author: KUHN, J.

text:
    Cynthia BRIDGES, Secretary, Department of Revenue, State of Louisiana v. MOSAIC GLOBAL HOLDINGS, INC.
    No. 2008 CA 0113.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 24, 2008.

      David M. Hansen, Elroy A. James, Joseph F. Stevenson, Baton Rouge, Louisiana, for Plaintiff/Appellant/Appellee, Louisiana Department of Revenue.
    Linda S. Akchin, Christopher J. Diehar-ry, Jenny N. Phillips, Baton Rouge, Louisiana, for Defendant/Appellee/Appellant, Mosaic Global Holdings, Inc.
    Before PARRO, KUHN and DOWNING, JJ.
   KUHN, J.

|2Plaintiff, Cynthia Bridges, in her capacity as Secretary of the Department of Revenue for the State of Louisiana (“the Department”), appeals the trial court’s October 22, 2007 judgment, which sustained defendant Mosaic Global Holdings, Inc.’s (“Mosaic”) peremptory exception raising the objection of prescription and dismissed plaintiffs suit to collect corporate income taxes. Mosaic filed an answer to the Department’s appeal, asserting that the trial court’s May 26, 2006 judgment, which overruled its declinatory exceptions raising the objections of lack of personal jurisdiction and improper venue, should be reversed.

We find the Department’s suit is not prescribed and reverse the trial court’s October 22, 2007 judgment. Further, because we find the trial court had personal jurisdiction over Mosaic pursuant to the long-arm statute, La. R.S. 13:3201, and East Baton Rouge Parish is a proper venue for this suit, we affirm the trial court’s May 26, 2006 judgment. Accordingly, we remand for further proceedings.

I. PROCEDURAL AND FACTUAL BACKGROUND

Freeport-McMoran Inc. (“Freeport”), a Delaware corporation, engaged in business in Louisiana in 1997. During that year, Freeport was acquired by and merged into IMC Global Inc. (“IMC”), a Delaware corporation not qualified to transact business in Louisiana. In 2004, IMC changed its name to Mosaic, a | (¡corporation also not qualified to transact business in Louisiana. The parties do not dispute that Mosaic was formerly known as IMC and that Mosaic is by merger the successor-in-interest to Freeport as of December 22,1997.

On January 3, 2006, the Department filed suit against Mosaic in East Baton Rouge Parish, seeking to recover corporate income taxes allegedly due by Free-port for the tax period ending December 22, 1997. The Department alleged it had conducted an audit of Mosaic’s books and records and those of its parents, affiliates and/or subsidiaries for that tax period. The Department alleged that Mosaic transacted business in Louisiana and earned income attributable to Louisiana and has, thereby, subjected itself to pay Louisiana’s corporate income tax in accordance with La. R.S. 47:287.2, et seq. The Department asserted that despite amicable demand, Mosaic has refused to pay the amounts due.

Mosaic responded by filing declinatory exceptions that raised the objections of lack of personal jurisdiction and improper venue. Following an evidentiary hearing, the trial court overruled those exceptions by a judgment dated May 26, 2006.

^Thereafter, Mosaic filed a peremptory exception urging the objection of prescription. During the hearing regarding this exception, Mosaic introduced into evidence: 1) Freeport’s Louisiana Corporation Income Tax Return for the fiscal year beginning on January 1, 1997 and ending on December 22, 1997, which was dated November 17,1998; 2) four “Agreement[s] to Suspend Prescription of Louisiana Corporation Income Tax,” each signed by a representative of IMC or Mosaic and a Department representative; and 8) a September 27, 2001 letter from a Department representative referring to the “Agreement to Suspend Prescription” for Free-port’s Louisiana income tax and franchise tax as “waivers of prescription.”

The trial court sustained Mosaic’s exception and signed an October 22, 2007 judgment in favor of Mosaic and against the Department, ordering the dismissal of the Department’s action with prejudice. The Department has appealed, asserting the trial court erred in finding that the “Agreement^] to Suspend Prescription” did not suspend prescription until April 6, 2006. Mosaic has also answered the appeal, challenging the trial court’s denial of its exceptions.

II. ANALYSIS

A. Prescription

If evidence is introduced at the hearing on the peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error-Jdearly5 wrong standard of review. Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. The trial court’s legal conclusions, however, are reviewed by the appellate court de novo. Boquet ex rel. Billiot v. SWDI, LLC, 07-0738, p. 2 (La.App. 1st Cir.6/6/08), 992 So.2d 1059. In reviewing a peremptory exception raising the objection of prescription, appellate courts strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Id.

Freeport, a Delaware corporation that engaged in business in Louisiana in 1997, merged into IMC, a Delaware corporation not qualified to transact business in Louisiana. In 2004, IMC changed its name to Mosaic, a corporation also not qualified to transact business in Louisiana. The petition asserts that the corporate income tax is owed as a result of business conducted during 1997, presumably by Freeport prior to its merger into IMC.

The tax return for the 1997 fiscal year at issue was due on April 15, 1998. Freeport filed its return on November 17, 1998, presumably after filing for and being granted an extension. See La. R.S. 47:103. Payment of any taxes owed for | fithat tax period were also due during 1998. See La. R.S. 47:105(A). A claim to collect taxes “shall prescribe in three years after the thirty-first day of December in the year in which they are due, but prescription may be interrupted or suspended as provided by law.” La. Const. Art. VII, § 16.

Louisiana Revised Statutes 47:1580 provides the following regarding suspension of prescription:

A. The prescription running against any state tax, license, excise, interest, penalty, or other charge shall be suspended by any of the following:
(1) The secretary’s action in assessing any such amounts in the manner provided by law.
(3) The filing of any pleading, either by the secretary or by a taxpayer, with the board of tax appeals or any state or federal court.
B. The running of such prescription shall also be suspended prior to the lapse of the prescriptive period set out in the Constitution of Louisiana as hereinafter provided:
(1) For any period by means of a written agreement between the taxpayer and the secretary of the Department of Revenue[.]

Louisiana Civil Code article 3472 also provides, “The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.”

|7In the present case, no evidence was introduced to establish that the secretary had made any assessments pertinent to this matter. In September 2001, however, Freeport and the Department executed a standardized form entitled “Agreement to

Suspend Prescription,” which provided in pertinent part as follows:

WHEREAS, both the taxpayer and the [Department] desire to have additional time within which to discuss the legal questions and facts involved, it is hereby agreed that the [Department] shall not finally assess nor bring suit for collection of such taxes prior to FEBRUARY 01, 2002, and the taxpayer agrees that the running of the period of prescription against the assessment or collection of any such tax due and owing to or refund from the State of Louisiana for the years covered by this agreement is hereby suspended for a period of ONE YEAR from December 31, 2001, and that any such tax may be assessed or suit instituted for the collection or refund from thereof at any time between the dates of FEBRUARY 01, 2002 through DECEMBER 31, 2002, and that the taxpayer will never plead prescription to any claim for taxes which are the subject of the agreement for the period stated above if such taxes are assessed or suit brought for the collection thereof before the expiration of the time set out herein.

