author: JAMES F. MCKAY III CHIEF JUDGE

text:
    Timothy DANIEL v. CLARION INN & SUITES, Choice Hotel International, Inc., and ABC Insurance Company
    NO. 2016-CA-0760
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 22, 2017

      N. SUNDIATA HALEY, HALEY LAW FIRM, LLC, 650 Poydras Street, Suite 2015, New Orleans, Louisiana 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    JAIRO F. SANCHEZ, THOMAS LIVINGSTON GAUDRY, JR., JOHN J. DANNA, JR., GAUDRY RANSON HIGGINS & GREMILLION, L.L.C., 401 Whitney Avenue, Suite 500, Gretna, Louisiana 70056, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins)
   JAMES F. MCKAY III CHIEF JUDGE

Lin this personal injury ease, plaintiff, Timothy Daniel, (“Mr. Daniel”), seeks review of the trial court’s judgment, granting a motion for summary judgment in favor of defendant, Khan Properties, Inc. d/b/a Clarion Inn & Suites (“Hotel”). For the reasons that follow, we affirm the judgment of the trial court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In September 2012, Mr. Daniel was a guest at the Hotel, located at 1300 Canal Street in New Orleans. Mr. Daniel filed a petition for damages alleging that while exiting the Hotel, he walked into unmarked automatic glass sliding doors that failed to open properly. As a result, Mr. Daniel alleges to have suffered a broken nose.

The Hotel filed a motion for summary judgment asserting that it had no notice of any defective condition with the doors pri- or to Mr. Daniel’s .incident. Mr. Daniel opposed the motion, maintaining that an unidentified man who witnessed the accident told him that the problem with the doors happened two or three times before. Thus, Mr. Daniel argued that there were genuine issues of material fact as |ato whether the Hotel had knowledge of the alleged defect.

The matter was brought before the trial court on November 20, 2015. Judgment was rendered December 2, 2015 granting summary judgment in favor of the Hotel (particularly, “Kahn Properties, Inc. d/b/a Clarion Inn & Suites”) and dismissing Mr. Daniel’s action with prejudice. Mr. Daniel’s motion for new trial was heard by the trial court on March 16, 2016. After failing to produce any new evidence in opposition to the motion for summary judgment, the motion for new trial was denied.

On appeal, Mr. Daniel asserts the following assignments of error:

1, The summary judgment rules are unconstitutional if the impact of their application is to deny a plaintiffs fair access to the litigation and trial process;
2. The trial court erred in finding no genuine issue of material fact as to whether the Hotel had actual or constructive notice of a defect;
3. The trial court erred in granting summary judgment despite a reasonable probability that the high volume of usage of the elevator [sic] since its last inspection and repair would manifest in malfunctioning; and
4. The trial court erred in finding that the Hotel’s arguments and evidence were sufficient to determine that the Hotel has no liability to Mr. Daniel.

We note that assignments of error numbers one and three were not briefed by Mr. Daniel; thus, they are deemed abandoned under Uniform Rules—Courts of Appeal, Rule 2-12.4. See Countrywide Home Loans Servicing, LP v. Thomas, 12-1304, p. 3 (La.App. 4 Cir. 3/20/13), 113 So.3d 355, 357. Furthermore, because the arguments presented in assignments of error numbers two and four are intertwined, we will address them together below.

STANDARD OF REVIEW

“A trial court’s disposition of a motion for summary judgment is reviewed using the de novo standard of review ‘under the same criteria governing the trial |acourt’s consideration of whether summary judgment is appropriate.’” Williams v. Archer Western Construction, LLC, 16-0158, p. 3 (La.App. 4 Cir. 10/5/16), 203 So.3d 325, 328 (quoting Citron v. Gentilly Carnival Club, Inc., 14-1096, p. 12 (La.App. 4 Cir. 4/15/15), 165 So.3d 304, 313). The summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action except those disallowed by Article 969.” La. C.C.P. art. 966(A)(2).

A motion for summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2) and (C)(1). Pursuant to La. C.C.P. art. 966(C)(2), prior to the 2016 amendments:

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual evidence 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, and the mover is entitled to summary judgment.

It is well established that a fact becomes “material” when “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Smith v. Our Lady of the Lake Hosp. Inc, 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. A “material fact” is one that could “potentially insure Lor preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id. If doubts arise regarding the existence of a material issue of fact, the court must refuse the motion and instead, proceed with a trial on the merits. Id.

LAW AND ANALYSIS

The accident from which this lawsuit arises stems from an alleged defect in the Hotel’s automatic glass sliding doors. La. C.C. arts. 2317, 2317.1, and 2322 set forth the legal basis for liability in this case. La. C.C. art. 2317 provides:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La. C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La. C.C. art. 2322 further provides:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

[filt is well established that a plaintiff alleging negligence or strict liability of a building owner or custodian must prove three elements: (1) the defendant either owned or had care, custody, or control of the thing in question; (2) the thing was a cause-in-fact of the plaintiffs injuries; and (3) the thing presented an unreasonable risk of harm. Gallina v. Hero Lands Co., 03-0331, pp. 4-5 (La.App. 4 Cir. 10/7/03), 859 So.2d 758, 762 (citing Baker v. Murphy Oil USA Inc., 01-1299, p. 5 (La.App. 4 Cir. 4/10/02), 816 So.2d 329, 332). In addition, the plaintiff must prove: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (3) that the defendant failed to exercise such reasonable care. Wells v. St. Augustine High School, Inc., 14-0234, p. 7 (La.App. 4 Cir. 9/3/14), 150 So.3d 1, 5 (citing Gailey v. Barnett, 12-0830, p. 5 (La.App. 4 Cir. 12/5/12), 106 So.3d 625, 628).

