text:
    Brandi BILLEAUDEAU et al. v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, et al.
    17-894
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018. Rehearing Denied June 13, 2018
   Kara Hadican Samuels, Tiffany A. Morales, Kara Hardican Samuels & Associates, LLC, 4004 Canal Street, New Orleans, LA 70119, (504) 558-9478, COUNSEL FOR PLAINTIFFS/APPELLANTS: Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau, Joseph Billeaudeau

Jennifer L. Thornton, Christian S. Chaney, Stanley, Reuter, Ross, Thornton & Alford, LLC, 909 Poydras Street, Suite 2500, New Orleans, LA 70112, (504) 523-1580, COUNSEL FOR PLAINTIFFS/APPELLANTS: Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau, Joseph Billeaudeau

Joseph L. McReynolds, J. Jerry Glas, Karen P. Holland, Deutsch Kerrigan, L.L.P., 755 Magazine Street, New Orleans, LA 70130, (504) 581-5141, COUNSEL FOR DEFENDANT/APPELLANT: Opelousas General Hospital Authority

George P. Hebbler, Jr., Frances Irene McGinnis, Hebbler & Giordano, LLC, 3501 N. Causeway Boulevard, Suite 400, Metairie, LA 70002, (504) 833-8007, COUNSEL FOR DEFENDANT/APPELLANT: Nautilus Insurance Company

Nicholas Gachassin, III, Gary J. Delahoussaye, Brandon M. Rhodes, Gachassin Law Firm, P. O. Box 80369, Lafayette, LA 70598-0369, (337) 235-4576, COUNSEL FOR DEFENDANT/APPELLANT: Opelousas General Hospital Authority

George D. Fagan, Anton L. Hasenkampf, Leake & Andersson, LLP, 1100 Poydras Street, Suite 1700, New Orleans, LA 70163, (504) 585-7500, COUNSEL FOR DEFENDANT/APPELLEE: National Union Fire Insurance Company of Pittsburgh, PA

William H. Parker, III, Jacob E. Favaron, Allen & Gooch, 2000 Kaliste Saloom Rd., Suite 400, Lafayette, LA 70508, (337) 291-1000, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Patients' Compensaton Fund (Opelousas General Hospital), Louisiana Patients' Compensation Fund (Dr. K. Skirlis-Zavala)

J. Gregory Vidrine, Mahtook & LaFleur, P. O. Box 617, Ville Platte, LA 70586, (337) 363-6211, COUNSEL FOR DEFENDANT/APPELLEE: Opelousas General Hospital

Alexander T. Reinboth, Louisiana Department of Justice, Civil, P. O. Box 94005, Baton Rouge, LA 70804, (225) 326-6000, COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana

Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

KYZAR, Judge.

The plaintiffs, Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau, and Joseph Billeaudeau, and the defendants, Opelousas General Hospital Authority, d/b/a Opelousas General Hospital, and Nautilus Insurance Company, appeal the granting of a partial motion for summary judgment, which dismissed National Union Fire Insurance Company of Pittsburg, PA as a party to the Billeaudeaus' negligent credentialing claim against OGH. For the reasons assigned, we reverse, render, and remand for further proceedings.

DISCUSSION OF THE RECORD

This is the second of three appeals before us involving the same parties. The facts of the case were set forth in detail by this court in Billeaudeau v. Opelousas General Hospital Authority , 15-1034 (La.App. 3 Cir. 4/6/16), 189 So.3d 561, writ granted , 16-846 (La. 6/28/16), 192 So.3d 781, wherein we held that the Billeaudeaus' negligent credentialing claim sounded in general negligence as opposed to a claim for medical malpractice, which was required to be pursued under the Louisiana Medical Malpractice Act (MMA), La.R.S. 40:1231.1, et seq. The supreme court reviewed the case and affirmed. Billeaudeau v. Opelousas Gen. Hosp. Auth. , 16-846 (La. 10/19/16), 218 So.3d 513.

As we stated in the first appeal before us, Billeaudeau v. Opelousas General Hospital Authority , 17-893 (La.App. 3 Cir. 4/11/18), --- So.3d ----, 2018 WL 1736224, the Billeaudeaus initially filed a claim against Opelousas General Hospital Authority, d/b/a Opelousas General Hospital (OGH) and its emergency department physician, Dr. Kondilo Skirlis-Zavala (Dr. Zavala), under the MMA for serious injuries allegedly sustained by the Billeaudeaus' daughter, Brandi, while being treated at OGH on June 20, 2010. In their original petition, filed on January 14, 2013, the Billeaudeaus alleged:

Defendant, Opelousas General Hospital, is liable unto Petitioners because Ms. Billeaudeau's injuries and damages, which will be specified hereinafter, were proximately and legally caused by the fault, including negligence, of Opelousas General Hospital ... including the following negligent acts of omission and commission, among others, which may be shown during the trial:
....
e. Negligent credentialing of Dr. Zavala.

On March 27, 2015, the Billeaudeaus filed a motion for partial summary judgment, seeking a ruling by the trial court that their negligent credentialing claim was not subject to the MMA. Following a hearing, the trial court granted judgment in favor of the Billeaudeaus, declaring that the negligent credentialing claim sounded in negligence and was outside the scope of the MMA. Judgment was granted in this matter on July 2, 2015. Thereafter, the Billeaudeaus amended their petition to add a claim in tort for negligent credentialing against OGH and its general liability insurers, National Union Fire Insurance Company of Pittsburg, PA (National Union) and Nautilus Insurance Company (Nautilus) under the Louisiana Direct Action Statute. On July 8, 2015, OGH provided notice to National Union of the lawsuit for the first time.

National Union issued a policy of insurance to OGH, No. 01-701-24-67, with effective dates of October 19, 2014 through October 19, 2015. The policy included four coverage sections: Directors and Officers (D & O), Employment Practices Liability (EPL), Fiduciary Liability (FLI), and Crime. The National Union policy is a claims-made and reported policy, and the notice provided on the declarations page of the policy states: "COVERAGE WITHIN THIS POLICY IS GENERALLY LIMITED TO LOSS FROM CLAIMS FIRST MADE AGAINST INSUREDS DURING THE POLICY PERIOD AND REPORTED TO THE INSURER AS THE POLICY REQUIRES." Further, the D & O Coverage Section of the policy provides: "This policy shall pay on behalf of the Organization Loss arising from a Claim first made against the Organization during the Policy Period or the Discovery Period (if applicable) and reported to the Insurer pursuant to the terms of this policy for any actual or alleged Wrongful Act of the Organization." The EPL and FLI Coverage Sections include language similar to that found in the D & O Coverage Section.

The term "Claim" is defined in the D & O Coverage Section as:

(1) a written demand for monetary, non-monetary or injunctive relief (including any request to toll or waive any statute of limitations); or
(2) a civil, criminal, regulatory or administrative proceeding for monetary, non-monetary or injunctive relief which is commenced by:
(i) service of a complaint or similar pleading;
(ii) return of an indictment, information or similar document (in the case of a criminal proceeding); or
(iii) receipt or filing of a notice of charges.

Concerning the notice requirement, the National Union policy, in its general terms and conditions under Clause 7, as amended in Endorsement Number Fourteen, further specified:

The Insureds shall, as a condition precedent to the obligations of the Insurer under this policy, give written notice to the Insurer of any Claim made against an Insured or any Crisis Management Event (as defined in the D & O Coverage Section) as soon as practicable after the Organization's Risk Manager or General Counsel (or equivalent position) first becomes aware of the Claim; or (ii) the Crisis Management Event commences, but in all events a Claim must be reported no later than either:
(1) anytime during the Policy Period or during the Discovery Period (if applicable); or
(2) within ninety (90) days after the end of the Policy Period or the Discovery Period (if applicable).

The policy also has a bodily injury coverage exclusion. The term "Bodily Injury" is defined within the General Terms and Conditions section of the policy as "physical injury, sickness or disease (other than emotional distress or mental anguish), including death resulting therefrom." The Bodily Injury exclusion provided that coverage is excluded for any payment for loss incurred in connection with a claim "alleging, arising out of, based upon, attributable to or in any way involving, directly or indirectly, Bodily Injury or Property Damage; provided, however, that with respect to the FLI Coverage Section only, this exclusion shall not apply to Defense Costs incurred in the defense of a Claim alleging a Breach of Fiduciary Duty."

