text:
    Kristopher SMITH v. Ricky E. MOREAU, Moreau’s Material Yard, L.L.C., and Canal Indemnity Company
    NO. 2017 CA 0003
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017

      Bryan D. Fisher, Chris J. Day,. Baton Rouge, Louisiana, Attorneys for Plain-tiffAppellant, Kristopher Smith
    Shannon Howard-Eldridge, Geoffrey C. Hingle Jr., Covington, Louisiana, Attorneys for Defendant/Appellee, Canal Indemnity Company
    Patrick D. DeRouen, Laurie L. DeAr-mond, New Orleans, Louisiana, and Jenny Donaghey Beckham, Marksville, Louisiana Attorneys for Defendants/Appellees, Ricky E. Moreau and Moreau’s Material Yard, LLC
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

| gThe plaintiff, Kristopher Smith, appeals a summary judgment dismissing his claims against Canal Indemnity Company. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Smith alleges- he was injured while working at Moreau’s Material Yard, LLC. He sued Moreau’s and its owner, Ricky Moreau,-'as well as their commercial general liability insurer, Canal, alleging the accident was caused by the negligence of Moreau’s and Ricky. At the time of the accident,. Smith had worked at Moreau’s for about two weeks. The nature of his employment is the central issue in this ap.-peal.

Canal filed a motion for summary judgment contending Smith’s claims were not covered under its policy because of two exclusions: a “workers’ compensation” exclusion, applicable to any claim covered by the.workers’ compensation act; and an “employee-injury” exclusion, applicable to injuries suffered by an employee of the insured.in the course of his employment. In support of its motion, Canal introduced several exhibits, including an affidavit signed by Ricky Moreau attesting Smith was hired by Moreau’s to perform manual labor, which included sandblasting aiid repainting a truck scale. According to the affidavit, Smith was paid by the hour, and his work was directed and controlled by Ricky, who had the authority to dismiss Smith.

•In opposition to the motion, Smith argued his claim did not fall within either exclusion because .he was an independent contractor.. Smith testified in his deposition, which was submitted with his opposition, that he. was hired during the summer to sandblast,, paint, and weld the truck scale. His work was confined to refurbishing the scale, except on one occasion when he cut the grass around the Lscale. Smith controlled his schedule, was not supervised, and was paid $100 cash for each day he worked. He originally intended to work until school started in the fall, but the job was cut short by the accident about two weeks after he started.

Smith also introduced Ricky’s deposition. Contrary to Smith’s testimony, Ricky described Smith’s job more ás a general laborer, stating Smith swept, cleaned, and generally assisted other employees in addition to working on the scale. When Smith worked on the scale, according' to Ricky, he and Smith worked together, essentially side by side, alternating turns handling the equipment.

Shortly before the hearing on the motion, Canal filed a reply memorandum asserting that if Smith was an independent contractor, coverage was barred by another exclusion in, the policy applicable to independent contractors. This was the first mention of the independent contractor exclusion; it was not asserted in the motion for summary judgment or the supporting memorandum .filed therewith.

The motion proceeded to a hearing where the trial court ruled in favor of Canal, stating:

The question is whether Mr. Smith was an employee ... or was he an independent contractor? And was there coverage under the Canal policy under either circumstance? With regard to the Canal policy, it excludes coverage for [independent] contractors and of course, also excludes coverage for employees where [their] claims are' subject to workers’ compensation, Mr. Smith is obviously one or the other .... So the motion for summary judgment filed by Canal is granted.

A judgment was signed on September 20, 2016, granting Canal’s motion for summary judgment and dismissing with prejudice Smith’s claims against the insurer. Smith appeals.

DISCUSSION

|4A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). If the mover will bear the burden of proof at trial on the issue before the court in the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La. Code Civ. Pro. art. 966D(1); Rider v. Ambeau, 11-0532 (La.App. 1 Cir. 2/1/12), 100 So.3d 849, 854. When a motion' is made and properly supported, an adverse party may not rest on the mere allegations or denials of his pleading; his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. See La. Code Civ. Pro. art. 967B.

Summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See La. Code Civ. Pro. art. 966E; Simmons v. Weiymann, 05-1128 (La.App. 1 Cir. 8/23/06), 943 So.2d 423, 425. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy under which coverage could be afforded when applied to the undisputed material facts shown by the evidence supporting the motion. Rider, 100 So.3d at 854. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. Lewis v. Jabbar, 08-1051 (La.App. 1 Cir. 1/12/09), 5 So.3d 250, 254. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination | Bof whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

A summary judgment may be rendered or affirmed “only as to those issues set forth in the motion under consideration by the court at that time.” See La. Code Civ. Pro. art. 966F. Canal’s motion seeks a dismissal of Smith’s claims based upon two exclusions in its policy: the workers’ compensation exclusion and the employee-injury exclusion. Canal makes no mention anywhere in its motion or the supporting memorandum filed therewith that coverage is barred by a separate exclusion applicable to independent contractors. That provision was raised for the first time in a reply memorandum filed shortly before the hearing. Because the motion for summary judgment did not assert the independent contractor exclusion, the trial court erred to the extent it relied upon that provision in rendering summary judgment. See Wilson v. Two SD, LLC, 15-0477 (La.App. 1 Cir. 12/23/15), 186 So.3d 159, 162, writ denied, 16-0306 (La. 4/8/16), 191 So.3d 588 (holding trial court erred in rendering summary judgment based on an exclusion first asserted by insurer in a reply memorandum).

Our review is limited to whether summary judgment is appropriate based on the two exclusions set forth in Canal’s motion. In relevant part, the employee-injury exclusion applies to bodily injury to “[a]n ‘employee’ of the Insured arising out of and in the course of ... [employment by the Insured.” The workers’ compensation exclusion applies to “[a]ny obligation of the Insured under a workers’ compensation [law].” Although the provisions are similar in scope, the employee-injury exclusion extends to all employees who suffer work-related injuries, including those not covered under the workers’ compensation act. See Davis v. Oilfield Scrap and Equipment Company, Inc., 503 So.2d 674, 676 (La. App. 3 Cir. 1987).

Canal’s policy contains a limited definition of “employee” that provides the term “includes a ‘leased worker’ [but] does not include a ‘temporary worker.’” Absent a more specific policy definition, “employee” should be given its ordinary and usual meaning when interpreting this exclusion. See Doucet v. Darwin Select Insurance Company, 16-1989 (La. 2/3/17), 210 So.3d 794, 796-97 (per curiam); Savoie v. Fireman’s Fund Insurance Company, 347 So.2d 188, 191 (La. 1977). Understood in its common and usual sense, the term signifies one who is a party to an employment contract, express or implied. See Savoie, 347 So.2d at 191.

In determining whether a person is an “employee” under the exclusion, the court may consider factors used to determine employment status in other contexts. See Savoie, 347 So.2d at 191. Generally, although courts look to the totality of the circumstances, the most important factor in determining whether an employment relationship exists is the principal’s right of control and supervision over the individual. See Savoie, 347 So.2d at 191; Bouquet v. Williams, 16-0134 (La.App. 1 Cir. 10/28/16), 206 So.3d 232, 237, writs denied, 16-2077, 162082 (La. 1/9/17)214 So.3d 870, 871; Butler v. Boutan, 14-1058 (La.App. 1 Cir. 12/23/14), 168 So.3d 501, 505. When, as here, the issue is whether the worker is an independent contractor or an employee, the court should also consider if (1) a valid contract exists between the parties; (2) the work is of an independent nature; (3) the contract allows for the work to be done according to the contractor’s own methods, 17without being subject to control and direction, except as to the result of the services to be rendered; (4) a specific price for the overall undertaking is agreed upon; and (5) the duration of the work is for a specific time and not subject to termination at the will of either party. See Hickman v. Southern Pacific Transport Company, 262 La. 102, 117, 262 So.2d 385, 390-91 (1972); Bouquet, 206 So.3d at 237. The distinction between an employee and an independent contractor is a factual determination that must be decided on a case-by-case basis. Tower Credit, Inc. v. Carpenter, 01-2875 (La. 9/4/02), 825 So.2d 1125, 1129; Fonseca v. City Air of Louisiana, LLC, 15-1848 (La.App. 1 Cir. 6/3/16), 196 So.3d 82, 87.

The evidence bearing on these factors, particularly the independent nature of the work and the right of control and supervision, is conflicting. Smith testified he was hired to refurbish the truck scale, which involved sandblasting, painting, and welding. According to Smith, he set his own schedule, was not supervised while he worked, and was paid in cash on a weekly basis. Ricky acknowledged Smith was the only worker paid in cash; all other personnel were “on payroll.” However, Ricky provided a significantly different description of Smith’s work and supervision. He testified Smith did not work exclusively on the truck scale; instead he was hired as a “helper” to do “whatever we needed” and was told what to do each day. Smith’s work included “sweeping and cleaning, picking tools up .... [J]ust giving the other guys a hand. Just anything. Maybe changing some tires or something.” When Smith worked on the scale, he and Ricky worked together, with Ricky directing the work.

