author:
PICKETT, Judge.
      GREMILLION,

text:
    Mark PATOUT v. UNDERWRITERS AT LLOYD’S LONDON, et al.
    16-879
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2017
    R. Todd Musgrave, Theresa S. Anderson, Musgrave, McLachlan & Penn, 1515 Poydras Street, # 2380, New Orleans, LA 70112, (504) 799-4300, COUNSEL FOR DEFENDANT-APPLICANT: Allen J. Patout
    Valerie Theng Matherne, Troy N. Bell, James M. Matherne, Daniel R. Estrada, Jené Liggins, Courington, Kiefer & Sommers, L.L.C., 616 Girod Street, New Orleans, LA 70130, (504) 524-5510, COUNSEL FOR DEFENDANT-RESPONDENT Harbor Freight Tools USA, Inc. ■
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   PICKETT, Judge.

_JjThe relator-defendant in cross-claim, Allen J. Patout (“Allen Patout”), seeks supervisory writs from the judgment of the trial court, which overruled his Exception of No Cause of Action.

STATEMENT OF THE CASE

This case arises from an accident in which it is alleged that the Plaintiff, Mark Patout, was inside an elevator located on property owned by Allen Patout when the cable holding the elevator snapped, causing the elevator to fall. Mark Patout filed suit against his brother, Allen Patout, for injuries he sustained as a result of the failure of the elevator. Mark Patout filed his Petition for Damages on November 20, 2015, naming as defendants Allen Patout, as the property owner; his insurer, Underwriters at Lloyd’s, London; Pittsburgh Automotive as the manufacturer and seller of the hoist system at issue; Harbor Freight Tools USA, Inc. (“Harbor Freight”), as the manufacturer and seller of the hoist system at issue; and unknown insurers. The petition indicates that Allen Patout built the elevator himself, using a hoist system manufactured and sold by Pittsburgh Automotive and Harbor Freight.

Mark Patout filed a First Amending Petition for Damages to identify more specifically Certain Underwriters at Lloyd’s, London Subscribing to Certificate No. ARK-PL-H2382 (“Underwriters at Lloyd’s”), as Allen Patout’s insurer. Mark Patout then filed a Second Amending Petition for Damages to assert additional allegations against Harbor Freight.

Harbor Freight filed an Answer and Affirmative Defenses to Mark Patout’s Original, First, and Second Amending Petitions for Damages, Cross-Claim, and Jury Demand. As plaintiff in cross-claim, Harbor Freight named Allen Patout and ^Underwriters at Lloyd’s and is seeking contribution and/or indemnification for any judgment rendered against it.

Allen Patout filed an Exception of No Cause of Action and/or Motion to Strike Cross-Claim in response to Harbor Freight’s Cross-Claim. Underwriters at Lloyd’s filed a Motion to Adopt the Exception of No Cause of Action. The exception was heard by the trial court on August 31, 2016, and the trial court denied the exception.

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. 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 La., 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. 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 Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam).

ON THE MERITS

Exception of No Cause of Action

The purpose of the peremptory exception of no cause of action is to determine the legal sufficiency of the petition. Venture Assocs. v. Transportation Underwriters of La., 93-539 (La.App. 3 Cir. 03/02/94), 634 So.2d 4, writ denied, (La. 7/1/94), 639 So.2d 1165. “The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to plaintiff if those factors are proved at trial.” Id. at 6. “When it can reasonably do so, the court should maintain a petition as to afford the litigant an opportunity to present his evidence.” Klumpp v. XYZ Ins. Co., 547 So.2d 391, 393 (La.App. 3 Cir.), writ denied, 551 So.2d 1322 (La.1989).

Allen Patout argues that Harbor Freight does not have a cause of action recognized under Louisiana law for contribution or indemnity against its co-tortfea-sors. Mr. Patout cites to La.Civ.Code art. 2324, which was amended in 1996 to eliminate solidary liability, making noninten-tional tortious acts joint and divisible, with each joint tortfeasor liable only for its own degree of fault, except where tortfeasors conspire to commit an intentional or willful act. Allen Patout argues that there have been no claims of any intentional or wfllful act made in this matter, nor is there an allegation of any indemnity agreement.

In response, Harbor Freight contends that it has a viable cause of action for contribution and indemnity, as any fault for Mark Patout’s accident stems from Allen Patout’s negligence, not Harbor Freight’s. The Petition for Damages and its Amendments allege that Mark Patout’s injuries are a direct result of the negligence 14of Allen Patout and that Allen Pat-out had full and total control of the elevator and installed it. Harbor Freight argues that under Nassif v. Sunrise Homes, Inc., 98-3193 (La. 6/29/99), 739 So.2d 183, this is sufficient for a cause of action for contribution and indemnity.

Based upon the allegations made by Mark Patout and Harbor Freight, Harbor Freight has a cause of action for contribution and/or indemnity. It it is possible that Allen Patout is at fault for the injuries suffered by Mark Patout when the homemade elevator failed, considering Harbor Freight’s allegation that the equipment it sold was used in a manner for which it was never intended. Harbor Freight stated this cause of action in its Answer and Affirmative Defenses to Mark Patout’s Original, First, and Second Amending Petitions for Damages, Cross-Claim, and Jury Demand.

Analysis

Under Louisiana law, a party not at fault that incurs liability due solely to the fault of others is entitled to seek recovery from the party at fault for implied or passive indemnity. Nassif, 739 So.2d 183.

It has long been held in Louisiana that a party not actually at fault, whose liability results from the fault of others, may recover by way of indemnity from such others. The cases have referred to this imposed liability variously as technical, constructive, vicarious and derivative.

Id. at 186.

In Nassif, a defendant home builder, Coast, filed a Third-Party Demand for contribution and indemnity from an engineering firm, Krebs, after being sued in redhibition by the plaintiff homeowner. The trial court found that the home at issue contained defects, that Krebs negligently performed its engineering services and that all the damages suffered by the plaintiff and Coast were caused by Krebs. IfiThe Louisiana Supreme Court affirmed the trial court’s judgment awarding Coast indemnity against Krebs. The supreme court noted that a party not actually at fault, whose liability results from the fault of others, may recover through indemnification.

Similarly, Harbor Freight asserted the complete fault of co-defendant, Allen Pat-out, for his misuse of the automotive engine hoist. Based upon the allegations made by Mark Patout, we find that Harbor Freight has a cause of action for contribution and/or indemnity, because it is possible that Allen Patout misused, failed to properly install, or failed to comply with the warnings against using the automotive joist manufactured by Harbor Freight to lift people.

Harbor Freight also cites to Klumpp, 547 So.2d 391, in support of its argument that even if the plaintiff alleges negligence on the part of the indemnitee, this does not preclude a cause of action for indemnification. In Klumpp, survivors of a pipeline owner’s employee, who died as a result of an accident with the pipeline, brought a negligence and strict liability suit against the construction company, its insurer, and the manufacturer. The construction company filed a demand for indemnity against the manufacturer, and in turn, the manufacturer filed an exception for no cause of action. The court in Klumpp stated, “Indemnity is due when fairness requires that one person bear the total responsibility for an injury.” Id. at 393. The court held that the manufacturer’s exception of no cause of action should have been overruled, as the construction company’s petition alleged that the accident was due primarily to the acts of the manufacturer and that the construction company was only technically or constructively at fault. The court explained:

[Manufacturer] Deere’s exception of no cause of action was based on the mistaken proposition of law that the allegations of the original plaintiffs’ petition determine whether |fla party may seek indemnity from a third person. Thus, according to Deere, if the original plaintiffs in the pleadings make an allegation that the third party plaintiff is negligent, the third party plaintiff is not entitled to indemnity as a matter of law... However, this is clearly not the law of this state.

Id. at 394. (citation omitted). The court further explained that “a person who is held liable vicariously or passively for the tort of another is due indemnity from the culpable tortfeasor. Robinson v. La. Dept. of Transp. and Dev., 454 So.2d 257 (La. App. 1st Cir.), writ denied, 458 So.2d 122 (La.1984).” Id. at 394.

