identified any other company.
• On September 17, 2013, counsel for Mr. Morgan filed a Petition for Damages against Entergy, the owner of the pole. On that date, Mr. Morgan attorney propounded Discovery Requests to Entergy seeking to discover the owner of the guy wire.
|7* On October 24, 2013, counsel for Mr. Morgan set up a Rule 10.1 discovery conference with Entergy to discuss the outstanding Discovery Requests.
• On November 7, 2013, counsel for Entergy served Discovery Responses, which contained blanket references to an attached copy of the Entergy/BellSouth Joint Use Agreement.
• On January 24, 2014, counsel for Mr. Morgan objected to Entergy’s blanket references to the Entergy/Bell-south Joint Use Agreement, and demanded that Entergy identify all persons and facts to support its affirmative defense that other entities were “responsible for the possession, ownership, contract work and/or maintenance of the pole and its appurtenances.”
• On January 27, 2014, counsel for Mr. Morgan obtained leave ‘ of' court to file First Amended Petition naming BellSouth as a defendant.
• On February 6, 2014, counsel for Mr. Morgan conducted a Rule 10.1 discovery conference with counsel for Entergy in which he received “direct verbal confirmation from Entergy that the wire belonged to BellSouth.” Counsel for Entergy stated that it would supplement its Discovery Responses before February Í4, 2014.
• February 9, 2014: One year anniversary of alleged incident.
• On March 13, 2014, counsel for Mr. Morgan served discovery requests on BellSouth to verify that it was the owner of, or the party responsible for, the guy wire.
• On October 13, 2014, counsel for BellSouth served discovery responses in which it denied ownership of, and responsibility for, the guy wire.
• On November 3, 2014, counsel for Entergy supplemented the Discovery Responses with a copy of the Enter-gy/Cox Joint Use Agreement.
• On December 3, 2014, counsel for Entergy produced an affidavit attesting that Entergy did not own the guy wire.
• On March 9, 2015, counsel for Cox told counsel for Mr. Morgan that Cox was responsible for the guy wire.
Is* On March 13, 2015, counsel for Mr. Morgan obtained leave of court to file a Second Amended Petition adding Cox as a defendant.

Mr. Morgan contends that he (through his attorney) exercised reasonable diligence in trying to identify the owner of the pole and the attached wire by: (1) inspecting the pole and filing suit against Entergy five months before the one-year prescriptive period ended; (2) immediately serving the Discovery Requests upon Entergy in order to identify the owner of, or person responsible for, the guy wire; (3) objecting to Entergy’s “blanket reference” to the Entergy/BellSouth Joint Use Agreement, and demanding that Entergy specifically identify the persons/entities called for in the Discovery Requests; and (4) relying on the veracity of the information disclosed by Entergy in its Discovery Responses and in subsequent discovery conferences.

We agree that Mr. Morgan was reasonably diligent in his efforts to find out who was responsible for the guy wire attached to Entergy’s pole. In Interrogatory No. 2, Mr. Morgan asked Entergy to “identify the owners, manager, lessors, and all persons with any interest by way of ownership, possession, or any other interest whatsoever in the utility pole at issue in this litigation.” In Interrogatory No. 6, Mr. Morgan asked Entergy to “identify the person and/or company who was responsible for securing the support wires attached to the utility pole ... at issue in this litigation.” In Interrogatory No. 7, Mr. Morgan asked Entergy to “identify the person and/or company who was responsible for maintaining or securing yellow guards on the support wires attached to the ... utility pole at issue in this litigation.” In response to all of these interrogatories, Entergy simply referred to the En-tergy/BellSouth Joint Use Agreement, a copy of which was produced.

13Likewise, in Request for Production No. 1, Mr. Morgan requested “any and all documents” pertaining to any “installation” or “other work” performed “in relation to the utility pole.” In Request for Production No. 23, Mr. Morgan requested a copy of “any and all documents that ... reflect the ownership or lease of the pole.” In Request for Production No. 24, Mr. Morgan requested a copy of “all leases between you and any other person of the utility pole at issue in the litigation at all times.” Entergy responded with the same blanket reference to the Entergy/Bell-South Joint Use Agreement. In response to Entergy’s incomplete Discovery Responses, Mr. Morgan followed up with discovery conferences, and demanded that Entergy identify all third-parties who might be responsible for the wires attached Entergy’s utility pole.

Mr. Morgan also contends that, despite his reasonable diligence, he could not have identified Cox as the owner of the guy wire within the one-year prescriptive period because: (1) Entergy, which owned the pole, incorrectly named BellSouth as the party responsible for the wire, and did not correct its error until after prescription ran; (2) the owner of the wire was not “reasonably knowable,” given that Entergy, which had contracted with Cox for the attachment of Cox’s wires to Entergy’s poles, could not identify Cox as the owner of the wire; (3) Mr. Morgan reasonably relied on the accuracy of Entergy’s information; (4) aside from Entergy’s records,' there are no public records that would have otherwise disclosed the owner of the wire.

Cox argues that Mr. Morgan should have known as of November 7, 2013— when Entergy produced a copy of the En-tergy/BellSouth Joint Use Agreement— that other utility companies may have had their wires attached to Entergy’s utility pole. Cox refers to Appendix C to the agreement, which refers to third-party disutilities (“TPU”) who “may occupy the allocated space of the Electric Company or the Telephone Company provided that the Company to which the space is allocated agrees to such occupancy.” According to Cox, as of November 7, 2013, Mr. Morgan had sufficient information which, if pursued, “could have led to the discovery of Cox as a defendant.”

Under the doctrine of contra non valentem, prescription is suspended until the tort victim discovers or “should have discovered” the facts upon which his or her cause of action is based. In re Med. Review Panel of Howard, 573 So.2d 472, 474 (La. 1991). In these “should have discovered” cases, the Supreme Court has focused on the reasonableness of the claimant’s “action or inaction.” Id.

