author: KUHN, J.

text:
    Cheryl Mooney JOHNSON, Roy W. Mooney, Lola M. Mooney, Julie Mooney Toney, Jerry Wayne Mooney, Charles Morice Mooney, Jeffery Allen Mooney, John Oliver Mooney and Patricia A. Mooney Perriloux, All Individually and on Behalf of the Estate of Wilmer R. Mooney, Sr. and Jerry Lee Graham Mooney, Widow Of Wilmer R. Mooney, Sr. v. Robert V. SHAFOR, M.D., Sanjay Raina, M.D., Sibaja Shome, M.D. and Slidell Memorial Hospital and its Employees.
    Nos. 2008 CA 2145, 2008 CA 2146.
    Court of Appeal of Louisiana, First Circuit.
    July 29, 2009.

      Laurie M. Pennison, James A. Mar-chand, Jr., Frank E. St. Philip, II, Coving-ton, Louisiana, for Plaintiffs-Appellants, Cheryl Mooney Johnson, et al.
    Thomas H. Wartelle, Randall L. Champagne, Baton Rouge, Louisiana, for Defendant-Appellee, St. Tammany Parish Hospital Service District # 2 d/b/a Slidell Memorial Hospital.
    Deborah Deo Gracia Trahan, Covington, Louisiana, for Defendants-Appellees, Robert V. Shafor, M.D. and Sanjay Raina, M.D.
    Charles F. Gay, Jr., Shelly F. Spansel, New Orleans, Louisiana, for Defendant-Appellee, Sibaja Shome, M.D.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   KUHN, J.

l/fhis appeal arises from consolidated medical malpractice suits filed against St. Tammany Parish Hospital Service District No. 2, doing business as Slidell Memorial Hospital (“SMH”), and other qualified health care providers under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. The petitions in both suits alleged that SMH committed malpractice between January 5 and January 14, 2003. The first suit was dismissed as to SMH due to insufficient service of process. In the second suit, the claims asserted against SMH were dismissed with prejudice via a May 1, 2008 judgment, which granted SMH’s peremptory exception raising the objection of prescription. Plaintiffs have appealed this latter judgment. Pursuant to Louisiana Revised Statutes 13:5107, we find that the filing of the first suit did not interrupt or suspend the running of prescription as to plaintiffs’ malpractice claims against SMH, a political subdivision. Thus, the trial court property determined that plaintiffs’ medical malpractice claims against SMH had prescribed by the time the second action was filed.

I. PROCEDURAL AND FACTUAL BACKGROUND

Pursuant to Louisiana Revised Statutes 40:1299.41 et seq., plaintiffs, Cheryl Mooney Johnson, Roy W. Mooney, Lola M. Mooney, Julie Mooney Toney, Jerry Wayne Mooney, Charles Morice Mooney, Jeffery Allen Mooney, John Oliver Mooney, and Patricia A. Mooney Perriloux, all individually and on behalf of the Estate of Wilmer R. Mooney, Sr.; and Jerry Lee Graham Mooney, widow of |4Wilmer R. Mooney, filed a complaint with the Louisiana Division of Administration (“DOA”) on January 5, 2004, requesting that a medical review panel be convened to review the treatment provided by Drs. Robert V. Sha-for, Sanjay Raina, Sibaji Shome, and SMH and its employees to Wilmer R. Mooney, Sr. The medical review panel issued its opinion on September 11, 2006, and plaintiffs’ counsel received notice of the opinion via certified mail on September 18, 2006.

On December 8, 2006, plaintiffs filed a petition for damages, bearing docket number 2006-16069 “J”, which asserted survival and wrongful death claims based on the alleged negligence of defendants, SMH, Shafor, Raina, and Shome. Therein, plaintiffs requested that service on defendants be withheld. On August 16, 2007, SMH filed a declinatory exception raising the objections of insufficiency of service of process and insufficiency of citation. Shafor and Raina also filed a declinatory exception raising the objection of insufficiency of service of process. Following a December 13, 2007 hearing, the trial court maintained these exceptions in open court. By judgment dated January 8, 2008, the trial court ordered the dismissal without prejudice of plaintiffs’ claims against SMH, Shafor, and Raina.

Plaintiffs filed another suit on December 13, 2007, naming as defendants SMH, Sha-for, and Raina, which set forth identical allegations to those contained in the first petition regarding the negligence of these defendants. This suit bore the docket number 2007-16729 “G”. In response to this second petition, SMH filed a | ^peremptory exception raising the objections of prescription and peremption on January 10, 2008. On March 4, 2008, the trial court granted the plaintiffs’ motion to transfer and consolidate the two suits and ordered the transfer of the suit bearing docket number 2007-16729 “G” to docket number 2006-16069 “J.” On May 1, 2008, the trial court granted SMH’s exception raising the objection of prescription and ordered that plaintiffs’ claims against SMH “originally filed in Docket No. 2007-16729 “G[,]” which was subsequently transferred ... and consolidated with the instant proceedings [in docket number 2006-16069] are hereby dismissed in their entirety with prejudice^]” Plaintiffs have appealed this judgment, urging the trial court erred in concluding that their claims against SMH have prescribed.

II. ANALYSIS

Louisiana Revised Statutes 9:5628(A) states, in pertinent part:

No action for damages for injury or death against any physician, ... hospital or nursing home duly licensed under the laws of this state, ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
(Emphasis added).

The prescriptive period for a medical malpractice claim commences upon the occurrence of the injury when the damages are immediately apparent. In re Medical Review Panel Proceedings of Ouder, 07-1266, p. 3 (La.App. 1st Cir.5/2/08), 991 So.2d 58, 60. In this case, plaintiffs allege that Mr. Mooney’s | (ideath was caused by the defendants’ negligence during Mr. Mooney’s hospitalization between January 5, 2003, and January 14, 2003. The parties do not dispute that the plaintiffs had one year from January 14, 2003, the date of Mr. Mooney’s death, to file their medical malpractice claims.

Pursuant to La. R.S. 40:1299.47, all medical malpractice claims against qualified health care providers must be reviewed by a medical review panel before suit can be instituted against them. The procedure is initiated by filing a request for review of the claim by a medical review panel with the DOA, which forwards the request to the Patients’ Compensation Fund. La. R.S. 1299.47 A. Louisiana Revised Statutes 40:1299.47 A(2)(a) provides, in pertinent part:

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, ... until ninety days following notification, by certified mail, ... to the claimant or his attorney of the issuance of the opinion by the medical review panel....

In the present case, plaintiffs filed their request for the formation of a medical review panel with the DOA on January 5, 2004, and the opinion of the medical review panel was delivered to counsel for plaintiffs on September 18, 2006. Therefore, the ninety-day suspension of prescription lapsed on December 17, 2006, and prescription began to accrue again. Because plaintiffs’ complaint was filed with the DOA on January 5, 2004, and the complaint alleged malpractice from January 5, 2003 through January 15, 2003, approximately ten days remained in the prescriptive period when prescription began to accrue on December 18, |72006. Thus, because the petition in docket number 2007-16729 was not filed until December 13, 2007, it is prescribed on its face.

Ordinarily, the party pleading prescription bears the burden of proving the claim has prescribed. When the face of the petition reveals that the claim has prescribed, however, the burden shifts to the plaintiff to demonstrate that the running of prescription was suspended or interrupted. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). In this case, plaintiffs bore that burden of proof, and we conclude they did not meet that burden for the following reasons.

The first suit filed against SMH was dismissed for failure to timely request service pursuant to La. R.S. 13:5107 D, which states:

D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.
(Emphasis added.)

|sThe parties do not dispute that La. R.S. 13:5107 is applicable to the instant case and that SMH is a political subdivision. Plaintiffs contend, however, that La. R.S. 13:5107 must be read in pan materia with La. C.C. art. 2324 C, which provides, “Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.” Plaintiffs assert that the filing of the initial suit interrupted prescription against another tortfeasor, Sibaji Shome, M.D., which effectively interrupted prescription as to all joint tortfeasors, including SMH. In support of this position, plaintiffs cite Cali v. Cory, 04-1227 (La. 4th Cir.11/3/04), 886 So.2d 648, writ denied, 04-3155 (La.2/25/05), 894 So.2d 1153.

