author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    TOURO INFIRMARY v. AMERICAN MARITIME OFFICER, Amerihealth Administrators, Amerihealth New Jersey, Benefit Planners Limited, L.L.P., Brokerage Concepts, Inc./Universal Health, Coresource Inc./Susquehanna Health, Coresource Inc./Formosa Plastics, Golden Rule Insurance Company, et al.
    No. 2009-CA-0697.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 2009.

      Franklin D. Beahm, Jacob Best, Beahm & Green, New Orleans, LA, for Touro Infirmary.
    Warren Horn, Heller Draper Hayden Patrick & Horn, L.L.C., New Orleans, LA, Jeffrey A. Ehrieh, Leonard Street and Deinard, Minneapolis, MN, for Defendant, Fiserv Health Plan Administrators, Inc.
    D. Scott Landry, Jonathan C. McCall, Chaffe McCall, L.L.P., New Orleans, LA, for Appellee, Pacific Life & Annuity Company.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN.
   JOAN BERNARD ARMSTRONG, Chief Judge.

LThe plaintiff-appellant, Touro Infirmary, appeals two judgments, each in favor of one of the many defendants it sued in this matter. The first is a judgment of February 3, 2009, granting the exception of no cause of action filed by the defendant-appellee, Pacific Life & Annuity Company (hereinafter “Pacific Life”) and dismissing Touro’s claims with prejudice. The second is a judgment of February 4, 2009, granting the exception of no cause of action to Touro’s Supplemental and Amended Petition for Damages filed by the defendant-appellee, Fiserv Health Plan Administrators, Inc. (hereinafter “Fiserv”) and dismissing Touro’s claims with prejudice.

We review the exception of no cause of action de novo. In Reis v. Fenasci & Smith, 93-1785 (La.App. 4 Cir., 4/14/94), 635 So.2d 1319, 1321, this Court explained that:

The exception of no cause of action must be decided on the face of the petition and no evidence may be introduced to support or controvert the exception. Charia v. Hulse, 619 So.2d 1099 (La.App. 4th Cir.1993); La. C.C.P. Art. 931. All well pleaded allegations of the petition and any annexed documents must be assumed as true, and any doubt should be resolved in favor of the 12petition. Kuebler v. Martin, 578 So.2d 113, 114 (La.1991); Chana, supra. [Emphasis added.]

Moreover, evidence admitted without objection may be viewed as an enlargement of the pleadings and considered as such. Sterling v. Jones, 255 La. 842, 238 So.2d 537 (1970); Roy O. Martin Lumber Co. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954); Rheuark v. Terminal Mud & Chemical Co., 213 La. 732, 35 So.2d 592 (1948). The parties to this appeal have offered several contracts in evidence in the trial court and ask this Court to consider them. As they were offered to the trial court and to this Court, not only without objection, but with the active approval of all parties to this appeal, this Court, pursuant to the above cited authorities, will consider them in the opinion that follows. Additionally, in evaluating an exception of no cause of action, allegations which are nothing more than conclusions are disregarded. Hayes v. The Parish of Orleans, 98-2388, p. 3 (La.App. 4 Cir. 6/16/99), 737 So.2d 959, 961.

Touro is suing under the Preferred Provider Organizations Statute, La. R.S. 40:2201, et seq., for the difference between what the standard rate it would charge a patient and the discounted rate it would charge to a patient seeking a discount through the MultiPlan, Inc. PPO (Preferred Provider Organization), plus the penalties provided by La. R.S. 40:2203.1 G. This Court is aware of no relevant jurisprudence. We shall rely instead upon our reading of the plain language of the law in the context of this record.

Fiserv alleges that it is a third party claims administrator (“TPA”) for a self-funded ERISA health plan, which self-funded health plan is not a party to this action. Fiserv further alleges that it has no direct contractual relationship to Touro Land that its only contract is with Multi-Plan granting it access to the MultiPlan PPO. The name “Touro” appears nowhere in Fiserv’s contract with MultiPlan.

Pacific Life alleges that, like Fiserv, its only contract is with MultiPlan and Tou-ro’s name appears nowhere in its contract with MultiPlan.

Because of the many allegations and statutory provisions that we are required to consider in detail, in the interest of clarity we will state our conclusions first:

1. La. R.S. 40:2202(6) defines “[provider” as an entity, such as the plaintiff Touro, which offers health care services. As a matter of law, MultiPlan, Fiserv and Pacific Life do not fit this definition and are, therefore, not “providers.”
2. La. R.S. 40:2202(5)(a) defines a “Preferred Provider Organization (P.P.O.)” as a contractual agreement between a “provider”, in this case Touro, and a “group purchaser”, to provide “alternative” (discounted) rates of payment.
3. La. R.S. 40:2202(3) defines a “[g]roup purchaser” as an entity which contracts with “providers.”
4. Touro alleges that, through its agent Choice Healthcare, it entered into a contractual relationship with MultiPlan, Inc., a PPO, to provide discount medical services to MultiPlan members. A copy of this contract is in the record. Neither Fiserv nor Pacific Life signed this contract and their names appear nowhere therein. As the only contract offered by the parties with the “provider,” Touro, is the contract between Tou-ro and MultiPlan, then the only entity referred to in this litigation that could possibly meet the definition of “group 14pur chaser,” as defined by La. 40:2202(3), is MultiPlan. Neither Fiserv nor Pacific Life is a “group purchaser” because neither contracted with a “provider.” The contracts which they executed are in the record and were with MultiPlan, not Touro, and MultiPlan is not a “provider”. It is uncontested that they are not signatory to any contract to which Touro, which is a “provider,” is a party.
5. The La. R.S. 40:2203.1 G penalties sought by Touro are only enforceable against a “group purchaser.” Neither Fiserv nor Pacific Life is a “group purchaser.” Therefore, Touro has no cause of action against either Fiserv or Pacific Life for La. R.S. 2203.1 G penalties.
6. La. R.S. 40:2203.1 states that the “alternative” or discounted rates are not enforceable against the “provider”, in this case Touro, unless the PPO is clearly identified on the benefit card presented by the patient. Touro alleges that the benefit cards presented by Fiserv and Pacific Life clients did not properly identify the PPO. We must accept this allegation as true for purposes of the exception of no cause of action. Therefore, we conclude that Touro has stated a cause of action for the difference between the “alternative” rate of payment and the full standard rate for which Fiserv and Pacific Life were billed.

Touro’s claim against Fiserv arises out of medical services rendered on or about May 20, 2004, to a single patient enrolled in the Plan for which Fiserv served as TPA. Touro billed Fiserv $10,561.06 for these services. Fiserv remitted the Multi-Plan discounted rate of $7,392.74. More than two years later, on December 6, 2006, Touro sent Fiserv a demand letter for $3,168.32, the amount of the discount to which Touro alleges the Fiserv patient was not entitled because the [ fipatient’s benefit card allegedly failed to clearly identify the MultiPlan PPO as required by La. R.S. 40:2203.1. Additionally, Touro demanded statutory penalties of $46,300.00.

