author: GUIDRY, J.

text:
    Ashanti GREEN as Tutrix of the Minors, Dave Peterson, III & David Peterson v. Michael JOHNSON, State Farm Insurance Agency, Allstate Insurance Company, & American Southern Home Insurance Company
    NUMBER 2016 CA 1525
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 10, 2018
    Joshua D. Roy, Roy H. Maughn, Jr., Namisha D. Patel, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Ashanti Green as tutrix of the minors, Dave Peterson, III & David Peterson
    Bryan J. Haydel, Jr., Kelly R. Englert, Baton Rouge, LA, Counsel for Defendant/Appellee, Allstate Insurance Company
    Harold J. Adkins, Baton Rouge, LA, Counsel for Defendant/Appellee, Michael Johnson & State Farm, Mutual Insurance Company
    BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.
   GUIDRY, J.

Plaintiff, Ashanti Green, as tutrix of the minors, Dave Peterson, III and David Peterson, appeals from a judgment of the trial court granting summary judgment in favor of Allstate Insurance Company ("Allstate") and dismissing her claims against Allstate with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On July 16, 2007, Dave Peterson, while driving a motorcycle he had jointly purchased with Benjamin Gibson sixteen days earlier, was struck by an SUV being driven by Michael Johnson. The accident, which occurred as Johnson backed his SUV into a roadway in Baton Rouge, Louisiana, resulted in Peterson's death.

At the time of his death, Peterson resided with his girlfriend, Ashanti Green. The motorcycle was insured by American Southern Home Insurance Company ("American Southern") under a liability policy with uninsured/underinsured motorist ("UM") coverage issued to Green, with Peterson listed as a rated driver. Also, Gibson, the co-owner of the motorcycle, was insured by an automobile liability insurance policy issued by Allstate, which included UM coverage.

Green instituted this suit as tutrix of her two minor sons with Peterson, asserting survival and wrongful death claims on their behalf. Through original and supplemental petitions, Green named as defendants, among others, American Southern as the insurer of the motorcycle and Allstate in its capacity as the automobile insurer of Gibson, alleging that UM coverage was provided to Peterson under those policies. Pursuant to a motion to dismiss filed jointly by Green and American Southern, the claims against American Southern under the policy it issued to Green were dismissed with prejudice, with Green reserving all rights to proceed against all other defendants.

Over the course of this litigation, Allstate filed several motions for summary judgment alleging various defenses to UM coverage under the policy it issued to Gibson. At issue in this appeal is Allstate's third motion for summary judgment with regard to the policy issued to Gibson, filed on March 4, 2015, wherein it asserted an additional coverage defense based on a specific contractual exclusion in the policy, stating that UM coverage is excluded for bodily injuries incurred in a motor vehicle owned by the insured if the motor vehicle is insured for UM coverage under another policy. According to Allstate, because the motorcycle was insured under the UM provisions of the American Southern policy issued to Green, UM coverage under co-owner Gibson's policy with Allstate was excluded.

Following a hearing on the motion, the trial court agreed and rendered judgment on September 3, 2015, granting Allstate's motion for summary judgment and dismissing plaintiff's claims against Allstate with prejudice. Green now appeals from the trial court's judgment, asserting that the trial court erred in granting summary judgment and dismissing her claims against Allstate, because a reading of the policy shows that it extends UM coverage to the motorcycle Peterson was driving. Green further contends that the exclusion that Allstate attempts to invoke violates public policy as a "back-door" method for rejection of UM coverage, which does not comport with the exclusive method of rejecting UM coverage set forth in LSA-R.S. 22:1295(1)(a)(ii), and as an attempt to usurp the insured's right to select the UM policy under which the insured would prefer to recover insurance benefits.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La. 6/15/07), 958 So.2d 1199. 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).

When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. Fouquet v. Daiquiris & Creams of Mandeville, L.L.C., 10-0233, p. 3 (La. App. 1st Cir. 9/13/10), 49 So.3d 44, 46. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. Fouquet, 10-0233 at p. 3, 49 So.3d at 46.

Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 01-2683, p. 4 (La. App. 1st Cir. 11/8/02), 836 So.2d 200, 203. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Bernard v. Ellis, 11-2377, p. 9 (La. 7/2/12), 111 So.3d 995, 1002. The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the parties as reflected by the words in the policy. La. C.C. art. 2045 ; Peterson v. Schimek, 98-1712, p. 4 (La. 3/2/99), 729 So.2d 1024, 1029. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent, and the agreement must be enforced as written. La. C.C. art. 2046 ; Fouquet, 10-0233 at p. 4, 49 So.3d at 47.

Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy. La. R.S. 22:881. Each provision in the policy must be interpreted in light of the other provisions so that each is given meaning; one provision of the insurance contract should not be construed separately at the expense of disregarding other provisions. La. C.C. art. 2050 ; Peterson, 98-1712 at p. 5, 729 So.2d at 1029. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Peterson, 98-1712 at p. 5, 729 So.2d at 1029. That is, the rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties' intent. Peterson, 98-1712 at p. 5, 729 So.2d at 1029.

Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Bernard, 11-2377 at pp. 9-10, 111 So.3d at 1002. If the policy wording at issue is clear and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. Bernard, 11-2377 at p. 10, 111 So.3d at 1002

Uninsured motorist coverage embodies a strong public policy, which is to provide full recovery for innocent automobile accident victims who suffer damages caused by a tortfeasor who has no coverage or is not adequately covered by liability insurance. Cutsinger v. Redfern, 08-2607, p. 5 (La. 5/22/09), 12 So.3d 945, 949. The underlying purpose of uninsured motorist coverage is "to promote and effectuate complete reparation, no more or no less." Cutsinger, 08-2607 at p. 5, 12 So.3d at 949 (quoting Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 579 (La. 1982) ). As such, any exclusion from UM coverage in an insurance policy must be clear and unmistakable. Duncan v. U.S.A.A. Insurance Company, 06-363 (La. 11/29/06), 950 So.2d 544, 547.

When the existence of UM coverage under a policy of automobile insurance is at issue, a two-step analysis is utilized: (1) the automobile insurance policy is first examined to determine whether UM coverage is contractually provided under the express provisions of the policy; and (2) if no UM coverage is found under the policy provisions, then the UM statute is applied to determine whether statutory coverage is mandated. Green ex rel. Peterson v. Johnson, 14-0292 (La. 10/15/14), 149 So.3d 766, 773-774.

In seeking summary judgment, Allstate asserts that UM coverage for Peterson is excluded because the motorcycle he was riding at the time of the accident, which was co-owned by Gibson, is insured for UM coverage under another policy, i.e., the American Southern policy issued to Green. The portion of Allstate's insurance policy upon which it relies, entitled "Part V Uninsured Motorist Insurance Coverage SS" of its policy, provides, in pertinent part:

Exclusions-What is not covered
We will not pay for damages an insured person is legally entitled to recover because of:(1) bodily injury to an insured person while in, on, getting into or out of a motor vehicle owned by you or the injured insured person, if the motor vehicle is not insured for this coverage under this policy.
(2) bodily injury to anyone while in, on, getting into or out of, or when struck by a motor vehicle you own which is insured for this coverage under another policy.

From our review of the policy at issue, we find that it unambiguously excludes coverage for "bodily injury to anyone while in, getting into or out of, or when struck by a motor vehicle you own which is insured for this coverage under another policy." At the time of the accident at issue, Peterson was on a motorcycle he co-owned with Gibson, which was insured for UM coverage under another policy with American Southern. Therefore, the exclusion clearly applies in the instant case, and Peterson is not entitled to UM coverage under the Allstate policy.

Furthermore, we do not find that statutory UM coverage is mandated under the facts of this case. Although Louisiana's strong public policy favors UM coverage and a liberal construction of the UM statute, it is well-settled that a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy. Magnon v. Collins, 98-2822, p. 5 (La. 7/7/99), 739 So.2d 191, 196. The liability portion of the Allstate policy with regard to insured persons provides, in pertinent part:

Insured Persons
(1) While using your insured auto:
(a) you ,
(b) any resident , and
(c) any other person using it with your express or implied permission.