In Cali, the plaintiff, who appeared in her individual capacity and as natural tu-trix for her minor child, filed a survival and wrongful death suit. When the State of Louisiana, through the Department of Transportation and Development (“DOTD”) was named as a defendant in a supplemental and amending petition, DOTD filed exceptions urging the objections of untimely service and prescription. The Cali court held that the prescriptive period was interrupted as to DOTD by the filing of the initial petition against a defendant automobile driver, the driver’s insurer, and the decedent’s uninsured/un-derinsured carrier and his excess umbrella carrier. The court reasoned that La. R.S. 13:5107 D and La. C.C. art. 2324 must be read in pan materia, and concluded that “[a]s long as prescription is interrupted against one joint tortfeasor, it is interrupted against all.” Cali, 04-1227 at p. 5, 886 So.2d at 651. The court found that plaintiffs supplemented and amended petition asserted a claim of joint liability between DOTD and the other tortfeasors. Thus, the court determined that plaintiffs original petition interrupted prescription as to all joint tortfeasors. Further, the court concluded that plaintiffs’ supplemental and amending petition naming DOTD as a joint tortfeasor related back to the original filing date of the initial petition and was timely served within ninety days of its filing.

We find the reasoning of Cali to be unpersuasive, and we decline to follow it. Where there is a conflict between two statutory provisions, the statute that is more specifically directed to the matter at issue must prevail over the statute that is more general in character. City of Pineville v. American Federation of State, County, and Municipal Employees, 00-1983, p. 5 (La.6/29/01), 791 So.2d 609, 613; Thomas v. Louisiana Dep’t of Public Safety and Corrections, 02-0897, pp. 9-10 (La.App. 1st Cir.3/28/03), 848 So.2d 635, 640-41, writ denied, 03-2397 (La.11/21/03), 860 So.2d 552. Louisiana Civil Code article 2324 is a general rule addressing the interruption of prescription against joint tort-feasors. By contrast, La. R.S. 13:5107 is a more specific statute addressing the more narrow issue of the interruption of prescription when governmental defendants are involved in the litigation.

In Kimball v. Wausau Ins. Companies, 04-626 (La.App. 5th Cir.1/25/05), 892 So.2d 690, writ denied, 05-0755 (La.5/6/05), 901 So.2d 1104, the court applied this basic statutory interpretation rule when interpreting La. R.S. 13:5107 in a suit with analogous facts. Plaintiff, the father of a teenager killed in an automobile accident filed suit, naming as defendants the driver of the other vehicle k ninvolved in the accident, that driver’s employer and insurer, the Parish of Jefferson, and the State of Louisiana. The plaintiff did not request service of process on the Parish of Jefferson, which filed a motion for involuntary dismissal based on the untimely service. Before the motion was decided, the plaintiff also filed a second suit against the Parish, seeking the same damages. The Parish filed an exception urging the objection of prescription in response to the second suit. The trial court ultimately granted the involuntary dismissal and maintained the exception. On appeal, the plaintiff urged that prescription was continuously interrupted because the second suit on the same subject matter was filed and timely served during the pendency of the first unserved suit. The Kimball court rejected the plaintiffs argument, concluding that prescription had never been interrupted as to the Parish:

We think the statute is clear, and that the language unambiguously carves out an exception to the general rules of prescription in favor of the state or its political subdivisions. La. R.S. 13:5107, a specific, special statute dealing with service of citation and process upon the state or a political subdivision, supersedes the general statutes (on service and prescription). Because the first suit in the present case was properly dismissed, prescription was never interrupted as to the Parish of Jefferson. [Footnote omitted.]

Kimball, 04-626, p. 7, 892 So.2d at 693.

In the instant case, we likewise conclude that La. R.S. 13:5107 D(3) is controlling, and because plaintiffs failed to timely request service of their initial lawsuit against SMH, the filing of the first lawsuit did not interrupt or suspend thej_yrunning of prescription as to SMH, a political subdivision. Thus, plaintiffs’ claims against SMH had prescribed before the second lawsuit against SMH was filed.

Plaintiffs also urge that the consolidation of the second lawsuit against SMH with the original lawsuit still pending against Dr. Shome “cured” their failure to timely effect service of process on SMH. We find no merit in this contention. The consolidation of actions pursuant to La. C.C.P. art. 1561 is a procedural convenience designed to avoid multiplicity of actions and does not cause a case to lose its status as a procedural entity. Howard v. Hercules-Gallion Co., 417 So.2d 508, 511 (La.App. 1st Cir.1982). Procedural rights peculiar to one ease are not rendered applicable to a companion case by the mere fact of consolidation; each case must stand on its own merits. Id. The consolidation of these two cases did not in any way enlarge or decrease the rights of the litigants. Procedural or substantive rights peculiar to one case are not rendered applicable to the companion suit by the mere fact of consolidation. Williams v. Scheinuk, 358 So.2d 340, 341-42 (La.App. 4th Cir.1978). The consolidation of actions does not merge them unless the records clearly re-fleet an intention to do so. Louviere v. Louviere, 01-0089, p. 25 (La App. 1st Cir. 6/5/02), 839 So.2d 57, 74, writs denied, 02-1848, 02-1868, 02-1877, 02-1878, 02-1879, (La.10/25/02), 827 So.2d 1150, 827 So.2d 1151, and 827 so.2d 1152. On the records before us, we find the trial court did not intend to effect a merger of the actions when he ordered the consolidation. In fact, the trial court declined to rule on the “merger” issue. Thus, 112we find that the consolidation of the second lawsuit against SMH with the original lawsuit against Dr. Shome did not “cure” plaintiffs’ failure to timely effect service of process on SMH. We find no merit in this argument.

III. CONCLUSION

For these reasons, we affirm the trial court’s May 1, 2008 judgment, which granted SMH’s peremptory exception raising the objection of prescription. The trial court properly concluded that the medical malpractice claims against SMH had prescribed by the time the second suit was filed. Appeal costs are assessed against plaintiffs-appellants.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . Plaintiff’s petition identified this defendant as Slidell Memorial Hospital, who appeared for the purpose of filing exceptions and identified itself as St. Tammany Parish Hospital Service District No. 2 doing business as Sli-dell Memorial Hospital.

      . Plaintiffs' petition misspelled Shome's first name as Sibaja.

      . In ordering the consolidation, the trial court declined to rule on whether the consolidation order affected any "merger” of the actions.

      . We note that although the plaintiffs' complaint filed with the Division of Administration alleged that malpractice occurred from January 5, 2003, through January 15, 2003, the petitions filed in the consolidated cases at issue infer that Mr. Mooney died on January 14, 2003.

      . A "hospital service district” is "[a] political subdivision of the state of Louisiana organized pursuant to an Act of the Legislature of Louisiana or pursuant to R.S. 46:1051 et seq.” La. R.S. 46:1072(2)(a).

      . Plaintiffs submit that Dr. Shome’s counsel answered the initial lawsuit and waived the 90-day service requirement.

      . See also Matthews v. City of Bossier City, 42,202 (La.App.2d Cir 8/15/07), 963 So.2d 516, wherein the court concluded that a suit against governmental defendants neither interrupted nor suspended the applicable one-year prescriptive period, where plaintiff had failed to timely request service of his original petition, and plaintiff's supplemental and amending petition was filed after the one-year prescriptive period had run.

      . In their appellate brief, plaintiffs challenge the constitutionality of La. R.S. 13:5107, but we do not consider this issue because it was not pleaded and made an issue in the trial court. See Vallo v. Gayle Oil Co., Inc., 94-1238, pp. 8-9 (La.11/30/94), 646 So.2d 859, 864-65.


source: Caselaw Access Project

author: McDonald, J.

license: Public Domain

text:
    Walter SHEAR and Priscilla Shear v. David L. CHAMPAGNE; State Farm Insurance Company; Wayne N. Bruce; Offshore Marine Contractors, Inc.; American Contractors Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 2008 CA 2556.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 7, 2009.
    Lisa C. McCowen, Lafayette, Louisiana, and Erik M. Tadda, Baton Rouge, Louisiana, for Plaintiffs/Appellees, Walter Shear and Priscilla Shear.
    Aaron J. Chaisson, Jr., Baton Rouge, Louisiana, for Plaintiffs/Appellees, State Farm Mutual Automobile Insurance Company as Uninsured/Underinsured Motorist Carrier of Priscilla and Walter Shear.
    Charles C. Garrison, New Iberia, Louisiana, for Defendants/Appellants, American Contractors Insurance Company Risk Retention Group.
    Matthew W. Pryor, Gonzales, Louisiana, for Defendants/Appellees, David Champagne and State Farm Mutual Automobile Insurance Company.
    Brent P. Frederick, Baton Rouge, Louisiana, for Defendants/Appellees, Wayne N. Bruce; Offshore Marine Contractors; and Intervenor-Appellee Clarendon America Insurance Company.

      Julie S. Kammer, Metairie, Louisiana, for Defendants/Appellee, Travelers Property Casualty Insurance Company.
    Before PETTIGREW, McDONALD, HUGHES, JJ.
   McDonald, J.

| sThe appeal before us is from a grant of summary judgment in favor of plaintiffs, Walter and Priscilla Shear. There are no facts in dispute that are material to this appeal. The issue before us is one of law, simply stated as, whether an uninsured/un-derinsured motorist rejection form is valid.