The following statutory provisions are relevant to this litigation:

La. R.S. 40:2203.1 provides in pertinent part that:

B. A preferred provider organization’s alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser’s contractual agreement or agreements and presented to the participating provider when medical care is provided.
⅜ ⅜ ⅜ ⅜
D. In no instance shall any provider be bound by the terms of a preferred provider organization agreement that is in violation of this Part.
⅜ ⅜ ⅜ ⅜
G. Failure to comply with the provisions of Subsection A, B, C, D, or F of this Section shall subject a group purchaser to damages payable to the provider of double the fair market value of the medical services provided, but in no event less than the greater of fifty dollars per day of noncompliance or two thousand dollars, together with attorney fees to be determined by the court. A provider may institute this action in any court of competent jurisdiction.

La. R.S. 40:2202 provides in pertinent part that:

(3) “Group purchaser” shall mean an organization or entity which contracts with providers for the purpose of establishing a preferred provider organization. “Group purchaser” may include:
(а) Entities which contract for the benefit of their insured, employees, or members such as insurers, self-funded organizations, Taft-Hartley trusts, or employers who establish or participate in self funded trusts or programs.
|fi(b) Entities which serve as brokers for the formation of such contracts, including health care financiers, third party administrators, providers or other intermediaries.
(5)(a) “Preferred Provider Organization (P.P.O.)” shall mean a contractual agreement or agreements between a provider or providers and a group purchaser or purchasers to provide for alternative rates of payment specified in advance for a defined period of time in which.
(i) the provider agrees to accept these alternative rates of payment offered by group purchasers to their members whenever a member chooses to use its services....
* * * *
(б) “Provider” shall mean one or more entities which offer health care services and shall include but not be limited to hospitals, individuals, or groups of physicians, individuals or groups of psychologists, nurse midwives, ambulance service companies, and other health care entities.

It is now appropriate to review the relevant allegations in Touro’s petitions to determine whether they are sufficient to state a cause of action against either Fi-serv or Pacific Life.

Touro’s Supplemental and Amending Petition for Damages contains the following allegations relative to its claim against Fiserv:

31.
Defendant Benefit Planners Limited, LLP, n/k/a Fiserv Health Plan Administrators, Inc., entered into a contractual relationship with Multiplan, Inc., a New York-based preferred provider organization, whereby Defendant Benefit Planners Limited, LLP, obtained the right to pay negotiated contract rates for services provided to their insureds by providers enrolled in the Multiplan, Inc., network of providers ....
_|j32.
The contact entered into by Benefit Planners Limited, LLP, and Multi-plan, Inc., provides as follows:
WHEREAS, MPI [MultiPlan] has created and maintains a network of health care providers (“MPI Providers”), by entering into agreements with health care facilities and ancillary health care providers (“MPI” Facilities”), and individual healthcare practitioners (“MPI” Practitioners”), to provide health care services to individuals (“Participants”) covered by health services benefits programs (“Benefit Program”), insured or administered by MPI’s Clients;
WHEREAS, [Fiserv] either provides a Benefit Program for its Participants, or provides certain administrative services to its customers who provide Benefit Programs for their Participants; and
WHEREAS, on behalf of [Fiserv’s] Participants or customers, [Fiserv] seeks access to MPI’s Facility and Practitioner Networks;
THEREFORE, in consideration of the foregoing and of the mutual covenants herein, intending to be legally bound hereby, the parties agree as follows: [... ]
33.
The contract entered into between Defendant [Fiserv] and Multiplan, Inc., establishes a mandatory relationship between Defendant and Multi-plan, Inc., pursuant to La. Civ.Code Art. 2989, and consequently confers upon Multiplan, Inc., the mandatory authority to enter into a contractual relationship on behalf of Defendant with Petitioner.
34.
[Touro] entered into a contractual relationship with Multiplan, Inc., whereby Petitioner agreed to charge discounted rates for medical services provided to the insureds of Defendant Benefit Planners Limited, LLP....
35.
|sThe contract entered into by Petitioner and Multiplan, Inc., provides as follows:
WHEREAS, on behalf of various organizations, including self-insured employers, union welfare funds, third party administrators, and other similar entities (Clients), who issue or administer health benefits services coverage pursuant to a benefit plan, automobile liability insurance, workers’ compensation program or other plan (Benefit Programs) for covered individuals (Participants), MPI has established networks of preferred health care providers who have agreed to render health care services to Participants in exchange for reimbursement at negotiated rates; and
WHEREAS, PHO is authorized to represent its member facilities, as well as its member physicians and/or other professional providers of health care services (Practitioners), (collectively, Providers), for the purposes of entering this Agreement on their behalf; and [...]
THEREFORE, in consideration of the foregoing and of the mutual promises herein, and intending to be legally bound hereby, the parties agree as follows:
36.
The separate contracts entered into between [Fiserv] and Multiplan, Inc. and [Touro] and Multiplan, Inc., create rights and obligations inuring to the benefit of [Fiserv] and [Touro] and, therefore, create a valid and binding contractual relationship between [Fiserv] and [Touro].
37.
The insureds of [Fiserv], presented to Touro Infirmary for the purposes of obtaining medical treatment, which was provided to those insureds at Touro Infirmary.
38.
[Touro] billed [Fiserv] for the fan-market value of the services provided to [Fiserv’s] insureds due to the fact the insurance cards presented by [Fi-serv’s] upon presentation to Touro Infirmary did not include the Multiplan, Inc, logo in violation of La. R.S. 40:2203.1
39.
| aPursuant to the contractual relationship between [Fiserv] and [Touro], [Fiserv] paid [Touro] for the services provided to its insureds at the Multi-Plan, Inc. negotiated contract rate and is, therefore, liable for damages to Petitioner as set forth in La. R.S. 40:2203.1.

In paragraphs 22-30 of the same Supplemental and Amending Petition for Damages, Touro makes identical allegations against the other defendant-appellee herein, Pacific Life. Touro’s claim against Pacific Life, in the amount of $31,906.37, like its claim against Fiserv, arises out of a billing to a single patient.

While Touro alleges in the foregoing paragraphs of its petition that it entered into a contract with MultiPlan, in its brief Touro refers to the contract entered into “between MultiPlan, Inc., and Choice Healthcare, PHO, as agent of Touro Infirmary.” Touro is admittedly not a signatory of this contract, nor is Choice Healthcare identified as Touro’s agent in the contract. There is, however, a clause in the contract indicating that Choice Healthcare “is authorized to represent its member facilities, as well as its member physicians and/or other professional provider of health services ...” We note that none of the parties that Choice Healthcare purportedly represents are identified in the contract as submitted to this Court, other than an oblique reference to Touro in what appears to be a general schedule for services and fees which contains a reference to fees for “Touro at Home” and the “Tou-ro Rehabilitation Center Post Acute Brain Injury Program.” Moreover, for reasons known only to Touro, neither MultiPlan nor Choice Healthcare are parties to either this litigation or this appeal.