The policy further defines an insured auto, in pertinent part:

Insured Autos
(2) An additional four wheel private passenger auto or utility auto you become the owner of during the premium period. This auto will be covered if we insure all other private passenger autos or utility autos you own. You must, however, tell us within 60 days of acquiring the auto ....

In this case, Peterson is entitled to liability coverage only if he qualified as an insured under the portion of the policy extending coverage to a permissive user of an "insured auto" under the liability section. Because the motorcycle at issue is not described on the declarations page and is not a substitute vehicle, it could only qualify as an "insured auto" as an after-acquired vehicle. However, the after-acquired vehicle provision contained in the liability portion of the policy states that an "insured auto" includes "[a]n additional four wheel private passenger auto or utility auto you become the owner of during the premium period." (Italics added.) Accordingly, a motorcycle does not meet the policy definition of an insured auto for liability purposes. Therefore, Peterson is not an insured person under the liability portion of the policy, and he is not entitled to UM coverage. See Cadwallader v. Allstate Insurance Company, 02-1637, p. 10 (La. 6/27/03), 848 So.2d 577, 584.

Finally, we do not find that the exclusion of UM coverage in the instant case violates public policy. Louisiana Revised Statute 22:1295(1)(c), known as the "anti-stacking" provision, limits an insured to recovery under only one policy and prohibits an insured from combining or stacking coverage, except when the insured is injured "while occupying an automobile not owned by said injured party, resident spouse or resident relative." (Emphasis added.) See also Pitts v. Fitzgerald, 01-0543, p. 8 (La. App. 1st Cir. 5/10/02), 818 So.2d 847, 852-853. A person who is insured under the UM provisions of several different insurance policies may recover under one, and only one, of the policies. Pitts, 01-0543 at p. 8, 818 So.2d at 853 ; see also McKenzie & Johnson, Insurance Law and Practice, 15 La. Civ. Law Treatise § 4:27 (4th ed. 2012) (noting that the main theme of the provision is that a person can recover under only one UM policy). Accordingly, the exclusion contained in the Allstate policy mirrors the law already in place regarding multiple coverage available to an insured, and as such, is not violative of public policy.

CONCLUSION

For the above and foregoing reasons, we affirm the September 3, 2015 judgment of the trial court, granting summary judgment in favor of Allstate Insurance Company and dismissing Green's claims against Allstate with prejudice. All costs of this appeal are assessed against Ashanti Green.

AFFIRMED.

WHIPPLE, C.J.,

I respectfully disagree with the majority's conclusions that the Allstate policy clearly excludes coverage herein and, thus, that the summary judgment dismissing Green's claims should be affirmed. Rather, as discussed below, I find that there are conflicting provisions within the UM portion of the Allstate policy that render the exclusion upon which Allstate relies ambiguous.

Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. Miller, 836 So.2d at 203. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Bernard v. Ellis, 2011-2377 (La. 7/2/12), 111 So.3d 995, 1002. Thus, if the policy wording is clear and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. LSA-C.C. art. 2046 ; Bernard, 111 So.3d at 1002. However, if a provision of the policy is ambiguous, the ambiguous contractual provision must be construed against the insurer who furnished the contract's text and in favor of the insured. See LSA-C.C. art. 2056 ; Peterson v. Schimek, 98-1712 (La. 3/02/99), 729 So.2d 1024, 1029.

Moreover, the court has a duty to interpret an insurance contract as a whole , according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy. See LSA-R.S. 22:881. One provision of the insurance contract should not be construed separately at the expense of disregarding other provisions. LSA-C.C. art. 2050 ; Peterson, 729 So.2d at 1029.

Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Bernard, 111 So.3d at 1002. However, summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Miller, 836 So.2d at 203.

Moreover, uninsured motorist coverage embodies a strong public policy, which is to provide full recovery for innocent automobile accident victims who suffer damages caused by a tortfeasor who has no coverage or is not adequately covered by liability insurance. The underlying purpose of uninsured motorist coverage is "to promote and effectuate complete reparation, no more or no less." Cutsinger v. Redfern, 2008-2607 (La. 5/22/09), 12 So.3d 945, 949 (quoting Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 579 (La. 1982) ).

To carry out the objective of providing reparation for persons injured through no fault of their own, the UM statute, LSA-R.S. 22:1295, is liberally construed. Bernard, 111 So.3d at 1003. The liberal construction given the UM statute requires the statutory exceptions to coverage be interpreted strictly. Moreover, any exclusion from UM coverage in an insurance policy must be clear and unmistakable. Duncan v. U.S.A.A. Insurance Company, 2006-363 (La. 11/29/06), 950 So.2d 544, 547.

When the existence of UM coverage under a policy of automobile insurance is at issue, a two-step analysis is utilized: (1) the automobile insurance policy is first examined to determine whether UM coverage is contractually provided under the express provisions of the policy; and (2) if no UM coverage is found under the policy provisions, then the UM statute is applied to determine whether statutory coverage is statutorily mandated. Green ex rel. Peterson v. Johnson, 2014-0292 (La. 10/15/14), 149 So.3d 766, 773-774. Because the contention by Allstate in support of its motion for summary judgment was that UM coverage was specifically excluded under its policy, the first step is to examine whether the policy provisions clearly and unambiguously exclude UM coverage under the facts herein, and if the policy is found to exclude UM coverage, then the next step would be to consider whether the UM statute mandates coverage despite the policy language to the contrary. Because I find the policy itself to contain conflicting provisions, I would not reach Green's public policy argument.

Turning to the first step of the analysis, the UM provisions of the Allstate policy must be examined to determine whether contractual UM coverage was excluded for the accident at issue in this case. As previously determined by the Louisiana Supreme Court in an earlier appeal of a prior grant of summary judgment to Allstate in this matter, Peterson met the definition of an "insured person" under the UM provisions of the Allstate policy, because he was a "person while in, on, getting into or out of an 'insured auto' with [the policyholder's] express or implied permission." Moreover, the Supreme Court reasoned that the co-owned motorcycle could be considered an "insured motor vehicle" for purposes of UM coverage because it fell within the definition of a "land motor vehicle" in the policy's UM provisions and was acquired by the policyholder (Gibson) during the policy period, within the sixty days prior to the accident. See Green ex rel.Peterson, 149 So.3d at 774-776 & n.8.

Nonetheless, in support of its most recent motion for summary judgment, Allstate relies upon the exclusions section of "Part V Uninsured Motorist Insurance Coverage SS" of its policy, which states:

Exclusions-What is not covered
We will not pay for damages an insured person is legally entitled to recover because of:
(1) bodily injury to an insured person while in, on, getting into or out of a motor vehicle owned by you or the injured insured person, if the motor vehicle is not insured for this coverage under this policy.
(2) bodily injury to anyone while in, on, getting into or out of, or when struck by a motor vehicle you own which is insured for this coverage under another policy.

Allstate argues that under the second exclusion quoted above, UM coverage under this policy is excluded herein because the motorcycle is insured for UM coverage under another policy, i.e., the American Southern policy issued to Green.

However, in my view, this provision, although expressed as an exclusion in the Allstate policy, is essentially an "escape" clause, which is a type of "other insurance" clause often found in the "other insurance" provision of a policy. Most insurance policies contain some sort of "other insurance" clause addressing how liability should be apportioned between two or more automobile liability insurance companies which have issued policies providing concurrent or double coverage. There are three basic types of "other insurance" clauses: (1) pro rata, (2) excess, and (3) escape. A pro rata clause provides for a sharing of responsibility among the insurers, an excess clause defines the coverage provided under the policy as excess over other valid and collectible insurance, and an escape clause purports to make coverage under the policy applicable only in the event that there is no other insurance coverage available to the insured. McKenzie & Johnson, Insurance Law and Practice, 15 La. Civ. Law Treatise § 7:19, at 699-700 (4th ed. 2012).