While Smith describes work of an independent nature, with little to no supervision or control by another, Ricky’s testimony depicts work that is more typical of a general laborer subject to significant supervision and control. These Iscontradictions in the evidence present genuine issues of material facts pertinent to the determination of whether Smith was an employee or an independent contractor. Summary judgment on the basis of the employee-injury exclusion is thus improper. See Robicheaux v. Tate, 13-0176 (La. 4/1/13), 110 So.3d 134 (genuine issues of material fact precluded summary judgment as to whether party was an employee or independent contractor); Fonseca, 196 So.3d at 89 (factual questions concerning extent and nature of working relationship required reversal of summary judgment declaring repairman to be an independent contractor). The trial court erred to the extent it relied on that provision in granting summary judgment.

Canal argues that even if factual questions remain as to whether Smith was an employee or an independent contractor, coverage is still precluded by the workers’ compensation exclusion. That exclusion, according to Canal, applies because Smith was either an employee of Moreau’s, or he was an independent contractor who performed “manual labor,” both of which are covered under the act.

The workers’ compensation act extends to independent contractors if “a substantial part of the work time of [the] independent contractor is spent in manual labor by him in carrying out the terms of the contract.” See La. R.S. 23:1021(7). Although the act does not define “manual labor,” our courts have consistently interpreted the phrase to mean work where the physical elements of the labor predominate over the mental elements. See Riles v. Truitt Jones Construction, 94-1224 (La. 1/17/95), 648 So.2d 1296, 1300; Courtney v. Fletcher Trucking, 12-0434 (La.App. 1 Cir. 12/21/12), 111 So.3d 411, 417. Manual labor may include jobs requiring a particular skill; a person should not be precluded from receiving worker’s compensation solely because his physical effort is skilled and therefore |flsuperior to the effort of other workers. See Riles, 648 So.2d at 1300. The “substantial part” requirement is. liberally construed and is not determined by the use of mathematics. See Riles, 648 So.2d at 1300; Courtney, 111 So.3d at 417, “Substantial” may be less than 50% and is simply the contrary of “insubstantial or immaterial,” Riles, 648 So.2d at 1300. Whether a substantial; part of one’s job involves manual labor is a factual determination addressed on a case-by-case basis. See Courtney, 111 So.3d at 417; Coleman v. Landstar Ranger, 03-1943 (La.App. 1 Cir. 6/25/04), 886 So.2d 472, 473.

While Canal makes a persuasive argument that Smith’s work, even by his own description, satisfies these requirements, Canal’s burden of proof does not end there. To establish coverage under the act, Canal must also prove Smith’s work was a part of Moreau’s trade, business, or occupation. See Lushute v. Diesi, 354 So.2d 179, 182 (La. 1977); Rogers v. D’Aubin, 434 So.2d 1228, 1230-31 (La. App. 1 Cir. 1983). This additional requirement, as explained in Lushute, is collectively required by Louisiana Revised Statute 23:1021(7), which contains the manual labor exception for an independent contractor, and Louisiana Revised Statute 23:1061, which governs a statutory employer’s liability to employees of a “contractor” who perform work “which is a part of the [statutory employer’s] trade, business, or occupation.” Construing these provisions together, the court found:

The obvious purpose of extending compensation coverage to an independent contractor under the circumstances described’ in [Section 23:1021(7) ] was to prevent an employer from avoiding liability under the act by contracting with an independent contractor for the execution of work undertaken by the employer which was part of the employer’s trade, business or occupation ....
We therefore conclude that an independent contractor is covered under the workmen’s compensation law only when a substantial part of his work time is spent in manual labor in carrying 1 inout the terms of his contract with the principal and the work performed by him is a part of the principal’s trade, business or occupation.

Lushute, 354 So.2d at 182 (emphasis added).

Work is considered “part” of the principal’s trade, business, or occupation if “it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” See La. R.S. 23:1061A(1) This determination is based on the facts of each case. See Insurance Company of North America v. Gaylord Container Corporation, 99-0904 (La.App. 1 Cir. 6/23/00), 764 So.2d 1214, 1217; Steinfelds v. Villarubia, 10-0975 (La.App. 4 Cir. 12/15/10), 53 So.3d 1275, 1282, writ not considered, 11-0137 (La. 3/4/11), 58 So.3d 466.

The parties introduced limited evidence of Moreau’s products or services, and even less evidence of what work is an integral part or essential to the business’s ability to generate those products or services. Ricky described the company as a “[trucking business” that sells limestone, dirt, gravel, and sand. A scale is used to weigh trucks hauling certain types of materials before they leave the business to determine the size of the load. The scale that Smith worked on, however, was not in use. Ricky purchased it with the intention of putting the scale to some future use in the business after refurbishing it. When the refurbishing was ultimately completed, Ricky “leased it out to somebody.” Ricky did not specify h-whether he leased the scale in his personal capacity or on behalf of Moreau’s, and no further evidence was introduced concerning the lease or the nature and scope of Moreau’s business.

The record is silent as to whether the scale was ever actually used in Moreau’s business. Without more evidence of the nature of that business and the manner or extent to which the subject scale was used therein, we are unable to determine if Smith’s work on the scale was “an integral part of or essential to” Moreau’s ability to generate its goods, products, or services. Thus, for purposes of the motion for summary judgment, Canal failed to satisfy its burden of proving the workers compensation exclusion applies to Smith’s claim. The trial court erred in relying on that provision to grant summary judgment.

For all of the foregoing reasons, the trial court erred in granting summary judgment in favor of Canal. See Rogers, 434 So.2d at 1231 (reversing summary judgment based on issues of material fact “as to whether plaintiff was an independent contractor, whether a substantial part of his work time was spent at | ^manual labor, and whether said work was part of his principals’ trade, business or occupation”).

CONCLUSION

The September 20, 2016 judgment is reversed, and this matter is remanded for further proceedings. Costs of this appeal are assessed to Canal Indemnity Company.

REVERSED AND REMANDED.

      . At the same hearing, the trial court denied a motion for summary judgment filed on behalf of Moreau’s and Ricky, finding issues of fact as to whether Smith’s claim was covered by the workers’ compensation act. That ruling is not under review in this appeal.

      . Although Smith argues he qualifies as a "temporary worker,” we pretermit consideration of this argument in light of our findings herein.

      . For examples of more expansive policy definitions of ‘‘employee,” see Eads v. Chartis Specialty Insurance Co., 13-224 (La.App. 3 Cir. 2/26/14), 133 So.3d 722, 728; Spell v. Mallett, Inc., 06-1477 (La.App. 3 Cir. 5/2/07), 957 So.2d 262, 266.

      . One commentator suggests the test for manual labor by an independent contractor should be the less rigorous standard of Louisiana Revised Statute 23:1035A, which extends the act’s coverage to services "arising out of and incidental to [one’s] employment ... in the course of his employer's trade, business, or occupation.” (Emphasis added). See Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation Law and Practice § 78-(5th Ed.). However, Lushute remains controlling authority and expressly held the independent contractor’s manual labor must be "part" of the principal’s trade, business, or occupation under Section 23:1061. See Lushute, 354 So.2d at 182; see also Johnson v. Clark, 97-1351 (La.App. 3 Cir. 3/6/98), 710 So.2d 316, 320, writ denied, 98-0897 (La. 5/15/98), 719 So.2d 464 ("While [Lushute’s ] approach has been questioned as having no statutory support, the courts have continued to follow this precedent essentially without deviation,”)

      . Cf. Lushute, 354 So.2d at 183 (repairman's work was not a part of the restaurant’s business but was merely incidental thereto, where properly functioning air-conditioning system was not necessary to the operation of the restaurant); Jackson v. St. Paul Insurance Company, 04-0026 (La.App. 1 Cir. 12/17/04), 897 So.2d 684, 688-89, writ denied, 05-0156 (La. 3/24/05), 896 So.2d 1042 (where it would be “virtually impossible" for chemical company to process products without the facility, the construction of a fractionation plant was part of company's business); Prince v. Baton Rouge General Hospital, 449 So.2d 90, 94 (La. App. 1 Cir.), writ denied, 450 So.2d 966 (La. 1984) (providing sitters for patients was not part of nursing home’s business); Bellard v. Castille, 99-1161 (La.App. 3 Cir. 12/8/99), 759 So.2d 789, 794, writs denied, 00-0069, 000071 (La. 2/25/00), 755 So.2d 886, 887 (painting owner’s private residence was not part of owner’s apartment leasing business); Maldonado-Mejia v. Eversound Kitchen & Bath, LLC, 15-0859 (La.App. 4 Cir. 4/20/16), 194 So.3d 1136, 1142-44, writ denied, 16-0963 (La. 9/6/16), 205 So.3d 914 (where defendant was in business of selling and installing cabinets and counter-tops, removing furnishings and other property in the course of vacating its business premises was not part of its business); Garrett v. Adcock Construction Co., 13-0134 (La.App. 4 Cir. 8/14/13), 122 So.3d 1134, 1142 (refinishing furniture was not part of hotel owner’s business); Steinfelds, 53 So.3d at 1284 (where building was oceupied and rented for commercial use, repair and renovation of building was part of building owner’s business).