As an initial matter, the 1982 Enter-gy/BellSouth Joint Use Agreement does not identify Cox as a TPU. According to Appendix C, if Cox (or any other entity) were a TPU entitled to occupy space on Entergy’s poles, Entergy would have had to consent to this occupancy. Thus, Enter-gy was a reasonably reliable source of this information. Entergy, however, identified BellSouth, and not Cox, as the party responsible. for the. guy wire. And even though Cox asserts that the Entergy/Bell-South Joint, Use Agreement would have le.d Mr. Morgan to discover Cox’s identity, Mr. Morgan was told by Entergy that: (1) the Entergy/BellSouth Joint Use Agreement specified which utility had the authority to attach guy wires at certain heights on the pole; and (2) BellSouth was responsible for the wire. Accordingly, we find that Mr. Morgan’s reliance on this information from the Entergy, and his decision not to investigate other public utilities, was reasonable.

Mr. Morgan’s inaction is also reasonable given that there are no public records that would have revealed the identity of the owner or party responsible for the guy wire. Cf. Williams v. Holiday Inn Worldwide, 02-0762, p. 5 (La. App. 4 Cir. 5/15/02), 816 So.2d 998, 1002, overruled on other grounds, Glasgow v. PAR Minerals Corp., 10-2011 (La. 5/10/11), 70 So.3d 765 (plaintiffs delay in discovering the names of architect and construction company for hotel was not reasonable because the information was available in records of the City Office of Safety and Permits); Richards v. Choice Hotels Int’l, Inc., 13-973, p. 7 (La. App 5 Cir. 5/21/14), 142 So.3d 249, 253 (contra non valentem did not apply when true owner’s identity was available in public records of Assessor’s Office); Drake v. Sarpy Props., Inc., 01-1323, p. 7 (La. App. 5 Cir. 4/10/02), 817 So.2d 209, 213 (plaintiff unreasonably relied on misrepresentations regarding ownership of property when the correct information was readily available and verifiable from the public records).

Cox also argues that Entergy was not Mr. Morgan’s only means of determining ownership of the guy wire. Cox has submitted an affidavit of Brett Robin, Cox’s Southeast Region Safety and Risk Manager (the “Robin Affidavit”). Mr. Robin attested that, many times each year, Cox receives telephone calls from customers' or the general public regarding incidents allegedly caused by Cox’s cables or wires. Recording to the Robin Affidavit, at the time of the February 9, 2013 incident, Cox had a procedure for determining whether a cable or wire was owned by Cox, which involved his department requesting that the wire or cable at that location be visually inspected. Cox asserts that this determination would have taken a maximum of a few days, but that prior to the filing of the Second Supplemental Petition naming Cox as a defendant, Cox was never contacted regarding the guy wire.

liaWe do not find this argument persuar sive. The fact that Cox may have had a “procedure” in place for confirming'whether it owned a particular wire on a utility pole does not mean that Cox, if asked, would have voluntarily disclosed to Mr. Morgan or his attorney that it was the owner of the guy wire at issue, particularly when there was pending litigation.

We find that these circumstances are similar to those in Ferrara v. Starmed Staffing, LP, 10-0589 (La. App. 4 Cir. 10/6/10), 50 So.3d 861. In Ferrara, the alleged tortfeasor worked as a nurse at Tulane University Medical Center (“Tulane”), but was employed by a third-party nursing agency. The name of the nursing agency was not found in the plaintiffs medical records. After prescription ran, Tulane identified these third parties in discovery responses. The agency and its employee filed an exception of prescription, which the trial court sustained. On appeal, this court reversed, finding that the. plaintiff could not reasonably have identified these third parties until Tulane responded to the plaintiffs discovery requests and furnished their identities. Ferrara, 10-0589, p. 9, 50 So.3d at 867. See also Shortess v. Touro Infirmary, 520 So.2d 389 (La. 1988) (applying contra non valentem where the hospital’s medical records did not disclose that contaminated blood was pm-chased from a third-party blood bank, and the hospital did not disclose the third party’s identity until after prescription ran); Miller v. Louisiana Gas Serv. Co., 601 So.2d 700, 703-04 (La. App. 5th Cir. 1992) (applying contra non valentem where it was impossible for plaintiffs to know that a third party had owned and built a gas line until after plaintiffs and other defendants “engaged in extensive discovery regarding the origin of the line”).

| ffienfroe

Mr. Morgan’s second contention is that the trial court erred in deciding that Ren-froe was controlling, and sustaining Cox’s Exception of Prescription. Mr. Morgan argues that the facts presented in this case are distinguishable from those in Renfroe, in which the Supreme Court refused to apply the doctrine of contra non valentem to a plaintiff who did not exercise reasonable diligence when investigating the owner of a particular tract of land.

Because the doctrine of contra non valentem applies to suspend the running of prescription in “exceptional circumstances,” “the equitable nature of the circumstances in each individual case determines the applicability of the doctrine.” Wells v. Zadeck, 11-1232, p. 15 (La. 3/30/12), 89 So.3d 1145, 1154 (emphasis added). See also State v. All Prop. & Cas. Ins. Carriers, 06-2030, p. 19 (La. 8/25/06), 937 So.2d 313, 327 n. 13 (“determinations of whether contra non valentem applies generally proceeds on an individual, case-by-case basis”).

In Renfroe, the plaintiff filed suit against the Department of Transportation and Development (“DOTD”) .on April 22, 1999. The plaintiff alleged that DOTD was liable for his wife’s death in an automobile accident because of its improper construction, maintenance, and design of Causeway Boulevard in Jefferson Parish. Plaintiff named DOTD as a .defendant based on signs along parts of Causeway Boulevard designating it as “LA 3046,” and also because the State Police investigated the accident.

On July 19, 1999, the DOTD filed a motion for partial summary judgment asserting that the portion of Causeway Boulevard where the accident occurred was not a part of the state highway. On September 20, 1999, the plaintiff filed a first | ^supplemental and amending petition adding Jefferson Parish and the Greater New Orleans. Expressway Commission (“GNOEC”) as defendants. .

On December 14, 1999, the trial court granted DOTD’s motion for partial summary judgment on the grounds that DOTD did not own or maintain that, portion of Causeway Boulevard. On October 23, 2000, GNOEC filed an exception of prescription, which the trial court denied. GNOEC appealed.