In response, Allen Patout argues that the jurisprudence cited by Harbor Freight, including Klumpp, is outdated, and therefore, does not support Harbor Freight’s cause of action. However, Mr. Patout does not cite to any subsequent jurisprudence that overrules or disagrees with these decisions. Furthermore, this court has cited to Klumpp in two more recent cases, Hai Nam Restaurant Partnership v. B & B Const. of New Iberia, 06-729 (La.App. 3 Cir. 11/2/06), 942 So.2d 97, writ denied, 06-2751 (La. 1/26/07), 34 So.3d 261, and Hesse v. Champ Service Line, 02-84 (La.App. 3 Cir. 10/2/02), 828 So.2d 687, on the issues of contribution and indemnity.

In Hesse, the plaintiffs filed a products and premises liability based suit against several defendants after an employee was electrocuted while grabbing a vehicle’s water pump. The plaintiffs based their claim against the defendants on strict liability and/or negligence. The first claim involved the manufacture and distribution of the alleged defective product by the product manufacturer, and the second claim concerned the alleged liability of the remaining defendants under premises liability. The lessee brought a third-party demand against the product manufacturer for indemnity based upon strict liability and/or negligence. The Third Circuit cited to Nas-sif, 739 So.2d 183, when considering the indemnity claim:

Indemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed. It is based on the principle that everyone is responsible for his own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss. The obligation to indemnify may be express, as in a contractual provision, or may be implied in law, even in the absence of an indemnity agreement. An implied contract of indemnity arises only where the liability of the person seeking indemnification is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to the imposed.

Id. at 690 (Citations omitted). Similarly, Harbor Freight has stated a cause of action discharging liability to Allen Patout.

Allen Patout further relies on Beauregard v. State of La, through the DOTD, 09-271 (La.App. 3 Cir. 10/7/09), 21 So.3d 442, in arguing that a third-party demand for indemnification is not recognized under Louisiana law unless there is an agreement to be solidarily bound or if there is a joint intentional act. However, Allen Pat-out’s reliance is misplaced. In Beauregard, the plaintiff filed suit against the State after she fell due to an alleged defect in a sidewalk. The State filed a third-party demand against the City, asserting that, should it be found liable, it should be indemnified by the City, because the City owned and was responsible for maintaining the sidewalk. This court granted the City’s exception of no cause of action, holding that the State advanced no valid argument that it was due indemnification. The State argued that the City was the owner of and bore responsibility for the upkeep of the sidewalk such that it would be unjustly enriched if the State was found liable and had to pay damages. This can be distinguished from the present case, because mBeauregard, the State alleged unjust enrichment, without making any allegations of complete exoneration from | Rfault. Comparatively, Harbor Freight has argued that they are completely without fault; thus, Harbor Freight may be due indemnity from Allen Patout.

Considering the facts as alleged in the petition and the relevant law, we find that the trial court did not err in denying the exception of no cause of action.

Accordingly, the application for supervisory writs is denied.

WRIT DENIED.

Gremillion, J., dissents and assigns written reasons.

GREMILLION,

Judge, dissents.

|,I dissent from the denial of the application for -writs filed by Defendant/Defendant in Cross Claim, Mr. Allen J. Patout.

The petition in this matter alleges that Mr. Patout installed and “maintained full and total control of the elevator,” “installed a dangerous and defective electric hoist,” and other acts of negligence. The petition further alleges that Defendant/Cross-Claimant, Harbor Freight Tools USA, Inc., (Harbor Freight) manufactured and sold the hoist.

The specific allegations against Harbor Freight were that it was liable for:

A. Designing, manufacturing, assembling, marketing and selling a product which was dangerously defective and unreasonably dangerous in construction and composition;
B. Designing, manufacturing, assembling, marketing and selling a product which was dangerously defective and unreasonably dangerous in its design;
C. Designing, manufacturing, assembling, marketing and selling a product which was dangerously defective and unreasonably dangerous in its failure to have adequate instructions and/or warnings;
D. Other acts of negligence, fault, and strict liability which may be shown through discovery or at trial; [and,]
E. Generally, the failure of this defendant to act with required degree of care commensurate with the existing situation.

[ ^Allegations (A), (B), and (C) carefully track the language of the Louisiana Products Liability Act (LPLA), La.R.S. 9:2800.51, et seq., and, specifically, three of the four exclusive theories of liability under which a product can be deemed unreasonably dangerous for purposes of establishing a manufacturer’s liability under the Act.

In his “Second Amending Petition for Damages,” the plaintiff made more specific allegations against Harbor Freight to identify why the electric hoist was unreasonably dangerous in construction or composition, in design, and in failing to adequately warn.

Harbor Freight then answered and asserted thirty-six affirmative defenses, as well as its cross claim against Mr. Patout and his insurer, in which it alleged that it is entitled to indemnity and contribution from them for any liability for which it might be found under the plaintiffs demands in strict liability. Mr. Patout and his insurer filed their exception of no cause of action that asserted that Harbor Freight has no cause of action for indemnity or contribution. The trial court denied this exception.

In non-intentional tort cases, “liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person.” La.Civ.Code art. 2324(B). The Louisiana Supreme Court and this court have addressed this situation.

In Dumas v. State, through Dep’t of Culture, Recreation & Tourism, 02-63 (La. 10/15/02), 828 So.2d 530, the plaintiffs’ spouse and father had been killed in a bicycle accident at Chemin-a-Haut State Park near Bastrop, Louisiana. The State asserted that the alleged malpractice of the responding health care providers caused or contributed to the victim’s death and asserted this as an affirmative defense. Plaintiffs sought to strike these allegations, and the trial court agreed. The Louisiana Supreme Court held that the State was entitled, under La.Civ.Code art. 2324, to have the fault, if any, of the health care providers assessed by the jury.

The Supreme Court took note of the legislative history of La.Civ.Code arts. 2323 and 2324:

Prior to 1980, Louisiana courts applied a judicially-created rule based on common-law precedents under which a plaintiffs contributory negligence barred any recovery in a negligence action. Rozell v. Louisiana Animal Breeders Co-op., Inc., 496 So.2d 275, 279 (La. 1986); Bell v. Jet Wheel Blast, 462 So.2d 166, 169 (La.1985). The first Louisiana case that clearly adopted the doctrine of contributory negligence was Fleytas v. Pontchartrain Railroad Co., 18 La. 339 (1841), which was decided at a time when there was no organized body of civilian doctrine on the issue of comparative fault. Bell, 462 So.2d at 169. Effective August 1, 1980, the legislature amended La. C.C. art. 2323 to eliminate the doctrine of contributory negligence and to provide a procedure by which a plaintiffs negligence would operate only to' reduce his recovery in proportion to his fault. Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132 (La.1988); Bell, 462 So.2d at 170. As amended by Act No.

431 of 1979, La. C.C. art. 2323, entitled “Computation of damages,” provided:

When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.

The amendment, the effect of which was to prevent courts from applying any rule more damaging to plaintiffs ease than comparative negligence, Bell, 462 So.2d at 170, was beneficial to plaintiffs in that Lit increased the probability that they would be compensated, at least in part, for their injuries.

Act No. 431 of 1979 also revised La. C.C. art. 2324 to reaffirm the principle of solidary liability among joint tortfea-sors, a principle that had been a part of Louisiana’s civil tradition for more than 150 years. See Touchard v. Williams, 617 So.2d 885 (La.1993). As amended by this Act, La. C.C. art. 2324, entitled “Liability for assisting or encouraging wrongful act,” provided:

He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act. Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; provided, however, when the amount of recovery has been reduced in accordance with the preceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of negligence has been attributed, reserving to all parties their respective rights of indemnity and contribution.

