author: AMY, Judge.

text:
    Rebecca OWENS, Individually and on Behalf of Micah Owens. v. Joshua G. BYERLY, et al.
    No. 09-262.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.
    Rehearing Denied Dec. 16, 2009.

      John E. Jackson, Jackson Law Firm, Lake Charles, LA, for Plaintiff/Appellant, Rebecca Owens.
    Steven D. Crews, Corkern & Crews, L.L.C., Natchitoches, LA, for Defendant/Appellee, Erin Brantley.
    Michael W. Campbell, Caffery, Oubre, Dugas, Lafayette, LA, for Defendants/Ap-pellees, Sherman West, Kinetic Concepts Therapeutic Services, Inc., KCI Therapeutic Services.
    John M. Veron, Bice, Palermo & Veron, Phillip W. DeVilbiss, Scofield, Gerard, Sin-gletary, Pohorelsky, L.L.C., Lake Charles, LA, for Defendant/Appellee, Frank Marta-rona.
    Michael Jesse McNulty, III, Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee, William S. Eaves.
    Maurice L. Tynes, Lake Charles, LA, for Defendant/Appellee, Jonathan J. Mar-cantel.
    Michael Paul Colvin, Hannah, Colvin & Pipes, Baton Rouge, LA, for Defendant/Appellee, Chad Brown.
    Paul A. Holmes, Rodd Anthony Naquin, Louisiana Municipal Association, Baton Rouge, LA, for Defendants/Appellees, Ricky Richard, City of Dequincy.
    Bonita K. Preuett-Armour, Rebecca Hamernick, Armour Law Firm, Alexandria, LA, for Defendant/Appellee, State Farm Fire & Casualty Insurance Company.
    Adrienne Thomas Bordelon, Jonathan Holloway, Baton Rouge, LA, for Defendant/Appellee, State of Louisiana, Department of Health & Hospitals.
    H. Alan McCall, Stockwell, Sievert, Vic-cellio, Clements & Shaddock, L.L.P. Lake Charles, LA for Defendant/Appellee, Ryan H. Thibodeaux.
    Ryan H. Thibodeaux, Longville, LA, Defendant/Appellee, In Proper Person.
    Joshua G. Byerly, DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Presley L. Buxton, DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Johnny Groves, Rebecca Groves, De-Quincy, LA, Defendants/Appellees, In Proper Person.
    Jessica M. Leger, Ragley, LA, Defendant/Appellee, In Proper Person.
    Tammy Sea, Luling, LA, Defendant/Ap-pellee, In Proper Person.
    Copeland Goodfriend, DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Tony Doyle, Jennifer Doyle, DeQuincy, LA, Defendants/Appellees, In Proper Person.
    Steven C. Richard, Jr., DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Anthony G. Stanley, DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Erica Groves, DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Adam Parker, DeQuincy, LA, Defendant Appellee, In Proper Person.
    Justin Van Slyke, DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Philip Stanley, DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Nahkoma Doylé, DeQuincy, LA, Defendant/Appellee, In Proper Person.

      Vernon Yellot, DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Angie Hand DeQuincy, LA, Defendant/Appellee, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

_JjThe plaintiffs son was rendered a tet-raplegic after an altercation at a party at an acquaintance’s home. She alleged that several of the attendees, including the defendant in this action, conspired to cause her son harm. The plaintiff contends that the defendant joined in this conspiracy by taunting her son and writing derogatory comments on his body after the injury. The trial court granted a partial summary judgment after finding that the defendant did not cause physical injury to the plaintiffs son and did not conspire to harm him. After the partial summary judgment was designated as final, the plaintiff filed this appeal. We affirm.

Factual and Procedural Background

This case stems from a March 4, 2000 altercation occurring at the DeQuincy home of Joshua G. Byerly. The plaintiff, Rebecca Owens, instituted this matter, alleging that her then sixteen-year-old son, Micah Owens, was treated differently at the outset of the party because he was from out of town. The plaintiff alleges that some of the individuals began taunting Micah, which created an atmosphere contributing to a physical altercation between Micah and one of the guests, Ryan Ware. According to the plaintiff, this altercation resulted in serious injuries to Micah’s spinal cord and that he was paralyzed from the top of the chest down.

The plaintiff asserts that Micah was unable to move immediately after the fight and that certain individuals carried him to a bedroom in the home. She contends that, once in the bedroom, Micah was refused medical assistance despite his assertion that he needed help. She also argues that at least one member of the group pierced Micah’s foot with a knife to determine whether he had sensation. Ultimately, members of the group carried Micah from the bedroom, placed him in a vehicle, and Rdrove him to the hospital, where he was carried inside.

The plaintiff filed this suit individually and on behalf of Micah. She named a number of the party attendees, and the parents of those who were minors, as defendants for their alleged actions on the night of the party. She alleged that, in addition to the altercation with Ryan Ware, Micah’s damages were caused, exacerbated, or contributed to by these defendants due to their actions or inactions that evening. These actions included verbally taunting Micah and allegedly encouraging others to accost him.

The petition included Chad Brown as a defendant. The plaintiff alleged that Chad wrote on Micah’s body with a magic marker while he was lying injured in the bedroom. The plaintiff asserted that Chad’s actions were included in the conspiracy that resulted in physical harm, as well as mental injuries, to Micah.

Thereafter, State Farm Fire and Casualty Company, the homeowner’s insurers of Chad’s parents, intervened and named Chad and the plaintiff as defendants. State Farm asserted that certain policy language excluded coverage for the sustained injuries and, furthermore, that Chad, as an adult, may not have been residing in the insured home at the time of the injury. The petition’s prayer requested a judgment | ^indicating that the State Farm policy did not afford coverage for the alleged injuries and that any potential claims against it be dismissed.

State Farm filed an initial motion for partial summary judgment in November 2003, seeking a determination that Chad was not involved in a civil conspiracy and, therefore, State Farm had no exposure for liability. The plaintiff argued at the September 2004 hearing that State Farm could not bring the motion as the intervention was purportedly limited to whether the policy provided coverage for Chad and did not include the questions of physical injury and civil conspiracy. The plaintiff asserted that, otherwise, State Farm was not a party. The trial court took the matter under advisement, but it rendered no ruling prior to a change in the judge assigned to the case. The matter was refixed and was again heard in March 2006. |4State Farm also filed a supplemental motion for partial summary judgment reasserting the arguments made in its previous supporting memorandum. In oral reasons for ruling, the trial court determined that the plaintiff had not demonstrated sufficient facts indicating that it could carry its burden of proof at trial.

After the hearing, but prior to the entry of judgment, the plaintiff filed a Motion for or to Re-Urge Peremptory Exception of No Right of Action, again arguing that State Farm’s purpose for intervening differed from the prayer contained in its motion for summary judgment. The record contains no ruling on the exception.

Thereafter, the trial court entered a partial summary judgment, stating that: “Chad Brown did not conspire to harm Micah Owens on March 4, 2000, thereby relieving State Farm Fire and Casualty Company of possible exposure to solidary liability, and further holding that Chad Brown did not cause Micah Owens any physical harm.” The judgment was silent as to the plaintiffs no right of action.

Subsequently, the plaintiff filed a motion for new trial. The plaintiff repeated her argument that no right of action existed for the motion for summary judgment. The plaintiff also re-urged its assertion that summary judgment was inappropriate due to the presence of genuine issues of material fact. The trial court denied the motion for new trial.

After the partial summary judgment was made final, the plaintiff filed this appeal. She questions the entry of summary judgment on the merits and also asserts that State Farm lacked a right of action in filing the motion.

| ^Discussion

Summary Judgment

The plaintiff disputes the summary judgment insofar as it determined that Chad was not part of a conspiracy to harm Micah and that he did not cause physical harm. The plaintiff points to no evidence indicating that Chad directly caused physical harm to Micah. However, she contends that the actions of the attendees at the party, taken together, constitute a conspiracy to cause harm and that evidence indicated that Chad and others “picked” on Micah because he was from out of town. She states in her brief that these “comments were not made in private to friends but were instead comments that were made in a manner loud enough for Micah to overhear and who, upon hearing the comments, became upset and went off by himself.” This type of action, the plaintiff alleged, contributed to the ensuing fight.