In August 2002, IMC and the Department executed another “Agreement to Suspend Prescription” that likewise provided that “the running of the period of prescription” was “suspended for a period of ONE YEAR from December 31, 2002.” IMC and the Department executed another agreement in October 2003, which provided that “the running of the period of prescription” was “suspended for a period of one year from December 31, 2003.”

| sIn November 2004, Mosaic and the Department signed the last of the “Agreements to Suspend Prescription,” which provided in pertinent part as follows:

Whereas, the [Department] desires to verify the amount of Louisiana Corporation Income Tax owed by or refund owed to MOSAIC GLOBAL HOLDINGS INC. (F/K/A IMC GLOBAL INC.) SUCCESSOR BY MERGER TO FREEPORT-MCMORAN INC., the taxpayer, for the period of January 1, 1997 through December 22, 1997; and
Whereas, both the taxpayer and [the Department] desire to have additional time within which to discuss the legal questions and facts involved, it is hereby agreed that the Secretary of Revenue shall not finally assess nor bring suit for collection of such taxes prior to February 1, 2005, and the taxpayer agrees that the running of the period of prescription against the assessment or collection of any such tax due to the State of Louisiana for the period covered by this agreement is hereby suspended for a period of one year from December 31, 2004, and that any such tax may be assessed or suit instituted for the collection thereof at any time between the dates of February 1, 2005 through December 31, 2005, and that the taxpayer will never plead prescription to any claim for taxes which are the subject of this agreement for the period stated above, if such taxes are assessed or suit brought for the collection thereof before the expiration of the time set out herein. The [Department] agrees that the period of prescription for refunding or crediting overpayments that may be due to the taxpayer shall be extended in accordance with the terms of this agreement.

Based on these “Agreement[s] to Suspend Prescription” and the time of the filing of the petition, the trial court determined that the Department’s suit had prescribed. The trial court reasoned that if the Department was “going to file suit, [it] should have done so by the date set forth in the contract.”

In the instant suit, the facts are not in dispute; the issue presented herein is a legal one, i.e., did the four “Agreements] to Suspend Prescription” effect a | (¡suspension of the three-year prescriptive period set out in La. Const. Art. VII, § 16, or did the “Agreements] to Suspend Prescription” effect a waiver of the Department’s right to file suit to collect such taxes after December 31, 2005?

Prescription is suspended for as long as the cause of suspension continues. See La. C.C. art. 3472. After the cause for the suspension ends, the prescriptive time begins running and the “time which precede[d] the suspension is added to the time which follows it to compose the necessary period; only the period of the suspension is deducted.” LeBreton v. Rabito, 97-2221, p. 6 (La.7/8/98), 714 So.2d 1226, 1229 (quoting G. Baudier-Lacantinerie & A. Tissier, TRAITE THEORIQUE ET PRA-TIQUE DE DROIT CIVIL, No. 415 at 221-22 (4th ed.1924), reprinted in 5 CIVIL LAW TRANSLATIONS at 21-22 (La. St. Law Inst. Trans. 1972)).

The Department argues that prescription was halted or slumbered on September 26, 2001, when both it and Mosaic had signed the initial “Agreement to Suspend Prescription.” In brief, the Department contends:

The suspending, halting or slumbering of the liberative prescriptive period as provided under [La. Const. Art. VII, § 16] continued with each subsequent execution of the suspension of prescription agreements in 2002, 2003 and 200[4].... Under the suspension agreement, prescription slumbered or halted from September 26, 2001, when the first agreement was signed through December 31, 2005, when the suspension agreement no longer existed.

1inThus, the Department asserts that when the period of suspension ended on December 31, 2005, it had 96 days remaining in the three-year prescriptive period (or until April 6, 2006) within which to file suit, and its filing on January 3, 2006, was timely.

Mosaic argues that “the contract is not one which ‘suspends’ the running of prescription,” but that the contracts are more accurately categorized as “agreements by the taxpayer to waive the plea of prescription .... ” Mosaic asserts the agreements effected a “waiver of the prescription defense by the taxpayer up to, but no later than, December 31 of the applicable year.” To bolster its “waiver” argument, Mosaic introduced a September 27, 2001 cover letter, signed by Lambrini C. Piskioulis, Administrative Secretary for the Department, which was addressed to Freeport, wherein she referenced enclosed “executed waivers of prescription agreement ... extending the statute of limitations ...” that pertained to Freeport’s 1997 Louisiana income tax liability.

The interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046. The words of a contract must be given their generally prevailing meaning. La. C.C. art.2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. The use of extrinsic evidence is proper only when a contract is found to be ambiguous after an ^examination of the four corners of the agreement. James Const. Group, L.L.C. v. State ex rel. Dep’t of Tramp, and Dev., 07-0225, p. 5 (La.App. 1st Cir.11/2/07), 977 So.2d 989, 993. When addressing such legal issues, a reviewing court conducts a de novo review of questions of law and renders a judgment on the record. Id.

The “Agreement[s] to Suspend Prescription” are clearly worded to provide for a period of suspension and do not use the term “waiver.” Each agreement provided a specific time period during which the “running of the period of prescription against the assessment or collection of any such tax due” was “suspended for a period of one year.” Because the agreements are unambiguous, there is no basis for considering the terminology used by the Department in a cover letter.

Based on the terms of the last “Agreement to Suspend Prescription,” the Department agreed not to “finally assess or bring suit for collection of such taxes prior to February 1, 2005.” The Department could institute suit between February 1, 2005, and December 31, 2005, but if the Department did so, Mosaic agreed that as “taxpayer,” it would not plead the defense of prescription during this period of time. Although Mosaic tries to infer such a waiver, the terms of the agreement do not provide that the Department waived its right to file suit after December 31, 2005.

The agreements clearly do not preclude Mosaic from pleading the defense of prescription to any claim for taxes filed after December 31, 2005. While | ^Mosaic is entitled to plead the prescription defense, the merit of the defense is to be determined by the applicable prescriptive period and La. C.C. art. 3472. There is no conflict between the terms of the contract and La. C.C. art. 3472.

The Department was entitled to file suit before the three-year prescriptive period ran; it did not waive this right by executing the “Agreement^ to Suspend.” The original agreement executed in September 2001 clearly states that “the running of the period of prescription ... is hereby suspended for a period of ONE YEAR from December 31, 2001.” (Emphasis added.) With the parties expressly providing for commencement of the suspension from December 31, 2001, the last day of the three-year prescriptive period, the running of prescription was not suspended until that last day of the three-year prescriptive period or December 31, 2001. The subsequent agreements to suspend the running of prescription likewise focused on December 31 as the date from which prescription would be suspended. Therefore, when the period of suspension terminated upon the expiration of December 31, 2005, prescription commenced to run again, with one day left of the three-year prescriptive period, as suspended.