FACTS

The suit arises out of an automobile accident that occurred on September 14, 2007, when a vehicle driven by Walter Shear was struck by a vehicle driven by David L. Champagne. At the time of the accident, Shear was an employee of Cajun Constructors, Inc., and was driving a company vehicle headed north on Louisiana Highway 1. The vehicle was insured under a business automobile policy issued to Cajun by American Contractors Insurance Company Risk Retention Group, (ACIC). ACIC is a risk retention group formed under the authority of the Liability Risk Retention Act of 1986 (LRRA), 15 U.S.C. § 3901, et seq. chartered in Texas, whose members/insureds are construction contractors. Cajun has been a member of ACIC since July 1, 2005. The policy of business automobile liability insurance coverage issued to Cajun includes a UM selection form rejecting UM coverage. The form is valid to reject UM coverage under Texas law, but does not conform to the requirements of Louisiana law.

A petition for damages incurred by plaintiffs as a result of the automobile accident was filed on March 14, 2008, naming as defendants, David L. Champagne and the insurer of his vehicle, State Farm (Mutual Automobile) Insurance Company, Wayne N. Bruce and his employer, Offshore Marine Contractors, Inc., American Contractors Insurance Company, and State Farm Mutual Automobile Insurance Company as the insurer of Walter and Priscilla Shear, whose policy includes uninsured/underinsured motorist coverage. The petition alleged that David L. Champagne was underinsured for the damages sustained by the plaintiffs.

|4Plaintiffs filed a motion for summary judgment in May 2008, asking the court to find that the Business Auto Policy issued by ACIC to Cajun provides uninsured/un-derinsured coverage in favor of Walter Shear. A cross-motion for summary judgment was filed in June 2008, alleging that ACIC was entitled to judgment as a matter of law and seeking to have the claims of the plaintiffs dismissed with prejudice. After hearing, the trial court granted the motion for summary judgment in favor of the plaintiffs and denied ACIC’s motion for summary judgment. ACIC appealed, asserting the trial court erred in those decisions.

DISCUSSION

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. There are no factual issues in dispute in this appeal. Cajun executed a selection form that, under Texas law, validly waived uninsured/underinsured motorist coverage on the automobile liability policy at issue. The question is whether the form executed by Cajun to waive UM coverage was effective to waive that coverage in the subject automobile accident because the form was undisputedly not effective to waive UM coverage under Louisiana law.

ACIC asserts that the Supremacy Clause of the United States Constitution, providing that “the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” requires that the waiver executed by Cajun Contractors is a valid rejection of UM coverage. ACIC argues strenuously that Louisiana’s laws regarding uninsured/underinsured motorist coverage are not applicable in this case ^because the federal statute authorizing the risk retention group preempts state law, except as specifically exempted by the statute.

A consideration of preemption in this case is distinguishable from the issue as addressed in most Supremacy Clause jurisprudence in that we are not determining whether a federal law preempts a state law on the same issue. Rather we are determining whether a federal law operates to require that one state’s law (Texas) is controlling over another state’s law (Louisiana). Nevertheless, many of the principles on which preemption determinations are made are important considerations. Specifically, we are mindful of some general principles reiterated by the United States Supreme Court in New York State Conference of Blue Cross & Blue Shield Plans, v. Travelers Insurance Company, 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). The Supreme Court reminded us that “despite the variety of these opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law.... [I]n cases ... where federal law is said to bar state action in fields of traditional state regulation, we have worked on the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” 514 U.S. at 654-55, 115 S.Ct. at 1676. (Citations omitted). Insurance is an area in which the “historic police powers of the States” have operated most vigilantly to protect and regulate competing state interests. Therefore, we carefully consider the background and purpose of Congress in enacting the subject legislation.

The LRRA was originally passed in response to claims by business owners of a crisis in the ability to purchase product liability insurance. After four years of study, Congress enacted legislation in 1981, 15 U.S.C. §§ 3901-3904 (1982), to reduce the cost and increase the availability of product liability insurance. In | (^particular, the 1981 Act enabled insureds to purchase product liability insurance on a group basis through purchasing groups or to self-insure through insurance cooperatives called risk retention groups. In response to complaints from municipalities, professionals, and businesses that all kind of liability insurance premiums were skyrocketing and that coverage was frequently no longer available at any price, Congress amended the Act in 1986 so that it applied to all commercial liability insurance. See Insurance Co. of the State of Pennsylvania v. Corcoran, 850 F.2d 88, 89-90 (2d Cir.1988). Rather than creating a federal regulatory scheme for risk retention groups, the act provided that a risk retention group that had been approved by the insurance authority of any state could act as a risk retention group nationwide. National Risk Retention Ass’n. v. Brown, 927 F.Supp. 195, 197 (M.D.La.1996), af firmed, 114 F.3d 1183 (5th Cir.1997) (table).

The federal Act preempts “any State law, rule, regulation, or order to the extent that such, law, rule, regulation, or order would make unlawful, or regulate, directly or indirectly, the operation of a risk retention group....” 15 U.S.C. § 3902(a)(1). Primary regulatory authority and enforcement power over risk retention groups is left to domiciliary, or chartering, states. Only the chartering jurisdiction may directly regulate the formation and everyday operations of a risk retention group. National Home Insurance Company v. State Corporation Commission of the Commonwealth of Virginia, 838 F.Supp. 1104, 1110 (E.D.VA.1993). Non-domieiliary states have secondary regulatory authority over risk retention groups. Id. The 1986 Liability Risk Retention Act amendments significantly increased the regulatory authority of non-domiciliary states. “The 1986 ... amendments went through several versions, each giving increasingly broad regulatory powers to nonchartering states.” Id. at 1117

17ACIC maintains that a risk retention group is subject to the law of the chartering state only, in this case, Texas, unless an exception to the exemption from state law is expressly provided in 15 U.S.C. § 3902. ACIC points out that none of the exceptions to exemption from state law deal with uninsured motorist coverage.

Section 3902, entitled “Risk retention groups,” provides, in pertinent part:

(a) Exemptions from State laws, rules, regulations, or orders
Except as provided in this section, a risk retention group is exempt from any State law, rule, regulation, or order to the extent that such law, rule, regulation, or order would—
(1) make unlawful, or regulate, directly or indirectly, the operation of a risk retention group except that the jurisdiction in which it is chartered may regulate the formation and operation of such a group and any State may require such a group to—
(A) comply with the unfair claim settlement practices law of the State;
(B) pay, on a nondiscriminatory basis, applicable premium and other taxes which are levied on admitted insurers and surplus lines insurers, brokers, or policyholders under the laws of the State;
(C) participate, on a nondiscriminatory basis, in any mechanism established or authorized under the law of the State for the equitable apportionment among insurers of liability insurance losses and expenses incurred on policies written through such mechanism;
(D) register with and designate the State insurance commissioner as its agent solely for the purpose of receiving service of legal documents or process;
(E) submit to an examination by the State insurance commissioners in any State in which the group is doing business to determine the group’s financial condition, if—
(i) the commissioner of the jurisdiction in which the group is chartered has not begun or has refused to initiate an examination of the group; and
(ii) any such examination shall be coordinated to avoid unjustified duplication and unjustified repetition; |S(F) comply with a lawful order issued—
(i) in a delinquency proceeding commenced by the State insurance commissioner if there has been a finding of financial impairment under subparagraph (E); or
(ii) in a voluntary dissolution proceeding;
(G) comply with any State law regarding deceptive, false, or fraudulent acts or practices, except that if the State seeks an injunction regarding the conduct described in this subparagraph, such injunction must be obtained from a court of competent jurisdiction;
(H) comply with an injunction issued by a court of competent jurisdiction, upon a petition by the State insurance commissioner alleging that the group is in hazardous financial condition or is financially impaired; and
(I) provide the following notice, in 10-point type, in any insurance policy issued by such group:
NOTICE
“This policy is issued by your risk retention group. Your risk retention group may not be subject to all of the insurance laws and regulations of your State. State insurance insolvency guaranty funds are not available for your risk retention group.”
(2) require or permit a risk retention group to participate in any insurance insolvency guaranty association to which an insurer licensed in the State is required to belong;
(3) require any insurance policy issued to a risk retention group or any member of the group to be countersigned by an insurance agent or broker residing in that State; or
(4) otherwise discriminate against a risk retention group or any of its members, except that nothing in this section shall be construed to affect the applicability of State laws generally applicable to persons or corporations.

Plaintiffs rely on Section 3905 of the statute, which reads:

(a) No exemption from State motor vehicle no-fault and motor vehicle financial responsibility laws
Nothing in this chapter shall be construed to exempt a risk retention group or purchasing group authorized under this chapter from the policy form or coverage requirements of any State motor vehicle no-fault or motor vehicle financial responsibility law.

|9This section was added to the statute in the 1986 amendments.

