author: THIBODEAUX, Chief Judge.

text:
    Steven ODSTRCIL v. STATE FARM MUTUAL AUTO INS. CO.
    16-881
    Court of Appeal of Louisiana, Third Circuit.
    05/03/2017
    Rehearing Denied August 2, 2017

      John Edward Ortego, Martin Mayard, L.L.C., P. O. Box 81338, Lafayette, LA 70598-1338, Telephone: (337) 291-2440, COUNSEL FOR: Defendant/Appellee— State Farm Mutual Auto Ins. Co.
    John Ezell Jackson, Jackson Law Firm, P. O. Box 1239, Lake Charles, LA 70602-1239, Telephone: (337) 433-8866, COUNSEL FOR: Plaintiff-Appellant—Steven Odstrcil
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
   THIBODEAUX, Chief Judge.

liThe plaintiff, Steven Odstrcil, appeals the trial court’s judgment granting a motion for summary judgment filed by the defendant, State Farm Mutual Automobile Insurance Company (State Farm). Finding no genuine issues of material fact, and finding that the defendant is entitled to judgment as a matter of law, we affirm the judgment of the trial court.

I.

ISSUES

We must decide whether the trial court legally erred in granting summary judgment to State Farm.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Odstrcil was injured in an automobile accident on May 27, 2014. The at-fault driver had only $15,000.00 in coverage with GEICO. Mr. Odstrcil had $50,000.00 in underinsured motorist (UM) coverage with State Farm, and $1,000.00 medical pay coverage (MPC).

On June 19, 2014, Mr. Odstrcil sent State Farm notice of the accident. The following day, State Farm called Mr. Od-strcil’s attorney requesting documentation of Mr. Odstrcil’s injuries and treatment.

On July 10, 2014, State Farm paid the ambulance bill which consumed the MPC, and that part of the coverage was closed. United Healthcare was paying Mr. Od-strcil’s ongoing medical bills from the accident, and it filed a subrogation claim through a third-party administrator, Op-tum, seeking ^reimbursement from any amounts paid to Mr. Odstrcil. After Mr. Odstrcil had leg surgery and provided documentation of medical causation, State Farm paid its entire policy limits of $50,000.00 to Mr. Odstrcil and Optum. Mr. Odstrcil’s attorney returned the check to State Farm uncashed, as a dispute had arisen between Mr. Odstrcil and United Healthcare/Optum over the subrogation claim. Once State Farm received notice of the disputed amount, it paid Mr. Odstrcil the undisputed amount of $42,881.64. On May 21, 2015, when State Farm received notice that Optum had waived the subrogation claim of $7,118.36, State Farm paid the remaining funds to Mr. Odstrcil.

Asserting bad faith in not timely paying its policy limits, Mr. Odstrcil filed suit against State Farm on June 8, 2015, seeking penalties and attorney fees for not having made an unconditional tender within thirty days of receipt of satisfactory proof of loss pursuant to La.R.S. 22:1892(A)(1). State Farm filed a motion for summary judgment which, after hearing, resulted in an August 4, 2016 judgr ment in favor of State Farm. Mr. Odstrcil appeals the trial court’s judgment granting summary judgment to State Farm.

III.

STANDARDS OF REVIEW

The grant or denial of a motion for summary judgment is reviewed de novo, “using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 (citations omitted); La. Code Civ.P. art. 966. An appellate court may not set aside a atrial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

IV.

LAW AND DISCUSSION

Mr. Odstrcil contends that the trial court erred in granting summary judgment in favor of State Farm under La. Code Civ.P. art. 966 and La.R.S. 22:1892. We disagree. Louisiana Revised Statutes 22:1892, renumbered from La.R.S. 22:658 by La. Acts 2008, No. 415, § 1, effective on January 1, 2009, provides that insurers “shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.” La.R.S. 22:1892(A)(1). Further:

Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor ... including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim ... when such failure is found to 'be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs.

La.R.S. 22:1892(B)(1).

In its motion for summary judgment, State Farm presented an extensive time-line of its claims handling, documenting twenty-eight pertinent actions/events by State Farm in processing Mr. Odstrcil’s claim. State Farm first Lreceived notice of the accident on June 19, 2014. On June 20, State Farm called Mr. Odstrcil’s attorney requesting documentation of Mr. Odstrcil’s injuries and treatment. By July 10, 2014, State Farm had paid the ambulance bill, which depleted the $1,000.00 MPC, and that part of the claim was closed. On July 24, 2014, State Farm received a report of MRI studies, but there was no opinion regarding causation.

On August 6, 2014, State Farm received a subrogation claim from Optum, informing State Farm that United Healthcare had paid 'medicals on behalf of Mr. Odstrcil, but there was no amount provided.

On September 2, 2014, Mr. Odstrcil had surgery on his leg. State Farm called his attorney the following day regarding proof of causation, but the attorney was unsure of causation. Reports from the neurosurgeon on September 4 -did not address causation. State Farm sent a written request for a medical opinion regarding causation on September 5 and again on September 10, 20Í4. On January 15, 2015, State Farm sent a reminder to Mr. Odstrcil’s attorney that State Farm was waiting for an opinion on causation. On March 4, 2015, State Farm called Mr. Odstrcil’s attorney requesting documentation regarding causation.

On March 20, 2015, State Farm received documents with an undated addendum from Dr. Kim saying that the leg injury was “probably”' caused by the automobile accident on May 27,2014. There was also a list of medical bills totaling over $43,000.00. Mr. Odstrcil’s attorney wanted an unconditional tender of State Farm’s entire UM policy limits, but no agreement was reached on the subrogation claim of Optum. State Farm knew that United Healthcare was paying Mr. Odstrcil’s ongoing medical expenses and tried unsuccessfully to obtain the subrogation amount from Optum.

|fiOn April 4, 2015, State Farm mailed a check for its $50,000.00 UM policy limits to Mr. Odstrcil’s attorney. The check was made payable to Mr. Odstrcil and Optum. Mr. Odstrcil’s attorney returned the check to State Farm on April 13, 2015. Optum refused to approve State Farm’s payment of its full policy limits to Mr. Odstrcil.

On April 23, 2015, State Farm received a voice mail from Optum stating that the amount of the subrogation claim, and therefore the amount in dispute, was $7,118.36. The following day, on April 24, State Farm received a fax from Optum documenting the amount of the subrogation claim.

On May 5, 2015, State Farm mailed a check for $42,881.64, representing the undisputed amount, made payable to Mr. Odstrcil and his attorney. State Farm consulted an attorney and prepared to file a concursus proceeding for the remaining amount of $7,118.36, pursuant to the sub-rogation claim of Optum on behalf of United Healthcare.

, On May 21, 2015, State Farm received information that United .Healthcare waived its subrogation claim. State Farm, on the same day, mailed a check to Mr. Odstrcil’s attorney for the $7,118.36.

Based upon evidence of the foregoing, Stated Farm asserted that it was entitled to summary judgment because it had sufficient facts, to be fully apprised of Mr. Odstrcil’s claim on April 23 and 24 when it learned of the amount of United Healthcare’s subrogation claim. Less than two weeks later,' on May 5, 2015, it timely tendered the undisputed. amount of $42,881.64 to Mr. Odstrcil. Finally, State Farm asserted that, if the tender of the undisputed amount is deemed' untimely, State Farm was not arbitrary, capricious, or without probable cause in delaying the tender given the facts known at the time.

| ¿Proof of Loss

The Louisiana Supreme Court has articulated the criteria for determining when the insurer has received proof of loss.

“Satisfactory proof of loss” in a claim pursuant to UM coverage is receipt by the insurer of “sufficient facts which ful ly apprise the insurer that (1) the owner or operator of the other vehicle involved in the accident was uninsured or under insured; (2) that he [or she] was at fault; (3) that such fault gave rise to damages; and (4) establish, the extent of those damages.” McDill v. Utica Mutual Insurance Company, 475 So.2d 1085, 1089 (La.1985).

Reed v. State Farm Mut. Auto. Ins. Co., 03-107, pp. 15-16 (La. 10/21/03), 857 So.2d 1012, 1022 (emphasis added).

In McDill, the court examined satisfactory proof‘of loss in the context of UM coverage and stated that “it must be that quality of proof which enables the insurer to realize that it is probably liable for some part of the policy’s coverage, and that quality of proof that enables it to reasonably determine the dollar amount of benefits to be paid.” McDill, 475 So.2d at 1089. The court in Reed discussed the similarities and the distinctions between the thirty percent tender of $7,500.00 in Reed and the lack of tender in McDill, and found that in both cases the issue was “whether the insurer received satisfactory proof of loss,” which the court discussed in terms of

whether the insured “fully apprised” the insurer of the extent of damages occasioned by the accident. After an insurer receives notice of the claim, the basis of the claim, and the identity of the doctors involved, in order foi the insurer to avoid being arbitrary or capricious, it is necessary for the insurer to determine whether there exists a legitimate basis for not paying at least what it considers to be undisputed.

Reed, 857 So.2d at 1022.

7In Reed, the court found that the thirty-percent tender was adequate and timely, and not arbitrary or capricious, because “Reed’s medical records prior to the tender of $7,500.00 contained no evidence that a total knee replacement was imminent and causally related to the injuries she sustained in the accident.” Id. at 1023.. Similarly, in the present case, State Farm did not receive a medical opinion on causation until, after numerous requests, it finally received the undated addendum from Dr. Daniel Kim that the leg injury and surgery were “probably” related to the accident. State Farm received this medical report on March 20, 2015. Since State Farm- paid the full amount of its policy limits, $50,000,00, on April 4, 2015, within fifteen days of being fully apprised of causation, its payment was well within the thirty-day- requirement of the penalty statute. Statutes subjecting insurers to penalties are considered penal in nature and are to be strictly construed. Theriot v. Midland Risk Ins. Co., 95-2895 (La. 5/20/97), 694 So.2d 184.