Accordingly, the Department of Revenue’s January 3, 2006 filing was timely under the terms of the Hurricane Katrina legislation. See La. R.S. 11S9:5822(A). Since the suspension lapsed upon the expiration of December 31, 2005, the remaining day of the three-year prescriptive period was subject to a limited suspension and/or extension during the period of August 26, 2005, through January 3, 2006. Therefore, the Department of Revenue had until January 3, 2006, to file this action. Furthermore, since January 1, 2006, fell on a Sunday and, in accordance with La. R.S. 1:55, Monday, January 2, 2006, was a legal holiday, the Department’s January 3, 2006 filing with the clerk of court’s office was timely. Thus, the trial court erred in concluding that the suit had prescribed.

B. Personal Jurisdiction

In reviewing a judgment on an exception of lack of personal jurisdiction, the factual findings underlying the judgment are reviewed for manifest error. The application of established rules of law to the facts, however, is a legal question, and thus, the legal issue of personal jurisdiction over a nonresident by a Louisiana court is subject to de novo review. Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 06-1736, p. 6 (La.4/11/07), 954 So.2d 120, 125. Based on our review of the record, we find no dispute as to the facts related to the jurisdictional issue before us, and thus, we review this matter de novo. Id. at 126.

The Louisiana long-arm statute, La. R.S. 13:3201, provides for the exercise of personal jurisdiction over a nonresident defendant, stating in pertinent part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

Based on the language of Subsection B, the sole inquiry is whether the exercise of jurisdiction comports with constitutional due process. See Alonso v. Line, 02-2644, p. 6 (La.5/20/03), 846 So.2d 745, 750, cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d 311(2003).

The due process test, which was first enunciated in Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945), requires that to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. The “minimum contacts” prong is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities |T ¿within the forum state, thus invoking the benefits and protections of its laws.” Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126, p. 6 (La.4/13/99), 731 So.2d 881, 885, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)). The nonresident’s “purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. Ruckstuhl, 98-1126 at p. 6, 731 So.2d at 885 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

The second part of the due process test centers around the fairness of the assertion of jurisdiction. Once minimum contacts are established, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with “fair play and substantial justice.” Burger King Corp., 471 U.S. at 476, 105 S.Ct. at 2184. Thus, once the plaintiff meets his burden of proving minimum contacts, a presumption of reasonableness of jurisdiction arises and the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum, de Reyes v. Marine Management and Corisulting, Ltd., 586 So.2d 103, 107 (La.1991). In determining this fundamental fairness issue, the relevant considerations are: (1) the defendant’s burden; (2) the forum state’s interest; (3) the plaintiffs interest in | Uiconvenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies. Southeast Wireless Network, Inc., 06-1736 at pp. 5-6, 954 So.2d at 125.

In its answer filed with this court, Mosaic urges that the Department cannot “bootstrap” onto Freeport’s contacts in Louisiana to justify the assertion of personal jurisdiction over Mosaic. Although it does not dispute that Freeport transacted business in this state, Mosaic asserts it is neither licensed nor registered with the Secretary of State to conduct business in Louisiana. Mosaic further contends in brief:

The only allegation against Mosaic is that it is legally responsible for the debts of [Freeport] under a statute [La. R.S. 12:115] relating to “successor liability” upon the merger of corporations. There is no allegation that Mosaic ... ever had any involvement with the specific business transactions which created the alleged tax liability on the part of [Freeport]....
The mere imposition, by statute, of successor liability is not sufficient to make Mosaic amenable to jurisdiction in personam. The Court must not confuse substantive law and the law relating to personal jurisdiction. The existence of a claim for successor liability does not equate to jurisdiction in personam. ...

The Department’s jurisdictional claim is based on the long-arm statute, La. R.S. 13:3201, and on La. R.S. 12:115, which provides in pertinent part, as follows:

Upon the effectiveness of the merger or consolidation, the effect thereof shall be that:
A.The several parties to the joint agreement shall be one business, nonprofit or foreign corporation, which shall be
(1) In the case of merger, that one of the constituent business, [17nonprofit or foreign corporations into which it has been agreed that the others shall be merged, and which shall survive the merger for that purpose,
B. The separate existence of the constituent business, nonprofit and foreign corporations shall cease, except that of the surviving business, nonprofit or foreign corporation in the case of merger.
C. The surviving or new business, nonprofit or foreign corporation shall possess all the rights, privileges and franchises possessed by each of the former business, nonprofit and foreign corporations so merged or consolidated, except that a surviving or new business corporation shall not thereby acquire authority to engage in any business or exercise any right, or to engage in or to exercise any function or object for which a corporation may not be formed under this Chapter.
D. All of the property and assets of whatsoever kind or description of each of the constituent business, nonprofit or foreign corporations, and all debts due on whatever account to any of them, including subscriptions for shares and other choses in action belonging to any of them, shall be taken and be deemed to be transferred to, and vested in, the surviving or new business, nonprofit or foreign corporation without further act or deed.
E. The surviving or new business, nonprofit or foreign corporation shall be responsible for all of the liabilities and obligations of each of the business, nonprofit and foreign corporations merged or consolidated, in the same manner as if such surviving or new corporation had itself incurred such liabilities or obligations; but the liabilities of such constituent corporations or of their shareholders, members, directors or officers shall not be affected, nor shall the rights of the creditors thereof, or of any persons dealing with such corporations, be impaired by such merger or consolidation; and any claim existing, or action or proceeding pending, by or against any of such constituent corporations may be prosecuted to judgment as if such merger or consolidation had not taken place, or the surviving or new corporation may be proceeded against, or substituted, in place of such constituent corporation. (Emphasis added.)

118Thus, the issue presented is whether, for the purpose of satisfying Louisiana’s long-arm statute “minimum contacts” requirement, the undisputed significant forum contacts of the predecessor corporation, Freeport, can be imputed to the successor corporation, Mosaic (formerly IMC), by merger.