The following allegations found in paragraphs “4” and “5” of Touro’s original petition, which allegations are reaffirmed in its Supplemental and Amending Petition, are also relevant:

_[#•
Multiplan, Inc. (hereinafter “Multi-plan”), is a Preferred Provider Organization, as defined by R.S. 40:2202(5), and is subject to the provisions of R.S. 40:2203.1, who, upon information and belief, contracted with several health insurance companies and health plans, i.e., “The Companies”, to negotiate preferred, or “alternate rates”, with health care providers for health care services provided by said providers.
5.
Touro Infirmary and Multiplan executed an Agreement, effective March 1, 2001, whereby Touro agreed to charge “alternate rates” for providing health care services to Multiplan’s network of Companies for all services provided to The Companies’ enrolled members (hereinafter “enrollees”) ...

Touro references the contract between Multiplan and the “Companies” in its petition, brief on appeal and elsewhere in the record, as do the appellees. The appel-lees, Fiserv and Pacific Life, are among those parties referred to in paragraphs “4” and “5” quoted above as “The Companies.” As is clear from these allegations and from Touro’s brief on appeal, the agreement between Touro as the “provider” and Mul-tiPlan is the “Preferred Provider Organization” which, as a matter of law, makes MultiPlan the “group purchaser” as those the terms “provider”, “Preferred Provider Organization,” and “group purchaser” are defined by La. R.S. 40:2202(6), La. R.S. 40:2202(5)(a) and La. R.S. 40:2202(3), respectively, and as used in La. R.S. 40:2203.1.

In addition to the allegations quoted above from Touro’s petition, Touro re-urges in its brief the following arguments consistent with the statements made by this Court in the preceding paragraph:

Multiplan, Inc .... is a Preferred Provider Organization, as defined by R.S. 40:2202(5), and is subject to the provisions of R.S. 40:2203.1, who ... contracted ... to [^negotiate preferred, or “alternate rates”, with health care providers [such as Touro] for health care services ...
Touro Infirmary and Multiplan executed an Agreement, effective March 1, 2001, whereby Touro agreed to charge “alternate rates” for providing health care services to Multiplan’s network of Companies for all services provided to the Companies’ enrolled members....

Neither Fiserv nor Pacific Life contracted with Touro “for the purpose of establishing a preferred provider organization” as contemplated by La. R.S. 40:2202(3). Instead, they contracted with MultiPlan as the “group purchaser” from “providers” such as Touro for the purpose of accessing the MultiPlan PPO. Touro refers in several places in its brief to “Appellant’s and Ap-pellees’ separate agreements with a third party preferred provider organization.” It is undisputed that Touro is the “provider” as defined by La. R.S. 40:2202(6). There is no other “provider” involved in this litigation. The only contract involving a “provider” is the contract between Touro as the “provider” and MultiPlan. If there is an La. R.S. 40:2202(5)(a) “Preferred Provider Organization”, and all parties agree that there is, then it must be the agreement between Touro (and then only if we assume that Choice Healthcare entered into the contract as Touro’s agent) and MultiPlan. This is the only conclusion consistent with the law and Touro’s many allegations and arguments referring to the MultiPlan Preferred Provider Organization. Under La. R.S. 40:2202(3) the party who contracts with the “provider” is the “group purchaser”, in this case MultiPlan. As a matter of law, the penalty provisions of La. R.S. 40:2203.1 G, if applicable, are “payable to the provider”, Touro, but may only be enforced against the “group purchaser,” in this case MultiPlan. In other words, as a matter of law, Touro has no cause of action against either Fiserv or Pacific Life for La. R.S. 40:2203.1 G penalties as they are not “group purchasers.”

h¿Touro argues that the contracts which MultiPlan entered into with Fiserv and Pacific Life confer a mandate on MultiPlan such that it creates a direct contractual relationship between Touro and Fiserv and Touro and Pacific Life. But this is simply a legal conclusion, not an allegation of fact that this Court must accept as true in reviewing the exceptions of no cause of action. Hayes, supra. This allegation is contradicted by the Preferred Provider Organizations law, La. R.S. 40:2201, et seq., in the context of the contracts and allegations submitted by Touro.

However, without expressing any opinion as to the merits of such a claim, we find that Touro has stated a cause of action against Fiserv and Pacific Life for the difference between the discounted “alternative rates of payment” and the full standard rate of payment as billed by Touro. La. R.S. 40:2203.1 B states that the “alternative rates of payment shall not be enforceable or binding upon any provider [Touro] unless [the preferred provider] organization is clearly identified on the benefit card ...” Touro’s pleadings state that the PPO was not properly identified on the card. As noted earlier in this opinion, we must accept this allegation of fact as true at this stage of the proceedings. This is sufficient to state a cause of action to claim Touro’s full standard rate of payment which it billed. La. R.S. 40:2203.1 G designates specifically who may be liable for penalties and names only the “group purchaser.” But La. R.S. 40:2203.1 B states in sweeping and universal terms that the “alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser.... ” We read this language to mean that no one has the right to enforce the “alternate” rate of payment against Touro where the benefit card does not meet the requirements of La. R.S. 40:2203.1 B. Under this broad language, Touro has stated sufficient allegations, when viewed under the standards 11sfor an exception of no cause of action, to entitle it to a day in court to assert its claims for the difference between its full standard rate and the discounted “alternative rate” allegedly tendered to it by Fiserv and Pacific Life. While both Fiserv and Pacific Life have made convincing arguments as to why they should not be subjected to La. R.S. 40:2203.1 G penalties, at this stage of the proceedings, they have not yet made a convincing case justifying why they should be permitted to enforce discounted rates against Touro in the face of Touro’s factual allegations concerning the benefit cards.

For the foregoing reasons, we amend the judgment of the trial court in part to vacate and remand only that portion of the judgment dismissing Touro’s claims against Fiserv and Pacific Life for the difference between its full standard rate and the discounted “alternative rate,” in order to allow Touro to pursue those claims in the trial court. In all other respects, the judgment of the trial court is affirmed. All parties to bear their own costs.

AMENDED. AFFIRMED AS AMENDED, AND REMANDED.

      . Touro's claims against the appellees were initially dismissed with leave to amend on previous exceptions of no cause of action by judgment of September 24, 2008. This appeal arises out of the amendments made by Touro in response to the previous dismissal.

      . We decline to refer to the two unreported federal district court cases cited by the appel-lees.


source: Caselaw Access Project

author:
PICKETT, Judge. COOKS, J.,
      SAUNDERS, J.,
      GREMILLION, Judge,

license: Public Domain

text:
    Clarence HENRY, et al. v. SBA SHIPYARD, INC., et al.
    No. CW 09-426.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2009.