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    Yoshi C. THOMPSON v. TOWN OF JONESBORO; Kenneth Folden, Fiscal Administrator; Ann Walsworth, Clerk of Court; and Tom Schedler, Secretary of State
    NO. 2016 CA 1224
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017

      William G. Whatley, Marksville, Louisiana, Attorney for Plaintiff/Appellant, Yoshi C. Thompson
    Grant Lloyd Willis, Baton Rouge, Louisiana, Attorney for Defendants/Appellees, Kenneth Folden and Tom Schedler, Secretary of State
    J. Clay Carroll, Jacob H. Thomas, Jonesboro, Louisiana, Attorneys for Defendant/Appellee, Town of Jonesboro
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|2The plaintiff, Yoshi C. Thompson, appeals a judgment sustaining peremptory exceptions of prescription and dismissing her claims against Tom Schedler, in his capacity as the Louisiana Secretary of State, and Kenneth Folden, the former fiscal administrator for the Town of Jones-boro. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

This proceeding arises out of efforts to appoint an interim mayor for Jonesboro after the sitting mayor was convicted of charges involving malfeasance in office. At a meeting on September 16, 2013, the Jonesboro town council voted to appoint Thompson, the wife of the convicted may- or, to the position of interim mayor. Fol-den, Jonesboro’s judicially appointed fiscal administrator, did not approve the appointment. The Jonesboro town attorney advised the council that Folden’s approval was required. The meeting was adjourned with no further action.

Four days later, Thompson was administered an oath of office by Judge Tammie Lee, and on September 23, 2013, Thompson requested a commission from the Secretary of State recognizing her as Jones-boro’s interim mayor. The Secretary of State denied the request, allegedly because Judge Lee retracted the oath administered to Thompson. Almost one year later, on September 19, 2014, Thompson filed a mandamus proceeding against the Secretary of State and the Jackson Parish Clerk of Court, seeking an order directing the Secretary of State to |sissue a commission to Thompson as interim mayor. The commission was issued on October 2, 2014.

On October 1, 2015, Thompson filed this suit against several defendants, including the Secretary- of State and Folden. In relevant part, Thompson alleges the Secretary of State failed to timely issue her commission and Folden exceeded his authority by “over-riding” the vote of the town council at the September 16, 2013 meeting. Thompson also alleges Folden disregarded the vote of the town council at a meeting on December 24, 2014, when the council voted to accept Thompson as mayor and to compensate her pursuant to the statutory provisions applicable to interim' appointments. Se,e La, R.S. 42:1411C.

The Secretary of State and Folden responded with several exceptions, including peremptory exceptions of prescription asserting Thompson’s claims were filed more than one year after the acts giving rise to the claims. In opposition to the exceptions, Thompson argued that filing the mandamus suit interrupted prescription and rendered the present claims timely. Thompson’s evidence at the hearing on the exceptions included minutes from the September 16, 2013 council meeting, a copy of the mandamus petition filed on September 19, 2014, and the commission issued by the Secretary of State.

The trial court found prescription commenced on September 16, 2013, and ran to September 16, 2014. Because the mandamus suit was filed after that date, the trial court found the prescriptive period was not interrupted. A. judgment was signed on June 15, 2016, sustaining the exceptions of prescription and dismissing the claims against the Secretary, of State and Folden with prejudice. Thompson appeals.

J^DISCUSSION

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. Civ. Code art. 3447. Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished. Mallett v. McNeal, 05-2289 (La. 10/17/06), 939 So.2d 1254, 1258. Generally, the burden of proving that a cause of action has prescribed rests with the party pleading prescription; however, when the face of the plaintiffs petition shows that the prescriptive period has run, and the plaintiff -is contending there is a suspension or interruption of prescription, the burden is on the plaintiff to prove suspension or interruption. St. Romain v. Luker, 00-1366 (La.App. 1 Cir. 11/9/01), 804 So.2d 85, 88, writ denied, 02-0336 (La. 4/19/02), 813 So.2d 1083.

Evidence may be introduced to support or controvert the exception of prescription when the grounds thereof do not appear from the petition. See La. Code Civ. Pro. art. 931; Kelley v. General Insurance Company of America, 14-0180 (La.App. 1 Cir. 12/23/14), 168 So.3d 528, 533, writs denied, 15-0157, 15-0165 (La. 4/10/15), 163 So.3d 814, 816. In the absence of evidence, the exception must be decided on the facts alleged in the petition, which are accepted as true, Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 11-2835 (La. 11/2/12), 125 So.3d 1057, 1072. When, as here, evidence is received at the trial of the' exception, the appellate court reviews the trial court’s factual findings under the manifest error-cleerly wrong standard. Warren v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 14-0310 (La.App. 1 Cir. 11/20/14), 168 So.3d 436, 439, writ denied, 15-0068 (La. 4/2/15), 163 So.3d 795.

Thompson does not dispute that her claims are subject to the one-year prescriptive period applicable to delictual actions, which commences to run from the date the injury or damage is sustained. See La. Civ. Code art. 3492. She | ¿contends the trial court erred in finding the prescriptive period commenced for all claims on September 16, 2013, and that prescription was not interrupted by the filing of the petition for mandamus. We separately analyze-the claims against the Secretary of State and Folden.

Claim Against Secretary of State

Thompson’s cause of action against the Secretary of State is based on his refusal to issue the requested commission. The petition filed October 1, 2015, alleges Thompson presented an oath of office to the Secretary of State on September 23, 2013. Although not clearly articulated in the petition, Thompson claims the Secretary of State refused to issue her commission on that date. Any damage from that refusal could not be sustained before the date of the refusal. See La. Civ. Code art, 3495, Comment (b) (“On principle, liberative prescription commences to run from the day a cause of action arises and its judicial enforcement is possible.”) The trial court’s finding that prescription commenced for the claim against the Secretary of State on September 16, 2013, the date the town council met, is manifestly erroneous. Prescription against the Secretary of State commenced no earlier than September 23, 2013, when the Secretary of State denied her request for a commission. However, because that alleged act or omission occurred more than one year prior to suit, the claim against the Secretary of State is prescribed on the face of the petition! Thus, Thompson bears the burden of proving prescription was interrupted. See St. Remain, 804 So.2d at 88.

Because the cause of action against the Secretary of State arose more than one year before this suit was filed, we must next determine whether the mandamus proceeding filed against the Secretary of State on September 19, 2014, less than one year after the refusal to issue the commission, interrupted prescription. Prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue. See La. Civ. Code art. 3462. A “civil action” is defined by Louisiana Code of Civil Procedure article 421 as “a demand for the enforcement of a legal right ... commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction.” The essence of interruption by suit is notice to a defendant of. legal proceedings on a claim. See Montiville v. City of Westwego, 592 So.2d 390, 391 (La. 1992); Parker v. Southern American Insurance Co., 590 So.2d 55, 56 (La. 1991); Nini v. Sanford Brothers, Inc., 276 So.2d 262, 264 (La. 1973). The interruption of prescription continues as long as the suit is pending; however, the interruption is considered never to have occurred if the plaintiff abandons or voluntarily dismisses the action, or fails to prosecute the suit at trial. See La. Civ. Code art. 3463.

Citing Parker, Thompson argues the mandamus suit interrupted prescription because both the mandamus and tort suits assert a legal demand against the Secretary of State based upon his obligation to issue the requested commission. We find Parker factually distinguishable. In Parker, the supreme court considered whether a workers’ compensation claim filed against a sheriff interrupted prescription on a subsequent tort suit filed by the same plaintiff against the sheriffs liability insurer. See Parker, 590 So.2d at 56. The court found the worker’s compensation suit put the insurance company on notice that damages were being sought. Relying on the allegations of monetary liability in the workers’ compensation claim, the supreme court held that that suit interrupted prescription, explaining, “Both the compensation suit and this tort suit are based on the occurrence of Parker’s death and the monetary liability of Sheriff Cappel .... Plaintiffs compensation suit against Sheriff Cappel gave this defendant notice that it might be liable on a cause of action arising from Parker’s death.” Parker, 590 So.2d at 56 (emphasis added).