Plaintiffs argue that 15 U.S.C. § 3905 is an express rejection of federal preemption of state laws that regulate policy form or coverage requirements of automobile liability policies. It is ACIC’s position that the “motor vehicle financial responsibility law” referred to in § 3905 is found in La. R.S. 32:861 et seq, and does not apply to laws dealing with uninsured/underinsured motorist coverage, which is found in the Insurance Code, La. R.S. 22:680 et seq.

We do not believe “motor vehicle financial responsibility law” in 15 U.S.C. § 3905 must be read so narrowly, and confined to La. R.S. 32:861 et seq. In enacting 15 U.S.C. § 3905, Congress was attempting to clarify the federal statute as it relates to state law dealing with automobile liability insurance, an area that has traditionally and consistently been controlled by state law, and increase the power of insurance commissioners in non-chartering states. We find that “motor vehicle financial responsibility law” refers to the laws in the area of motor vehicle responsibility as enacted by each individual state. We note that the Texas law corresponding to Louisiana’s “motor vehicle financial responsibility law” is found in the Texas Transportation Code, Chapter 601, Texas Motor Vehicle Safety Responsibility Act. The law governing the issuance of uninsured/underinsured motorist insurance coverage is found in the Texas Insurance Code, Title 10, articles 1952-101. Where the law is found is not the issue, if the purpose is part of a state’s regulatory scheme of automobile liability responsibility then the state’s law will control.

In addition to Congress’s express disavowal of LRRA’s preemption of state motor vehicle financial responsibility law, it recognizes the efficacy of each state’s policy form requirements. The Louisiana Supreme Court reviewed the history and purpose of uninsured/underinsured motorist insurance coverage in Duncan v. U.S.A.A. Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544, noting that in 1997, the Legislature amended La. R.S. 22:1406, which stated the requirements for the form required for a valid waiver of UM coverage. As amended, the law requires, “Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance.” As noted previously, the form utilized to waive UM coverage in this case does not conform to that prescribed by the Louisiana Commissioner of Insurance.

Duncan further provided:

The law imposes UM coverage in this state notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment. Accordingly, to effect a valid rejection of the UM coverage under La. R.S. 22:1406(D)(l)(a), the insured or his authorized representative must expressly set forth in a single document that UM coverage is rejected in the State of Louisiana as of a specific date in a particular policy issued or to be issued by the insurer. A writing, regardless of the intention of the insured, of a less precise nature is insufficient to effect a valid rejection.
Duncan, 2006-363 at p. 5, 950 So.2d at 547.

Because the writing in this case is insufficient to effect a valid rejection of UM coverage, Louisiana law dictates that the policy provide UM coverage.

Although ACIC’s arguments were well-crafted, we find that the law does not require the result for which it argues. We reach this conclusion, not only based on the above discussion, but also from examination of the insurance policy itself, which contains a form that “becomes part of your policy acknowledging your acceptance or rejection of Uninsured/Underinsured Motorist coverage.” The form states:

We are required to offer Uninsured/Underinsured Motorist Coverage on all automobile liability policies. In some states, this coverage is required by law, while in others, you have the option to accept or reject this coverage or parts of this coverage.
11 |If you do not want this coverage in any state where you have a choice, please indicate your choice by checking the following box. Please note that certain states may require their own signed rejection form in order to make this rejection valid[.] (Emphasis added.)

Clearly, Louisiana is a state that requires use of its own form in order to make the rejection valid. From the standpoint of contract law, the parties were on notice that regardless of their intention, the individual states’ law regarding UM coverage would control rather than the law of the chartering state.

After careful de novo review of the record and law in this matter, we find that the Louisiana law governing automobile liability insurance for uninsured/underinsured motorist coverage is controlling in this matter. Therefore, the judgment of the district court granting summary judgment in favor of Walter Shear and Priscilla Shear and finding uninsured/underinsured motorist coverage under the American Contractors Insurance Company Risk Retention Group policy issued to Cajun Constructors, Inc. is affirmed.

Costs of this appeal are assessed to appellant, American Contractors Insurance Company Risk Retention Group.

AFFIRMED.

      . The plaintiffs' arguments have been adopted by the insurance companies that are parties to the litigation, who have also offered supplemental arguments.

      . La. R.S. 22:1406 was re-designated as La. R.S. 22:680 by 2003 La. Acts, No. 456, § 3. La. R.S. 22:680 was re-designated as La. R.S. 22:1295 by 2008 La. Acts, No. 415, § 1.


author: KUHN, J. GUIDRY, J.,

text:
    Margaret Anne Coady LATIOLAIS v. TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA.
    No. 2008 CA 1792.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 2009.

      Harry P. Pastuszek, Jr., David S. Pittman, Linnette C. Goodly, Covington, Louisiana, for Plaintiff-Appellee, Margaret Anne Coady Latiolais.
    John L. Stone, III, Baton Rouge, Louisiana, for Defendant-Appellant, Teachers’ Retirement System of Louisiana.
    Before: CARTER, C.J., WHIPPLE, KUHN, GUIDRY, and GAIDRY, JJ.
   KUHN, J.

|2The Teachers’ Retirement System of Louisiana (TRSL) appeals a summary judgment rendered in favor of a designated beneficiary, declaring that the beneficiary is entitled to Option 2 retirement benefit payments pursuant to La. R.S. 11:783 A(2), plus interest. We affirm in part, reverse in part, and remand.

I. PROCEDURAL AND FACTUAL BACKGROUND

On August 11, 2002, Mary Christina Coady, who worked in the St. Charles Parish School System and was a member of TRSL for over 25 years, completed an “Application for Service Retirement,” wherein she indicated she was divorced, and specified January 22, 2003, as her effective retirement date. Section 4 of the TRSL form addressed “Retirement option beneficiary,” and stated, in pertinent part, “You may designate one beneficiary below to receive a monthly survivor benefit in the event of your death.” In this section of the form, Coady designated her sister, Margaret Anne Coady Latiolais, as her beneficiary and also provided her birth date and Social Security number. In filling out the application, Coady also struck through Sections 2, 5, and 6 of the application form that referenced an “Initial Lump Sum Benefit.” TRSL received Coady’s application on August 28, 2002, and according to TRSL’s records, it acknowledged receipt of the application by letter dated September 3, 2002.

Coady died on February 27, 2003, before TRSL had finalized her retirement application. TRSL updated its system to reflect her death, and notified Latiolais that because Coady had died more than thirty days after the effective date of retirement, but before TRSL had received her Affidavit of Retirement Option Election (“the retirement affidavit”), Latiolais would receive the Option 1 beneficiary benefit, i.e., a single life annuity in a one-time payment, which represented the present value of Coady’s annuity at the time of her retirement.

|sOn March 1, 2006, Latiolais filed a petition, seeking a declaratory judgment determining the applicability and scope of La. R.S. 11:783 A and H and a judgment in her favor ordering TRSL to pay her Option 2 benefits, a reduced retirement allowance paid throughout her life from the date of Coady’s death, along with attorneys’ fees, penalties, legal interest and costs. Latiolais’s petition also set forth pertinent portions of a TRSL publication, dated July 2002, entitled “When It’s Time to Retire,” which is a guide to the TRSL retirement process that was mailed to TRSL members when they requested benefit estimates. The publication states as follows, in pertinent part:

TRSL sends retirement affidavit
Once your application is processed, TRSL will send you an Affidavit of Retirement Option Election based upon the most current information available to TRSL. The affidavit will list the benefit amount for each of the retirement options.
Within 15 days, return notarized retirement affidavit
It is vitally important that this affidavit be completed, notarized, and returned to TRSL within 15 days of receipt. By selecting an option and returning the affidavit, you indicate under which option you wish to retire. This is a critical step in the retirement process.

Based on these provisions, Latiolais asserted that TRSL had a legal duty to provide the retirement affidavit form to Coady, but TRSL failed to do so. The petition further asserts that Coady died more than thirty days after her effective retirement date, and that Latiolais has demanded, but has been unjustly denied, Option 2 benefits by TRSL since Coady’s death.

| ¿After TRSL answered the suit, Latio-lais filed a motion for summary judgment, urging that based on TRSL’s error, she had been denied the correct retirement allowances pursuant to Option 2. In support of her motion, Latiolais submitted her own affidavit, wherein she attested that she was “very close” to Coady, her sister, and she “spent considerable time with her during her final six months of life.” Latio-lais further attested that both prior to and after Coady filed her application for retirement benefits, Latiolais “routinely participated in the review of mail received and sent by” her sister and she “routinely discussed business matters, including, but not limited to documents relating to” TRSL. Moreover, Latiolais stated that she was never informed by her sister that she had received the retirement affidavit from TRSL, and “[t]here was never [a retirement affidavit] received in the mail by [her sister] from [TRSL].” Latiolais stated that if a retirement affidavit had been sent to her sister, “via mail or otherwise, I would have known about it.” Plaintiff also submitted excerpts of Carolyn Forbes’s deposition testimony in support of the motion.