On appeal, the Renfroe plaintiff argued that the doctrine of contra non valentem applied because he exercised reasonable diligence in ascertaining the proper party defendants. The plaintiff asserted that he was reasonable in believing that the portion of the roadway was owned and maintained by the DOTD, due to the investigation by State Police at the scene of the accident, and signage on parts of the roadway, designating it as a state highway. The Supreme Court, however, concluded that no “exceptional circumstances” existed that would justify -the 'application of the doctrine of contra non valentem:

While it is indeed- unusual that different unrelated parties would own and maintain different portions of one roadway, the fact that the portion of the road was owned by some party other that [sic] the DOTD was “reasonably knowable” by the 'plaintiff within the-prescriptive period. Thus, the doctrine of contra non valentem does not apply in this case.

Renfroe, 01-1646, p. 10, 809 So.2d at 954.

Thus, the determination of whether contra non valentem interrupts prescription depends on the equitable nature of the particular circumstances in this case, which may vary from those in Renfroe.

In Renfroe, the plaintiff did not utilize discovery before the prescriptive period ended. Mr. Morgan, however, was vigilant in promptly propounding discovery requests along with his Petition, and following up with discovery | ^conferences. The Renfroe plaintiff filed suit only days before prescription ended, leaving no time .to confirm the correct identity of the land owner. Mr. Morgan, on the other hand, filed suit five months before the one' year anniversary of his injury, giving him time to discover the identity of the owner of the guy wire. See Allstate Ins. Co. v. Fred’s, Inc., 09-2275 (La. 1/29/10), 25 So.3d 821 (holding thát plaintiffs two-year delay between its discovery request and its motion to compel, plus an additional year before adding the defendant to the suit, showed a lack' of due diligence by the plaintiff, precluding application of contra non valentem). Finally, the plaintiff in Renfroe could have reasonably identified the owner of the tract of land through a search of the public land records, but did not do so. In this case,, the. ownership ..of .the guy wire at issue could not be confirmed through a search of public records.

Because the particular circumstances and equities presented in Renfroe are distinguishable in significant ways from the situation before us, we find that the trial court erred as a matter of law in deciding that Renfroe is controlling on .the facts contained in this record. Weighing the equities in this case, we conclude that Mr. Morgan’s lack of knowledge was not attributable to his own willfulness or neglect, and that contra non valentón applies to interrupt prescription. Mr. Morgan’s claims against Cox, therefore, are not prescribed.

CONCLUSION

Based on the foregoing, the judgment sustaining Cox’s Exception of Prescription is hereby reversed, the exception is overruled, and the case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED: REMANDED

      . For purposes of this exception, we assume without deciding that NOPSI and Bell are the predecessors, respectively, of Entergy and BellSouth.

      . Again, for purposes of this exception, we assume that LP- & L is a predecessor of Enter-gy-

      . Under Rule 10.1 of the Rules for Civil Proceedings in District - Courts, "[bjefore filing any motion to compel discovery, the moving „ party or attorney shall confer in person or by telephone with the opposing party or counsel for the purpose of amicably resolving the discovery dispute.”


author: Judge Rosemary Ledet

text:
    Roderick F. LEE v. Thomas D. SAPP, State Farm Mutual Automobile Insurance Company, BMW Financial Services, N.A., L.L.C. and Financial Services Vehicle Trust, Inc.
    NO. 2017-CA-0490
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 6, 2017

      Roderick F. Lee, Pro Se, -3113 Independence Street, Suite I, Metairie, LA 70006, COUNSEL FOR PLAINTIFF/APPELLANT
    Charles R. Rumbley, LOBMAN, CAR-NAHAN, BATT, ANGELLE & NADER, 400 Poydras Street, Suite 2300, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Marion F. Edwards, Pro Tempore)
   Judge Rosemary Ledet

[¡This is. a personal injury case. The plaintiff, Roderick Lee, appeals the trial court’s March 6, 2017 judgment, granting a partial peremptory exception (the “Exception”). The Exception was filed by the defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), in its capacity as the liability insurer of the alleged tortfeasor, Thomas Sapp, The judgment, which sustained the Exception, dismissed a portion of the insurance, “bad faith” claims that Mr. Lee asserted against State Farm. For the reasons that follow, we convert the appeal to an application for supervisory writs, grant the writ application, and deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2009, Mr. Lee was involved in an automobile accident with Mr. Sapp. The accident occurred on Prytania Street in New Orleans, Louisiana; the vóhicle that Mr; Sapp was driving collided with the vehicle that Mr. Lee was driving. In July 2010, Mr. Lee filed suit, naming as defendants, among others, Mr. Sapp and his alleged automobile liability insurer, State Farm. In his petition, Mr, Lee prayed for damages for his personal injuries incurred in the accident as the result of Mr. Sapp’s alleged negligence; he asserted no property damage claim. In | gits capacity as Mr. Sapp’s alleged insurer, State Farm answered the suit, averring that Mr. Sapp’s policy was not in effect on the date of the accident and, therefore, denying coverage for the accident. In March 2012, Mr. Lee filed a First Amended and Supplemental Petition, asserting a negligent entrustment claim against the lessor of the vehicle that Mr. Sapp was driving.

On a prior appeal, this court held that coverage existed at the time of the accident. Lee v. Sapp, 14-1047 (La. App. 4 Cir. 3/4/15), 163 So.3d 60 (“Sapp I”). In July 2016, Mr. Lee filed a Second Amended and Supplemental Petition, asserting insurance “bad faith” claims against State Farm. For the first time, Mr. Lee averred that State Farm was not only Mr. Sapp’s insurer, but also his insurer. He also averred that State Farm was his uninsured or underinsured motorist (“UM”) insurer.

In August 2016, Mr. Lee entered into a settlement agreement with Mr. Sapp and State Farm (the “Release”). In the Release, Mr. Lee settled all his claims against Mr. Sapp and State Farm, in its capacity as Mr. Sapp’s insurer, arising out of the August 2009 accident with the exception of certain “Reserved Claims.” The Release defined the term “Reserved Claims” to 'mean “all bad faith claims asserted by Plaintiff against State Farm Mutual Automobile Insurance Company in the Second Supplemental and Amended Petition for Damages.!’