      Scott R. Bickford, Regina O. Matthews, Lawrence J. Centola, III, Martzell & Bick-ford, New Orleans, LA, for Plaintiff-Respondent, Henry Wise.
    Darrell Keith Cherry, Deutsch, Kerri-gan & Stiles, New Orleans, LA, for Defendant-Applicant, Pulmosan Safety Equipment Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and SYLVIA R. COOKS, JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   ON REMAND FROM THE SUPREME COURT

PICKETT, Judge.

| pulmosan Safety Equipment Company (Pulmosan) seeks supervisory writs from the judgment of the trial court which denied Pulmosan’s motion to dismiss on the grounds of abandonment.

STATEMENT OF THE CASE

Eight plaintiffs filed suit alleging that they sustained injuries as a result of having been exposed to asbestos and silica while working at SBA Shipyard, Inc. Pul-mosan was named as one of the numerous defendants. Several supplemental and amending petitions were filed, including the Sixth Supplemental and Amending Petition wherein Mississippi Valley Silica Company, Inc. (Mississippi Valley), was added as a defendant on December 4, 2002. On March 28, 2008, Mississippi Valley filed its answer to the suit. No further action was taken in this case until December 4, 2006, when Plaintiff propounded discovery to one of the defendants, U.S. Silica of Louisiana, Inc. (U.S. Silica).

Before Pulmosan was served as a party-in this case, its co-defendants, U.S. Silica and Mississippi Valley, filed motions to have plaintiffs’ case dismissed for abandonment. After the trial court denied these motions, Pulmosan became involved in the lawsuit and also moved to have the plaintiffs’ claims dismissed for abandonment. The trial court denied the motion, and Pulmosan sought review of that ruling. This court denied the application for supervisory writs in an unpublished writ disposition on June 2, 2009. On July 9, 2009, the supreme court remanded the case to this court for an en banc hearing. In its remand, the supreme court instructed this court to “address the apparent internal conflict in the circuit concerning whether Act 361 of 2007, which amended La. Code Civ.P. art. 561, can be applied retroactively.”

¡.DISCUSSION

The abandonment of a civil action is governed by La.Code Civ.P. art. 561, which provides in pertinent part:

A.(l)An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2)If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subpara-graph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years....
(3)This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.

Act 361 of 2007 added the language in subsections A(2) and A(6) to the code article regarding the extension of the time period before an action is deemed abandoned and the sunset date of that language. The amendment became effective on July 9, 2007. The question presented to this court is whether that language should be given retroactive effect to those cases in which the three-year period had not run |son August 26, 2005, but had tolled before the July 9, 2007 effective date of the amendment.

This court has addressed this question twice. In Duplechian v. SBA Network Services, Inc., an unpublished opinion bearing docket number 07-1554, 2008 WL 2545280 (La.App. 3 Cir. 5/7/2008)(Saunders, J., writing; Genovese, J., concurs in the result; Sullivan, J., concurs with written reasons.), this court found that Act 361 was procedural in nature and should be given retroactive effect. In Duplechian, the last step taken in the prosecution of the case was a deposition of the plaintiff on March 2, 2004. On May 1, 2007, the defendant filed a motion to dismiss the suit as abandoned. The trial court granted the motion and signed a judgment dismissing the suit with prejudice as abandoned on May 7, 2007. The plaintiff filed a motion to set aside the judgment on June 4, 2007, and the trial court signed a judgment dismissing the plaintiffs suit without prejudice on August 13, 2007. In his written concurrence, Judge Sullivan explained that he would not reach the issue of retroactivity:

I concur in the result. However, my review of the facts of this case indicate that the amendment to La.Code Civ.P. art. 561 became effective on July 9, 2007, before the hearing to set aside the dismissal on July 16, 2007, the reasons for judgment signed on July 18, 2007, and the formal judgment of dismissal signed on August 13, 2007. Accordingly, I submit that the article, as amended, was applicable to this ease and that the issue of retroactivity need not be addressed.

In Morgan v. Louisiana Department of Public Safety and Corrections, 08-750 (La.App. 3 Cir. 12/10/08), 24 So.3d 208, rehearing granted and additional briefing ordered by the court on 2/⅛/09 (Painter, J., writing for a unanimous panel including Saunders and Ezell, JJ.), this court found that Act 361 was substantive and therefore could not be given retroactive effect. In Morgan, this court found that the last step in the prosecution of the case was on either March 31, 2003, when the plaintiff filed |4an amending petition, or December 18, 2003, when the court issued a judgment transferring the case to another venue. Thus, the court found that at the latest, the suit was abandoned on December 18, 2006. On November 13, 2007, the defendants filed a motion for dismissal on the ground of abandonment, which the trial court granted. The opinion notes that abandonment is a species of prescription, and the abandonment period is self-executing. As such, the amendment to La.Code Civ.P. art. 561 did nothing to revive suits that had already been abandoned on July 7, 2007.

We find that these cases do provide conflicting answers to the question presented to us in this writ application.

The plaintiff, Henry Wise, has filed an opposition to the instant writ application arguing that the trial court properly denied Pulmosan’s motion to dismiss for abandonment. Wise points out that the July 9, 2007 amendment to La.Code Civ.P. art. 561 extends the abandonment period from three to five years for those cases in which a plaintiff can prove that his failure to take steps in the prosecution of his claim was caused by Hurricane Katrina or Hurricane Rita. Because at the time when Wise propounded discovery to U.S. Silica on December 4, 2006, more than three years had passed since an answer was filed by Mississippi Valley on March 28, 2003, it appeared that the plaintiffs claim was abandoned pursuant to the three-year abandonment period set forth in La.Code Civ.P. art. 561(A)(1). However, Wise asserts that the five-year abandonment period set forth in La.Code Civ.P. art. 561(A)(2) is applicable to this case. In that regard, the plaintiff has presented evidence in the form of affidavits and live testimony demonstrating how Hurricane Katrina has had a negative impact on the usual operations of the law firm representing Wise. After having considered this evidence, the trial court concluded that the | ^hardship experienced by the firm and its employees was the exact type of situation which the legislature had envisioned when it amended Article 561. As such, the trial court found that the five-year abandonment provision applies to this case.