With regard to the element of knowledge, a plaintiff must prove that the defendant had actual or constructive knowledge of the vice or defect. Constructive knowledge “imposes a reasonable duty to discover apparent defects in things under the defendant’s garde.” Tsegaye v. City of New Orleans, 15-0676, p. 20 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 718, unit denied, 16-0119 (La. 3/4/16), 188 So.3d 1064 (citing Ladner v. Trinity Group, Ltd., 45,937, p. 9 (La.App. 2 Cir. 2/16/11), 57 So.3d 1197, 1202). A court may find constructive knowledge “if the conditions that caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.” Id. (citing Boutin v. Roman Catholic Church of Diocese of Baton Rouge, 14-313, p. 6 (La.App. 5 Cir. 10/29/14), 164 So.3d 243, 246-47.

| (jin the present case, the trial court granted summary judgment in favor of the Hotel finding that Mr. Daniel had nothing to show knowledge of a defect on the part of the Hotel. Mr. Daniel submits that the trial court erred in: 1) finding no genuine issue of material fact as to whether the Hotel had actual or constructive notice of a defect; and 2) finding that the evidence was sufficient to show that the Hotel had no liability to Mr. Daniel. Based on our de novo review of the record, and for the reasons set forth below, we find no merit in Mr. Daniel’s assignments of error.

In support of their motion for summary judgment, the Hotel introduced the following evidence, to which Mr. Daniel voiced no objection:

1) The petition for damages;
2) Excerpts from Mr. Daniel’s deposition, dated October 11, 2013;
3) Two surveillance videos of the incident (verified by affidavit);
4) Affidavit of A. Raoof Khan;
5) Affidavit of Fernando Perez;
6) Affidavit of Antonio Wilkins;
7) Affidavit of Osman Khan; and
8) Photographs from the surveillance videos.

The folio-wing excerpts are taken from Mr. Daniel’s deposition:

Q. You are just saying that when you walked into the door, the doors didn’t open timely?
A. Right, well, timely is being gracious. They didn’t open at all from what I have seen, because I would have at least seen them kind of moving, but I didn’t see anything and I walked directly into the door. And the guy who came to my aid, the guy who was holding the front door, and again I didn’t get his name, but he said that’s like the second or third time that’s happened with the doors
Q. How many days were you at the hotel before your accident happened?
A. I would say two days, and again, I’m not certain of that. Thursday, Friday, probably two days.
|7Q. How many times did you go in and out of those doors before your accident? A. I would say on a given day possibly four times a day.
Q. So when you had your accident you obviously had gone through those doors before?
A. Yes, sir.
Q. Four times, eight times?
A. Probably at least three times, three or four times a day.

The Hotel’s surveillance video of the incident is very telling. The video shows that prior to Mr. Daniel’s incident, the doors opened automatically a number of times for other guests, without incident. Also, in direct contrast to Mr. Daniel’s deposition testimony (that the doors did not open at all), the video clearly shows the doors sliding open as Mr. Daniel approached. It further shows Mr. Daniel walking directly into the doors before they had an opportunity to open completely. There is no evidence on the video that the doors failed to open properly.

A. Raoof Kahn, the owner of the Hotel, attested in his affidavit that the doors in question were installed in 2001. Since then, the doors operated problem free except for a short period of time when the Hotel was shut down after Hurricane Katrina in 2005. After the hurricane, the doors were inspected and put back in service. Other than that, no major repairs had ever been needed or performed. He further stated that he had no personal knowledge of any reported problems prior to Mr. Daniel’s incident.

Fernando Perez, the Hotel’s front desk clerk, stated in his affidavit that on the night in question, he saw approximately fifty to one hundred guests use the sliding doors without incident. He further stated that in his nine years at the Hotel, he was aware of no reported problems with the doors.

| RAntonio Wilkins, General Manager of the Hotel, stated that in the seven years employed at the Hotel, there were no other complaints or accidents with regard to the. doors in question. Similarly, Osman Kahn, a manager at the Hotel, stated in his affidavit that in his sixteen years of employment, there were no other complaints or accidents involving the doors.

Mr. Daniel presented nothing to dispute the Hotel’s affidavits. In opposition to the motion for summary judgment, Mr. Daniel relied on his deposition testimony. As previously explained, Mr. Daniel’s deposition testimony described an unidentified hotel employee, standing just outside of the sliding doors, who exclaimed that it was the second or third time that the doors failed to open properly. Mr. Daniel maintains that this assertion is sufficient to show a genuine issue of material fact as to the Hotel’s prior knowledge of a defect.

