author: Judge Joy Cossich Lobrano

text:
    Ella J. ROYAL, ON BEHALF OF the Minor Children, Keviyon Antoinette MOTT and Tre’Juan Anthony Royal v. Juan S. BLANCH, M.D., Lakeland Medical Center, L.L.C., and Its Insurer, Health Care Indemnity, Inc., and Louisiana Patients’ Compensation Fund Ella J. Royal, on Behalf of the Minor Children, Keviyon Antoinette Mott and Tre’Juan Anthony Royal v. Juan S. Blanch, M.D., Lakeland Medical Center, L.L.C., and Its Insurer, Health Care Indemnity, Inc., and Louisiana Patients’ Compensation Fund
    NO. 2016-CA-1215, NO. 2016-CA-1216
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 14, 2017

      Roy A. Raspanti, 110 Veterans Memorial BouleVard, Suite 360, Metairie, LA 70005-4930, COUNSEL FOR PLAINTIFF/APPELLANT
    Franklin D. Beahm, Jeremy Robichaux, BEAHM & GREEN, LLC, 145 Robert E. Lee Boulevard, Suite 408, New Orleans, LA 70124-2552, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Madeleine.M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

hln this medical malpractice case, plaintiff/appellant, Ella J. Royal, on behalf of the minor children Keviyon Antoinette Mott and Tre’Juan Anthony Royal (collectively “the Royals”), appeals the January 4, 2016 judgment of the district court rendering judgment in favor of appellee, Lakeland Medical Center, LLC (“Lake-land” or the “hospital”), and its insurer, Health Care Casualty Insurance, and dismissing all of the Royals’ claims with prejudice. For the reasons that follow, we affirm.

This litigation arises from the March 31, 2003 triage of Wonica Royal, who died on April 1, 2003, from a pulmonary embolism (“PE”) after'she was discharged from the hospital. On March 31, 2003, Wonica Royal presented to the hospital emergency room, at which time that there was no nurse-at the triage desk. Instead, Dr. Juan Blanch (“Dr. Blanch”), an emergency room physician, was at the desk and 'performed the triage assessment himself. Dr. Blanch did not document in any medical record that a pulse oximetry test was performed during triage or the |2results of such test. Pulse oximetry is' a test used to measure the oxygen saturation level of the blood.

The case proceeded to a medical review panel. On May 25,2005, the medical review panel found that the hospital failed to comply with the appropriate standard of care because there was no record of a pulse oximetry reading in the medical record and this testing should have been performed by the hospital, and if not by the hospital, then testing should have been ordered by Dr. Blanch. According to the panel, “[a]s to Dr. Blanch, there was no documentation on the chart, the patient’s respiratory rate was not addressed adequately, and he did hot request a pulse oximetry reading.” The panel also found that Wonica Royal’s chances of survival would have been improved had a PE been diagnosed or suspected during the emergency room visit of March 31,2003.

On July 13, 2005, Ella J. Royal, in her capacity at tutrix for Wonica Royal’s children, filed a petition for damages, raising claims of medical malpractice against the hospital, its insurer, Dr, Blanch, and the Louisiana Patients’ Compensation Fund. The nurse who allegedly left the triage desk was not named as a defendant in' the lawsuit. The Royals argue that these health care providers are bound by the medical maxim “not charted, not done,” meaning that because pulse oximetry testing was not documented in Wonica Royal’s medical records, this testing was |snot done. The, Royals contend that if pulse oximetry testing had been done, the testing would have improved Wonica. Royal’s chances of survival.

The case proceeded to a bench trial before the district court, which took place over two days, March 11,2013 and December 14, 2015. At the end of the first day of trial, the Royals and the hospital reached a settlement, which was ultimately not finalized due to subsequent objection by the Royals’ undertutrix. Following a lengthy dispute regarding enforcement of settlement, the second day of trial commenced more than two years later. The only remaining defendant at the time of trial was the hospital, as the Royals had settled their claims with Dr. Blanch and the Louisiana Patients’ Compensation Fund before trial.

The only witness called by the Royals during their case in chief was Ella Royal, Lakeland called Dr. Blanch, Dr. Gerald Cvitanovich, and Dr. Kevin Jordan as witnesses, and each physician was tendered and accepted by the district court as an expert in emergency medicine without objection from the Royals.

Dr. Blanch testified that he was not an employee of Lakeland; rather, he worked at Lakeland as an independent contractor under the Schumacher Group, which had a contract with the hospital and would in turn contract with individual physicians to provide care at the hospital.

|4On March 28, 2003, Dr. Blanch first treated Wonica Royal when she came to the emergency room at the hospital complaining of shortness of breath and fever. Dr. Blanch did not perform the triage assessment at that time, as it was done by a registered nurse who documented Woni-ca Royal’s oxygen saturation levels.

On March 31, 2003, Wonica Royal returned to the Lakeland emergency room at approximately 7:30 a.m. Dr. Blanch testified that he had an independent recollection of March 31, 2003 “[b]ecause it was an unusual day and then, of course, what happened” to Wonica Royal. Generally, Lake-land was not a busy hospital and was not busy that morning. At that time, staffing was reduced because of the hospital’s impending closure. There was only one nurse, “James,” scheduled that morning, and he and Dr. Blanch were the only two health care providers in the emergency room. James asked Dr. Blanch to monitor triage so that James could go to the hospital cafeteria to get coffee, and Dr. Blanch agreed.

Dr. Blanch was at the triage desk when Wonica Royal presented to the emergency room, complaining of coughing to the point of vomiting. Dr. Blanch testified that there was a machine in triage that tested blood pressure, pulse, temperature, and oxygen saturation, and that he used this machine to perform this testing on Wonica Royal during triage.

Dr. Blanch testified that Wonica Royal’s oxygen saturation level is not included in her hospital record because Dr. Blanch did not have access to the computer at the triage desk. Dr. Blanch testified that there was no doubt in his mind that he tested her oxygen saturation level. He explained that her oxygen [^saturation level would have been greater than ninety-five percent (95%), because had it been less, Dr. Blanch’s course of treatment would have been different. He testified that, in the event of a reading below 95%, he would have ordered an arterial blood gas test. However, based on the results of her pulse oximetry test, he only ordered a blood count, chemistry count, and chest x-ray.

When James returned to triage, he became the treating nurse. Dr. Blanch did not remember seeing James take a pulse oximetry reading. Wonica Royal was administered breathing treatments and antibiotics, and was discharged from the hospital the same day in “good condition” with instructions to follow up with her primary physician in two days.

Dr. Blanch was questioned by counsel for the Royals regarding why Dr. Blanch did not include in his submission to the medical review panel that he performed pulse oximetry testing on March 31, 2003. Dr. Blanch testified that he told his attorney that he performed the pulse oximetry test, “no one asked” Dr. Blanch about the test, and he did not know what rules his attorney was bound by before the medical review panel. Dr. Blanch never spoke to the panel. He testified that he saw the written submission his lawyer prepared and presented to the panel. Dr. Blanch’s submission to the panel was not introduced into evidence at trial.

According to Dr. Blanch, the purpose of triage is to assess the severity of illness by evaluating the patient’s vital signs. Dr. Blanch testified that, typically, triage was a step before the doctor’s visit; however, a doctor can triage a patient as well as a nurse. Dr. Blanch testified that it was the hospital’s responsibility to have | fia medical provider at triage and that by having Dr. Blanch at triage, Lakeland had fulfilled that responsibility. According to Dr. Blanch, the hospital was not negligent in having no nurse at the triage desk because a health care provider, Dr. Blanch, was at the desk.