The National Union policy also provided an exclusion for damages for a claim "alleging, arising out of, based upon or attributable to the facts alleged, or to the same or Related Wrongful Act alleged or contained in an Claim which has been reported, or in any circumstances of which notice has been given, under any policy of which this policy is a renewal or replacement or which it may succeed in time." The policy defines "Related Wrongful Act" as "a Wrongful Act which is the same, related or continuous, or Wrongful Act which arises from a common nucleus of facts. Claims can allege Related Wrongful Acts regardless of whether such Claims involve the same or different claimants, Insureds or legal causes of action."

On April 3, 2017, National Union filed a motion for summary judgment alleging that its policy did not provide coverage for the negligent credentialing claims. It claimed that the policy of insurance issued to OGH by National Union did not provide coverage for losses sustained as the result of the Billeaudeaus' negligent credentialing claim against OGH, as it was not put on notice of the claim in a timely manner as required by the policy language. National Union additionally urged that the policy excluded coverage for this incident under the "Bodily Injury" exclusion and that it excluded coverage for any claim covered by and noticed under an insurance policy that its policy succeeded. National Union's motion was opposed by the Billeaudeaus, OGH, and Nautilus. Following a May 5, 2017 hearing, the trial court granted National Union's motion as per written reasons for judgment on July 13, 2017, for the following reasons (footnote omitted):

Coverage under the National Union policy requires "a Claim first made against such Individual Insured during the Policy Period or the Discovery Period (if applicable) and reported to the Insurer..." The plain terms of insurance policies must be enforced. See La. C.C. art. 2046 ; Gorman v. City of Opelousas , 2013-1734 (La. 7/1/14, 15), 148 So.3d 888, 898. As argued by National Union in its various briefings to the court, the event that triggered policy coverage occurred prior to the applicable policy period. The claim was "first made" well in advance of the applicable policy period. Therefore, National Union's policy provisions on the making and reporting of claims requires the exclusion of coverage.

Formal judgment was signed on July 26, 2017, dismissing National Union from the suit. The Billeaudeaus, OGH, and Nautilus have all appealed.

Each of the appellants raised assignments of error on appeal, which can be summarized by that assigned by the Billeaudeaus, as follows:

The trial court erred in concluding that the negligent credentialing claim was first made against OGH prior to the policy period during which it was reported to National Union, as OGH had no possible exposure outside of the LMMA and negligent credentialing did not exist as a stand-alone cause of action until the trial court so held in July 2015, which was during the applicable policy period of October 2014-October 2015.

OPINION

The standard of appellate review applicable to summary judgment is well settled. La.Code Civ.P. art. 966. "Appellate review of the granting of a motion for summary judgment is de novo , using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate." Smitko v. Gulf South Shrimp, Inc. , 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755 ; see Billeaudeau , --- So.3d ----.

As we stated in the first appeal, the summary judgment procedure is particularly appropriate for determining certain insurance coverage issues. Sensebe v. Canal Indem. Co. , 10-703 (La. 1/28/11), 58 So.3d 441. The principles of insurance contract interpretation were reviewed by this court in Burns v. Couvillion , 10-763, pp. 8-9 (La.App. 3 Cir. 12/8/10), 53 So.3d 540, 546 (alteration in original), wherein we stated:

"An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles." Orazio v. Henderson , 01-28, p. 2 (La.App. 3 Cir. 7/11/01), 790 So.2d 754, 755 (quoting Ledbetter v. Concord Gen. Corp., 95-809, p. 3 (La. 1/6/96), 665 So.2d 1166, 1169, amended on other grounds , 95-809 (La. 4/18/96), 671 So.2d 915 ). Additionally, "[t]he contract has the effect of law for the parties. La.Civ.Code art. 1983." Id. When the language in an insurance contract is clear and explicit, no further interpretation may be made in search of the party's intent. Hill v. Shelter Mut. Ins. Co. , 05-1783, 05-1818 (La. 7/10/06), 935 So.2d 691. A court should not strain to find ambiguity where none exists. Hebert v. Webre , 08-60 (La. 5/21/08), 982 So.2d 770.

Moreover, the principles pertaining to the interpretation of insurance policy exclusions were reviewed by the supreme court in Ledbetter v. Concord General Corp. , 95-809, p. 4 (La. 1/6/96), 665 So.2d 1166, 1169, amended , 95-809 (La. 4/18/96), 671 So.2d 915, as follows:

Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Garcia v. St. Bernard Parish School Board , 576 So.2d 975, 976 (La. 1991). However, the rule of strict construction does not "authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists." Muse v. Metropolitan Life Ins. Co ., 193 La. 605, 192 So. 72, 75 (1939). Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties , Ltd. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183.

Here, the Billeaudeaus, OGH, and Nautilus all argue that the trial court erred in finding that OGH's notice of the "negligent credentialing" claim to National Union was untimely and, thus, excluded from coverage by the terms of its policy, even though OGH notified National Union immediately following the trial court's ruling that the negligent credentialing claim sounded in negligence. National Union argues, and the trial court accepted, that regardless of the characterization of the claim of "negligent credentialing" as one in negligence or one of medical malpractice, the claim was made and arose as a result of the June 20, 2010 incident at the hospital. The "negligent credentialing" allegation was indeed first asserted as part and parcel of the issues presented by the Billeaudeaus to the medical review panel formed under the guidelines of the MMA, as follows:

Opelousas General Hospital is responsible for the actions of Nurse Richardson, and thus, bears fault in this matter. In addition, the hospital failed to ensure that Dr. Zavala was qualified to work alone in the emergency department at the South Campus (negligent credentialing), and failed to supervise Dr. Zavala. In fact, it has been established that although the hospital had a written stroke protocol and a written transfer protocol, Dr. Zavala had never seen either one. If not for this litigation, Dr. Zavala might not ever have seen the hospital's written protocols, a fact which is unforgivable.

The Billeaudeaus additionally alleged "negligence credentialing" in their original petition against OGH under the MMA. It was then, according to National Union, that OGH had the obligation to put all applicable insurance companies on notice of the claim. In its motion for summary judgment, National Union argues that coverage under its policy is not provided for three reasons:

[T]he National Union Policy does not provide coverage to Opelousas General for the claims alleged in Plaintiffs' lawsuit for three reasons. First, the National Union Policy is a "claims-made" policy, whereby coverage is effective only if the claim is first made and reported during the applicable policy period, i.e., October 19, 2014 to October 19, 2015. The "claim" now asserted by Plaintiff, however, was indisputably first made no later than January 2013 when this action was filed-years before the inception of the National Union Policy. Second, there is no coverage under the National Union Policy for the independent reason that the National Union Policy expressly excludes coverage for any claim "alleging, arising out of, based upon, attributable to or in any way involving" bodily injury, which indisputably includes Plaintiffs' lawsuit Finally, the National Union Policy expressly excludes coverage for any claim "alleging, arising out of, based upon [or] attributable to" the circumstances forming basis of any claim reported under any insurance policy the National Union Policy "may succeed in time." Here, however, Opelousas General reported a claim to Nautilus Insurance Company in June 2011, under a Nautilus policy with a policy period of November 1, 2010 to November 1, 2011, based on the same facts which now form the basis of this action.

We disagree with National Union's arguments, finding that it was error for the trial court to conclude that OGH's notice to National Union, of the "negligent credentialing" claim arising as a negligence claim and first recognized by the trial court as such in July 2015, by this court in April 2016, and finally by the supreme court in October 2016, was untimely and, thus, excluded from coverage.

The policy in question is without a doubt a "claims-made and reported" policy. Claims-made policies differ from "occurrence" policies. In Anderson v. Ichinose, 98-2157, pp. 5-6 (La. 9/8/99), 760 So.2d 302, 305, the court quoted a "seminal statement" on the subject of claims-made versus occurrence policies from Sol Kroll, The Professional Liability Policy "Claims Made," 13 Forum 842, 843 (1978), as follows:

With the development of a more complex society, it became more reasonable, particularly with respect to the activities of professionals, to insure against the making of claims, rather than the happening of occurrences, and "claims made" insurance developed to meet a need for professionals to insure against the making of a claim as the insured event, rather than having to struggle with traditional concepts and difficulties inherent in determining whether the "event" insured against was the commission of an act, error or omission or the date of discovery thereof or the date of injury caused thereby.
The major distinction between the "occurrence" policy and the "claims made" policy constitutes the difference between the peril insured. In the "occurrence" policy, the peril insured is the "occurrence" itself. Once the "occurrence" takes place, coverage attaches even though the claim may not be made for some time thereafter. While in the "claims made" policy, it is the making of the claim which is the event and peril being insured and, subject to policy language, regardless of when the occurrence took place.