A policy may contain more than one of these clauses, each being utilized for different scenarios under which coverage is invoked. For example, a policy may generally provide for pro-rata coverage where there is other insurance, but may define the coverage afforded as "excess" coverage in the event of a non-owned vehicle and may further contain an "escape" clause with regard to an additional insured under the "omnibus" clause. See Graves v. Traders and General Insurance Company, 200 So.2d 67, 73 (La. App. 1st Cir. 1967), amended and affirmed, 252 La. 709, 214 So.2d 116 (1968).

The "other insurance" clause in one policy may or may not be harmonious with the "other insurance" clauses contained in another policy or policies providing coverage for a particular claim. Thus, often the "other insurance" clauses must be reconciled in order to apportion responsibility for payment of the claim among the insurers. McKenzie & Johnson, Insurance Law and Practice, 15 La. Civ. Law Treatise § 7:19, at 700 (4th ed. 2012). In attempting to reconcile two disparate "other insurance" clauses, the proper approach is to try to give effect to both "other insurance" clauses and to find them mutually repugnant only if, by giving each effect, the insured is left with no coverage.

Citgo Petroleum Corporation v. Yeargin, Inc., 95-1574 (La. App. 3rd Cir. 2/19/97), 690 So.2d 154, 167, writs denied, 97-1223, 97-1245 (La. 9/19/97), 701 So.2d 169, 170. Where "other insurance" clauses in competing policies are mutually repugnant, they will not be given effect. See, e.g., Graves v. Traders & General Insurance Company, 252 La. 709, 214 So.2d 116, 118 (1968) (holding that the excess and escape clauses in two policies were mutually repugnant and, thus, ineffective), and Dette v. Covington Motors, Inc., 486 So.2d 805, 806-807 (La. App. 1st Cir. 1986) (where there is a conflict between an escape clause of one policy and an excess clause in another policy, the net effect is that both clauses are cancelled out).

In the instant case, the exclusion upon which Allstate relies is most properly characterized as an "escape" clause because, by its terms, it seeks to absolve Allstate completely from liability for UM coverage if the owned vehicle (i.e., the motorcycle) is insured for this coverage (UM coverage) under another policy. See generally Citgo Petroleum Corporation, 690 So.2d at 167 ; see also Sifers v. General Marine Catering Company, 892 F.2d 386, 393 (5th Cir. 1990). Ordinarily, the coverage analysis would next require a determination of whether this escape clause conflicts with or is mutually repugnant to the "other insurance" clause in the American Southern policy to determine whether it can be given effect herein. However, I note an apparent conflict within the Allstate policy itself. Thus, in accordance with the court's duty to interpret an insurance contract as a whole and not to construe one provision of the insurance contract separately at the expense of disregarding other provisions, in my view, the apparently conflicting clauses within the UM provisions of the Allstate policy itself must be addressed first.

Specifically, in addition to containing the above exclusion of coverage if the owned vehicle is covered by another policy, i.e., the escape clause, the UM provisions of the Allstate policy also contain an "other insurance" clause with pro rata and excess provisions, as follows:

If There Is Other Insurance
If the insured person was in, on, getting into or out of a vehicle you do not own which is insured for this coverage under another policy, this coverage will be excess. This means that when the insured person is legally entitled to recover damages in excess of the other policy limit, we will pay up to your policy limit, but only after the other insurance has been exhausted. No insured person may recover duplicate benefits for the same elements of loss under this coverage and the other insurance. No more than one coverage may apply as excess insurance.
With respect to property damage, this coverage will be excess over any other valid and collectible insurance against property damage. If this policy and one or more other policies apply to an accident on a primary basis, we will bear our proportionate share, as it applies to the total limits available, up to the full limits of liability for coverage under this policy. [Emphasis added.]

By the very terms of this provision of the Allstate policy, in the event of other insurance, Allstate has defined the UM coverage provided therein as excess only where the injury to the insured involves a non-owned vehicle or where the claim is a property damage claim, neither of which is not the case before us. Thus, under the facts of this case and pursuant to the terms of the "Other Insurance" clause, the UM coverage provided by Allstate's policy is primary coverage in the event there is other insurance. See also Pardue v. Dean, 515 So.2d 543, 544-545 (La. App. 1st Cir. 1987) (if a vehicle has more than one UM policy on it, then for purposes of the UM statute, all such policies are primary); also see generally Penton v. Hotho, 601 So.2d 762, 765 n.4 (La. App. 1st Cir. 1992) (explaining that in the analysis of competing "other insurance" clauses in automobile liability policies, courts have determined that the insurer of the vehicle is the primary insurer and the insurer of the non-owned vehicle is in the nature of a true excess insurer). As such, pursuant to the bolded portion of its "other insurance" provision above, Allstate agreed to bear its proportionate share with other policies that apply to the accident on a primary basis, up to the limits of its coverage liability under the policy (a pro rata clause). Allstate's contention that the exclusion discussed above (i.e., the escape clause) relieves it from any UM liability herein clearly conflicts with its promise under this "other insurance" provision to pay its pro rata share if there is other insurance.

One case that addressed conflicting "other insurance" clauses within the same policy is Offshore Logistics Services, Inc. v. Mutual Marine Office, Inc., 462 F.Supp. 485, 492-493 (E.D. La. 1978). In Offshore Logistics Services, the federal district court found that a protection and indemnity policy actually included two "other insurance" clauses, one which made the policy excess if there was other insurance (an excess clause) and the other providing for no contribution whatsoever in the event the insured was otherwise covered for the loss (an escape clause). Concluding that these two clauses created an "obvious ambiguity" in the policy, the court gave effect to the excess clause rather than the escape clause, in an effort to give the ambiguous provisions the meaning most favorable to the insured. Offshore Logistics Services, Inc., 462 F.Supp. at 493.

While not binding on this court, I find the analysis of the federal district court in Offshore Logistics Services to be the proper approach this court should take herein. As stated above, any exclusion from UM coverage in an insurance policy must be clear and unmistakable, Duncan, 950 So.2d at 547, and if a provision of the policy is ambiguous, the ambiguity must be construed against the insurer and in favor of the insured. See LSA-C.C. art. 2056 ; Peterson, 729 So.2d at 1029. Giving the exclusion (the escape clause) the meaning suggested by Allstate would conflict with Allstate's obligations under the "other insurance" provision of the UM portion of its policy. Because the UM policy exclusion upon which Allstate relies for purposes of its latest motion for summary judgment purports to exclude coverage when the accident or injury involves an owned vehicle insured for UM coverage under another policy, while the "other insurance" provisions obligate Allstate to pay its pro-rata share, I would conclude that there are conflicting provisions within the UM portion of the Allstate policy, rendering the exclusion at issue herein ambiguous. Thus, in my view, Allstate failed to prove its entitlement to summary judgment dismissing Green's claims against it on the basis of the exclusion (escape clause) in the UM portion of its policy and the September 3, 2015 judgment granting summary judgment in its favor should be reversed.

For these reasons, I respectfully dissent.

      Also named as defendants were Johnson and his insurer, State Farm Mutual Automobile Insurance Company, and Allstate in its capacity as the UM insurer of Green and her resident relatives. The claim against Allstate as the UM insurer of Green and her resident relatives was dismissed on summary judgment on the basis that Peterson, the decedent, was not a resident relative of Green within the meaning of the policy, because he was not married to her.

      For a more thorough recitation of the procedural history involving Allstate's previous motions for summary judgment, see the Louisiana Supreme Court's decision in this matter, Green ex rel. Peterson v. Johnson, 14-0292, pp. 1-3 (La. 10/15/14), 149 So.3d 766.