One who claims entitlement to penalties and attorney fees has the burden of proving the insurer received satisfactory proof of loss as a predicate to a showing that the insurer was arbitrary, capricious, or without probable cause. [Hart v. Allstate Insurance Company, 437 So.2d 823,] 828 [ (La. 1983) ]. It logically follows from this burden that a plaintiff who possesses information that would suffice as satisfactory proof of loss, but does not relay that information to the insurer is not entitled to a finding that the insurer was arbitrary or capricious. Id.; see also, McClendon v. Economy Fire & Casualty Insurance Company, 98-1537, p. 5 (La.App. 3 Cir. 4/7/99), 732 So.2d 727, 730 .... The sanctions of penalties and' attorney fees are not assessed-unless a plaintiffs proof is clear that-the insurer was'in fact arbitrary, capricious, or without probable cause in refusing to pay. Block v. St. Paul Fire & Marine Ins. Co., 32,306, p. 7 (La.App. 2 Cir. 9/22/99), 742 So.2d 746, 751. The statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense. Rudloff v. Louisiana Health Services and Indemnity Co., 385 So.2d 767, 771 (La.1980), on rehearing. Especially when there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubts exist. Block, 32,306 at 8, 742 So.2d at 752.
Both LSA-R.S. 22:658 and LSA-R.S. 22:1220 require proof that the insurer was “arbitrary, capricious, or without probable cause,” a phrase that is synonymous with “vexatious.” Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1998). This court has noted that “vexatious refusal to pay” means unjustified, without reasonable or probable cause or excuse. Id., citing COUCH ON INSURANCE 2d, § 58:70. Both phrases describe an insurer whose willful refusal of a claim is not based on a good-faith defense. Id.
Whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action, which in the instant ease was at the time of its tender of $7,500.00. See Scott v. Insurance Company of North America, 485 So.2d 50, 52 (La.1986).

Reed, 857 So.2d at 1020-21.

Louisiana jurisprudence and numerous statutes make it clear that an insurer’s obligation to pay does not extend only to the injured plaintiff, and sometimes competing claims of the plaintiffs creditors, lienholders, and subrogees must be paid to the exclusion of the injured plaintiff himself. For example, La.R.S. 9:4752 provides that “[a] health care provider, hospital, or ambulance service that furnishes services or supplies to any injured person shall have a privilege for the reasonable charges or fees of such health care provider, hospital, or ambulance service on the net amount payable to the injured person” by another person or “by any insurance company under any contract providing for indemnity or compensation to the injured person.” In interpreting the privilege in this statute, a panel of this court determined that a hospital’s lien entitled it to the accident [flvictim’s UM and PMC benefits under his automobile policy, as well as the proceeds under a liability policy, even though the victim received nothing. Marquez v. Progressive Ins. Co., 06-1024 (La. App. 3 Cir. 12/6/06), 944 So.2d 876.

In fact, La.Code Civ.P. art. 4652 creates a process by which a casualty insurer can deposit its policy limits in a concursus proceeding and allow the court to handle the competing claims of the injured insured and others asserting ownership to the funds. See also Nolan v. Audubon Ins. Grp., 10-1362 (La.App. 3 Cir. 3/9/11), 59 So.3d 487, writ denied, 11-987 (La. 6/24/11), 64 So.3d 218. There, we upheld the trial court’s refusal to award penalties under La.R.S. 22:1973 against a homeowner’s insurer for allegedly failing to render payment within thirty days of settlement where the insurer timely sent a check to the plaintiff that included the names of the mortgagees as payees. When the insurer offered to reissue the check if the insureds could obtain waivers from the mortgagees, and the insureds failed to do so, the insurer filed a concursus proceeding, which we found proper for handling the plaintiffs claims. Id.

Similarly here, State Farm sent a check for its policy limits of $50,000.00 made payable to the plaintiff and Optum, its subrogee, on April 4, 2015, just fifteen days after receiving satisfactory proof of causation. If State Farm had tendered its full policy limits of $50,000.00 to Mr. Od-strcil alone, when he demanded it, ignoring the notice of Optum’s claim, Optum could have legally demanded that State Farm also pay its claim, subjecting State Farm to an additional $7,118.36 over and above its policy limits. See State Nat. Fire Ins. Co. v. Sykes, 527 So.2d 589 (La.App. 3 Cir. 1988). Recognizing the subrogation claim under La.Civ.Code art. 1825, State Farm had reasonable grounds and probable cause to protect itself from claims that exceeded its policy limits.

In Richardson v. GEICO Indem. Co., 10-208 (La.App. 1 Cir. 9/10/10), 48 So.3d 307, writ denied, 10-2473 (La. 12/17/10), 51 So.3d 7, a Navy medical unit informed GEICO by letter that it had a claim for medical payments that it made on behalf of the plaintiff. The court held that the date upon which GEICO was informed by the Navy representative that the Navy’s claim was $13,976.57, constituted the date upon which the thirty days began to run for purposes of La.R.S. 22:658 (now 22:1892). Even though GEICO knew that the plaintiffs attorney was seeking a reduction in the Navy’s claim, the court found that “GEICO had actual and adequate knowledge by June 6, 2007,” of the undisputed difference between the Navy’s claim and the $25,000.00 policy limits. Id. at 316. Because GEICO did not make payment until July 18, 2007, the court found GEI-CO’s actions arbitrary, capricious, and without probable cause, and it imposed penalties for same. The court stated:

While the insurer is not required to tender payment for amounts that are reasonably in dispute, “there can be no good reason—or no probable cause—for withholding an undisputed amount.” Louisiana Bag Co., 999 So.2d at 1114 (quoting Hammett v. Fire Ass’n of Philadelphia, 181 La. 694, 160 So. 302, 304-305 (1935)). Pursuant to LSA-R.S. 22:658, an insurer is required to make an unconditional payment of what it indisputably owes when the insured has demonstrated that he is entitled to recover under the insurance contract. Demma v. Auto. Club Inter-Insurance Exchange, 08-2810 (La. 6/26/09), 15 So.3d 95, 103-104.

Id.

Conversely here, State Farm paid the undisputed amount of $42,881.64 within twelve days of receiving confirmation of the amount of Optum’s subrogation claim. More specifically, after receiving its check for $50,000.00 back from Mr. Odstrcil’s attorney on April 13, State Farm tried repeatedly to obtain the amount in dispute between Mr. Odstrcil and Optum. When it finally obtained |nverbal confirmation of the amount of Optum’s claim, $7,118.36, on April 23, and written confirmation of the claim on April 24, State Farm had actual and adequate knowledge of the disputed amount. State Farm tendered the undisputed amount on May 5, 2015, within twelve days of being fully apprised of the undisputed amount. Therefore, State Farm cannot be seen as arbitrary, capricious, or without probable cause under the penalty statute.

On a motion for summary judgment under La.Code Civ.P. art. 966, if the mover will not bear the burden of proof at trial, such as State Farm in this case, it is not required to negate all essential elements of the Mr. Odstrcil’s claim. Rather, State Farm must only point out to the court that there is an absence of factual support for one or more elements essential to Mr. Odstrcil’s claim. Thereafter, if Mr. Odstrcil fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ.P. art. 966. Here, State Farm has, fully demonstrated that it was not arbitrary, capricious, or without probable cause in protecting itself from the subro-gee and for paying Mr. Odstrcil’s claims in the manner - and under the time frames discussed. As Mr. Odstrcil has produced no evidence-to the contrary, there is no genuine issue of material fact, and State Farm is entitled to summary judgment as a matter of law. Id.

V.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment in favor of State Farm. Costs are assessed to Steven Od-strcil.

AFFIRMED.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    BELLSOUTH TELECOMMUNICATIONS, L.L.C. d/b/a AT & T Louisiana v. A & A CABLE CONTRACTORS, INC. and CSRS, Inc.
    2016 CA 0803
    Court of Appeal of Louisiana, First Circuit.
    MAY 11, 2017

      Michael B. AJker, Mandeville, Louisiana, Counsel for Plaintiff/Appellant, BellSouth Telecommunications, L.L.C. d/b/a AT & T Louisiana
    James J. Danna, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, A & A Cable Contractors, Inc.
    Steven B. Loeb, Jacob E. Roussel, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, CSRS, Inc.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

|2The plaintiff appeals from a judgment that granted a defendant’s peremptory exception raising the objection of prescription. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

On March 14, 2014, BellSouth Telecommunications, L.L.C. d/b/a AT & T Louisiana (BellSouth) filed a Petition for Damages against A & A Cable Contractors, Inc. (A & A), alleging that’ on March 18, 2013,'BellSouth discovered damages to its underground telephone cables caused, by the failure of A & A to install the cables at the depth as specified in the contract between BellSouth and A & A. BellSouth further alleged that it incurred. costs in repairing the damage. Thereafter, on October 20, 2015, BellSouth filed a Second Supplemental and Amending Petition for Damages adding CSRS, Inc. (CSRS) and William Watson, a CSRS employee, as additional defendants. Therein, BellSouth alleged that during the installation project, A & A encountered a sub-surface concrete slab and, upon the advice of Watson, installed. the cables on top of the slab, which was above the depth specified by Bell-South. BellSouth claimed that the pendants were jointly and/or solidarily liable for the damages asserted.