Dr. Blanch testified that it would be negligent not to do the pulse oximetry test; however, he disagreed with the panel that he was negligent by failing to record that the test was done. According to Dr. Blanch, “not charted, not done” is a saying associated with billing, admonishing health care providers to document the treatment and testing they perform, but it is not the standard of care. Dr. Blanch testified that whether the test was done is the standard of care. He stated that doctors are trained to look for what is different or abnormal about a patient’s presentation and that it is not possible to record everything. He agreed, however, that providers are held “accountable for not writing it down.” Dr. Blanch testified that his normal practice was to record the pulse oximetry results on a “T-sheet” in the appropriate slot. He did not do this during Wonica Royal’s triage because he forgot.

Dr. Blanch testified that a PE is a blood clot that develops elsewhere in the body and travels to the lungs through the bloodstream. Depending on the size of the PE, symptoms can range from nothing to catastrophic respiratory and eardio pulmonary failure. Dr. Blanch testified that on March 28, 2003, Wonica Royal’s symptoms were consistent with an infection, not a PE. On March 31, 2003, her symptoms were consistent with progression of sinusitis and bronchospasm to |7bronchitis and not a PE. Dr, Blanch explained that infiltrate was present on her chest x-ray, but that this was associated with the respiratory system and not blood vessels. Dr. Blanch testified that, in his medical opinion, Woni-ca Royal did not have a PE when she was treated at the hospital on March 28 or 31, 2003.

, Based on Dr. Blanch’s review of Wonica Royal’s autopsy, Dr. Blanch’s medical opinion was that the PE, was an acute event that would not have been detectable at the time of her emergency room visit. Dr. Blanch testified that James’ absence at the time of triage did not cause or contribute to Wonica Royal’s death. He further testified that he knew Wonica Royal’s pulse oximetry test results at the time he took the test. According to Dr. Blanch, his non-recording of the test results did not cause or contribute to Wonica .Royal’s death.

Dr. Cvitanovich, who was one of the three physicians on the medical review panel, was also called as a witness by Lakeland. According to Dr. Cvitanovich’s testimony, the medical review panel’s basis for finding against the hospital was that there was insufficient triage as no pulse oximetry-was reflected in the chart. The panel concluded, because there was no pulse oximetry test reflected in the chart, that it was not done. Dr. Cvitanovich testified that, if he had known that Dr. Blanch had performed the test, then this information would háve changed his opinion as to the liability of the hospital.

According to Dr. Cvitanovich, because Dr. Blanch performed the test, Dr. Blanch was the one responsible for recording it. Dr. Cvitanovich attested that “not charted, not done” is a term in the legal community that doctors use as a teaching |stool for the premise that if something is not recorded, “people are going to assume that you didn’t do it.”.Dr, Cvitanovich testified that “not charted, not done” is not the standard of care but is associated with billing, in that it is difficult to obtain payment without documentation of treatment.

Dr. Cvitanovich stated that the .purpose of triage is to perform an initial patient assessment and .determine priority of treatment of patients. Dr. Cvitanovich read Dr. Blanch’s deposition testimony and believed Dr, Blanch’s account of the March 31,' 2003 triage, because Dr. Cvitanovich could not think of a reason for Dr. Blanch to lie. Dr. Cvitanovich found it believable that the. pulse oximetry was the one test result not recorded in triage. Dr. Cvitano-vich explained that at Lakeland, a vital sign monitor on wheels is used, which allows the person performing triage to multitask testing blood pressure, pulse oxime-try, heart rate, and temperature. If the patient is disconnected from the vital sign monitor, all the readings will remain recorded on the machine except for the pulse oximetry because the pulse oximetry is a continuing, dynamic measurement. Based on review of the autopsy report, Dr, Cvita-novich was of the opinion that Wonica Royal died from acute pulmonary embolism.

Dr. Jordan, the hospital’s expert witness in the field of emergency medicine, testified that triage is the sorting pf patients by rapid assessment to prioritize which patients should be seen first depending on the severity of illness. Traditionally, nursing staff performs triage, but Dr. Jordan has also triaged patients. Dr. Jordan was familiar with the vital sign monitor used by Dr. Blanch in triage and agreed Lwith Dr. Cvitanovich’s testimony that, if the patient is removed from the machine, the pulse oximetry reading disappears. Dr. Jordan agreed with Dr. Blanch’s testimony that, based on a normal pulse oximetry reading, there was a particular pathway of treatment that would follow, and based on Won-ica Royal’s treatment, it was likely that her. pulse oximetry reading at triage was normal.

Dr. Jordan described the saying “not charted, not done” as an axiom or admonition in physicians’ training about the importance of documentation. He testified that the saying is not related to whether certain testing or treatment was actually done.

On rebuttal, the Royals called Dr. Gerald Liuzza, who was tendered and accepted as an expert in forensic pathology without objection. Dr. Liuzza testified that, based on his review of Wonica Royal’s autopsy, if at the time of the emergency room visit the pulmonary emboli were in the same condition as they appeared at the time of autopsy, then it was likely that the pulse oximetry results in the emergency room would have been abnormally low. Dr. Liuz-za testified that Wonica Royal’s chances of survival would have been somewhat improved had pulse oximetry testing been done.

Dr. Liuzza testified that he was trained as a physician to document all significant medical information. He was unwilling to state that testing was not done, simply because it was not recorded; however, he would have to be shown “some other good evidence to state that it in fact was.”

I inThe hospital objected to subsequent questioning by the Royals regarding whether Dr. Liuzza considered “not charted, not done” the standard of care. The district court sustained the objection, and the Royals proffered Dr. Liuzza’s testimony that “not charted, not done” is the standard to which health care providers adhere.

On January 4, 2016, the district court rendered judgment dismissing the Royals’ claims with prejudice. The district court provided written reasons for judgment, in relevant part, finding that: the Royals failed to show that the hospital owed a duty to perform and document the pulse oximetry testing on arrival; Dr. Blanch assumed the duty to cover the triage desk during the time he treated Wonica Royal; Dr. Blanch was an independent contractor and not an employee of the hospital; and any negligence by Dr. Blanch, a non-employee, cannot be imputed to the hospital.

The Royals appealed, arguing that the district court erred as follows:

1. in concluding that Dr. Blanch performed and recorded a pulse oxime-try test on Wonica Royal on March 31, 2003;
2. in concluding that Dr. Blanch’s testimony overcame the fact that neither Lakeland nor Dr. Blanch properly documented said oximetry reading on the chart;
3. in concluding that Lakeland did not owe a duty to Wonica Royal to perform and document a pulse oximetry test upon arrival; and
4. in dismissing the Royals’ claims.

lnRegarding the standard of review on appeal, the Royals contend that the district court’s findings of fact are subject to de novo review because the district judge who rendered judgment did not preside over the first day of trial. Thus, according to the Royals’ argument, the district court’s findings of fact should not be afforded the same level of deference they would as if the same judge had presided over the entire trial and heard all testimony in person. We disagree. The Louisiana Supreme Court rejected this argument in Shephard on Behalf of Shepard v. Scheeler, 96-1690, pp. 14-15 (La. 10/21/97), 701 So.2d 1308, 1316-17, where the district judge who presided over the trial and observed demeanor evidence died prior to rendering judgment. Even though a different district judge decided the matter, the Supreme Court found “that the proper allocation of trial and appellate functions between the respective courts are better served by the heightened standard of manifest error review.” Id., 96-1690 at p. 15, 701 So.2d at 1317.

Whether alleged malpractice constitutes negligence is a question for the factfinder; thus, the manifest error rule applies to findings of fact in medical malpractice actions. Stamps v. Dunham, 2007-0095, p. 4 (La. App. 4 Cir. 9/19/07), 968 So.2d 739, 743.