A trial court grants a motion for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(B). The party seeking summary judgment has the burden of proving the motion. La.Code Civ.P. art. 966(C)(2). However,

if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

| (Jd. On appeal, an appellate court reviews a ruling on a motion for summary judgment de novo. Hood v. Cotter, 08-0215 (La.12/2/08), 5 So.Bd 819.

The plaintiff contends that Chad’s liability stems from conspiracy. Louisiana Civil Code Article 2324(A) provides that “[h]e who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.” However, Article 2324, alone, does not impose liability. Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546. Rather, the claim arises from “the tort which the conspirators agreed to perpetrate and which they actually commit in whole or in part.” Id. at 552 (quoting Butz v. Lynch, 97-2166, p. 6 (La.App. 1st Cir.4/8/98), 710 So.2d 1171, 1174, writ denied, 98-1247 (La.6/19/98), 721 So.2d 473).

A plaintiff attempting to recover for a tort based on a conspiracy theory must prove that “an agreement existed to commit an illegal or tortious act, which act was actually committed, which resulted in the plaintiffs injury, and there was an agreement as to the intended outcome or result.” Crutcher-Tufts Resources, Inc. v. Tufts, 07-1566, pp. 3-4 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094 (citing Butz, 710 So.2d 1171), writ denied, 08-2677 (La.1/16/09), 998 So.2d 105. This conspira cy may be evidenced by “actual knowledge, overt actions with another, such as arming oneself in anticipation of apprehension, or inferred from the knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other co-conspirator.” Crowder v. Morris, 98-673, pp. 2-3 (La.App. 3 Cir. 10/28/98), 721 So.2d 972, 973 (quoting Stephens v. Bail Enforcement of La., 96-0809 (La.App. 1 Cir. 2/14/97), 690 So.2d 124, writ denied, 97-0585 (La.4/18/97), 692 So.2d 454.)

^^Considering the parties’ submissions in this case, it is clear that the trial court did not err in determining that the plaintiff failed to produce factual support sufficient to establish that she could satisfy her evi-dentiary burden of proof. La.Code Civ.P. art. 966(C)(2). Accordingly, she was unable to point to genuine issues of material fact. Id.

State Farm presented the affidavits of a number of party guests. Each detailed the portion of the night’s events that they witnessed. The allegations against Chad can be broken into two identifiable categories, the first being his participation in the conduct prior to the physical altercation with Ryan Ware. Primarily, the plaintiff contends that Chad was involved in taunting and upsetting Micah to the point where the physical altercation was inevitable. Yet, the submissions establish little contact between Chad and Micah. Chad denied laughing at or taunting Micah. He stated that Micah told him to “roll on out of here” when he approached Micah and Josh Byerly, who were involved in a conversation. Witness testimony indicates that Chad may have later repeated the “roll on out of here” phrase to others. Whether or not this was heard by or upset Micah, as the plaintiff alleges, there is no evidence that any of the statements were part of an agreement to ultimately cause Micah physical injury.

Otherwise, no testimony connects Chad to the physical altercation. He explained that, although he saw the altercation, he “didn’t go over there to it.” Rather, he remained seated on an ice chest with his girlfriend. While Todd Martarona testified that Jon Marcantel and Ryan Ware were “wanting to pay somebody to hit [Micah],” the plaintiff did not demonstrate that Chad was involved in this or that he knew of it.

IsThe other portion of the events involving Chad occurred after the physical altercation, when Micah was taken into one of the home’s bedroom. The plaintiff asserts that Micah was handled roughly while being carried to the bedroom. However, Chad testified that he did not see Micah taken into the bedroom. No other testimony linked him to the transfer. Chad further denied that, after he entered the bedroom, he saw the piercing of Micah’s foot. Of the other testifying attendees, only Tammy Sea placed him in the room at the time Micah’s foot was pierced. Tammy explained that she did not notice whether anyone in the bedroom was laughing while Chad was writing on Micah, “because at the same time that’s whenever they were poking him in the foot and saying he couldn’t move and that’s all I was really paying attention to. I looked up and they were writing on him.” Chad explained that he left the bedroom after Micah asked for Joshua Byerly. Even construed in favor of the plaintiff, this evidence is insufficient to create genuine issues of material fact as to Chad participating in or acquiescing in the foot piercing or in any conspiracy to bring about that result.

The plaintiff contends the writings confirm the existence of a conspiracy; however, there is no evidence that these writings resulted in physical injury. While the writings may later be relevant to proceedings relating to mental damages, they do not constitute physical injury.

In short, Chad’s presence at the party where offensive actions were taking place cannot, alone, support a determination that he was part of a conspiracy to cause Micah physical harm. While the plaintiff asserts that all of the events were part of a common plan, the plaintiff failed to offer sufficient proof in this regard.

| cftight of Action

Finally, we address the plaintiffs contention that the grounds for State Farm’s intervention were at odds with the relief requested by its motion for partial summary judgment. The plaintiff points out that she did not name State Farm as a defendant in this matter. The plaintiff asserts that these circumstances reveal a lack of right of action on the part of State Farm and that the trial court should have granted an exception of no right of action, whether on the court’s own motion or upon the urging of the plaintiff.

We find no merit in this assertion. State Farm’s petition for intervention states that it is the insurer of Chad’s parents and that policy language excludes coverage for either bodily injury or property damage which results from the willful and malicious acts of an insured. It further sought the court’s determination that its policy did “not provide coverage to Chad Brown for the claims made against him by plaintiff herein, and that any and all potential claims against State Farm Fire and Casualty Company be dismissed.” Finally, State Farm concluded its petition with the following request for relief:

WHEREFORE, STATE FARM FIRE AND CASUALTY COMPANY intervenes in this litigation to the extent necessary, and prays for judgment of this Court declaring that the policy of homeowners’ insurance issued to Danny Brown and Juanice Brown does not provide coverage to Chad Brown for the claims made herein by the plaintiff, and for dismissal of any and all potential claims against State Farm Fire and Casualty Company, in its capacity as the homeowners’ insurer of Danny Brown and Juanice Brown.

These assertions, which were made against both Chad and the plaintiff as defendants in intervention, were sufficiently broad to encompass State Farm’s request in its motion for partial summary judgment for a determination that Chad neither participated in a civil conspiracy nor that he caused Micah physical harm.

|10This assignment lacks merit.

DECREE

For the foregoing reasons, the partial summary judgment entered by the trial court is affirmed. All costs of this proceeding are assigned to the appellant, Rebecca Owens, individually and on behalf of her minor son, Micah Reed Owens.

AFFIRMED.

      . Micah's deposition indicates that he has no use of or feeling in his legs or feet. He explained that, although he has use of his arms, he has only partial use of his left hand.

      . In addition to defendants who attended the party, the plaintiff named a number of other defendants, including the manufacturer of a therapeutic bed used in Micah's hospitaliza-lion, for injuries she contends were related to his subsequent treatment.

      .The precise nature of the writings is unclear. Chad explained in his deposition that he thought Micah was intoxicated and had urinated on himself, leading him to write “I pissed on myself” on Micah's arm. He denied intending to harass or cause embarrassment. Instead, he felt it was a "teasing thing." The nurse’s notes from the hospital reported that: "There was writing on his [left] hand that said something to effect ‘You piss from here There was a stick person drawn on his [left] abdomen and a + on his [] hand.”

      . As quoted in the petition of intervention, the policy language relied upon by State Farm provides:
      "DEFINITION
      4. "Insured” means you and, if resident of your household:
      a. your relatives; and
      b. any other person under the age of 21 who is in the care of a person described above.
      SECTION II — EXCLUSIONS
      1. Coverage L and Coverage M do not apply to:
      a. bodily injury or property damage:
      (1) which is either expected or intended by an insured; or
      (2) to any person or property which is the result of willful and malicious acts of an insured. This exclusion applies to any claim made or suit brought against any insured to share damages with or repay someone else who may be obliged to pay damages because of bodily injury;
      3. Coverage M does not apply to bodily injury:
      d. to a person other than a resident employee of an insured, regularly residing on any part of the insured location."