In response, CSRS filed a peremptory exception raising the objection of prescription on November 30, 2015. CSRS alleged that the claims brought. against it were purely delictual claims and were filed more than one year after prescription commenced. Specifically, CSRS maintained that BellSouth unambiguously admitted in its petition that the damage occurred on March 18, 2013, and that BellSouth did not file suit against CSRS until- over thirty-one months later in October 2015. CSRS additionally argued that because the action against CSRS was prescribed on the face of the petition, BellSouth had the burden to prove that the action was not prescribed. CSRS asserted that prescription was not interrupted on the date BellSouth initiated the litigation against A & A since CSRS and A & A are neither solidarily liable nor are they joint tortfeasors.

1 .¡Following a hearing on March 28, 2016, the trial court agreed with CSRS and sustained the exception. The trial court signed a judgment on April 5, 2016, dismissing BellSouth’s claims against CSRS with prejudice. Thereafter, BellSouth timely appealed. The issue on appeal is whether BellSouth’s timely filing of suit against A & A interrupted the running of prescription on its claims against CSRS.

LAW AND DISCUSSION

Louisiana Civil Code Article 3492 provides that delictual actions are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. See also Kelley v. General Ins. Co. of America, 14-0180 (La.App. 1 Cir. 12/23/14), 168 So.3d 528, 533, writs denied, 15-0157, 150165 (La. 4/10/15), 163 So.3d 814, 816. The objection of prescription may be raised by a peremptory exception. LSA-C.C.P. art. 927A(1). At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931. When prescription is raised by peremptory exception, without evidence being introduced at the hearing on the exception, the exception must be decided on the facts alleged in the petition, which are accepted as true. Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88. If no evidence is introduced, the appellate court’s role is to determine whether the trial court’s ruling was legally correct. Onstott v. Certified Capital Corp., 05-2548 (La.App. 1 Cir. 11/3/06), 950 So.2d 744, 746.

Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bailey v. Khoury, 04-0620 (La. 1/20/05), 891 So.2d 1268, 1275. Prescription may be renounced, interrupted, or suspended. See LSA-C.C. arts. 3449 through 3472; McKenzie v. Imperial Fire and Cas. Ins. Co., 12-1648 (La.App. 1 Cir. 7/30/13), 122 So.3d 42, 48, writ denied, 13-2066 (La. 12/6/13), 129 So.3d 534.

Prescription is interrupted by the filing of suit in a court of competent jurisdiction. LSA-C.C. art. 3462. The interruption of prescription against one solidary obligor is effective against all solidary obligors. LSA-C.C. arts. 1799 and 3503. An obligation is Usolidary for the obligors when the obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee. LSA-C.C. art. 1794. Solidarity of obligation shall not be presumed. A solidary obligation arises from a clear expression of the parties’ intent or from the law. LSA-C.C. art. 1796. Further, the interruption of prescription against one joint tortfeasor is effective against all tortfeasors. LSA-C.C. art. 2324C.

Ordinarily, the party raising the exception of prescription has the burden of proving facts to support the exception. Doyle v. Mitsubishi Motor Sales of America, Inc., 99-0459 (La.App. 1 Cir. 3/31/00), 764 So.2d 1041, 1044, writ denied, 00-1265 (La. 6/16/00), 765 So.2d 338. However, when claims are prescribed on the face of the petition, and the plaintiff contends there is a suspension or interruption of prescription, the burden shifts to the plaintiff to prove that prescription was interrupted or suspended. Id.; Toomer v. A-1 Fence & Patio, Inc., 08-2197 (La. App. 1 Cir. 10/27/09), 29 So.3d 609, 612, writ denied, 09-2564 (La. 2/5/10), 27 So.3d 302. Moreover, when the plaintiffs basis for claiming an interruption of prescription is solidary liability between two or more parties, the plaintiff bears the burden of proving that a solidary relationship exists. Toomer, 29 So.3d at 612.

In this matter, BellSouth’s Second Supplemental and Amending Petition for Damages was filed more than one year after the damage occurred on March 18, 2013, and it is prescribed on its face. Therefore, the burden was on BellSouth to prove that prescription against CSRS was either interrupted or suspended.

It is undisputed that BellSouth’s claims against CSRS are delictual in nature. Additionally, BellSouth did not assign, brief, or argue as error the trial court’s finding that its claim against A' & A was based solely in contract or that CSRS and A & A could not be joint tortfeasors. BellSouth challenges only the trial court’s finding regarding solidary liability. Consequently, any other findings are not before us.

[¡¡On appeal, BellSouth argues that the timely filing of suit against A & A interrupted prescription against CSRS, contending that a solidary relationship existed between A & A and CSRS for the purposes of the interruption of prescription. Specifically, it contends that there is a distinction between solidary liability for the payment of damages and solidary liability for the interruption of prescription. BellSouth maintains that it has alleged that the actions of both A & A and CSRS caused the damage to the underground cables and that its allegations were sufficient to establish an interruption of prescription. On the other hand, CSRS contends that there is no solidary liability between it and A & A. CSRS states that the threshold issue of whether solidary liability exists is a condition precedent to determining whether prescription is interrupted, and only where parties are, as a matter of law, solidary obligors may the timely suit against one interrupt prescription against the other.

In 1996, the legislature amended Louisiana Civil Code Articles 2323 and 2324 “to abolish solidary liability among non-intentional tortfeasors and to place Louisiana in a pure comparative fault system.” Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 02-0563 (La. 10/15/02), 828 So.2d 530, 535. Article 2323 “requires that the fault of every person responsible for a plaintiffs injuries be compared.” Dumas, 828 So.2d at 537. Article 2324B “abolishes solidarity among non-intentional tort-feasors, and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to Article 2323.” Dumas, 828 So.2d at 537 (footnote omitted). The supreme court in Dumas found the language of Article 2324B to be clear and unambiguous:

Ifilt provides that in non-intentional cases, liability for damages caused by two or more persons shall be a joint and divisible obligation. Each joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable, to the fault of that other, person. This provision abolishes solidarity among non-intentional tortfea-sors, and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to Article 2323.

Dumas, 828 So.2d at 537 (emphasis in original) (footnotes omitted).

Thus, in determining whether liability for damages is a solidary or a joint and divisible obligation, LSA-C.C. art. 2324A provides that “[h]e who conspires with another person to commit an intentional or willful act” is solidarity liable “with that person, for. the damage caused by such act.” If liability is not solidary, then “liability for damages caused by two or more persons shall be a joint and divisible obligation.” LSA-C.C. art. 2324B. See McKenzie; 122 So.3d at 47-48.

Because BellSouth did not put on any evidence in support of its claim that prescription was interrupted, we' look to the petition to determine whether the facts stated therein, if accepted as true, sufficiently allege solidary liability between A & A and CSRS for the interruption of prescription. In its Second Supplemental and Amending Petition for Damages, naming CSRS as an additional defendant, Bell-South made the following pertinent allegations:

IV.
At some point during the installation project, A & A encountered a sub-surface concrete slab. Rather than bore beneath the concrete slab, A & A deviated from the depth requirements of the plans and specifications, and installed the cables on top of the concrete slab, and above the depth specified by Bell-South. Upon information and belief, A & A reached the decision to install the cables in this manner after consulting with Watson, who is believed to have held overall supervisory authority for the project and approved the installation.
* * * *
Xll.
At all material times, Watson was an employee of CSRS, rendering CSRS vicariously liable for the negligence and/or fault of its employee ....

Recognizing that the 1996 amendments to LSA-C.C. arts. 2323 and 2324 abolished solidary liability among non-intentional tortfeasors, the trial court, in its. oral reasons, concluded that the timely filing of the contract claim by BellSouth against A & A | ycould not interrupt prescription as to the tort claim against. CSRS, and the trial court sustained CSRS’s exception. We agree. A & A and CSRS cannot be solidarity liable as there are simply no allegations of any conspiracy to commit an intentional or willful act. Moreover, as noted previously, BellSouth appealed only the trial court’s finding regarding solidary liability. Thus, the trial court correctly sustained CSRS’s peremptory exception raising the objection of prescription, and we affirm the judgment of the trial court.

CONCLUSION

For the above and foregoing reasons, the April 5, 2016 judgment of the trial court, which sustained the peremptory exception filed by CSRS, Inc. raising the objection of prescription, is affirmed; All costs of this appeal are assessed BellSouth Telecommunications, L.L.C. d/b/a AT & T Louisiana.

AFFIRMED.

      . A First Supplemental and Amending Petition for Damages had also been filed by Bell-South on June 16, 2014.

      . The Courts of Appeal of Louisiana will only review an issue that is contained in an assignment or specification of error. Rule 1-3, Uniform Rules of Louisiana Courts of Appeal. See also Rule 2-12.4, Uniform Rules of Louisiana Courts of Appeal; Franklin v. AIG Cas. Co., 12-1698 (La.App. 1 Cir. 6/7/13), 2013 WL 2487877 (unpublished).

      . Louisiana Civil Code article 2324 provides:
      A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
      B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tort-feasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.
      C.Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

      . While we recognize those cases cited by BellSouth, we find that they are factually distinguishable, as they involve either uninsured/underinsured motorist insurance coverage or a workers’ compensation statutory employer relationship.


author: THERIOT, J.

text:
    Danny SMITH v. Kenny HAVARD, Woody’s Access, LLC, First National Insurance Company of America and Garrison Property Casualty Insurance Company
    NO. 2016 CA 1154
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 11, 2017
    ’ Chet G. Boudreaux, Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Danny Smith
    Brad J. Brumfield, Baton Rouge, Louisiana Counsel for Defendant/Appellees Kenny Havard, Woody’s Access, LLC, and First National Insurance Company of America
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

12Plaintiff-appellant, Danny Smith, appeals the jury award following a jury trial in the Nineteenth Judicial District Court. For the following reasons, we affirm the jury award.