Numerous courts have held that a corporation may be subject to personal jurisdiction in a foreign forum if the contacts of its predecessors are constitutionally sufficient. These courts have asserted jurisdiction over successor corporations where the forum law would hold the successor corporation liable for the predecessor’s conduct in the forum state. See State of Idaho v. M.A. Hanna Co., 819 F.Supp. 1464, 1476-77 (D.Idaho 1993); Duris v. Erato Shipping, Inc., 684 F.2d 352 (6th Cir.1982), aff'd sub nom., Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 103 S.Ct. 1991, 76 L.Ed.2d 120 (1983); Goffe v. Blake, 605 F.Supp. 1151 (D.Del.1985); Cole v. Caterpillar Machinery Corp., 562 F.Supp. 179 (M.D.La.1983); Maryland Nat’l Bank v. Shaffer Stores Co., 240 F.Supp. 777 (D.Md.1965). Recognizing that a successor corporation by merger or consolidation is essentially the present corporate embodiment of the predecessor, these decisions have imputed the forum contacts of the predecessor to prevent formalistic changes from immunizing the successor from suit in the forum where its predecessor clearly would have been subject to personal jurisdiction. See Duris, 684 F.2d at 356. Since a successor corporation can avail itself of the benefits of our forum state in order to sue for monies owed its corporate predecessor, the successor corporation, who is able to derive benefits from the |19forum, should also be expected to answer for alleged liabilities of its predecessor in this forum. See Cole, 562 F.Supp. at 180. In fact, the merger itself has been found to constitute a sufficient minimum contact to support the exercise of personal jurisdiction over the successor corporation. Hagan v. Val-Hi, Inc., 484 N.W.2d 173, 177 (Iowa 1992).

Thus, based on these considerations and because La. R.S. 12:115 E would substantively operate to hold Mosaic liable for any Louisiana corporate tax liability of Free-port, we also deem it appropriate to impute Freeport’s contacts with this state to Mosaic for purposes of satisfying the “minimum contacts” requirement of our long-arm statute. We find it reasonable that a successor foreign corporation should reasonably expect to be called to answer to an action in a Louisiana court after it has merged with a foreign corporation that had sufficient minimum contacts with the State of Louisiana. See Burger King Corp., 471 U.S. at 471-72, 105 S.Ct. at 2181-82, 85 L.Ed.2d at 540-41; Hagan, 484 N.W.2d at 177.

At this point, the burden shifted to Mosaic to establish that jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum. See de Reyes, 586 So.2d at 107. Based on the record before us, Mosaic has not established that Louisiana’s exercise of jurisdiction to resolve this dispute would be unreasonable. Mosaic failed to establish any burden that would result from litigating in this state; this state has a significant public interest in being able to conveniently adjudicate |2oMosaic’s alleged Louisiana corporate income tax liabilities in this state; the courts of this state will most efficiently determine such liability; and Mosaic has not established that any social policies are hindered by requiring it to adjudicate this dispute in Louisiana. See Southeast Wireless Network, Inc., 06-1736 at pp. 6-7, 954 So.2d at 125. Thus, we find that notions of fair play and substantial justice are not offended by requiring Mosaic to defend this suit in a Louisiana court.

Accordingly, since we find that constitutional due process requirements have been met to support the exercise of personal jurisdiction over Mosaic, we find that the trial court properly denied Mosaic’s exception raising the objection of lack of personal jurisdiction.

C. Venue

Louisiana Revised Statutes 13:3203 provides, “A suit on a cause of action described in [La.] R.S. 13:3201 may be instituted in the parish where the plaintiff is domiciled, or in any parish of proper venue.” The domicile of the Department is in Baton Rouge. La. R.S. 36:451.

The parties do not dispute any of the facts pertaining to venue. Thus, whether East Baton Rouge Parish is a proper venue for this action presents a question of law, which this court reviews de novo. See Price v. Roy O. Martin Lumber Co., 04-0227 (La.App. 1st Cir.4/27/05), 915 So.2d 816, 824, writ denied, 05-1390 (La.1/27/06), 922 So.2d 543.

In its answer to the appeal, Mosaic urges the trial court erred in denying its declinatory exception of improper venue. In its appellate brief, Mosaic contends, |2i“Venue is not conferred by La. R.S. 13:3203 because the action brought by [the Department] against Mosaic is not an action ‘described in La. R.S. 13:3201.’ ” As authority for its position, Mosaic cites Garcia v. Poseidon Shipping Co. Ltd., 99-0322 (La.App. 4th Cir.10/6/99), 746 So.2d 633, 636, writ denied, 99-3182 (La.1/28/00), 753 So.2d 203, which held that the language of La. R.S. 13:3203, specifying venue for “a suit on a cause of action described in [La.] R.S. 13:3201,” contemplates only the eight causes of action listed in Subsection A of La. R.S. 13:3201. Because the allegations of the petition assert that the alleged taxes are owed as a result of business conducted by Freeport prior to December 22, 1997, the date of Freeport’s merger into IMC (now Mosaic), Mosaic argues that the Department’s suit to collect taxes does not arise from any business transacted by IMC or Mosaic within Louisiana. Mosaic asserts that the cause of action must arise from one of the enumerated activities performed by the nonresident, not the nonresident’s predecessors in interest.

We find no merit in Mosaic’s contention that East Baton Rouge Parish is not a proper venue for this suit. Without reaching the issue of whether the venue provision of La. R.S. 13:3203 is limited to the causes of action listed in La. R.S. 13:3201 A, we find Section 3203 is applicable to the Department’s suit to collect taxes. It is undisputed that Freeport, prior to its merger with IMC (now Mosaic), transacted business in Louisiana. Thus, Mosaic, through its predecessor, Freeport, transacted business in this state within the meaning of La. R.S. 13:3201 A(l); jurisdiction is conferred by the long-arm statute, based on the imputation of ^Freeport’s conduct to Mosaic. Thus, venue is proper in East Baton Rouge Parish, as the parish where the Department is domiciled.

III. CONCLUSION

For these reasons, we find the Department’s suit is not prescribed, and we reverse the trial court’s October 22, 2007 judgment. Because we find the trial court had personal jurisdiction over Mosaic pursuant to the long-arm statute, La. R.S. 13:3201, and East Baton Rouge Parish is a proper venue for this suit, we affirm the trial court’s May 8, 2006 judgment. Accordingly, we remand this matter for further proceedings. Appeal costs are assessed to Mosaic Global Holdings, Inc.

MAY 26, 2006 JUDGMENT AFFIRMED; OCTOBER 22, 2007 JUDGMENT REVERSED; REMANDED.

DOWNING, J., concurs.

      . In its answer, Mosaic also asserted that the trial court erred in overruling its dilatory exception raising the objection of vagueness. Mosaic's appellee brief does not brief this issue, however. According to the Uniform Rules-Louisiana Courts of Appeal, Rules 2-12.4 and 2-12.5, issues not briefed on appeal are deemed abandoned. Worthen v. DeLong, 99-1149, p. 4 n. 1 (La.App. 1st Cir.6/23/00), 763 So.2d 820, 823 n. 1.

      . The Department asserted that its audit revealed that Mosaic owed $3,186,903.00, plus interest in the amount of $3,685,941.80 calculated through December 31, 2005, plus any interest that becomes due under La. R.S. 47:1601 until the principal sum is paid.