Further, in Regions Bank v. Kountz, 05-1106, p. 6 (La.App. 3 Cir. 5/31/06), 931 So.2d 506, 511 (citation omitted), this court stated as follows in differentiating claims-made policies:

Pure claims-made policies shift to the insured only the risk of claims incurred but not made, whereas claims-made-and-reported policies shift the risks both of claims incurred but not made and of claims made but not reported. The purpose of a claims-made-and-reported policy is to alleviate problems in determining when a claim was made or whether an insured should have known a claim was going to be made.

In this case, the "occurrence" was the event at the hospital on June 20, 2010, the treatment rendered to Brandi Billeaudeau. However, in National Union's claims-made and reported policy, it is the claim first made against OGH and reported to National Union during the policy period which is the "event and peril being insured[.]" Anderson , 760 So.2d at 305. Under the facts at issue, we find that the claim, which was the "negligent credentialing" claim sounding in general negligence, was not cognizable by OGH until the trial court's July 2, 2015 ruling holding as such.

Prior to that time, it was unreasonable to assert that OGH should have known that the negligent credentialing claim was being made under general negligence as opposed to a medical malpractice claim as the claim was considered covered under the auspices of the MMA. Within eight days of learning that the negligent credentialing claim was indeed a negligence claim, OGH reported it to National Union. Thus, the claim sounding in general negligence against OGH was first made and then reported to National Union within the time provided for in National Union's policy. As such, the trial court erred in determining otherwise.

To have required OGH to notify National Union (or any insurance company that issued a like policy) of the claim as early as July 2010, or even after the initial medical malpractice suit was filed, would have been a vain and useless act on its part. The National Union policy did not cover claims for medical malpractice. "Negligent credentialing," prior to the trial courts' ruling, as affirmed by this court and the supreme court, was considered a medical malpractice claim. National Union, or any similarly situated insurer, surely would have asserted this exclusion and been summarily dismissed from the litigation. The claim, sounding in negligence, was not cognizable until July 2, 2015 at the earliest, and arguably not until the final ruling of the supreme court. Thus, OGH could not have known that the policy of insurance issued by National Union might indeed provide coverage for the claim now recognized in general negligence as opposed to a claim covered under the MMA. While the occurrence took place with the June 20, 2010 treatment rendered to Brandi at OGH, the actual claim in general negligence, outside the scope of the MMA, did not arise until July 2, 2015. Indeed, recognizing a separate cause of action, although related to the previous occurrence, has been addressed by the supreme court in Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238, n.5 (La. 1993), wherein the court stated:

The task of defining cause of action in various contexts has perplexed Louisiana courts for many years. The task is relatively simple when the separate causes of action arise out of entirely separate facts. However, the task is substantially more difficult when the possibly separate causes of action arise out of overlapping sets of operative facts. These difficult questions must be addressed on a case-by-case basis.

This is such a case. The "cause of action" giving rise to OGH's requirement to notify National Union, its insurer who potentially had exposure to coverage of the claim, did not appear until, at the latest, when the supreme court put to rest the res nova issue of whether negligent credentialing was a distinct action outside of medical malpractice and coverage under the MMA. Although the operative facts were the same as presented in the petition, those facts were not recognized as giving rise to a legally separate cause of action in negligence until the Billeaudeaus presented the issue and the trial court weighed in. As noted by Justice Knoll in Billeaudeau , 218 So.3d at 527, "the tortious conduct alleged herein, i.e ., OGH's negligent administrative decision making, is separate and distinct from the medical decisions and conduct directly related and integral to the rendering of medical care and treatment by the health care providers to the patient in this case, i.e. , the medical malpractice covered by and to subject to the LMMA." Here, OGH's negligent credentialing of Dr. Zavala predated the facts giving rise to the Billeaudeaus' medical malpractice claim, but the claim against OGH for that negligent credentialing as a pure negligence claim was not made against OGH until July 2015, and was properly reported to National Union shortly thereafter. Thus, we reverse the decision of the trial court granting summary judgment in favor of National Union on this ground.

However, that does not end our inquiry. The motion for summary judgment on behalf of National Union also asserted that the policy excluded coverage for damages arising from "bodily injury" and for any claim " 'alleging, arising out of, based upon [or] attributable to' the circumstances forming the basis of any claim reported under any insurance policy" that its policy " 'may succeed in time.' "

National Union argues that there is no coverage under its policy for the independent reason that the policy expressly excludes coverage for any claim " 'alleging, arising out of, based upon, attributable to or in any way involving' bodily injury, which indisputably includes the Billeaudeaus' suit.' " However, the term "Bodily Injury" is defined within the General Terms and Conditions section of the policy as "physical injury, sickness or disease (other than emotional distress or mental anguish), including death resulting therefrom." The claim made on behalf of Brandi arising from the treatment she received at OGH includes damages for mental anguish and emotional distress. Furthermore, Veronica and Joseph Billeaudeau allege that they suffered damages pursuant to La.Civ.Code art. 2315.6, which allows recovery of damages for mental anguish and emotional distress.

The Billeaudeaus and Nautilus further argue that the language of Endorsement Number Fourteen is ambiguous such that the "Bodily Injury" exclusion should be read out of National Union's policy. Endorsement Number Fourteen contains the following heading:

NOT-FOR-PROFIT RISK PROTECTOR® AMENDATORY ENDORSEMENT

(NO BI/PD EXCLUSION AMENDMENT)

(D & L, EPL, & FLI COVERAGE SECTIONS)

The Billeaudeaus and Nautilus argue that the heading of this endorsement, "(NO BI/PD EXCLUSION AMENDMENT)," could be read to mean that the "BI" (bodily injury) or "PD" (property damage) exclusion has been removed from the General Terms and Conditions of National Union's policy, such that ambiguity exists in the policy and coverage should be allowed for bodily injury. However, if Endorsement Number Fourteen is read in conjunction with Endorsement Number Sixteen, it is obvious that "NO BI/PD EXCLUSION AMENDMENT" simply means that Endorsement Number Fourteen does not contain an amendment to the Bodily Injury or Property Damage exclusions contained in the General Terms and Conditions of National Union's policy. The heading of Endorsement Number Sixteen provides as follows:

NOT-FOR-PROFIT HEALTH CARE ORGANIZATION AMENDATORY ENDORSEMENT

(ANTITRUST EXCLUSION DELETED)

(D & O AND EPL COVERAGES)

Thus, if National Union intended to delete the Bodily Injury exclusion from its policy, it would have stated so as it did the Antitrust Exclusion in Endorsement Number Sixteen.

A plain reading of the Bodily Injury exclusion in National Union's policy results in a finding that it does not cover damages for physical injuries or illness, including death, but it does provide coverage for mental anguish and emotional distress arising from the actions of OGH and its employees. The granting of summary judgment in favor of National Union based solely on this exclusion is improper. However, we do find that there should be judgment in favor of National Union in part, finding that there is no coverage provided under the terms of the policy for damages for the physical injuries allegedly sustained by Brandi.

In its final argument, National Union asserts that because OGH reported a claim to Nautilus in June 2011, under a Nautilus insurance policy with a policy period of November 1, 2010 to November 1, 2011, based on the same facts which now form the basis of this action, its policy excludes coverage. In its appellate brief, National Union alleges (footnotes omitted), "It is undisputed that OGH reported a Claim to Nautilus on June 28, 2011, after it received notice that a Medical Review Panel had been convened to review Brandi's June 20, 2010 treatment at OGH. This Claim was reported under a Nautilus policy with a policy period of November 1, 2010 to November 1, 2011."