FACTS AND PROCEDURAL HISTORY

On October 18, 2012, Mr. Smith was involved in an automobile accident while parking at a gas station on Airline Highway in Baton Rouge. While Mr. Smith was waiting for the truck driven by the defendant-appellee, Kenny Havard, to leave the parking space it occupied, Mr. Havard backed his truck into Mr. Smith’s vehicle. Mr. Smith’s vehicle was totaled and he sustained injuries to his person. Mr. Havard’s truck was owned by the defendant-appellee, Woody’s Access, LLC, and Mr. Havard was in the course and scope of his employment with Woody’s Access at the time of the accident.

Mr. Smith filed a petition for damages against Mr. Havard, Woody’s Access, and First National Insurance Co. of America, the liability insurer of Woody’s Access. The matter proceeded to a trial by jury. After returning a verdict in favor of Mr. Smith, the jury awarded damages as follows:

Past Physical Pain and Suffering $15,000,00
Future Physical Pain and Suffering $0.00
Past Mental Anguish $10,000.00
Future Mental Anguish $0.00
Past Loss of Enjoyment of Life $0.00
Future Loss of Enjoyment of Life $0.00
Past Medical Expense . $25,012.29
Past Lost Wages $0.00
Total $50,012.29

Dissatisfied with the jury’s award, Mr. Smith filed a motion for judgment notwithstanding the verdict and a motion for new trial. Following a hearing on the motions, the district court denied the motions. Mr. Smith then filed the instant appeal.

|sASSIGNMENT OF ERROR

Mr. Smith’s sole assignment of error is that the jury abused its discretion in compensating only $25,000.00 in general damages for disc injuries in Mr. Smith’s cervical and lumbar spine, three epidural steroid injections, three years of treatment, and future lifetime pain and suffering.

STANDARD OF REVIEW

A jury is given great discretion in its assessment of quantum, both general and special damages. Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So.3d 1104, 1116. The assessment of quantum is a determination of fact, one entitled to great deference on review, and should rarely be disturbed. Id., 16 So.3d at 1116-17. Before a court of appeal can disturb an award made by a jury, the record must clearly reveal that the jury abused its discretion in making its award. Id., 16 So.3d at 1117.

DISCUSSION

Mr. Smith entered evidence of medical expenses totaling $25,012.29. He also introduced an independent medical review by Dr. Curtis Partington, describing two separate examinations, one that took place on December 2, 2008 (almost four years prior to the accident), and another on January 9, 2013 (approximately three months after the accident). An MRI examination in 2008 showed bulging and herniated discs at C3-4, C5-6, and C6-7 in Mr. Smith’s cervical spine. Another MRI examination in 2013 showed improvement in C3-4, but more herniation at C5-6 that “could represent a traumatic injury related to his accident.” The 2013 MRI revealed no change at C6-7.

Additionally, Mr. Smith introduced the deposition testimony of Drs. Joseph Tur-nipseed and Anthony loppolo. Dr. Turnip-seed, a pain management specialist and anesthesiologist, examined Mr. Smith on ^February 14, 2013. Mr. Smith complained of neck pain and lower back pain, which he claimed started after the accident. Dr. Turnipseed was aware that Mr. Smith had been in a previous accident in 2008 and had been prescribed medication. He was also aware of the 2013 MRI, and agreed with its conclusions. Dr. Turnipseed performed a spinal injection for pain relief, and Mr. Smith reported a 75% improvement in his pain level. In May of 2013, Mr. Smith’s pain became more manageable, and the injections were discontinued. However, in November of 2013, Mr. Smith returned to Dr. Turnipseed due to increased pain. At that time, Mr. Smith was referred to Dr. loppolo, who is a neurosurgeon.

Dr. loppolo first saw Mr. Smith on November 26, 2013. Mr. Smith complained of radiating pain in his neck and lower back related to the accident. Dr. loppolo reviewed and agreed with the same MRI results, and he also found spondylolisthe-sis, or slippage, at L5-S1. Dr. loppolo prescribed Mr. Smith narcotic medication and muscle relaxers and referred him back to Dr. Turnipseed for a dorsal medial branch block to alleviate pain. On September 9, 2014, Mr. Smith told Dr. loppolo that the pain was bearable and wanted to terminate care. Dr. loppolo opined that Mr. Smith’s back and neck pain was either caused or aggravated by the 2012 accident, believing that Mr. Smith may ultimately require surgery to permanently alleviate his pain.

Defendants-appellees point out in their brief that the subjective reports of pain Mr. Smith gave to Dr. Turnipseed did not exactly match with the reports he gave to Dr. loppolo. Specifically, Dr. loppolo testified that Mr. Smith complained of radiating low back pain into his right leg and radiating neck pain into the right arm, whereas Mr. Smith failed to mention to Dr. Turnipseed any pain going into the right arm. Both doctors agree, however, | fjthat Mr. Smith had a pre-existing condition from his a 2008 accident that could have been aggravated by the accident in 2012. Dr. loppolo testified that while surgery could permanently resolve Mr. Smith’s pain issues, the pain was manageable since Mr. Smith had last seen him in 2014.

Before this Court can disturb a jury’s award, the record must clearly reveal that the jury abused its discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976). After reviewing the entire record, we find the evidence does not lean heavily in favor of either Mr. Smith or the defendants-appellees to modify the award; therefore, we find no abuse of discretion on the part of the jury. Even though an appellate court may feel, its own evaluations and inferences are more reasonable than the jury’s, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed upon review where conflict exists in the testimony. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

DECREE

The jury verdict and damage award reflected in the Nineteenth Judicial District Court’s judgment is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Danny Smith.

AFFIRMED.


text:
    WHOLESALE ELECTRIC SUPPLY COMPANY, a Branch of Wholesale Electric Supply Co. of Houston, Inc. v. HONEYWELL INTERNATIONAL, INC.
    NO. 2016 CA 1180
    Court of Appeal of Louisiana, First Circuit.
    MAY 11, 2017

      David L. Bateman, Baton Rouge, Louisiana, Counsel for Appellant Vector Electric & Controls, Inc.
    Jeffrey N. Boudreaux, John C. Funder-burk, Joshua J. Coleman, Baton Rouge, Louisiana, Counsel for Appellee Honeywell International, Inc.
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

|2In this indemnity dispute, the appellant, Vector Electric & Controls, Inc. (“Vector”), appeals the trial court’s ruling granting a motion for summary judgment in favor of the appellee, Honeywell International, Inc. (“Honeywell”). For the . following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On May 9, 2014, Wholesale Electric Supply Company (“Wholesale”) filed suit against Honeywell, seeking = to . enforce three liens against Honeywell in accordance with the Louisiana Private Works Act (“LPWA”), La. R.S. 9:48.01, et seq. Wholesale alleged that Honeywell had entered into a master service agreement (“MSA”) with Vector to perform general construction work at Honeywell’s chemical production facility in Baton Rouge,.Louisiana. Wholesale claimed that, as part of the MSA, Honeywell issued purchase orders to Vector for three separate projects at its facility (“the projects”). Wholesale claimed it furnished electrical supplies and materials to Vector for the projects that were subsequently incorporated into the immovable property owned by Honeywell. Wholesale alleged that despite amicable demand, it had not been paid for the supplies and materials it furnished to Vector. Wholesale claimed it therefore caused the aforementioned liens to be filed and recorded to preserve its rights. and claims against Honeywell under the LPWA.

On July 21, 2014, Honeywell filed an answer to Wholesale’s suit with an incorporated third-party demand against Vector. See La. C.C.P. art. 1111. In its role as a third-party-petitioner, Honeywell acknowledged Vector had supplied it with electrical an<l instrumental goods and services for the projects that had been incorporated _J|into its property. Honeywell claimed that Vector was obligated to indemnify it to the extent it were found liable unto Wholesale. Honeywell claimed it was entitled to indemnification statutorily, i.e., by operation of law under the LPWA, and contractually, i.e., in accordance with the terms of the MSA, which required Vector to defend and indemnify Honeywell against any claims arising from Vector’s negligence, willful misconduct, or breach of contract.

On August 7, 2014, Vector filed an answer to Honeywell’s third-party demand with an incorporated reconventional demand against Honeywell. In its role as a third-party-petitioner-in-reconvention, Vector acknowledged that it had provided Honeywell with labor and materials for the projects that had been incorporated into Honeywell’s property. However, Vector also claimed that Honeywell negligently managed the projects in a manner that caused it to experience delays and labor inefficiencies. Vector asserted that as a result of Honeywell’s actions and omissions, it was unable to properly plan and perform its obligations and incurred additional costs in performing the scope of its work on the projects. Vector alleged that Honeywell was therefore liable unto it for damages for breach of contract in the total sum of $2,491,295.85.

On October 17, 2014, Wholesale filed a motion for summary judgment on the issue of its principal demand against Honeywell. Wholesale argued that Honeywell was liable unto it in the principal sum of $1,251,397.56, plus legal interest from the date of judicial demand. Before trial on the matter, Wholesale and Honeywell agreed to settle their dispute and jointly submitted a stipulated judgment on the motion for summary judgment to the trial court. Therein, Wholesale and Honeywell acknowledged their agreement as to the following: Vector owed Wholesale an outstanding balance in the sum $1,213.321.30; Vector admitted in discovery that it did not express any dissatisfaction to Wholesale with respect to the materials supplied or dispute the amounts owed to Wholesale; | .Wholesale enjoyed a private right of action against Honeywell for the outstanding balance owed to it by Vector under the LPWA; summary judgment was proper; and judicial interest on the principal demand, calculated as of February 28, 2015, totaled $38,427.38.