We note from our review of the record (and also noted by the trial court) that at the time of the hearing on the motion for summary judgment, this case was pending for nearly 3 years, with virtually no discovery conducted to identify the man who allegedly made the statement regarding prior problems with the doors. In fact, when questioned as to the lack of discovery, Mr. Daniel’s attorney freely acknowledged that there had not been much discovery because he thought the case would be resolved through settlement negotiations.

As this Court stated in Rivarde v. City of New Orleans, 15-0655, p. 5 (La. App. 4 Cir. 3/9/16), 190 So.3d 400, 403, writ denied, 16-0670 (La. 5/27/16), 192 So.3d 744 (citing Newsome v. Homer Memorial Medical Center, 10-0564, p. 3 (La. 4/9/10), 32 So.3d 800, 802), “[a] district court’s decision to hear a motion for summary judgment where discovery is alleged to be incomplete is reviewed under an abuse of discretion standard.” In the present case, Mr. Daniel clearly had ample Ltime to conduct discovery to identify the employee in question. Accordingly, we find no abuse of discretion on the part of the trial court in proceeding with the motion for summary judgment.

Mr. Daniel also alleges in the petition that the Hotel was negligent in failing to have the doors properly marked. Regarding Mr. Daniel’s description of the glass doors, the following excerpt is taken from his deposition:

Q. Can you tell me more about, was it one set of glass doors or two sets of glass doors?
A. It’s two sets of glass doors coming from inside of the hotel. As soon as you are leaving the lobby, the two doors are automatically, again in proximity, they will open up. You go through those doors and then there is another set of doors which the person out front is standing by with regular bars and everything on them and he would open those doors. He would manually open those doors.
Q. But the inside doors were sliding doors?
A. Yeah. The sliding doors were straight glass. Like these windows, there is no type of indicator, no sticker, no trimming around the doors, just straight glass.

Other than this assertion, there was no evidence presented to show that the doors were “unmarked.” Moreover, it is evident from the record that Mr. Daniel was well aware that the doors were automatic sliding glass doors. According to his deposition testimony, Mr. Daniel was at the Hotel for two days before the incident, and had probably used the doors at least three or four times a day. It is also evident from the surveillance video that for some time prior to the incident, Mr. Daniel was sitting in the lobby in close proximity to the doors, and could clearly observe other individuals going in and out of the automatic doors.

In further opposition to the motion for summary judgment, Mr. Daniel attached two documents, Exhibit B and Exhibit C, to his memorandum. The Hotel timely objected.

hnExhibit B is an article entitled Safety is Key with Automatic Doors, purportedly written by Edward M. Stevens (Consultant for the American Association of Automatic Door Manufactures). The document is not verified or authenticated by an affidavit, or sworn to in anyway. Moreover, the author is not listed as an expert witness.

Exhibit C is an owner’s manual for an unidentified automatic sliding door issued by the American Association of Automatic Door Manufactures. As with Exhibit B, this document is not verified or authenticated.

Regarding unverified and/or unauthenticated documents presented in connection with motions for summary judgments, this Court has stated:

We have repeatedly held that “[i]n meeting the burden of proof, unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and therefore will not be considered.” Williams v. Memorial Medical Center, 03-1806, p. 14 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053.
“The requirement that documents be verified or authenticated is not merely a mechanical one of form only. It is based on the fundamental fact that such documents are not self-proving.” Schully v. Hughes, 00-2605, p. 5 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1222. To allow unverified and or unauthenticated documents to be considered would result in “all manner of worthless documents [to] magically somehow become admissible by virtue of merely stapling them to a motion for summary judgment.” Id.

Person v. 2434 St. Charles Ave. Condominium Ass’n, 11-1097, pp. 4-5 (La.App. 4 Cir. 3/7/12), 88 So.3d 679, 682.

Here, we note that the Hotel correctly objected to the introduction of Exhibits B and C. Although the trial court did not specifically rule on the Hotel’s objection, it does not appear that the trial court relied on the documents. Moreover, in accordance with the jurisprudence cited herein-above, we cannot consider these documents in our de novo review of the matter before us.

InFinally, Mr. Daniel argued in his opposing memorandum that the Hotel was in direct violation of certain federal regulations, which set forth requirements for signage on electric doors. The record demonstrates that Mr. Daniel did not present evidence to the trial court in support of this allegation, nor is it addressed in his appellate brief. Consequently, the alleged violation of federal regulations is not before us.

After carefully reviewing the evidence presented by the Hotel, we conclude that the motion for summary judgment is amply supported. To overcome summary judgment, Mr. Daniel was required to show evidence that genuine issues of material fact exist as to the Hotel’s actual or constructive knowledge of the allegedly defective door prior to the incident in question. La. C.C.P. art. 967(B) outlines the non-moving party’s burden of production as follows:

When a motion for summary judgment is made and supported ..., an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Here, Mr. Daniel was unable to produce any evidence, other than conclusory allegations, in support of his case. The evidence upon which Mr. Daniel relies (his deposition testimony and the alleged statement made by an unidentified hotel employee) does not establish a genuine issue of material fact as to the Hotel’s constructive knowledge of the allegedly defective door.

CONCLUSION

Our de novo review of the record demonstrates that Mr. Daniel has not established proof sufficient to show he can meet his evidentiary burden at trial. | ^Accordingly, we affirm the trial court’s granting of summary judgment in favor of the Hotel.