TRSL opposed Latiolais’s motion for summary judgment, asserting that genuine issues as to material fact included whether: 1) Coady had ever elected Option 2 pursuant to La. R.S. 11:783 A(2); and 2) TRSL had mailed the retirement affidavit to Coa-dy. In support of its position, TRSL submitted the entirety of Forbes’s deposition testimony and the affidavit of Ronnie Ma-zie, which generally addressed TRSL’s mailing operations.

|sThe deposition of Carolyn Forbes, TRSL’s retirement benefits manager, established that she had reviewed Coady’s certified file record maintained by TRSL, and it did not contain a copy of the retirement affidavit allegedly sent to Coady, a working copy of the retirement affidavit, a cover letter, or any other proof that the retirement affidavit was actually mailed to Coady. She testified that TRSL did not keep a copy of the retirement affidavit in the member’s file in late 2002 through early 2003, but their practice was to keep a copy of the supporting worksheet.

Forbes further testified that this supporting worksheet was in Coady’s file record, and that according to TRSL’s standard practices, a copy of the worksheet was generated along with the retirement affidavit. Forbes explained that during the time period in question, only a copy of the worksheet, and not a copy of the unex-ecuted retirement affidavit generated with the worksheet, was kept in the member’s record. Based on TRSL’s standard operating practices at that time and the specific file notations in Coady’s file, Forbes testified that a retirement | (¡affidavit, also referred to as an estimated affidavit, was generated for Coady on September 3, 2002. Forbes testified that the existence of the worksheet in Coady’s file supports TRSL’s position that the affidavit was transmitted to Coady.

A hearing on Latiolais’s motion was held, and the trial court granted summary judgment in her favor, consequently ordering TRSL to pay Latiolais Option 2 retirement benefits, effective February 27, 2003, plus interest on these payments. TRSL filed a motion for new trial, and on denial of its motion, it moved to suspensively appeal the summary judgment and the denial of its motion for new trial.

On appeal, TRSL alleges that the trial court erred in rendering judgment in La-tiolais’s favor in the following respects:

1. The trial court erred in granting [Latiolais’s] motion for summary judgment even though [Latiolais] is not entitled to judgment as a matter of law.
2. Assuming [Latiolais] has a legal basis for her claim based on an alleged failure of [TRSL] to mail [a retirement affidavit] (which [TRSL] denies) the trial court erred in granting [Latiolais’s] motion for summary judgment because a genuine issue of material fact exists.
3. The trial court erred in denying [TRSL’s] Motion for New Trial where its Judgment signed on May 20, 2008, was clearly contrary to the law and the evidence.
4. The trial court erred in denying [TRSL’s] Motion for New Trial where new evidence was presented in connection with that Motion.
5. The trial court erred in denying [TRSL’s] Motion for New Trial by abusing its discretion under [La. C.C.P. art.] 1973.

II. ANALYSIS

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary [judgment is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2). Once the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Samaha v. Ran, 07-1726, p. 5 (La.2/26/08), 977 So.2d 880, 883. The plaintiff may not rest on mere allegations or denials, but must set forth specific facts that show that a genuine issue of material fact remains. If the plaintiff fails to meet this burden, there is no genuine issue of material fact, and the defendant is entitled to summary judgment as a matter of law. Berry v. Paul Revere Life Ins. Co., 08-0945, p. 3 (La.App. 1st Cir.7/9/09), 21 So.3d 385. The supreme court has held that “[a] fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute.” Samaha v. Rau, 07-1726 at p. 6, 977 So.2d at 884 (quoting Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765).

Louisiana Revised Statutes 11:783 provides, in pertinent part:

A. (1) No optional election shall be effective when a retiree or participant in the Deferred Retirement Option Plan dies within thirty days after the effective date of retirement or the effective date of participation in the Deferred Retirement Option Plan, and such a retiree or participant in the Deferred Retirement Option Plan shall be considered as an active member at the time of death.
(2) Upon retirement or participation in the Deferred Retirement Option Plan any member may make an election which is irrevocable after the effective date of retirement or the effective date of participation in the Deferred Retirement Option Plan to receive his | .¡benefit in a retirement allowance payable throughout life, or he may make an election which is irrevocable after the effective date of retirement or the effective date of participation in the Deferred Retirement Option Plan to receive the actuarial equivalent of his retirement allowance in a reduced retirement allowance payable throughout life with the provisions that:
Option 1. If he dies before he has received in annuity payments the present value of his annuity as it was at the time of his retirement, the balance shall be paid to his succession or to any person he shall designate in a written instrument acknowledged and filed with the board of trustees.
Option 2. Upon his death, his reduced retirement allowance shall be continued throughout the life of and paid to a natural person he shall irrevocably designate in a written instrument acknowledged and filed with the board of trustees at the time the election is made; or
Option 2A. Upon his death, his reduced retirement allowance shall be continued throughout the life of and paid to a natural person he shall irrevocably designate in a written instrument acknowledged and filed with the board of trustees at the time the election is made, provided that if the designated beneficiary predeceases the retiree, the retiree’s reduced benefit shall change to the maximum benefit effective on the first day of the next month following the death of the designated beneficiary.
Option 3. Upon his death, one-half of his reduced retirement allowance shall be continued throughout the life of and paid to a natural person he shall irrevocably designate in a written instrument acknowledged and filed with the board of trustees at the time the election is made; or
Option 3A. Upon his death, one-half of his reduced retirement allowance shall be continued throughout the life of and paid to a natural person he shall irrevocably designate in a written instrument acknowledged and filed with the board of trustees at the time the election is made, provided that if the designated beneficiary predeceases the retiree, the retiree’s reduced benefit shall change to the maximum benefit effective on the first day of the next month following the death of the designated beneficiary.
Option 4. Upon his death, some other benefit which shall not exceed the Option 2 benefit amount, designated by him at the time the election is made, shall be paid throughout the life of and to a natural person he shall irrevocably designate in a written instrument acknowledged and filed with the board of trustees at the time the election is made, provided such other benefit, together with the reduced retirement allowance shall be certified by the actuary to be of equivalent actuarial value to his retirement allowance, and approved by the board of trustees; or
| ¡¡Option 4A. Upon his death, some other benefit which shall not exceed the Option 2 benefit amount, designated by him at the time the election is made shall be paid throughout the life of and to a natural person he shall irrevocably designate in a written instrument acknowledged and filed with the board of trustees at the time the election is made, provided such other benefit, together with the reduced retirement allowance, shall be certified by the actuary to be of equivalent actuarial value to his retirement allowance, and approved by the board of trustees, provided that if the designated beneficiary predeceases the retiree, the retiree’s reduced benefit shall change to the maximum benefit effective on the first day of the next month following the death of the designated beneficiary.
(3) Initial Lump-Sum Benefit, (a) If a member has not participated in the Deferred Retirement Option Plan provided by the provisions of this Chapter and has thirty years of creditable service, or is age fifty-five and has twenty-five years of creditable service, or is age sixty and has ten years of creditable service, and if the maximum benefit, Option 2, 2A, 3, 3A, 4, or 4A above is chosen, then a reduced retirement allowance plus an initial benefit shall be paid to the member. The accredited service referenced in this Paragraph shall not include unused accumulated sick leave and unused accumulated annual leave.
H. If a retiree or a participant in the Deferred Retirement Option Plan dies more than thirty days after the effective date of retirement or more than thirty days after his effective date of participation in the Deferred Retirement Option Plan, but before the retirement system has received his Affidavit of Retirement Plan Election and leaves a surviving spouse, he shall be retired under Option 2 of Subsection A of this Section as of his effective date of retirement and the surviving spouse shall be paid Option 2 beneficiary benefits; however, if he does not leave a surviving spouse but does leave an eligible surviving minor child or children, only the benefits provided under R.S. 11:762(C) shall be payable; and provided that if he does not leave a surviving spouse, he shall be retired under Option 1 of Subsection A of this Section as of his effective date of retirement and his latest named beneficiary including any beneficiary named on his retirement application received by the retirement system shall be paid the Option 1 beneficiary benefit.... (Emphasis added.)