In contrast, Thompson’s mandamus suit does not demand monetary damages from the Secretary of State, and the objects of the mandamus and tort suits are |7completely different. The mandamus sought only an order directing the Secretary to perform his ministerial duty and issue a commission. While that request served to notify the Secretary of a dispute concerning Thompson’s entitlement to the office, it did not put the Secretary on notice of a possible claim for monetary damages.

In Montiville, the supreme court held a declaratory judgment action did interrupt prescription for a subsequent suit filed by the same plaintiffs against the same defendant, to collect overtime, sick leave, and other compensation. The defendant’s liability was based on Louisiana Revised Statutes 33:2211 et seq., which mandated payment of the requested compensation. The plaintiffs sought and obtained a judgment declaring the statutes applicable to the defendant, and the defendant was ultimately ordered to comply with its obligations thereunder. See Montiville, 592 So.2d at 391. When the defendant refused to comply, the plaintiffs sued to collect the compensation that was previously declared due. The defendant argued the second suit was prescribed, but the supreme court disagreed, stating:

Plaintiffs’ 1984 petition for declaratory judgment claimed entitlement to benefits under LSA-R.S. 33:2211 et seq. Both that suit and this suit involve the City’s contractual responsibility under those statutes. The prior petition notified the City that it might be liable to the police officers under the statutes. Liability was confirmed by the declaratory judgment, which declared the City subject to the statutes. This proceeding seeks the further relief of a money judgment.

Montiville, 592 So.2d at 391 (citations omitted).

The declaratory judgment action in Montiville provided notice to the defendant of its liability for the compensation due under the statute. Thompson’s mandamus suit simply confirmed the duty of the Secretary to issue the commission to Thompson. It did not, and could not, result in a judicial declaration of liability for an amount due by the Secretary to Thompson. We affirm the granting of the | ^exception of prescription filed by the Secretary and the dismissal, with prejudice, of the claims filed against him.

Claims against Folden

The petition further alleges that Folden exceeded his authority at meetings of the town council on September 16, 2013, and December 24, 2014. With suit being filed October 1, 2015, any claim arising out of the September 16, 2013 meeting is prescribed on the face of the petition. Therefore, Thompson has the burden of proving prescription was interrupted. Thompson again relies on the mandamus suit, arguing that because it interrupted prescription against the Secretary of State, it also interrupted prescription against Folden. As previously discussed, the mandamus suit did not interrupt prescription against the Secretary of State. In fact, the mandamus suit was filed after prescription ran against Folden relative to the September 16, 2013 meeting. Once prescription extinguishes a cause of action, a subsequent timely suit against a solidary obligor cannot revive the already prescribed action. Rizer v. American Surety and Fidelity Insurance Company, 95-1200 (La. 3/8/96), 669 So.2d 387, 390-91. The trial court did not err in sustaining the exception of prescription as to any claims against Folden arising out of the September 16, 2013 meeting.

Relative to the December 24, 2014 meeting, prescription for the claim against Folden began to accrue on the date of that meeting. See La. Civ. Code art. 3492. The petition was filed within one year of that date. Thus, that claim is not prescribed on its face, and Folden presented no evidence or argument suggesting it is prescribed. The trial court erred in sustaining the exception of prescription for that claim.

CONCLUSION

We affirm the June 15, 2016 judgment insofar as it sustained the exceptions of prescription and dismissed with prejudice all claims filed against the Secretary |3of State and any claims filed against Folden arising out of the September 16, 2013 town council meeting. The judgment is reversed insofar as it sustained the exception of prescription and dismissed with prejudice any claims against Folden arising out of the December 24, 2014 town council meeting. Costs of this appeal are assessed one-half to Yoshi C. Thompson, and one-half to Kenneth Folden.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

Welch J. concurs in result.

      . See State v. Thompson, 49,483 (La.App. 2 Cir. 3/18/15), 163 So.3d 139, writ granted, 15-0886 (La. 2/24/17), 216 So.3d 55.

      . Folden was appointed pursuant to Louisiana Revised Statute 39:1351, which, upon petition by the attorney general, authorizes the court to appoint a fiscal administrator for a political subdivision that is reasonably certain to default on certain financial obligations. Folden was the successor to the original fiscal administrator appointed for Jonesboro. See State ex rel. Caldwell v. Town of Jonesboro, 47,896 (La.App. 2 Cir. 12/19/12), 108 So.3d 217, 226, writ denied, 13-0173 (La. 1/23/13), 105 So.3d 60.


author: GREMILLION, Judge.

text:
    Laureen OLSON v. Paul M. TOCE, Jr., et al.
    17-36
    Court of Appeal of Louisiana, Third Circuit.
    06/07/2017

      Nadia de la Houssaye, Donald W. Washington, Jones Walker LLP, 600 Jefferson Street, suite 1600, Lafayette, Louisiana 70502, (337) 593-7600, COUNSEL FOR OTHER RESPONDENT: Louisiana Patient’s Compensation Fund Oversight Board
    „J. Lomax Jordan Jr., Victor A. Ashy, 1817-West University Avenue, Lafayette, Louisiana 70506, (337) 233-9984, COUNSEL FOR PLAINTIFF/APPLICANT: Laureen Olson
    Michael W. Adley, Adam Gulotta, Judice & Adley, APLC, 926 Coolidge Boulevard, Lafayette, Louisiana 70503, (337) 235-2405, COUNSEL FOR DEFENDANTS/RESPONDENTS: Paul M. Toce, Jr., Paul M. Toce, Jr., A Professional Medical Corporation
    Thomas S. Schneidau, Norma F. Pizza, Milling Benson Woodward LLP, 68031 Capital Trace Row, Mandeville, LA'70471, (985) 871-3924, COUNSEL' FOR DEFENDANT/RESPONDENT:' LAMMICO
    Court composed of Syvia R. Cooks, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

|-i The plaintiff-applicant, Laureen Olson, applied for supervisory writs with this court following the trial court’s grant of the exceptions of vagueness, ambiguity, and prematurity filed by the Louisiana Patient Compensation . Fund Oversight Board (the PCF) in response to her Petition for Approval of Settlement of Medical Malpractice Claim pursuant to La.R.S. 40:1231.4. We called up the writ and requested supplemental briefing and argument. For the following reasons, the writ is granted, and the ruling of the trial court is reversed, The matter is remanded for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The basic facts of this case are not disputed. A medical review panel found that Dr. Paul M. Toce, Jr., defendant-respondent, committed medical malpractice in his treatment of Olson and, further, engaged in an inappropriate sexual relationship with her. Over the years, extensive litigation and procedural matters have arisen. Olson first filed two lawsuits in February 2011 prior to the convening of the panel: one for medical malpractice and one for general tort claims not considered medical malpractice. After the panel rendered its opinion in December 2012, and following appeals to this court, the general tort suit was amended to include the medical malpractice claims. In Olson v. Louisiana Medical Mutual Insurance Co., 13-1182 (La.App. 3 Cir. 3/5/14), 134 So.3d 1276, writ denied, 14-1053 (La. 10/24/14), 151 So.3d 601, we reversed the trial court’s ruling which sustained the exception of lis pendens, thereby reviving the original medical ^malpractice claim. Thereafter, the two suits were consolidated in September 2016. These suits asserted claims for medical malpractice and non-medical-malpractice claims arising from a sexual relationship-between Toce and Olson.

Additionally, prior to the consolidation, Defendants filed various exceptions to the amended suit, arguing that Olson needed to specify which acts were medical malpractice and which were general tort claims. Olson filed writs with this court following the trial court’s ruling that the lawsuit needed to be amended to specify which acts constituted medical malpractice and which constituted a breach of general tort law. The PCF participated in the arguments to the trial court. We granted the writ and reversed the trial court, finding that Olson’s third amended supplemental and restated petition was “sufficient to inform the defendants of the claims asserted and to allow them to prepare a defense.” See Writ Application, pg. 167, Olson v. ABC Insurance Co., 15-339 (La. App. 3 Cir. 5/27/15) (an unpublished writ opinion).

Thereafter, in December 2016, Olson and Defendants agreed to settle her claims for the sum of $140,000, reserving all rights against the PCF. Olson filed her Petition for Approval of Settlement of Medical Malpractice Claim Pursuant to La.R.S. 40:1231.4.

In October 2016, the PCF filed an amended peremptory exception of no cause of action, dilatory exception of vagueness and ambiguity, answer and objections to the petition for approval of settlement of medical malpractice claim pursuant to La.R.S. 40:1231.4. The PCF’s main argument was that the settlement does not assign dollar values distinguishing between medical malpractice and non-medical-malpractice claims being settled.

| ¡/Following a November 2016 hearing, the trial court agreed and granted the PCF’s exception of vagueness and ambiguity, thereby denying the petition for approval of the settlement. The trial court’s judgment on the exceptions noted the granting of the exceptions were without prejudice to Olson’s “light to amend, supplement or re-state the petition for approval of the settlement.” In its written reasons for judgment, the trial court noted:

Ultimately, the Court sustained the PCF’s Dilatory Exception of Vagueness and Ambiguity, in order to allow the PCF to adequately prepare its defense for trial. The PCF must defend itself against claims of medical malpractice; however, the PCF does not need to defend itself against claims of non-medical malpractice.
The Court sustained the PCF’s Dilatory Exception of Prematurity, finding that it would be premature for this Court to approve Plaintiffs settlement with the underlying providers because the settlement clearly includes settlement of claims involving sexual misconduct, which are not covered by the Louisiana MMA.