One of the underlying policies of soli-dary liability, as well as tort law as a whole, is victim compensation. Touch-ard, 617 So.2d at 889. The imposition of the principle of solidarity among joint tortfeasors “ ‘espouse[s] a theory that it is better to allocate damages to the injurers, even in greater portions than their respective degrees of fault, than have victims suffer a reduced recovery.’” Id. at 890 (quoting M. Kevin Queenan, Civil Code Article 2324: A Broken Path to Limited Solidary Liability, 49 La. L.Rev. 1351, 1356 (1989)). That is, the modern justification for soli-dary liability is founded on the belief that the innocent plaintiff should have the opportunity to obtain full compensation from any person whose fault was an indispensable factor in producing the harm. Touchard, 617 So.2d at 890. Thus, the primary effect of solidary liability is that any tortfeasor may be made to pay the judgment in full for other defendants who are insolvent, unknown, or absent. Id.

In 1987, the legislature confronted the problem of compelling solvent defendants who were not 100% at fault to pay for 100% of plaintiffs’ damages by enacting compromise legislation that attempted to balance the competing interests of judgment creditors and judgment debtors. Id. By Act No. 373 of 1987, the legislature amended La. C.C. art. 2324, newly entitled “Liability as solidary or joint and divisible obligation,” to provide:

LA. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, or as otherwise provided by law, then liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages; however, when the amount of recovery has been reduced in accordance with the preceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of fault has been attributed. Under the provisions of this Article, all parties shall enjoy their respective rights of indemnity and contribution. Except as provided in Paragraph A of this Article, or as otherwise provided by law, and' hereinabove, the liability for damages caused by two or more persons shall be a joint, divisible obligation, and a joint tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency,' ability to pay, degree of fault, or immunity by statute or otherwise.

This amendment balanced the risks of insolvent, incapable of paying, unknown, and absent tortfeasors among plaintiffs and known, solvent defendants. Touch-ard, 617 So.2d at 892.

In a case arising prior to the 1987 amendment, Weber v. Charity Hosp. of La. at New Orleans, 475 So.2d 1047 (La.1985), this court was presented with the issue of whether a compromise with and release of an initial tortfeasor discharged a hospital and a blood supplier that gave the victim unwholesome blood during treatment for injuries she sustained in the original accident from any obligation relating to the blood transfusion. To answer this question, we were required to determine whether the original tortfeasor was solidarity liable for the damages resulting from the transfusion since the release of one solidary obligor discharged other solidary obli-gors. We concluded that an initial tort-feasor may be liable for the injuries he directly caused to the tort victim as. well as for the victim’s additional suffering caused by inappropriate treatment by a health care provider who treated the original injuries and characterized this inquiry as one of legal causation which should be addressed under a duty-risk analysis. We then determined that the initial tortfeasor’s negligence was a cause in fact of the injuries the victim received as a result of inappropriate medical care, and that the initial tortfea-sor’s duty to refrain from negligently harming others encompassed the risk that the |fivictim’s injuries might be worsened by the treatment for those injuries. Consequently, we found that, as a matter of policy, the initial tortfeasor’s negligence was the legal cause of the injuries arising from the subsequent medical treatment and the initial tortfea-sor could therefore be held liable for any damages resulting from that treatment. Finally, we concluded that the initial tortfeasor’s liability for any damages arising out of the medical treatment was solidary with any liability found to exist on the part of the hospital and the blood supplier.

After the 1987 amendment of Article 2324, an issue arose concerning the effect of the amendment on this court’s holding in Weber. In Lambert v. United States Fidelity & Guar. Co., 629 So.2d 328 (La.1993), a per curiam opinion, we determined that the amendment reducing solidarity among solidary obligors to only the extent necessary for the tort victim to recover fifty percent of his recoverable damages did not change the principle announced in Weber that the initial tortfeasor could be held liable for any damages arising out of medical treatment necessitated by the original accident. We stated that the initial tort-feasor’s liability was based on the fact that he was the legal cause of 100% of the victim’s harm as well as on the imposition of a solidary obligation between joint tortfeasors. We determined that the 1987 amendment to La. C.C.' art. 2324 did not change the Weber principle, in part because an apportionment of fault between the original tortfeasor and the subsequently treating health care provider could result in the victim receiving less than the full amount of the judgment. We went on to note, however, that even under the Weber rationale that remained valid despite the 1987 amendment, the original tortfeasor would not ultimately bear the cost of the entire tort judgment because he had the right to seek contribution from the health care provider. We explained this result relieved the victim of having to prove which of the two tortfeasors caused what injuries and, instead, properly placed this burden on the original tortfeasor.

Several years after this court’s opinion in Lambert, the legislature again amended La. C.C. arts. 2323 and 2324(B), this time to abolish solidary liability among non-intentional tortfeasors and to place Louisiana in a pure comparative fault system. Amended by Act 3 of the 1st Ex.Sess. of 1996, La. C.C. art. 2323, entitled “Comparative fault,” now provides:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a non-party, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If ajjperson suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

In addition to Article 2323, Act 3 also amended La. C.C. art. 2324 to provide:

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

Id. at 532-36. (Footnotes omitted).

The court went on to note that the 1996 amendment abolished solidary liability among joint tortfeasors. The basis for indemnity and contribution among joint tort-feasors was the solidary nature of them liability prior to 1996, as was clearly evidenced by the 1979 amendment’s language “reserving to all parties their |8respective rights of indemnity and contribution.” 1979 La.Acts No. 431. This language was removed from Article 2324 by 1987 La.Acts No. 373.

The abolition of solidary liability among joint tortfeasors abolished demands for indemnity and contribution among them absent an intentional tort or an agreement for indemnity. “[La.Civ.Code art. 2324(B) ] abolishes solidarity among non-intentional tortfeasors, and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to [La.Civ.Code art.] 2323.” Dumas, 828 So.2d at 537.

This court, in Beauregard v. State, through Dep’t of Transp. and Dev., 09-271 (La.App. 3 Cir. 10/7/09), 21 So.3d 442, affirmed the trial court’s grant of the State’s third-party demand for indemnity against the City of Alexandria. The plaintiff was allegedly injured when she fell due to a three-inch elevation difference in sections of sidewalk. She sued the Department of Transportation and Development, which then field its third-party demand against the city, arguing that maintenance of sidewalks was the city’s responsibility. We recognized the abolition of solidary liability as the basis for non-contractual indemnity and affirmed the trial court.

The majority relies upon two cases that are clearly distinguishable from the present matter. The first is Nassif v. Sunrise Homes, Inc., 98-3193 (La. 6/29/99), 739 So.2d 183. This case pitted a homeowner against her builder under a theory of red-hibition for a failed foundation. The builder, in turn, filed a third-party demand for indemnity against the engineering firm that designed the foundation. Because the builder was “only technically or constructively liable for [plaintiffs] loss,” the builder was subjected to damages itself as the result of the engineering firm’s negligence and was entitled to “restitution” from the engineering firm, including attorney fees. Id. at 187. Nassif involved a defendant and a third-party defendant, |9one of whose liability arose in redhibition and the other from tort. Either could have been sued by the plaintiff and found' liable for the whole of her damages. In the present matter, both Mr. Patout and Harbor Freight are exposed to liability only in tort. Each can only be found liability for the degree of fault assessed by the jury at trial.

The second case relied upon by the majority is Klumpp v. XYZ Ins. Co., 547 So.2d 391 (La.App. 3 Cir.), writ denied, 561 So.2d 1322 (1989). It should be noted first that Klumipp involved a pre-1987 incident; thus, the 1979 version of La.Civ. Code art. 2324 applied, and demands for indemnity and contribution even among joint tortfeasors was statutorily authorized. The underlying case involved a reputed natural gas pipeline. The construction company whose backhoe was excavating at the site filed a demand for indemnity against the manufacturer of the equipment, alleging that it was defective. This court noted that only one whose liability is passive or vicarious, and who is free from fault “and has discharged a debt that should be paid wholly by the indemnitor” is entitled to indemnity. Id. at 394. In the present matter, there is no vicarious or passive liability that can be found against Harbor Freight. The Klumpp case does not present a matter analogous to the present and was superseded by 1987 La. Acts No. 373.