In its first two assignments of error, TRSL urges that Latiolais has the burden of proving that Coady elected Option 2 pursuant to this statute, and otherwise, the option election is determined by La. R.S. 11:783 H. TRSL submits 11tithat the record contains no evidence establishing that Coady elected Option 2 rather than the other options listed under La. R.S. 11:783 A(2), and thus, Latiolais is not entitled to judgment as a matter of law. Further, TRSL argues that the trial court erroneously granted summary judgment in favor of Latiolais because genuine issues of material fact exist concerning whether TRSL provided Coady with a retirement affidavit.

In her motion for summary judgment, Latiolais argues that TRSL did not send a retirement affidavit to Coady, which based on TRSL’s rules and procedures, it was responsible for producing and providing. Due to its failure to provide the affidavit to Coady, Latiolais asserts that TRSL is precluded from denying Latiolais recovery of Option 2 benefits under the retirement plan.

Based on the pertinent dates involved, Coady died more than thirty days after the effective date of her retirement, and thus she was not considered an active member of TRSL upon her death based on the provisions of La. R.S. 11:783 A. The evidence presented establishes that Coady did not complete and return a retirement affidavit to TRSL, by which she would have exercised her right to select a specific option based on her specific member information. TRSL submits that Latiolais should be relegated to receiving an Option 1 payment because Coady did not complete the retirement affidavit. We find no merit in this argument.

Louisiana Revised Statutes 11:783 H imposes an implicit duty on TRSL to provide this retirement affidavit to a member who submits a retirement application. According to Forbes’s deposition testimony, the retirement affidavit | y, provides member-specific information to the member who is making the selection, and this information is needed for her to be able to complete the retirement affidavit. Further, the retirement affidavit is not provided to a member before his or her application for retirement is made. The selection of a retirement option is not to be made in a void, but should be made based on this information, which is made available by TRSL after a worksheet is prepared for the particular member.

Further, Forbes testified that the TRSL publication, entitled “When It’s Time to Retire,” was routinely sent to members who requested an estimate of their benefits, and in fact, it had been sent to Coady when she requested an estimate of her benefits in 2002. If Coady in fact received this publication, she would have been awaiting the receipt of her retirement affidavit, which would have been “based on the most current information available to TRSL,” as stated in TRSL’s publication. The evidence further demonstrates that TRSL took no action to notify Coady regarding the missing retirement affidavit between the effective date of her retirement and the date of her death.

TRSL urges that a genuine issue of material fact remains as to whether TRSL mailed the retirement affidavit to Coady. Latiolais’s affidavit, which addressed the fact that Coady never received a retirement affidavit from TRSL, effectively shifted the burden to TRSL to establish that it did in fact mail this affidavit to Coady. The deposition testimony submitted by TRSL in opposition to Latiolais’s motion for summary judgment failed to establish that the retirement affidavit was in fact mailed to Coady or that Coady actually received the affidavit. The fact that TRSL prepared a worksheet, generated a retirement affidavit, or that 112its normal procedure was to do these things, does not establish that the affidavit was in fact mailed to Coady. Thus, because TRSL has failed to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, ie., that it actually mailed the retirement affidavit to Coady; there is no genuine issue of material fact as to this issue.

Accordingly, based on the particular facts of this case, ie., that TRSL failed to establish that it mailed the retirement affidavit to Coady, and it failed to request a completed retirement affidavit from Coady after the effective date of her retirement, we conclude La. R.S. 11:788 H is inapplicable, and TRSL cannot refuse to pay a monthly survivor benefit based on the lack of the completed affidavit. Moreover, the evidence establishes that Coady, pursuant to her application for service retirement, expressed her specific intent that Latiolais would in fact receive a “monthly survivor benefit,” according to the specific language included within the application and Coa-dy’s designation of Latiolais as her beneficiary.

TRSL also assigns as error the trial court’s failure to grant its motion for new trial where it presented new evidence, ie., Keith Kent’s affidavit, in connection with that motion. Louisiana Code of Civil Procedure article 1972(2) provides that a new trial shall be granted when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial. Although TRSL submitted Kent’s affidavit, it provided no reason why the affidavit could not have been obtained before the trial | lscourt heard Latio-lais’ motion for summary judgment. Accordingly, we find no error in the trial court’s denial of the motion on that ground.

Otherwise, TRSL submits that the trial court should have granted a new trial because the summary judgment in favor of Latiolais was contrary to the law and evidence. La. C.C.P. art. 1972(1). TRSL argues that Latiolais failed to establish that TRSL has an obligation to pay her an Option 2 benefit, and consequently Latio-lais is not entitled to judgment as a matter of law. TRSL also urges that the trial court should have granted a new trial on discretionary grounds pursuant to La. C.C.P. art. 1973.

Based on the facts of this case where the retirement affidavit was not provided to Coady, and thus, there is no completed affidavit as referenced in La. R.S. 11:783 H, we conclude it is necessary to otherwise ascertain Coady’s intent. We find, based on Coady’s application for service retirement, that she intended that La-tiolais would receive a “monthly survivor benefit.” Accordingly, the trial court properly declared that Latiolais was entitled to receive such a monthly benefit after Coady’s death based on the provisions of La. R.S. 11:783 A(2). Further, when Coa-dy filled out the application, she struck through Sections 2, 5, and 6 of the application, which referenced an “Initial Lump Sum Benefit.” Thereby, we conclude that she also rejected such a benefit. However, the record does not contain sufficient information from which we can determine that Coady intended to elect Option 2 rather than the other options that would also provide a monthly survivor benefit, i.e., Options 2A, 3, 3A, 4, and 4A. See La. R.S. 11:783 A; La. R.S. 11:701(3) and (28). In this respect, we find merit in TRSL’s argument.

Latiolais’s brief relates that Coady suffered from cancer that had been in full remission, and when it reappeared she knew it would produce a terminal | usituation. However, the record before us contains no evidence regarding her illness. Facts regarding the nature and severity of Coady’s illness, when she learned of her illness, and its progression at the time of her application for retirement would be pertinent in determining Coady’s intent. Accordingly, while we find that the record establishes that Latiolais is entitled to a “monthly survivor benefit,” the record does not establish whether Coady intended to select Option 2 instead of Options 2A, 3, 3A, 4, or 4A. Thus, we reverse that portion of the trial court’s judgment that declared that Latiolais was entitled to Option 2 retirement benefits, and we remand for further proceedings so that the trial court can make a determination regarding Coa-dy’s intent with respect to these particular options that will afford Latiolais a monthly survivor benefit.

III. CONCLUSION

For these reasons, we affirm the trial court’s judgment insofar as it ordered TRSL to pay Latiolais a monthly survivor benefit pursuant to La. R.S. 11:783 A(2). We reverse that portion of the trial court’s judgment that ordered TRSL to pay La-tiolais Option 2 retirement benefits. We remand to the trial court for further proceedings in accordance with our instructions herein. Appeal costs in the amount of $1,826.50 are assessed against TRSL.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

GUIDRY, J., dissents and assigns reasons.

GAIDRY, J., concurs in part and dissents in part for the reasons assigned by GUIDRY, J.

GUIDRY, J.,

dissenting.

1TA motion for summary judgment should be granted only 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Both Latiolais and TRSL rely on circumstantial evidence to support their opposing positions concerning whether a retirement affidavit was provided to Coady. Furthermore, the evidence, as presented, is conflicting. See Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 18 (La.2/29/00), 755 So.2d 226, 236-237 (wherein the Court held that it could not conclude that the scintilla of circumstantial evidence presented by the party opposing the motion for summary judgment to support its position was insufficient to allow a reasonable juror to conclude that the opposing party’s position was more likely than not true.)

A genuine issue is a triable issue. More precisely, an issue is genuine if [¿reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hospital Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751; Dunaway v. Louisiana Wildlife and Fisheries Commission, 08-1494, p. 4 (La.App. 1st Cir.2/13/09), 6 So.3d 228, 231-232.

In Cole v. Lavine, 595 So.2d 398 (La.App. 3d Cir.1992), a similar factual issue was presented in an action in which the plaintiff alleged that because the insurer failed to provide the required statutory notice communicating its intent to renew, the insurer was precluded from asserting that the policy at issue was not in effect at the time of the accident sued upon. Like the TRSL in the matter before us, the insurer was unable to produce actual proof that it mailed the notice of intent to renew, but instead submitted computer records which showed that a notice of intent to renew the insureds’ policy was generated by the computer on a certain date. In opposition to this evidence, the plaintiff submitted the affidavit of the administrator of the estate of the deceased insureds in which the administrator stated that he had searched the personal effects of the deceased insureds and found no offer to renew from the insured. The court held that because the evidence was conflicting as to whether the notice was sent, a genuine issue of material fact existed regarding the mailing of the notice and therefore summary judgment could not be granted. Cole, 595 So.2d at 400; Cf. Jacobs v. Louisiana Indemnity Insurance Company, 96-1203 (La.App. 3d Cir.3/12/97), 692 So.2d 1182, writ denied, 97-0958 (La.5/16/97), 693 So.2d 802 (where the court held that on a trial on the ments, the evidence presented by the insurer of its standard procedures for mailing of the notice was sufficient to prove that the notice was mailed and therefore the insurer was held to have complied with the statutory requirements of |ssending notice of cancellation, despite the failure to produce evidence of actual mailing and the insured’s denial that he had received such notice).