A court of appeal may not set aside the [factfinder’s] finding of fact in absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through DOTD, 617 So.2d 880 (La. 4/12/1993), citing Rosell v. ESCO, 549 So.2d 840 (La. 1989). The Louisiana Supreme Court has provided a two-prong test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart, citing Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). The issue to be resolved by the reviewing court is not whether | iathe trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id.
Id., 2007-0095 at p. 3, 968 So.2d at 742-43.

This Court explained the burdens of proof applicable to medical malpractice actions against hospitals in Wansley ex rel. Wansley v. ABC Ins. Co., 2011-0592, pp. 8-9 (La. App. 4 Cir. 11/16/11), 81 So.3d 725, 730 as follows:

“To prove medical malpractice, the plaintiff must show, by a preponderance of the evidence, the applicable standard of care, a breach of that standard of care by the defendants, causation and damages.” Taplin v. Lupin, 97-1058, p. 3 (La. App. 4 Cir. 10/1/97), 700 So.2d 1160, 1161 (La. Ct. App. 1997)(citing Bradford v. O’Neill, 95-2449 (La. App. 4th Cir. 11/20/96), 688 So.2d 33, writ denied, 97-0803 (La. 5/9/97), 693 So.2d 769. This is the four-pronged burden of proof that plaintiffs in medical malpractice suits must meet. Furthermore, we recently explained that in a medical malpractice lawsuit against a hospital, a plaintiff has the burden of showing that the hospital personnel negligently departed from the recognized standard of care afforded by hospitals in the area for the particular malady involved. Miller v. Tulane Univ. Hosp., 2009-1740, p. 5 (La. App. 4 Cir. 5/12/10), 38 So.3d 1142, 1145 (citing Dean v. Ochsner Medical Foundation Hospital, 99-466, p. 5 (La. App. 5 Cir. 11/10/99), 749 So.2d 36, 39. Lastly, our Court explained that expert testimony is necessary to establish the standard of care and whether that standard was breached, unless the negligence complained of was so obvious that a layperson can infer negligence without the guidance of expert testimony. Id. [Emphasis added]. Obvious examples of negligence, as set forth by the Supreme Court in Pfiffner v. Correa, 94-0992, 94-0963, 94-0924, p. 9 (La. 10/17/94), 643 So.2d 1228, 1233, are fracturing a leg during an examination, amputating the wrong limb, or leaving a sponge in a patient’s body. Id.

Where expert witnesses disagree as to the standard of care, the factfinder’s determination is given a great deal of deference. McCarter v. Lawton, 2009-1508, pp. 4-5 (La. App. 4 Cir. 7/21/10), 44 So.3d 342, 347. “The determination of an expert’s credibility is also a factual question subject to the manifestly erroneous/clearly wrong standard of review.” Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1277 (La. 1991). “The expert’s qualifications and 1 ^experience, as well as the facts, determine the weight to be given the expert’s testimony.” Descant v. Administrators of Tulane Educ. Fund, 95-2127, p. 16 (La. App. 4 Cir. 1/21/98), 706 So.2d 618, 628. “When a factfinder chooses between or among competing opinions of expert witnesses, we almost never find manifest error in that choice.” McCarter, 2009-1508 at p. 5, 44 So.3d at 347.

“In a medical malpractice action, the assessment of factual conflicts, including those involving the contradictory testimony of expert witnesses, lies within the province of the trier of fact.” Hubbard v. State, 2002-1654, p. 11 (La. App. 4 Cir. 8/13/03), 852 So.2d 1097, 1103. “Where medical experts express differing views, judgments and opinions, great deference is given to the factfinder’s determinations, which should not be reversed on appeal unless the reviewing court concludes that no reasonable factual basis exists ' for them.” Id. “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Madison v. Ernest N. Morial Convention Center-New Orleans, 2000-1929, pp. 18-19 (La. App. 4 Cir. 12/4/02), 834 So.2d 578, 590.

In this appeal, the Royals raise three main arguments: (1) that Dr. Blanch was not credible; (2) that the district court failed to apply the appropriate standard of care; and (3) that the hospital should have been precluded from raising a defense at trial that was not considered by the medical review panel.

| uRegarding Dr. Blanch’s credibility, the Royals contend that Dr. Blanch’s trial testimony is inconsistent with his position before the medical review panel, where he failed to indicate that he performed the pulse oximetry test. The Royals argue that the first time that Dr. Blanch claimed that he performed the pulse oximetry test was in his 2011 deposition, six years after the panel rendered its decision. According to the Royals’ argument, Dr. Blanch’s testimony also conflicts with the medical records dated March 31, 2003, which do not reflect a pulse oximetry reading. The Royals also contend that Dr. Blanch was motivated.to give false testimony-to clear his name because he disagreed with the medical review panel’s decision.

Lakeland argues that the district court had no need to'weigh Dr. Blanch’s testimony that he performed the pulsé oximetry test but failed to document it, because there was no countervailing evidence refuting this testimony. The hospital also contends that the district court was not manifestly erroneous in weighing Dr. Blanch’s testimony against the medical review panel’s findings and crediting more weight to Dr. Blanch’s testimony.

Dr. Blanch’s submission to the medical review panel was not introduced into evidence at trial and is not a part of the record before this Court. We are thus unable to review it. Nevertheless, Dr. Blanch testified that his submission to the medical review panel was prepared by his attorney, that he reviewed the submission prepared by his attorney, that he informed his attorney that he had performed the pulse oximetry test, and that he never spoke to the panel about the |1flclaims against him. It is undisputed that Dr. Blanch did not document that a pulse oximetry test was performed or any corresponding test results in the pertinent medical records, Nevertheless, Dr. Blanch testified to his recollection of his encounter with Wonica Royal and described his use of a vital sign monitor during triage to perform multiple patient intake tests at once, including pulse oximetry. Drs. Cvita-novich and Jordan testified as to their familiarity with the vital sign monitor and explained the mechanism by which it records other results, while not maintaining the pulse oximetry reading once the patient is removed from the machine. Dr. Jordan also testified that Dr. Blanch’s treatment on March 31, 2003, was consistent with a normal pulse oximetry reading.

The determination of an expert’s credibility and the assessment of contradictory testimony of expert witnesses are factual questions to be resolved by the factfinder. Hubbard, 2002-1654 at p. 11, 852 So.2d at 1103. Great deference is afforded factfinder’s determinations, which should not be reversed on appeal unless the reviewing court concludes that no reasonable factual basis exists for those determinations. Id. Dr. Blanch was tendered and accepted as an expert witness without objection. The district court was tasked with evaluating his credibility when considered alongside the medical review panel decision and the testimony of the other expert witnesses. Considering the evidence of record, we cannot say that the district court’s finding, that Dr. Blanch performed the pulse oxi-metry test but failed to record it, was clearly wrong.

|1f,Next, the Royals argue that the district court failed to apply the following standards of care to this claim: (1) “not charted, not done” and (2) duty to have a nurse at the triage desk.

First, the Royals maintain that the district court should have followed the maxim “not charted, not done” to find that, because pulse oximetry testing was not documented in Royal’s medical records, this testing was not done. The Royals cite to Smith v. State Through Dep’t of Health & Human Res., 517 So.2d 1072, 1076 (La. App. 3 Cir. 1987), writ granted, 519 So.2d 107 (La. 1987), and aff'd sub nom. Smith v. State through Dep’t of Health & Human Res. Admin., 523 So.2d 815 (La. 1988), in which the Louisiana Third Circuit Court of Appeal refers to expert testimony using the phrase “not charted, not done.” The Smith court concluded that a patient was insufficiently monitored by hospital staff, relying on a lack of documentation of care and physician testimony that EKG testing should have been performed sooner. Id. However, the Smith case does not equate the phrase “not charted, not done” with the standard of care; rather, the court interpreted the evidence that the “nurses did not specifically recall the patient, and thus the best evidence of their actions would have been the documentation on the chart.” Id.