In conclusion, in a non-intentional tort case, there no longer exists solidary liability; therefore, in the absence of an agreement, there is no indemnity among joint tortfeasors. Here, there is no allegation that any indemnity agreement exists between Mr. Patout and Harbor Freight. If a jury finds that Harbor Freight manufactured the hoist and that the hoist was unreasonably dangerous by construction or composition, in design, or in Harbor Freight’s failing to adequately warn user, the jury will assign Harbor Freight a percentage of fault under the LPLA. On the other hand, if the jury finds that Mr. Pat-out utilized the hoist in a |inmanner that was not reasonably anticipated or that the characteristic that rendered the hoist unreasonably dangerous did not result from a reasonably anticipated alteration, it must find that Harbor Freight is not liable to the plaintiff. La.R.S. 9:2800.54. I would reverse the trial court, enter judgment maintaining the exception of no cause of action, and remand the matter to allow Harbor Freight the opportunity to cure the defects in its cross claim by amendment in accordance with the principles of law set forth above.

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

      . The LPLA “establishes the exclusive theories of liability for manufacturers for damage caused by their products. A claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory not set forth [in the Act].” La.R.S. 9:2800.52. The four theories of liability set forth in the LPLA are: unreasonably dangerous in construction or composition, La.R.S. 9:2800.55; unreasonably dangerous in design, La.R.S. 9:2800.56; unreasonably dangerous because of inadequate warning, La. R.S. 9:2800.57; and unreasonably dangerous because of nonconformity to express warranty, La.R.S. 9:2800.58.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Larry KEBODEAUX v. NABORS DRILLING, LP, et al.
    CA 16-851
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered March 1, 2017
    Charles A. Cerise Jr., Robert Bernard Nolan, Adams & Reese, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, (504) 581-3234, COUNSEL FOR DEFENDANT/APPELLEE: S.H.R.M. Catering Services, Inc.
    Carol Stookey Hunter, Assistant Attorney General, 556 Jefferson Street, 4th Floor, Lafayette, LA 70501, (337) 262-1700, COUNSEL FOR DEFENDANTS/APPELLEES: State of Louisiana, Board of Supervisors for University of Louisiana System, University of Louisiana at Lafayette Marine Survival Training Center

      Mark Louis Riley, The Glenn Armentor Law Corporation, 300 Stewart Street, Lafayette, LA 70501, (337) 233-1471, COUNSEL FOR PLAINTIFF/APPELLANT: Larry Kebodeaux
    Henry Harvey LeBas, F. Douglas Orte-go, LeBas Law Office, 201 Rue Iberville, Ste 100, Lafayette, LA 70508, (337) 236-5500, COUNSEL FOR INTERVE-NOR/APPELLEE: SeaBright Insurance Company
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   EZELL, Judge.

| tLarry Kebodeaux appeals the decision of the trial court granting summary judgment in favor of the State of Louisiana, through the Board of Supervisors of the University of Louisiana System and the University of Louisiana at Lafayette Marine Survival Training Center (hereinafter referred to as ULL-MSTC). For the following reasons, we hereby affirm the decision of the trial court.

On October 8, 2010, Mr. Kebodeaux was a student at ULL-MSTC participating in a marine survival course required by his employer. Calvin Washington was likewise participating in the course that day. The training consisted of two parts: a classroom session and a pool session, where the information taught in the classroom would be put into effect. As part of the training, participants were taught how to enter the water from an offshore platform in case of an emergency. The students were instructed, both in the classroom and poolside, to look into the water to make sure there were no people or obstructions before entering the water. At the pool, students were specifically instructed to wait until the person who had entered the pool before them had cleared the way before jumping into the water. Mr. Kebodeaux entered the water as instructed, but before he could even return to the water’s surface, Mr. Washington jumped in, landing on him. After Mr. Kebodeaux was taken to safety, Mr. Washington told him “My bad; I jumped too soon.”

Mr, Kebodeaux filed the current suit against ULL-MSTC, an instructor at the school, Mr. Washington, and Mr. Washington’s employer for injuries he alleges he sustained as a result of the accident. ULL-MSTC filed a motion for summary judgment, claiming that it had not breached any duty to Mr. Kebodeaux and that all fault for the accident belonged to Mr. Washington. The trial court ^agreed, granting ULL-MSTC’s motion for summary judgment and dismissing it from the suit with prejudice. From this decision, Mr. Kebodeaux appeals.

On appeal, Mr. Kebodeaux asserts one assignment of error, claiming that the trial court erred in finding that ULL-MSTC did not breach any duty of reasonable supervision to him under La.Civ.Code art. 2320. We disagree.

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends.” La. Code Civ.P. art. 966 (A)(2). “[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3) The movant bears the burden of proof. La.Code Civ.P. art. 966(D)(1). “If the movant meets this initial burden, the burden then shifts to plaintiff to present factual support adequate to establish that he will be able to satisfy the evidentiary bui’den at trial.” Champagne v. Ward, 03-3211, p. 5 (La. 1/19/05), 893 So.2d 773, 776 (citation omitted). “Thereafter, if the plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law.” Id. at 776-77.

We apply the de novo standard of review in reviewing a district court judgment on a motion for summary judgment. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La. 2/26/08), 977 So.2d 839. In our review, we shall use “the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.

| ¡¡The facts of this case are not in dispute. It is clear from the record, and from Mr. Kebodeaux’s own deposition testimony, that Mr. Washington entered the water too soon, and admitted doing so. Mr. Kebodeaux claims that ULL-MSTC failed in its duty to supervise Mr. Washington. He cites as authority La.Civ.Code art. 2320, which reads, “Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.” However, that article goes on to state that “[i]n the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.” Id.

It is well established that a school, through its agents and teachers, is responsible for reasonable supervision over students. Adams v. Caddo Parish Sch. Bd., 25,370 (La.App. 2 Cir. 1/19/94), 631 So.2d 70, writ denied, 94-684 (La. 4/29/94), 637 So.2d 466. However, the school is not the insurer of the safety of its students. Id. The supervision required is reasonable, competent supervision appropriate to the age of the students and the attendant circumstances. Id. “[C]onstant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision.” Id. at 73.

In Lemelle v. State, Through Bd. of Secondary & Elementary Educ., 435 So.2d 1162 (La.App. 3 Cir. 1983), an adult vocational-technical student brought an action for damages against the school and others. There, the plaintiff alleged that he injured his knee when a sheet of steel he was moving, contrary to his teacher’s instructions, fell on him. This court concluded that a twenty-nine-year-old mature adult should have been able to carry out his teacher’s instructions without the need of supervision.

Similarly, in Robinson v. Jefferson Parish Sch. Bd., 08-1224, 08-1225 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, writ denied, 09-1187 (La. 9/18/09), 17 So.3d 975, a twenty-year-old, mature young man drowned after being warned by an ROTC instructor not to go near a lake. The fifth circuit held that the man should have been able to carry out the instruction that the lake was off limits without the need of supervision, and that the trial judge there did not err in concluding that the Jefferson Parish School Board and its employees did not owe constant supervision to the deceased to ensure that he obeyed the instruction. That court found that there were no issues of material fact as to the Jefferson Parish School Board’s liability.

Likewise, the duty to use reasonable care in this instance did not dictate continuous supervision of Mr. Washington. See Hunter v. Evergreen Presbyterian Vocational Sch., 338 So.2d 164 (La. App. 2 Cir. 1976). It is clear from the record that ULL-MSTC provided unquestionably clear instructions that Mr. Washington, a fully grown and functional man, should have been able to follow. Mr. Washington, by his own admission, failed to follow the simple instructions given and jumped into the water before Mr. Kebodeaux was clear. ULL-MSTC did not owe Mr. Kebodeaux constant supervision over Mr. Washington to ensure that he obeyed the instruction. There is no evidence in the record to support a finding of inadequate supervision on the part of ULL-MSTC. The trial court committed no error in its findings.