      The Uninsured Motorist Coverage statute ("the UM statute") was originally enacted as LSA-R.S. 22:1406 but was redesignated as LSA-R.S. 22:680 by Acts 2003, No. 456, § 3 and again redesignated as LSA-R.S. 22:1295 by Acts 2008, No. 415, § 1. At the time of the accident herein, July 16, 2007, the UM statute was cited as LSA-R.S. 22:680. However, for ease of discussion, we will refer to the UM statute by its current designation of LSA-R.S. 22:1295, as there have been no substantive changes to the relevant portions cited herein since the date of the accident. See Green ex rel. Peterson, 14-0292 at p. 5 n.2, 149 So.3d at 771 n.2.

      Louisiana Code of Civil Procedure article 966 was recently amended by 2015 La. Acts, No 422 § 1, effective January 1, 2016. Since the amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act, the prior version of LSA-C.C.P. art. 966 is applicable herein. See 2015 La. Acts, No. 422 §§ 2 & 3.

      We note that whether this provision of the policy is considered an "exclusion" or an "escape clause," which is a type of other insurance clause wherein coverage under a policy is applicable only in the event that there is no other insurance coverage available to the insured, is immaterial in the instant case. McKenzie & Johnson, Insurance Law and Practice, 15 La. Civ. Law Treatise § 7:19, at 699-700 (4th Ed. 2012) (describing different types of other insurance clauses). Even if we were to find the provision at issue to be an escape clause, the Allstate policy would still not provide UM coverage for Peterson. From our reading of the Allstate and the American Southern policies, there is no conflict between the foregoing provision in the Allstate policy and the pro rata other insurance clause in the American Southern policy, as application of both policies does not result in a gap in primary coverage or no coverage to Peterson. See American International Specialty Lines Insurance Company v. Canal Indemnity Company, 352 F.3d 254, 265-267 (5th Cir. 2003). Accordingly, both policies should be applied as written, and UM coverage would still be excluded under the Allstate policy. See American International Specialty Lines Insurance Company, 352 F.3d at 273.
      Furthermore, we do not find that if the exclusion at issue were considered to be an escape clause that it would be in conflict with the other insurance clause in the Allstate policy. The other insurance clause in the Allstate policy provides in the third paragraph that "If this policy and one or more other policies apply to an accident on a primary basis..." Because coverage is excluded pursuant to the clear and unambiguous terms of the Allstate policy, the Allstate policy does not apply to the accident, and the other insurance clause in the Allstate policy is not implicated. See McGow v. McCurry, 412 F.3d 1207, 1220 n.9 (11th Cir. 2005).

      The Louisiana Supreme Court has already determined that Peterson would meet the definition of an "insured person" under the UM provision of the Allstate policy. See Green ex rel. Peterson, 14-0292 at pp. 10-11, 149 So.3d at 774-775.

      We likewise note that, under the facts of this case, the exclusion at issue does not violate public policy by usurping the right of an insured person to select which of two available policies of insurance to seek recovery under. It is undisputed that Green accepted the UM limits provided by the American Southern policy, and accordingly, dismissed American Southern as a defendant in this litigation. Furthermore, the reasoning in Taylor v. Tanner, 442 So.2d 435, 438 (La. 1983), wherein the Louisiana Supreme Court found that the acceptance of the policy limits from one UM carrier was not deemed to constitute an implied choice or election to reject the limits from other policies that may be available, is inapplicable to the facts of this case. In Taylor, the insured person was injured while riding in a non-owned vehicle, and accordingly, fell within the exception to the stacking provision. 442 So.2d at 438. Accordingly, under the facts of this case, we need not address whether the exclusion violates public policy by usurping an insured person's right of selection.

      With one exception, the anti-stacking provision of the UM statute, LSA-R.S. 22:1295(1)(c), provides that an insured seeking recovery with multiple limits of UM coverage available is limited to recovery under only one policy and may not combine or stack coverages. The one exception set forth in the statute permits stacking if the injured party is occupying a vehicle not owned by him. In such a situation, the UM coverage on the vehicle in which the injured party was an occupant is primary, and should that primary UM coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from one other UM coverage available to him. Boullt v. State Farm Mutual Automobile Insurance Co., 99-0942 (La. 10/19/99), 752 So.2d 739, 742-743. Clearly, the exception to the anti-stacking provision is not applicable herein because Peterson owned (as a co-owner) the motorcycle which he was driving at the time of the accident.
      Nonetheless, in Wyatt v. Robin, 518 So.2d 494, 495 (La. 1988), the Louisiana Supreme Court held that even though an insured may not stack UM coverages, the insured has the right to choose under which UM provision he would prefer to recover. Moreover, a plaintiff's acceptance of the policy limits of one UM policy is irrelevant to the plaintiff's right of selection. Wyatt, 518 So.2d at 495-496 ; see also Vincent v. State Farm Mutual Auto. Ins. Co., 526 So.2d 818 (La. App. 3rd Cir.), writ denied, 532 So.2d 150 (La. 1988). (Parents of a motorcyclist killed on his own motorcycle sought to recover wrongful death damages under the parents' State Farm UM policies after the limits of their deceased son's UM policy listing the motorcycle were paid. Citing Wyatt, the court found that the anti-stacking provision was not violated by allowing them to elect to pursue coverage under one of their State Farm policies, as long as the UM coverage benefits recovered did not exceed the maximum coverage provided by any one policy. Accordingly, the court explained that State Farm would receive a credit for the $10,000.00 paid by UM insurer of the son.).
      Notably, Wyatt involved UM coverage extending to a vehicle not listed in the policy at issue therein. The holding in Wyatt was subsequently limited by the enactment of LSA-R.S. 22:1295(1)(e), which provides that UM coverage does not extend to vehicles not described in the policy or not newly acquired within the meaning of the policy. However, as discussed in footnote 3 infra, because the motorcycle at issue was a newly acquired vehicle as defined in the Allstate policy, the limitation or exclusion of UM coverage as set forth in LSA-R.S. 22:1295(1)(e) would not apply herein
      Moreover, in Pardue v. Dean, 515 So.2d 543, 544-545 (La. App. 1st Cir. 1987), this court held that if a vehicle has more than one UM policy on it, then for purposes of the UM statute, all such policies are primary, and the anti-stacking provision would not preclude recovery under both policies. See also Capone v. King, 467 So.2d 574, 579-589 (La. App. 5th Cir.), writs denied, 468 So.2d 1203, 1205 (La. 1985).
      Green asserts on appeal that the motorcycle was covered by two UM policies, the American Southern policy and the Allstate policy, both policies are primary and the anti-stacking provision does not preclude recovery under both. Alternatively, she argues that even if recovery is limited to only one UM policy, the injured party has the right to select the policy under which he or she receives insurance benefits. Thus, she contends that to the extent that the exception upon which Allstate relies attempts to take that right of selection away, it violates public policy.

      See footnote 3 of the majority opinion.

      Even though the motorcycle was not described on the declarations page of the Allstate policy, as noted by the Supreme Court, it was acquired by the policyholder (Gibson) during the policy period and within the 60-day time period prior to the accident. Green ex rel. Peterson, 149 So.3d at 776 & n.8. Under the UM provisions of the policy, an "insured auto" includes a motor vehicle of which the insured became the owner during the premium period, provided however that the insured inform Allstate within 60 days after acquiring the vehicle and pay any additional premium. Because the accident occurred only 16 days after the motorcycle was acquired, the loss occurred within the 60-day period during which the insured was required to inform Allstate of the acquisition. As such, although not a listed vehicle under the policy, the motorcycle could be considered a newly acquired vehicle to which UM coverage would be extended. See also LSA-R.S. 22:1295(1)(e).