      . At the time State Farm attempted to re-fix its motion for hearing, it explained that:
      [T]he court heard oral arguments on defendant, State Farm Fire and Casualty Company’s Motion for Partial Summary Judgment and Judge Painter took the matter under advisement. Due to the fact that Judge Painter is no longer a Judge for the 14th Judicial District Court and that Judge Bryant has recused himself from this matter, defendant, State Farm Fire and Casualty Company, desires that the hearing on its Motion for Summary Judgment be rescheduled.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Blaise DIBENEDETTO v. NOBLE DRILLING COMPANY, et al. Blaise DiBenedetto v. Noble Drilling Company, et al. Blaise DiBenedetto v. Noble Drilling Company, et al.
    Nos. 2009-CA-0073, 2009-CA-0464, 2009-CA-1025.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 2009.
    Rehearing Denied Nov. 18, 2009.

      Mickey P. Landry, Frank J. Swarr, David R. Cannella, Philip C. Hoffman, Landry & Swarr, L.L.C., New Orleans, LA and Richard I. Nemeroff, Delucca & Nemeroff, L.L.P., Spring, TX, for Plaintiff/Appellee.
    Ronald J. Sholes, Mark J. Spansel, Roland M. Vandenweghe, Jr., Louis C. Lae-our, Jr., Adams and Reese LLP, New Orleans, LA, for Appellees (Cooper/T. Smith Stevedoring Company, Inc. Angus Cooper, II, and David Cooper, Sr.).
    Patrick E. Costello, Wilton E. Bland III, Jacques P. Degruy, Mouledoux Bland Le-grand & Brackett, L.L.C., New Orleans, LA, for Appellees (Joseph W. Harper and Sherman Jilek and Ports America Gulf-port, Inc.).
    Deborah D. Kuchler, McGready L. Richeson, Ernest G. Foundas, Michael H. Abraham, Robert E. Guidry, Laura E. Kraemer, Kuchler Polk Schell Weiner & Richeson, LLC, New Orleans, LA and Kevin M. Jordan, Baker Botts L.L.P., Houston, Texas, and H. Alston Johnson III, Phelps Dunbar LLP, Baton Rouge, LA, for Defendant/Appellant (Union Carbide Corporation).
    Lynn M. Luker, Lynn Luker & Associates, LLC, New Orleans, LA, for Defendant/Appellant (Montello, Inc.).
    Robert E. Williams IV, Richard P. Sul-zer, Sulzer & Williams, L.L.C., Covington, LA, for Appellee (SSA Gulf, Inc., f/k/a Ryan Walsh and Frank E. Beeson, Jr.).
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

| jThis consolidated case involves three appeals of pre-trial judgments rendered in a personal injury lawsuit brought by plaintiff, Blaise DiBenedetto. Plaintiff filed suit against numerous defendants, including previous employers, claiming that he contracted malignant mesothelioma as a result of exposure to asbestos while working for Noble Drilling Company from 1972 to 1974, and for various stevedoring companies on the New Orleans riverfront from 1974 through 2008. Our holdings in all three appeals are in plaintiffs favor. This case will be remanded to the trial court for further proceedings.

APPEAL NO. 2009-CA-0073

Defendant, Cooper/T. Smith Stevedor-ing Company, Inc. (“CTS”) appeals the trial court judgment, which (1) upheld plaintiffs right to dismiss with prejudice defendants, South African Marine Corporation, Ltd. and Industrial Development Corporation of South Africa, Ltd., and (2) granted plaintiffs request to prohibit defendants in the case from filing a third party demand against other defendants previously dismissed with prejudice. Because we find no error in the trial court’s judgment, we affirm.

|2The plaintiff had the right to dismiss with prejudice the two South African com-pañíes, and to secure an order prohibiting all defendants from filing third party demands against defendants previously dismissed with prejudice. The Louisiana Code of Civil Procedure articles cited by CTS do not support its position that the trial court erred in its rulings.

The following is the procedural history pertinent to this appeal. The two South African companies dismissed by plaintiffs were named as defendants in plaintiffs petition. On the same date that the petition was filed, plaintiff filed a motion to dismiss with prejudice all claims asserted against those two defendants. The trial court granted plaintiffs motion. CTS, another defendant named in plaintiffs petition, later filed a third party demand naming the two South African companies as third party defendants. In response to CTS’s third party demand, plaintiff requested an order prohibiting any defendant from filing a third party claim against any defendants previously dismissed with prejudice. Following a hearing, the trial court granted plaintiffs motion to dismiss with prejudice all third party claims against the two South African companies, and prohibited other defendants from filing third party demands against any defendant previously dismissed with prejudice.

On appeal, CTS asserts three assignments of error:

(1) the trial court erred when it dismissed the two South African companies with prejudice before either entity had made an appearance in the suit;
(2) the trial court erred when it subsequently issued an order prohibiting any party from bringing a third party demand against the two South African companies; and
la(3) the trial court erred when it dismissed CTS’s third party demand against the two South African companies.

We initially note that CTS filed a writ application in this Court seeking review of the judgment at issue. The writ application raised the exact same issues as in the instant appeal. This Court denied the writ application, 2008-C-1360, on January 21, 2009.

CTS now argues that it has a right to file a third party demand against the two South African companies. It argues that the trial court’s dismissal of those two defendants with prejudice, and the order prohibiting the filing of third party demand against defendants previously dismissed with prejudice violate the Louisiana Code of Civil Procedure. CTS also argues that any judgment of dismissal should have been without prejudice, and notes that the Code of Civil Procedure provides that a judgment of dismissal without prejudice does not bar any third party demand.

La. C.C.P. article 1671 states in pertinent part: “A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant.” CTS argues that article 1671 mandates that a judgment dismissing a defendant, at plaintiffs request, prior to a general appearance by that defendant must be without prejudice. We disagree with CTS’s interpretation of La. C.C.P. article 1671.

The issue of whether the trial court has the authority or discretion to refuse to grant a judgment of dismissal with prejudice upon presentation of a voluntary motion to dismiss with prejudice was addressed by the First Circuit in Vardaman v. Baker Center, Inc., 96-0881, pp. 3-5 (La.App. 1 Cir. 2/14/97), 689 So.2d 667, 669, |4670. While La. C.C.P. article 1671 addresses the voluntary motion of a plaintiff to dismiss an action without prejudice, it does not purport to govern the disposition of a plaintiffs voluntary motion to dismiss an action with prejudice. Id. (Emphasis ours.) Because a plaintiff has the right to institute an action against a defendant in the first instance, such a plaintiff has the corresponding right to dismiss the action with prejudice if he or she chooses. Id. The trial court does not have authority or discretion to refuse to grant a judgment of dismissal of a defendant with prejudice upon application by plaintiff. Id.

We agree with the First Circuit’s reasoning in Vardaman v. Baker Center, Inc., supra. Because we find that La. C.C.P. article 1671 applies only to situations where a plaintiff files a voluntary motion to dismiss ivithout prejudice, we hold that article 1671 is inapplicable in the instant case because this case involves the plaintiff’s voluntary motion to dismiss two defendants with prejudice. CTS’s argument that the trial court’s judgment violated La. C.C.P. article 1671 is without merit.

We also find no merit in CTS’s argument that La. C.C.P. article 1038 allows it the “unfettered right” to file a third party demand in this matter. Article 1033 addresses the issue of when leave of court is required to file an incidental demand, but the article does not authorize the filing of a third party demand against a previously dismissed defendant. La. C.C.P. article 1033 provides, in pertinent part:

An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092.

|5CTS has cited no case in which a third party demand was allowed to be filed against a previously dismissed defendant, and our research does not disclose any cases supporting CTS’s position.

CTS also cites the second sentence of La. C.C.P. article 1673, which states that “[a] judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.” That portion of La. C.C.P. article 1673 does not apply in this case because the judgment of dismissal was entered with prejudice.

APPEAL NO. 2009-CA-0464

This appeal presents the issue of whether plaintiffs claims against three of his former employers are barred by the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq. Plaintiff did not seek benefits under the LHWCA, choosing instead to file a tort claim in state court. Defendants, CTS, Ports America Gulport, Inc. and SSA Gulf Inc., each filed motions for summary judgment arguing that the LHWCA is plaintiffs exclusive remedy, thereby barring plaintiff from pursuing his tort claims against them. In three separate judgments, the trial court granted summary judgment in favor of these defendants, and dismissed plaintiffs claims against them with prejudice. Plaintiffs motion for new trial of CTS’s motion for summary judgment was denied. Plaintiff appeals these four judgments. Defendants, Union Carbide Corporation and Montello, Inc., appeal the summary judgments in favor of CTS and SSA Gulf, Inc. and the denial of plaintiff’s motion for new trial. Because we find that the trial court erred in granting these summary judgments, we reverse.

|f,We find that the trial court erred in holding that plaintiffs claims against his former employers are barred by the LHWCA. Even though plaintiff could have claimed benefits under the LHWCA, the federal compensation scheme is not his exclusive remedy.