For the above reasons, the decision of the trial court granting summary judgment in favor of ULL-MSTC is hereby affirmed. Costs of this appeal are hereby assessed against Mr. Kebodeaux.

AFFIRMED.


author: AMY, Judge.

text:
    Johnnell DUNCAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    16-759
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered March 1, 2017

      James E. Diaz, Jr., Leah B. Guilbeau & Associates, 4023 Ambassador Caffery, Suite 100, Lafayette, LA 70503, (337) 988-7240, COUNSEL FOR DEFENDANTS/APPELLANTS: State Farm Mutual Automobile Insurance Company, Alexa A. Miller
    Marcus L. Myers, Myers Law Firm, LLC, 517 W. College Street, Lake Charles, LA 70605, (337) 602-9690, COUNSEL FOR PLAINTIFF/APPEL-LEE: Johnnell Duncan
    Court composed of Marc T. Amy, D. Kent Savoie, and Van H. Kyzar, Judges.
   AMY, Judge.

11 This matter stems from an automobile accident that occurred in a business parking lot. The plaintiff alleged that while traveling through an intersection, and after having stopped at a “stop line” painted on the pavement, her vehicle was struck by the defendant driver’s vehicle. Citing various injuries, the plaintiff sought damages for herself and on behalf of her two minor children. Following a bench trial, the trial court found the defendant driver solely at fault and awarded general damages to the plaintiff and her children. The defendants appeal. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, on August 7, 2013, Johnnell Duncan was driving her vehicle in a southbound direction in the parking lot of the Southgate Shopping Center in Lake Charles. Her two minor children, Ja’Niya Golston and Ja’Maya Golston, were also in the vehicle. According to Ms. Duncan, as she approached an intersection in the parking lot located near FedEx and Accessory Zone, she encountered a stop line marked by the word “STOP” painted on the pavement. Ms. Duncan testified that she stopped at the stop line, looked in both directions, and, after ensuring that the intersection was clear, proceeded slowly through the intersection. However, while traveling through the intersection, her vehicle was struck by a vehicle driven by Alexa Miller, which was traveling in an eastbound direction in the parking lot in an aisle perpendicular to Ms. Duncan’s path. Gage Ritter, who explained that he was Ms. Miller’s fiancé at the time of the accident and is now her husband, was a passenger in the Miller vehicle.

Ms. Duncan testified that she initially saw Ms. Miller’s vehicle prior to the collision, when Ms. Duncan’s vehicle was “in the middle” of the intersection, with |athe “tip” of her vehicle being “right there where you go into the next set [of] cars, that lot.” She added that at this time, she witnessed Ms. Miller holding an iPhone equipped with a pink OtterBox. She further stated that she could see Ms. Miller’s vehicle “out of the corners of [her] eyes[,]” that Ms. Miller “was not driving slow [sic][,]” and that Ms. Miller “made a sharp turn” that “was really fast.” When asked on cross examination if she witnessed Ms. Miller making this turn, Ms. Duncan admitted that she did not. However, she maintained that the only way Ms. Miller could have arrived at the intersection was by making a right turn from what Ms. Duncan referred to as the “fast lane,” which runs parallel to the aisle in which Ms. Duncan’s vehicle was traveling, and into the aisle perpendicular to Ms. Duncan’s aisle. Ms. Duncan also suggested that Ms. Miller’s vehicle must have been traveling faster than the parking lot’s speed limit of fifteen miles per hour, as she testified that Ms. Miller’s vehicle hit her vehicle “hard” and that “it actually drug” her vehicle.

Ms. Miller confirmed that, as deduced by Ms. Duncan, she made a right turn from the fast lane before approaching the intersection in which the accident occurred. However, contrary to Ms. Duncan’s testimony, Ms. Miller and Mr. Ritter both testified that Ms. Miller’s vehicle was traveling at a “normal parking lot speed” of seven or eight miles per hour. Ms. Miller maintained that as she approached the intersection, she was “looking straight ahead” and “being cautious[,] looking [at] each side.” Mr. Ritter also testified that Ms. Miller was looking “straight” and making “normal parking lot driving head motions.” Ms. Miller and Mr. Ritter both testified that Mr. Ritter noticed Ms. Duncan’s vehicle before Ms. Miller did. According to Mr. Ritter, he first saw Ms. Duncan’s vehicle “as soon as [they] got to where [he] could see down the lane,” explaining that, due to parked cars obscuring the view, “you can’t really see all the way down.”

| oMr. Ritter further alleged that he witnessed Ms. Duncan drive “straight through the stop line” without stopping, and he could not “even recall seeing her slow down.” He also stated that Ms. Duncan’s vehicle was going “maybe twice as fast” as Ms. Miller’s vehicle, at a speed “[t]oo fast for the conditions of the parking lot that day.” Ms. Miller and Mr. Ritter both alleged that he attempted to warn her of the impending collision, but Ms. Miller explained that she did not “even really have time to push [her] brakes” prior to impact. Ms. Miller further alleged that the force of the impact physically displaced her vehicle as well as Ms. Duncan’s vehicle, such that both vehicles moved outward from their respective points of impact. When asked on cross examination whether she believed Ms. Duncan was at fault for the accident, Ms. Miller stated, “I agree[;] I do believe that if she would have stopped at the stop line, she would have seen me coming because I had the right-of-way.”

Additionally, Ms. Miller and Mr. Ritter both denied that Ms. Miller was on her cell phone at the time of the accident, maintaining instead that they were having a conversation with each other. In response to this assertion, Ms. Duncan’s counsel introduced certified records from AT & T purportedly indicating that a call was made from Ms. Miller’s phone at 3:11 p.m. on the day of the accident. Having previously testified that the accident occurred at “[a]bout 3:15 in the a£ternoon[,]” Ms. Miller explained that she had called her father to inform him of the accident after it occurred and that she did not “really know” the “exact time” of the accident, as she had not been watching the clock. When asked on cross examination whether she had a pink OtterBox on her phone at the time of the accident, Ms. Miller responded, “I can’t recall. I’ve always had a pink cover for my phone.”

[ .Recording to her medical records, Ms. Duncan was approximately 22 weeks pregnant on the date of the accident. She testi-fled that upon impact, her steering wheel hit her stomach, which she described as having been “fairly large” at the time, and that she suffered from vaginal bleeding and contractions immediately following the accident. However, Mr. Ritter testified that Ms. Duncan did not appear to be in any pain, as he saw her jump up and down and kick the ground “in a fit” after inspecting the damage to her vehicle.

Ms. Duncan was admitted to Women and Children’s Hospital the same day, where she allegedly learned that her unborn child’s “heart rate was high” and that unspecified members of the hospital staff “were in fear that [she] may have to deliver him[,]” which made her feel “extremely afraid.” Ms. Duncan was admitted to Women and Children’s Hospital again on August 16, 2013, approximately one week after the accident, complaining that she had been having contractions accompanied by nausea, vomiting, and diarrhea since the day before that visit. She testified that prior to that visit, her contractions “were becoming very regular ... about five minutes apart” and that they were “painful to the point [that she] couldn’t walk.” She further alleged that during this visit, she learned that her unborn child’s heart rate was again elevated. Regarding this experience, she related that she was “afraid that [her] child would be damaged from the accident. And that he possibly wouldn’t make it.” According to Ms. Duncan, her son was born in good health in December 2013.

In addition to her own alleged injuries, Ms. Duncan testified that Ja’Maya, her younger daughter, had received stitches for a cut on her head shortly before the accident. Ja’Maya allegedly bumped her head upon impact, which caused the stitches, as well as the cut, to reopen. While Ms. Duncan asserted that both of her daughters were sitting in the back seat at the time of the accident, Mr. Ritter l-testified that he believed Ja’Maya was sitting in the front seat without a seat belt, as he witnessed Ja’Maya hit her head on the dashboard and noticed that she was not wearing a seat belt when he approached Ms. Duncan’s vehicle.