We find no reported case that equates the phrase “not charted, not done” with the standard of care. None of the expert witnesses testified at trial that this maxim is the standard of care for any health care provider. Drs. Blanch and 117Cvitanovich both testified that “not charted, not done” is not the standard of care. Dr. Jordan testified that the phrase “not charted, not done” is unrelated to whether certain medical testing was actually done. The statements by Dr. Liuzza, agreeing with the Royals’ counsel that this maxim is a “standard by which healthcare providers conduct themselves,” were proffered and not considered by the fact finder at trial. The Royals did not raise the exclusion of this testimony as error, and we do not consider the proffered testimony here. Moreover, we decline to interpret a doctor’s lapse in documentation of testing as absolutely conclusive that the testing was not done. The Royals cite to no law, and we find none, that permits us to follow such a standard.

Second, the Royals argue that Lakeland was negligent because its nurse left the triage desk and entrusted triage to Dr. Blanch. According to the Royals’ argument, the hospital had a duty to staff a nurse at the triage desk, and the hospital breached that duty. Under the facts of this case, we find the Royals’ argument unsupported by the expert testimony or the laws of this State. Dr. Blanch testified that the hospital’s responsibility was to have a medical provider at the triage desk and that the hospital fulfilled its responsibility by having Dr. Blanch at the desk. Drs. Cvita-novich and Jordan testified that the purpose of triage is to assess and sort patients in such a manner to treat the most urgent conditions earliest. Drs. Blanch and Jordan testified that while a nurse typically’ performs triage assessments, a doctor can also triage a patient. There was no evidence to refute this testimony. Further, we have identified no statute or jurisprudence of this State prohibiting a |1snurse from delegating his or her triage duty to a doctor. The Royals’ arguments lack merit.

Finally, the Royals argue that the hospital should have been barred from raising its “autopsy defense” at trial. When questioning Drs. Blanch and Cvitanovich, counsel for the hospital sought to elicit medical opinion testimony that, based on Dr. Blanch’s and Dr. Cvitanovich’s review of the autopsy, Wonica Royal’s PE was an acute event that would not have been detectable at the time of her emergency room visit. According to the Royals’ argument, this issue was not presented to the medical review panel and was therefore an improper defense at trial.

None of the submissions to the medical review panel were admitted into evidence at trial, and accordingly they are not part of the record on appeal. The Royals cite to no law, and we find none, to support the Royals’ argument that Dr. Blanch’s and Dr. Cvitanovich’s testimony regarding the autopsy was not properly before the lower court. This argument is without merit.

Accordingly, for the reasons stated above, we affirm the January 4, 2016 judgment of the district court.

AFFIRMED

      . "Pulse Oximetry” (May 22, 2017), available at http://www.hopkinsmedicine.org/health library/test_procedures/pulmonary/oximetry_ 92,P07754/. See La. C.E. art. 201(B)(2). See also La. R.S. 40:1083.1(D) (" ‘Pulse Oximetry Screening’ means a noninvasive test that estimates the percentage of hemoglobin in blood that is saturated with oxygen...")

      . See Royal v. Blanch, 2014-0711 (La. App. 4 Cir. 9/5/14), on reh’g (10/6/14) (unpub.).

      , Ella Royal testified as a fact witness regarding her knowledge of Wonica Royal’s death and the damages sustained by Wonica Royal’s children. She was not tendered as an expert witness and did not provide any medical testimony.

      .Dr. Blanch was also accepted as an expert in the field of internal medicine.

      . The Royals do not raise Dr, Blanch's independent contractor status or vicarious liability of the hospital on appeal.

      . The Royals also cite to Williams v. Dauterive Hosp., 771 So.2d 763, 766-767 (La. App. 3 Cir. 2000) for the proposition of "not charted, not done.” However, we find no reference to that phrase in Williams; thus, the Royals’ reliance on that case is misplaced.


source: Caselaw Access Project

author: Judge Rosemary Ledet

license: Public Domain

text:
    Karla D. DAVIS and Dollie Davis v. NOLA HOME CONSTRUCTION, L.L.C., Jose Garcia and ABC Insurance Company
    NO. 2016-CA-1274
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 14, 2017

      Cesar' R. Burgos, Robert J. Daigre, Gabriel O. Mondino, George M. McGregor, BURGOS & ASSOCIATES, LLC, 3535 Canal Street, New Orleans, LA 70119-6135, Roderick “Rico” Alvéndia, ALVEN-DIA KELLY & DEMAREST, L.L.C., 909 Poydras Street, Suite 1625, New Orleans, LA 70112-4500, COUNSEL FOR PLAINTIFFS/APPELLEES
    Katie W. Myers, George B. Hall, Jr., PHELPS DUNBAR LLP, 365 Canal Street, Canal Place, Suite 2000, New Orleans, LA 70130-6534, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F, McKay, III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   Judge Rosemary Ledet

_]jThis is a suit for a breach of a construction contract and damages coupled with an insurance coverage dispute. The plaintiffs, Karla D. Davis and Dollie Davis (the “Plaintiffs”), filed suit against the general contractor, Eddie Beard, LLC (“Beard”); the subcontractor, Jose Garcia d/b/a NOLA Home Construction, L.L.C. (“NOLA Home”); and Beard’s insurer, Catlin Specialty Insurance Company (“Catlin”) (collectively the “Defendants”). From the trial court’s judgment in the Plaintiffs’ favor, Catlin appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2005, the Plaintiffs’ house located at 5155 Marigny Street in New Orleans, Louisiana (the “Property”), sustained severe damage as a result of Hurricane Katrina. Sometime thereafter, the house was demolished. The Plaintiffs secured a construction loan from JPMorgan Chase Bank, N.A, (“Chase Bank”) and began the rebuilding process. In the fall of 2008, the Plaintiffs contracted with Beard, NOLA Home, and NOLA Home’s managing agent, Mr. Garcia, for the | ^construction of new house at that location. Construction on the Plaintiffs’ house began around December 2008 with Beard as the general contractor and NOLA Home as the subcontractor. Catlin issued a commercial general liability insurance policy to Beard with an effective date of January 1, 2009.

On February 16, 2010, Beard informed Mr. Garcia that NOLA Home was in default of their contract for failing to provide licenses and proof of insurance. At the same time, Beard also notified Mr. Garcia of multiple deficiencies in the construction, as well as uncompleted work, and requested that NOLA Home take immediate remedial measures. On February 22, 2010, Beard notified Mr. Garcia that NOLA Home was terminated from the construction project for failing to provide proof of insurance and failing to correct the deficiencies.

On April 22, 2010, the Plaintiffs filed a petition for breach of contract and damages against Mr. Garcia, NOLA Home, and NOLA Home’s insurance company due to faulty construction, failure to complete construction, and failure to repair the faulty workmanship. On April 28, 2010, the Plaintiffs filed a first supplemental and amending petition adding that the defective construction and failure to complete construction caused the house to sustain further damage, rendering it uninhabitable. On May 11, 2011, the Plaintiffs filed a second supplemental and amending petition adding Beard and its unnamed insurer as defendants. On October 10, 2011, the Plaintiffs filed a third supplemental and amending petition naming Catlin as Beard’s insurer.