AFFIRMED

      . The petition for damages named Clarion Inn & Suites, Choice International, Inc., and ABC Insurance as defendants. Kahn Properties, Inc. d/b/a Clarion Inn & Suites answered the petition. Choice International, Inc. was dismissed upon motion of Mr. Daniel.

      . This language is from La. C.C.P. art. 966 as it existed at the time the motion for summary judgment in this matter was filed and heard, which was prior to the article’s amendment that became effective on January 1, 2016. See Acts 2015, No. 422, § 1.


source: Caselaw Access Project

author:
PICKETT, Judge.
      SAVOIE, J.,

license: Public Domain

text:
    Gloria VALLARE, individually and on behalf of all others similarly situated v. VILLE PLATTE MEDICAL CENTER, LLC, and Louisiana Health Service and Indemnity Co, d/b/a Blue Cross Blue Shield of Louisiana
    16-863
    16-953
    Court of Appeal of Louisiana, Third Circuit.
    02/22/2017

      Charles A. O’Brien, III, Alison N. Pham, Attorneys at Law, P.O. Box 98029, Baton Rouge, LA 70898-9029, (225) 295-2454, COUNSEL FOR DEFENDANT-APPLICANT: Louisiana Health Service and Indemnity Co., d/b/a Blue Cross and Blue Shield of Louisiana
    Kurt S. Blankenship, Robert I. Baudouin, Amanda B. Bensabat, Blue Williams, L.L.P., 3421 North Causeway Blvd, Ninth Floor, Metairie, LA 70002, (504) 830-4938, COUNSEL FOR DEFENDANT-APPLICANT: Ville Platte Medical Center, LLC
    Scott R. Bickford, Lawrence J. Centola, III, Jason Z. Landry, Martzell & Bickford, 338 Lafayette St., New Orleans, LA 70130, (504) 581-9065, COUNSEL FOR PLAINTIFF-RESPONDENT: Gloria Vallare
    J. Lee Hoffoss, Jr., Claude P. Devall, Donald W. McKnight, Hoffoss Devall, LLC, 517 West College Street, Lake Charles, LA 70605, (337) 433-2053, COUNSEL FOR PLAINTIFF-RESPONDENT: Gloria Vallare
    J. Clemille Simon, Simon Law Offices, P.O. Box 52242, Lafayette, LA 70505, (337) 232-2000, COUNSEL FOR PLAINTIFF-RESPONDENT: Gloria Vallare

      Derrick G. Earles, Laborde Earles, LLC, P.O. Box 1559, Marksville, LA 71351, (318) 777-7777, COUNSEL FOR PLAINTIFF-RESPONDENT: Gloria Vallare
    Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   PICKETT, Judge.

|,The relator-defendant, Louisiana Health Service & Indemnity Company, d/b/a Blue Cross and Blue Shield of Louisiana (BCBS), seeks supervisory writs in our docket number 16-863 from the judgment of the trial court which overruled its exception of prescription.

The relator-defendant, Ville Platte Medical Center, LLC (VPMC), seeks supervisory writs in our docket number 16-953 from the judgment of the trial court which overruled its exception of prescription and denied its motion for summary judgment.

We have consolidated these writs for the purpose of issuing this opinion.

STATEMENT OF THE CASE

The facts and procedural history of these cases were explained in a prior appeal in this matter, Vallare v. Ville Platte Medical Center, LLC, 14-261, pp. 1-2 (La. App. 3 Cir. 11/5/14), 151 So.3d 984, 985, writ denied, 15-121 (La. 8/28/15), 176 So.3d 401:

Gloria Vallare was involved in a car accident and received treatment for injuries received therein at Acadian Medical Center in Eunice, Louisiana. Acadian Medical Center is a “branch campus” of VPMC. The bill for her treatment was $3,424.00. Vallare alleges that she had health insurance through Louisiana Health Service and Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana (Blue Cross) but that instead of billing her insurance carrier, VPMC sent a notice of lien to Farm Bureau Insurance, the insurer of the other party involved in the car accident. Pursuant to the lien, Farm Bureau issued a check made payable to Vallare and the hospital. Vallare took the position that the hospital was in violation of its agreement with Blue Cross by demanding an amount in excess of the contracted reimbursement rate set forth in the provider agreement. Vallare, individually and on behalf of all others similarly situated (Plaintiffs), filed suit against VPMC for violations of [La.R.S 22:1874]. Blue Cross was also made a defendant, and the claims against it were based on allegations that it did not enforce its provider agreement with VPMC.
lain due course, Plaintiffs sought to have the class certified. The trial court held an evidentiary hearing and granted the motion to certify the class. The class was defined as follows:
All persons from January 1, 2004[,] to June 18, 2013[,] who received “covered health care services” as defined by La. R.S. 22:1874(8) provided by Eunice Community Medical Center/Acadi-an Medical Center and all persons since April 1, 2010[,] who received “covered health care services” as defined by La.R.S. 22:1874(8) from VILLE PLATTE MEDICAL CENTER and its predecessors (“VPMC[”]); and at the time of the covered health care services had “Health Insurance Coverage” as defined by La. R.S. 22:1874(18); and from whom VPMC attempted to recover any amount in excess of the “contracted reimbursement rate” as defined by La. R.S. 22:1874(7) and/or who paid VPMC in any manner including but not limited to liability insurance proceeds and/or from proceeds of a settlement or judgment, an amount in excess of the “contracted reimbursement rate” either directly and/or through their attorney and/or through a liability insurance carrier and/or any third party.
This class is composed of the following subclasses:
“Attempt to Recover” subclass: A subclass of persons who received covered health care services, and who had health insurance coverage, and from whom VPMC attempted to recover any amount in excess of the “contracted reimbursement rate” from January 1, 2004[,] through June 18, 2013.
Payor subclass: A subclass of persons who received covered health care services, and who had health insurance coverage, and/or who paid VPMC in any manner including but not limited to liability insurance proceeds and/or from proceeds of a settlement or judgment, an amount in excess of the “contracted reimbursement rate” either directly and/or through their attorney and/or through a liability insurance carrier and/or any third party, from January 1, 2004[,] through June 18, 2013.