Both of Ms. Duncan’s daughters visited the doctor approximately a week after the accident on August 15, 2013. The medical records from Ja’Maya’s visit indicate that “[m]om reports no complaints but seems ‘bothered by head,’ picking at stitches.” The medical records from Ja’Niya’s visit indicate that she complained of “back pain ‘when she moves’” but that she was “[fjeeling ‘kinda good’ [sic].”

Ms. Duncan subsequently filed suit, naming as defendants her own insurer, Safeway Insurance Company of Louisiana (Safeway), and Ms. Miller and her insurer, State Farm Mutual Automobile Insurance Company (State Farm), seeking damages on behalf of herself and her children, citing physical injury, mental pain and suffering, emotional anguish, loss of enjoyment of life, and economic loss. Following a determination that Safeway and Ms. Duncan had reached a valid settlement agreement, the trial court dismissed Safeway from the suit. Ms. Miller and State Farm filed a joint answer denying that Ms. Miller was at fault, arguing instead that Ms. Duncan was at fault “in proceeding past a stop line ... in the immediate presence of traffic[,]” “in failing to accord the right of way of traffic[,]” and in “traveling at an excessive and unsafe speed for such a parking area.”

After a bench trial, the trial court ruled in favor of Ms. Duncan, having found her to be an “exceptionally credible witness.” During the ruling, the trial court stated the following:

What she says makes sense to this Court that a young mother of two who is pregnant was driving at a safe speed through a parking lot with her kids in the car. I don’t believe that she was driving exceptionally fast in this parking lot. I also do not believe that she got out [of] the vehicle being twenty-two weeks pregnant and jumped up and down in the parking lot. ... I just don’t think she did anything to put her fetus in jeopardy just based on the demeanor of the young woman who | (¡testified before me and the emotion that I saw from her that I thought was genuine, I do not feel that she would have in anyway done anything that would have put her unborn son in jeopardy. The accident occurred because Ms. Miller, I believe, was driving at a speed that was not safe for that parking lot. ... I’m pretty familiar with how people drive in and out of the parking lot, and I just think that Ms. Miller was caught up either in her phone conversation, or conversation with her now husband, and she was not paying attention. And I do believe that Ms. Duncan stopped as she should have and because she was not traveling at a fast speed, she was still in the intersection when Ms. Miller came and failed to see her. And she failed to see her based on testimony of her husband, because he actually saw her first and he wasn’t driving. ... I also think that just using this Court’s common sense and basic knowledge of physics, the force of the accident, I think that the speed was traveling, just when I examine the photographs, was traveling with Ms. Miller, and that would have caused Ms. Duncan’s vehicle to move in that direction. And I just think that had it occurred the other way, the accident would have been very different, especially if they were traveling at a speed of seven or eight miles an hour and she was driving exceptionally fast. The damage to the vehicles, in this Court’s opinion, would not have been the way that the damage is. And that’s why I’m finding that Ms. Miller is at fault.

The trial court also credited Ms. Duncan’s testimony regarding her symptoms following the accident. Regarding the medical records from August 7, 2013, the trial court stated, “[According to her testimony, I didn’t see it in the medical records, she was experiencing contractions at the time.” The trial court also noted that the August 16, 2013 medical records indicated that “she was experiencing contractions again” and that she had mentioned the accident at that visit. However, the trial court determined that because no references to either the accident or her symptoms were included in Ms. Duncan’s medical records dated September 17, 2013, “any pain and suffering she was experiencing had resolved by that time[.]”

Ultimately, the trial court awarded Ms. Duncan $7,500.00 for pain and suffering and $5,000.00 for emotional anguish, totaling $12,500.00. In awarding these sums, the trial court referenced Ms. Duncan’s pregnancy and found “that the anguish was great[.]” Ja’Niya was awarded $1,500.00 for pain and suffering and [ t$1,000.00 for emotional anguish, totaling $2,500.00. Ja’Maya was awarded $2,500.00 for pain and suffering and $1,000.00 for emotional anguish, totaling $3,500.00.

Ms. Miller and State Farm appeal, assigning as error that:

1. The trial court committed factual error in failing to find the plaintiff solely at fault.
2. Alternatively, the trial court committed factual error in failing to apportion fault between the drivers.
3. The trial court committed factual error as to the amount of damages awarded.

Discussion

Fault of the Plaintiff

In their first assignment of error, appellants assert that Ms. Duncan was solely at fault for the accident and that the trial court erred in finding Ms. Miller solely at fault. On review, an appellate court considers a factfinder’s determination under the manifestly erroneous or clearly wrong standard. Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La. 3/16/10), 35 So.3d 230. The supreme court has explained this standard as follows:

To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
| RWhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. However, where documents or objective evidence so contra-diet a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfin-der would not credit the witness’s story, a reviewing court may well find manifest error. Where such factors are not present, however, and a factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or' clearly wrong.

Id. at 239-40 (citations omitted).

In support of their assertion that Ms. Duncan was solely at fault, appellants argue that Ms. Miller was the favored motorist in the intersection, as Ms. Duncan was bound by a stop line, while Ms. Miller was not. Thus, appellants contend, Ms. Duncan “had a legal duty to refrain from crossing if her movement created an immediate hazard to favored traffic.” In support of this argument, appellants cite to La.R.S. 32:123, which, in relevant part, provides the following:

A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.
B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the crosswalk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.

However, jurisprudence indicates that the Highway Regulatory Act, which encompasses La.R.S. 32:123, is inapplicable to private parking lots. See Johnson v. Smith, 11-853 (La.App. 3 Cir. 3/14/12), 86 So.3d 874; Chenevert v. Wal-Mart Stores, Inc., 02-1075 (La.App. 3 Cir. 2/5/03), 838 So.2d 922; Gatheright v. State Farm Mut. Auto. Ins. Co., 352 So.2d 428 (La.App. 3 Cir.1977). While the Highway Regulatory Act “may be of persuasive value in determining the degree of Reare expected” of drivers in private parking lots, liability under these circumstances is determined by “general tort law[,]” with such drivers being held to a “due caution” standard. Gatheright, 352 So.2d at 431. Moreover, “a motorist can breach his duty of due caution if he travels at a fast pace in a parking lot with other traffic present and with his vision obstructed by parked cars and other objects.” Johnson, 86 So.3d at 879.

For example, in Roig v. Brooks, 405 So.2d 1256, 1257 (La.App. 4 Cir. 1981), the plaintiff claimed, similar to Ms. Duncan, that she approached an intersection in a supermarket parking lot marked with the word “stop” on the pavement, “that she stopped in obedience to the painted stop sign, and that she looked both ways, saw nothing coming, and proceeded slowly across the intersection when her automobile was struck by the [defendant’s] vehicle. Neither driver saw the other automobile until immediately prior to impact.” Similar to Mr. Ritter’s testimony, the defendant driver’s husband testified that he saw the plaintiffs vehicle come “flying in front of’ their vehicle, that the plaintiff failed to stop at the stop sign, and that the plaintiff was traveling “approximately 25 to 30 miles per hour.” Id. at 1257-58. While the defendant driver admitted that she was traveling “between 20 and 25 miles per hour[,]” she argued that she had the right-of-way, citing La.R.S. 32:123. Id. at 1258. Upon determining that La.R.S. 32:123 was inapplicable, the reviewing court stated the following:

Although no reasons for judgment were assigned by the trial judge, it is clear that he accepted plaintiffs version of the accident and rejected defendants’. It is clear also that the trial judge further concluded that the sole and proximate cause of the accident was the excessive rate of speed of the [defendant’s] automobile through a crowded parking lot area where automobile [sic] move in different directions with drivers concentrating on locating parking spaces rather than on approaching automobiles. We cannot say, as we consider the testimony in this case, that the trial judge erred in his factual or legal conclusions.

| WM- at 1258.