On January 10, 2012, Catlin filed a motion for summary judgment on the issue of coverage of the Plaintiffs’ claims. Following a hearing, the trial court granted the motion for summary judgment and dismissed Catlin with prejudice. On May 29, 2012, the Plaintiffs filed a motion for new trial, which the trial court granted. In its reasons for judgment, the trial court stated that it reversed “its earlier decision solely on the grounds that defendant [Cat-lin] failed to produce authentic evidence in the form of certified documents and/or affidavits in support of its Motion for Summary Judgment.”

On September 28, 2015, a jury trial commenced on the issues of liability and coverage. Contemporaneously, a bench trial was held on the issue of Catlin’s coverage. At the close of the Plaintiffs’ case, Catlin filed a motion for directed verdict or involuntary dismissal. Catlin argued that exclusions j(5) and j(6) (the | ¿“Exclusions”) barred coverage under its insurance policy. The trial court took the matter under advisement and ordered additional briefing.

After all the evidence was submitted, the Plaintiffs moved for a directed verdict on multiple issues. The trial court granted the Plaintiffs’ motion and found that the Property sustained damage before-July 28, 2009. The trial court took the issue of solidary liability under advisement and denied directed verdict as to the remaining issues.

On October 2, 2015, the jury returned a verdict in the Plaintiffs’ favor awarding $1,397,018.06 in damages against Beard, Mr. Garcia, and ÑOLA Home. |5On October 22, 2015, the trial court entered judgment reflecting the jury’s verdict and noted that the issue of coverage was taken under advisement. On December 10, 2015, the trial court granted Catlin’s involuntary dismissal regarding coverage. The Plaintiffs thereafter filed a motion for new trial on the involuntary dismissal of Catlin. On February 19, 2016, the matter was heard by the trial court. At the conclusion of the hearing, the trial court held as follows:

As to the motion for new trial, the Court is hereby granting the motion for new trail [sic], finding that specifically the affirmative defenses as relates to J-5 and J-6 were not raised as affirmative defenses; and therefore, Counsel didn’t appropriately avail herself of those exclusions. Then given the exclusions that were argued, the burden would have shifted to determine the damage; and there was no testimony specifically as to what damage was caused during the policy period and what damage was caused after the policy period.
So, given those things, the Court is granting a motion for new trial.

On March 7, 2016, the trial court issued it ruling granting the Plaintiffs’ motion for new trial and found coverage under Cat-lin’s policy issued to Beard. From that judgment, Catlin appealed. Finding the judgment lacked definitive decretal language, this court dismissed the appeal without prejudice and remanded the matter for further proceedings. Davis v. NOLA Home Const., LLC, 16-577 (La. App. 4 Cir. 7/29/16) (unpub.).

On September 1, 2016, the Plaintiffs filed a motion to amend the March 7, 2016 judgment. Following a hearing, the trial court, on September 28, 2016, rendered an amended judgment (the “Amended Judgment”) in the Plaintiffs’ favor and against Catlin as the insurer of Beard. This appeal followed.

LAs Catlin pointed out in its brief on appeal, the Amended Judgment failed to include proper decretal language and thus was not a final judgment. This court, therefore, ordered the parties to supplement the record with a copy of a final, appealable judgment. On May 10, 2017, the trial court issued an amended judgment entitled “Amended Final Judgment,” which the Plaintiffs submitted to this court. The Amended Final Judgment reads, in pertinent part, as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that, for the reasons stated on the record on February 19, 2016, the Motion for Directed Verdict and/or Involuntary Dismissal on behalf of Catlin Specialty Insurance Company be and hereby is denied. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there is coverage under the policy issued by Catlin Specialty Insurance Company to Eddie Beard, LLC, pursuant to the limits of that policy;
THEREFORE, JUDGMENT BE AND IS HEREBY RENDERED in favor.. of plaintiffs, Karla D. Davis and Dollie Davis against Eddie Beard, LLC, Jose Garcia d/b/a ÑOLA Home Constructors, LLC, and Catlin Specialty Insurance Company as the insurer of Eddie Beard, LLC, in the full amount of ONE MILLION ($1,000,000.00) DOLLARS together with legal interest on thát amount from the date of judicial demand until paid, and for all costs of these proceedings, which costs will'be set on motion filed by Plaintiffs. JUDGMENT IS FURTHER RENDERED in favor of plaintiffs, Karla D. Davis and Dollie Davis against Eddie Beard, LLC, Jose Garcia d/b/a ÑOLA Home Constructors, LLC in the additional amount of THREE HUNDRED THOUSAND NINETY-SEVEN THOUSAND EIGHTEEN AND 06/100 ($397,018.06) DOLLARS, together with legal interest on that amount from the date of judicial demand.

STANDARD OF REVIEW

When the issues, presented on appeal involve fact questions or mixed questions of law and fact, the manifest error standard applies; when the issues involve questions of law, the de novo standard applies. Boes Iron Works, Inc. v. Gee Cee Grp., Inc., 16-0207, p. 8 (La. App. 4 Cir. 11/16/16), 206 So.3d 938, 946, writ denied, 17-0040 (La. 2/10/17), 216 So.3d 45, p. 45, 2017 WL 744658, p.*1.Summarizing the manifest error and de novo standards, this court noted in Spencer v. Chevron Corp., 16-0174, pp. 4-5 (La. App. 4 Cir. 9/28/16), 202 So.3d 1055, 1057-58, as follows:

Appellate courts review findings of fact using the manifest error or clearly wrong standard of review. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Thus, we will not set aside a trial “court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” Id. “In order to reverse a fact finder’s determination of fact, an appellate court must ... (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.” Coutee v. Glob, Marine Drilling Co., 05-0756, p. 5 (La. 2/22/06), 924 So.2d 112, 116. We “must not re-weigh the evidence or substitute [pur] own factual findings because’ [we] would have decided the case differently.” Id. ‘Where there are two permissible views of the evidence, the fact finder’s choice . between them cannot be manifestly erroneous or clearly wrong.” Id., 05-0756, pp. 5-6, 924 So.2d at 116. “This particular standard of review, is based, in part, on the trial court’s ability to better evaluate the testimony of live witnesses, compared with an appellate court’s sole reliance upon a written record.” A.S. v. D.S., 14-1098, p. 9 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 253. “The manifest error standard of review also applies to mixed questions of law and fact.” Id., 14-1098, p. 10, 165 So.3d at 254.
When reviewing legal issues, an appellate court gives “no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record.” Banks v. New Orleans Police Dep’t, 01-0859, p. 3 (La. App. 4 Cir. 9/25/02), 829 So.2d 511, 514. “A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial.” Id.

Furthermore, the applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Pitts v. Louisiana Med. Mut. Ins. Co., 16-1232, p. 10 (La. 3/15/17), 218 So.3d 58, p. 66, 2017 WL 1041228, p.*10 (citing Davis v. Witt, 02-3102, p. 19 (La. 7/2/03), 851 So.2d 1119, 1131; and Martin v. Heritage Manor S. Nursing Home, 00-1023, p. 6 (La. 4/3/01), 784 So.2d 627, 632).

DISCUSSION

For ease of discussion, we divide our analysis of the issues presented by Catlin into the following three categories: (i) motion for new trial; (ii) coverage; and (iii) hearing on coverage.

(i) Motion for neiv trial

As noted elsewhere, the trial court cited two reasons for granting the Plaintiffs’ motion for new trial: Catlin’s failure to raise the Exclusions as affirmative defenses, and the lack of evidence differentiating the damage caused during the policy period from the damage caused after the policy period.