VPMC appealed the class certification. The trial court’s ruling certifying the class was affirmed on appeal, but the class definition was amended to delete the subclasses. Vallare, 151 So.3d 984.

laOn remand, BCBS filed an exception of prescription while VPMC filed an exception of prescription and a motion for summary judgment. Both exceptions of prescription were overruled, and the motion for summary judgment was denied following a hearing on September 22, 2016. A written judgment was signed on October 5, 2016. BCBS and VPMC are now before this court seeking supervisory review of the trial court’s rulings.

SUPERVISORY RELIEF

“A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court.” Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878, 878 (La.1981). “In cases in which a peremptory exception has been overruled by the trial court, the appellate court appropriately exercises its supervisory jurisdiction when the trial court’s ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved.” Charlet v. Legislature of State of Louisiana, 97-0212 (La.App. 1 Cir. 6/29/98), 713 So.2d 1199, 1202, writs denied, 98-2023, 98-2026 (La. 11/13/98), 730 So.2d 934 (citing Herlitz, 396 So.2d 878). In such instances, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz, 396 So.2d 878. “The supervisory jurisdiction of this court may also be ‘exercised to reverse a trial court’s denial of a motion for summary judgment and to enter summary judgment in favor of the mover.’” Csaszar v. National Cas. Co., 14-1273, p. 3 (La.App. 3 Cir. 11/4/15), 177 So.3d 807, 809, writ denied, 15-2221 (La. 1/25/16), 185 So.3d 752 (quoting Richard v. Swiber, 98-1515, p. 4 (La.App. 1 Cir. 9/24/99), 760 So.2d 355, 358.)

ON THE MERITS

VPMC’s Exception of Prescription

VPMC argues, first, that Vallare vaguely alleges the existence of a contract between her and BCBS, and there is no contract between Vallare and VPMC. Further, VPMC contends that “the mere existence of a contract between the parties does not indicate that an action is contractual in nature.” Carriere v. Jackson Hewitt Tax Service Inc., 750 F.Supp.2d 694, 705 (E.D. La. 11/3/10). “Even when a contract exists, unless a specific contract provision is breached, Louisiana treats the action as tort.” Richard v. Wal-Mart Stores, Inc., 559 F.3d 341, 345 (5th Cir. 2009)(citing Trinity Universal Ins. Co. v. Horton, 33,-157 (La.App. 2 Cir. 4/5/00), 756 So.2d 637).

A central question in this litigation is whether VPMC and BCBS engaged in a prohibited practice called balance billing, as defined by La.R.S. 22:1874. The supreme court in Emigh v. W. Calcasieu Cameron Hosp., 13-2985, p. 3 (La. 7/1/14), 145 So.3d 369, 371, explained that the “practice of rejecting insurance and collecting or attempting to collect full charges is referred to as ‘balance billing’ and is prohibited by [La.R.S. 22:1874].”

VPMC refers to a recent case, Stewart v. Ruston Louisiana Hospital Company, LLC, 2016 WL 1715192 (W.D. La. 2016), involving similar facts wherein the court found that the plaintiffs’ claims, related to alleged violations of the Balance Billing Act, sounded in tort. The hospital in Stewart treated an insured minor for injuries sustained in an automobile accident. The hospital filed a medical provider’s lien to recoup the amount owed for the services provided and | ¡¡never billed the minor or her parents nor pursued collection of the amount owed. The minor and her parents filed suit as a class action approximately two years after services were rendered for violations of the Balance Billing Act and the Member Provider Agreement. The plaintiffs sought recovery of payments wrongfully made to the hospital, loss of profit damages, damages for emotional distress, mental anguish, and injunctive relief. The hospital subsequently filed a motion for summary judgment, arguing that the plaintiffs’ cause of action was delictual in nature and subject to a one-year prescriptive period. Further, the hospital urged that the plaintiffs’ claims had prescribed because they were filed more than one year past the date the plaintiffs knew of the violation.