On March 12, 2015, the trial court signed a judgment in accordance with the stipulated judgment submitted by Honeywell and Wholesale. The trial court granted Wholesale’s motion for summary judgment; entered judgment in favor of Wholesale and against Honeywell in the principal amount of $1,213,321.30, plus judicial interest, through February 28, 2015, in the sum of $38,427.38, for a total amount of $1,251,748.68; ordered that judicial interest continue to accrue until the judgment was paid in full; and ordered the dismissal, with prejudice, of all other claims that had been raised or that could be raised by Wholesale against Honeywell.

On April 23, 2015, through its attorneys, Honeywell delivered a check to Wholesale in full satisfaction of the stipulated judgment. Thereafter, on May 5, 2015, upon the request and certification of counsel for Honeywell, the trial court signed a “Satisfaction of Judgment,” acknowledging Honeywell’s full and complete satisfaction of the stipulated judgment.

On January 29, 2016, Honeywell filed a motion for summary judgment on the issue of its third-party indemnification demand against Vector. Honeywell argued that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Honeywell prayed that the trial court issue a judgment in its favor and against Vector in the sum of $1,262,531.73, plus judicial interest. Vector opposed the motion.

On May 23, 2016, the trial court heard oral arguments from the parties on the motion for summary judgment. Following arguments on the matter, in open court, the trial court orally ruled in favor of Honeywell, reasoning that Honeywell 15was both statutorily and contractually entitled to indemnity from Vector for the sums Honeywell had paid to "Wholesale to have the hens cancelled on its property.

On June 20, 2016, the trial court signed a’ final judgment in accordance with its oral ruling and for the reasons assigned in open court. The trial court granted Honeywell’s motion for summary judgment; rendered judgment in favor of Honeywell and against Vector in the principal amount of $1,262,531.73, plus judicial interest, through May 27, 2016, in the sum of $93,613.53, for a total amount of $1,356,145.26; and ordered that judicial interest continue to accrue until the judgment is paid in full. Vector now appeals.

ASSIGNMENTS OF ERROR

Vector raises the following assignments of error:

1. The trial court erred in finding that Honeywell is entitled to. LPWA indemnity from Vector when Honeywell included no evidence to demonstrate the amount sought to be indemnified was ever invoiced by or paid to Vector.
2. The trial court erred in finding that Honeywell is entitled to indemnity from Vector for a payment made to Wholesale when Honeywell’s own failure to perform and/or breach of contract caused Vector’s inability to pay.
3. The trial court erred in granting summary judgment in favor of Honeywell on the basis of LPWA indemnity despite the record evidence that establishes Honeywell owes Vector amounts that far exceed the judgment.

STANDARD OF REVIEW

In reviewing a trial court’s ruling On a motion for summary judgment, we apply the de novo standard of review. See Gray v. American Nat. Property & Cas. Co., 07-1670 (La. 2/26/08), 977 So.2d 839, 844. In our review, we use the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Supreme Services & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634, 638.

DISCUSSION

In its three assignments of error, taken together, Vector disputes the correctness of the trial court’s ruling on the motion for summary judgment. Vector argues that Honeywell did not satisfy its burden on the motion for summary judgment and claims there are genuine issues of material fact that should preclude the granting of summary judgment. Vector further submits that the doctrine of compensation (or set-off) is applicable under the facts of this case and should have been applied to offset the amounts it allegedly owes to Honeywell and to defeat the motion for summary judgment. We find no merit to any of these arguments.

The LPWA was enacted to facilitate the construction of improvements on immovable property; it serves this purpose by granting certain rights to enumerated persons to facilitate recovery of the costs of their work from an owner with whom they lack privity of contract. See Jefferson Door Co., Inc. v. Cragmar Const., L.L.C., 11-1122 (La.App. 4 Cir. 1/25/12), 81 So.3d 1001, 1004, writ denied, 12-0454 (La. 4/13/12), 85 So.2d 1250. In pertinent part, the LPWA provides:

A. The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract:
* * ⅜
(3) Sellers, for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable.
* * *
B, The claims against the owner shall be secured by a privilege on the immovable on which the work is performed.
* * *
|7F. A contractor shall indemnify the owner for claims against the owner arising from the work to be .performed under the contract. A subcontractor shall indemnify the owner, the contractor, and any subcontractor from or -through whom his rights are derived, for amounts paid by them for claims under this part arising from work performed by the subcontractor.

La. R.S. 9:4802. See generally Independent Supply Co., L.L.C. v. CSF Const., Inc., 06-1444 (La.App. 4 Cir. 3/21/07), 2007 WL 7711476, *1 (unpublished), writ denied, 07-0724 (La. 5/18/07), 957 So.2d 156 (“The [LPWA] creates a claim in favor of materialmen ... against the owner .,. and a privilege on the immovable on which the work is performed to secure payment of the movables sold that become component parts of the immovable or that are consumed on the work site.”).

In the case before us, the discrete question raised on appeal concerns Honeywell’s right to indemnification from Vector. Indemnification, in its most basic sense, simply means reimbursement. See Naquin v. La. Power & Light Co., 05-2104 (La. App. 1 Cir. 11/17/06), 951 So.2d 228, 231, writ denied, 06-2979 (La. 3/9/07), 949 So.2d 441. Indemnification is based on the principle that everyone is responsible for his own wrongdoing, and if another person has been compelled to pay a judgment that ought to have been paid by the wrongdoer, then the loss should .be shifted to the party whose wrongful conduct caused the loss. See Nassif v. Sunrise Homes, Inc., 98-3193 (La. 6/29/99), 739 So.2d 183, 185.

In support of its motion for summary judgment, Honeywell argued that it was statutorily and contractually entitled to indemnification from Vector for the sums it paid to Wholesale to have the liens cancelled on its property. Honeywell attached several documents and exhibits in support of its motion for summary judgment, including, inter alia, an affidavit executed by Gerald Anderson, an employee and representative of Honeywell; an affidavit executed by Honeywell’s general counsel, Sedesh Doobay; Vector’s response to requests for admission concerning its obligations to Wholesale; a letter sent by Honeywell, through its 18attorneys, with an attached check remitting final payment of the stipulated judgment to Wholesale; and a copy of the “Satisfaction of Judgment” signed by the trial court.

In opposition, to the motion for summary judgment, Vector argued that Honeywell was not entitled to indemnification under the terms of the MSA or the LPWA. In principal part, Vector claimed that Honeywell had not borne its burden of proof on the motion for summary judgment insofar as it had not presented any evidence proving it paid “twice”- for the material and supplies provided by Wholesale and used by Vector on the projects. Notably, Vector did not dispute Honeywell’s presentation of evidence proving that it had not paid all invoices submitted to it by Wholesale. Rather, Vector alleged that its non-performance was a direct result of Honeywell’s failure to pay it for additional labor, materials, equipment rentals, and overhead on the projects.- Vector claimed it bore these additional expenses in the course of its performance of the projects as a result of Honeywell’s negligent oversight and actionable breach of contract. In support of its opposition to the motion for summary judgment, Vector attached, amongst other things, an affidavit from its founder, Reynolds J. Moran, Jr., and an affidavit from Michael S. Myers, a consultant who provided expert opinion evidence regarding the extent of 'Vector’s alleged losses and damages arising from its performance of the projects.

Having reviewed the evidence admitted for purposes of the motion for summary judgment de novo, we agree with the trial court’s specific finding that Honeywell was entitled to indemnification from Vector based upon the statutory right to indemnification set forth in La. R.S. 9:4802(F). Honeywell satisfied its burden of proof on the motion for summary judgment by submitting wholly Ipuncontroverted evidence proving that Vector owed Wholesale an outstanding balance for supplies and materials incorporated into-Honeywell’s immovable property in the sum of $1,213,321.30, and proving that Honeywell paid the outstanding balance owed. by Vector to Wholesale, in accordance with the terms of the stipulated judgment, in the sum of $1,258,391.03. Thus, we cannot say that the trial court, erred in determining that there were no genuine issues of material fact and that Honeywell was entitled to judgment as a matter of law.

In rendering our decision on this point, we recognize that Vector presented some evidence in opposition to the motion for summary judgment that appears relevant to the issue of Honeywell’s alleged mismanagement of the project. Vector maintains on appeal that the opposition evidence was sufficient to establish genuine issues of material fact as to Honeywell’s third-party demand for indemnification, but we find this evidence is not germane to the issue of indemnification under the LPWA. For example, in his affidavit, Mr. Moran testified that Honeywell failed to appropriately' manage the scheduling and coordination of work on the projects and did not pay Vector for amounts owed under the original contract, approved change orders, and change order requests. Mr. Moran therefore attested that Honeywell had not paid “twice” for the materials provided to Vector by Wholesale.

Nevertheless, in spite of the arguments presented by Vector in brief, we have not discovered any legal support for Vector’s continued assertion that the LPWA requires an owner of immovable property to prove it made duplicative payment and/or to prove it bears no distinct contractual or tortious liability to a contractor before invoking its statutory right to indemnification against the contractor | ^pursuant to La. R.S. 9:4802(F). Indeed, to the contrary, the plain language of the LPWA imposes a clear requirement upon a contractor to indemnify an owner for any claims against the owner arising from the work to be performed under a contract, including, for example, a claim brought against the owner by a material seller to secure the price of movables sold to the contractor that were incorporated into the property. See La. R.S. 9:4802(A)(3), (B), and (P).

Furthermore, although Vector argues on appeal that the doctrine of compensation should be applied to defeat the motion for summary judgment, compensation does not apply in relation to the sums sought by Vector in its reconventional demand. Compensation takes place by operation of law when two persons owe to each other sums of money or quantities or fungible things identical in kind, and these sums or quantities are liquidated and presently due. La. C.C. art. 1893.