As the circumstantial evidence submitted by Latiolais that Coady never received a retirement affidavit from TRSL (Latio-lais’s affidavit and excerpts of Forbes’ deposition) conflicts in a material respect with the circumstantial evidence submitted by TRSL (Forbes’s entire deposition and Mazie’s affidavit), the majority, like the trial court, had to improperly weigh and evaluate the evidence presented to reach the conclusion that TRSL did not provide Coady with a retirement affidavit. As the fact of whether TRSL provided Coady with a retirement affidavit is highly disputed, a determination of this factual issue should be reserved for a trial on the merits, and to the extent the majority opinion affirms the trial court’s resolution of this issue by summary judgment, I respectfully dissent.

      . This publication was produced by Carolyn Forbes, TRSL’s retirement benefits manager, in response to a subpoena duces tecum, which she replied to in conjunction with her December 4, 2006 deposition. This publication was identified as an exhibit during Forbes's deposition, but it does not appear as an attachment to the deposition contained within our appellate record. The publication was otherwise filed into the record, however, as an exhibit in support of Latiolais's motion for summary judgment. Because both parties referenced the publication in their trial mem-oranda and in their appellate briefs and do not dispute its contents, we have considered the contents of the publication for purposes of this appeal.

      . This affidavit states that Mazie: 1) held the position of an administrative program manager at TRSL; 2) his duties included overseeing TRSL’s mail operations; and 3) was familiar with the process by which Affidavits of Retirement Option Election and other TRSL documents are mailed, with such documents being placed in an envelope and addressed by the retirement processor. The affidavit further sets forth that the envelope and its contents are placed in a collection box, and the following morning mail operations picks up the item and takes it to a meter, which is set for first class mail. After the correct postage is applied to the item, an Operation State Mail representative picks up the item and takes it to the Operation State Mail Office, where a postal carrier picks up the item between 3:00 and 3:30PM and takes it to the post office.
      Latiolais filed a motion to strike Mazie’s affidavit, challenging the affidavit as failing to meet the requirements of supporting affidavits, as mandated by La. C.C.P. art. 967, i.e., particularly that the affidavit was not based on personal knowledge. The record does not contain a ruling by the trial court on this motion. We do not agree, however, that the affidavit should be struck pursuant to the guidelines of La. C.C.P. art. 967, because it appears that the affidavit was based on Ma-zie's personal knowledge of TRSL mail operations. We find, however, that Mazie’s affidavit is general in nature and does not establish that he had knowledge of TRSL’s mail operations during the specific time period in question. Accordingly, due to this deficiency, we find Mazie’s affidavit irrelevant to the issue of whether TRSL mailed the affidavit to Coady between the time she filed her application for service retirement in August 2002, and the time of her death in February 2003.

      . Forbes explained that a working copy of the unexecuted affidavit was typically held at the analyst's desk until the notarized affidavit came into the office. Coady's file did not contain this working affidavit, and Forbes explained that because Coady's date of death occurred so quickly after she applied for retirement, TRSL probably destroyed the working affidavit when it started processing the claim as a death-benefit claim.

      . Although Forbes produced the worksheet in response to a request for production of documents solicited in conjunction with her deposition, the worksheet does not appear in our record.

      . TRSL's fiduciary duties include the duty to provide retirees sufficient information to make an informed decision in electing a retirement option. See La. R.S. 11:702; Honda v. Bd. of Trustees of the Employees’ Retirement System of the State, 108 Hawai'i 212, 221, 118 P.3d 1155, 1164 (6/17/05); Ricks v. Missouri Local Gov't Employees' Retirement System, 981 S.W.2d 585, 592 (Mo.App.W.D.9/29/98).

      . According to Forbes’s deposition testimony, the retirement affidavit has never been made available to members in a publication as a form document because members must have member-specific information on the retirement affidavit for them to be able to complete it.

      . Kent's affidavit set forth that: 1) he was the administrative manager for TRSL from September 14, 1998, to October 16, 2006; 2) his duties included overseeing TRSL's mail operations; and 3) he was familiar with the process by which Affidavits of Retirement Option Election and other TRSL documents were mailed during that time period. The affidavit further described the particular mailing process typically used by TRSL, which was the same procedure described by Mazie.

      . Circumstantial or indirect evidence is evidence that, if believed, proves a fact and from that fact you may logically and reasonably conclude that another fact exists. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 18 n. 6 (La.2/29/00), 755 So.2d 226, 236 n. 6.


author: PER CURIAM.

text:
    Jeffrey SCHURR v. Joseph O’DWYER, State Farm Mutual Automobile Insurance Company and Homestead Insurance Company.
    No. 09-CA-24.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 3, 2009.
    Patrick G. Kehoe, Jr., Attorney at Law, New Orleans, LA, for Appellant.
    Robert E. Tarcza, Michael A. Triay, Attorneys at Law, New Orleans, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   PER CURIAM.

li>This is a personal injury action arising from a motor vehicle accident. Plaintiff/appellant Jeffrey Schurr (“Schurr”) appeals a judgment in his favor against his employer’s uninsured/underinsured motorist carrier Homestead Insurance Company (“Homestead”), defendant/appellee. The judgment awarded Schurr $2,493.59 in damages and interest from the date of judicial demand. Schurr specifies three errors to the proceedings below. First, Schurr alleges that the trial court erred in finding him 50% at fault in causing the accident. Second, Schurr alleges that the trial court erred in finding he did not mitigate his damages. Third, Schurr alleges that the trial court’s general damages award was abusively low. Because we find that the judgment is a non-appeal-able partial judgment, we hereby dismiss this appeal and remand the case to the trial court for further proceedings.

On July 17, 1995, Schurr filed a Petition for Damages. The Petition alleged that on August 14,1994 “[Schurr] was traveling on the [Lake Ponchartrain] Causeway on/off ramp in Jefferson Parish when suddenly and without warning a | .^vehicle being operated by Joseph O’Dwyer struck [Schurr’s] vehicle in the rear. As a result of this incident, [Schurr] sustained injuries.”

On October 20,1995, Homestead filed an Answer to First Supplemental and Amended Petition. In the October 20 Answer, Homestead alleged that “[t]he sole and proximate cause of the accident giving rise to this suit was the negligence of plaintiff, Jeffrey Schurr.” More specifically, Homestead contended that Schurr had made a sudden and unwarranted stop in a lane of moving traffic, that Schurr had failed to move his vehicle from the roadway once it became obvious that he had a flat tire, and that Schurr had failed to activate his emergency flashers indicating that his vehicle was disabled.

Trial in this matter was held on August 4, 1998. The trial court rendered a Judgment on October 8, 2008 awarding Schurr $2,493.59 in damages. The Judgment also ordered Homestead to pay interest from the date of judicial demand. In contrast, in its Reasons for Judgment, the trial court explained that Schurr proved medical expenses in the amount of $14,231.48 and that “general damages in the amount of $17,000 [were] appropriate, for a total of $31,231.48 in damages.” The trial court additionally stated that it found “that the plaintiff Jeffrey Schurr and the defendant Joseph O’Dwyer were both negligent ... [therefore], the percentage of negligence for Mr. Schurr is 50% and for Mr. O’Dwyer, 50%.” Moreover, the trial court stated it was of the opinion that because “the plaintiff failed to attend physical therapy as prescribed by his first treating physician, the Court find[s] that the plaintiff further contributed to his injuries and the damages should be reduced by an additional 10% ... resulting in a damage award of $12,493.59.” The trial also stated it was reducing the award by the $10,000.00 to reflect a sum that State Farm Mutual Automobile Insurance Company had paid |4Schurr prior to trial. None of these aspects of the case were addressed by the court in the actual Judgment. Although Schurr filed this timely appeal from the trial court’s October 8, 2008 Judgment, he is actually assigning errors from the Reasons for Judgment.