In September 2016, State Farm filed the Exception, seeking dismissal of all the Reserved Claims, except for Mr. Lee’s claims for misrepresentation under La. R.S. 22:1973(B)(1), which were expressly carved out of the Exception. Following a hearing, the trial court sustained the Exception. This appeal followed.

JURISDICTIONAL ISSUE

Before reaching the merits of this appeal, we must first address the jurisdictional issue that State Farm raises regarding whether the March 6, 2017 judgment is an‘ appealable, final judgment. State Farm contends that because the judgment is only a partial final judgment and because the trial court did not designate the judgment as appealable under La. C.C.P. art. 1915 (“Article 1915”), the judgment is non-appéalable and, thus, the appeal should be dismissed. Mr. Lee counters that “[t]he judgment was designated a final judgment on that Peremptory Exception alone” and, thus, the appeal should not be dismissed.

“[A] judgment that only partially determines the merits of the action is a valid partial final judgment (and therefore appealable) only if authorized by Article 1915.” Rhodes v. Lewis, 01-1989, p. 3 (La. 5/14/02), 817 So.2d 64, 66 (quoting Douglass v. Alton Ochsner Med. Found., 96-2825 (La. 6/13/97), 695 So.2d 953). Article 1915 has two subparts—Subparts A and B. See Quality Envtl. Processes, Inc. v. Energy Dev. Corp., 16-0171, 16-0172, p. 6 (La. App. 1 Cir. 4/12/17), 218 So.3d 1045, 1053. The judgment granting State Farm’s Exception — a partial peremptory exception— falls under Subpart B, which “provides that when 14a court renders a partial judgment, partial motion for summary judgment, or exception in part, it may designate the judgment as final when there is no just reason for delay.” Id.; see also Favrot v. Favrot, 10-0986, pp. 2-3 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102.

Subpart B of Article 1915 has two sub-parts. The first subpart provides that “the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” La. C.C.P. art. 1915(B)(1). The second subpart provides that “[i]n the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” La. C.C.P. art. 1915(B)(2); see also La. C.C.P. art. 1911(B) (providing, in part, that “[n]o appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B)”).

The record reflects that the trial court did not designate the judgment as “final” and immediately appealable pursuant to La. C.C.P. art. 1915(B). Because the trial court did not designate the judgment as final and immediately appealable, it is a non-appealable judgment. Nonetheless, this court has exercised its discretion Rto convert an appeal of a non-appealable judgment into an application for supervisory writs when the following two conditions are met:

(i) The motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.
(ii) When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of .the trial court’s decision would terminate the litigation.

Mandina, Inc. v. O’Brien, 13-0085, pp. 7-8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 104 (quoting Delahoussaye v. Tulane Univ. Hosp. and Clinic, 12-0906, 12-0907, pp. 4-5 (La. App. 4 Cir. 2/20/13), 155 So.3d 560, 563).

In the current case, both conditions are met. Mr. Lee’s motion for appeal was filed within thirty days of the date of the notice of judgment and fundamental fairness and judicial efficiency warrant the exercise of our discretion. Accordingly, we convert the appeal to an application for supervisory writs. See Stelluto v. Stelluto, 05-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39 (noting that “the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts”).

DISCUSSION

The sole issue presented is whether the trial court erred in granting the Exception, which State Farm entitled a “Peremptory Exception of No Cause of Action and No Right of Action.” As one commentator has noted, “[bjecause the | ^distinction between no cause of action and no right of action is elusive,' attorneys frequently plead an ‘exception of no cause or right of action.’ There is no such procedural device.” 1 Frank L. Maraist, LA. CIV. L. TREATISE, CIVIL PROCEDURE § 6:7 (2d ed. 2017). No cause of action and no right of action are separate peremptory exceptions; each of these exceptions serves a different purpose, and each is governed by different procedural rules. Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719, p. 6 (La. 3/17/06), 929 So.2d 1211, 1216.

“[O]ne of the primary differences between the exception of no right of action and no: cause of action lies in the fact that the focus in an exception.of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on. whether the law provides a remedy against the particular defendant.” Badeaux, 05-0612, 05-719, at p. 6, 929 So.2d at 1216-17. An important procedural distinction between the two exceptions is that evidence may be-introduced on an exception of no right of action; whereas, “[n]o evidence may be introduced at any time to support or controvert the objection that the petitio'n fails to state a cause of action.’” La. C.C.P. art. 931.

Peremptory exceptions.of no cause of action and no right of action present legal questions; hence, appellate courts review trial court judgments granting such exceptions under a de novo standard. Zeigler v. Housing Auth. of New Orleans, 12-1168, p. 6 (La. App. 4 Cir. 4/24/13), 118 So.3d 442, 449 (citing St. Pierre v. Northrop Grumman Shipbuilding, Inc., 12-545, p. 7 (La. App. 4 Cir. 10/24/12), 102 So.3d 1003, 1009); B-G & G Investors VI, L.L.C. v. Thibaut HG Corp., 08-0093, p. 2 (La. App. 4 Cir. 5/21/08), 985 So.2d 837, 840.

To place the issue presented here in context, we begin by briefly outlining the well-settled principles governing insurance “bad faith” claims in Louisiana. “Insurance ‘bad faith’ law is codified in La. R.S. 22:1892 (formerly La. R.S. 22:658) and La. R.S. 22:1973 (formerly La. R.S. 22:1220).” Dean A. Sutherland, Insurance “Bad Faith” Law, Revisited, 57 LA. B.J. 374, 375 (2010) (“Sutherland”). The purpose of these penalty statutes is to “provide remedies to insureds whose insurance claims are improperly handled or to whom payment is unreasonably delayed. In a few instances, remedies are also provided to third-party claimants'.” 15 William Shelby McKenzie and H. Alston Johnson, III, LA. CIV. L. TREATISE, INSURANCE LÁW & PRACTICE § 11:1 (4th ed. 2017) (“McKenzie & Johnson”).