In its writ application, Pulmosan asserts that the trial court erred in retroactively applying the five-year abandonment period provided for in the 2007 amendment to La.Code Civ.P. art. 561(A)(2). Pulmosan points out that La.Civ.Code art. 6 permits retroactive application of a law if it is procedural or interpretive in nature, rather than substantive. However, Pulmosan maintains that even procedural or interpretive rights may not be retroactively applied if they effect a substantive change in the law or disturb vested rights. Pulmosan cites Stelly v. Overhead Door Co. of Baton Rouge, 94-0569, p. 7 (La.12/8/94), 646 So.2d 905, 912 (citation omitted), for the proposition that “no law can be applied retroactively so as to divest a party of a vested right.” In the instant case, Pulmo-san contends that Wise’s failure to take a step in the prosecution of his case for more than three years created a vested right for Pulmosan to have Wise’s claim dismissed for abandonment, because pursuant to La. Code Civ.P. art. 561(A)(3), abandonment occurs by operation of law. According to Pulmosan, because this vested right was acquired March 28, 2006, prior to the July 9, 2007 effective date for the amendment to the abandonment statute, the amendment cannot be retroactively applied to revive Plaintiffs claim. In support of this position, Pulmosan cites Morgan, 24 So.3d 208.

In response to Wise’s assertion that the wording of La.Code Civ.P. art. 561(B) manifests the legislature’s intent to provide a five-year abandonment period for cases that had not been abandoned as of August 26, 2005, Pulmosan argues that the legislature did not have the power to violate Pulmosan’s constitutional due process | firights by retroactively applying the amendment and depriving Pulmosan of its already vested right of repose. Citing Clark v. State Farm Mutual Automobile Insurance Co., 00-3010 (La.5/15/01), 785 So.2d 779, Pulmosan contends that the right of repose flowing from abandonment is the same as that of prescription. According to Pulmosan, not only did the legislature lack the authority to divest Pulmo-san of its substantive right of repose, but the legislature also did not expressly state that it intended to include already abandoned acts in the amendment.

While Pulmosan relies on this court’s decision in the Morgan case to support its argument that the plaintiffs claim was abandoned prior to the effective date of the amendment to La.Code Civ.P. art. 561, Wise relies on this court’s unpublished decision in Duplechian. In Duplechian, this court found that the only reasonable interpretation of La.Code Civ.P. art. 561(B) is that the legislature intended to extend the abandonment period to five years for cases which were filed before but not abandoned by August 26, 2005. This court noted that the abandonment statute is to be liberally construed in favor of maintaining the suit, and it found that the amendment to Article 561 should be retroactively applied because it is a procedural rule. The case was remanded to the trial court for an evidentiary hearing on the issue of whether Hurricane Rita affected the plaintiffs ability to take a step in the prosecution of her claim. Because the Duplechian case focused on the facts supporting an abandonment dismissal, Pulmosan herein asserts that that case is distinguishable from the instant case. Also, Pulmosan points out that the issue of vested rights was not raised and addressed by this court in Du-plechian.

However, Wise contends that the court in Duplechian correctly interpreted the amendment to La.Code Civ.P. art. 561, and correctly found that the amendment | ^should be applied retroactively. Additionally, Wise contends that the law of the case doctrine precludes Pulmosan from raising its vested rights argument. In that regard, the plaintiff points out that before Pulmosan was served as a defendant, his co-defendants had filed motions to dismiss which were denied by the trial court. According to Plaintiff, when Pul-mosan joined the lawsuit and put forth its own motion to have the case dismissed for abandonment, this amounted to a “do-over” in violation of the law of the case doctrine and of the laws of solidarity.

For those plaintiffs prevented from taking steps in the prosecution of their claims due to the effect of Hurricanes Rita and Katrina, La.Code Civ.P. art. 561(B) extends that abandonment period from three to five years for “an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned.... ” What is at issue in the instant case is whether the phrase “which has not previously been abandoned” refers to cases which were not abandoned before August 26, 2005, or to cases which were not abandoned before the amendment became effective on July 9, 2007. In the instant case, under the original abandonment rule, Wise’s claim would have been considered abandoned for failure to take a step in the prosecution of his claim for more than three years by March 28, 2006. As such, the claim would have been abandoned before the 2007 effective date of the amendment to Article 561, but not before August 26, 2005. In the Du-plechian case, this court determined that the extended abandonment period applied to cases which had not been abandoned before August 26, 2005. However, in the Morgan case, the court determined that the extended abandonment period could only apply to those cases which had not abandoned before the amendment to Article 561 took effect on July 9, 2007.

|sThe Louisiana Supreme Court has held that when the legislature intends for a new law to be applied retroactively to revive an already prescribed claim, the legislature should give “at the very least, a clear and unequivocal expression of intent by the legislature for such an ‘extreme exercise of legislative power.’ ” Chance v. American Honda Motor Co., Inc., 93-2582, p. 2 (La.4/11/94), 635 So.2d 177,178. Pulmosan in the instant case accurately points out that the rights associated with abandonment are similar to those associated with prescription. As such, there is merit to Pulmosan’s argument that there are constitutional problems with retroactively taking away a defendant’s right to have a case dismissed for abandonment once he has acquired that right. Also, the statute does not expressly state any legislative intent to revive claims which were abandoned between August 26, 2005, and the amendment’s 2007 effective date.

For these reasons, we find that the trial court erred in denying Pulmosan’s motion to dismiss the plaintiffs claims for abandonment. Accordingly, we hereby reverse and set aside the trial court’s ruling denying Pulmosan’s motion to dismiss and render judgment in favor of Pulmosan, dismissing all claims against Pulmosan with prejudice at the plaintiffs’ cost. The writ application is therefore granted and made peremptory.

WRIT GRANTED AND MADE PEREMPTORY.

COOKS, J., dissents and assigns written reasons.

SAUNDERS, J., dissents and assigns written reasons.

GREMILLION, J., dissents and assigns written reasons.

COOKS, J.,

Dissents.

I,The language used in 561(A)(2) clearly expresses the legislature’s intent to apply the abandonment extension retroactively.

SAUNDERS, J.,

dissents and assigns written reasons.

|)I agree with the forceful reasoning contained in Judge Gremillion’s studied and moving dissent. Thus, I dissent. The text of amended La.Code Civ.P art. 561 Paragraph A(2) now states that the five-year abandonment period applies to “an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph.... ” Chief Justice Caloge-ro, in his written reasons explains why he would grant a rehearing in Harris v. Stogner, 07-1451, p. 2 (La.1/11/08), 972 So.2d 326, 327, stated, “[f]rom a practical and logical point of view, the word ‘previously’ in [La.Code Civ.P. art. 561, Paragraph A(2) ] must have been intended by the Legislature to refer to actions not abandoned prior to August 26, 2005. No other interpretation of the amendment is reasonable.” I agree with Chief Justice Caloge-ro.

Chief Justice Calogero, in Hams, goes on to aptly state:

I believe interpreting the 2007 amendment to La.C.C.P. art. 561 to apply only to those cases that become abandoned after the effective day of July 9, 2007, would essentially cancel the exact benefits the amendment was adopted to address. If the amendments do not apply until July 9, 2007, none of the cases pending at the time of Hurricanes Katrina and Rita that would have been abandoned between August 25, 2005, and July 9, 2007, would be given the benefits of the amendment. And, I would suggest that the cases that would otherwise be abandoned Rduring that period are the exact cases the amendment was designed to address since they are the only cases in which the party seeking [to] avoid a finding of abandonment would likely be able to prove that his failure to prosecute or defend within the three-year period “was caused by or was a direct result of’ either Hurricane Katrina or Hurricane Rita. As everyone involved in the legal community knows, it was only during those days and months immediately following the storms that legal activity in the State of Louisiana was stymied by the various circumstances caused by the storm.