In a long-latency occupational disease case, the plaintiffs cause of action accrues when exposures are significant and such exposures later result in the manifestation of damages. Austin v. Abney Mills, Inc., 2001-1598, p. 25 (La.9/4/02), 824 So.2d 1187, 1154, citing Cole v. Celotex Corp., 599 So.2d 1058, 1066 (La.1992). Tortious exposures are significant when asbestos dust has so damaged the body that the fibrogenic effects of its inhalation will progress independently of further exposure. Id,., citing Abadie v. Metropolitan Life Insurance Co., 2000-0844-851 (La.App. 5 Cir. 3/28/01), 784 So.2d 46, 64. Given the laws in effect at the time of plaintiffs alleged first significant tortious exposure to asbestos, we find that he is entitled to present his tort claims in state court.

Plaintiff contends that a substantial contribution to his occupational exposure to asbestos occurred while he worked on the New Orleans riverfront beginning in 1974. Although the Louisiana Workers’ Compensation Act was in effect when plaintiff worked as a longshoreman, mesothelioma was not covered under the Act until the 1975 amendment. La. R.S. 23:1031.1; Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169 (La.5/22/09), 16 So.3d 1065. Thus, plaintiffs claim of pre-1975 exposure is not subject to the exclusive remedy provision of this Act. The parties do not dispute this.

The LHWCA was amended in 1972 to extend benefits to certain classes of maritime workers who performed their duties on land. Poche v. Avondale Shipyards, Inc., 339 So.2d 1212, 1215 (La.1976). Congress originally enacted the |7LHWCA to provide a federal compensation remedy for workers injured on navigable waters “if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” 33 U.S.C. § 903(a); Poche, supra, at 1216. 33 U.S.C. § 905(a) provides, in pertinent part, that “[t]he liability of an employer ... shall be exclusive and in place of all other liability of such employer to the employee ...”

The 1972 extension of LHWCA coverage for land-based injuries was enacted to supplement, rather than supplant, state compensation law. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 720, 100 S.Ct. 2432, 2436, 65 L.Ed.2d 458 (1980); See also Poche v. Avondale Shipyards, Inc., supra. The exclusivity provision of the LHWCA has not been construed to exclude remedies offered by other jurisdictions. Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 722, 100 S.Ct. at 2438, fn. 4. In Sun Ship, the plaintiffs chose to file for benefits under their state’s compensation act even though the LHWCA, as amended in 1972, also applied to their injuries. The Court rejected the plaintiffs’ employer’s contention that the LHWCA was plaintiffs’ exclusive remedy, and held that a state may apply its workers’ compensation scheme to land-based injuries that also fall within the coverage of the LHWCA. Id. at 716-717,100 S.Ct. at 2434.

We recognize that the Sun Ship case differs from the instant case in that Sun Ship involved a situation where plaintiffs were eligible for benefits under both the LHWCA and state compensation laws. Here, plaintiffs illness is covered by the LHWCA, but is not covered by the version of the Louisiana Workers’ Compensation Act in effect at that time of his first alleged significant tortious exposure to asbestos. Although not exactly the same, we find that the scenario in |sthe instant case is similar to that in the Sun Ship case. Based on the reasoning in Sun Ship, we reason by implication that the plaintiff in this case is not limited to recovery under the LHWCA.

The absence of coverage of diseases such as mesothelioma in the pre-1975 version of the Louisiana Workers’ Compensation Act simply means that plaintiffs claim of pre-1975 exposure is not subject to the exclusivity provision of that Act. The fact that the Louisiana compensation scheme does not provide a remedy for plaintiff does not mandate the result that he can only seek recovery under the federal compensation scheme. Plaintiff is entitled to pursue other remedies available to him under Louisiana law as it existed at the time of his first alleged significant tortious exposure to asbestos. One of those available remedies is the potential recovery of damages through a state court tort action.

For these reasons, we find that trial court erred in granting summary judgment in favor of CTS, Ports America Gul-port, Inc. and SSA Gulf Inc., and in finding that plaintiffs claims against those defendants are barred by the LHWCA.

APPEAL NO. 2009-CA-1025

This appeal presents the issue of whether the executive officers of plaintiffs former stevedoring employers are entitled to immunity from suit under the LHWCA. In addition to suing his former employers, plaintiff also sued the executive officers of those companies. Following the trial court’s granting of summary judgment in favor of three of plaintiffs former employers, several executive officers of those companies filed exceptions of no cause of action based on their alleged LHWCA tort immunity. The executive officers who filed the exceptions are Angus Cooper II and David Cooper, Sr. of CTS, Joseph W. Harper 19and Sherman Jilek of Ports America Gulfport, Inc. and Frank E. Bee-son, Jr. of SSA Gulf, Inc.

The executive officers cited § 933(i) of the LHWCA, which provides as follows:

The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any person or persons in the same employ; provided, that this provision shall not affect the liability of a person other than an officer or employee of the employer.

The trial court granted the executive officers’ exceptions of no cause of action in three separate judgments. The effect of the trial court’s judgments is the dismissal from plaintiffs lawsuit of the executive officers who filed the exceptions.

Plaintiff and defendants, Union Carbide Corporation and Montello, Inc., appealed. They argue that the trial court’s granting of the executive officers’ exceptions of no cause of action was erroneous for the same reasons urged in Appeal No. 2009-CA-0464, which involved the dismissal through summary judgment of three of plaintiffs former employers. We agree.

Because of our holding that plaintiffs claims against his employers are not barred by the LHWCA, we likewise hold that his claims against the executive officers of those companies are similarly not barred. We find that the trial court erred in granting exceptions of no cause of action in favor of the executive officers regarding LHWCA tort immunity.

For the reasons stated above, we affirm the trial court judgments in Appeal No. 2009-CA-0073. We reverse the trial court judgments in Appeal No. 2009-CAJ046410 and 2009-CA-1025, and remand this case for further proceedings not inconsistent with this opinion.

APPEAL NO. 2009-CA-0073 — AFFIRMED;

APPEAL NO. 2009-CA-0464 — REVERSED;

APPEAL NO. 2009-CA-1025 — REVERSED;

CASE REMANDED.

      . Plaintiff alleged that the sole purpose of filing a third party demand against the two South African companies is to have this case removed to federal court.


author: SULLIVAN, Judge.

text:
    CITY OF ALEXANDRIA, et al. v. ALEXANDRIA CIVIL SERVICE COMMISSION.
    No. 09-484.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      W. Alan Pesnell, The Pesnell Law Firm, Shreveport, LA, Howard N. Nugent, Jr., Nugent Law Firm, Thomas D. Davenport, Jr., The Davenport Firm, Alexandria, LA, for Defendant/Appellant, Alexandria Civil Service Commission.
    Misty Shannon Antoon, Steven Oxen-handler, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiffs/Ap-pellees, City of Alexandria Mike Marcotte.
    Alainna Renee Mire, Assistant City Attorney, Alexandria, LA, for Plaintiff/Appel-lee, City of Alexandria.

      Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   SULLIVAN, Judge.

_JjThe Alexandria Civil Service Commission (the Commission) appeals a judgment rendered by the Ninth Judicial District Court reversing its decision to reprimand Michael Marcotte (Marcotte) for violating a civil service rule forbidding political activity by classified employees of the City of Alexandria (the City). For the following reasons, we affirm.