Although Section. 22:1973(A) is broadly worded, the Louisiana Supreme Court has interpreted that statutory provision as not giving a third-party claimant the right to sue an insurer based upon a generalized breach of its duty of good faith and fair dealing. Kelly v. State Farm Fire & Cas. Co., 14-1921, p. 6 (La. 5/5/15), 169 So.3d 328, 332-33 (citing Theriot v. Midland Risk Ins. Co., 95-2895 (La. 5/20/97), 694 So.2d 184). In the Theriot, case, the Supreme Court recognized that “La. R.S. 22:1220(B)(1)-(5) and La. R.S. 22:658 [now La. R.S. 22:1973(B) and La. R.S. 22:1892] do create certain limited causes of action in favor of third party claimants that derogate from established rules of insurance law.” 95-2895 at p. 15, 694 So.2d at 193. The Supreme Court, however, cautioned that these statutes must |sbe strictly construed in favor of “a limited expansion of third-party rights.” Theriot, 95-2895 at p. 16, 694 So.2d at 193.

The limited nature of the insurance “bad faith” claims available to third-party claimants is attributable to the nature of the relationship between an insurer and a third-party claimant. “The relationship between the insurer and the third party claimant is neither fiduciary nor contractual; it is fundamentally adversarial. For that reason, a cause of action directly in favor of a third party claimant-is generally not recognized absent statutory creation.” Langsford v. Flattman, 03-0189, p. 3 (La. 1/21/04), 864 So.2d 149, 151 (citing Theriot, 95-2895 at p. 15, 694 So.2d at 193).

In the current case, State Farm, in the Exception, sought dismissal of all the Reserved Claims, except for Mr. Lee’s claims for misrepresentation under La. R.S. 22:1973(B)(1), which State Farm identified as the only valid third-party claims pled in the petition. In support, State Farm contended that it was sued only |Bin the third-party capacity as Mr. Sapp’s insurer and only for Mr. Lee’s personal injuries.

ImOpposing the exception, Mr. Lee did not challenge State Farm’s contention that the only valid third-party claim he had pled was for misrepresentation under La. R.S. 22:1973(B)(1), Rather, he contended that, at the time of the accident, State Farm insured both him and Mr. Sapp under separate, unrelated automobile liability policies. He thus contended that he had valid first-party bad faith claims against State Farm. Contrary to the averments of his petition, Mr. Lee acknowledged that State Farm was not his UM carrier and that he did not have a valid claim under La. R.S. 22:1893, which pertains to immovable property. 'Indeed, he moved for- a limited dismissal of those two claims.

Agreeing with State Farm, the trial court ruled as follows:

All extra-contractual, bad faith claims asserted by Plaintiff in the Second Supplemental and- Amended Petition for Damages are DISMISSED WITH PREJUDICE with the exception 'that this Judgment does not include the dismissal of Plaintiffs claim for misrepresentation brought pursuant to LA R.S. 22:1973(B)(1). Plaintiffs claim against Defendant for misrepresentation pursuant to La. R.S. 22:1973(B)(1) is reserved.

Although Mr. Lee assigns several errors on appeal, the gist of his argument is that the trial court erred in failing to find he is a first-party claimant and that all the insurance “bad faith” claims he pled in his petition (other than the UM claim and La. R.S. 22:1893 claims that he moved to dismiss) are valid. The narrow issue presented here, thus, can be framed as whether Mr. Lee is a first-party claimant, with broad-based general bad faith claims, or a third-party claimant, with limited bad faith claims.

“In the world of insurance, a first-party claim is a claim filed by an insured against his own insurer for damage to property or person; whereas a third-party claim is made by a claimant against the insured for damages allegedly caused by the insured.” Gary Langlois, Jr., Kelly v. State Farm, Fire & Casualty Company: Practical Effects Resulting, from an Expansion of Insurers’ Broad Good-Faith Duty, 61 Loy. L. Rev. 799, 805 (2015) (internal quotation marks omitted). Stated otherwise, “[fjirst-party claims are claims brought by a policyholder against their own insurance company, seeking direct compensation.” Cassandra Feeney, Are You “In Good Hands”? : Balancing Protection for Insurers and Insured in First-Party Bad-Faith Claims with A Uniform Standard, 45 New Eng. L. Rev. 685, 687, n. 16 (2011); see also McKenzie & Johnson, supra, § 11:4 (defining a first-party claim as “a claim by person who is an insured under the insurance policy”); Pixton v. State Farm Mut. Auto. Ins. Co. of Bloomington, Illinois, 809 P.2d 746, 748, n. 1 (Utah Ct. App. 1991) (noting that “in a first-party situation the insurer agrees to pay claims submitted by the insured for losses suffered by the insured. In a third-party situation, however, the insurer agrees to defend the insured against claims made by third-parties against the insured and to pay resulting liability up to a specified amount”).

To properly classify the relationship between Mr. Lee and State Farm, it is necessary to examine the various iterations of the petition. In the original petition, Mr. Lee sued State Farm in its capacity as Mr. Sapp’s insurer for the personal injuries he sustained; he averred that “[a]t all times pertinent hereto, STATE FARM was the automobile liability insurer of SAPP.” Based on the allegations of the original petition, Mr. Lee is a third-party claimant — he is asserting a claim against State Farm’s insured, Mr. Sapp, for his own injuries. Mr. Lee does not dispute this classification; however, he contends that he also became a first-party claimant as a result of the averments of the Second Supplemental and Amending Petition.

112In the Second Supplemental and Amended Petition, Mr. Lee avers that “as the provider of insurance to both defendant, Thomas Sapp and plaintiff, Roderick Lee, State Farm ... committed bad faith/ breach of duty of good faith and fair dealing against plaintiff, Roderick Lee.” The only other reference in the Second Supplemental and Amended Petition to State Farm as Mr. Lee’s insurer, however, is to State Farm in its capacity as Mr. Lee’s alleged UM carrier; he avers that “proper evidence was submitted to defendant, State Farm Mutual Automobile Insurance Company, to warrant payments under the State Farm policy of uninsured/underin-sured coverage.”