On appeal, Catlin contends that the trial court erred in finding that it waived its right to rely on the Exclusions since the Exclusions were not asserted as affirmative defenses. Catlin contends that evidence related to the Exclusions was introduced at trial without objection and thus its answer was enlarged to include the Exclusions. Catlin further contends that since the Exclusions were asserted in |flits motion for summary judgment, which was filed in January 2012 and re-urged in April 2013, the Plaintiffs had notice and were not prejudiced at trial.

Louisiana Code of Civil Procedure Article 1005 provides that all affirmative defenses shall be specifically pled in the answér. “Generally, an affirmative defense must be pleaded or it is waived.” Allvend, Inc. v. Payphone Commissions Co., Inc., 00-0661, p. 6 (La. App. 4 Cir. 5/23/01), 804 So.2d 27, 30 (citation omitted). If the defendant fails to specifically plead the affirmative defense, then no proof can be offered in connection with the proposed affirmative defense at issue. Dixie Savings & Loan Ass’n v. Pitre, 99-154, p. 24 (La. App. 5 Cir. 7/27/99), 751 So.2d 911, 924. More specifically, “[regarding an insurance policy, this Court has held ‘where the pleadings fail to include this defense, defendant is precluded from offering proof in connection with this exclusion.’” Royal Cloud Nine, L.L.C. v. Lafayette Ins. Co., 08-0034, p. 6 (La. App. 4 Cir. 6/11/08), 987 So.2d 355, 359 (quoting Pendleton v. Smith, 95-1805, p. 5 (La. App. 4 Cir. 5/8/96), 674 So.2d 434, 437).

In the present case, it is undisputed that Catlin failed to plead the Exclusions as affirmative defenses in its answer; rather, Catlin pled exclusions k (“Damage To Your Product”), 1 (“Damage To Your Work”), and m (“Damage To Imparted Property or Property Not Physically Injured”), and “any exclusion contained in the policy applies to preclude ’coverage” as affirmative defenses. Catlin, however, avers that the Plaintiffs stipulated at trial to the following: (1) that the work was ongoing at the timé the Catlin policy was can-celled on July 28, 2009;' and (2) that Imthe only property damage claimed was to the house itself. Catlin thus contends that since the Plaintiffs stipulated at trial to evidence related to the Exclusions, its answer was enlarged under La. C.C.P. art. 1154 to include the Exclusions.

Addressing the enlargement of pleadings, the court in Barham & Arceneaux v. Kozak, 02-2325, pp. 16-17 (La. App. 1 Cir. 3/12/04), 874 So.2d 228, 241-42, observed as follows:

Louisiana Code of Civil Procedure article 1154 provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended. LSA-C.C.P. art. 1154. However, according to the editor’s notes to Article 1154, this sentence does not contemplate the adding of an issue not pleaded, but rather allows the pleading of material facts for an issue pleaded only generally or as a legal conclusion. A timely objection to an attempt to enlarge the pleadings, coupled with the failure to move for an amendment to the pleadings, is fatal to an issue not raised by the pleadings. Barker v. Loxco, Inc., 432 So.2d 975 (La.App. 1st Cir.1983); Gar Real Estate & Ins. Agency v. Mitchell, 380 So.2d 108, 109 (La.App. 1st Cir. 1979).
For introduction of evidence to automatically enlarge the pleadings under Article 1154, the evidence admitted must not be pertinent to any other issue raised by the pleadings. If the evidence was admissible for any other purpose, it cannot enlarge the pleadings without the express consent of the opposing party. Bourque v. Koury, 95-286 (La.App. 3rd Cir.11/2/95), 664 So.2d 553, 555; Snearl v. Mercer, 99-1738 (La.App. 1st Cir.2/16/01), 780 So.2d 563, 572, writs denied, 01-1319 & 01-1320 (La.6/22/01), 794 So.2d 801. When a particular claim has not been alleged, even if evidence supporting that claim is admitted without objection, if that evidence has relevance to another issue, it cannot be said to have enlarged the |npleadings to allow the court to rule on such a claim. See Harris v. Cola, 98-0175 (La.App. 1st Cir.5/14/99), 732 So.2d 822, 825; Boudreaux v. Terrebonne Parish Police Jury, 477 So.2d 1235 (La.App. 1st Cir. 1985), writ denied, 481 So.2d 133 (La. 1986).

Id. (emphasis in original).

As the Plaintiffs point out, the stipulations relied on by Catlin relate to issues pleaded in the Plaintiffs’ petitions. The Plaintiffs thus contend that the two stipulations cannot be used to expand Catlin’s affirmative defenses when the substance of the stipulations is contained in pleadings already in the record. We agree.

The jurisprudence holds that the pleadings may be enlarged when evidence on an issue not pleaded is introduced without objection. See Greengrove Missionary Baptist Church v. Cox, 42,418, p. 7 (La. App. 2 Cir. 9/19/07), 966 So.2d 707, 712 (citing Brown v. Sambo’s of Louisiana, Inc., 403 So.2d 813 (La. App. 2d Cir. 1981); see also Sledge v. Cont’l Cas. Co., 639 So.2d 805, 819 (La. App. 2d Cir. 1994) (finding that “evidence admitted without objection automatically enlarges the pleadings only when it is not pertinent to any other issue raised by the formal assertions of a party”). Here, the Plaintiffs claim in their petition for damages that construction of their house was scheduled to be completed by April of 2010. The petition, which was filed on April 22, 2010, further alleges that the construction was still incomplete. Given that construction was incomplete in April 2010, construction on the Plaintiffs’ house was ongoing as of July 28, 2009. Furthermore, the damages sought in the Plaintiffs’ petition were for the costs and expenses of fixing the faulty work, payments made under the | ^construction contract, general damages, and attorney fees. Given the stipulations contained matters pled in the Plaintiffs’ petitions coupled with their lack of consent to the enlargement of the pleadings, Catlin failed to enlarge its answer to include the Exclusions.

Catlin further argues that the general purpose of requiring that defenses be affirmatively pleaded is to give notice of the nature of the defense and thus prevent a last minute surprise to the plaintiff. Bates v. City of New Orleans, 18-1153, 13-1587, p. 11 (La. App. 4 Cir. 3/26/14), 137 So.3d 774, 782; Allvend, 00-0661 at p. 6, 804 So.2d at 30. Since the Exclusions were raised in its motion for summary judgment, Catlin contends that the Plaintiffs had notice and were not prejudiced at trial.

In Dubois v. Fab-Con, Inc., 02-1731, pp. 5-6 (La. App. 4 Cir. 5/21/03), 848 So.2d 679, 683-84, this court observed that a statutory bar to the enforcement of an indemnity agreement was raised in opposition to motion for summary judgment rather than as an affirmative defense. This court reasoned that the better practice was to raise a statutory bar by pleading it as an affirmative defense in the answer; nonetheless, we concluded that the failure to do so did not preclude reliance upon the statute. Dubois, 02-1731 at p. 5, 848 So.2d at 683. In its reasoning, however, this court found that no objections were made in the summary judgment proceedings regarding the failure to raise the statutory bar and that the parties had “ample opportunity to argue, and [the parties had] argued, the applicability of the statute.” Dubois, 02-1731 at p. 6, 848 So.2d at 684.

| isThe present case, however, is distinguishable from Dubois, supra. A review of the record reveals that Catlin’s memorandum in support of its motion for summary judgment listed the following exclusions: j(5), j(6), k, 1, and m. Although Catlin listed the Exclusions in its memorandum, the gist of Catlin’s argument was that the Plaintiffs’ claims were barred by the “your work” exclusion. As noted elsewhere, exclusion k of Catlin’s policy bars coverage for “property damage” to “your work.” Furthermore, the record is void of any indication that the Exclusions were argued and heard by the trial court in connection with the motion for summary judgment.