FACTS

The trial court outlined the following facts in its Written Reasons for Judgment, which we adopt as our own:

This case arises out of a dispute about whether a political candidate for city council resided in the district from which he sought office. Michael Marcotte, an electrical engineer, is the Acting Assistant Director of Utilities for the City of Alexandria (hereinafter, the City). He is classified as a civil servant in his employment with the City. As Acting Assistant Director of Utilities, Mar-cotte’s duties included transmission and distribution, customer complaints, preparing work orders, looking at new developments, dealing with easements, and some litigation. Marcotte’s responsibilities also included evaluating city utility customers’ bills and comparing them with utility consumption.
On July 21, 2008, Marcotte was informed that he was going to be served with a subpoena to testify about utility consumption in a home. Marcotte was later served with a subpoena to attend court on July 22, 2008 in the matter of Charles F. Smith, Jr. v. Jonathan D. Goins, et al. The subpoena stated he was compelled to remain in attendance from day to day until discharged and that if Marcotte failed to appear in court as summoned, his failure to appear would be under penalty of law.
As required by City rules, Marcotte notified the City Attorney Charles Johnson, Chief of Staff Kay Michaels and the Mayor Jacques Roy. After inquiring about whether he could testify as to utility consumption and conduct a house inspection related to utility consumption in the City of Alexandria, all three persons advised Marcotte to attend court and testify.
Marcotte appeared in court on July 22, 2008 and testified. At the trial, presiding judge, Judge Rae Swent deemed Marcotte qualified to offer testimony on utility consumption and ordered Mar-cotte to go to the Goins’ house to evaluate the appliances. Marcotte complied with Judge 12Swent’s order and completed the evaluation. He returned and testified as to his findings on the utility records. As a result, the Court ruled in favor of Jonathan Goins.
Subsequently, the attorney sharing office space with Jonathan Goins’ attorney, Thomas Davenport, filed a citizen’s complaint against Marcotte with the Commission pertaining to Marcotte’s actions in Smith v. Goins, claiming that Marcotte had volunteered or been hired to testify on behalf of Mr. Smith. The complaint also stated that Marcotte accessed “private utility records” of Jonathan Goins and that Marcotte testified for the benefit of Smith.
As a result of the complaint, the Commission investigated the allegations. An investigational interview was called by Pam Saurage, Director of Civil Service, and Howard Nugent, attorney for the Commission, to interview the City Attorney Charles Johnson and Marcotte. Charles Johnson requested a copy of the complaint but was not given a copy. At which time, Mr. Johnson informed Sau-rage and Nugent that Marcotte engaged in no wrongdoing by accessing the utility records because utility records are public record and that Marcotte testified in his capacity as Assistant Director of Utilities for the City and did not speak [to] or see Mr. Smith until the hearing.
On September 29, 2008, the Commission held a hearing pertaining to the allegations. The members of the Commission admonished Marcotte for not seeking instruction from Pam Saurage. More specifically, Marcotte was admonished for seeking legal instruction from the City legal department before going to Saurage. On November 25, 2008, the Commission held that Marcotte violated Civil Service Rule XIV, 1.7[.]
[The] City of Alexandria and Michael Marcotte appealed the decision of the Alexandria Civil- Service Commission.

PROCEDURAL HISTORY

Upon receiving the appeal, the trial court set the matter for hearing on February 9, 2009, and issued a briefing schedule. Marcotte and the City were ordered to file a memorandum by January 26, 2009; the Commission was ordered to file a memorandum ten days later, or by February 5, 2009. Three days before the hearing, the Commission fax-filed a pleading entitled “Exceptions and Motion to Strike,” along with a “Brief in Support of Exceptions” to the trial court. Marcotte and the City I..¡timely filed their memorandum in support of appeal. The hearing took place as scheduled on February 9, 2009. At the start of the hearing, the trial court noted that he had not received the Commission’s memorandum until that morning. After some discussion on the record, the trial court ruled that it would not accept the untimely-filed memorandum, but that it would allow the Commission’s attorney to participate in the hearing. The trial court then entertained argument on the merits and took the matter under advisement. In extensive Written Reasons for Judgment rendered on February 19, 2009, the trial court denied the Commission’s exceptions and motion to strike and reversed the Commission’s decision against Marcotte and the City. Written judgment was rendered on March 11, 2009.

The Commission now appeals, assigning four errors. First, it claims that the trial court erred in failing to accept and consider the memorandum filed by the Commission. Second, the Commission contends that the trial court erred in failing to adhere to the appropriate standard of review and in replacing the factual findings of the Commission with its own conclusions. Next, the Commission asserts that the trial court erred in holding that Marcotte and the City were denied due process of law. Finally, the Commission contends that it was denied due process when the trial court abdicated its duty of review and wholly deferred to the position set forth in Marcotte’s brief.

LAW

“State constitutional provisions relative to civil service and [civil service commission] rules are designed to secure adequate protection to career public servants from political discrimination and favoritism. In promoting the merit system, the intent of these laws is to guarantee the security and ■ welfare of public service.” Banks v. New Orleans Aviation Bd., O8-65, p. 11 (La.App. 4 Cir. 7/9/08), 989 So.2d 819, 825. Article 10, Section 8(A) of the Louisiana Constitution, governing disciplinary actions as to classified civil servants, provides that “[n]o person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.”

“The decision of a [civil service] commission shall be subject to review on any question of law or fact....” La. Const. Art. 10, § 12(B). In Newman v. Department of Fire, 425 So.2d 753, 754 (La.1983) (citations omitted), the Louisiana Supreme Court stated:

The appropriate standard of appellate review of actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission was arbitrary or capricious. Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. The appointing authority ... must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service. As in other civil matters, deference should be given on appellate review to the factual conclusions of the Commission.

DISCUSSION

In order to evaluate the Commission’s assignments of error, we must examine the relevant portions of the trial court’s Written Reasons for Judgment. Those reasons provide as follows:

This Court now turns to the issues on appeal. To decide these issues, the Court must use the standard of review designated by the Louisiana Supreme Court.
|sThe law provides that in deciding whether to affirm the Commission’s factual findings, a reviewing court should apply the clearly wrong or manifest er-
ror rule prescribed generally for appellate review. Bannister v. Department of Streets, 95-0404, 666 So.2d 641 (La.1996)[.]
Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. “Arbitrary or capricious” means the absence of a rational basis for the action taken.
Employees with permanent status in the classified state or city service may be disciplined only for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const, art. X, § 8(A). “Cause” for the dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service.
1. Whether a civil servant engaged in “the management or affairs of a political faction or party in any political campaign,” by responding to a court-issued subpoena to testify as to facts.
The Alexandria Civil Service Commission reprimanded Mike Marcotte stating that he violated Rule XIV, Section 1.7 of the Civil Service Rules by providing testimony in dispute involving candidates for political office.
Rule XIV, Section 1.7 provides:
No employee in the classified service of the City, and no member of the City Civil Service Commission shall be a member of any national, state, or local committee of a political party, or an officer or member of any factional, political club or organization or a candidate for nomination or election to any public office, or shall make any political speech or public political statement in [sic] behalf of any candidate, faction, or party, as a part of any political campaign, for the nomination or election of public officers, or shall take any part in management or affairs of any political faction or party or in any political campaign, except to exercise his right as a citizen to express his opinion privately, to serve as a commissioner or official | (¡watcher at the polls in any election, and to cast his vote for who he pleases.
Rule I, # 45 of the Alexandria Civil Service Commission Rules defines political activity as “an overt act or public effort, other than voting, to support or oppose the election of a candidate for political office or support or oppose a particular party in an election.”
In the case at hand, Michael Marcotte was issued a subpoena by the court to appear and testify to facts related to utilities. He was also ordered by the Court to participate in a home inspection. Mr. Marcotte complied with the Court’s orders. He testified to the facts that appeared in the utility records. As Assistant Director of Utilities, Mar-cotte’s duties included but were not limited to transmission and distribution, customer complaints, preparing work orders, looking at new developments, dealing with easements, and some litigation. Marcotte’s responsibilities also included evaluating city utility customers’ bills and comparing them with utility consumption.
It is the determination of this Court that Marcotte was exercising his function as assistant director when he participated in the home inspection and testified to utility consumption in the home. He was not participating in the management or affairs of a political faction, party, or political campaign. He was compelled by the Court to testify to facts related to his job and gave that testimony based on those facts. He did not volunteer to testify nor was he hired by one side to testify. The Alexandria Civil Service Commission erred in censuring and admonishing Mike Marcotte. It was unreasonable to discipline Mike Marcotte for obeying the Court’s orders[.] The Commission’s decision that Marcotte violated Rule XIV, Section 1.7 for testifying before the Court was arbitrary and capricious, and is therefore overruled.
3. Whether the Alexandria Civil Service Commission, attorney for the Commission, and civil service director denied Mike Marcotte and the City of Alexandria due process.
The City and Marcotte argue that they were not afforded due process before the hearing at the Commission. The appellants state that they were not given the proper notice of the charges or accusations against them in order to properly prepare a defense. The appellants assert that there was an unexpected, taped investigational interview by the civil service director and the commission’s attorney. They were not provided a description of the evidence against Marcotte nor were they provided a copy of the complaint despite request. The appellants also state that Marcotte did not have an opportunity to have a personal attorney present at the interview nor was he given a copy of an 17exculpatory Motion and Order that justified his actions. This Motion and Order was used at the hearing by the civil service director and the Commission.
Due Process of law is guaranteed by both the United States Constitution and the Louisiana Constitution. Persons whose rights may be affected are entitled to be heard; and in order that they may enjoy that right, they must first be noticed. The purpose of this requirement is to protect a person’s use and possession of property from arbitrary encroachment, to minimize substantially unfair or mistaken deprivation. Wilson v. The City of New Orleans, 85-0712, 479 So.2d 891 (La.1985). The Louisiana Supreme Court has held that notice is required under the Due Process Clause. More specifically, the Court stated “The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for an impending hearing.” Idf.J at 900.
Neither the City nor Marcotte were provided with a copy of the complaint against Marcotte. Therefore, Marcotte was not apprised of the charges against him. He could not prepare for his defense and could not obtain a personal attorney to attend the investigational interview with him. When a copy was provided, it did not contain an exculpatory Motion and Order. Thus, it is the determination of this Court that Mar-cotte and the City of Alexandria were denied due process as a result.
Moreover, due process requires that the accused be provided with a neutral and impartial referee to impart fairness. The essential guarantee of the Due Process Clause is fundamentally fair procedure for the individual in the resolution of the factual and legal basis for government actions which deprive him of life, liberty or property. Therefore, there must be some type of neutral and detached decision maker, be it judge, hearing officer or agency. This requirement applies to agencies and government hearing officers as well as judges. An impartial decision maker is essential to due process. Wilson v. The City of New Orleans, 479 So.2d 891 (La.l985)[.]
Even if an individual cannot show special prejudice in his particular case, the situation in which an official occupies two inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process. Id. at 902.
The appellants assert that Attorney Howard Nugent participated in the hearing before the Commission both as prosecutor and adjudicator. The appellants assert that Mr. Nugent limited the opening statement of opposing counsel and also limited the testimony of the witness. They assert that the Commission allowed Nugent’s behavior, essentially allowing him to testify for the witness as well as ignoring opposing counsel’s objections.
| sThe Louisiana Supreme Court held “We find the commingling of prosecuto-rial and adjudicative functions violates both the letter of the Louisiana Administrative Procedure Act and the due process goals it is designed to further ... The idea of the same person serving as judge and prosecutor is anathema under our notions of due process. Such a scenario is devoid of the appearance of fairness.” In Re Georgia Gulf Comp. v. Bd. of Ethics, 96-1907, 694 So.2d 173 (La.l997)[.]
By allowing Nugent to rule on objections, limit the opening statement of the opposing counsel and the testimony of a witness, the Commission violated due process.
Furthermore, the appellants assert that they were denied due process because Marcotte was not given an explanation of the evidence the Commission used to make its decision, and was not provided all the evidence prior to a determination hearing.
In Cleveland Bd. of Educ.[v], Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the United States Supreme Court held “The essential requirements of due process ... are notice and an opportunity to respond ... The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side to the story.” See Henderson v. Sewerage and Water Bd., 752 So.2d 252, (La.App. 4 Cir. 12/22/99); Cannon v. City of Hammond, 727 So.2d 570 (La.App. 1 Cir 12/28/98).
This Court finds that because Mar-cotte and the City were not provided with a copy of the complaint and evidence against Marcotte prior to the determination hearing, they were denied due process. According to the law, the Commission was required to submit such complaint as well as any evidence against Marcotte. Additionally, the Commission violated due process when it failed to give any weight to the Court’s subpoena and order which Mar-cotte followed.

4. Whether the Commission failed to properly indentify [sic] significant conflicts of interests which adversely affected the outcome of the case.

The appellants contend that the Commission erred in deciding this case because it was tainted with conflicts of interests. The appellants assert that the complainant was entangled with the Commission and Attorney Davenport, the attorney for Goins in Smith v. Goins. The appellants assert that the complainant was a prior Chairman of the Commission. The complainant also shares office space with Mr. Davenport of which he collects rent. The appellants also state that in his complaint, the complainant states his former position as the Chairman |3of the Commission. Because of this connection, the Commission gave undue deference to the complaint, not considering the other evidence. The appellants attempted to reveal the conflicts but were blocked by the Chairman of the Commission and Mr. Nugent. This is revealed in the record.
The appellants assert that a conflict of interest exists because Mr. Nugent, in his capacity as attorney for the Commission acted both as prosecutor and judge during the hearing. In Vega v. Nat’l Life Ins. Services Inc., 188 F.3d 287, 297 (5th Cir.1999), the Court held, “The existence of a conflict is a factor to be considered in determining whether the administrator abused its discretion in denying a claim. The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.”
In In re Georgia Gulf, the Court found that the Ethics Commission’s attorney had a stake in the factual determination of the case. He acted as both prosecutor and judge. The Court held that the general counsel in that case “whose input as general counsel is already heavily weighted in favor of the Ethics Commission crossed into the adjudicatory realm.” The Court went on to state “It is patently unfair that a party charged with a violation should feel that he is not only fighting the prosecutor but also the agency that is supposed to independently determine the merit of the charges leveled against him.” 694 So.2d 173, 96-1907 (La. 1997)[.]
Based on the law and the evidence at hand, this Court finds that the Commission failed to properly identify conflicts of interests which adversely affected the outcome of this case. The Commission repeatedly allowed its counsel to conduct the hearing and followed his lead. It did not allow the appellants to properly put on their case. The Commission blocked an attempt to reveal conflicts of interest and did not take into account that Marcotte was compelled by the Court to testify and participate in a home inspection of utility consumption. This Court further finds that conflicts of interest existed to impede and/or adversely affect the outcome of this case. The complainant in this case was a former Chairman of the Commission and shared an office building with and collected rent from the attorney in the underlying suit. The Commission relied on and allowed its attorney Howard Nu-gent to take on its role as adjudicator as well as the role of prosecutor, thus creating an even greater appearance of impropriety.
Based on the above reasons, this Court finds that the Alexandria Civil Service Commission denied the City of Alexandria and Mike Marcotte due process of law. This Court further finds that the Alexandria Civil Service Commission erred in its decision that Mike Marcotte engaged in political activity when he complied with a court issued subpoena and court order. The Alexandria Civil Service 110Commission also erred in admonishing the City of Alexandria administration.

ANALYSIS

Did the trial court err in failing to accept the Commission’s memorandum?

Counsel for the Commission claimed to have been too busy to file his memorandum because of another trial that took place on February 6, 2009. He admitted to having miscalculated the date when his memorandum was due. While the Commission complains that the trial court erred in failing to accept and consider its untimely-filed memorandum, no jurisprudence is cited in support of its argument.

At the hearing, the trial court explained that, in preparation for the hearing, it had gone out of its way to ascertain whether the Commission had filed a memorandum. It noted the disadvantage of not having the opportunity to know in advance the nature of the Commission’s opposition and to research the position advanced in the memorandum. Marcotte and the City objected to the trial court’s consideration of the Commission’s memorandum, arguing that they had not received a copy of the memorandum until the morning of the hearing. They complained that the untimely-filed memorandum contained documents not included in the record.

The Commission was able to file exceptions and a motion to strike, along with a memorandum in support, three days before the trial. Thus, its argument that it was too busy to timely file a memorandum in opposition to the appeal by Marcotte and the City is unpersuasive. Given the totality of the circumstances and the fact that the Commission was allowed to participate in oral argument, we cannot say that the trial court abused its discretion in refusing to accept and consider the Commission’s untimely-filed memorandum. See Higginbotham v. Rapides Found., 07-538 (La.App. Cir. 10/31/07), 968 So.2d 1226. The Commission’s first assignment of error lacks merit.

Did the trial court err by failing to adhere to the proper standard of review and by replacing the factual findings of the Commission with its own conclusions?