      . Although Mosaic also initially raised the objection of the insufficiency of service of process, the May 26, 2006 judgment ordered that this objection was "hereby deemed WITHDRAWN.” This objection is not at issue in this appeal.

      . After the trial court overruled Mosaic’s dec-linatory exception raising the objection of improper venue, Mosaic filed an application for supervisory writs, which this court denied. Bridges v. Mosaic Global Holdings, Inc., 06-1076 (La.App. 1st Cir.7/24/06) (unpublished writ action).

      .When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him or her, in addition to review of the final judgment. Rao v. Rao, 05-0059, p. 6 (La.App. 1st Cir. 11/4/05), 927 So.2d 356, 360, writ denied, 05-2453 (La.3/24/06), 925 So.2d 1232. Likewise, the appellee is entitled to seek such review pursuant to an answer. See La. C.C.P. art. 2133.

      . The Louisiana Secretary of State’s records indicate that the merger occurred on February 6, 1998, but was "effective in home state on December 22, 1997

      . Concerning the time and place for filing returns, La. R.S. 47:103(A)(1) provides, in pertinent part:
      Corporation income tax returns. Returns for corporations on the basis of the calendar year shall be made and filed with the secretary at Baton Rouge, Louisiana, on or before the fifteenth day of April, following the close of the calendar year. Returns for corporations made on the basis of a fiscal year shall be made and filed with the secretary at Baton Rouge, Louisiana, on or before the fifteenth day of the fourth month following the close of the fiscal year.

      .Regarding time of payment, La. R.S. 47:105(A) provides, in pertinent part:
      The total amount of tax on a calendar or fiscal year income tax return shall be paid on the date the return is required by law to be filed determined without regard to any extension of time for filing the return.

      . An IMC representative signed the agreement on September 11, 2001, and the Department representative signed it on September 26, 2001. Each of the four " Agreements] to Suspend Prescription” was signed by the IMC or Mosaic representative outside the state of Louisiana.

      . The effect of an interruption of prescription differs from a suspension of prescription, in that when the interruption ceases, the time that had run before the interruption is not counted, whereas time that had accrued before the suspension is counted, and prescription commences to run again upon the termination of the period of suspension. See La. C.C. arts. 3466 and 3472. In re Smithson, 07-2262, p. 5 n. 2 (La.App. 1st Cir.6/6/08), 991 So.2d 1075, 1081 n. 2.

      . When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art.2046.

      . See La. C.C. arts. 3454 and 3472.

      . La. C.C. art. 3471.

      . Concerning the suspension and extension of prescription, La. R.S. 9:5822(A) provides:
      All prescriptions, including liberative, acquisitive, and the prescription of nonuse, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006. This limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim, or action which would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006.


source: Caselaw Access Project

author: CHRIS J. ROY, SR., Judge Pro Tem. GREMILLION, Judge.

license: Public Domain

text:
    Mark MEARS, et al. v. Mark A. STANLEY, et al.
    No. 08-636.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2008.
    Rehearing Granted Feb. 25, 2009.
    Opinion on Rehearing May 6, 2009.
    Writ Denied Sept. 25, 2009.

      James L. Maughan, Maughan, Maughan & Lormand, Baton Rouge, LA, for Plaintiffs/Appellants, Mark Mears, Individually and as Natural Tutor of his Minor Children, Rachel Crader, Megan Crader and Joseph Crader.
    Andrew Robinson Johnson, IV, Plauche, Smith & Nieset, Lake Charles, LA, for Defendants/Appellees, State Farm Mutual Auto. Ins. Co., Louisiana Escort and Permit Service.
    Allen J. Mitchell, II, Mitchell & Blanco, Lake Charles, LA, for Defendants/Appel-lees, State Farm Mutual Auto Ins. Co., Mark A. Stanley.

      Court composed of JOHN D. SAUNDERS, JAMES T. GENOVESE, and CHRIS J. ROY, Judges.
   CHRIS J. ROY, SR., Judge Pro Tem.

_JjThe plaintiff-appellant, Mark Mears, individually and as natural tutor of his minor children, Rachel Crader, Megan Crader, and Joseph Crader, appeals the trial court’s dismissal of his claims via summary judgment against the defendants-appellees, Louisiana Escort and Permit Service and its insurer, State Farm. For the following reasons, we reverse.

FACTS

On September 22, 2005, Mears agreed to ride with his friend, Mark Stanley, an employee of Louisiana Escort and Permit Service (“Louisiana Escort”), to escort an 18-wheel tractor trailer rig carrying an oversized load from southeast Texas to Lima, Ohio. Mears was going to help with the travel expenses, and in turn, Stanley was going to pay Mears for his help after the job was completed.

The pair traveled in a vehicle owned by Louisiana Escort but used by Mears. In fact, the deposition testimony of Burchman Fruge, the owner of Louisiana Escort, explained the vehicle was “leased” to Mears, but Louisiana Escort provided the insurance for the vehicle. Company policy prohibited guest passengers while an employee was in the course and scope of his employment.

As Mears and Stanley began their escort, southeast Texas and southwest Louisiana evacuated ahead of the imminent strike of Hurricane Rita. After traveling only sixty or seventy miles in about a day- and-a-half, the truck driver whose load Mears and Stanley were escorting decided to abandon the load. He parked his rig on the side of the roadway, called someone to advise he had abandoned the load, and left.

When Stanley contacted Fruge about the situation, Fruge instructed him to |2attend to his personal business, “including evacuating and taking refuge from Hurricane Rita.” Stanley and Mears then made their way to a hunting camp near Vidor, Texas, and they rode out the hurricane in the Louisiana Escort truck.

After the storm subsided, Mears and Stanley believed their vehicle had insufficient gasoline to make the trip back to Lake Charles, where they had begun their journey, and gasoline was not available for purchase because of the hurricane. Instead, they decided to drive to the home of Stanley’s father in DeQuiney, Louisiana. Mears had been monitoring the gas gauge, knew it was getting low, and said he “ain’t a walking kind of fellow.”

Once at Herman Stanley’s home in De-Quincy, Stanley visited with his family for about an hour-and-a-half while Mears slept in the Louisiana Escort vehicle. Stanley then woke Mears and told him they would use a 1999 Ford pickup truck belonging to Stanley’s father, which had a full tank of gasoline, to complete their trip to Lake Charles.

Stanley and Mears left DeQuiney in the 1999 Ford pickup and headed to Lake Charles to allow Mears to check on possible hurricane damage to his home. Mears knew of no intention to go anywhere else other than to his house.