Olson filed this writ application seeking reversal of the trial court’s ruling and assigns as error:

1. The trial court erred in sustaining the dilatory exceptions of ambiguity and prematurity as the PCFOB an interve-nor takes the proceedings as he finds them under La.C.C.P. Article 1094.
2. The trial court erred in sustaining the Dilatory Exception of Vagueness/Ambiguity relating to the petition to approve the settlement between plaintiff Olson and Defendants Toce APMC and Toce, Jr. and their insurer LAMMI-CO, as law of the case precludes reconsideration of the issue of vagueness.
3. The trial court erred in sustaining the Dilatory Exception of Prematurity relating to the petition to approve the settlement between plaintiff Olson and Defendants Toce APMC and Toce, Jr. and their insurer LAMMICO as there was full compliance with the statutory procedures mandated by LSA-RS 40-1281.4.
4. The trial court erred in failing to approve a global settlement of all claims by plaintiff Olson and against Defendants Toce APMC and Toce, Jr. and their insurer LAMMICO, since—
14A) the settling parties are competent to enter into the settlement;
B) there is a basis for the plaintiffs claims in law and in fact;
C) the medical review panel found the defendant healthcare providers to be in breach of the standard of care; and,
D) the medical review panel found the defendant healthcare providers to have caused damage to the plaintiff and procedures mandated by LSA-R.S. 40;1231.4C were followed.

DISCUSSION

Louisiana Revised Statutes 40:1231.4(C) (emphasis added) provides:

If the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability on a claim against its insured and claimant is demanding an amount in excess thereof from the patient’s compensation fund for a complete and final release, then the following procedure must be followed:
(1) A petition shall be filed by the claimant with the court in which the action is pending against the health care provider, if none is pending in the parish where plaintiff or defendant is domiciled seeking (a) approval of an agreed settlement, if any, and/or (b) demanding payment of damages from the patient’s compensation fund.
(2) A copy of the petition shall be served on the board, the health care provider and his insurer, at least ten days before filing and shall contain sufficient information to inform the other parties about the nature of the claim and the additional amount demanded.
(3) The board and the insurer of the health care provider or the self-insured health care provider as the case may be, may agree to a settlement with the claimant from the patient’s compensation fund, or the board and the insurer of the health care provider or the self-insured health care provider as the case may be, may file written objections to the payment of the amount demanded. The agreement or objections to the payment demanded shall be filed within twenty days after the petition is filed.
(4) As soon as practicable after the petition is filed in the court the judge shall fix the date on which the |fipetition seeking approval of the agreed settlement and/or demanding payment of damages from the fund shall be heard, and shall notify the claimant, the insurer of the health care provider or the self-insured health care provider as the case may be, and the board thereof as provided by law.
(5)(a) At the hearing the board, the claimant, and the insurer of the health care provider or the self-insured health care provider, as the case may be, may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if it is submitted on agreement without objections. If the board, the insurer of the health care provider or the self-insured health care provider, as the case may be, and the claimant cannot agree on the amount, if any, to be paid out of the patient’s compensation fund, then the trier of fact shall determine at a subsequent trial which shall take place only after the board shall have been given an adequate opportunity to conduct discovery, identify and retain expert witnesses, and prepare a defense, the amount of claimant’s damages, if any, in excess of the amount already paid by the insurer of the health care provider or self-insured health care provider. The trier of fact shall determine the amount for which the fund is liable and render a finding and judgment accordingly. The board shall have a right to request trial by jury whether or not a jury trial has been requested by the claimant or by any health care provider.
(b) The board shall not be entitled to file a suit or otherwise assert a claim against any qualified health care provider as defined in R.S. 40:1231.1(A) on the basis that the qualified health care provider failed to comply with the appropriate standard of care in treating or failing to treat any patient.
(c) The board may apply the provisions of Civil Code Article 2323 or 2324, or both, to assert a credit or offset for the allocated percentage of negligence or fault of a qualified health care provider provided at least one of the following conditions is met:
(i) A payment has been made to the claimant by, in the name of, or on behalf of the qualified health care provider whose percentage of fault the board seeks to allocate.
16(ii) A payment has been made to the claimant by, in the name of, or on behalf of another qualified health care provider in order to obtain a dismissal or release of liability of the qualified health care provider whose percentage of fault the board seeks to allocate, provided that there shall be no separate credit or offset for the fault of an employer or other vicariously liable entity who was not independently negligent or otherwise at fault and who makes a payment in order to obtain a dismissal or release of liability of a single qualified health care provider for whom the payor is vicariously liable.
(iii) All or a portion of a payment made by another qualified health care provider, by the insurer of another qualified health care provider, or by the employer of another qualified health care provider has been attributed to or allocated to the qualified health care provider whose percentage of fault the board seeks to allocate, provided that there shall be no separate credit or offset for the fault of-an employer or other vicariously liable entity who was not independently negligent or otherwise at fault and who makes a payment in order to obtain a dismissal or release of liability of a single qualified health care provider for whom the payor is vicariously liable.
(iv) A medical review panel has determined that the qualified health care provider whose percentage of fault the board, seeks to allocate failed to comply with the appropriate- standard of care and that the failure was a cause of the damage or injury suffered by the patient, or a medical review panel has determined that there is a material issue of fact, not requiring expert opinion, bearing.on liability of the qualified health care provider whose percentage of fault the board seeks to allocate for consideration by the trier of fact.,
(v) The qualified health care provider does- not object within thirty days after notice of |7the board’s intention to allocate the health care provider’s percentage of fault is delivered via certified mail to the plaintiff, the qualified health care provider, and the qualified health' care provider’s professional liability insurer or to their attorneys.
(vi) The court determines, after a hearing in which the qualified health care provider whose percentage of fault the board seeks to allocate shall be given an opportunity to appear and participate, that there has been collusion or' other improper conduct between the defendant health care providers to the detriment of the interests of the fund.
(d) Except where the sum of one hundred thousand dollars has been paid by, in the name of, or on behalf of the qualified health care provider whose percentage of fault the board seeks to allocate, in any case in which the board is entitled pursuant to the provisions of Civil Code Article 2323 or 2324, or both, to assert a credit or offset for the allocated percentage of negligence or fault of a qualified health care provider, the board shall have the burden of proving the negligence or fault of the qualified health care provider whose percentage of fault the board seeks to allocate.
(e) In approving a settlement or determining the amount, if any, to be paid from the patient’s compensation fund, the trier of fact shall consider the liability of the. health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
In her petition for approval of settlement claim, Olson avers:
11.
Olson specifically demands in excess of the settlement amount of One Hundred Forty Thousand and No/100 ($140,-000) Dollars, specifically the additional amount of FOUR HUNDRED THOUSAND DOLLARS AND NO/100 ($400,-000). In addition to the amount of FOUR HUNDRED THOUSAND DOLLARS AND NO/100 ($400,000) general damages demanded, Olson further demands:
|sa. judicial interest from date of judicial demand, or February 16, 2011, whichever is deemed earlier, which such amount of interest should exceed the sum of $89,000 at the time of approval of the settlement;
b. all court costs and litigation expenses, including the costs of the Clerk of Court in the above captioned causes, costs of appeal and/or taking of writs to the Louisiana Court of Appeal, Third Circuit, and the Louisiana Supreme Court, preparation of transcripts for trial or appeal; and, including but not limited to costs and expenses which may be awarded pursuant to Louisiana Code of Civil Procedure Art. 1920, LSA-R.S. 13;4533, and/or LSA-R.S. 13:3666; and/or which may be awarded pursuant to the rules off any applicable court of this state, or any of such courts’ decisions, which said costs will exceed the sum of $45,000.00 at the time of approval of the settlement;
c. all past medical expenses which exceed the sum of $100,000 through the present time;
d.all expenses for future medical and/or psychiatric care of Olson which is the result of the medical malpractice of Toce and/or Toce APMC, which amounts are indeterminable at the present time.
Olson does make demand against the Louisiana Patient’s Compensation Fund Board Oversight Board in the amount of $534,000.00, plus the cost of future medical expenses.