In reaching its conclusion that one-year time limit was the appropriate prescriptive period, the court reasoned: (1) a violation of the act is unlawful and resembles an offense or quasi-offense; (2) the hospital’s duty to the plaintiffs stems from a statute, not a contract; (3) the plaintiffs mostly seek remedies that sound in tort; (4) analogous laws, i.e., LUTPA, support a one-year prescriptive period; and, (5) considering Anderson v. Oschner Health System, 13-2970 (La. 7/1/14), 172 So.3d 579, the supreme court would conclude that violations of the Balance Billing Act are delictual in nature.

VPMC also asserts that the Balance Billing Act is a consumer protection statute, citing Carriere, 750 F.Supp.2d 694, wherein the court referenced Louisiana consumer protection statutes that contain a one-year prescriptive period. Additionally, VPMC contends that Vallare’s claim for general damages under La.Civ.Code art. 2315 is subject to a one-year prescriptive period as provided in La.Civ.Code art. 3492; thus, if this court finds that general damages are allowed, the claim has prescribed.

|fiIn opposition, Vallare refers this court to Emigh, 145 So.3d 369, wherein an insured brought a putative class action against a hospital and health insurer for violations of the Balance Billing Act, La. R.S. 22:1874. The insurer’s exception of no cause of action was overruled by the trial court which found that the plaintiffs had a cause of action against the insurer under La.Civ.Code art. 1977. Article 1977 reads:

The object of a contract may be that a third person will incur an obligation or render a performance.
The party who promised that obligation or performance is liable for damages if the third person does not bind himself or does not perform.

This court denied writs, and the supreme court granted writs and affirmed the trial court’s ruling. In doing so, the supreme court reasoned:

This civilian concept known as pro-messe de porte-fort contemplates a contract in which the object is that a third party will undertake a certain obligation; in the-event of non-performance of that obligation by the third party, the promi-sor becomes liable .to the promisee. Blue Cross, as mentioned above, argues the object of the contract is solely to pay for covered health care services. Delouche acknowledges that payment of covered medical bills is an obvious object of the contract, but she contends the object extends beyond mere payment based on the terms and conditions of the contract of insurance. Rather, the object is to also secure reduced health care costs and tender payment for those negotiated, discounted costs. We agree with De-louche.
In this two-contract health care system that affects the majority of health insurance policies in this state, the insurance issuer, such as Blue Cross, promises to its insureds, such as De-louche, coverage and the availability of discounted rates based on the existence of its contract with its contracted providers, such as WCCH. The purpose of a health insurance contract and the very reason insureds obligate themselves to the payment of premiums and a restricted choice of in-network providers, is to receive coverage and the benefits of negotiated, reduced health care costs. To narrowly construe the object to mean only payment of covered charges, as Blue Cross argues, ignores the raison d’etre of the contract: an economic benefit to the insured. Holding otherwise is illogical based on the terms of this high deductible policy, where the promised reduced rate attaches the [ 7instant a medical charge is incurred, regardless of whether a deductible has been satisfied. The insurance policy at issue promised that even the out-of-pocket expenses that count towards Delouche’s deductible would be subject to a discount. If all that was promised by Blue Cross was coverage of the maximum amount, the incentive to have insurance, specifically a high deductible policy, dissipates insofar as the insured could simply pay the non-discounted bill herself without also incurring the costs of premiums. For these reasons, we find an- object of the contract is the entitlement to discounted health care costs.
The actual billing of this promised, discounted charge is performed by a third party. Thus, Blue Cross is promising that a third party will render a performance, which fits squarely within the context of La. Civ.Code art. 1977.

Id. at 374-375 (footnotes omitted).

At the hearing in the matter before us, the trial court ruled from the bench on VPMC’s exception of prescription as follows:

[Considering the facts as alleged by the party, and specifically pursuant to the, I’m gonna list them, there’s the contract between the patient, which was the plaintiff, and the provider, Ville Platte Medical Center, meaning not contract, as any contract, but services rendered and that flows from that. The contract between the patient and the health care insurer, which is not in this exception, but it’s Blue Cross, BCBSLA, and the contract between the provider and the health insurer, if one, again this is as alleged. At this stage that’s all the Court can go on by what is alleged. Uh, there are, these are the three contracts, and I use contract sometimes it’s the actions like the plaintiff’s service and the contract that results therefrom. As to the ... reading thereof, and also as to certain statutes, which includes the Balance Bill Act and the Health Care Provider’s Lien Statute. The Court considering all these factors ... therefore finds that the plaintiffs claim, including the claim for general damage that may flow ... therefrom at this stage. I’m not ruling that there is [sic] general damages or anything of that nature at this state [sic] as to the defendant’s attempt to collect is pursuant [sic], and therefore, finding that it is in the contract law, and therefore it’s a 10 year prescriptive period in this matter.

The trial court subsequently overruled VPMC’s exception of prescription.

In the Class Action Petition for Damages, Breach of Contract, Declaratory Judgment and for Injunctive Relief, it states that “[t]he relevant time period dates Isback to the commencement of the health care provider contract between VPMC and various health insurance issuers, which, upon information and belief, is January 1, 2000 to the present date, and continuing through the date of judgment.” On the part of VPMC, Vallare alleges violations of La.R.S. 22:1874 (balance billing) and breach of contract. Vallare also alleges that VPMC failed to perform as promised by BCBS, leading to the detrimental reliance upon VPMC’s promise to perform.