Harris, 972 So.2d at 327.

Pulsoman argues that it had a vested right to have Wise’s claim dismissed for abandonment and cites Stelly, 646 So.2d at 912 for the proposition that “no law can be applied retroactively so as to divest a party of a vested right.” Regarding La.Civ. Code 6 and vested rights, it is clear that a majority of this court feels differently than I regarding whether La.Code Civ.P art. 561 is procedural as I wrote in Duplechi-an. However, regardless of whether the amendment is procedural or substantive, it is clear that our legislature was faced with a crisis of unprecedented proportion. I feel such a crisis provided justification for our legislature to use an “extreme exercise of legislative power.” Chance, 635 So.2d at 178.

Surely the victims of Hurricanes Katrina and Rita have endured enough so as be spared the dire legal ramifications that the majority’s opinion imposes upon them. In my view, those victims have a vested right in their pending legal matters that existed prior to, and is greater than, those of the persons attempting to now hide behind an illogical interpretation of the letter of the law. We are instructed by our supreme court, in Clark, 785 So.2d at 785, to interpret Article 561 “liberally ... in favor of maintaining a plaintiffs suit.” I feel that we are' failing to do by granting this writ. I respectfully dissent.

GREMILLION, Judge,

dissenting.

The majority opinion chooses to answer only one of two relevant questions here. That question is whether the legislature intended to revive claims that died by virtue of abandonment between August 26, 2005 and July 9, 2007. Respectfully, it is my position that the majority incorrectly answered that threshold question. In so doing, it leaves the second, and much more important question unanswered: Can the legislature revive those dead and abandoned claims? I will address both questions, in turn.

LEGISLATIVE INTENT

When Hurricane Katrina entered the Gulf of Mexico at 5:00 a.m. on August 26, 2005, it brought with it a level of chaos, destruction, and misery that Louisiana had never seen before. It resulted in the death of 2,057 people and 81.2 billion dollars in storm damage. When Hurricane Rita hit just a few days later, it increased the combined economic losses for both hurricanes to well over 90 billion dollars. By comparison, the great San Francisco earthquake of 1906 killed 700. Following the |¾1992 landfall of Hurricane Andrew, 40.7 billion dollars worth of damages ensued.

For purposes of this analysis, it is important to note that all of the aforementioned death and destruction occurred in the days, weeks, and months that followed August 26, 2005. None of it occurred in the days, weeks, and months that followed July 9, 2007. It is for that reason that I am persuaded by the rationale provided by former Chief Justice Calogero in Harris v. Stogner, 07-1451 (La.1/11/08), 972 So.2d 326. Therein he stated that “[f]rom a practical and logical point of view [the operative language of the amendment in question] must have been intended by the Legislature to refer to actions not abandoned prior to August 26, 2005. No other interpretation of the amendment is reasonable.” Id. at 327. Justice Calogero went on to state that using the 2007 effective date of the amendment “would essentially cancel the exact benefits the amendment was adopted to address.” Id.

Thus, I respectfully disagree with the view of the majority. The legislature clearly and unequivocally intended that the amendment be given retroactive effect to those cases in which the three-year period had not run on August 26, 2005. No other interpretation of the amendment is reasonable.

LEGISLATIVE AUTHORITY

Had the majority concluded that the legislature did, in fact, intend to revive a class of claims abandoned between August 26, 2005 and July 9, 2007, they would have had to address the far more challenging question of whether our legislature actually has the power to do such a thing. The current State of Louisiana jurisprudence answers that question with an unequivocal “no.” Estate of Williams v. Louisiana Office of Risk Management, 93-3944 (La.App. 3 Cir. 3/30/94), 634 So.2d 260, writ denied, 94-0793 (La.5/6/94), 637 So.2d 1054, and Southern Silica of Louisiana, Inc. v. Louisiana Insurance Guaranty Association, 07-1680 (La.4/8/08), 979 So.2d 460.

I submit, however, that the current State of Louisiana’s law in this area exists precisely because the ruination caused by Hurricanes Katrina and Rita is unique in our history. Such destruction and upheaval have been seen before in other parts of our country. In places where such misery has previously been wrought, the law is different. In those places, “[t]he law seems fairly well-settled that the legislature may under certain circumstances, enact a Statute of Limitations which has the effect of reviving a cause of action barred under a previously applicable Standard of Limitations.” Hintz v. State Tax Commission, 55 Misc.2nd 474, 285 N.Y.S.2d 482, 485 (1966). Historical examples of calamities that rival Katrina/Rita are few, but they are unforgettable.

A WORLD WAR

After World War II, the New York State legislature determined that it was unjust to allow a statute of limitations to toll against a plaintiff when that plaintiffs failure to prosecute his claim resulted from hardships related to the war. In Gallewski v. H. Hentz & Co., 301 N.Y. 164, 93 N.E.2nd 620 (1950), the injured party was arrested and deported to a concentration camp in Czechoslovakia, then occupied by the German army, and there detained. He was never heard from again. In Von Hofmannsthal v. Wolfe, 276 A.D. 223, 93 N.Y.S.2d 550 (1949), the aggrieved party spent the war in Austria, which was also occupied by the German army. The statute of limitations ran on both of these claims during or shortly after the war which officially ended on May 8, 1945.

Though these claims were both dead, the New York legislature revived them by statutory amendments made in 1948 and 1949. Even back then, New York’s Lhighest court acknowledged that “most states hold that it is beyond the power of the legislature to revive causes of action after the limitation period has expired.” Gallewski, 301 N.Y. 164, 171, 93 N.E.2d 620, 623. However, it relied on even older case law to conclude that “ ‘this rule is not absolute and does not invalidate legislation lifting the bar where the circumstances are such as to indicate the presence of a strong moral obligation to do so.’ ” Id. citing Huffman v. Alderson’s Administrator, 9 W.Va. 616.

Thus, the high court concluded that “World War II was an upheaval of unparalleled magnitude.” Id. at 174, 674. Accordingly, “[t]o permit the Statute of Limitations to run against their claims during the continuance of such inability would not accord with elementary notions of justice and fairness.” Id. at 175, 625.

A GREAT DEPRESSION

The value of the property owned by many Americans plummeted in the Depression. Even worse: many of those same Americans lost their ability to pay their mortgages. Consequently, banks stepped in to assert their contractual rights to sell off the deeply undervalued properties in foreclosure sales.