In sum, exclusions to insurance contracts must be specifically pled as affirmative defenses. Cole v. State Farm, Mut. Auto. Ins. Co., 14-329, p. 3 (La. App. 3 Cir. 10/1/14), 149 So.3d 831, 833 (citing Sher v. Lafayette Ins. Co., 07-2441, p. 22 (La. 4/8/08), 988 So.2d 186, 203); see Dixie Savings, 99-154 at pp. 23-24, 751 So.2d at 924 (finding that pleading an insurance policy “in extenso” fails to meet the requirement that affirmative defenses be specifically pled). It is undisputed that Catlin failed to plead the Exclusions as affirmative defenses in its answer. Since the Exclusions were not specifically pled as affirmative, defenses, Catlin failed to appropriately, raise the Exclusions. Accordingly, the trial court was 114not manifestly erroneous in its ruling. We now examine whether the Plaintiffs provided sufficient proof to establish coverage under Catlin’s policy.

(Hi) Coverage

An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer, and the policy governs the nature of their relationship. La. C.C. art. 1983. An insurance policy, which is a contract, must be interpreted according to the general rules of contract interpretation. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, pp. 5-6 (La. 5/22/07), 958 So.2d 634, 638 (citing Reynolds v. Select Properties, Ltd., 634 So.2d 1180, 1183 (La. 1994); and La. C.C. arts. 2045-57). Furthermore, if the policy language clearly expresses the parties’ intent and does not violate a statute or public policy, the policy must be enforced-as written. Stewart Interior Contractors, L.L.C. v. Metalpro Indus., L.L.C., 07-0251, p. 6 (La. App. 4 Cir. 10/10/07), 969 So.2d 653, 658. If, however, there is any doubt or ambiguity as to the meaning of a provision in a policy, it must be construed in favor of the insured and against the insurer. Id.

Insurance policies should be construed to effect, rather than to deny coverage. Supreme Servs., 06-1827 at p. 6, 958 So.2d at 638 (citing Yount v. Maisano, 627 So.2d 148, 151 (La. 1993)). Insurers, however, may. limit their liability and impose reasonable conditions or limitations upon their insureds unless a statute or public policy dictates .otherwise. Supreme Servs., 06-1827 at p. 6, 958 So.2d at 638-39 (citing Reynolds, 634 So.2d at 1183; Livingston, Parish Sch. Bd. v. Fireman’s Fund American Ins. Co., 282 So.2d 478 (La. 1973); Oceanonics, Inc. v. Petroleum Distributing Co., 292 So.2d 190 (La. 1974)). Furthermore, it is well-settled that “[although the insured bears the burden of proving a policy of insurance affords coverage for an incident, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy.” Jones v. Estate of Santiago, 03-1424, p. 12 (La. 4/14/04), 870 So.2d 1002, 1010 (citing Doerr v. Mobil Oil Corp., 00-0947, p. 5 (La. 12/19/00), 774 So.2d 119, 124, modified on other grounds on reh’g, 00-0947 (La. 3/16/01), 782 So.2d 573); see Duvio v. Specialty Pools Co., LLC, 15-0423, p. 23 (La. App. 4 Cir. 6/16/16), 216 So.3d 999, p. 1015, 2016 WL 3348855, p. *13 (citing Davis v. Allstate Prop. & Cas. Ins. Co., 13-0244, p. 4 (La. App. 4 Cir. 11/27/13), 129 So.3d 811, 814) (finding that the insurer bears the burden at trial of proving the exclusion applies).

Catlin’s policy requires that the property damage occur during the policy period. More specifically, Section (I)(l)(c) of Catlin’s policy provides that it applies to “property damage” which occurs during the policy period and “any continuation ... of that... ‘property damage’ after the end of the policy period.” Furthermore, Section (V)(17)(a) defines “property damage” as “[p]hysical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it.”

| u;On appeal, the following three facts are undisputed: (1) construction began on the Plaintiffs’ house in December 2008; (2) Catlin’s policy went into effect on January 1, 2009; and (3) Beard cancelled its policy on July 28, 2009. Catlin’s policy was thus only in effect for a six month period. Furthermore, the trial court granted a directed verdict on the issue that the Plaintiffs’ house sustained damage before July 28, 2009, which neither Beard nor Catlin appealed.

At trial, Joseph Davis (Karla Davis’ brother and Dollie Davis’ son) testified that he viewed the Property during different stages of construction. Joseph Davis identified multiple photographs of the Plaintiffs’ house—including the foundation, ceiling joist, doors, carport, flooring, ceilings, balcony area, and air conditioning structure—-which were submitted into evidence. The photographs were taken during construction in 2009.

Mr. Garcia, NOLA Home’s managing agent, testified that construction of the foundation was completed by February 2009 and that the house was framed by June 2009. Mr. Beard testified that he notified NOLA Home regarding multiple structural defects in the foundation of the house that existed since construction started—including an upstairs wall that was sagging and dips in floors.

Podromus Dagoglou, the Plaintiffs’ expert in construction and construction practices, testified that he observed various improper construction practices and the |17use of improper materials in the construction of the Plaintiffs’ house. For instance, Mr. Dagoglou testified that he noticed a crack in the ceiling. When he entered the attic above the crack, he observed the lack of a support column underneath the ceiling joist as called for in the construction plans. Mr. Dagoglou further testified that this support column should have been installed during the framing process. According to Mr. Dago-glou, the failure to install the support column causes the double ceiling joists to fail almost immediately, thereby causing the sheetrock to crack.

Mr. Dagoglou testified that he reviewed the construction plans for the Plaintiffs’ house and noted that they called for double floor joists under the walls. Although he was unable to determine whether double floor joists were present, he testified that the failure to use them would cause sagging of the floor joists underneath the supporting wall structure, which would occur within a very short period of time.

Based on the evidence submitted, the record supports a finding that the Plaintiffs established that there was physical injury to the Property before July 28, 2009, the cancellation date of the policy. See Iberia Par. Sch. Bd. v. Sandifer & Son Const. Co., Inc., 98-319 (La. App. 3 Cir. 10/28/98), 721 So.2d 1021, 1023 (quoting William S. McKenzie and H. Alston Johnson III, 15 La. Civ. Law Treatise, INSURANCE LAW AND PRACTICE § 183, p. 370 (1996)) (noting that “[i]f the roof leaks or the wall collapses, the resulting property damage triggers coverage under an ‘occurrence’ basis policy, even if the sole cause is improper construction and the only damage is to the work performed by the contractor.”). Given that Section (I)(1)(c) of Catlin’s policy affords coverage for property damage that continued even after the end of the policy period, coupled with the evidence that the Plaintiffs’ house sustained damages during the policy period, the trial court properly found Catlin’s policy provided coverage. The burden, therefore, shifted to Catlin to prove the applicability of a policy exclusion that would bar recovery. See Junes, supra; Duvio, supra. According to Catlin, coverage is barred under the Exclusions. As discussed above, Catlin failed to plead the Exclusions as affirmative defenses in its answer. Given the lack of evidence that coverage was barred by any other exclusion in the policy, Catlin failed to establish that the Plaintiffs were barred from recovering under its policy.