National Union's argument assumes, however, that its policy is a successor policy to Policy Number PFP 1000052_P-3, which was issued by Nautilus to OGH, with an effective date of November 1, 2010 to November 1, 2011. However, because no proof was offered that National Union's policy succeeded Nautilus' policy, summary judgment on this issue is inappropriate. The Nautilus policy that National Union referred to was a professional liability or medical malpractice insurance policy, which was designed to cover the loss, if any, caused by medical malpractice. Certainly, OGH notified Nautilus when it was sued for malpractice, including the negligent credentialing claim, which at the time was covered as a malpractice claim. The National Union policy is admittedly a Directors and Officers (D & O), Employment Practices Liability (EPL), Fiduciary Liability (FLI), and Crime Liability insurance policy, which specifically excludes coverage for medical malpractice. Nautilus' and National Union's policies provide different coverages for different purposes, and while National Union's policy was issued after Nautilus' professional liability policy, it was not a policy that was meant to or in fact designed to "succeed in time" the Nautilus policy. Thus, the reporting of the claim to Nautilus does not relieve National Union from its coverage responsibility, if any, under its policy. If that was its intent, we conclude that the language is at best ambiguous and must be interpreted against the insurer.

We, thus, conclude that National Union's policy was not a successor policy to the policy issued by Nautilus. Nautilus' policy did not and was not intended to cover the same liability as National Union's policy. Accordingly, we conclude that National Union is not entitled to summary judgment based on the prior reporting provision exclusion.

DISPOSITION

For the reasons stated herein, we reverse the decision of the trial court granting summary judgment in favor of National Union Insurance Company of Pittsburg, PA; we render partial summary judgment in favor of National Union Insurance Company of Pittsburg, PA, finding that the policy of insurance in question excludes coverage for actual bodily injury damages, but does provide coverage for mental anguish and emotional distress damages; and we remand the matter for proceedings consistent herewith. Costs of this appeal are assessed to National Union Insurance Company of Pittsburg, PA.

REVERSED; RENDERED; AND REMANDED.

      La.R.S. 22:1269.

      Exclusion (j), contained in Endorsement Sixteen of National Union's policy, provides that it will not be liable for any payment for loss in connection with a claim "alleging, arising out of, based upon or attributable to the Insureds performance or rendering of or failure to perform or render medical or other professional services or treatments for others[.]"


source: Caselaw Access Project

author: McDONALD, J.

license: Public Domain

text:
    Ernest Armando HOWARD, Jr. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; Garda CL Southeast, Inc.; and Marcus Rene Slaughter
    2017 CA 1222
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 16, 2018
    S. Bradley Rhorer, Zachary S. Walker, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Ernest Armando Howard, Jr.
    Alphonse M. Thompson, Jr., New Orleans, Louisiana, Attorney for Defendants/Appellees National Union Fire Insurance Company of Pittsburgh, PA; Garda CL Southeast, Inc.; and Marcus Rene Slaughter
    BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ.
   McDONALD, J.

Ernest "EJ" Howard Jr. filed suit against Marcus Rene Slaughter, Garda CL Southeast, Inc., and National Union Fire Insurance Company of Pittsburgh, Pa. By judgment dated February 15, 2017, the trial court awarded Mr. Howard $3,900 in lost wages and $37,500 in general damages against the defendants. The judgment also stated that damages against the defendants would include "clerk costs and special costs in an amount to be determined by the Court on a motion to fix costs ...." Mr. Howard then filed a motion to fix costs with supporting evidence. On April 25, 2017, the trial court signed a second judgment against the defendants for "special costs in the amount of $5,064.64 and clerk costs ...."

Mr. Howard appealed from both the February 15 and April 25 judgments. The clerk of court prepared two separate appellate records and this Court lodged two appeals-the appeal from the February 15 judgment under this Court's docket number 2017 CA 1221, also decided this day, and the appeal from the April 25 judgment under this Court's docket number 2017 CA 1222, the current appeal. This Court denied Mr. Howard's motion to consolidate the appeals but ordered that the appeals be assigned to the same panel and docket.

Mr. Howard filed identical briefs in both appeals and states that his sole challenge is to the trial court's denial of medical expenses as reflected by the February 15, 2017 judgment. He explains:

Although Plaintiff/Appellant is solely concerned with the action of the trial court denying the past medical expenses as reflected in the February 15, 2017 Judgment After Bench Trial, in an abundance of caution[,] Plaintiff/Appellant's Motion for Order of Appeal related to both the Judgment After Bench Trial and the [April 25, 2017] Judgment fixing costs.

Because Mr. Howard does not challenge the April 25, 2017 judgment, and it is clear that he no longer seeks an appeal from it, we hereby dismiss his appeal from the April 25, 2017 judgment. Costs of this appeal are assessed to Ernest "EJ" Howard Jr.

APPEAL DISMISSED.

      The defendants filed a brief under this Court's docket number 2017 CA 1221 but did not file a brief in the present case.


author: CRAIN, J.

text:
    ST. GEORGE FIRE PROTECTION DISTRICT NO. 2 v. J. REED CONSTRUCTORS, INC.
    NO. 2017 CA 1006
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 20, 2018
    John S. McLindon, Baton Rouge, Louisiana, Attorney for Defendant/Appellant J. Reed Constructors, Inc.
    Henry D.H. Olinde, Jr., Baton Rouge, Louisiana, Attorney for Plaintiff/Appellee St. George Fire Protection District No. 2
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

J. Reed Constructors, Inc., appeals a judgment confirming an arbitration award in favor of St. George Fire Protection District No. 2. We affirm.

FACTS

J. Reed and St. George entered two construction contracts that subjected disputes between them to binding arbitration. A dispute arose after J. Reed allegedly failed to substantially complete the contracts on time. Specifically, J. Reed contested St. George's assessment of liquidated damages and claims for additional amounts for breach of warranty. The matter was submitted to arbitration, and the arbitrator awarded St. George $58,865.00 for damages and fees.

St. George timely petitioned the trial court to confirm the arbitration award, pointing out that the three-month period for a party to request that the award be vacated, modified, or corrected, had lapsed. J. Reed answered the petition and opposed confirmation. J. Reed disagreed with, but did not contest, the arbitrator's award of $17,205.00 for defective work and removal of a septic tank. Rather, J. Reed objected to confirming $41,660.00 for architect and attorney fees. J. Reed claimed St. George neither sought nor pled entitlement to those fees in any pleading, that those issues were beyond the scope of what was submitted to the arbitrator, and that the award of those amounts was illegal. J. Reed acknowledged not filing a motion to modify the arbitration award within three months pursuant to the Louisiana Binding Arbitration Law, but argued "[w]hat cannot be used as a sword can be used as a shield," and that it was not prohibited from raising its objection as an affirmative defense in answer to the petition. St. George responded, asserting the request for modification of the arbitration award was untimely and should not be considered. Alternatively, St. George argued that J. Reed's claims should be denied.

The trial court rejected J. Reed's arguments and confirmed the arbitration award. J. Reed now appeals, contending the trial court committed error in confirming the architect and attorney fee awards.

DISCUSSION

As a matter of public policy, Louisiana strongly favors arbitration; therefore, arbitration awards are presumed valid. See La. R.S. 9:4201 ; National Tea Co. v. Richmond , 548 So.2d 930, 932 (La. 1989) ; Duhon v. Activelaf, LLC, 16-0818 (La. 10/19/16), --- So.3d ----, ---- (2016 WL 6123820). A court may vacate, modify, or correct an arbitration award, but only for the exclusive grounds specified in Louisiana Revised Statutes 9:4210 and 4211, which notably do not include errors of fact or law. Crescent Property Partners, LLC v. American Mfrs. Mut. Ins. Co., 14-0969 (La. 1/28/15), 158 So.3d 798, 804. Courts ordinarily do not sit in an appellate capacity over an arbitration panel and are not entitled to substitute their judgment for that of the arbitrators chosen by the parties. Crescent Property Partners, LLC , 158 So.3d at 804. Instead, the court's determination is limited to whether the party attacking the award has proven one or more of the specific statutory grounds for invalidation. Crescent Property Partners, LLC, 158 So.3d at 804.

Louisiana Revised Statute 9:4209 pertinently provides:

At any time within one year after the award is made any party to the arbitration may apply to the court in and for the parish within which the award was made for an order confirming the award and thereupon the court shall grant such an order unless the award is vacated, modified, or corrected as prescribed in R.S. 9:4210 and 9:4211.