The Commission asserts that the trial court failed to follow the correct standard of review and that it improperly replaced the factual findings of the Commission with its own factual conclusions. The position of the Commission is completely unfounded. The trial court thoroughly discussed the appropriate standard of review in its written reasons. The trial court concluded that the Commission’s factual finding that Marcotte had violated Civil Service Rule XIV, Section 1.7 was arbitrary and capricious.

We have reviewed the record in its entirety, including the transcript of the Commission hearing, and we find that the trial court’s conclusion is supported by the overwhelming majority of the evidence. Once the trial court determined that the Commission’s findings of fact were clearly wrong or manifestly erroneous, it was free to disregard those factual findings, to make its own factual findings, and to reverse the disciplinary action taken against Marcotte by the Commission if the facts did not support that disciplinary action. We agree with the trial court’s determination that Marcotte was simply doing his job when he attended the home inspection and testified in court, pursuant to a valid subpoena and order to permit inspection, in the Smith v. Goins matter. We are convinced that the trial court properly applied the standard of review to the matter before it. This assignment of error has no merit.

| v;Did the trial court err in holding that Marcotte and the City were denied due process of law?

Initially, we note that the trial court’s recitation of the law regarding due process was accurate and complete. The trial court concluded that Marcotte was not given a copy of the complaint against him prior to the investigational interview conducted by Pam Saurage, the Director of Civil Service, and that, as a result, he was not aware of the charges against him, and he did not have a personal attorney accompany him to the interview. The trial court also found that Marcotte was not given a copy of the exculpatory motion and order directing him to participate in an inspection of Goins’ house. Finally, the trial court determined that the Commission failed to properly identify several conflicts of interest which adversely affected the outcome of this case. The trial court concluded that each of the aforementioned failings by the Commission resulted in violations of the due process owed to Mar-cotte by the Commission.

The Commission argues that even if Marcotte received less than the full due process owed him at the investigational interview, any defects were immaterial or were subsequently cured at the full-blown hearing before the Commission.

Our review of the record reveals ample support for the conclusions reached by the trial court with regard to the due process violations suffered by Marcotte as a result of the actions of the Commission and its attorney, Nugent. Contrary to the position of the Commission, the due process defects present at the time of Marcotte’s investigational interview were not cured at the subsequent hearing before the Commission. In fact, the due process violations continued and were exacerbated by additional due process violations. In addition to the violations noted by the trial court, we further note that neither Mar-cotte nor the City was given a copy of a sevenjpage13 report written by Ms. Sau-rage after she conducted the investigational interview. The trial court did not err in holding that Marcotte and the City were denied due process of law.

Did the trial court deny due process to the Commission by abdicating its duty of review and wholly defemng the position set forth in Marcotte’s memorandum?

The Commission contends that the trial court “merely adopted the brief of Marcotte as its opinion” instead of properly reviewing the record before it on appeal. Marcotte and the City strongly disagree, noting that “it is the very function of the court to fairly choose one side over another in litigation.”

We find the Commission’s argument in this regard to be totally devoid of merit. The trial court’s written reasons are by no means a parroting of the memorandum filed by the City and Marcotte. Instead, those reasons indicate that the trial court was well-versed in the law and that it even-handedly applied that law to the facts before it. “Courts may adopt those findings submitted by one party and reject those of the other.” Burkett v. Crescent City Connection Marine Div., 98-1287, p. 10 (La.App. 4 Cir. 2/10/99), 730 So.2d 479, 484. The trial court did a commendable job in reviewing the matter before it, and it clearly did not violate the due process rights of the Commission in the performance of its review.

DECREE

For the forgoing reasons, the judgment of the Ninth Judicial District Court is affirmed in its entirety. All costs of this appeal are assessed against the Alexandria Civil Service Commission.

AFFIRMED.

      . Because the Commission did not appeal the trial court’s denial of its exceptions of no cause of action and no right of action or the trial court’s finding that the Commission erred in censuring and admonishing non-civil service members of the City, the portions of the Written Reasons for Judgment addressing those issues have been omitted.


text:
    Monica F. COVINGTON v. KENTUCKY FRIED CHICKEN.
    No. 09-428.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Mark A. Ackal, Lafayette, LA, for Defendant/Appellant, Kentucky Fried Chicken.
    Lawrence C. Billeaud, Lafayette, LA, for Plaintiff/Appellee, Monica F. Coving-ton.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| ¡The claimant sought indemnity and medical benefits following an alleged work-related injury. The employer disputed the occurrence of an accident. The workers’ compensation judge found in favor of the claimant, finding her account of the alleged accident credible and substantiated by her medical records. It denied penalties and attorney fees. The employer appeals. For the following reasons, we affirm.

Factual and Procedural Background

The claimant, Monica Covington, alleges that she sustained a back injury while moving a case of chicken in the course and scope of her employment with Kenner Kentucky Fried Chicken, Inc. on May 6, 2005. She asserts that she did not immediately report the incident as she believed her injury was not serious. Neither did she seek immediate medical care. The employer disputes whether the claimant sustained a work-related injury.

According to the claimant, the accident occurred in the presence of another employee, Kevin Mergist, who then assisted her with moving the box. Mr. Mergist did not testify at trial. Although the claimant testified that she attempted to contact her supervisor, Gavin LaFont, by telephone, her call was unanswered. Mr. LaFont denied that he was informed of the alleged accident.

The claimant contends that she reported to work the following evening and asked Mr. LaFont to complete an accident report. According to the claimant, he refused. Again, Mr. LaFont denied the encounter and testified that he was not at work on that evening. While the claimant explained that other employees were present at the time she made the request, she did not present these employees as witnesses.

|2The claimant contends that her back pain lessened in the days following the alleged accident. However, she testified that her back “gave out” later in the month and that she reported to Southwest Medical Center. The hospital’s records of May 18, 2005, presented by the employer at the hearing, verify that the claimant reported to the emergency room complaining of back pain. However, the record lists April 18, 2005, as the onset of the claimant’s symptoms. As pointed out by the employer, the record does not indicate that the claimant attributed her complaints to a work-related injury at that time. The claimant explained that, after this visit, she attempted to provide a physician’s excuse letter to Assistant Manager Pamela Thig-pen, but that no accident form was completed.

Afterwards, the claimant’s condition improved until she again visited the Southwest Medical Center emergency room on July 2, 2005. The hospital’s records confirm that the claimant complained of low back pain extending to the legs. The claimant contends that, after this date, she was unable to return to work. Instead, she began undergoing physical therapy several times a week.

The claimant testified that she again requested that Ms. Thigpen complete an accident report after the July 2005 hospital visit due to her inability to work any longer and due to the payment of her expenses up to that point by use of her personal health insurance. She contends that Ms. Thigpen refused, citing the necessity of her having to complete a drug test.

At trial, Ms. Thigpen explained that the claimant informed her in July that she had injured her back in May. Ms. Thigpen stated that she did not fill out an accident report because the claimant had authority to report the accident herself. The claimant | ^explained that she did not feel that she could have done so and that she thought she worked in an inferior position to Ms. Thigpen.

The claimant did not return to work after July, but was treated with a number of steroid injections in the lumbar area after an August 2005 MRI revealed a protrusion at the L4-5 level. According to the claimant, she felt that she could return to work by December 2005, but that the employer would not allow her to do so.

The claimant instituted this matter in August 2005, seeking indemnity and medical benefits. She also sought penalties and attorney fees for the denial of these benefits. The employer denied having knowledge of any accident prior to the receipt of the claim form instituting the suit. At trial, it disputed both the claimant’s account of the accident and the causation of injuries related to any such accident, relying on medical records indicating that the claimant reported back pain in the years prior to the alleged work-related accident.

The workers’ compensation judge ruled in favor of the claimant, finding the claimant’s account of the accident credible and substantiated by other evidence in the record. Temporary total disability benefits were awarded for the period of July 10, 2005 through January 1, 2006. Related medical care was also awarded. The workers’ compensation judge denied the claim for penalties and attorney fees.

The employer appeals, assigning the following as error in its brief:

1. The finding by the WCJ that Claimant sustained personal injury as a result of an accident arising out of and in the course of her employment with KFC is not supported by the record, is manifestly erroneous, is clearly wrong and must be reversed.
2. The finding by the WCJ that Claimant is entitled to temporary total disability benefits is not supported by the record, is manifestly erroneous, is clearly wrong and must be reversed.