On appeal, Catlin also argues that some of the damage to the Property was “new” damage, which occurred after the policy period ended. According to Catlin, the new damage was not covered under the policy. Jurisprudence has held that when the proper apportionment of covered and excluded losses is at issue, the insurer has to prove how much of the damage was caused by an excluded peril. Dickerson v. Lexington Ins. Co., 556 F.3d 290, 295 (5th Cir. 2009); see also Imperial Trading Co., Inc. v. Travelers Prop. Cas. Co. of Am., 638 F.Supp.2d 692, 695 (E.D. La.2009). Catlin’s policy, however, specifically covers property damage [19that continued even after the end of the policy period. As the trial court observed, Catlin failed to present evidence that would distinguish the damage caused during the policy period from any “new” damage caused after the policy period that would thus be excluded. Given Catlin’s failure to distinguish the covered damage that occurred during the policy period from non-covered damage that occurred after the policy was cancelled, the evidence supports the finding that the Plaintiffs were covered under the policy. Based on the evidence, the trial court was not manifestly erroneous in its ruling.

(Hi) Hearing on coverage

Catlin further contends that the trial court erred in granting the Plaintiffs’ motion for new trial and ruling in the Plaintiffs’ favor without conducting a hearing on coverage. See La. C.C.P. art. 1977 (“[w]hen a new trial is granted, it shall be assigned for hearing in accordance with the rules and practice of the court.”). Catlin maintains that the trial court was required to hold a hearing on the issue of coverage before entering judgment in the Plaintiffs’ favor. We find Catlin’s argument misplaced.

As the Plaintiffs point out, “[w]hen a new trial is granted for reargument only, no evidence shall be adduced.” La. C.C.P. art. 1978; see La. C.C.P. art. 1971 (“[a] new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only.”). Furthermore, in Fulco v. Fulco, 50,256, p. 5 (La. App. 2 Cir. 11/18/15), 183 So.3d 573, 577, the appellate court observed as follows:

lanThe court is authorized, on motion for new trial in a nonjury case, to use the testimony and documents already in evidence and reconsider the previous judgment. Heritage Worldwide Inc. v. Jimmy Swaggart Ministries, 95-0484 (La. App. 1 Cir. 11/16/95), 665 So.2d 523, writ denied, 96-0415 (La. 3/29/96), 670 So.2d 1233; Russell v. McDonald’s Corp., 576 So.2d 1213 (La. App. 1[5] Cir.1991). The court has great discretion to admit new evidence or merely to reconsider the existing evidence in light of the arguments. LeBlanc v. City of Donaldsonville, 2003-2533 (La. 10/29/04), 897 So.2d 104.

In Fulco, the court noted that the motion for new trial did not specifically request reargument only. 50,256 at p. 6, 183 So.3d at 577. The court, however, observed that no evidence was introduced at the hearing; thus, “[tjhe court clearly wished to use the new trial to reconsider the existing evidence.” Id.

Here, on February 19, 2016, the trial court conducted a hearing on the Plaintiffs’ motion for new trial. At the hearing, neither the Plaintiffs nor Catlin sought to introduce any evidence. Given that the trial court was reconsidering the existing evidence, it was not required to hold another hearing.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . On August 15, 2008, the Plaintiffs contracted with NOLA Home for the construction of their new house. NOLA Home, however, was not a Chase Bank-approved contractor. On October 7, 2008, the Plaintiffs thus contracted with Beard, a contractor Chase Bank approved.

      . On two prior occasions—on February 4 and 11, 2010—Beard had notified NOLA Home that it was in default for failing to provide licenses and proof of insurance.

      . In its notice to NOLA Home, Beard attached a five-page "punchlist” outlining the non-completed and defective work.

      . On April 12, 2013, Catlin re-urged its motion for summary judgment and attached thereto a certified copy of the policy with an affidavit by a senior claim representative. The trial court denied Catlin's motion. This court denied Catlin’s writ application seeking review of the trial court’s denial of its re-urged motion- for summary judgment. Davis v. NOLA Home Const., LLC, 15-537 (La. App. 4 Cir. 9/4/14) (unpub.). The Louisiana Supreme Court also denied Catlin's writ application. Davis v. Nola Home Const., LLC, 14-2081 (La. 11/26/14), 152 So.3d 907.

      . Since whether Beard was covered under Catlin's policy was an issue for the trial court judge to decide, the proper procedural device was a motion for involuntary dismissal—not a directed verdict. See Crescent City Cabinets & Flooring, L.L.C. v. Grace Tama Dev. Co., L.L.C., 16-0359, p. 8 (La. App. 4 Cir. 10/19/16), 203 So.3d 408, 414 (citations omitted) ("[fjollowing a bench trial, a defendant may move for involuntary dismissal, pursuant to La. C.C.P. art. 1672(B).”).

      . The Exclusions provide that coverage does not apply for “Property damage” to:
      (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or
      (6) That particular part of any property that must be restored, repaired or replaced because "your work” was incorrectly performed on it.

      . The Plaintiffs sought a directed verdict on the following five issues:
      (1) Beard was the general contractor;
      (2) ÑOLA Home was the subcontractor;
      (3) ÑOLA Home performed the work on behalf of Beard;
      (4) The Property sustained damage before July 28, 2009; and
      (5) Beard and Mr. Garcia/NOLA Home are solidarity liable for all damages.

      . In granting the Plaintiffs’ motion, the trial court stated as follows:
      As to whether the building sustained damage prior to July 28th, 2009, the Court finds that we can direct verdict that the building did sustain damage. There were two contractors, one contractor, plaintiffs contractor, who testified that as soon as the load happened that there was damage; also, the engineer, structural engineer, called by Mr. Garcia’s attorney also suggested that the damage was immediate. Given those things, the Court finds—and those are items, according to the testimony, were performed prior to July 28th of 2009. So, the Court has to answer that question. There’s no alternate evidence as to that. The Court has to find that directed [verdict] is granted as to that issue.

        Now, as to the effect of that on the insurance and so forth, that’s still another issue for the Court to deal with.

      . On appeal, Catlin raises the following assignments of error:
      1. The trial court erred in reversing its prior grant of Catlin's Motion for Directed Verdict or for Involuntary Dismissal and finding in favor of the Davises without conducting a "new trial” on coverage, which it had previously ordered,
      2. The trial court erred in denying Catlin’s Motion for Directed Verdict or for Involuntary Dismissal.
      3.The trial court erred in entering judgment in favor of the Davises and finding coverage.

      . At trial, the Plaintiffs entered the following stipulation, which - was accepted by Catlin:
      Plaintiffs will stipulate that work was ongoing at 5155 Marigny Street as of July 28th, 2009. And Plaintiffs will further stipulate that the only property damage that’s being claimed in this case is damage to the home at 5155 Marigny Street itself, Excluding other damages that are claimed, the only property damage is the damage to that structure itself.

      . More specifically, exclusion k provided as follows:
      1. Damage To Your Work
      "Property damage” to "your work” arising out of it or any part of it and included in the “products-completed operations hazard.”
      This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.

      . See also Blackburn v. Nat. Union Fire Ins. Co. of Pittsburgh, 00-2668, p. 6 (La. 4/3/01), 784 So.2d 637, 641 ("[t]he insurer bears the burden of proving the applicability of an exclusionary clause within a policy”); Louisiana Maint. Servs., Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1252 (La. 1993): (”[t]he .insurer has the burden of proving that a loss’ comes within a policy exclusion.”).

      . Mr. Garcia testified at trial that he began working on the Plaintiffs’ house between the middle to end of December 2008.

      . According to a May 16, 2009 change-work order from NOLA Home, the initial framing of the Plaintiffs’ house had been completed.

      . Mr. Dagoglou also noticed that untreated wood was used in the rafters, caiport, air conditioning support structure, and under the porch, all of which was deteriorating; the wood should have been pressure-treated. He also observed the use of nails where joist hangers should have been used and the failure to use proper anchoring bolts. Mr. Dago-glou also testified that doors were not properly weatherized, which allowed water and moisture inside the house.