During the trip from DeQuiney to Lake Charles, Mears was injured in a head-on collision between the 1999 pickup truck and another vehicle. Mears filed suit against Stanley, Louisiana Escort, and State Farm Mutual Automobile Insurance Company (“State Farm”). The trial court granted the Motions for Summary Judgment filed by Louisiana Escort and State Farm, concluding that Stanley was not in the course and scope of his employment at the time of the accident, thereby precluding coverage under State Farm’s policy.

JjISSUES

On appeal, Mears alleges the trial court erred in finding Stanley’s employment mission was complete when he arrived at his father’s house in DeQuincy. Mears further assigns as error the finding of no coverage by State Farm if Louisiana Escort is dismissed from the litigation, and argues the 1999 Ford pickup was a temporary substitute for the Louisiana Escort vehicle.

MOTION FOR SUMMARY

JUDGMENT

The trial court and the parties treated the two issues as separate motions for summary judgment. First, the trial court considered the issue of whether Stanley was in the course and scope of his employment at the time of the accident and found that his employment mission ended when he and Mears reached the home of Stanley’s father in DeQuincy. Thus, it granted summary judgment in favor of Louisiana Escort. Because the trial court viewed that factual finding as dispositive of the course and scope issue, it did not address the second motion, but instead assumed the finding that Stanley was outside the course and scope of his employment precluded coverage under State Farm’s policy. We address each motion separately, as did the trial court.

Standard of Review

The appellate courts review summary judgments de novo, and thus, ask the same questions as the trial courts to determine whether summary judgment is appropriate. Magnon v. Collins, 98-2822 (La.7/7/99), 789 So.2d 191. Summary judgment is proper only when it is inevitable that reasonable minds would conclude no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B); Renfro v. Burlington Northern and Santa Fe RR, 06-952 (La.App. 3 Cir. 12/6/06), 945 So.2d 857, writ denied, 07-803 (La. 4/27/07),4 955 So.2d 644, citing Natchi-toches Parish Hosp. Serv. Dist. v. Radial, 94-995 (La.App. 3 Cir. 2/1/95), 649 So.2d 1152, writ denied, 95-528 (La.4/7/95), 652 So.2d 1349. Thus, summary judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show a lack of factual support for an essential element of the opposing party’s claim. La.Code Civ.P. art. 966(B) and (C). If the opposing party cannot produce any evidence to suggest he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist.

A fact is “material” when “it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765; Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, the courts look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy and inexpensive determination of every action. La. Code Civ.P. art. 966(A)(2).

In order to determine whether the trial court erred in granting summary judgment here, we must consider whether any disputed material facts exist regarding whether Stanley was in the course and scope of his employment at the time of the accident, and whether State Farm’s policy provides coverage for the vehicle Stanley was operating at the time of the accident.

I. Was Stanley in the course and scope of his employment?

The trial court considered the factual issue of Stanley’s residence to be a material one. It granted summary judgment after deciding Stanley’s employment-[related5 journey ended when he reached his father’s home in DeQuincy, and Stanley’s activities after that point were not “company business.” Had Stanley’s residence been elsewhere, particularly some point beyond Mears’ residence, the trial court indicated it would have ruled differently.

As a material fact, the place of Stanley’s residence was in dispute. While a movant’s unanswered evidence of a material fact will ordinarily result in summary judgment being granted (La.Code Civ.P. art. 966), conflicting evidence regarding a material fact may defeat summary judgment. Estate of Dauzat v. American Eagle Ins. Co., 06-333 (La.App. 3 Cir. 10/11/06), 941 So.2d 166.

Here, however, neither party had reliable evidence regarding Stanley’s residence, the determination of which decided the course and scope issue for the trial court. Mears’ deposition testimony indicated he and Stanley only intended to go to Mears’ home to check on it after the hurricane. He testified Stanley had no place to stay, had “been bouncing around from house to house” and had been seen in Topsy. Fruge thought Stanley lived at his father’s house in DeQuincy, but was not positive. Nevertheless, counsel for Louisiana Escort and State Farm represented to the trial court that Stanley was living with his father in DeQuincy at the time of the accident. In fact, neither party offered the trial court any evidence, beyond mere speculation, of Stanley’s residence in De-Quincy or anywhere else. Accordingly, the trial court erred in granting summary judgment on this issue based on a finding that Stanley was outside the course and scope of his employment because the issue of Stanley’s residence in DeQuincy is a genuine issue of material fact that remains disputed. However, as discussed below, the course and scope issue is not disposi-tive of whether State Farm’s policy provided coverage.

| sil. Does State Farm afford coverage for the vehicle involved in the accident?

Interpretation of an insurance policy is a question of law. Stoute v. Long, 98-683 (La.App. 3 Cir. 12/9/98), 722 So.2d 102. This court has authority to construe the provisions of the policy in order to resolve coverage issues. Id.

The trial court erroneously assumed that State Farm’s policy in favor of Louisiana Escort automatically precluded coverage for this accident because of the finding that Stanley was outside the course and scope of his employment. In fact, whether State Farm provides coverage depends on the policy language itself and whether the vehicle involved in the accident may be considered a temporary substitute for the Louisiana Escort vehicle.

A. The policy provides coverage for Louisiana Escort vehicles.

State Farm’s policy, in the 6030L Business Named Insured Endorsement, defines an insured to include any permissive user of a vehicle owned by Louisiana Escort. Nothing in the policy limits coverage to situations where the operator is in the course and scope of his employment; no evidence in the record indicates Stanley was limited to using the Louisiana Escort vehicle solely for business purposes.

Indeed, the record shows Stanley had Louisiana Escort’s permission to use the vehicle for non-business purposes. Although Fruge testified Stanley did not use the Louisiana Escort truck as his personal vehicle, he obviously knew Stanley used the vehicle for personal use to some extent. Stanley was paid by the mile, but only while he was actually providing escort services. Stanley was not paid for “coming back home miles,” even though he obviously had to use the truck to come home. Fruge knew Stanley parked the vehicle at his house, and did not know if Stanley personally owned a vehicle. Fruge’s agreement with his drivers was that he owned and insured |7the vehicles, but they used them. Fruge’s affidavit even explains that he told Stanley, immediately prior to the hurricane, “to attend to personal business, including evacuating and taking refuge,” knowing Stanley would have to make personal use of the Louisiana Escort vehicle to follow those instructions.

The situation here is similar to that in Arceneaux v. Norman, 05-1536 (La.App. 3 Cir. 5/24/06), 931 So.2d 484, writ denied, 06-1629 (La.10/6/06), 938 So.2d 76. In Ar-ceneaux, a truck driver had initial permission from the vehicle’s owner to use it. She was specifically prohibited from carrying passengers in the vehicle. Nevertheless, only one day after her employment, the driver picked up two passengers, and some or all of them, possibly including the driver, began drinking alcoholic beverages while driving around in the truck.