In addition to citing to La.R.S. 32:123, appellants also point to two diagrams of the parking lot that were presented at trial. Appellants argue that Mr. Ritter’s depiction of the vehicles at the time of collision is more accurate than Ms. Duncan’s, as the photographs of the damage to the vehicles demonstrate that the “collision could not have occurred with the vehicle of [Ms. Duncan] all the way across the travel aisle.” Specifically, appellants state the following:

The description of [Ms. Duncan] would include damage to the vehicle of Ms. Miller at the right front corner, instead of the left front corner, but that is inconsistent with the photographs. As the photographs clearly depict damage to the left front corner of Ms. Miller’s vehicle, the description by [Ms. Duncan] in Exhibit D-l would suggest that the damage of [Ms. Duncan’s] car would have taken place at the front passenger side door. Once again, that is inconsistent with the photographs, which show no damage except for the right front comer.

Thus, appellants argue, because the vehicles clearly collided corner to corner, the front of Ms. Duncan’s vehicle could not have been more than halfway through the intersection at the time of the crash, as that would have been the only opportunity for the two corners to meet.

Appellants further contend that because the front of Ms. Duncan’s vehicle could have only been halfway through the intersection, it would have only traveled “approximately 10 feet” from the stop line before being struck by Ms. Miller’s vehicle. Appellants also assert that “as Ms. Miller made that right turn, she was very close to the vehicle of [Ms. Duncan]; at most only two car lengths away[.]” Therefore, the appellants argue, Ms. Miller’s vehicle “must have been in a position such that [Ms. Duncan] should have realized that a collision was imminent.” According to appellants, “[o]ne of two conclusions can be reached. Either [Ms. Duncan] failed to stop at the STOP line in order to cause this accident, or she In pulled away from the STOP line when Ms. Miller’s vehicle was extremely close. Either way [Ms. Duncan] was solely at fault.”

In light of the standard of review, however, we find that this argument lacks merit. Simply, the interpretation of the photographic and diagrammatic evidence urged by Ms. Miller and State Farm is not so readily apparent on review so as to undermine the factual findings and credibility determinations made by the trial court. Notably, neither party presented expert testimony or opinion as to the reconstruction of the accident. The trial court instead resolved the ease upon the parties’ lay testimony, photographs, and diagrams upon which the parties explained their respective version of events. Having reviewed the record, we do not find that the evidence obviously undermines the trial court’s credibility determination in favor of Ms. Duncan. Rather, we find that the record contains a reasonable factual basis to support the trial court’s conclusion that Ms. Miller was solely at fault for the collision.

For these reasons, we find that this assignment of error lacks merit. Apportionment of Fault

In their second assignment of error, appellants assert that the trial court erred in failing to apportion fault between Ms. Duncan and Ms. Miller. However, our conclusion that the trial court did not manifestly err in finding Ms. Miller solely at fault for the accident, as addressed above, renders this argument moot.

Damages

In their final assignment of error, Ms. Miller and State Farm argue that the trial court committed factual error when it determined the amount of damages awarded to Ms. Duncan and her children. Specifically, they argue that the amount of damages is “grossly excessive in light of the lack of medical evidence of the possibility of a causal connection between the accident and the claimed injuries” |12and that “the medical records themselves indicate only an injury of approximately one week duration for each the plaintiff and her two minor daughters.”

A determination that “an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d 973, 979 (La.1991). In Housley, the supreme court stated the following:

[A] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Id. at 980 (quoting Lucas v. Ins. Co. of North America, 342 So.2d 591, 596 (La. 1977)). Moreover, “an appellate court should rarely disturb a general damage award[.]” Miller v. Clout, 03-91, p. 7 (La. 10/21/03), 857 So.2d 458, 463. Rather, “only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. at 463 (quoting Youn v. Mantime Overseas Corp., 623 So.2d 1257, 1261 (La.1993)).

In the instant case, the record evidences the appellants’ assertion that the amount of “evidence as to damages was sparse.” The parties presented no medical expert testimony, and none of Ms. Duncan’s medical records prior to the accident were introduced. Thus, the trial court was left to determine causation solely on Ms. Duncan’s testimony and the medical records taken after the accident. Nonetheless, we do not find that the trial court’s decision to credit Ms. Duncan’s testimony regarding her symptoms was manifestly erroneous. Appellants assert that the hospital records from the date of the accident “do not even mention a | ^history of this accident taking place.” However, as the trial court pointed out in its ruling, the records from that visit indicate that Ms. Duncan “reported to them that she had been in a motor vehicle accident.” Regarding the medical records from her hospital visit on August 16, 2013, appellants argue that the “physical examination reflects that [Ms. Duncan’s] abdomen was well relaxed and that no demonstrable contractions were palpable.” On the contrary, as the trial court pointed out in its ruling, the nurse’s notes from that visit indicate “that she was experiencing contractions again” and that she informed the nurse that “she had been in a vehicle accident.” Additionally, appellants assert that the indication of Ms. Duncan’s nausea, vomiting, and diarrhea in her medical records from this visit “suggests an infectious cause for complaints, as opposed to one involving trauma.” However, there is nothing in the record to support this suggestion.

Moreover, appellants argue that Ja’Maya’s medical record “finds the mother reporting no complaints of the child on this visit eight days after the accident” and that Ja’Maya’s stitches were opened as a result of “negligence on the part of [Ms. Duncan] in failing to properly restrain her child[.]” However, although the trial court never explicitly stated as such, it clearly discredited Mr. Ritter’s testimony that Ja’Maya was riding unrestrained in the front seat, as it assigned no percentage of fault to Ms. Duncan. As addressed above, the trial court’s decision to credit Ms. Duncan’s testimony was not manifestly erroneous. Additionally, appellants argue that the amount awarded to Ja’Niya was “excessive[,]” in that her medical records only indicate that she experienced “one week of vague back discomfort[.]” However, the trial court determined that this was “the normal kind of muscle pain that anyone would experience when they were in an accident[.]” In light of that determination, we do not find that its award of $1,500.00 for this injury is excessive.

|14For these reasons, we find that the record contains a reasonable factual basis for the trial court’s determination that the injuries of Ms. Duncan and her children were caused by the accident. We also find that the damages awarded to Ms. Duncan and her children did not exceed what would be reasonable under the circumstances of this case. Accordingly, we find that this assignment of error lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assigned to the appellants, State Farm Mutual Automobile Insurance Company and Alexa M. Miller.

AFFIRMED,

      . At trial, Ms. Miller stated her name as Alexa Miller Ritter. For the purposes of this opinion, we refer to her as ‘‘Ms. Miller” as alleged in the petition.

      . The trial court declined to award damages for economic loss, as the medical bills incurred by Ms. Duncan and her children were paid in full by Medicaid, and no evidence of lost wages was presented.


author: PER CURIAM. MAKAR, J.,

text:
    Gary FREEMAN, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D15-4285.
    District Court of Appeal of Florida, First District.
    April 8, 2016.
    Gary Freeman, for Appellant.
    Kenneth S. Steely, General Counsel, Tallahassee; Pamela Jo Bondi, Attorney General, Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

LEWIS and THOMAS, JJ., concur.

MAKAR, J., concurs with written opinion.

MAKAR, J.,

concurring.

We are required to dismiss this matter as untimely, but the transfer of Freeman during the 30-day period when he was required to pursue his appellate remedy provides him with an “alternative avenue of review.” Gundlah v. Moore, 831 So.2d 780, 781 (Fla. 4th DCA 2002) (“The appropriate remedy has been to dismiss the untimely appeal without prejudice, allowing the appellant to pursue relief in the lower tribunal by motion seeking to set aside the original order and requesting that a new appealable order be entered.”).


author: McClendon, J.

text:
    WATERWORKS DISTRICT NO. 1 OF DESOTO PARISH v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    2016 CA 0744
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017

      Jerald N. Jones, Kay C. Medlin, Baton Rouge, Louisiana, Counsel for Plaintiff/Ap-pellee Waterworks District No. 1 of Deso-to Parish
    Jeff Landry, Attorney General, David G. Sanders, Assistant Attorney General, Baton Rouge, Louisiana, Counsel for Defendant/Appellant Louisiana Department of Public Safety and Corrections
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, J.

lain this contract dispute, the defendant appeals a trial court judgment that granted the plaintiffs motion for summary judgment and denied its cross-motion for summary judgment. For the following reasons, we reverse and render.