With regard to damages, Vallare seeks “repayment of the entirety of amounts collected by VPMC, for all overpayments, for mental anguish, worry and concern caused by wrongful collection practices and collections, loss of profits or use, out-of-pocket expenses, emotional distress, as well as all other damages allowed by law, along with penalties, attorney’s fees, costs, and expenses allowed by law.” Vallare asserts that VPMC and BCBS are solidarily hable for all damages attributable to breaches of law and contract by VPMC involving BCBS enrollees or insureds and that they are entitled to all damages penalties and attorney fees from BCBS for its failure to comply with the law and/or breach of contract with the plaintiffs.

Although Vallare does not identify a specific contract provision that was breached by VPMC, the act of balance billing involves Vallare’s account with VPMC which encompasses Vallare’s obligation to pay reasonable treatment charges that arise out of the underlying contractual relationship between Vallare as patient and VPMC as healthcare provider, not incurred as a result of a lien. See Howard v. Willis-Knighton Med. Ctr., 40,634 (La.App. 2 Cir. 3/8/06), 924 So.2d 1245, writs denied, 06-850, 06-1064 (La. 6/14/06), 929 So.2d 1271. This contract includes an implied provision as described in La.Civ.Code art. 2054 that |flVPMC will not balance bill its patients covered by a contracted health insurer. Article 2054 states that “[w]hen the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.”

We find that Vallare’s cause of action involves a contract or quasi-contractual obligation as described by the supreme court in Emigh, 145 So.3d 369, and is not based in tort. Any other finding would be contrary to the public policy of protecting consumers from the illegal practice of bal-anee billing, as recognized by the supreme court in Anderson, 172 So.3d 579. In Anderson, 172 So.3d at 586, the supreme court stated:

[W]e find an implied private right of action exists under La. R.S. 22:1871, et seq. based on (1) the legislature’s failure to expressly prohibit an individual remedy; (2) the legislative intent to protect consumers; and (3) the constitutional right of access to the courts in order to seek personal relief. Furthermore, we find an express private right of action exists under La. R.S. 22:1874(B) because Ochsner’s act of asserting a lien amounts to “maintaining an action at law,” which triggers the availability of a private suit. Accordingly, we affirm the lower courts’ denial of summary judgment and remand for proceedings consistent with this opinion.

We find that the proper prescriptive period is ten years and that the claims have not prescribed. Accordingly, the trial court did not err in denying VPMC’s exception of prescription.

VPMC’s Motion for Summary Judgment

At the hearing on the motion for summary judgment, the trial court denied the motion, finding that there were genuine issues of fact for a jury to decide. VPMC argues that Vallare’s allegations fail to support a statutory violation claim Imagainst VPMC. VPMC urges that it did not bill Vallare nor did it pursue a collection action against her for any amount owed for services rendered. VPMC states that it submitted a medical provider’s lien pursuant to La.R.S. 9:4752 to recoup the full amount of services provided out of any recovery from the responsible third party. The lien filed, VPMC asserts, was authorized by La.R.S. 9:4571, et seq., the Health Care Provider Lien Statute, and no money was collected from Vallare for medical services.

Vallare asserts that VPMC’s lien was pending at the time this action was filed, and for the purposes of La.R.S. 22:1874(B), constitutes maintaining an action at law. In Anderson, 172 So.3d 579, the supreme court held that the act of asserting a hen is sufficient to trigger the availability of a private suit.

Due to the complexity of this case, there are factual determinations at issue which render this matter inappropriate for summary judgment. From the record before this court, it is not possible to determine whether VPMC attempted to circumvent the Balance Billing Act by alleging that the medical hen statute authorized it to collect more than the contracted rate from Farm Bureau Insurance. Accordingly, the trial court did not err in denying VPMC’s motion for summary judgment.

BCBS’s Exception of Prescription

BCBS argues that Vallare’s claims are prescribed under her health benefit plan. Vallare’s plan, BCBS asserts, allows for fifteen months after the date services are rendered to file a lawsuit, a longer period of time than the minimum one year prescriptive period of La.R.S. 22:868. BCBS adds that the fifteen month limitation in Vallare’s policy has been enforced by courts at least twice. See Touro Infirmary v. Henderson, 92-2720 (La.App. 4 Cir. 12/28/95), 666 So.2d 686; Webb v. Blue Cross Blue Shield of Louisiana, 97-0681 (La.App. 1 Cir. 4/8/98), 711 So.2d 788.

In Touro Infirmary, the court explained:

It is well settled in our law that general rules of interpretation apply to insurance policies in the same way that they apply to other contracts. Id. La.R.S. 22:629(A)(3) prohibits provisions limiting right of action against the insurer to a period of less than twelve months after the cause of action accrues in connection with the type of insurance at issue herein. The Blue Cross policy’s limitation period of fifteen months is more generous than the Louisiana statute. The fifteen month limitation was specifically approved in Sargent v. Louisiana Health Service and Indem. Co., 550 So.2d 843, 846-847 (La.App.2dCir.1989).
Interpretation of a contract is the determination of the common intent of the parties. La.C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La.C.C. art. 2046. The words of a contract must be given their generally prevailing meaning. La.C.C. art. 2047.
The cause of action accrued when Henderson was able to bring suit under the policy, 60 days after her claim arose. Louette v. Security Indus. Ins. Co., 361 So.2d 1348 (La.App. 3d Cir.1978), writ denied, 364 So.2d 564 (La.1978). Under the clear and unambiguous language of the insurance contract, reflecting the intent of the parties, Henderson was obliged to bring suit on her claim no later than 29 January 1990.