The proposed settlement agreement makes no mention of malpractice versus non-malpractice claims, except to say that Defendants are released from “any and all claims, demands, actions, causes of action, rights, obligations and liabilities of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, developed or undeveloped, pleaded or not pleaded .... ”

THE PCF’S STANDING AS AN INTERVENOR

Olson’s Right To Settle With Defendants

The PCF, as an intervenor, has no standing to object to the health care provider/insurer and a patient’s agreement to settle, which is personal to the parties. See La.Code Civ.P. art. 1094; Hanks v. Seale, 04-1485 (La. 6/17/05), 904 So.2d 662. It is not the function of the PCF to determine liability as between the qualified | flhealth care provider and the malpractice victim; rather, liability is determined by settlement or a trial. Williams v. Kushner, 549 So.2d 294 (La.1989); Payne v. N.O. Gen. Hosp., 611 So.2d 777 (La.App. 4 Cir 1992). As noted by the court in Reed v. St. Charles General Hospital, 08-430, 08-431, 08-570-573, p.6 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138, 1143, writ denied, 09-1252 (La. 9/18/09), 17 So.3d 979, the statute regulating the PCF has provisions “which prevent the PCF from challenging certain aspects of settlements entered into between the patient and the health care provider.” Louisiana Revised Statutes 40:1231.4(e) states:

In approving a settlement or determining the amount, if any, to be paid from the patient compensation fund, the trier of fact shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
As noted in Reed, 11 So.3d at 1143,
Another ... critical restriction on the PCF is set forth in La.R.S. 40:1231.4(0(6):
Any settlement approved by the court shall not be appealed. Any judgment of the court fixing damages recoverable in any such contested proceeding shall be appealable pursuant to the rules governing appeals in any other civil court case tried by the court.

The PCF has standing to object when the integrity of the fund is jeopardized, such as when a claim clearly does not fall under the MMA. Id. For example, in Reed, the patient’s wife, who contracted the HIV virus from her husband, but was never a patient at the hospital, was not covered under the MMA. Another instance would be when the PCF challenges whether the physician-defendant is a qualified health care provider under the MMA. See Bennett v. Krupkin, 01-209 (La. 10/16/01), 798 So.2d 940.

| inThe situation here is not analogous. There is no doubt that Olson has significant claims falling under the MMA, and in fact, there is a valid argument to be made that even those claims Olson designated as non-MMA claims in her third amended and supplemental petition are covered under the Act due to the interrelated nature of the medical malpractice, particularly relating to Olson’s mental health and the sexual relationship. See Doe v. Doe, 94-2284, 2285 (La.App. 1 Cir. 1995), 657 So.2d 628, writ denied, 95-1810 (La. 10/27/95), 661 So.2d 1353.

The PCF’s Right To Defend Itself From Claims In Excess of $100,000

The settlement agreement between Olson and Defendants has no effect on the rights provided for by law that inure to the benefit of the PCF. The language contained in the settlement agreement is irrelevant insofar as it does not control the PCF’s rights; the law does. The PCF’s remedy is to contest damages as specifically provided for in La.R.S. 40:1231.4(C)(5)(a)(emphasis added) which directs that if the PCF, insurer, and claimant cannot agree on the amount:

to be paid out of the patient’s compensation fund, then the trier of fact shall determine at a subsequent trial which shall take place only after the board shall have been given an adequate opportunity to conduct discovery, identify and retain expert witnesses, and prepare a defense, the amount of claimant’s damages, if any, in excess of the amount already paid by the insurer of the health care provider or self-insured health care Inprovider. The trier of fact shall determine the amount for which the fund is liable and render a finding and judgment accordingly.

We want to be clear that Olson still bears the burden of proving causation of her damages in excess of the $100,000 settlement. In Graham v. Willis-Knighton Medical Center, 97-188, p. 15 (La. 9/9/97), 699 So.2d 365, 372, the supreme court stated:

We now conclude that the legislative intent of “liability” in Section [40:1231.4(C)(5) ] was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim. However, at the trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess, of $100,000.

The supreme court later further explained its reasoning in Khammash v. Clark, 13-1564, 13-1736, pp. 12-13 (La. 5/7/14), 145 So.3d 246, 255-56:

In Hall v. Brookshire Bros., Ltd., 02-2404 (La. 6/27/03), 848 So.2d 559, we explained the rationale for this rule:
Liability implies some damage, but not specifically which damage or how much. Moolekamp v. Rubin, 531 So.2d 1124, 1126-1127 (La.App. 4 Cir. 1988). Having proven that defendant’s fault caused damage, a plaintiff must further prove what damage, by kind and seriousness, was caused by defendant’s fault before the court can render an appropriate award. Id.
A defendant is only liable for that damage caused by his or her fault. Fault is a broad concept, encompassing all conduct falling below a proper standard. Weiland v. King, 281 So.2d 688, 690 (La.1973), citing Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).
When a defendant stipulates to liability, that defendant acknowledges that his or her fault (substandard performance of a legal duty owed to plaintiff for the protection from certain risks of harm) caused the plaintiff to sustain some damage (in the case of the qualified health care provider under the Medical Malpractice Act, that defendant stipulates that the damage he or she caused is at least $100,000).
| ^However, there can be, and frequently is, more than one cause of a plaintiffs damages. Graves v. Page 96-2201 (La. 11/7/97), 703 So.2d 566, 570; Syrie v. Schilhab, 96-1027 (La. 5/20/97), 693 So.2d 1173, 1179. Because a defendant is liable only for that damage caused by his or her fault, when a defendant stipulates to liability for fault, he or she does not thereby necessarily concede responsibility for 100% of the fault.
In the same vein, when a health care provider tenders payment of $100,000.00, thereby admitting and establishing “liability,” that admission of liability is an admission of fault and causation of damages of at least $100,000.00. It is not an admission of the percentage of fault attributable to the health care provider; nor is it an admission as to the extent of the claimant’s damages beyond $100,000.00. Louisiana Revised Statute 40:1299.44(C)(5) speaks directly and exclusively to the liability of the health care provider; it is silent with respect to the responsibility of any other actor.

Hall, 02-2404 at pp. 11-12, 848 So.2d at 567-68.

Clearly, when the PCF and claimant dispute the remaining amount due, the PCF is entitled to full discovery and a trial at which, under the statutory provisions and in accord with our jurisprudence, the claimant must prove his damages, if any, attributable to the malpractice in excess of the amount already paid by the defendant physician. Prior to the trial provided for in La.Rev.Stat. § 40:1299.44(C)(5)(a), only the liability of the defendant physician for the malpractice and damages up to $100,000 is conclusively established by the settlement in accordance with La. Rev.Stat. § 40:1299.44(C)(5)(e).

At the trial, the PCF has the opportunity to contest the amount of damages Olson claims in excess of the amount already paid pursuant to the settlement agreement. The settlement agreement does not alleviate Olson’s burden of proving causation of damages for any amount in excess of the $100,000 settlement. While Olson receives a great benefit from the settlement, it does not prevent the PCF from exercising its right to fully defend itself from the claims of damages in excess of $100,000.

^CONCLUSION

Olson’s writ application is granted. We reverse the trial court’s grant of the PCF’s exceptions of ambiguity, vagueness, and prematurity and find that the health care provider and patient’s settlement agreement is valid, and remand for further proceedings consistent with La.R.S. 40:1231.4(C)(5)(a). Costs of this appeal are assessed to the Louisiana Patient Compensation Fund Oversight Board.

WRIT GRANTED; REVERSED; RENDERED IN PART; REMANDED.

      . Louisiana Revised Statutes 40:1231.4 was redesignated from La.R.S. 40:1299.44 effective June 2, 2015, by House Concurrent Resolution No. 84.

      . Dr, Paul M. Toce, Jr., A Professional Medical Corporation, is also a defendant in this action.

      . In Doe, the severely-depressed patient engaged in a sexual relationship with the defendant clinical psychologist. The PCF challenged the inclusion of the sexual relationship as "malpractice.'' The Doe court stated:
      Appellants’ challenge to the admissibility of evidence on the basis that the misconduct is not "malpractice” as defined by the act and that some of the misconduct occurred during a time when the provider’s liability was not covered is nothing more than an attempt to contest the liability of Dr, Lichtenstein with regard to his conduct with the plaintiffs. We need not address the merits of appellants’ arguments regarding the admissibility of evidence; such evidence is deemed irrelevant by the statutory scheme of the medical malpractice act.