This court has previously explained that a claim is liquidated when the debt is for an amount capable of ascertainment by mere calculation in accordance with accepted legal standards. See Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1 Cir. 2/16/01), 808 So.2d 428, 431-32. Thus, a disputed debt is not liquidated and cannot be admitted as susceptible of compensation, unless the one who asserts compensation has in hand the proof of the existence of the disputed debt and' is thus in a position to prove it promptly. See Independent Living Center, Inc. v. State, Dept. of Soc. Services, 93-0776 (La. App. 1 Cir. 6/24/94), 638 So.2d 1202, 1205. Here, since the sums purportedly due to Vector remain pending and in dispute before the trial court, Vector is not presently entitled to the benefits of the doctrine of compensation.

DECREE

For the foregoing reasons, the trial court’s ruling granting the motion for summary judgment in favor of the appellee, Honeywell International, Inc., and 1 uordering the appellant, Vector Electric & Controls, Inc., to indemnify Honeywell in the principal amount of $1,262,531.73, along with judicial interest is affirmed. All costs of this appeal are assessed to Vector Electric & Controls, Inc.

AFFIRMED.

      . Wholesale is not a party to this appeal, which exclusively concerns the trial court’s summary judgment adjudication of Honeywell's third-party demand against Vector.

      . Louisiana Code of Civil Procedure art. 11.11 allows a defendant in a principal action to bring in a third person, including a codefen-dant, who is his warrantor, or who is or who may be liable to him for all or part of the principal demand; thereafter, the third-party defendant may reconvene against the plaintiff in the principal action or the third party plaintiff, on any demand arising out of or connected with the principal demand, in the manner prescribed in La. C.C.P. arts, 1061—66.

      . Louisiana Code of Civil Procedure art. 966, regarding summary judgment, was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The legal standard to be used by the courts in granting a motion for summary judgment remains unchanged by the recent legislative amendments to Article 966. See La. C.C.P. art. 966, cmt. (b) (2015).

      . In light of our conclusion that Honeywell was entitled to judgment as a matter of law on its demand for indemnification under the applicable statutory law, we decline to consider whether Honeywell was also entitled to judgment as a matter of law under the contractual indemnification clause of the MSA, which, as acknowledged by Honeywell on appeal, is dependent upon a finding that the sustained loss arose from, resulted from, or occurred in connection with Vector’s negligence, willful misconduct, or breach of contract.

      . Here, we note that the statutory right to indemnification established by La. R.S. 9:4802(F) requires a subcontractor to indemnify the owner, the contractor, and/or any subcontractor from or through whom his rights are derived "for amounts paid by them for claims under this part....” Furthermore, we recognize that the amount paid by Honeywell to Wholesale in satisfaction of the outstanding debt in. this case included certain sums for fees arid costs. Insofar as Vector does not challenge the amount paid by Honeywell to Wholesale in satisfaction of the outstanding debt' on appeal, we decline to consider herein what specific sums may be awarded to an owner, contractor, or subcontractor pursuant to La. R.S, 9:4802(F).


text:
    Frank RABORN v. Jeffrey R. ALBEA, M.D., Shawn G. Dunn, M.D., the NeuroMedical Center (a Professional Medical Corporation) EBI, LP and Synthes USA Sales, Limited Liability Company
    NO. 2016 CA 1468
    Court of Appeal of Louisiana, First Circuit.
    MAY 11, 2017

      Stephen M. Irving, Baton Rouge, Louisiana and Martin K. Maley, Sr. Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant Prank Raborn
    Tara S. Bourgeois, Garrett S. Callaway, Baton Rouge, Louisiana, Counsel for Defendant/Appellee Shawn G..Dunn, M.D.
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

lain this medical malpractice case, the plaintiff-appellant, Frank Raborn, appeals the ruling of the trial court granting sum.-mary judgment in favor of the defendant-appellee, Shawn G. Dunn, M.D., and ordering the dismissal, with prejudice, of Mr. Raborn’s claims against Dr, Dunn. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

In or around June of 2006, Mr. Raborn underwent a posterior lumbar vertebral fusion surgery at The NeuroMedical Center in Baton Rouge, Louisiana. Mr. Ra-born’s surgery was performed by Jeffrey R. Albea, M.D., who subsequently left practice with The NeuroMedical Center and moved out-of-state. Dr. Albea turned over post-operative care of Mr. Raborn to Paul Waguespack, M.D., another physician associated with The NeuroMedical Center. Dr. Waguespack treated Mr. Raborn for several- months, but ultimately referred Mr. Raborn to the appellee, Dr. Dunn, to address Mr. Raborn’s persistent post-operative complaints of lower back pain, buttocks pain, leg pain, and difficulty sitting.

Dr., Dunn is now, and has been at all operative times herein, a licensed physician, employed by The NeuroMedical Center, practicing in the field of neurology and pain management. Dr. Dunn first evaluated Mr. Raborn on October p, 2006, approximately four months after Mr. .Raborn’s surgery. Dr. Dunn recommended that Mr. Raborn undergo a discogram to determine the source of Mr. Raborn’s post-operative pain, Dr. Dunh performed a discogram on Mr, Raborn on March 9, 2007, after which Mr. Raborn began experiencing severe headaches, diminished bladder and bowel function, and worsening pain in his lower extremities. Mr. Raborn was then diagnosed with a spinal fluid leak. Dr. Dunn performed autologous .lumbar blood | ^patches on Mr. Raborn to address the spinal fluid leak on March 12, 2007, and March 16, 2007, respectively. Mr. Raborn claims he experienced -medical complications as a result of the blood patches, had difficulty communicating with Dr. Dunn, and was forced, to visit the emergency room at Our Lady of the Lake Hospital on April 3, 2007, whereupon he was diagnosed with corda equina syndrome.

Thereafter, in accordance with- the Louisiana Medical Malpractice Act (“LMMA”), La. R.S. 40:1299.41, et seq., Mr. Raborn filed a medical malpractice claim against several health care providers, including Dr. Dunn, with the Patient’s Compensation Fund. See La, R.S. 40:1299.47. A medical review panel was convened and met to review the malpractice claim on July 21, 2009. That same day, the medical review panel rendered a unanimous decision finding “no deviation from the appropriate standard of medical care by [the defendants].” The medical review panel further determined that “[t]he discogram had a known complication that was addressed and the procedure led to meaningful surgery.”

On October 19, 2009, Mr. Raborn filed the underlying civil suit against several named defendants, including Dr, Dunn. Mr. Raborn claimed Dr. Dunn was. negligent in his failure to take precaution to prevent a spinal fluid leak; failure to attend to Mr. .Raborn’s medical, needs, despite the seriousness of such needs; failure to use reasonable care or diligence; failure to respond to calls and faxes; failure and delay in diagnosing; and any and all other acts of negligence that may be proven through discovery and trial. Mr. Raborn therefore prayed that judgment be entered in his favor and against Dr. Dunn.

4On April 25, 2016, following various pre-trial matters not at issue on appeal, Dr. Dunn filed a motion for summary judgment against Mr. Raborn. Dr. Dunn asserted that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. Dr. Dunn specifically averred that Mr. Raborn could not bear his burden of proving the applicable standard of care or proving a breach of the applicable standard of care. Dr. Dunn attached several exhibits in support of his motion for summary judgment, including an affidavit from the attorney chairman of the medical review panel and excerpts from the depositions of Mr. Raborn’s medical expert witness and treating physicians.

On June 3, 2016, Mr. Raborn filed an opposition to the motion for summary judgment. Mr. Raborn argued that there were serious factual disputes regarding the occurrences between March 16, 2007, when he received the second blood patch, and April 3, 2007, when he was diagnosed with corda equina syndrome. In .addition, Mr. Raborn claimed that even if Dr. Dunn’s decision to perform the discogram fell within the applicable standard of care, Dr. Dunn breached the applicable standard of care in his failure to provide appropriate instructions, warning, and advice before performing the blood patches and in his response to the blood patch complications. Mr. Raborn specifically asserted he was not warned of the possibility that changes in bladder and bowel function and/or worsening lower extremity function could signal a dangerous complication resulting from the blood patches.

Mr. Raborn submitted an affidavit from Mary Irving, who maintained the records for Mr. Raborn’s counsel of record, along with the following attached exhibits in opposition to the motion for summary judgment:

• Exhibit A—excerpt from the deposition of Dr. Dunn;
h* Exhibit B—March 12, 2007 records from The NeuroMedical Center;
• Exhibit C—March 16, 2007 records
• from The NeuroMedical Center;
• Exhibit D—affidavit of Walter Pañis, M.D.;
• Exhibit E—affidavit of Mr. Raborn;
• Exhibit F—March 12, 2007 conditions of admission, patient informed consent, and post-procedure discharge instructions from The NeuroMedical Center;
• Exhibit G—March 16, 2007 conditions of admission, patient informed consent, and post-procedure discharge instructions from The NeuroMedical Center;
• Exhibit H—narrative of Dr. Dunn sub? mitted to the medical review panel;
• Exhibit I—excerpt from the deposition of Ziya L. Gokaslan, M.D., a radiologist with Johns Hopkins Hospital who treated Mr. Raborn in 2009;
• Exhibit J—March 29, 2007 report and conclusions from the Baton Rouge Radiology Group, Imaging Center, regarding MRI of Mr. Raborn’s lumbar spine; and
• Exhibit K—April 3, 2007 physician notes from the emergency room of Our Lady of the Lake Hospital.