After an accident in which one of the prohibited passengers was injured, the truck’s owner sought summary judgment on grounds it did not negligently entrust its vehicle, the driver was outside the course and scope of her employment, and she was not a permissive user of the vehicle. The trial court agreed the driver was outside the course and scope of her employment, but noted that the omnibus clause of the insurance policy covering the vehicle, as required by La.R.S. 32:900, included coverage for the plaintiffs claim.

That statute requires an automobile liability insurer to provide coverage to the named insured and to any other person using a covered vehicle with the express or implied permission of the named insured. This court held the policy provided coverage once the plaintiff established “initial permission,” regardless of whether the driver was engaged in operations performed for her employer or whether the vehicle was used within the scope of permission granted by the owner. Arcen-eaux, 931 So.2d[8484.

The Arceneaux policy, like the policy here, did not limit coverage to causes arising out of the owner’s business or any other restricted circumstances. Rather, it covered claims arising out of use of the vehicle with the express or implied permission of the named insured. Because the plaintiff proved the truck’s owner had given the driver initial permission to use the vehicle, coverage attached.

This case requires the same result. Regardless of whether Stanley was in the course and scope of his employment at the time of the collision, Louisiana Escort had granted him initial permission to use its vehicle. That fact was established by Fruge himself. Nothing in the policy limited its coverage to business use of the vehicle. Thus, even if Stanley was not in the course and scope of his employment, and even if he deviated from his business purpose while using the Louisiana Escort vehicle, the vehicle remained insured under State Farm’s policy at all times.

B. Is the accident vehicle a temporary substitute for Louisiana Escort’s vehicle?

Having established that the Louisiana Escort vehicle was at all times insured, the question now becomes whether the vehicle owned by Stanley’s father, in use at the time of the accident in place of the Louisiana Escort vehicle, is a “temporary substitute car” as defined by the policy. The Business Named Insured Endorsement defines an insured as anyone using “a temporary substitute car if its use is with the express or implied permission” of the named insured. The policy further defines a “temporary substitute car” as one replacing an insured vehicle for a short time, whose use is with the express or implied permission of the owner when the insured vehicle is “out of use because of breakdown, repair, servicing, damage or loss.”

Louisiana Revised Statutes 22:681 requires every insurance company writing ^automobile liability coverage in the State of Louisiana to provide coverage for temporary substitute vehicles as defined by each policy, and that coverage is primary under the statute. Therefore, if the vehicle owned by Stanley’s father is a temporary substitute as defined by the policy, State Farm provides primary coverage for this accident, and summary judgment in State Farm’s favor was improper.

Hurricane Rita gave rise to innumerable extraordinary situations in southwest Louisiana in September of 2005. Under normal circumstances, Stanley could have simply purchased more gasoline at any number of service stations and continued his use of the Louisiana Escort vehicle. Because of the hurricane, however, virtually all of the area service stations were closed, and gasoline was nowhere to be found. A vehicle with a low or empty tank, normally an easily solved problem, thus became a vehicle that was, or soon would be, out of service.

The 1999 Ford pickup owned by Stanley’s father was intended to replace the Louisiana Escort vehicle for a short time, so that Stanley and Mears could go to Lake Charles in a vehicle containing a sufficient amount of gasoline for them to do so. The record implies it was used with the permission of the owner, Stanley’s father. The only remaining factor is whether the Louisiana Escort vehicle was “out of use due to its breakdown, repair, servicing, damage or loss.”

Ordinarily, a vehicle low on or out of gasoline would not be considered out of use due to its servicing. Again, however, the factual circumstances of this case must be considered in making that determination. Due to the hurricane, the Louisiana Escort vehicle could not be serviced because gasoline was unavailable. The Louisiana Escort vehicle was out of use because it could not make the anticipated trip without being serviced.

h (AH three factors contributing to the definition of a temporary substitute vehicle are met here. The 1999 Ford pickup replaced the Louisiana Escort vehicle for a short time with the permission of its owner while the Louisiana Escort vehicle was out of use due to its servicing. The Ford pickup therefore is a temporary substitute vehicle under the State Farm policy. Accordingly, summary judgment in favor of State Farm is improper under these facts.

CONCLUSION

The trial court erred in granting motions for summary judgment in favor of Louisiana Escort and State Farm. Insufficient evidence was presented to support the trial court’s finding that Stanley’s residence was at his father’s home in DeQuin-cy, and therefore, he was outside the course and scope of his employment at the time of the accident. Moreover, coverage under State Farm’s policy is not dependent on the course and scope issue, but rather on the language of the policy. That language sets out when the policy will provide coverage for a temporary substitute vehicle, and those factors are met here. Therefore, the trial court’s judgment granting the motions for summary judgment of Louisiana Escort and State Farm is reversed. All costs of this appeal are assessed against the defendants-appel-lees, Louisiana Escort and Permit Service and State Farm Mutual Automobile Insurance Company.

REVERSED.

ON REHEARING

Court composed of JOHN D. SAUNDERS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.

GREMILLION, Judge.

_JjWe granted the rehearing application of the Defendants, State Farm Mutual Automobile Insurance Company and Louisiana Escort and Permit Service (collectively, “State Farm”), for the purpose of allowing additional argument. In our original opinion, we found that the trial court’s grant of summary judgment must be reversed. After consideration of the additional argument, we find no error in that result. Mears v. Stanley, 08-636 (La.App. 3 Cir. 12/10/08), 23 So.3d 318.

Mark Mears was a passenger in a company vehicle (the first vehicle) insured by State Farm and being driven by a friend (Stanley), who was an employee of a vehicle escort company. Although Stanley clearly started out his work activity in the company vehicle, he was allegedly forced to use a truck owned by his father (the second vehicle) due to a gas shortage following Hurricane Rita. Mears was injured in the second vehicle when an accident occurred en route from the home of Stanley’s father in DeQuincy, Louisiana, to Mears’ home in Lake Charles, Louisiana, following the storm. For a full discussion of the facts, refer to our previous opinion.

We find that summary judgment was improperly granted in favor of State Farm. Genuine issues of material fact exist whether Stanley was in the course and scope of his employment at the time of the accident while he was driving the second vehicle and whether the second vehicle qualified as a “temporary substitute” under the terms of the State Farm policy. Accordingly, summary judgment in favor of State Farm was inappropriate.

REVERSED.

      . Judge Chris J. Roy, Sr. appointed judge pro tempore of the Court of Appeal, Third Circuit.


author:
PICKETT, J. PICKETT, Judge.
      THIBODEAUX,

text:
    David BAILEY v. AECOM.
    No. 08-1021.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    Rehearing Granted March 25, 2009.
    Opinion on Rehearing June 3, 2009.
    Writ Denied Oct. 2, 2009.