Contrary to the averments of the Second Supplemental and Amended Petition, Mr. Lee admitted that State Farm was not his UM insurer at the time of the accident. In both the opposition he filed in the trial court to the Exception and the appellant brief he filed in this court, Mr. Lee acknowledged that State Farm was not his UM insurer at the time of the accident and that the averment in the petition that State Farm was his UM insurer was incorrect. In both pleadings, he made the following statement: “[t]he plaintiff does not oppose a limited partial dismissal, dismissing plaintiff[’]s claims for UM coverage.”

On an exception of no cause of action, the allegations of the petition must be accepted as true and evidence cannot be introduced. Both trial and appellate courts, however, can, sua sponte, recognize an exception of no right of action, which allows courts to consider evidence outside the petition. See La. C.C.P. art. 927(B). We find it appropriate to do so here. Mr. Lee’s judicial admissions that State Farm | iswas not his UM insurer are sufficient to establish that he lacks a right of action against State Farm, in its capacity as his alleged UM carrier. See Rhyne v. OMNI Energy Servs. Corp., 14-711, p. 10 (La. App. 3 Cir. 12/10/14), 155 So.3d 155, 161 (relying on judicial confession of appellant’s counsel “to take notice of an exception of no right of action in this case, as opposed to a no cause of action”); La. C.C. art. 1853 (providing that “[a] judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.”).

Mr. Lee, nonetheless, maintains that the reference in the Second Supplemental and Amended Petition to the fact that both he and Mr. Sapp were insured by State Farm sufficed to convert him to a first-party claimant. State Farm counters that Mr. Lee failed to assert any claim against it based on his own insurance policy. State Farm further counters that the only claims Mr. Lee made against it were third-party claims against it in its capacity as Mr. Sapp’s insurer. According to State Farm, Mr. Lee’s arguments' establish that he does not understand either the capacity in which he sued State Farm or the difference between first-party and third-party claims.

A review of the petitions reveals that Mr. Lee failed to assert, at any time, a first-party claim against State Farm in its capacity as his own insurer. Although in the Second Supplemental and Amended Petition Mr. Lee. mentions that he was insured by State Farm, Mr. Lee asserts in the petition no first-party claim for recovery under his own policy. In order to maintain an insurance “bad faith” claim under either La. R.S. 22:1892 or La. R.S. 22:1973, a plaintiff must have a valid underlying claim upon which insurance coverage is based. See Clausen, v. Fidelity & Deposit Co. of Md., 95-0504, p. 3 (La. App. 1 Cir. 8/4/95), 660 So.2d 83, 85 (holding that “[t]he penalties authorized by these [insurance bad faith] statutes do not stand alone; they do not provide a cause of action against an insurer absent a valid, underlying, insurance claim.”). Mr. Lee failed to plead a valid, underlying first-party claim under his.own policy;1 the only claims he pled were third-party claims for his own personal injuries under Mr, Sapp’s policy.

The arguments Mr. Lee makes in support of his status as a first-party claimant are premised solely on the coincidence that he and Mr,. Sapp both were insured by State Farm at the time of the accident. The essence of Mr, Lee’s argument is that State Farm owes a special duty to him because he was insured by State Farm as opposed to , “Allstate or GEICO or Progressive .Insurance Company or some other insurance company.” Addressing similar arguments, courts have labeled this as the “double-insured situation” — one in which the. tortfeasor and the injured party are insured by the same insurer,,albeit generally under different policies. Herrig v. Herrig, 844 P.2d 487, 491 (Wyo. 1992); see also Darlow v. Farmers Ins. Exch, 822 P.2d 820, 827 (Wyo. 1991) (defining the double-insured situation' as one in which both parties to an incident are insured by the same company).

In the double-insured situation, courts, almost universally, have rejected the argument, advanced by Mr. Lee here, that an enhanced duty of good faith should be imposed on the insurer when dealing with its own insured in the third-party claimant Capacity. Heigis v. Cepeda, 71 Wash.App. 626, 862 P.2d 129, 132 (1993). The rationale is that, despite this coincidence of the plaintiff and the tortfeasor having the same insurer, “the plaintiff and his insurer occupy adversarial positions.” Myers v. State Farm Mut. Auto. Ins. Co., 950 F.Supp. 148, 151 (D.S.C. 1997). When faced with the issue, “courts simply refuse to place an insurer in the untenable position of owing a duty of good faith and fair dealing to both the insured and the adversary of the insured, whether in the double-insured context or not.” Herrig, supra. Accordingly, the courts have concluded that the insured’s duty to the plaintiff under the tortfeasor’s policy is no different than if the plaintiff was insured by a different insurance company. Myers, supra.

Given that Mr. Lee is solely a third-party claimant, the' only bad faith claims that he may assert are those available, by statute, to a third-party claimant. See Century Sur. Co. v. Blevins, 799 F.3d 366, 371 (5th Cir. 2015) (noting that the Theriot case “merely holds that § 22:1973 creates an exclusive cause of action for third parties because no judicial cause of action for third parties existed before the statute’s enactment”).- Although Mr. Lee does not challenge State Farm’s argument that the only valid third-party claims that- have been pled are the misrepresentation claims uiider La. R.S. 22:1973(B)(1), we briefly address the two insurance “bad faith” statutes that Mr. Lee cites in his Second Supplemental and Amending Petition—La. R.S. 22:1973 and La. R.S. 22:1892.

Mr. Lee’s La. R.S, 22:1973 claims

It is “hornbook law” that “third-party claimants, i.e., those not covered by the insurance policy at issue, ... are only afforded a private cause of action for | ^violation of one of the specifically-enumerated. acts under Subsection (B) [of La. R.S. 22:1973].” Dodge v. Sherman, 17-70, p. 8 (La. App. 3 Cir. 6/7/17), — So.3d —, —, 2017 WL 2462190 (citing Theriot, supra). As a third-party claimant, Mr. Lee does not have a cause of action against State Farm under La. R.S. 22:1973(A). “Theriot also recognized that the second sentence of La. R.S. 22:1973(A) does confer a private right of action on third-party-claimants, but only for the specific acts listed in Subsection (B).” Dodge, 17-70 at p. 9, — So.3d at —.