      Although not a controlling decision by which this court is bound, I note that in Sifers v. General Marine Catering Company, 892 F.2d 386, 393 (5th Cir. 1990), LIGA argued that the clause in the Workers' Compensation/Employer Liability (WC/EL) policy issued by an insolvent insurer was not an "escape clause," but rather was an "exclusion clause" whose function was to exclude coverage under the policy if a Protection and Indemnity (P & I) policy covering the same risk existed. In rejecting that argument, the United States Fifth Circuit Court of Appeals, applying Louisiana law to the coverage issue, stated as follows:
      As an initial matter, we question whether the distinction which LIGA attempts to draw between an "escape" clause and an "exclusion" clause is significant: Any clause that permits an insurer to deny coverage can be accurately characterized as an "escape" clause. The effect of the "other insurance" clause in the WC/EL policy is to deny coverage under that policy or, in other words, to "escape" liability thereunder completely. The effect of a more typical escape clause is undeniably the same.
      Sifers, 892 F.2d at 393 (emphasis added).
      Contrast, on the other hand, Steinwinder v. McCall's Boat Rentals, Inc., 2002-0019 (La. App. 4th Cir. 3/20/02), 815 So.2d 1059, 1061-1063, wherein the Fourth Circuit Court of Appeal rejected the appellants' contention that an exclusion in a Commercial General Liability policy, which excluded from coverage any sums for which coverage was provided by the terms of "Protection and Indemnity form SP-23 [a standard form providing P & I coverage]," whether or not such coverage was in place, was in fact an "escape clause" that conflicted with the escape clause of another policy, such that the two escape clauses were mutually repugnant and thus should not be given effect. In declining to interpret the exclusion as an "escape clause," the Fourth Circuit noted that the exclusion clearly and unambiguously excluded from coverage any risks that fell within the ambit of a P & I policy, regardless of whether such P & I coverage was actually in place.Steinwinder, 815 So.2d at 1062. Because the exclusion therein clearly sought to exclude from coverage a certain type of risk falling within the ambit of a different type of policy , regardless of whether such other coverage was actually in place, the clause therein was an exclusion and can be distinguished from the clause at issue in the present case which purports to allow Allstate to escape UM coverage if there is other UM insurance.

      I disagree with the majority's contention in footnote 5 that whether this provision of the policy is considered an exclusion or an escape clause "is immaterial in the instant case." In justifying that statement, the majority concludes that the Allstate provision at issue (i.e., the escape clause entitled an "exclusion") does not conflict with the pro rata "other insurance" clause in the American Southern policy. However, because of the conflicting provision within the Allstate policy itself , which renders the exclusion upon which Allstate relies ambiguous, the coverage analysis should never reach the next step of determining whether the Allstate escape clause conflicts with or is mutually repugnant to the "other insurance" clause in the American Southern policy.
      Moreover, in light of this court's duty to interpret an insurance contract as a whole , see LSA-R.S. 22:881, and to refrain from construing one provision of the insurance contract separately at the expense of disregarding other provisions, LSA-C.C. art. 2050, I find the analysis of McGow v. McCurry, 412 F.3d 1207, 1220 n.9 (11th Cir. 2005), cited by the majority in footnote 5, to be unpersuasive.

      The American Southern policy insuring the motorcycle similarly contains a pro rata clause in its "other insurance" provision.


source: Caselaw Access Project

author: CRAIN, J. GUIDRY, J., dissenting.

license: Public Domain

text:
    STATE of Louisiana v. Lionel RICHARDSON
    NO. 2016 KA 0440
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 25, 2018
    Scott M. Perrilloux, District Attorney, Patricia Parker Amos, Assistant District Attorney, Amite, Louisiana, Attorneys for Appellee, State of Louisiana
    Lieu T. Vo Clark, Mandeville, Louisiana, Attorney for Defendant/Appellant, Lionel Richardson
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

The defendant, Lionel Richardson, was found guilty of second degree murder and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. He appeals, raising a single assignment of error that the trial court erred in denying his motion for a mistrial. We affirm.

FACTS

On August 18, 2007, the defendant and two other men went to the home of Byron Williams to rob him. After Williams invited them inside, the three men attacked and beat him, bound his hands and feet with zip-ties, placed his body under a bed, then started a fire, leaving Williams to die in the burning house. The defendant fled to Mexico with one of his accomplices, where he was apprehended and extradited back to Louisiana.

The defendant was charged with second degree murder and pled not guilty and not guilty by reason of insanity. The defendant's defense was that he was insane at the time of the offense because psychosis from untreated schizophrenia and post-traumatic stress disorder prevented him from distinguishing right from wrong. The jury rejected the defense and convicted the defendant as charged.

MOTION FOR MISTRIAL

The sole issue on appeal is whether the trial court committed reversible error in denying the defendant's motion for mistrial based on the expert testimony of Dr. David Hale.

During the state's presentation of its case, Dr. Hale testified that he was retained by the court to evaluate both the defendant's competency to stand trial and his sanity at the time of the offense. Dr. Hale interviewed the defendant twice and formed an opinion regarding the defendant's ability to distinguish right from wrong. Dr. Hale recommended that the defendant be sent to a hospital for treatment to attempt to establish his competency to stand trial. That treatment lasted approximately three months. Thereafter, Dr. Hale re-examined the defendant regarding "the sanity part."

After answering questions regarding the medical records he reviewed, the colloquy between the prosecutor and Dr. Hale continued:

Q. What else, other than those medical records and the interview, did you do, in taking into consideration, in formulating your opinion, as to his sanity, at the time and the commission of this crime?
A. I had some contact with his family members. There were phone calls that I made to his mother and to his grandmother. Most of the content of them dealt with his previous history that had little to do with his sanity, at the time of the offense.
Q. Can you go through, basically, what was your finding? After the review of all of that, and those interviews and his interview?
A. My finding was that [the defendant] was, was sane, at the time of the offense.

The defendant contends the trial court committed reversible error in denying his motion for mistrial because the expert's testimony violated Louisiana Code of Evidence article 704, which pertinently provides that "in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused." The defendant argues that the testimony "was a direct opinion as to [the defendant's] guilt." We disagree, finding that the premise of the defendant's argument, that an opinion that the defendant is "sane" is an opinion of guilt, is legally incorrect under Louisiana law.

A fundamental tenet of our legal system is that every criminal defendant is presumed innocent until proven guilty beyond a reasonable doubt. A criminal defendant is also presumed sane until his sanity is rebutted by a preponderance of the evidence. See La. Const. art. 1, § 16 ; La. R.S. 15:432. "Insanity" is an affirmative defense by which a criminal defendant seeks to exempt himself from criminal responsibility. State v. Branch , 99-1484 (La. 3/17/00), 759 So.2d 31, 32 (per curiam ). However, under Louisiana law, sanity or insanity is not the equivalent of guilt or innocence. In fact, Louisiana does not recognize a plea of "guilty, but insane" or "guilty, but mentally ill." La. Code Crim. Pro. art. 552 ; Branch , 759 So.2d at 32. When a defendant enters a plea of "not guilty and not guilty by reason of insanity" he does not concede guilt. The state maintains the burden of proving the defendant's guilt beyond a reasonable doubt and only after it meets that burden does the fact finder determine "insanity." Branch , 759 So.2d at 32.