Id. at 688.

BCBS emphasizes that Vallare’s claims arise from services provided on August 9, 2004, and contends that she was required to file suit no later than November 9, 2005. As such, BCBS concludes that Vallare’s claims alleged in her suit filed on July 29, 2011, have prescribed. Lastly, BCBS maintains that this argument applies to any cause of action of any class member involving services rendered prior to April 29, 2010.

In opposition, Vallare argues that if the application of the fifteen month provision in her BCBS policy results in having less than a year from the date the |]2cause of action accrues, then the provision is void pursuant to La.R.S. 22:868(B) and (C), which read:

B. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, or any health and accident policy insuring a resident of this state regardless of where made or delivered, shall contain any condition, stipulation, or agreement limiting right of action against the insurer to a period of less than twenty-four months next after the inception of the loss when the claim is a first-party claim, as defined in R.S. 22:1692, and arises under any insurance classified and defined in R.S. 22:47(6), (10), (11), (12), (13), (15), and (19) or to a period of less than one year from the time when the cause of action accrues in connection "with all other insurances unless otherwise specifically provided in this Code.
C. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract.

Vallare adds that a cause of action accrues when a plaintiff is entitled to file suit. In the instant case, Vallare explains, the cause of action of each claim is balance billing, a violation of La.R.S. 22:1871, et seq. Further, Vallare urges, the date of service and date of accrual of the cause of action are not the same. If a claim is not filed or if a claim is filed more than ninety days after service as required by the BCBS policy, then the insured has less than one year to bring suit. Vallare maintains that an insured must have at least one year to file suit from the time the cause of action accrues, or the prescriptive provision in the policy is void.

Vallare asserts that BCBS chose to include the prescriptive provision in its policies, although the provision cannot be applied to the cause of action herein without resulting in an insured having less than one year in which to file suit for balance billing. Vallare adds that the provision was not intended to encompass balance billing claims wherein no claim is filed or a claim is filed months after, treatment. As such, Vallare concludes that in accordance with La.R.S. 22:868(C), the fifteen, month contractual provision in the BCBS policy is void.

| ^Additionally, Vallare states that the insured is told by BCBS that contracted providers will file all claims; thus, the insured depends on the provider to file claims as promised. Accordingly, Vallare urges that it would be unjust to allow BCBS to avoid liability because no claim was filed by the contracted provider.

Vallare notes that although BCBS is the third party administrator of the employer funded health insurance plan, not the insurer, she asserts that the health care payment system involves an interrelated and interdependent series of contracts intended and designed to work-as a system to reduce liability of the insured to a deductible, co-payment, or co-insurance. These contracts, Vallare maintains, should not be considered in isolation but as parts of a contractual system so they can be properly understood and applied to provide consumers the protection they purchased. If insurers such as BCBS would tell their contracted provider to cease balance billing or risk their status as a contracted provider, Vallare contends that balance billing will stop. With no economic incentive for insurers to stop balance billing, Vallare urges that those insurers will not use their power within the marketplace to stop balance billing.

In denying BCBS’s prescription exception, the trial court reasoned:

[T]he Court finds as a finding of fact that defendant, Blue Cross Blue Shield’s plan, specifically Article XX, that’s 20 Section J that they rely upon as to the 15 month deadline, and/or period for, period pertinent to this exception. Uh, the Court finds that it has to read in conjunction with other pertinent ... sections contained in the entire plan. Specifically the Court finds as to reading in Section Article XX, 20, Section H ... deals specifically with filing of claims and states that the insured has the same 15 months. ... [T]he Court finds that the reading of BCBCLA’s (sic) Plan Policy, whatever it does create certain circumstances and instances where they may result in the plaintiff, or, they call it claimant or insured. There’s different ways of saying it, may actually fall into this, I call it a gap or this situation where they are not allowed an entire one year prescriptive period that’s mandated by law, •... and it’s kinda contoured to that, and additionally, and in case it’s too numerous for this Court to cite, that | uwhen reading and interpreting a contract, then it’s the maker’s on the contract that ... bears the burden of either explaining it with no ambiguities whatsoever, or any of these other matters ...

The trial court subsequently found that the exception was without merit and denied the exception at BCBS’s costs.

As noted above, we find that Vallare’s claims are contractual in nature and subject to a ten-year prescriptive period; thus, Vallare’s claim and those of the class have not prescribed. Although the fifteen month limitation has previously been enforced, those cases do not involve claims of balance billing. Accordingly, the trial court did not err in denying BCBS’s exception of prescription and the writ is denied,

CONCLUSION

For the reasons assigned, the applications for supervisory writs filed by VPMC and BCBS are denied.

WRITS DENIED.

Savoie, J., concurs and assigns reasons.

SAVOIE, J.,

concurring.

While I agree with the reasoning and the outcome in this case, it is my opinion that the decretal language should be “WRITS CONSIDERED. AFFIRMED,”