Further, Louisiana Revised Statute 9:4213 specifies that "Notice of a motion to vacate, modify, or correct an award shall be served upon the adverse party or his attorney within three months after the award is filed or delivered, as prescribed by law for service of a motion in an action."

It is undisputed that J. Reed did not file or assert any challenge to the arbitration award within three months of the award's rendition. Instead, J. Reed argues that it can raise its challenge as an affirmative defense to the confirmation of the arbitration award.

Our interpretation of the relevant statutory language is guided by well-established rules of statutory construction. Legislation is the solemn expression of legislative will; thus, the interpretation of legislation is primarily the search for legislative intent. In re Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122, 1128. The starting point for interpretation of any statute is the language of the statute itself, as the text of the law is the best evidence of legislative intent. See La. R.S. 1:4 and 24:177B(1); Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065, 1075.

All laws pertaining to the same subject matter must be interpreted in pari materia, or in reference to each other. See La. Civ. Code art. 13 ; Pierce Foundations, Inc. v. Jaroy Const., Inc., 15-0785 (La. 5/3/16), 190 So.3d 298, 303. The legislature is presumed to have acted with deliberation and to have enacted a statute in light of the preceding statutes involving the same subject matter. See La. R.S. 24:177C; Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582 (La. 11/29/06), 943 So.2d 1037, 1045. Where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. Holly & Smith Architects, Inc., 943 So.2d at 1045 ; Malus v. Adair Asset Mgmt., LLC, 16-0610 (La. App. 1 Cir. 12/22/16), 209 So.3d 1055, 1060.

Although J. Reed frames its argument as an attempt to limit confirmation of the award by means of an affirmative defense, the result sought is that the award be vacated, modified, or corrected. Section 4209 specifies that this may only be accomplished pursuant to Sections 4210 and 4211. Section 4213 limits the time period for such challenges to three months and provides for no exceptions. Thus, the failure to serve notice of a motion to vacate, modify, or correct the award within the three-month time period is a waiver of an objection under either Sections 4210 or 4211. Cf. Napolitano v. Gill, 12-0206 (La. 5/4/12), 88 So.3d 446 (per curiam ); FIA Card Services, N.A. v. Weaver, 10-1372 (La. 3/15/11), 62 So.3d 709, 717 ; Chesne v. Cappaert Manufactured Housing, Inc., 12-1122 (La. App. 3 Cir. 3/27/13), 111 So.3d 526, 528.

We are not persuaded by J. Reed's argument that the time delay in Section 4213 may be avoided by characterizing the challenge under Sections 4210 and 4211 as an affirmative defense, then raising it in the answer to the petition for confirmation. As support for this argument, J. Reed relies on the second circuit's decision in North Cent. Utilities, Inc. v. East Columbia Water Dist., 480 So.2d 901, 904 (La. App. 2 Cir. 1985). However, the timeliness issue presented here was neither at issue nor addressed in North Cent. Utilities, Inc. In fact, the second circuit recognized that the authority to alter an arbitration award is governed by the provisions of the Louisiana Binding Arbitration Law, i.e., Sections 4210 and 4211. See North Central Utilities, Inc., 480 So.2d at 904.

Nor do we find merit in J. Reed's argument that its objection is authorized by Louisiana Code of Civil Procedure article 424, which allows a prescribed obligation arising under Louisiana law to be used as a defense if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff. Because confirmation of an arbitration award is governed by the provisions of the Louisiana Binding Arbitration Law, the issue presented here is not within the scope of Article 424. See Peyton Place, Condominium Associates, Inc. v. Guastella , 08-365 (La. App. 5 Cir. 5/29/09), 18 So.3d 132, 145-46 (discussing Article 424 and the requirement of a "visceral connection" between the obligation sued on by the plaintiff and the prescribed obligation interposed as a defense). When parties agree to arbitration, they waive their rights to certain procedures applicable in other proceedings. See Hodges v. Reasonover, 12-0043 (La. 7/2/12), 103 So.3d 1069, 1077.

Our supreme court has recognized that Louisiana's arbitration law is "almost identical in substance" to federal arbitration law; therefore, it is appropriate to draw from federal jurisprudence in applying Louisiana's arbitration law. See Mack Energy Co. v. Expert Oil & Gas, L.L.C., 14-1127 (La. 1/28/15), 159 So.3d 437, 443 n.5. Like Section 4213, federal arbitration law requires that "Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered." 9 U.S.C.A. § 12. Federal jurisprudence has rejected the arguments raised here by J. Reed, holding that a party's failure to challenge the validity of the arbitration award within the three-month delay bars it from raising its challenge as a defense to confirmation of the award. See Cigna Ins. Co. v. Huddleston , 986 F.2d 1418, 1993 WL 58742, p.11 (5th Cir. 1993) ; Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863 F.2d 851, 854 (11th Cir. 1989) ; Florasynth, Inc. v. Pickholz , 750 F.2d 171, 175 (2nd Cir. 1984) ; see also Louisiana Health Serv. Indem. Co. v. Gambro A B, 756 F.Supp.2d 760, 765-66 (W.D. La. 2010) (after a party fails to raise its objection within the three-month period, the court is powerless to hear it). One court explained:

Although it is important to the fair administration of arbitration that a party have the means to vacate an unjustly procured award, there is also good reason for the [Federal Arbitration] Act's three month limitation on this right.
An examination of the underlying purposes of the arbitration mechanism amply demonstrates the sound policies that support our conclusion. First, the confirmation of an arbitration award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court. The award need not actually be confirmed by a court to be valid. An unconfirmed award is a contract right that may be used as the basis for a cause of action. In fact, in the majority of cases the parties to an arbitration do not obtain court confirmation. A party, successful in arbitration, seeks confirmation by a court generally because he fears the losing party will not abide by the award. Armed with a court order the winning party has a variety of remedies available to enforce the judgment.
Second, parties choose to arbitrate because they want quick and final resolution of their disputes. The role of arbitration as a mechanism for speedy dispute resolution disfavors delayed challenges to the validity of an award. Thus, when a party to an arbitration believes that he has been prejudiced in the proceedings by behavior that the [Federal Arbitration] Act condemns he must bring a motion to vacate within the allotted time. When the three month limitations period has run without vacation of the arbitration award, the successful party has a right to assume the award is valid and untainted, and to obtain its confirmation in a summary proceeding.

Florasynth , 750 F.2d at 176-77 (citations omitted).

The rationale supporting the federal court's decision equally supports our interpretation of Section 4213. By failing to challenge the arbitration award in accordance with Section 4213, J. Reed's challenges arising under Sections 4210 and 4211 are considered waived and cannot be revived by characterizing them as affirmative defenses.

CONCLUSION

The judgment of the trial court confirming the arbitration award is affirmed. Costs of this appeal are assessed to J. Reed Constructors, Inc.

AFFIRMED.

Pettigrew, J., concurs

Guidry, J., concurs in the result.

      Section 9:4210 provides that an award shall be vacated: 1) where the award was procured by corruption, fraud, or undue means; 2) where there was evidence of partiality or corruption on the part of the arbitrators or any of them; 3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient good cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced; or 4) where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definitive award upon the subject matter submitted was not made.
      Section 9:4211 provides that an award shall be modified and corrected: 1) where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award; 2) where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or 3) where the award is imperfect in matter of form not affecting the merits of the controversy.