Article 704 allows an expert to render an opinion to assist the fact finder in understanding the evidence or determining a factual issue. State v. Sharp , 35,714 (La. App. 2 Cir. 2/27/02), 810 So.2d 1179, 1196, writ denied , 02-1736 (La. 6/6/03), 845 So.2d 1081. "Insanity" is a question of fact. See State v. Williams , 01-0944 (La. App. 1 Cir. 12/28/01), 804 So.2d 932, 942, writ denied , 02-0399 (La. 2/14/03), 836 So.2d 135. To rebut the presumption of sanity and establish his insanity, the defendant must prove not just that he suffered from a mental disease or defect, but, by a preponderance of the evidence, that he suffered from a mental disease or defect that prevented him from distinguishing right from wrong with reference to the conduct in question. La. R.S. 14:14 ; La. Code Crim. Pro. art. 652 ; State v. Williams , 07-1407 (La. 10/20/09), 22 So.3d 867, 875, cert. denied , 560 U.S. 905, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010). Thus, while expert testimony addressing whether the defendant was "insane," that is, whether he could distinguish right from wrong at the time of the offense, embraces an ultimate issue to be decided by the fact finder, such testimony does not violate Article 704. See State v. Butler , 563 So.2d 976, 983-84 (La. App. 1 Cir.), writ denied , 567 So.2d 609 (La. 1990) ; State v. Birdsong , 452 So.2d 1236, 1242-43 (La. App. 2 Cir.), writ denied , 457 So.2d 1200 (La. 1984). Instead, it is evidence the fact finder may accept or reject in considering the defense of "insanity." See State v. Griffin , 14-0730, 2015 WL 303519, pp. 3-6 (La. App. 1 Cir. 1/22/15) (describing, in a trial where the defendant pled not guilty and not guilty by reason of insanity, the testimony of experts as to whether the defendant was sane or insane, and, in light of the deference afforded the jury's acceptance or rejection of witness testimony, finding the jury's guilty verdict to be entirely reasonable); State v. Daniels , 09-1661, 2010 WL 8971104, p.3 (La. App. 4 Cir. 1/20/10), writ denied , 10-0284 (La. 2/4/11), 56 So.3d 987 ("Even though expert testimony is relevant to the issue of whether a defendant is insane, the ultimate issue is for the jury to decide, and it may decide that the defendant is sane despite expert opinion that he is not"); State v. Johnson , 43,935 (La. App. 2 Cir. 2/25/09), 3 So.3d 697, 701 ("Expert testimony is relevant to the issue of whether a defendant is insane, but even where experts opine that the defendant is insane the issue is for the jury to decide").

The expert opinion testimony at issue, that the defendant was "sane" at the time of the offense, did not violate Article 704 ; therefore the defendant's motion for mistrial was properly denied. We note that the trial court nonetheless admonished the jury that it was the fact finder on the issue of the defendant's sanity and should formulate its own finding based on the totality of the evidence. Further, in its closing instructions, the trial court again informed the jury that it should base its decision on all the evidence presented, including the expert testimony. See La. Code Crim. Pro. art. 921 ("A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused"); State v. Ducre , 01-2778 (La. 9/13/02), 827 So.2d 1120, 1120-21 (per curiam ) (finding no reversible error where, after testimony by a police officer that the defendant possessed a "distribution amount" of cocaine, the jury was admonished that it, not the witness, remained the ultimate finder of fact).

The defendant's conviction is affirmed.

SENTENCE

The mandatory punishment for committing second degree murder is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1B. In sentencing the defendant, the trial court failed to specify that the sentence was to be served at hard labor. We correct the trial court's error of omitting this mandatory provision by amending the defendant's sentence to provide that it be served at hard labor. We order the trial court to correct the minute entry and the defendant's commitment order accordingly. As amended, the defendant's sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED WITH INSTRUCTIONS FOR CORRECTION OF THE MINUTE ENTRY AND COMMITMENT ORDER.

Pettigrew, J. concurs

Guidry, J. Dissents and assigns reasons.

GUIDRY, J., dissenting.

I dissent from the majority opinion in this matter, because I believe that this court's prior decision in State v. Butler, 563 So.2d 976, 983-84 (La. App. 1 Cir.), writ denied, 567 So.2d 609 (La. 1990) is indistinguishable from the present case. In order to reach a divergent conclusion in the present case, I believe that it is imperative that this court convene an en banc panel to overrule the Butler decision. As the majority concludes differently, I respectfully dissent.

      Michael Pennington was separately convicted of second degree murder of the victim and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. This court affirmed his conviction and sentence. State v. Pennington , 12-0804, 2013WL596151 (La. App. 1 Cir. 2/15/13).

      The trial court instructed the jury accordingly, informing the jury that if it found beyond a reasonable doubt the defendant committed the offense (or a lesser offense), it must then determine whether the defendant was insane when the offense was committed.

      Our conclusion here does not conflict with this court's decision in Butler , wherein this court found that Article 704 prohibited questions worded to elicit legal conclusions by experts on factual issues. The precedential authority of Butler is limited to its ruling on the wording of the particular questions under consideration, rendering the court's speculation regarding the propriety of hypothetical answers purely dicta. Even so, we note that the hypothetical answer the Butler court speculated would be objectionable was whether the defendant was "legally sane," which is distinguishable from the testimony at issue in this case.


author: EDWARDS, JUDGE PRO TEMPORE, J.

text:
    STATE of Louisiana v. Javon WELLS
    NO. 17-KA-512
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Joel T. Chaisson, II, Baton Rouge, Louis G. Authement, Hahnville
    COUNSEL FOR DEFENDANT/APPELLANT, JAVON WELLS, Jane L. Beebe
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

Defendant appeals his conviction for second degree murder. For the reasons that follow, defendant's conviction and sentence are affirmed.

PROCEDURAL HISTORY

On July 20, 2016, a grand jury in the Twenty-Ninth Judicial District returned a bill of indictment that alleged defendant, Javon Wells, had committed second degree murder of Kendall Williams on or about May 4, 2016. On July 26, 2016, defendant pled not guilty at arraignment. The matter proceeded to a jury trial on May 23, 2017, and on May 25, 2017, defendant was found guilty as charged. Defendant's motion for new trial was denied on July 11, 2017, and, on that same date, he was sentenced to life in prison at hard labor without benefit of probation, parole or suspension of sentence. This timely appeal followed.

FACTS

At trial, Isis Miller testified that she had been a classmate of the victim, Kendall Williams ("Williams"), at Destrehan High School, and that she and Williams had also dated prior to his death. Williams would visit Miller in New Sarpy and they would spend time together at her grandmother's residence or in the community park. Williams also had close friends in New Sarpy that he would spend time with, "Lamar," and "Lou Donovan" who lived in close proximity to the park. Miller stated that she was not aware that Williams had any enemies who lived in the New Sarpy area.

Miller was with Williams on the day he was killed, first at a graduation party and later at a pavilion in the park. After meeting for 45 minutes in the park, Williams walked her back to her grandmother's house and they made plans to go to the mall the following day. It was the last time that Miller saw him. Upon leaving her grandmother's house, she saw numerous policemen nearby. Later that evening, she learned that Williams had been shot in the head.

On cross-examination, Miller testified that she had told detectives that she and Williams arrived at the park at 7:00 p.m. and spent approximately one hour there, prior to when he was shot. She did not recall seeing defendant, Javon Wells, at the park on that day.

Lou' Donovan Wells ("Lou' Donovan") testified that he knew Williams, and had been friends with him for four years prior to Williams' death. Lou' Donovan was with Williams on the date he was shot and had spent time with him and others, including Lou' Donovan's brother, Lamar Walker, "under the gazebo" in New Sarpy. Lou' Donovan grew up in the area near the gazebo, and his home on East Hoover St. was nearby. To his knowledge, Lou' Donovan was not aware that Williams had any enemies in the area. Lou' Donovan stated that Williams was still at the gazebo with his friends when he left, and later he saw Williams walking with Isis Miller to her grandmother's house. Approximately 20 minutes after walking with Isis, Williams returned to the gazebo alone, and joined Lou' Donovan, "JJ" , Gerald Young, and his brother, Lamar Walker.

Lou' Donovan saw defendant, who is his first cousin, approach the gazebo and the two briefly "dapped off," which is a form of greeting. Lou' Donovan then started to return to his bench in the middle of the gazebo, when Williams was shot. Lou' Donovan did not see defendant draw a weapon before he shot Williams, who was looking at his phone at the time. He did see after the shooting, however, that defendant was holding a small gun in his hand. Williams and defendant did not argue just before the shooting. After shooting Williams, defendant walked straight back to the street and "just left." Lou' Donovan explained that the entire incident happened very quickly.

Lou' Donovan testified that he believed his brother had "walked off" at the time of the shooting, but came back shortly thereafter to see Williams on the ground. JJ was standing behind the middle bench of the gazebo at the time the single shot was fired.