On June 14, 2016, Dr. Dunn filed a motion to strike Mr. Raborn’s opposition and exhibits with an incorporated reply memorandum in support of the motion for summary judgment. Dr. Dunn first argued that Mr. Raborn’s opposition and exhibits should be stricken in their entirety. Dr. Dunn claimed the opposition constituted an improper expansion of the pleadings, reasoning Mr. Raborn sought to create a genuine issue of material fact with respect to the warning and counseling provided to him by Dr. Dunn. In the alternative, Dr. Dunn argued that Exhibits B, C, F, G, H, I, J, and K should be stricken as improper evidence on a motion for summary judgment under La. C.C.P. art. 966. Furthermore, Dr. Dunn argued that Exhibit D should be stricken on grounds it did not satisfy the physician | (¡witness expert qualification requirements of La. R.S. 9:2794. Finally, Dr. Dunn claimed that even if Exhibit D were admitted for purposes of the motion for summary judgment, the document was insufficient to establish a genuine issue of triable fact.

On June 20, 2016, the motion for summary judgment and motion to strike came before the trial court for -a hearing. Prior to the hearing, however, Mr. Raborn attempted to file a sur-reply on the motion for summary judgment along with the complete and properly certified copy of his medical records from The NeuroMedieal Center. Mr. Raborn also attempted to offer the medical records into evidence at the hearing on the motion for summary judgment. In open court, the trial court entertained and granted Dr. Dunn’s oral motion to strike the sur-reply and attached opposition evidence, explaining it could not consider this evidence under the controlling summary judgment law.

In addition, following the arguments of counsel on the remaining matters, the trial court orally denied Dr. Dunn’s motion to strike, in part, with respect to Exhibits D and I, and orally granted Dr. Dunn’s motion to strike, in part, with respect to Exhibits B, C, F, G, H, J, and K. The trial court further ruled that it could not consider any informed consent claims raised by Mr. Raborn and found that Dr. Dunn was entitled to judgment as a matter of law on Mr. Raborn’s medical malpractice negligence claims. The trial court explained that Mr. Raborn could not bear his burden of proving Dr. Dunn breached the applicable standard of care, as required by the LMMA.

On July 1, 2016, the trial court signed a final judgment in accordance with its oral ruling and for the reasons assigned in open court. The trial court granted Dr. Dunn’s motion for summary judgment and ordered the 17dismissal, with prejudice, of Mr. Raborn’s claims against Dr. Dunn; granted Dr. Dunn’s motion to strike Exhibits B, C, F, G, H, J, and K; granted Dr. Dunn’s motion to strike the sur-reply and attached opposition evidence; and denied Dr. Dunn’s motion to strike Exhibits D and I. Mr, Raborn now appeals.

ASSIGNMENTS OF ERROR

Mr. Raborn raises the following assignments of error:

1. The trial court committed legal error by excluding records created and signed by Dr. Dunn from evidence.
2. The trial court committed legal error by not admitting into evidence records maintained by Dr. Dunn that were produced in discovery.
3. The trial court committed an abuse of discretion by not allowing Mr. Raborn to supplement the affidavit supporting the medical records with the actual certified copy of the records.
4. The trial court committed legal error in holding that Mr. Raborn was required to offer medical evidence of both the standard of care and deviation from the standard of care.
5. The trial court committed legal error in failing to find that numerous fact issues exist about what happened between the second blood patch, on March 16, 2007, and April 3, 2007, when a serious complication was diagnosed by another physician.

LAW AND DISCUSSION

Motion for Summary Judgment— Applicable Law

Louisiana Code of Civil Procedure art. 966 was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 governs the summary judgment proceedings in this case and provides as follows:

A. (1) A party may move for a summary judgment for all or part of the relief for which he has prayed. A plaintiffs motion may be filed at any time after the answer has been filed. A defendant’s motion may be filed at any time.
(2)The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, | ^except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
(3) After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.
(4) The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.
B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.
(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.
(4) If the deadline for filing and serving a motion, an opposition, or a reply memorandum falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday.
C. (1) Unless otherwise agreed to by all of the parties and the court:
(a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date.
(b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing..
(2) For good cause shown, the court may order a continuance of the hearing.
|fl(3) The court shall render a. judgment on the motion not less than twenty days prior to the trial.
(4) In all cases, the court shall state on the record or in writing the reasons for granting or denying the motion. If an appealable judgment is rendered, a party may request written reasons for judgment as provided in Article 1917.
D. (1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
(2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.
E‘. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or-parties.
F. A summary judgment may be rendered or affirmed only as to. those issues set forth in the motion under consideration by the court at that time.
G. When the court grants a motion for summary-judgment in accordance with the provisions of this Article, that a party or non-party, is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non-party. During the course of the trial, no party or person shall refer directly or indirectly to any such fault, nor shall that party or non-party’s fault be submitted to the jury or included on the jury verdict form. ’
H. On review, an appellate court shall not reverse a trial court’s denial of a motion for summary judgment and grant a summary 1 ^judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument. .

Motion for Summary Judgment— Procedure & Evidence

In his first and second assignments of error, taken together, Mr. Raborn argues that the trial court legally erred in excluding several of the exhibits attached in opposition to the motion for summary judgment. Mr. Raborn submits that the trial court erred in excluding these exhibits based upon its erroneous interpretation and application of the amended version of Article 966.

Louisiana Code of Civil Procedure art. 966(A)(4) now provides that the only documents which may be filed in support of or in opposition to a motion for summary judgment are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The legislative comments to the amended version of Article 966 clarify that Subparagraph (A)(4), which is new, sets- forth the exclusive list of documents that may be filed in support of or in - opposition to a motion for. summary judgment, and intentionally does not allow the filing of documents that are not included in the exclusive list, such as photographs, pictures, video images, or contracts, unless they are properly authenticated by an affidavit or deposition to which they are attached. See La. C.C.P. art. 966, cmt. (c) (2015).

In accordance therewith, we find that the trial court did not err in granting Dr. Dunn’s motion to strike Exhibits B, C, F, G, H, J, and K. These exhibits were offered by Mr. Raborn in opposition to the motion for summary judgment, but are not included within the exclusive list of documents that may be admitted into evidence and considered in support of or in opposition to a motion for summary judgment, since these exhibits are In not pleadings, memoranda, affidavits, depositions, . answers to interrogatories, certified medical records, written stipulations, or admissions. Dr. Dunn timely objected to the admission, of these documents, and the trial court did not err in refusing to consider these exhibits as proper evidence on the motion for summary judgment. ,

In rendering our decision on this'point, we recognize that several of the exhibits offered by Mr. Raborn in opposition to the motion for summary judgment, including Exhibits B, C, F, G, J, and K, appear to be excerpts from medical records created and maintained by Mr. Raborn’s 'health care providers. Mr. Raborn strenuously argues on appeal that these excerpts' were taken from voluminous certified medical records produced during discovery. Mr. Raborn claims that he could not 'have reasonably anticipated Dr. Dunn would challenge the admissibility of these documents, which he asserts were properly authenticated and should have been admitted into evidence. We are not persuaded by these arguments, however; because the excerpts were not certified as required by statutory law. '

Louisiana Revised Statute 13:3714(A) sets forth the following statutory guidelines concerning the admissibility of certified medical records:

Whenever a certified copy of the chart or record of any hospital, signed by' the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A), certified or attested to by the state health care provider or the' private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.

hJn the instant case, it is clear that the medical record excerpts submitted by Mr. Raborn in opposition to the motion for summary judgment did not meet the requirements for certification so as to be admissible in accordance with La. R.S. 13:3714(A). The medical record excerpts were not certified copies of charts or records signed by the administrator or the medical records librarian of the health care provider in question. Since the amended version of Article 966 exclusively recognizes the admissibility of certified medical records in support of or in opposition to a motion for summary judgment, we cannot say that the trial court erred in excluding the excerpts of Mr. Raborn’s medical records offered in opposition to the motion for summary judgment. Mr. Raborn’s first and second assignments of error do not merit relief.

In his related third assignment of error, Mr. Raborn argues that the trial court abused its discretion in refusing to allow him to supplement the opposition to the motion for summary judgment with the complete and properly certified copy of his medical records. Mr. Raborn contends that the trial court incorrectly assumed it did not have the authority to allow supplementation of the opposition to the motion for summary judgment under La. C.C.P. art. 966. Mr. Raborn claims that he should have been permitted to supplement the opposition to the motion for summary judgment in accordance with La. C.C.P. art. 967(A).

Louisiana Code of Civil Procedure art. 967(A) provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by-depositions, answers to interrogatories, or by further affidavits.

| islnitially, we note that Mr. Raborn’s attempted supplementation of the opposition to the motion for summary judgment through his submission of a sur-reply with attached certified medical records does not appear to fall within the ambit of the supplementation of affidavits envisioned by La. C.C.P. art. 967(A). Mr. Raborn did not attempt to supplement an opposing affidavit on the motion for summary judgment by depositions, answers to interrogatories or further affidavits. Rather, Mr. Raborn attempted to supplement the opposition to the motion for summary judgment itself by submitting a sur-reply—-the admissibility of which is not recognized by Article 966— along with attached certified medical records that would have constituted proper opposition evidence as per La. C.C.P. art. 966(A)(4).

However, even if we were to find that Mr. Raborn’s attempted supplementation of his opposition to the motion for summary judgment had been permissible under La. C.C.P. arts. 966 and 967, the trial court could still have properly excluded the attached opposition evidence on grounds of timeliness. Louisiana Code of Civil Procedure art. 966(B) mandates that an opposition to a motion for summary judgment, along with all documents in support of the opposition, must be filed no less than fifteen days prior to the hearing on the motion. The time limitations established by La. C.C.P. art. 966(B) for the filing and serving of evidence in opposition to a motion for summary judgment are mandatory; evidence not timely filed can be ruled inadmissible and properly excluded by the trial court. See Buggage v. Volks Constructors, 06-0175 (La. 5/5/06), 928 So.2d 536 (per curiam) (addressing same in the context of an opposition and affidavit filed by a plaintiff on the day of the hearing on a motion for summary judgment).