      Section 9:4213 further authorizes the court to stay the proceedings; however, this appeal raises no such issues.


author: HOLDRIDGE, J.

text:
    STATE of Louisiana v. Covonta MAGEE
    2017 KA 1217
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: February 27, 2018
    Hillar C. Moore, III, District Attorney, Dale R. Lee, Assistant District Attorney, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana
    Cynthia K. Meyer, Louisiana Appellate Project, New Orleans, LA, Attorney for Defendant/Appellant, Covonta Magee
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

The defendant, Covonta Magee, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. After a trial by jury, the defendant was found guilty as charged. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court denied the defendant's motion for new trial. The defendant now appeals, assigning error to the trial court's denial of his motion to suppress, his constitutional right to present a defense, and the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On December 22, 2012, officers of the Baton Rouge Police Department (BRPD) were dispatched to the scene of a shooting at 1511 Cristy Drive in Baton Rouge. The body of the victim, Clara Seal, was located at the scene and transported to the hospital by EMS. The victim's cell phone was also recovered and collected. Chelsea Daigle, who referred to the victim (whom she called C.J.) as her friend, indicated that on the day in question, she told the victim that they were going to Cristy Drive to obtain "roxies" (Roxicodone pills) from someone who she referred to as "T." However, Daigle was instead bringing the victim to that location to meet "Vonta," the defendant. Once they arrived at Cristy Drive, they parked their vehicle and entered the defendant's vehicle, which was parked in reverse in a driveway. The victim sat in the front passenger seat, while Daigle got in the back of the defendant's vehicle. The defendant instructed Daigle to look in the back of the vehicle for some pills. He then demanded the victim to give him her possessions, and as she refused, he pulled her jacket and repeated his demands. As the victim attempted to exit the vehicle, the defendant shot her.

According to Dr. William Clark, the Coroner of East Baton Rouge Parish, the victim suffered gunshot wounds to the left arm just above the elbow and the left flank area. The victim's cause of death was determined to be the gunshot wound to the abdomen, and the manner of death was homicide. At the autopsy, Corporal Matthew Kelly of the BRPD crime scene division collected the victim's clothing, DNA samples, and a bullet removed from her abdomen, and sent the items to the Louisiana State Police Crime Lab.

Detective Logan Collins and Detective Steven Woodring of the BRPD homicide division processed the scene of the shooting and interviewed witnesses, including Brittany Kimble, who described the defendant's vehicle as a gray or brown 2000 Chevrolet Impala. The detectives further received information leading to 3441 O'Neal Lane, the defendant's address. After arriving at the address on O'Neal Lane, the police located the vehicle and obtained a search warrant for apartment C, identified as the defendant's apartment. Upon executing the search warrant, the police recovered a Taurus model 85 loaded silver revolver, and .38 special ammunition, and a cell phone. The Chevrolet Impala was processed and swabs of suspected blood from the passenger and driver doors and baseboard were sent to the crime lab.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number three, the defendant argues that the evidence was insufficient to support the conviction. The defendant contends that the State was highly reliant on the testimony of Daigle, who initially identified "T" as the shooter. The defendant claims that Daigle's testimony had many "glitches" and further describes Daigle's testimony as biased, unreliable, and self-serving. The defendant contends that Daigle identified him as the shooter after the fourth police interrogation and a third photographic lineup. Further, the defendant notes that Daigle admitted to ingesting drugs on the night of the shooting. The defendant also argues that Daigle's testimony that the victim was shot as she exited the passenger door of the vehicle is inconsistent with the Coroner's testimony that there was a downward projection of the bullet. The defendant notes that Daigle testified that her charge would be reduced to armed robbery in exchange for her testimony, further arguing that there was no evidence that the victim was robbed. Finally, the defendant argues that absent Daigle's testimony, the jury may have believed that the gun did not belong to the defendant, noting that other adults were in the apartment. Thus, the defendant concludes that the evidence was insufficient to prove beyond a reasonable doubt that he committed second degree murder.

When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. See Hearold, 603 So.2d at 734.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B) ; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. La. R.S. 15:438.

State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.

Louisiana Revised Statutes 14:30.1(A)(1) defines second degree murder, in pertinent part, as the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm. Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625 (La. App. 1st Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923.

The State bears the burden of proving those elements, along with the burden to prove the identity of the defendant as the perpetrator. State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. A positive identification by only one witness is sufficient to support a conviction. State v. Weary, 2003-3067 (La. 4/24/06), 931 So.2d 297, 311, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006), quoting State v. Neal, 2000-0674 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

Dr. Clark testified that the projectile travelled to the victim's right side flank, opposite of the bullet hole, indicating a downward departure. The victim had stipplings (gases and carbon materials that come out of the end of the gun, as well as the bullet, cause stippling or tattooing on the skin) on her arm wound which was considered a medium range gunshot wound. However, no stippling was noted on the flank wound, which was determined to be an intermediate range gunshot wound. Dr. Clark noted that clothes may have prevented stippling, the victim's arm may have been blocking her flank, or the firing distance between the victim's arm and the gun, varied from the firing distance between the victim's flank and the gun. Blood and urine were drawn at the autopsy, and specimens were sent to the crime lab. The victim had no alcohol in her system, but there was the presence of pain medications, muscle relaxers, and an anti-anxiety medication (hydrocodone, oxycodone, tramadol, soma, and meprobamate ).

After learning of Daigle's involvement, the police located Daigle and obtained a warrant for AT & T cell phone records from December 21-23, 2013, for the cell phone number provided by Daigle. The defendant's name was discovered as a person who had been associated with Joshua Greene, whose phone number was part of the records. While Greene did not match the description of the shooter, dark-skinned and pointy nosed, the defendant did. During the execution of the search warrant for the defendant's apartment, in addition to recovering the firearm, the police dialed the phone number that the victim and Daigle used to communicate with on the night in question. Once they dialed the number, the officers heard a cell phone ringing underneath the bed.

Daigle testified that both she and the victim had the defendant's phone number, and that she communicated with the defendant by text message that night prior to the meeting. Daigle knew there were no pills in the back of the car but pretended to look after the defendant indicated that they were in the back of the vehicle. Just before being shot, the victim refused to give the defendant anything stating, "No... you're just going to have to shoot me." Daigle stated that she saw the gun used by the defendant, noted that it was a silver revolver, and stated that she saw it when it was fired. When she talked to the police later that night she told them everything but did not give the correct identity of the shooter, only identifying the shooter as "T" instead of the defendant. She further did not identify the defendant as the shooter after being shown two separate photographic lineups.

Daigle, during a later police interview, finally, "told them the truth," identifying the defendant as the shooter. She testified that at that point she wanted to "get it off [her] chest." Subsequent to that interview, Daigle identified the defendant as the shooter in a photographic lineup. She confirmed that both she and the defendant knew that the victim had money on her person that night, and the defendant planned to take the money from the victim and share it with Daigle. Daigle indicated that Roxicodone and oxycodone were her drugs of choice and stated that she had taken at least one of drugs on the night in question. She also stated that before the shooting, she knew that the victim wanted drugs. She responded positively when asked if she wanted to get revenge against the victim for a prior disagreement. Daigle again at trial identified the defendant as the shooter, testified that she had known and seen the defendant before the shooting, and stated that she was one hundred percent certain that he was the shooter.

Phillip Simmers, an expert DNA analyst of the Louisiana State Police Crime Lab, determined that the blood samples taken from the front-passenger door frame of the defendant's vehicle were consistent with the DNA profile obtained from the victim. He was unable to draw any conclusions regarding the samples from the driver's-door handle and the revolver. Charles Watson, a forensic scientist of the Louisiana State Police Crime Lab and expert in firearm examination, compared the bullet collected from the victim in this case with the revolver located at the defendant's apartment and determined that the bullet was fired from the Taurus revolver.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). It is the fact finder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.

The verdict returned indicates the jury believed that Daigle was being truthful at the time of her trial testimony. In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. Daigle testified that before the shooting she knew the defendant and made arrangements with him. Though she was admittedly using drugs on the day in question and initially misidentified the shooter, she testified that she subsequently decided to be truthful and was certain that the defendant was the shooter. Further, the weapon used in the shooting and the cell phone used to communicate with the victim and Daigle the night of the shooting were located in the defendant's apartment. Finally, while the defendant argues otherwise on appeal, there was no testimony that the downward trajectory of the bullet was inconsistent with Daigle's account as to how the shooting occurred. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), --- So.3d ----, ----, 2016 WL 314814, *4 (per curiam). After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant's identity as the perpetrator. Accordingly, assignment of error number three lacks merit.