14Discussion

Work-Related Injury

The employer argues that the circumstances of this case required a determination that the claimant failed to satisfy her burden of proving a work-related injury. The employer contends that the record indicates that the requirements of proving an unwitnessed accident were not met and points to the criteria of Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992), which provides that:

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).

Bruno further provides that corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, friends, or medical evidence. Id.

In support of its argument, the employer references inconsistencies in the claimant’s account of the events and certain contradictions between her testimony and that of Mr. LaFont and Ms. Thigpen. The employer also points out that, despite the claimant’s denials of prior back pain, medical records indicate repeated complaints of previous back pain. Further, the records from the May and July 2005 emergency room visits to Southwest Medical Center do not indicate that the claimant attributed the pain to a work-related accident.

Also, the employer cites a May 18, 2005 triage record from Lafayette General Medical Center, indicating that the claimant reported to that facility shortly before visiting the Southwest Medical Center emergency room. Although the report lists low back pain as the complaint, the triage nurse’s comments indicate a history of |s“ ‘slipped disc” and that the claimant “stat[ed] low back pain x 1 month.” The triage record reports that: “Patient paged in lobby-no answer.” When presented with the Lafayette General record at trial, the claimant stated that she did not recall visiting Lafayette General that day.

As for the claimant’s contention that the May 18, 2005 emergency room visit at Southwest Medical Center was the first related to the alleged work-related accident, the assessment portion of the record lists “atraumatic” low back pain and the history portion bears a notation of “no trauma[.]” Again, there is no reference to it being work-related. Similarly, the July 2, 2005 Southwest Medical Center record does not attribute the pain to a work accident. The employer contends that this undermines the claimant’s testimony that she related the pain to work. Finally, and although some of the claimant’s physical therapy records state that the claimant was injured at work, some of the records relate the injury to a slip and fall at work, rather than a lifting injury.

As complained of by the employer, the claimant’s testimony contains certain inconsistencies when compared with other evidence in the record. These inconsistencies are such that the workers’ compensation judge could have found either that other evidence cast serious doubt on the claimant’s version of events or that her testimony was not corroborated by subsequent circumstances. See Bruno, 593 So.2d 357. However, the workers’ compensation judge’s findings under the Bruno standard are subject to the manifest error standard of review. Id.

In reasons for ruling, the workers’ compensation judge addressed the inconsistencies cited by the employer, and ultimately placed greater weight on the claimant’s testimony than that of the employer’s witnesses. The employer’s focus on |fithe claimant’s prior reports of back pain was discounted, with the workers’ compensation judge explaining:

I am going to find in Ms. Covington’s favor because I believe her. The record that I’m looking at, which is the entire certified records of Southwest Lafayette Medical Center do indicate that Ms. Covington had a, I’d say, significant history of urinary tract infections, whether you want to call it bladder infections or kidney infections. I haven’t had enough time to clearly nail down everything obviously, but October 22, '01, urine test may be indicative of UTI. Actually, that was — let’s see. One on October 22nd of '01. I have one here August 30th of '01. I have another one from another time, several urinary tract infections with secondary complaints of back pain. With respect to the date of the accident and the log-in sheets, I note that on the July 2, '05 ER visit, it does refer to other accident [sic], the date of which is given as May 3rd of '05, and certainly it’s within a couple of days. And the records that I have reviewed don’t show the sciatica or the radiating pain until after the alleged accident date.
I believed Ms. Covington. I found her to be credible in the way of corroboration. Ultimately later during the course of the treatment with the doctors, they do refer to a lifting accident at work. I like to generally look at the history closest in time to the date of the accident, and I believe the initial indication is lifting. It doesn’t say necessarily lifting at work, but Ms. Covington has testified that she wasn’t putting it on comp.
I also would like to state for the record that Mr. LaFont appears to be very young, both in his physical appearance and in his demeanor, and given that this was three years ago, I’m not saying that he would have been a poor manager in any sense, but I can see that — I can see where it may have been reported to him and nothing followed up particularly since Ms. Covington went to the doctor on her own and chose to put it on health insurance and continued to work after that. I will also comment with respect to Ms. Thigpen’s testimony and her demeanor. I distinctly got the impression that when she was told two months later about the incident, I just got the impression that it was nothing she wanted to have anything to do with. It wasn’t a comment on the veracity of the complaint or whether or not she actually thought it happened. It was just at that point in time, she was told that Mr. LaFont had been made aware of it and chose to do nothing. Apparently it was policy to get a drug test at the time. I just believe that Ms. Thigpen was reluctant to file any accident report because to the extent it may have been a voucher by her that the accident did occur or that procedures or that she may get in trouble because procedures weren’t properly followed.
|7I believe there is corroboration of Ms. Covington’s version of events in the fact that Ms. Thigpen did testify that Ms. Covington went to her in July, said that her back was hurting. It went back to May, and she had told Mr. LaFont, and he had done nothing. Ms. Thigpen testified that, and that absolutely corroborates a portion of Ms. Covington’s testimony. With respect to the conflict in testimony between Ms. Covington and Mr. LaFont as to whether or not the matter was initially reported, I do accept Ms. Covington’s testimony. I don’t hold that against her that she did not force the issue any earlier or that she chose to go to the doctor and put it on her private health insurance. There is no indication whatsoever that Ms. Cov-ington has a history of litigation or making claims, and since she felt better after a couple of days, I think it actually fits quite well she had not made claims before, probably was not entirely familiar with [the] process. Since it went away, she did not make a big deal about it. Since it went away, Mr. LaFont didn’t follow up on it, so in my mind, it does make sense. It does conform to what I understand Ms. Covington’s testimony and demeanor to convey.
The fact that she did have prior back complaints, again with looking through the records, the prior back complaints were all secondary to other diagnoses. She was not treated for back pain. The problems were urinary tract infections. One was the bad cough for cold with congestion. I believe there’s a reference to green or yellow — the word wasn’t sputum but something, and that the cough had persisted for a long time, and I do believe that a back complaint would be secondary to two months of coughing. So I don’t think those are problems. With respect to her credibility, I certainly don’t find they can amount to fraud, and with respect to the domestic altercations, again the ultimate diagnosis was wrist and forehand.

In light of the above credibility assessments and the factual findings made with regard to the medical records, we find no manifest error in the trial court’s determination. In Stobart v. State, through DOTD, 617 So.2d 880 (La.1993), the supreme court explained that a trier of fact’s reasonable evaluations of credibility and reasonable inferences of fact are not to be disturbed on review, even though the appellate court may feel its own evaluations and inferences are more reasonable. See also Veazie v. Gilchrist Constr. Co., 04-118 (La.App. 3 Cir. 6/2/04), 878 So.2d 742, writ denied, 04-1692 (La.10/8/04), 883 So.2d 1018. The record indicates that the workers’ compensation judge’s determinations were reasonable.

This assignment lacks merit.

| ¿Temporary Total Disability Benefits

In its final argument, the employer contends that the workers’ compensation judge erred in awarding temporary total disability benefits as the plaintiff failed to present clear and convincing evidence that she was unable to engage in any employment pursuant to La. R.S. 23:1221(l)(c). However, the record indicates that the employer’s counsel entered the following stipulation into the record at the commencement of the hearing:

Ms. Covington’s average weekly wage is Two Hundred and Nine Dollars a week, giving her a weekly indemnity rate of One Ninety-three point Thirty-three. She earned Seven Dollars and Twenty-five Cents per hour at the time of the alleged accident. We’ll also stipulate that in this case that should there be any benefits awarded that the period of temporary total disability would be from July 10, 2005 through January 1, 2006.

This stipulation, which includes the end date for the disability period, joins a December 13, 2005 medical report indicating that the claimant was improving following her third injection following an injury “while picking up something at work.” Records from the medical group following prior visits do not include a work status notation, whereas the December 2005 report indicates that the claimant “can return to work light duty status. No lifting more than 20 lbs and was limited stooping, squatting and bending over.”

In light of the stipulation and the medical evidence, we find no manifest error in the trial court’s award of disability benefits. This assignment lacks merit.

| ¡¡DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this proceeding are assigned to the appellant, Kenner Kentucky Fried Chicken, Inc.

AFFIRMED.

      . Louisiana Revised Statutes 23:1221(l)(c) provides, in pertinent part, that:
      [T]emporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.