The Minnesota legislature passed a law that extended the “period of redemption” from these foreclosure sales. The United States Supreme Court considered the question of whether this new Minnesota law could be enforced in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934). Though the Supreme Court clearly recognized what it called the “constitutional prohibition” against a state stripping a party of its rights under a contract, it went on to find as follows:

It cannot be maintained that the constitutional prohibition should be so construed as to prevent limited and temporary interpositions with respect to the enforcement of contracts if made necessary by a great public calamity such as fire, flood, or earthquake.

| SM at 439.

Interestingly, the Blaisdell Court an-nunciated a five-part test of the permissibility of the emergency exercise of legislative power. Those five criteria can be boiled down to two. First, the emergency giving rise to the police power must be extreme, and second, the legislative fix must be reasonable, narrowly-tailored, and temporary. Id. The Louisiana legislature’s temporary extension of the abandonment period from three years to five years is limited to only those cases where a Katrina/Rita related hardship can be proven. It also has a “sunset provision” of precisely five years after the legislature intended it to take effect. Consequently, it meets with the requirements of the Blaisdell test.

A CIVIL WAR

Plaintiffs found it difficult to prosecute their cases during the American Civil War. As a consequence, the West Virginia legislature allowed these aggrieved plaintiffs to take an “oath” stating exactly how long they had been obstructed by war, insurrection, or rebellion. Then, the time during which such obstruction continued was not to be computed in determining when the matter would be time-barred. The supreme court of that state not only ruled that the statute was valid, but that it applied both to suits pending and to suits brought after its passage. Huffman v. Alderson’s Admin., 9 W.Va. 616 (W.Va.1876). Thus, the amendment was said to be retroactive and was used to revive dead claims.

CONCLUSION

There is no question that the legislature enacted a statute that was intended to actually help Katrina and Rita victims. The question should not even be whether Louisiana has ever allowed its legislature to revive time-barred claims. Clearly,- it never before has done so. Rather, the real question that the majority should have | ^answered is whether the misery wrought by Katrina/Rita rises to the level of a World War or a Great Depression or a Civil War. Because the answer is “yes,” the statute should be given retroactive effect, and the defendant’s writ should be denied. As it has been written:

[I]n some cases, the right to interpose a bar to a right of action constitutes in effect a property right which the Legislature may not take away, but at the other extreme are cases where both instinct and reason revolt at the proposition that redress for a wrong must be denied because the legislature may not remove a statutory bar which has conferred an immunity which is contrary to all prevailing ideas of justice.

Robinson v. Robins Dry Dock and Repair Co., 238 N.Y. 271, 274, 144 N.E. 579 (1924).

      . Http://www.americanheritage.coin/articles/ web/20060905-natural-disasters.shtml.

      . Knabb, Richard D; Rhome, Jamie R.; Brown, Daniel P (December 20, 2005; updated August 10, 2006). "Tropical Cyclone Report: Hurricane Katrina: 23-30 August 2005” (PDF). National Hurricane Center. Http://www.docstoc.c om/docs/2922116/Tropical-Cyclone-Report-Hurricane-KalrinaAu-gust-Richard-D-Knabb-Jamie.

      . Knabb, Richard D; Brown, Daniel P.; Rhome, Jamie R. (March 17, 2006; updated August 14, 2006). "Tropical Cyclone Report: Hurricane Rita: 18-26 September 2005” (PDF). National Hurricane Center. Http:// www.nhc.noaa.gov/pdf/TCR-AL182005_Rita. pdf.

      . Http://www.americanheritage.com/articles/ web/20060905-natural-disasters.shtml

      . Rappaport, Ed (1993). "Hurricane Andrew Preliminary Report.” National Hurricane Center. Http://www.nhc.noaa.gov/l 992 andrew.html.


author: MICHAEL E. KIRBY, Judge.

text:
    Elliot J. JENKINS, Charles E. Jenkins and Patrick Holden v. Sam B. HAYNES, Jr. d/b/a Haynes Motor Lines, Joe Doe and Legion Insurance Company.
    No. 2008-CA-0783.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.
    Rehearing Denied Dec. 9, 2009.
    Tamara Kluger Jacobson, Robert G. Harvey, Sr., New Orleans, LA, for Plaintiffs/Appellants.
    George P. Hebbler, Jr., Hebbler & Gior-dano, LLC, Metairie, LA, for Royal Insurance Company of America.
    Carl L. Aspelund, Jacqueline G. Griffith, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & Hayes, LLP, Metairie, LA, for Defendant/Appellee (Louisiana Insurance Guaranty Association).
    Mark A. Myers, Pajares & Schexnaydre, L.L.C., Covington, LA, for Louisiana Insurance Guaranty Association, o/b/o Haynes Motor Lines to the Extent Coverage is Provided by Reliance Insurance Company (In Solvency).
    (Court Composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

_JjThis case arises from a vehicular accident that occurred on July 11, 2000, involving truck # 40 owned by defendant Sam B. Haynes, Jr. d/b/a Haynes Motor Lines (“Haynes”). The driver of the truck fled the scene, and his identity has never been established. Plaintiffs, Elliot J. Jenkins, Charles E. Jenkins and Patrick Holden, appeal both a March 31, 2008 judgment granting a partial summary judgment in favor defendant, Louisiana Insurance Guaranty Association (“LIGA”), and an April 2, 2008 summary judgment in favor of LIGA and defendant, Royal Insurance Company of America (“Royal”). Because plaintiffs cannot prove either the identity of the driver or that he had permission to drive truck # 40 at the time of the accident, we conclude summary judgment was properly granted and affirm the judgments.

FACTS AND PROCEDURAL HISTORY

Elliot Jenkins was driving on Almonaster Avenue near the intersection of France Road when his vehicle was struck from behind by truck # 40. He and his guest passengers, Charles Jenkins and Mr. Holden, sustained injuries in the collision. They initially sued Haynes, “John Doe” and Legion Insurance Company, alleging that the unknown driver was in the course and scope of his employment for Haynes at the time of the accident and that Legion provided liability coverage for the truck.

|2Plaintiffs amended their petition to add Royal as a defendant alleging that it also insured the truck. Royal answered the petitions, asserting that neither Mr. Haynes nor the company had authorized the unknown driver to operate the truck at the time of the accident.

Plaintiffs filed a second supplemental and amending petition alleging Haynes was negligent in the leaving the keys in the truck while it was parked in the Haynes yard; leaving the yard’s exit gate unlocked; failing to provide security at the gate; failing to control the use of the truck; failing to discover that the truck was missing from the yard; and, entrusting the truck to an untrained employee or third person driver.

Plaintiffs filed a third supplemental and amending petition to name Jeffrey Edward Coleman as a defendant, alleging that he was driving truck # 40 while in the course and scope of his employment with Haynes when he rear ended Mr. Jenkins’ vehicle. Plaintiffs filed a fourth supplemental and amending petition naming LIGA as a defendant when Legion became insolvent.