Subsection B of La. R.S. 22:1973, sets forth the following six causes of action:

(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an. agreement is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, ’or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
(6) Failing to pay claims pursuant to R.S. 22:1893 when such failure is arbitrary, capricious, or without probable cause.

As State- Farm points out, the Reserved Claims — asserted in the Second Supplemental. and Amended Petition — fall into only. three of. these- Subsections — (B)(1), (5), and (6).' The trial court-expressly reserved the Subsection (B)(1) claims- in the •judgment; as noted elsewhere, State Farm carved those claims out of the ‘Exception. As to the Subsection (B)(5) claims, Mr. Lee is not “a person insured by the contract”; and Subsection (B)(5), by law, does not apply to him. Langsford v. Flattman, 03-189, p. 3 (La. 1/21/04), 864 So.2d 149, 151. As to the Subsection (B)(6) claims, Mr. Lee acknowledges that he has no cognizable claim under La. R.S. 22:1893, which pertains- to immovable property; and Subsection (B)(6) likewise does not apply here. Thus, Mr. Lee’s only valid claims under La. R.S. 22:1973 are his misrepresentation claims under Subsection (B)(1), which the trial court reserved in the judgment. '

Mr. Lee’s La. R.S. 22:1892 claims

Mr. Lee alleges that State Farm failed to pay his claim pursuant to R.S. 22:1892. As State Farm points out, Mr. Lee has not pled any property damage claim; thus, the only'pertinent provision relating to the bodily injury claims that Mr. Lee has pled is Subsection (A)(1). of La. R.S. 22:1892. As one commentator |1Rhas noted, “[t]he prohibited conduct under La. R.S. 22:1892A(1) ... and La. R.S. 22:1973B(5) is virtually identical: the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause.... Both provisions apply to claims by insureds, not to third-party claims.” Sutherland, swpra. (internal quotation marks and footnote omitted). As a third-party claimant, Mr. Lee fails to state a cause of action under La. R.S. 22:1982(A)(1).

In sum, Mr. Lee has pled only claims against State Farm as third-party liability insurer of Mr. Sapp and only for his personal injuries. Mr. Lee is solely a third-party claimant; hence, he is limited to asserting third-party insurance “bad faith” claims. The only cognizable third-party bad faith claims asserted in the Second Supplemental and Amended Petition are the misrepresentation claims under La. R.S. 22:1973(B)(1). Accordingly, we find no error in the trial court’s judgment dismissing all the Reserved Claims, except for the claims under La. R.S. 22:1973(B)(1).

DECREE

For the foregoing reasons, we convert the appeal to an application for supervisory writs, grant the writ application, and deny relief.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED

      . The claims against the lessor of the vehicle Mr. Sapp was driving were settled and are ’ not a part of this appeal.

      . Carving out these claims, State Farm stated in the Exception that “plaintiff has raised specific claims that State Farm made various misrepresentations to plaintiff; however, such claims are not the subject of the current Exception."

        . See Moulton v. Stewart Enters., Inc., 17-0243, 17-0244, p. 3 (La. App. 4 Cir, 8/3/17), 226 So.3d 569, 571 (noting that an appellate court has a. duty to determine, even if the .parties do not, raise it, whether subject matter jurisdiction exists); see also Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425.

      . Subpart A "designates certain categories of partial judgments as final judgments subject to immediate appeal without the necessity of any designation of finality by the trial court.” Quality Envtl. Processes, 16-0171, 16-0172 at p. 6, 218 So.3d at 1053. As in Quality Envtl. Processes, the judgment at issue here "does not: (1) dismiss the suit as to any party; (2) grant a motion for judgment on the pleadings; (3) pertain to an incidental demand that was tried separately; (4) adjudicate the issue of liability; or (5) impose sanctions or disciplinary action.” 16-0171, 16-0172 at p. 7, 218 So.3d at 1054.

      . The parties did not request that the trial court designate the judgment as final for purposes of appeal pursuant to La. C.C.P. art. 1915(B).

      . State Farm, nonetheless, suggests that it is inappropriate for this court to convert the appeal to a writ because the reversal of the trial court’s judgment will not terminate the litigation. Contrary to State Farm’s suggestion, termination of the litigation is only, one factor to be considered in making the determination of whether to convert an appeal to a writ.

      . See also McGinn v. Crescent City Connection Bridge Auth., 15-0165, pp. 4-5 (La. App. 4 Cir. 7/22/15), 174 So.3d 145, 148; Kirby v. Poydras Ctr.; LLC, 15-0027, 15-0391, p. 12, n. 9 (La. App. 4 Cir. 9/23/15, 13), 176 So.3d 601, 608; Wadick v. General Heating & Air Conditioning, LLC, 14-0187, pp. 8-9 (La. App. 4 Cir. 7/23/14), 145 So.3d 586, 592-93.

      . In Acts 2008, No. 415, § 1, effective Jan. 1,' 2009, the Louisiana Legislature renumbered these two provisions without making any substantive changes.

      . State Farm acknowledges that Mr. -Lee had one other potential third-p.arty claim regarding the reimbursement of his $500,00 property damage deductible (the' "Deductible”). State Farm points out that Mr, Lee never pled a claim against Mr. Sapp or State Farm, in its capacity as Mr, Sapp’s liability insurer, for property damage — the recovery of the Deductible. State Farm further points out that all claims, except for the Reserved Claims, against Mr. Sapp and State Farm, in its capacity as Mr. Sapp’s insurer, have been compromised and released pursuant to the Release.
      Mr. Lee’s argument regarding the Deductible is that he has a first-party claim in that "State Farm has a policy obligation to plaintiff to pay the claim for the vehicle [property damage] (which they did minus the $500.00 dollar deductible) and then go into Subroga-iion against defendant ‘SAPP’ INSURER (which they did NOT do) in order to maintain that good-faith or in the words of the Supreme Court ‘High Fiduciary’ Duty.” As discussed elsewhere in this opinion, this is not a valid first-party claim.
      Mr. Lee further points out that following this court’s decision in Sapp I, supra, finding coverage, his attorney sent a demand letter to State Farm requesting payment of the Deductible. He contends that "when State Farm refused to tender plaintiffs [sic] $500.00 deductible within 60 days of demand'thereof,” it violated La. &.S. 22:1892(A)(1), Again, as explained elsewhere in this opinion, as a third-party claimant, Mr. Lee has no cause of action under La. R.S. 22:1892 (A)(1).