Shortly after the shooting, Lou' Donovan was "in shock," became very "emotional" and "overwhelmed," and then took off his shirt and work hat, throwing them into the street. He stayed in that state until "Miss Branette" arrived and called the police using his cell phone. When the police arrived, they put Lou' Donovan and his brother, Lamar, in the back of a car and drove them to the police station. Lou' Donovan said that he was a little reluctant to name defendant, his cousin, as the shooter, but he told detectives the truth about what happened. Lou' Donovan did not recall if he told detectives that night whether JJ was present at the time of the shooting. Lou' Donovan had no doubt that defendant was the person who killed Williams. Lou' Donovan identified a map that was shown to him by the State, which he had used to show the detectives where everyone was located at the time Williams was shot.

On cross-examination, Lou' Donovan denied telling detectives that he only "thought" defendant had killed Williams. Lou' Donovan stated that Williams had been back from walking Isis Miller to her grandmother's house for approximately 15 minutes before he was shot. He did not call 911 prior to the time that Branette Chopin arrived. Lou' Donovan said that he never told detectives that he "saw a guy with dreads" at the scene of the shooting, but rather that defendant had dreads (dreadlocks). When asked by defense counsel, Lou' Donovan admitted that he had to be arrested and held on a material witness bond to compel his trial testimony.

On re-direct examination, Lou' Donovan testified that there was no clock underneath the gazebo. He also stated that he did not know anything about firearms, nor could he identify the gun defendant used to kill Williams.

Lamar Walker ("Lamar") testified that he and Williams had known each other since sixth grade and that the two were close. Lamar and Williams were together on the day of the shooting at the gazebo across the street from the house where Lamar grew up. Lamar went to meet Williams after speaking with him on the phone and learning that Williams and his brother were going to get together in New Sarpy that day. Lamar met with Williams, his brother Lou' Donovan, and Gerald at the gazebo. At some point, Isis Miller came to meet Williams for approximately one hour around sundown. Williams walked Isis to her grandmother's house then returned to the gazebo. While Lamar started walking toward Williams inside the gazebo, he saw defendant standing over by his brother. Defendant was wearing a black shirt and had a dreadlock hairstyle. Lamar then saw defendant walk up to Williams and shoot him in the back of the head. Lamar only heard one single gunshot. Lamar ran for safety, while in shock. When Lamar returned to the gazebo, the police were on the way to the scene of the shooting. At that time, Lamar saw his brother, Gerald, and "Miss Branette." He was there when the police arrived.

Lamar was brought to police headquarters, where he gave a statement. He identified a drawing he had made at the police station which showed the positions of Williams, defendant, and his brother. Lamar testified that he was certain that defendant was the person who shot Williams that night.

On cross-examination, Lamar stated that he gave a second statement at the St. Charles Parish Police Department on July 7th, two months after the shooting. Although he heard his brother "holler" before the gunshot, he did not recall telling the detective that in his first statement. In his first interview, Lamar told the detective that his brother did not say the name of the shooter immediately after the victim was shot and, at that time, the detective told him that his brother had identified defendant as the shooter. At that time, Lamar also identified defendant as the person who shot Williams. Lamar denied telling the detective in his first interview that he had not seen defendant shoot anyone. He also denied telling detectives that he did not see a gun, and stated that he saw defendant holding a small black gun. Lamar did not recall seeing defendant and his brother "dap off."

On re-direct examination, Lamar testified that witnessing Williams get shot was a traumatic experience. He stated again that he was "100% sure" that he saw defendant shoot Williams. He also stated that he had no issues with defendant.

Branette Chopin testified that she knew both Lamar Walker and Lou' Donovan Wells. On May 4, 2016, she saw a body under the gazebo lying down while she was traveling home. She pulled her car over and saw Lou' Donovan Wells acting "crazy" and "wild," so she parked. She asked Lou' Donovan what had happened. Lou' Donovan told her that "somebody passed by in a car and shot the little boy." When Lou' Donovan was unable to call 911, Chopin took the phone from him and made the call herself. Chopin said that Lou' Donovan was jumping up and down, crying, and hitting his head on the ground. She tried to get a member of Lou' Donovan's family to go to him, but was unsuccessful. Chopin said that when she arrived at the gazebo, the only persons there were JJ, Lou' Donovan, and the victim. After trying to get a member of Lou' Donovan's family to go see him, she returned to the gazebo and saw Lamar Walker there as well. Chopin did not speak to police on the night of the murder, as they did not ask her any questions.

On cross-examination, Chopin confirmed that Lou' Donovan Wells did not identify defendant to her as Williams' shooter. She also did not see defendant running away from the gazebo on that night. On re-direct examination, Chopin stated that when she did ultimately meet with a detective to give her statement, she told the detective that she did not believe the explanation that the victim was shot in a drive by shooting.

Dr. Dana Troxclair testified that she is a forensic pathologist employed by the Jefferson Parish Coroner's Office. It was in that capacity that she performed an autopsy on Kendall Williams on May 5, 2016. Dr. Troxclair explained that the examination of the victim showed a single gunshot wound to the head, with no exit wound, as well as an abrasion on his forehead. The bullet was lodged at the base of the victim's brain. Dr. Troxclair opined that the victim could not have survived the gunshot because of the damage it caused. The bullet traveled from the back of the skull toward the front. There were no drugs or alcohol in the victim's blood. The cause of death was a gunshot wound, and the manner of death was classified as a homicide.

On cross-examination, Dr. Troxclair stated that the position of the shooter could not be determined from information obtained at the autopsy. However, based upon the stippling around the wound, it appeared that the shot was fired within inches of the victim's skull.

Sergeant Jake Schnapp of the St. Charles Parish Sheriff's Office testified that he was dispatched to the scene of a shooting on May 4, 2016. When he arrived, Sergeant Schnapp saw a black male in the middle of the street who was visibly upset, and a black female on the phone who was also visibly upset. The black male approached him and said, "He killed my boy." Sergeant Schnapp went over to the gazebo and saw a black male lying face down with a single gunshot wound to the back of the head. At that time, Sergeant Schnapp contacted EMS and requested that the detective bureau be notified. Two black males at the location were transported to sheriff's office headquarters. Once the scene was processed and the victim's body was removed, officers were informed by the detective bureau that a suspect, Javon Wells, had been identified. Shortly thereafter, Javon Wells was located and taken into custody. Sergeant Schnapp testified that he had no further involvement in the case from that point.

Deputy Harold Kingsmill of the St. Charles Parish Sheriff's Office testified that he was dispatched to the scene of a shooting in New Sarpy on May 4, 2016. After arriving, he went to the gazebo and saw the victim on the ground. Deputy Kingsmill then secured the scene with crime scene tape. Later that evening, Deputy Kingsmill was one of the officers who identified and arrested defendant while he was walking around the neighborhood.

On cross-examination, Deputy Kingsmill stated that defendant had a laptop in his hand when he was arrested.

Sergeant Jeremy Pitchford testified that he was assigned to the Criminal Investigation Division for the St. Charles Parish Sheriff's Office, and was the lead detective involved in the investigation that resulted in the arrest of defendant. On May 4, 2016, Sergeant Pitchford was told about a homicide in New Sarpy by his Lieutenant. He went to the scene of the shooting and began investigating. He was informed that two witnesses had been taken into custody. Defendant was identified as a suspect in the shooting, and a warrant was prepared for his arrest. Defendant was taken into custody by Deputy Kingsmill before the arrest warrant was executed. Sergeant Pitchford then prepared a search warrant for defendant's grandmother's home. The only item collected from that location was an "Uncle Mike's nylon holster" found in an upstairs bedroom.

After executing the search warrant, Sergeant Pitchford went back to headquarters to take a statement from defendant. Prior to the interview, Sergeant Pitchford read defendant an Advice of Rights Form, which defendant acknowledged with his signature. Defendant's videotaped statement was played for the jury. Throughout the interview, defendant held his hand carefully, and indicated to Sergeant Pitchford that his hand was "still messed up." No items found at the crime scene were tested for DNA and no gunshot residue tests were conducted on defendant.