La. C.C.P. art. 1841 provides that appeals lie from final judgments only. A final judgment “determines the merits in whole or in part,” while an interlocutory judgment “does not determine the merits but only preliminary matters in the course of the action.” See also New Orleans Firefighters Ass’n Local 632 v. City of New Orleans, 1999-0011 (La.App. 4 Cir. 11/24/99), 750 So.2d 1069, 1072. Written reasons for judgment are considered to be interlocutory rulings and do not carry the finality of a judgment. Taylor v. Brandner, 05-970 (La.App. 5 Cir. 4/25/06), 928 So.2d 751, 755 (citing Davis v. Farm Fresh Food Supplier, 2002-1401 (La.App. 1 Cir. 3/28/03), 844 So.2d 352, 354). Appellate courts review the correctness of the judgment, rather than the reasons for the underlying judgment. Irsch v. Argonaut Great Cent. Ins. Co., 02-988 (La.App. 5 Cir. 1/28/03), 841 So.2d 831, 841. Likewise, the trial court’s reasons for judgment, while defining the principles upon which the court is deciding a case, form no part of the official judgment signed and from which appeals are taken. La. C.C.P. art. 1917, art. 1918; Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 30.

In the instant case, Schurr’s Petition alleged that he had been injured through the negligence of O’Dwyer. Conversely, Homestead’s Answer to First Supplemental and Amended Petition alleged that Schurr was at fault in causing the accident. However, the trial court’s judgment of October 8, 2008 did not address the issues raised in the Petition or the Answer to First Supplemental and Amended Petition, nor did it address the issue of general damages. Thus, the trial court [¿issued a partial judgment as to “less than all of the claims, demands, issues, or theories” of Schurr and Homestead. La. C.C.P. art. 1915(B)(1).

Since the trial court failed to address all of the claims, and the judgment has not been designated as a final judgment by the trial court after an express determination that there is no just reason for delay, the trial court’s October 8, 2008 Judgment is not a final judgment under La. C.C.P. art. 1915(B)(1) and is therefore not appealable as one “which appeals are given by law” under La. C.C.P. art. 2083(A). See Pontchartrain Tavern, Inc. v. Johnson, 07-115 (La.App. 5 Cir. 8/28/07), 966 So.2d 1062, 1064.

La. C.C.P. art. 1915(A) provides that a partial judgment may be considered a final judgment in some circumstances even if the partial judgment does “not grant the successful party or parties all of the relief prayed for” or adjudicate all of the issues in the ease. However, none of the specified instances contained in La. C.C.P. art. 1915(A) are applicable to the instant case. Thus, the trial court’s October 8, 2008 judgment is not a final applicable judgment under La. C.C.P. art. 1915(A). Pontchartrain Tavern, Inc., 966 So.2d at 1064; O’Connor v. Nelson, 05-125, p. 4 (La.App. 5 Cir. 7/26/05), 910 So.2d 441, 443.

| Accordingly, we have no jurisdiction to consider this matter. This appeal is dismissed. Each party is to bear their own costs of this appeal. All other costs to await final determination of the cause.

APPEAL DISMISSED.

      . Homestead was the umnsured/underinsured motorist insurance carrier of Schurr's employer.

      . The entirety of La. C.C.P. art. 1915(A) provides:
      A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
      (1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
      (2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
      (3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
      (4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
      (5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
      (6) Imposes sanctions or disciplinaty action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).


author: MICHAEL E. KIRBY, Judge.

text:
    George A. FARBER, Sr., M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
    No. 2009-CA-0301.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 2009.
    John Pieksen, Jr., John Pieksen & Associates, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Richard C. Stanley, Jennifer L. Thornton, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

| plaintiff, George A. Farber, Sr., M.D., appeals the trial court’s dismissal of his action as premature, without prejudice. Defendant, Louisiana State Board of Medical Examiners (the “Board”) answers the appeal, arguing that the trial court erred in denying its exceptions of lack of subject matter jurisdiction and no cause of action.

A former patient filed a complaint against Dr. Farber, a dermatologist, resulting in administrative proceedings before the Board. On September 8, 2008, Dr. Farber filed a “Petition for Judicial Review of Administrative Action and Application for Emergency Stay of Said Proceedings” in Civil District Court for the Parish of Orleans. In that petition, Dr. Farber sought review of certain Board rulings including, but not limited to: 1) the denial of Dr. Farber’s Motion to Reset Hearing; 2) the denial of Dr. Farber’s Motion to Dismiss; and 3) the grant of the Board’s Motion to Strike regarding Dr. Farber’s intention to depose the Board’s Chief Investigator and call for her live testimony at hearing. Dr. Farber also 12requested a stay of the ongoing administrative proceedings against him until the judicial review of this matter is exhausted.

On September 9, 2008, the trial court granted Dr. Farber’s Petition for Judicial Review of Administrative Action and Application for Emergency Stay of Said Proceedings. The court stayed the administrative proceedings involving Dr. Farber for at least 30 days, “and until such time as discovery is completed, after which, the date for the administrative hearing in this matter shall be established.”

On the same date that the stay order was issued, the Board filed exceptions of lack of subject matter jurisdiction and no cause of action. On September 16, 2008, Dr. Farber filed a motion for sanctions against the Board, seeking an award of attorney’s fees, costs and “other appropriate relief.” On October 24, 2008, Cecilia Mouton, M.D., the Board’s Director of Investigations, filed a cross-motion for sanctions against Dr. Farber “for bringing a frivolous lawsuit to secure an order that was patently unlawful.”

On December 12, 2008, Dr. Farber and the Board filed a Joint Motion to Reset Hearing on Plaintiffs Petition for Judicial Review. In response to that motion, the trial court, on December 15, 2008, ordered that the hearing on Dr. Farber’s Petition for Judicial Review be continued without date pending the trial court’s ruling on the Board’s exceptions. On January 13, 2009, the trial court rendered judgment denying the Board’s exceptions of lack of subject matter jurisdiction and no cause of action. The court further ordered this action dismissed |sas premature, without prejudice. Dr. Farber appealed the trial court judgment, and the Board answered the appeal as to the denial of its exceptions.

On appeal, Dr. Farber argues that the trial court erred in dismissing his action as premature. In its answer to the appeal, the Board argues that the trial court erred in denying its exceptions of lack of subject matter jurisdiction and no cause of action.

The trial court dismissed Dr. Far-ber’s action as premature, even though the Board did not raise the exception of prematurity. La. C.C.P. article 926 lists the objections that may be raised through the dilatory exception. Included in this list is the exception of prematurity. La. C.C.P. article 926 B states that “[a]ll objections which may be raised through the dilatory exception are waived unless pleaded therein.” La. C.C.P. article 926 does not allow a trial or appellate court to raise the exception of prematurity on its own motion. Because the exception of prematurity was not specifically pled, it was waived by the Board. See, Louisiana State Board of Medical Examiners v. Bertucci, 593 So.2d 798, 801 (La.App. 4 Cir.1992). Therefore, the trial court erred in the portion of its judgment that essentially grants an exception of prematurity supplied on its own motion.

However, in considering the Board’s argument that the trial court erred in denying its exceptions of lack of subject matter jurisdiction and no cause of action, we note that these exceptions are based on prematurity grounds. The Board argues that the trial court has no jurisdiction over this matter and Dr. Far-ber has no cause of action for judicial review at this time because he has not exhausted all |4administrative remedies and the Board has not yet issued a final decision or order in his case. The Board cites La. R.S. 37:1285 G of the Louisiana Medical Practice Act, which provides as follows:

Notwithstanding any other law to the contrary, no judicial order staying, enjoining, or continuing an adjudication proceeding before, or a preliminary, procedural or intermediate decision, ruling, order, or action of, the board shall be effective, or issued to be effective, whether pursuant to R.S. 49:964 or otherwise, prior to the exhaustion of all administrative remedies and issuance of a final decision or order by the board.

In this case, the Board has not issued a final decision or order in the adjudication proceeding involving the complaint against Dr. Farber. Therefore, this matter is not ripe for judicial review.

La. R.S. 37:1285 H states:

No order staying or enjoining a final decision or order of the board shall be issued unless the district court finds that the applicant or petitioner has established that the issuance of the stay does not:
(1) Threaten harm to other interested parties, including individuals for whom the applicant or petitioner may render medical services; or
(2) Constitute a threat to the health, safety, and welfare of the citizens of this state.

(Emphasis ours.)

The provisions of La. 37:1285 H are not applicable in this matter at this time because the Board has not yet issued a final decision or order in Dr. Farber’s case. Once a final decision or order has been issued by the Board in the adjudication proceeding, Dr. Farber can seek judicial review of that ruling. Until that time, Dr. Farber cannot state a valid cause of action for judicial review.

|BWe find no merit in Dr. Farber’s argument that the Board’s exceptions were previously denied in the trial court order of September 9, 2008. That order did not mention the Board’s exceptions.

Accordingly, we find that the trial court erred in denying the Board’s exception of no cause of action. We hereby render judgment granting the Board’s exception of no cause of action, and dismiss Dr. Farber’s action, without prejudice. Because we are granting the Board’s exception of no cause of action, the Board’s argument that the trial court erred in denying its exception of lack of subject matter jurisdiction is moot.

REVERSED AND RENDERED.