MOTION TO SUPPRESS

In assignment of error number one, the defendant argues that the trial court erred in denying his motion to suppress based on the police searching his mailbox and seizing a letter therefrom without a search warrant. The defendant contends that the police obtained a search warrant for his residence based on the letter, and notes that the letter was later introduced into evidence at trial. Thus, the defendant claims that the letter was important because the address on the letter was used to obtain the search warrant. He claims that the police needed his apartment number to obtain the search warrant. Noting that it is illegal to steal mail from a mailbox, the defendant argues that the police violated his reasonable expectation of privacy by seizing mail from his mailbox. The defendant thus contends that his apartment number was unlawfully obtained by the illegal search of his mailbox. He concludes that the revolver recovered during the execution of the search warrant for his apartment should have been suppressed.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. Code Crim. P. art. 703(A). The crucial question in cases such as this is whether or not there is a legitimate expectation of privacy. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) ; State v. Hines, 323 So.2d 449, 450 (La. 1975) ; State v. Paulson, 98-1854 (La. App. 1st Cir. 5/18/99), 740 So.2d 698, 700. Federal and state constitutional protections against unreasonable searches exist only when an individual has an actual expectation of privacy that society is prepared to recognize as reasonable. If it is determined that the accused has no reasonable expectation of privacy in the area invaded, neither a warrant nor an exception to the warrant requirement is needed for the seized evidence to be admissible. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) ; Paulson, 740 So.2d at 700-01. Thus, the test by which a person's "expectation of privacy" is measured is twofold: first, the person must exhibit an actual subjective expectation of privacy and, second, the expectation must be one that society is prepared to recognize as reasonable. Paulson, 740 So.2d at 701.

A police officer needs both probable cause to arrest or search and exigent circumstances to justify a non-consensual warrantless intrusion into private premises. State v. Brisban, 2000-3437 (La. 2/26/02), 809 So.2d 923, 927. Probable cause for a search exists when facts within the officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a reasonable man in the belief that the place to be searched will contain the object of the search. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La. 1982). This list is only illustrative and not exclusive. State v. Brumfield, 2005-2500 (La. App. 1st Cir. 9/20/06), 944 So.2d 588, 595, writ denied, 2007-0213 (La. 9/28/07), 964 So.2d 353. The United States Supreme Court in Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 950, 148 L.Ed.2d 838 (2001) has defined exigent circumstances as "a plausible claim of specially pressing or urgent law enforcement need."

The United States Supreme Court has held that unconstitutionally obtained evidence may be admitted at trial if it would inevitably have been seized by the police in a constitutional manner. Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984). The inevitable discovery doctrine "is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988) (emphasis in original). Pursuant to the independent source doctrine, "information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source." Id. at 538-39, 108 S.Ct. 2529. The United States Supreme Court further affirmed that, under the "independent source" doctrine, if the police have an "independent source" for the discovery of the evidence, the exclusionary rule has no applicability. See Segura v. U.S., 468 U.S. 796, 805, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984).

A functional similarity exists between the independent source and inevitable discovery doctrines because both seek to avoid excluding evidence the police "would have obtained ... if no misconduct had taken place." The State therefore bears the burden of providing by a preponderance of the evidence that "the information ultimately or inevitably would have been discovered by lawful means ..." Nix, 467 U.S. at 444, 104 S.Ct. at 2509 ; State v. Vigne, 2001-2940 (La. 6/21/02), 820 So.2d 533, 539. Application of the inevitable discovery doctrine thus "involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment...." Nix, 467 U.S. at 444 n.5, 104 S.Ct. at 2509 n.5 ; Vigne, 820 So.2d at 539.

Integral to the proper application of the inevitable discovery doctrine is a finding that law enforcement would have inevitably secured the evidence by lawful means, not simply that they could have. Thus, a mere showing that the police had probable cause for a search and could have secured a warrant from a neutral magistrate does not satisfy the doctrine, because it would effectively obviate the Fourth Amendment preference for warrants and reduce the exclusionary rule to cases in which the police lack probable cause. State v. Lee, 2005-2098 (La. 1/16/08), 976 So.2d 109, 127, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008), citing United States v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006) ("The usual understanding of that doctrine is that the exclusionary rule should not be applied when all the steps required to obtain a valid warrant have been taken before the premature search occurs.").

A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La. App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La. 4/21/03), 841 So.2d 791. Correspondingly, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751. In determining whether the ruling on the defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).

According to BRPD (Homicide Division) Detective Collins, who testified at the hearing on the motion to suppress in this case, the defendant became a suspect in this case after the police learned that the victim had phone contact with the person she was supposed to meet for a drug deal and was subsequently shot and killed at the location of the meeting on Cristy Drive. After obtaining phone records, the police were able to identify the defendant as the person who the victim communicated with to set up the meeting. Daigle subsequently identified the defendant in a photographic lineup as the person she saw shoot the victim. Through phone records obtained by the police, they further determined that the defendant called a phone number identified as belonging to Latasha Bowie, whose possible address was 3441 O'Neal Lane. After learning that the defendant's cell phone used the cell tower for that location, two detectives were directed to the scene on O'Neal Lane, consisting of a fourplex set of apartments. The officers observed a vehicle which fit the description provided by witnesses, including Kimble and Daigle, as the vehicle used by the defendant in the offense, a Chevy Impala with a pink animal print steering wheel cover.

While at the scene, Detective Woodring spoke with a neighbor who advised that the person who drives the Impala lived in apartment three, the apartment which the vehicle was parked directly behind. The neighbor further informed the detective that the apartments were numbered though they should have technically been lettered. Detective Woodring observed that the mailbox for apartment number three was open at the time. He removed and looked at (but did not open) a piece of mail which was labeled with the defendant's name, Covonta Magee, addressed at 3441 O'Neal Lane, Number C. Based upon the phone records, the information provided by the neighbor, and the address confirmed by the piece of mail, the police obtained arrest warrants and search warrants for the vehicle and residence.

In Paulson, police officers drove to the defendant's house and parked in his driveway to investigate a tip they had received. An officer in one of the cars looked over to a part of the front yard and saw marijuana plants growing in a plot. Although the plants were not visible from the street because of a wooden fence, they were visible from the driveway, which had no fence or gate on it. In rejecting the defendant's claim that his right to privacy had been violated, this court found that anyone on the driveway, including mail carriers, delivery people, or neighbors, could have entered the defendant's property and observed the marijuana. This court concluded that under the circumstances the defendant did not have a legitimate expectation of privacy. Thus, the protection of the Fourth Amendment was inapplicable, and the applicability of the plain view doctrine was pretermitted, as no exception to the warrant requirement was necessary to justify admission of the evidence. Paulson, 740 So.2d at 701 ; see also State v. Lee, 439 So.2d 593, 594-95 (La. App. 1st Cir. 1983).

While the State ultimately bears the burden of establishing the validity of a warrantless search, in challenging the search a defendant bears an initial threshold burden of showing that he had a reasonable expectation of privacy in the premises. State v. Moultrie, 2015-2144 (La. 6/29/17), 224 So.3d 349, 352 (per curiam). In this case, the defendant had no reasonable expectation of privacy of an unopened piece of mail in an opened mailbox located in front of a fourplex set of apartments. Thus, Fourth Amendment protections were not implicated under the instant circumstances. Moreover, we find that the preponderance of the evidence shows that the revolver would have inevitably been seized by the police in a constitutional manner. Even without the unopened mail, the police already had independent sources of the defendant's address. A warrant would have been obtained absent the piece of mail addressed to the defendant. Thus, the evidence ultimately or inevitably would have been discovered by lawful means. Considering the foregoing, we find no error or abuse of discretion in the trial court's denial of the motion to suppress. Assignment of error number one is, therefore, without merit.

CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE

In assignment of error number two, the defendant argues that the trial court's evidentiary rulings violated his constitutional right to present a defense. The defendant notes that the trial court sustained the State's objection to the defense's attempt to question the State's firearm expert, Charles Watson, about the 2009 publication raised by the defense during the pretrial motion in limine to show that the reliability of firearm examinations had been called into question. The defendant argues that the trial court may have been confused as to what was determined at the hearing on the motion in limine. Specifically, the defendant contends that it appears that the trial court was under the impression that the holding at the hearing resulted in an exclusion of any testimony regarding the subjective component and questionable reliability of firearms examinations. The defendant argues that the trial court's ruling violated his right to present a defense by preventing the jury from hearing testimony regarding the subjective element of firearms testing and the fact that other experts have raised questions regarding the reliability of firearms examinations.