      . The remaining claims set forth in the Second Supplemental and Amended Petition to which the Exception was addressed — all the Reserved Claims, except for the misrepresentations claims under La. R.S. 22:1973(B)(1)— are as follows:
      Plaintiff avers that, as the provider of insurance to both defendant, Thomas Sapp and plaintiff, Roderick Lee, State Farm Mutual Automobile Insurance Company (sometimes referred to as "State Farm” herein) committed bad faith breach of duty of good faith and fair dealing against plaintiff, Roderick Lee, as follows:
      A. Petitioner avers that proper evidence was submitted to defendant, State Farm Mutual Automobile Insurance Company, to warrant payments under the State Farm policy of uninsured/underinsured coverage ...; however, State Farm has not tendered any monies, denying petitioner’s demand to pay and/or claim and breached the duty of good faith and fair dealing, which caused petitioner to suffer damages, and is therefore in Bad Faith, according to the laws of the State of Louisiana, La. R.S. 22:1973, Good faith duty; claims settlement practices; cause of action, sub-sections A., B. (3) (5) (6), and is subject, to penalties and attorney’s fees under La. R.S. 22; 1973(C), Redesignated from R.S. 22:1220 by Acts 2008, Ño. 415, § 1, eff. Jan. 1, 2009; Acts 2012, No. 271, § 1.

      D. State Farm Mutual Automobile Insurance Company committed Bad Faith in the following ways:
      1. By failing to attempt in good faith and fair dealing, to adjust claims fairly and promptly and to. settle claims with the insured or the claimant, or both, and thus is liable for any damages sustained as a result of the breach. La. R.S, 22:1973 A, when such failure is arbitrary, capricious or without probable cause;
      2. By breaching the insurer’s duties imposed upon it by La. R.S. 22; 1973 Subsection A in its denial when such failure is arbitrary, capricious or without probable cause;
      3. By breaching the insurer’s duties and failing to pay the amount of a claim due any person within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious or without probable cause;
      . 4. By breaching the insurer’s duties and failing to pay claims pursuant to La. R.S. § 22:1892 and § 22:1893 when such failure is arbitrary, capricious, or without probable cause;
      * * * * *
      6. By arbitrary and capriciously denying the claim, having satisfactory proof of loss, the insurer is in Bad Faith and subject to penalties under La. R.S. 1973(C), which states “claimant may be awarded penalties and attorney’s fees and costs assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater....

      . Mr. Lee made the same judicial admissions and requests to dismiss his claim under La. R.S. 22:1893, regarding immovable property.

      , See also Martin v. State Farm. Mut. Auto. Ins. Co., 348 Ill.App.3d 846, 283 Ill.Dec. 497, 808 N.E.2d 47, 51 (2004) (citing Myers, supra); Herrig, 844 P.2d at 492; Chavez v. Chenoweth, 89 N.M. 423, 430, 553 P.2d 703, 710 (1976); Galusha v. Farmers Ins. Exch., 844 F.Supp. 1401, 1403 (D. Colo. 1994); Caserotti v. State Farm Ins. Co., 791 S.W.2d 561, 565 (Tex. App. 1990)).

      . In Theriot, the Supreme Court cited the Herrig case for the general rule that an insurer’s duty runs primarily in its insured's favor and that the relationship between an insurer and a third-party claimant is fundamentally adverse, Theriot, 95-2895 at p. 15, n. 16, 694 So.2d at 193.

      .Although Mr. Lee also cites in his petition La. R.S. 22:1893, we find, based on his judicial admissions discussed elsewhere in this opinion, that he has no right of action under that statute.

      . The Theriot case left open the question of whether a third-party claimant has a right of action under Subsection (B)(5). See Paul v. Allstate Ins. Co., 98-499, p. 8 (La. App. 5 Cir. 10/28/98), 720 So.2d 1251, 1255. Following the Theriot case, the jurisprudence the jurisprudence has consistently held that a third-party claimant does not have a cause of action against an -insurer under Subsection (B)(5) for failing to pay the amount of any claim "due to any person insured by the contract,” within 60 .days of receipt of satisfactory proof of loss. The rationale behind this holding is that the term "due to any person insured by the contract” is strictly construed to mean that only an “insured” has such a cause of action. Woodruff v. State Farm. Ins. Co., 99-2818, p. 5 (La. App. 4 Cir. 6/14/00), 767 So.2d 785, 788-89 (collecting cases decided subsequent to Theriot holding Subsection (B)(5) inapplicable to a third-party claimant and holding that "Subsection 1220 B(5) [now La. R.S. 22:1973(B)(5)], by its express language, applies only to claims due to an insured”). Citing these post-Theriot cases with approval, the Louisiana Supreme Court, in Langsford,' supra, recognized that "[t]he jurisprudence has consistently held that a third party claimant ... is not a person insured by the contract for purposes of La. R.S. 22:1220(B)(5).” 03-189 at p., 3, 864 So.2d at 151.

      . The duties owed to a third-party claimant by an insurer under La. R.S. 22:1892, which relate primarily to property damage claims, have been outlined as follows:
      According to that statute, the insurer:
      (2) ... shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
      (3) ... shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant..., Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1973.
      (4)... shall make a written offer to. settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.

        Armstrong v. Safeway Ins. Co., 10-183, p. 9 (La. App. 3 Cir. 10/6/10), 47 So.3d 63, 68-69 (quoting La. R.S. 22:1982).