On cross-examination, Sergeant Pitchford denied that he kept questioning defendant after he indicated that he wanted to end the interview. The interview ended when defendant indicated that he wanted an attorney. Sergeant Pitchford found no link during his investigation between the victim's shooting and an incident where defendant was shot in the previous year.

Detective Joseph Dewhirst testified that he was employed by the St. Charles Parish Sheriff's Office and was assigned to investigate the shooting death of Kendall Williams. In connection with that case, he interviewed two witnesses, Lamar Walker and Lou' Donovan Wells, on May 4, 2016. Detective Dewhirst first went to the scene of the shooting, where he learned that there were two witnesses that needed to be interviewed, who had already been transported to police headquarters. Lou' Donovan Wells told Detective Dewhirst that he saw defendant raise up his hand, shoot the victim in the head and then "take off." Detective Dewhirst believed that Lou' Donovan was reluctant at the beginning of the interview to identify defendant as the shooter, but as Lou' Donovan became more comfortable, he gave the name of his cousin, Javon Wells, as the shooter. Detective Dewhirst believed that the phone call to 911 was placed minutes after the shooting occurred. Lou' Donovan told Detective Dewhirst that he was risking his life by cooperating with the case, and he feared retribution from individuals who lived on Meadows Drive.

Lamar initially told Detective Dewhirst that the shooter had "black dreads" and was wearing a black shirt, but did not identify defendant before being told that his brother had identified defendant as the shooter. Detective Dewhirst testified that he believed Lamar was reluctant to tell him what had happened. Detective Dewhirst recalled that Lamar was "all over the place" during the interview, and gave different details about what he had seen, but he was aware that Lamar was in shock.

Detective Jennifer James testified that she was a detective with the St. Charles Sheriff's Office Criminal Investigation Division and participated in the investigation of Kendall Williams' shooting on May 4, 2016. Detective James assisted in canvassing the area of the shooting and in searching vehicles. As directed by Sergeant Pitchford, she asked witnesses to the shooting to indicate on a drawing of the gazebo where they were, where the victim was, and where the shooter was at the time of the shooting. The map was drawn by Sergeant Pitchford, but he was not present when Detective James showed the witnesses the map.

On the night of the shooting, Detective James walked through the surrounding neighborhood and attempted to talk to residents to ask if they had witnessed anything involving the shooting. No one provided information. Detective James' follow up attempts to locate witnesses or surveillance videos of the shooting were unsuccessful.

Shyquyle Posey ("Posey") was called as a defense witness. He testified that he knew Lou' Donovan Wells and Lamar Walker as "neighborhood friends," and was familiar with the gazebo where the shooting took place. He was in New Sarpy on the night that the victim was shot and actually heard the gunshot that killed the victim. Seconds after the gunshot, Posey saw Lamar Walker, who was "power walking" toward him. Lamar asked him, "Did you hear that and what happened?" Posey told Lamar that he did not know what happened because he was not there. Posey admitted that he had two prior misdemeanor convictions.

On cross-examination, Posey stated that he had known defendant for approximately eight years. He had communicated "once or twice" with defendant since he had been arrested. Posey never provided information to the police about seeing Lamar on the night of the shooting. Defendant's mother first contacted Posey to ask him if he knew what had happened on the crime scene. Later, Posey spoke to defendant's attorney.

LAW AND ANALYSIS

In his sole assignment of error, defendant contends that the State did not introduce sufficient evidence at trial to convict him of second degree murder. Conversely, the State argues that the record contains ample evidence that defendant shot and killed the victim in this case.

The standard of review for determining the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Both direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell , 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts. State v. Kempton , 01-572 (La. App. 5 Cir. 12/12/01), 806 So.2d 718, 722. The rule as to circumstantial evidence is "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt, but rather whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. State v. Flores , 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, both admissible and inadmissible, to determine whether the evidence is sufficient to support the conviction. State v. Hearold , 603 So.2d 731, 734 (La. 1992).

Defendant challenges the sufficiency of the evidence regarding his second degree murder conviction. La. R.S. 14:30.1 provides that second degree murder is the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." State v. Holmes , 12-579 (La. App. 5 Cir. 5/16/13), 119 So.3d 181, 191. Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the defendant's conduct. Id. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person, as well as the extent and severity of the victim's injuries. Id.

In the instant case, defendant was identified by two witnesses as the shooter of the victim. Lou' Donovan Wells testified that on May 4, 2016, he saw defendant, who is his first cousin, enter the gazebo in New Sarpy while he and the victim were present. After Lou' Donovan briefly greeted defendant, he started to return to his bench in the middle of the gazebo when Williams was shot. Lou' Donovan did not see defendant draw a weapon before he shot Williams, who was watching his phone at the time. He did see after the shooting, however, that defendant was holding a small gun in his hand. After shooting Williams, defendant walked straight back to the street and "just left."

Lamar Walker testified that on May 4, 2016, he was present at the gazebo in New Sarpy. That evening, Lamar saw defendant stand by his brother, Lou' Donovan, before defendant went up to Williams and fired a single gunshot to the back of the victim's head.

Dr. Dana Troxclair, who performed the victim's autopsy, testified the victim's death was a homicide caused by a gunshot fired at the back of his head.

Defendant contends that the testimony of both Lou' Donovan Wells and Lamar Walker lack credibility because each gave multiple statements that were internally inconsistent and contradicted the account given by the other witness. These contradictions and inconsistencies were developed for the jury at trial by defendant, and included pointing out that neither Lou' Donovan nor Lamar Walker initially identified defendant as the shooter in the beginning of their interviews with the police. The jury was also presented evidence by defendant regarding inconsistent statements given by witnesses on their respective positions at the time of the shooting, as well as whether either witness actually saw defendant holding a firearm.

The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact.

State v. Jones , 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The trier of fact shall evaluate the witnesses' credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. It is not the function of the appellate court to second guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence. Id. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, this is a matter of the weight of the evidence, not its sufficiency. State v. Miller , 11-498 (La. App. 5 Cir. 12/13/11), 84 So.3d 611, 617, writ denied , 12-176 (La. 9/14/12), 97 So.3d 1012.

We find that the jury made a credibility determination and chose to believe Lou' Donovan Wells and Lamar Walker, despite the inconsistencies during police interviews and in their trial testimony, that defendant shot and killed Kendall Williams. A review of the record reflects that the jury's credibility determination was rational. We note, for example, that discrepancies in the witnesses' testimony could be explained in their respective assertions that they were traumatized in just having witnessed a murder and that there was a reluctance to identify defendant as the shooter because he was their relative.

Thus, viewing the evidence in the light most favorable to the prosecution and considering both admissible and inadmissible evidence, we find a rational trier of fact could have found beyond a reasonable doubt that the State proved the essential elements of second degree murder so as to support defendant's conviction. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). Our review revealed no errors.

DECREE

Accordingly, for the reasons provided herein, defendant's conviction and sentence for second degree murder are affirmed.

AFFIRMED

      The record shows that JJ's actual name is Javonte Holden.

      The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821. In the present case, defendant did not file such a motion; however, the failure to file a post-verdict judgment of acquittal does not preclude appellate review of the sufficiency of the evidence. State v. Robinson , 04-964 (La. App. 5 Cir. 2/15/05), 896 So.2d 1115, 1120, n.3.

      Similarly, in State v. Weaver , 05-169 (La. App. 5 Cir. 11/29/05), 917 So.2d 600, this Court found sufficient identification evidence for a second-degree murder conviction despite the fact identification was made by a witness who gave several different statements to the police and was a self-proclaimed liar at trial. Stating that the credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, this Court concluded the jury chose to believe the witness' testimony despite some discrepancies in her statement. This Court noted it was not unreasonable for the jury to excuse the discrepancies because the witness was a juvenile and was afraid. This Court further emphasized that the witness' earlier testimony implicated the defendant as being at the scene and armed with a gun during the commission of a felony even though her explanation of the incident differed from that of other witnesses.