Here, the record indicates that Mr. Raborn did not attempt to file the sur-reply and attached opposition evidence until, at the earliest, six days 114prior to the hearing on the motion for summary judgment. Therefore, even if Mr. Raborn had been entitled to supplement his opposition to the motion for summary judgment with the sur-reply and attached opposition evidence, the trial court could still have refused to consider the opposition evidence, since the opposition evidence was not filed in accordance with the time limitations established by La. C.C.P. art. 966(B). Thus, we cannot say that the trial court erred in refusing to consider the sur-reply and attached evidence offered by Mr. Raborn in opposition to the motion for summary judgment. Mr. Raborn’s third assignment of error does not merit relief.

Motion for Summary Judgment—Merits

In his fourth assignment of error, which concerns the trial court’s granting of summary judgment on the merits, Mr. Raborn argues that the trial court erred in holding that he was required to present expert testimony as to both the standard of care and the deviation from the standard of care. In his related fifth assignment of error, Mr. Raborn argues the trial court erred by failing to consider numerous disputed issues of material fact, which he contends should have precluded the granting of summary judgment.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. See La. C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The legal standard to be used by the courts in granting a | ^motion for summary judgment remains unchanged by the recent legislative amendments to Article 966. See La. C.C.P. art. 966, cmt. (b) (2015).

The burden of proof on a motion for summary judgment rests with the movant. Nevertheless, if the movant will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is then on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the movant is not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1).

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but rather to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). In determining whether summary judgment is appropriate on appeal, we review evidence de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Temple v. Morgan, 15-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 16-1255 (La. 10/28/16), 208 So.3d 889. Because it is the substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Bice v. Home Depot U.S.A., Inc., 16-0447 (La.App. 1 Cir. 12/22/16), 210 So.3d 315, 318.

The substantive law applicable to this case, the LMMA, provides that the plaintiff in a medical malpractice action must establish by a | ^preponderance of the evidence: 1) the standard of care applicable to the defendant physician; 2) that the defendant physician breached the applicable standard of care; and 3) that there was a causal connection between the breach and the resulting injury. See La. R.S. 9:2794(A); Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1006. In order to meet this burden, the plaintiff is generally required to produce expert medical testimony. Boudreaux v. Mid-Continent Cas. Co., 05-2453 (La.App. 1 Cir. 11/3/06), 950 So.2d 839, 844, writ denied, 06-2775 (La. 1/26/07), 948 So.2d 171. The jurisprudence does recognize an exception to this rule in instances of obvious negligence, but the exception is limited to cases in which the medical and factual issues are such that a lay jury can perceive negligence as well as any expert. The requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported the motion with expert opinion evidence that the treatment met the applicable standard of care. Id.

In the case at bar, Dr. Dunn attached several exhibits in support of his motion for summary judgment, including an affidavit from the attorney chairman of the medical review panel with an attached copy of the decision of the medical review panel and an excerpt from the deposition of Mr. Raborn’s expert witness, Dr. Pañis. Dr. Dunn pointed out that the medical review panel found he did not deviate from the applicable standard of care in his treatment of Mr. Raborn, and he noted that Dr. Pañis’ deposition testimony proved he agreed with the findings of the medical review panel. Dr. Dunn specifically directed the trial court to consider Dr. Pañis’ affirmative response, “I agree,” when asked whether he agreed with the findings of the medical review panel that there was no deviation from the Inappropriate standard of- care by Dr. Dunn in reference to the subdural hematoma.

In opposition to the motion for summary judgment, Mr. Raborn claimed that there were remaining issues of triable fact regarding the occurrences between March 16, 2007 and April 3, 2007. Mr. Raborn further asserted that even if Dr. Dunn’s decision to perform the discogram, .fell within the applicable standard of care, Dr. Dunn had breached the standard of care in his failure to provide appropriate instructions, warning, and advice in advance of the blood patches, and in jiis response to the blood patch complications. Mr, Raborn stressed that he was not warned of the possibility that changes in bladder and bowel function and/or worsening lower extremity-function could signal a dangerous complication to the blood patches. Mr. Ra-born attached several exhibits in opposition to the motion for summary judgment, but, for the reasons explained in the preceding sections of this opinion, Exhibits A, D, E, and I were the sole admissible items of opposition evidence.

Nevertheless, Mr. Raborn maintains on appeal that the opposition evidence was sufficient to establish genuine issues of material fact regarding Dr. Dunn’s medical treatment and communication of warnings and complications that could arise as a result of the medical procedures. Mr. Ra-born notes several of the averments made in his opposition affidavit concerning his medical condition after the second blood patch conflict with the representations made by Dr. Dunn. In addition, Mr. Ra-born no,tes Dr. Pañis indicated in his affidavit that Dr. Dunn should have informed Mr. Raborn to immediately report any worsening of bladder or bowel function or new problems with his lower extremities and, upon the report of these | ^conditions, should have performed imaging studies, which may have allowed consideration of strategies to mitigate the subdural hema-toma.

We have reviewed the evidence admitted for purposes of the motion for summary judgment de novo, and we agree with the trial court'that there were no genuine issues of material fact and that Dr. Dunn was entitled to judgment as a matter of law. Dr. Dunn submitted evidence in support of the motion for summary judgment sufficient to satisfy his burden of pointing out an absence of support for one or more essential elements to Mr. Raborn’s medical malpractice claims; that is, Dr. Dunn pointed out that Mr. Raborn did not appear to have factual support sufficient to prove the applicable standard of care or a deviation from the applicable standard of care. Mr. Raborn then bore the burden of producing factual evidence sufficient to establish that he would be able to bear his burden of proof under the- LMMA on these issues at trial. Mr. Raborn did not satisfy this responsive burden.

Critically, the sole expert opinion evidence offered by Mr. Raborn in opposition-to the motion for,summary judgment concerned Dr. Dunn’s communication of warnings regarding the possible side effects of the blood patches and his instructions concerning the reporting of potential complications. This evidence, while potentially relevant to the . issue of informed consent, is not appurtenant to the pleaded allegations of surgical negligence. It is well-settled under Louisiana law that a claim for surgical malpractice and a claim for breach of the duty to obtain informed consent are distinct causes of action based upon different statutory duties. See Lieux v. Mitchell, 06-0382 (La.App. 1 Cir. 12/28/06), 951 So.2d 307, 317, writ denied, 07-0905 (La. 6/15/07), 958 So.2d 1199 (citing Gunter v. Plauche, 439 So.2d 437, 440 (La. 1983)).

I min Lieux, 951 So.2d at 317, this court explained that the facts which give rise to a claim of surgical malpractice do not necessarily encompass a claim for lack of informed consent. Furthermore, according to controlling statutory law, in a lawsuit against a physician involving a medical malpractice claim based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the .medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent. See La. R.S. 40:1299.40(E)(2)(a) (prior to repeal and reenactment by La. Acts 2012, No. 600, § 2, eff. June 7, 2012).

In the case at bar, Mr. Raborn repeatedly and plainly alleged acts of medical negligence by Dr. Dunn. Mr. Raborn never expanded the pleadings to include a, claim of informed consent or alleged that Dr. Dunn’s failure to communicate the medical risks or hazards of the blood patch reasonably influenced his decision to consent to the medical procedures, which, according to La. R.S. 40:1299.40(E)(2)(a), is the only basis of recovery permitted in a medical malpractice claim against a physician based upon the failure of the physician to adequately disclose potential risks. Therefore, we agree with the trial court’s conclusion that a claim of informed consent was not properly before it. Cf., Lieux, 951 So.2d at 317.

In addition, because Mr. Raborn did not present any other expert medical opinion evidence in opposition to the motion for summary judgment regarding the standard of care governing the actual pleaded allegations of medical negligence or disputing the representation of his own expert witness who testified that he agreed with the findings of the medical review panel, |2owe are bound to conclude that Mr. Ra-born failed to satisfy his responsive burden on the motion for summary judgment. Thus, we also agree with the trial court’s finding that Dr. Dunn was entitled to judgment as a matter of law on the medical malpractice claims. The trial court did not err in granting the motion for summary judgment and ordering the dismissal, with prejudice, of Mr. Raborn’s medical malpractice claims against Dr. Dunn. Mr. Ra-born’s fourth and fifth assignments of error are without merit.

DECREE

For the foregoing reasons, we affirm the ruling of the trial court granting summary judgment in favor of the defendant-appel-lee, Shawn G. Dunn, M.D., and ordering the dismissal, with prejudice, of the plaintiff-appellant’s claims against Dr. Dunn. All costs of this appeal are assessed to the plaintiff-appellant, Frank Raborn.

AFFIRMED.

J. CHUTZ, concurs.

      . The LMMA was re-designated as La. R.S. 40:1231.1 to 1231,10 by House Concurrent Resolution No, 84 of the 2015 Regular Session, with an effective date of June 2, 2015. Here, we refer to the prior version of the LMMA, which was" in effect throughout the time period in question.

      . We note that the record on appeal does not establish the exact date Mr. Raborn attempted to file the sur-reply and attached opposition evidence. However, Mr. Raborn necessarily attempted to file the sur-reply after Dr. Dunn filed the motion to strike and incorporated reply memorandum in support of the motion for summary judgment on June 14, 2016, i.e., six days prior to the hearing on the motion for summary judgment.