A defendant has a constitutional right to present a defense. U.S. Const. amend. VI ; La. Const. art. I, § 16. Constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value can be admitted. State v. Governor, 331 So.2d 443, 449 (La. 1976). Evidentiary rules may not supersede the fundamental right to present a defense. State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So.2d 198, 202. A defendant has the right to present any and all relevant evidence bearing on his innocence, unless prohibited by our federal and state constitutions, by law or by jurisprudence. State v. Ludwig, 423 So.2d 1073, 1077 (La. 1982) ; State v. Vaughn, 431 So.2d 358, 370, nn.3-7 (La. 1982) (on rehearing); State v. Patch, 470 So.2d 585, 588 (La. App. 1st Cir. 1985), writ denied, 475 So.2d 358 (La. 1985).

Preliminary questions concerning the competency or qualification of a person to be a witness or the admissibility of evidence shall be determined by the court. La. Code Evid. art. 104. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. La. Code Evid. art. 403. The trial court is vested with wide discretion in determining the competence of an expert witness, and its ruling on the qualification of the witness will not be disturbed absent an abuse of discretion. State v. Trahan, 576 So.2d 1, 8 (La. 1990).

Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony as follows: If the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. Notably, the Supreme Court has placed limitations on this codal provision in that, "expert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men." State v. Stucke, 419 So.2d 939, 945 (La. 1982).

In Cheairs v. State ex rel . Department of Transp. and Development, 2003-0680 (La. 12/3/03), 861 So.2d 536, 541-42 (rehearing granted in part on other grounds), the Supreme Court recognized a distinction between challenging the reliability of the methodology used by the expert, which is addressed by a Daubert inquiry, and the expert's qualifications to testify competently regarding the matters he intends to address. The Second Circuit Court of Appeal, in State v. Williams, 42,914 (La. App. 2d Cir. 1/9/08), 974 So.2d 157, 162-63, writ denied, 2008-0465 (La. 9/26/08), 992 So.2d 983, provided the following reasoning for allowing expert testimony in the field of firearm examination:

The use of expert testimony to identify spent cartridge cases or bullets to a particular firearm has a long history in Louisiana and elsewhere and has been the subject of Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ] challenges in other jurisdictions. See, e.g., U.S. v. Diaz, 2007 WL 485967 (N.D.Cal. 2007) ("No reported decision has ever excluded firearms-identification expert testimony under Daubert."); U.S. v. Monteiro, 407 F.Supp.2d 351 (D.Mass. 2006) (collecting cases). The Monteiro case discusses the available literature and evidence regarding the error rate in firearms examination and identification and observes that the extant information about examiner error is limited in its usefulness by the methodology of the studies so far conducted on that topic.

In U.S. v. Otero, 849 F.Supp.2d 425 (D.N.J. 2012), the defendants sought to exclude the testimony of the government's firearms witnesses, which testimony included assertions that a projectile and a shell were discharged from a specific weapon. In providing the obligatory review of the Daubert standard, the Otero decision noted that "the reliability of expert testimony does not turn on the grounding of the expert's opinion in scientific principles." Otero, 849 F.Supp.2d at 431. It also reviewed the literature on error rates, concluding, "while a definitive error rate has not been calculated, the information derived from the proficiency testing is indicative of a low error rate." Otero, 849 F.Supp.2d at 433-34. Otero was decided after the release of a congressionally-funded 2009 report of the National Academy of Sciences, "Strengthening Forensic Science in the United States: A Path Forward" ("NAS Report"). Despite its recognition of the NAS Report's conclusion that "claims for absolute certainty ... may well be somewhat overblown[,]" the court nonetheless allowed the witnesses to link the projectile/casing to a specific weapon. Otero, 849 F.Supp.2d at 435.

As noted above, the use of expert testimony to identify spent cartridge cases or bullets to a particular firearm has a long history in Louisiana and elsewhere. At trial in the instant case, the defendant attempted to question Watson regarding a 2009 journal article after the State tendered Watson as an expert in firearm examination. While the defendant was not specifically allowed use of the 2009 publication to question Watson on voir dire, the defendant had already been given the opportunity to challenge the reliability of the testimony at issue at the pretrial Daubert hearing. Further, after the State elicited testimony regarding the results of testing of the evidence in this case, Watson was subject to cross-examination in the presence of the jury at which point he was asked about his methodology and whether or not his results included an error rate. We find that the trial court arguably acted within its discretion and did not impinge upon the defendant's right to present a defense at trial. Nevertheless, whether or not the ruling was erroneous, we find any such error was harmless beyond a reasonable doubt. Considering the evidence in this case, notably the eyewitness testimony, under the circumstances, it is unlikely that any additional cross-examination challenging Watson's methodology or testing would have affected the jury's assessment of the defendant's guilt. Thus, the defendant was not prejudiced by the trial court's disallowance of the use of the publication to further cross-examine Watson on the reliability of firearm examinations, and the guilty verdict actually rendered in this trial was surely unattributable to any error in this regard. See La. Code Crim. P. art. 921 ; State v. Coleman, 2014-0402 (La. 2/26/16), 188 So.3d 174, 198, cert denied, --- U.S. ----, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016) ; State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 100-01. Thus, this assignment of error is meritless.

PATENT ERROR

This court routinely reviews criminal appeals for patent error. Our review has revealed the existence of a patent sentencing error in this case. The defendant filed a motion for new trial on September 24, 2015, and was sentenced on January 12, 2016. The trial court denied the motion for new trial on March 30, 2017, months after the sentencing. Louisiana Code of Criminal Procedure article 853 mandates, in relevant part that a "motion for a new trial must be filed and disposed of before sentence. See also La. Code Crim. P. art. 873. Herein, the trial court erred by sentencing the defendant before ruling on the motion for new trial. However, the defendant did not request a ruling at the sentencing and may have implicitly waived the right to a ruling prior to sentencing and the sentencing delay by announcing readiness for sentencing." Nevertheless, in State v. Augustine, 555 So.2d 1331, 1333-34 (La. 1990), the Louisiana Supreme Court indicated that a failure to observe the twenty-four hour delay provided in Article 873 will be considered harmless error where the defendant could not show that he suffered prejudice from the violation. See State v. White, 404 So.2d 1202, 1204-05 (La. 1981). In Augustine, the Supreme Court concluded that prejudice would not be found if the defendant had not challenged the sentence imposed and the violation of the twenty-four hour delay was merely noted on patent error review. Augustine, 555 So.2d at 1334. In the instant case, the defendant has not assigned error to the trial court's failure to rule on the motion prior to sentencing, nor has he contested the sentence imposed. Under these circumstances, this patent sentencing error is harmless. Furthermore, the trial court lacked sentencing discretion in this case. The defendant received a mandatory sentence of life imprisonment at hard labor. See La. R.S. 14:30.1(B). Accordingly, any error in the trial court's failure to rule on the motion for new trial prior to sentencing and observe the twenty-four hour delay is harmless beyond a reasonable doubt and does not require a remand for resentencing. See State v. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997).

CONCLUSION

For the foregoing reasons, we affirm the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      The grand jury indictment in this case charged the defendant along with Chelsea Daigle. Daigle testified at the instant trial and her charge of second degree murder was subsequently reduced to armed robbery with an agreed-upon sentence.

      We note that the trial court did not expressly sentence defendant to hard labor or restrict eligibility of probation, parole, or suspension of sentence as to second degree murder. However, La. R.S. 15:301.1 (A) deems that those requirements are contained in the sentence, whether or not they are imposed by the trial court. See also La. R.S. 14:30.1.

      According to Daigle, a third female, Brittany Kimble, rode with the victim and Daigle to the scene. However, Kimble did not approach or enter the defendant's vehicle with Daigle and the victim.

      Kimble was unable to identify the shooter and did not testify at trial.

      We are not persuaded by the defendant's argument that the law against theft of mail from a mailbox is relevant to the Fourth Amendment issue raised herein. As heretofore stated, the protections of the Fourth Amendment are only applicable when the accused has a legitimate expectation of privacy. If the accused has no reasonable expectation of privacy in the area invaded, neither a warrant nor an exception to the warrant requirement is needed for the seized evidence to be admissible. The exterior of the unopened piece of mail located in the defendant's open mailbox was easily within the common access and observation of any person, including mail carriers, delivery people, or neighbors. Thus, society is not prepared to recognize as reasonable any expectation of privacy in the unopened piece of mail seized in this case.