      George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Claimant/Appellant, David Bailey.
    James J. Hautot, Jr., Judice & Adley, Lafayette, LA, for Defendant/Appellee, AECOM.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, J.

11The claimant, David Bailey, appeals a judgment of the trial court denying his claim for workers’ compensation benefits. We affirm the judgment of the workers’ compensation judge.

ISSUE IN DISPUTE

The linchpin of this case is whether the claimant sustained an on-the-job injury to his back in an unwitnessed accident at Ft. Polk. The claimant’s first problem is that the record reveals that the claimant was inconsistent in his allegations. He claims, in his appellate brief, he sustained an on-the-job injury on August 24, 2006. However, on the WC-1008 he filed on November 17, 2006, he reported the date of the accident/injury as September 6, 2006. In his trial testimony, he once again claimed his accident was on August 24, 2006.

LAW AND FACTS

The claimant claims that he injured his back near lunch-time on the morning of August 24, 2006, while lifting an eighty-pound roll of roofing felt out the back of a truck at a job site on Ft. Polk. He testified that he immediately told a co-worker, with whom he was working at the time, Timothy Pelt, of the accident, then called his supervisor, Kenny Hatchett, and reported that he had injured his back. The claimant stated that Mr. Hatchett told him to go get something to eat and to see if he felt better after lunch. The claimant went to Burger King and got a Coke and then went home. He stated that he went to see Dr. Natalie Phillips, his family physician, the next day.

Timothy Pelt testified that he neither witnessed an accident involving the claimant, nor did the claimant tell him that he sustained an accident at work. Furthermore, Mr. Pelt, who keeps a journal of his work assignments, denies working |2with the claimant on the alleged day of the accident (August 24, 2006). Mr. Pelt did remember the claimant complaining of back pain “pretty often,” but stated the claimant never related the back pain to an on-the-job injury. Furthermore, Mr. Pelt could not place any particular time frame to the claimant’s complaints of back pain. Mr. Pelt did remember the claimant talking about an automobile accident in Alexandria, but, once again, Mr. Pelt could not remember the time frame involving that accident.

Kenneth Hatchett, the claimant’s supervisor, testified that the claimant never reported an on-the-job injury to him and that if the claimant would have done so, he (Hatchett) would have instituted a report of injury form detailing the events of any alleged accident.

While Dr. Phillips’ office records substantiate the claimant’s visit of August 25, 2006, they contain no mention any complaint by the claimant of any on-the-job accident the previous day. The claimant’s chief complaints on the visit were diarrhea of two-three weeks duration, nausea and vomiting daily, weight loss, insomnia and back pain. The records also document a family history of neurofibromatosis, and it appears that the claimant has “café au lait” spots.

The claimant argues that his exhibit # 21, Dr. Phillips’ referral letter to Louisiana State University Medical Center-Shreveport (LSUMC-S), supports his claim in that in her letter Dr. Phillips stated: “He initially presented on 08/25/06 with this complaint [(low back pain)].” Attached to claimant’s exhibit #21 is his exhibit #20, the actual referral form to LSUMC-S, which states that Dr. Phillips suspects that the claimant is suffering from “Chronic low back pain.” Neither the referral letter nor |sthe referral form mention a work-related accident in connection with the claimant’s complaint.

The claimant’s records from LSUMC-S state that the claimant “reports 4 wheeler accident 5 years ago and also blunt trauma to the tailbone when he was a child.” The records report the location of the claimant’s symptoms as being in his “Coccyx, Lumbar region of back, [and] sacrum.” Further, the records state: “Problem is chronic, patient stated the symptom was similar to before.”

The first documented report of an on-the-job injury appears in the records of Dr. Clark Gunderson who examined the claimant on referral from the claimant’s attorney on November 30, 2006.

The standard for reviewing a workers’ compensation judge’s (WCJ) decision was recently reviewed by this court in Butterfield v. Turner Industries, 06-1098. pp. 3-4 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 479, writ denied, 07-507 (La.4/27/07), 955 So.2d 692:

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:
In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Ghranite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not preverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).
This court, in Monceaux v. R & R Const., Inc., 05-533, p. 6 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, 799-800, writs denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317, noted the following:
The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed. 1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof |sare factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babeo Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).
(emphasis added.)
Therefore, the standard of review in this case is clearly wrongdnanifest error.

Considering the record as a whole, and especially the discrepancy in the claimant’s testimony, the lack of support of his allegation of an on-the-job accident and injury by (l)his co-workers, (2) the medical records from his treating physician and (3) the medical records from LSUMC-S, we cannot say the WCJ was clearly wrong in finding that the claimant failed to meet his burden to prove a work-related injury by a preponderance of the evidence.

Accordingly, for the reasons stated, the judgment of the workers’ compensation judge is affirmed. All costs of this appeal are assessed to the appellant, David Bailey.

AFFIRMED.

ON REHEARING

PICKETT, Judge.

For the reasons assigned in the opinion issued after original hearing of this matter, the judgment of the trial court is affirmed. Any additional costs incurred on rehearing are assessed to the claimant-appellant.

AFFIRMED.

THIBODEAUX, C.J., dissents and assigns written reasons.

THIBODEAUX,

Chief Judge, dissenting.

IJ am convinced that, when reviewing this record in its entirety, the workers’ compensation judge was clearly wrong in his findings that the claimant failed to meet his burden of proving a work-related injury by a preponderance of the evidence. While the claimant may not have unequivocally articulated to Dr. Phillips the occurrence of a work-related injury on his first visit, this lack of specificity is not fatal. The physical, objective evidence of injury is, in my view, overwhelming in this case, notwithstanding the self-serving assertions of the employer’s witnesses. It is clear that where documents or objective evidence contradicts a witness’ story, a court of appeal may find manifest error even in a finding supposedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d 840 (La.1989); Butler v. Zapata Haynie Corp., 92-71 (La.App. 8 Cir. 2/28/94), 633 So.2d 1274.

While the majority cites discrepancies in the claimant’s testimony, these inconsistencies are really inconsequential and unintentional, just as they were in Richard v. Temple-Inland, 625 So.2d 335 (La.App. 3 Cir.1993). The majority also cites the claimant’s lack of support of an on-the-job accident. As I have stated above, the objective evidence of injury militates against this expressed lack of support. Further, Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992) focuses on serious doubt being cast upon the worker’s version of the accident. No such serious doubt exists in this case, particularly when the claimant’s version is clearly corroborated by both medical and lay testimony.

I am aware that more often than not a fact finder’s findings will be given deference. “Certainly, the fact finder should be accorded great latitude and discretion, but discretion must always be buttressed by sound judgment. It is not immutable.” Butler, 633 So.2d at 1279. The judgment in this case was undermined by a lack of sound judgment.

For the foregoing reasons, I respectfully dissent.