        Doe, 657 So.2d at 632.


author: KYZAR, Judge.

text:
    Brock Taylor GARY v. Ali Renee LEBLANC
    16-1054
    Court of Appeal of Louisiana, Third Circuit.
    06/07/2017

      Brenda Sibille Piccione, Piccione & Pic-cione, P. 0. Box 3352, Lafayette, LA 70503, (337) 233-9030, COUNSEL FOR PLAINTIFF/APPELLANT: Brock Taylor Gary
    Gay L. Babin, Piccione & Piccione, P. 0. Box 3352, Lafayette, LA 70503, (337) 233-9506, COUNSEL FOR PLAINTIFF/APPELLANT: Brock Taylor Gary
    Abbey L. Williams, Attorney at Law, 111 North Court St., Opelousas, LA 70570, (337) 942-7193, COUNSEL FOR DEFENDANT/APPELLEE: Ali Renee Le-Blanc
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H. Kyzar, Judges.
   KYZAR, Judge.

|! Brock Taylor Gary, the plaintiff, seeks the reversal of the trial court judgment in favor of Ali Renee LeBlanc, mother of the parties’ minor child, granting the parties joint custody of the child but designating her as the principal custodial parent, ordering him to pay child support, and denying his request to amend the child’s birth certificate changing the child’s last name to “Gary”. For the following reasons, we affirm the judgment of the trial court as amended herein.

FACTS AND PROCEDURAL HISTORY

Brock Taylor Gary and Ali Renee Le-Blanc are the unmarried parents of Alaia Claire LeBlanc, who was born in October of 2008. Both LeBlanc and Gary were 16 years old at the time. The parties acknowledge that the child has lived with LeBlanc as the domiciliary parent since her birth, with Gary exercising regular visitation every other weekend and occasional vacations and paying a mutually agreed upon amount in child support since the child was two months of age, though there was no formal or signed agreement.

In May of 2016, Gary became aware of an incident that occurred in March of the same year in which Alaia, the minor child, allegedly witnessed her four-year-old half-brother being sexually molested and choked by her maternal grandmother’s boyfriend. LeBlanc and her three children, Alaia and two half-brothers, primarily live with LeBlanc’s mother, as well as occasional time spent living with a Travis Berger-on, LeBlanc’s boyfriend and father of her third child. Alaia has resided with LeBlanc at LeBlanc’s mother’s home for the majority of her life.

In response to the incident concerning Alaia’s half-brother and alleging other factors, Gary petitioned the trial court to name him as domiciliary parent and Lasked that the child’s last name be changed from LeBlanc to Gary. LeBlanc answered the suit and filed a reconventional demand for child support. When rendering its judgment, the trial court specifically took into consideration the requirements of La.Civ.Code art. 134, which provides a non-exclusive list of twelve factors to determine the child’s best interest, as well as the Louisiana child support worksheets. The trial court awarded the parties joint custody of the child and designated Le-Blanc as the domiciliary parent, setting scheduled custodial visitation in favor of Gary. The trial court denied Gary’s name change request, and ordered Gary to pay child support in the sum of $941.49 per month. This appeal followed.

ASSIGNMENT OF ERRORS

On appeal, Gary asserts three assignments of error by the trial court. They are as follows:

1. The trial court erred in awarding domiciliary status to a mother with unstable relationships, inappropriate housing arrangements, and questionable regard for her child’s health and well-being.
2. The trial court erred as a matter of law in its ruling on a request for the child’s name to be changed.
3. The trial court erred in failing to consider the child’s time with Mr. Gary as a basis for adjustment to the amount of child support to be paid during that period of time and in using bonuses in the calculation of child support payments.

OPINION

Custody

The standard of review in child custody cases has been clearly stated by this court:

The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial | ^court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

Gremillion v. Gremillion, 07-492 (La.App. 3 Cir. 10/3/07) 966 So.2d 1228, 1231-32. The procedure to be followed by appellate courts in determining whether an abuse of discretion has occurred has been further laid out:

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record clearly establishes that the fact finder is clearly wrong or manifestly erroneous.

Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993).

Gary asserts that the trial court erred in awarding domiciliary status to LeBlanc, alleging unstable relationships, inappropriate housing arrangements, and questionable regard for the health and well-being of the child. Gary contends that the facts require him to be named as the domiciliary parent of Alaia as LeBlanc is unable to fulfill Alaia’s best interests. “The primary consideration in our analysis of a child custody determination is always the best interest of the child. La.Civ. Code art. 131.” Moss v. Goodger, 12-783, p. 5 (La. App. 3 Cir. 12/12/12), 104 So.3d 807, 811. “The best interest of the child standard is a fact-finding intensive inquiry that requires the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented.” C.M.J. v. L.M.C., 14-1119, p. 18 (La. 10/15/14), 156 So.3d 16, 33. Louisiana Civil Code article 134 provides a non-exclusive list of criteria to be considered by the trial court in determining the best interest of a child, stating:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
t(l) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

In ruling, the trial court addressed each of the twelve factors enumerated and its considerations given to each, though it is not required to do so. See Hughes v. Talton, 181 So.3d 10 (La.App. 5 Cir. 10/15/14). It pointed out that both parents have a close and loving relationship with the child, its belief that both parents would be suitable domiciliary custodians, and applauded both parents on their commitment and cooperation together in the raising of Alaia up to this point.

|fiThe trial court noted that both Gary and LeBlanc compare favorably and deemed both parents to be equal on many of the factors provided for by La.Civ.Code art. 134, though not all. The trial court ultimately determined that the child’s best interest would be served by granting joint custody and maintaining LeBlanc as the domiciliary parent. In doing so, the court specified which factors it relied upon most in determining custody, namely the family relationship and the prior rearing of the child. The trial court pointed out that, despite Gary’s assertions, changing the domiciliary status of Alaia would force her to leave her current school and classmates, where she has been attending classes since she began school. The trial court further expressed concern that such a change would render apart Alaia and her two siblings, with whom she has spent her life, with no evidence as to what effect a separation from her siblings may have on the child. The court did, then, touch upon the incident concerning Alaia’s half-brother that prompted this suit, reiterating that as unfortunate as the occurrence was and without condoning LeBlanc’s handling of the situation, the incident did not directly occur or happen to Alaia, but to another child with Alaia as a regrettable witness. In addressing this incident, the trial court noted the testimony of Ms. Elizabeth Bau-mer, a professional counselor and social worker, stating:

.. .what she told [the court] was obviously Alaia was taught between right and wrong, the way she reacted to the situation that occurred, that after being primarily raised by [LeBlanc], Alaia was a well adjusted child. She did very well interacting with others and she was on task mentally and socially.

In his brief, Gary argues that the facts require a modification of the custodial arrangement of Alaia under the best interest of the child standard. In addition to his other arguments, Gary asserts that Alaia’s prolonged dental issues show |nLeBlanc’s negligence and lack of regard concerning Alaia’s health. The trial court addressed this issue as well, noting that the required dental surgery had already been previously scheduled by LeBlanc, and though it had been cancelled, the cancellation was not due to any fault of LeBlanc’s.

Gary asserts that pursuant to the criteria of La.Civ.Code art. 134, the best interest of the child would be served by naming him as the domiciliary parent. Gary goes on to address each one of the twelve enumerated factors, pointing out those he believes weigh in his favor and noting the points on which he disagrees with the determinations of the trial court. However, “[a] trial court’s determination of a child’s best interest is usually based heavily on factual findings.” Henry v. Henry, 08-689 (La.App. 1 Cir. 9/23/08), 995 So.2d 643. “It is well settled that an appellate court cannot set aside a trial court’s factual findings in the absence of manifest error or unless the findings are clearly wrong.” Rosell v ESCO, 549 So.2d 840, 844 (La.1989). After considering the evidence and hearing the testimony and arguments of both parties, the trial court found that both parents were fit, but that it would be in' Alaia’s best interest to continue living primarily with her mother and brothers. Based upon our review of the record, and given the great deference afforded the decision of the trial court in child custody matters, we find no error in the trial court’s award of domiciliary status to LeBlanc, See Gill v. Bennett, 11-886 (La.App. 3 Cir. 12/7/11) 82 So.3d 383. Pursuant to the foregoing, the judgment assigning joint custody, designating LeBlanc as domiciliary parent and setting custodial visitation rights in favor of Gary, is affirmed.

|7 Name Change of Minor Child

Gary next asserts that the trial court erred as a matter of law in ruling on his request.to change the surname of the parties’ minor child to “Gary”. The issue regarding the petition to change the name of the minor child raises a question of law. Accordingly, this court reviews that question de novo. Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. “Appellate review of questions of law is simply to determine whether the trial court was legally - correct or incorrect.” Cangelosi v. Allstate Ins. Co., 96-0159, p. 3 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360.

In the instant case, Gary combined his petition against LeBlanc seeking custody and domiciliary parent status of their minor child with .a request that the child’s last name, be changed to “Gary”. In ruling on. the name change request, the, trial court cited La.R.S. 40:34(B)(1)(a)(v); as it read at the time, as authority to not only initially affix a child’s surname but also to “change” the name on a child’s birth certificate by the agreement of both parties, stating as follows:

Under the provisions of Revised Statute 40, Section 34(B)(1)(a)IV, it provides that the child’s name can be changed -with the concurrence of the parents. In this particular case, the mother, although initially under direct examination by Ms. Babin said she would do that, but the Court, judging her demeanor on the stand, realized that that may have been coerced. She later changed it. In connection with this matter, the Court also is concerned about just hitting a child with the status, “Hey, I’m going to change your name,” but if the parents decide in the future after consulting with each other and at least having some conversation with the child about it, the Court would not be adverse to allowing a name change. At this time the Court denies it.