Haynes and LIGA filed a motion for summary judgment arguing that Mr. Coleman was not an employee of Haynes at the time of the accident. Following a hearing, the trial court denied the motion, in part, finding material issues of fact existed regarding the driver’s identity and use of the truck at the time of the accident.

|SLIGA and Royal later filed a motion for summary judgment, arguing they were not vicariously liable for the actions of the unknown driver, and the applicable insurance policy contained no omnibus coverage clause insuring the unknown driver. LIGA also filed a motion for partial summary judgment regarding the negligence claims raised in the plaintiffs’ second supplemental and amending petition. Plaintiffs opposed both motions.

Following a hearing, the trial court rendered the March 31, 2008 judgment in favor of LIGA regarding the negligent security claims, and the April 2, 2008 judgment in favor of LIGA and Royal on the issue of vicarious liability.

On appeal, plaintiffs contend the trial court erred in granting summary judgment because genuine issues of material fact remain as to the identity of truck # 40’s driver at the time of the accident; whether Mr. Coleman was employed by Haynes at the time of the accident; and, whether truck #40 was stolen from the Haynes yard on the day of the accident.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Samaha v. Ran, 07-1726, p. 3 (La.2/26/08), 977 So.2d 880, 882-83. A motion for summary judgment will be |4granted “if 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. C.C.P. art. 966 B. “Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966 A(2)).

To hold the defendants liable for the alleged damages as a result of the accident, plaintiffs must prove by a preponderance of the evidence at trial that either 1) the driver of the truck was a Haynes employee acting within the course and scope of his employment at the time of the accident, or 2) the driver had the expressed or implied permission of Haynes to operate truck # 40 at that time. Defendants, in moving for summary judgment, are not required to negate all the essential elements of the plaintiffs’ action, rather they need only demonstrate that there is an absence of factual support for one or more elements essential to the plaintiffs’ claims. See La. C.C.P. art. 966 C(2).

In support of their motion arguing that Mr. Coleman was not employed by Haynes and had no authority from Haynes to operate the truck on the day of the |5accident, LIGA and Royal submitted the deposition testimony of Mr. Coleman and an affidavit from Joanne Witcher, Haynes’ safety coordinator. Mr. Coleman testified that he was last employed by Haynes on May 10, 2000, and that he did not drive and had no permission to drive a Haynes truck on July 11, 2000. Likewise, Ms. Witcher attested that Mr. Coleman was not employed by Haynes and had no permission to drive any Haynes vehicle at the time of the accident.

In opposing the motion, plaintiffs submitted deposition testimony from Troy Hueschen, a dispatcher for Haynes, who testified that he believed Mr. Coleman was employed by Haynes in July 2000. They also submitted a copy of an “Employee Warning Notice” dated October 11, 2000 issued by Mr. Hueschen to Mr. Coleman for failing to refuel his truck and a copy of the N.O.P.D. accident report indicating gas receipts bearing Mr. Coleman’s name were found in truck #40 on the night of the accident. Plaintiffs contend that, collectively, this evidence shows that a genuine issue of material fact remains as to whether Mr. Coleman was employed by Haynes at the time of the accident. We disagree.

The evidence submitted indicates that Mr. Coleman was not employed by Haynes on July 11, 2000. Although Mr. Hueschen “believed” that Mr. Coleman was employed by Haynes at the time of the accident, his testimony alone, with nothing more, is not sufficient to overcome Mr. Coleman’s testimony and Ms. Witcher’s affidavit that he was not employed by Haynes at the time of the accident. That the warning notice contradicts Mr. Coleman’s statement that he was last employed by Haynes in May 2000 is of no consequence. The hearing transcript | (¡reflects that defense counsel acknowledged that Haynes rehired Mr. Coleman in September 2000, and, as the trial court correctly noted, the warning notice neither contradicted Ms. Witcher’s affidavit nor established that he was employed by Haynes on the date of the accident.

In addition to Ms. Witcher’s affidavit, the defendants submitted deposition testimony and affidavits from several other Haynes employees to show that the unknown driver was not a Haynes employee and had no permission to drive the truck on July 11, 2000. Jerry Jackson, a driver for Haynes, testified that the police questioned him regarding the accident after finding gas receipts bearing his name in truck # 40. Mr. Jackson told the investigating officer that he had left work on the day of the accident around 5:00 p.m. and went to bed early. He stated that he did not drive truck #40 on the date of the accident.

Troy Verrett, another Haynes driver, testified that on July 11, 2000, he drove truck # 40 to Baton Rouge and back, returning it to the Haynes yard in the late afternoon. After he left the yard at 6:00 p.m., he did not drive a Haynes vehicle and was not involved in any accident that night.

Winslow Thornton, a Haynes dispatcher on duty the day of the accident, averred that truck # 40 had made a round trip from New Orleans to Baton Rouge. He was the last dispatcher to leave at the end of the business day and when he left truck # 40 was parked in the Haynes yard and never dispatched again.

Jeanne Staehle, a Haynes supervisor responsible for company operations, averred that the only Haynes employee working the night of the accident was assigned to truck # 51, which was permanently stationed at the Folger’s Coffee Plant. She averred that no Haynes vehicle was dispatched between 6:00 p.m. on |7July 11, 2000 and 4:00 a.m. on July 12, 2000, and no person had permission to use truck #40 the night of the accident.

The evidence submitted clearly indicates that Mr. Verrett returned from Baton Rouge and parked truck # 40 in the Haynes yard by 6:00 p.m. on July 11, 2000, and it was not dispatched again that night. Moreover, the plaintiffs presented no evidence to show that either a Haynes employee or any other person had permission to use truck #40 on the night of the accident. Without such evidence, no genuine issues of material fact exist and summary judgment is appropriate as a matter of law. Also, Louisiana jurisprudence does not impose liability on the owner of a vehicle for injuries caused by someone using the vehicle without authorization. See Racine v. Moon’s Towing, 2001-2837, p. 6 (La.5/14/02), 817 So.2d 21, 26 and Humphrey v. Balsamo, 40,2000, 26 (La.App. 2 Cir. 11/8/05), 914 So.2d 1217, 1221.

CONCLUSION

Accordingly, for the reasons stated herein, we affirm the trial court judgments.

AFFIRMED.

      . The trial court rendered a partial summary judgment on June 16, 2006, dismissing Mr. Haynes d/b/a Haynes from the suit. The plaintiffs never appealed the June 16, 2006 judgment.

      . LIGA filed this motion for summary judgment on behalf of the then insolvent Reliance Insurance Company. Although Reliance was not a defendant in the litigation, it had provided premises liability insurance to Haynes.

      . La. C.C.P. art. 966 C provides:
      (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
      (2) The burden of proof remains with the movant. 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.

      . LIGA objected to the admissibility of the copy of the Employee Warning Notice on the basis that it lacked a supporting affidavit verifying it was from Haynes' personnel file on Mr. Coleman.

      . The police report did not indicate the dates of the gas receipts.