In denying the relief prayed for, the trial court erred in applying the provisions of title 40 to a request for a name change for a minor. The only proper legal procedure to change the name of a child is found within the provisions La.R.S. 13:4751 et seq. These provisions lay out a specific procedure to be followed, namely that a contradictory hearing -with the district attorney is required. See La.R.S. 13:4752. Gary asserts that because the required procedure was not followed, the trial court improperly ruled on the name change request as the court had no authority to render judgment on an issue not properly before it. In Bell v. Durand, 06-708 (La. App. 3 Cir. 11/2/06), 942 So.2d 727, this court noted:

Louisiana Revised Statutes 40:34(B)(1)(a)(v) provides that “[a]ny change in the surname of a child ... shall be by court order as provided for in [La.] R.S. 13:4751 through [La.R.S. 13:34755 or as otherwise provided in this Chapter or by rules promulgated thereunder.” According to La.R.S. 13:4752, the proceeding to change a name shall be conducted contradictorily with the State. See also, Evans v. Coody, 99-1228 (La.App. 3 Cir. 2/2/00), 758 So.2d 256, writ denied, sub nom. Evans v. Lungrin, 00-683 (La. 3/15/00), 755 So.2d 890.

In Bell, the father of the minor child combined a petition to change the surname of the child in an action for child custody, support, and visitation. Id. This court found that the procedural requirements of La.R.S. 13:4751 et seq. did apply, the procedure employed by the father had not been proper, and that the father would be required to comply therewith in order to effectuate his desired changes on the child’s birth certifícate. Id at 729. As in Bell, nothing in the record in the instant matter indicates that the St. Landry District Attorney was involved. As such, the procedure required by La.R.S. 13:4751 et seq. was not followed, and the issue was not properly before the court and as pled, was and is subject to peremptory exceptions of no cause of action and the failure to join an indispensable party. La.Code Civ.P. art. 927. We note that under the provisions of this article and as recognized by the court in Moreno v. Entergy Corporation, 10-2268 (La. 2/18/2011) 64 So.3d 761, any peremptory exception other than one asserting prescription can be raised by an appellate court on its own motion, 1 ^Therefore, while Gary is correct and while we agree that the trial court erred in its interpretation and application of the law, the denial of the relief requested was correct, albeit for the wrong reasons. Thus, we hereby raise and grant pex-emp-tory exceptions of no cause of action and failure to join an indispensable party, the St. Landry Parish District Attorney in this case, and dismiss Gary’s petition as to the change of the minor child’s name. This dismissal is without prejudice, however, to Gary’s right to file an amended petition to change the minor’s surname utilizing the proper procedures as noted herein and as authorized by the provisions of La.Code Civ.P. art. 934. No time limit for the action needs to be fixed as the parents can utilize the proper procedure to change the child’s surname at any time during the child’s minority. Accordingly, the judgment of the trial court denying Gary’s request to change the surname of the child is affirmed as amended, dismissing Gary’s petition to change the minor’s name, without prejudice, subject to Gary’s right to amend the petition or file a separate petition utilizing the provisions of La.R.S. 13:4751 et seq.

Child Support

Gary asserts that the trial court erred both in failing to consider the child’s time spent with him as a basis for adjustment to the amount of child support to be paid during that period of time and in using bonuses in the calculation of his income to determine child support payments. We disagree. Trial courts have great discretion in determining the amount of a child support award. Murphy v. Murphy, 894 So.2d 542 (La. 2/2/05). This court has clearly defined this standard of review by noting, “[w]e review child support determinations using the manifest error standard of review, and we will not disturb the trial court’s support order unless it committed manifest error or an abuse of discretion in its determination.” Bergeron v. Bergeron, 11-130 (La.App. 3 Cir. 10/5/11), 75 So.3d 537, 540, writ denied, 11-2466 (La. 1/20/12), 78 So.3d 144; State, Dep't of Soc. Servs. v. L.T., Jr., 05-1965 (La. 7/6/06), 934 So.2d 687.

Louisiana Revised Statutes 9:315.8 outlines child support calculation guidelines and addresses the issue of allowing a credit at the trial court’s discretion based upon the amount of time spent with the non-domiciliary parent. Specifically, La.R,S. 9:315.8(E) states:

E. “Joint Custody” means a joint custody order that is not shared custody as defined in R.S. 9:315.9.
(1) In cases of joint custody, the court shall consider the period of time spent by the child with the nondo-miciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.
(2) If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy-three days, the court may order a credit to the child support obligation. A day for the purposes of this Paragraph shall be determined by the court; however, in no instance shall less than four hours of physical custody of the child constitute a day.
(3) In determining the amount of credit to be given, the court shall consider the following:
(a)The amount of time the child spends with the person to whom the credit would be applied. The court shall include in such consideration the continuing expenses of the domiciliary party.
(b) The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.
(c) The best interests of the child and what is equitable between the parties.
(4)The burden of proof is on the person seeking the credit pursuant to this Subsection.
In (5) Worksheet A reproduced in R.S. 9:315.20, or a substantially similar form adopted by local' court rule, shall be used to determine child support in accordance with this Subsection.

This provision allows the trial court to grant a credit to the non-domiciliary parent against his or her basic child support obligation if the parent exercises at least seventy-three days of visitation a year. However, as this court has noted:

.. .the credit is not applied automatically even if the parent proves the amount of time spent with the child exceeds seventy-three days. Instead, the parent seeking the credit bears the additional burden of proving: (1) the physical custody of the children results in an increase in his/her financial burden and a decrease in the financial obligation of the other parent, and (2)the [sic] best interests of the child and what is equitable between the parties would be served by allowing the credit.

Lea v. Sanders, 04-762 (La.App. 3 Cir. 12/22/04), 890 So.2d 764, 767, writ denied, 05-183 (La. 3/24/05), 896 So.2d 1046. It is undisputed that Gary did not offer any evidence to show an increased financial burden caused by the increased visitation with his daughter. Gary asserts that he did not see a need to present evidence of his child care expenses as he was optimistic that he would be named domiciliary parent.

This is similar to the issue addressed by this court in Lea, 890 So.2d at 770, wherein the court noted, “Other than the numerical percentage, [petitioner] has presented no other evidence to indicate that he is bearing a greater financial responsibility under this arrangement or that he is decreasing the financial burden of the domiciliary parent.” The court went on to hold that the father, who in that instance had custody of the children 43% of the time, was not entitled to the rebuttable presumption that the financial burden of raising children was being shared equally without submitting additional proof, as a basis for reducing his child support obligation. Id. Further, this court has also previously found a trial court in error for allowing a 30% deviation from the support obligation, based solely on thej ia basis of time spent, absent any other proof in the record. Guillot v. Munn, 99-2132 (La. 3/24/00) 756 So.2d 290. We conclude, therefore, that the trial court was not manifestly erroneous or clearly wrong in not reducing the amount of support for the time spent in Gary’s custody.

Gary further contends the trial court erred in including bonuses in the calculation of his income for child support payment purposes. It is clear from La.R.S. 9:315(C)(3)(a) that gross income refers to income from all sources, including bonuses. In Earl v. Earl, 43,925 (La. App. 2 Cir. 12/3/08), 998 So.2d 828, the court reversed a trial court judgment setting an amount of child support without including bonuses, stating as follows:

Under La. R.S. 9:315(C)(3)(a), gross income includes bonuses. This court has recognized, however, the potential problems when a large year-end bonus, which is sometimes almost equal to the annual base salary, is included in the calculation of the parent’s income for purposes of setting a monthly child support amount. Patrick v. Patrick, 34,799 (La.App.2d Cir. 4/4/01), 785 So.2d 169. The trial court, therefore, has considerable discretion in considering bonuses in the child support calculation.

We cannot conclude that the trial court was manifestly erroneous or clearly wrong in its decision to include Gary’s bonuses within his gross income. In this instance, the trial court was not faced with the issue of large bonuses that were the near equal to the normal monthly income of the employee. Further, Gary is in the employ of his father in a family business, and there was no testimony that the bonuses were sporadic or subject to cancellation. Accordingly, the judgment setting the amount of child support is affirmed.

DECREE

For the foregoing reasons, we affirm that portion of the trial court judgment assigning custody, visitation, and domiciliary status, as well as the portion of thej 1!t judgment setting the amount of child support to be paid. In regards to the judgment denying Gary’s name change request, we affirm the ruling of the trial court as amended .herein. Costs of this appeal are assessed to Brock Taylor Gary.

AFFIRMED AS AMENDED