FACTUAL AND PROCEDURAL HISTORY

On November 25,2000, Waterworks District No. 1 of DeSoto Parish (Waterworks District), and the Louisiana Department of Public Safety and Corrections (Department), entered into a twenty-year “Water Purchase Contract,” which provided that Waterworks District would install, at its expense, an eight-inch diameter water transmission main to Forcht-Wade Correctional Center (Correctional Center) in Caddo Parish. The Waterworks District also agreed to furnish to the Correctional Center potable treated water as required by the Correctional Center up to 80,000 gallons per day. As for the Correctional Center, it agreed to make monthly payments to the Waterworks District in the amount of $2,740.00 per month, together with $2.25 per thousand gallons of water furnished. The contract further provided that if the Waterworks District was unable, for any reason, to supply the water needed by the Correctional Center for thirty consecutive days, the Correctional Center had the right, at its option, to cancel the contract. Additionally, the contract provided that in the event the Correctional Center failed to pay to the Waterworks District the amount due within ten days of invoice, a penalty of ten percent of the amount due would be assessed and that nonpayment within thirty days from the invoice date would result in the water being shut off and would give the Waterworks District the option to cancel the contract.

The water main was installed and water was provided and paid for according to the terms of the contract for approximately twelve years. However, on December 3, 2012, the Waterworks District’s Administrator, John Neilson, sent a letter to Warden Goodwin at the Correctional Center advising him that the Correctional Center was behind on its payments. In response, the Department sent a letter to Mr. Neil-son on December 21, 2012, stating that “[d]ue to the closure of the Forcht-Wade Correctional Center, it has been determined to be in the best interest of the [Department] to cancel lathe ... contract effective December 31, 2012.” The Department did not remit any further payments to the Waterworks District.

By letter dated June 20, 2013, the Waterworks District made formal demand on the Department for the sum of $263,040.00, representing $2,740.00 per month for the remaining approximately eight years remaining under the contract’s terms. Thereafter, on December 30, 2013, the Waterworks District filed a petition against the Department, seeking payment of the balance allegedly due under the terms of the contract.

The Department answered the petition, and on December 16, 2015, the Waterworks District filed a motion for summary judgment. The Department filed its own motion for summary judgment on February 11, 2016, which also served as its opposition to the Waterworks District’s motion. Following a hearing on March 7, 2016, the trial court granted the Waterworks District’s motion for summary judgment and denied the Department’s motion. The Department then appealed the April 5, 2016 judgment.

SHOW CAUSE ORDER

By show cause order dated June 6, 2016, this court ex propño motu directed the parties to address an apparent defect in the appeal in that the judgment was ambiguous as to the specific relief granted to the plaintiff. We also remanded the matter for the limited purpose of allowing the trial court to sign an amended judgment, if it so chose, in accordance with LSA-C.C.P. Art. 1951. An amended judgment was submitted by counsel for the parties and signed by the trial court on June 16, 2016. Counsel also submitted a motion to supplement the record that was signed by the trial court on June 21, 2016. Thereafter, the rule to show cause was referred to the panel |4to which the appeal was assigned. Because the defect in the original judgment has been remedied by the parties and the trial court, we find that the amended judgment is a final and appeal-able judgment, and we recall the show cause order.

DISCUSSION

Initially, we note that the Waterworks District’s motion for summary judgment was filed pursuant to the former version of LSA-C.C.P. Art. 966, whereas the Department’s motion for summary judgment is governed by the version of LSA-C.C.P. Art. 966 after its amendment by 2015 La. Acts No. 422, effective January 1, 2016. Under both versions, the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, is favored, and shall be construed to accomplish these ends. LSA-C.C.P. Art. 966A(2) (as amended by 2015 La. Acts No. 422). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966A(3).

The burden of proof continues to rest with the mover. LSA-C.C.P. Art. 966D(1) (as amended by 2015 La. Acts No. 422). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court .on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to |Bproduce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. Art. 966D(1) (as amended by 2015 La. Acts No. 422). 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 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. LSA-C.C.P. Art. 967B.

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. Fonseca v. City Air of Louisiana, LLC, 15-1848 (La.App. 1 Cir. 6/3/16), 196 So.3d 82, 86. Thus, an appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Janney v. Pearce, 09-2103 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 10-1356 (La. 9/24/10), 45 So.3d 1078.

Generally, legal agreements have the effect of law upon the parties, and, as they bind themselves, they shall be held to a full performance of the obligations flowing therefrom. LSA-C.C. Art. 1983; Silwad Two, L.L.C. v. I Zenith, Inc., 12-0282 (La.App. 1 Cir. 12/21/12), 111 So.3d 405, 410. Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. Art. 2045. In other words, a contract between the parties is the law between them, and the courts are obligated to give legal effect to such contracts according to the true intent of the parties. Hampton v. Hampton, Inc., 97-1779 (La.App. 1 Cir. 6/29/98), 713 So.2d 1185, 1188-89.

The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself, and not assumed. Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 12-2055 (La. 3/19/13), 112 So.3d 187, 192. 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. LSA-C.C. Art. 2046: Common intent is determined, therefore, in accordance with the general, ordinary, plain |fiand popular meaning of the words used in the contract. Clovelly, 112 So.3d at 192. Accordingly, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. Id. Most importantly, a contract must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance. Id.; see also LSA-C.C. Art. 2047.

Although summary judgment is generally not appropriate to establish the intent of contracting parties, where the words of a contract are clear, explicit and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. Hayden v. Phillips, 94-0130 (La.App. 1 Cir. 11/10/94), 646 So.2d 1014, 1016, writ denied, 95-0244 (La. 3/24/95), 651 So.2d 291; see also LSA-C.C. Art. 1848. Under those circumstances, the interpretation of the contract is a matter of law and summary judgment is appropriate. Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La. 5/22/07), 956 So.2d 583, 590.

In its appeal, the Department argues that it had to terminate the contract with the Waterworks District due to a lack of funding, but that it did so within the con-fínes of the law. Specifically, it contends that the trial court disregarded LSA-R.S. 39:1615C, of the Louisiana Procurement Code, which provides:

Termination due to unavailability of funds in succeeding years. When funds are not appropriated to support continuation of performance in a subsequent year of a multiyear contract for supplies, services, or major repairs, -the, contract for such subsequent year shall be terminated. When a contract is terminated under these conditions, no additional funds shall be paid to the contractor as a result of such action.

The Department maintains that the Water Purchase Contract is a contract for supplies or services and, therefore, it had the authority to terminate the multiyear contract. The Department also insists that the law is designed to protect the State from wasteful spending and that the State should not be obligated to continue to pay for a service it 17does not use for a facility that is no longer operational and for which funds are no longer appropriated.

On the other hand, the Waterworks District argues that LSA-R.S. 39:1615C is inapplicable to the matter before us and that the contract was unilaterally terminated by the Department for reasons not permitted under the terms of the contract. In making its argument, the Waterworks District avers that there were two separate-obligations under the contract. First, it contends, the Waterworks District’s obligation was to build a water main for the Department, along with the Department’s corresponding obligation to pay for the water main in monthly installments over a period of twenty years. Second, the Waterworks District asserts it had a separate obligation to make water available for the Correctional Center’s use, with the Department’s corresponding obligation to pay a fee for the water used, if any, by the Correctional Center. The Waterworks District contends that this was established, not only by the terms of the contract, but by the parties’ written negotiations and by billing of the Department separately for each obligation since the beginning of the term of the contract.

The Waterworks District emphasizes that it did not seek to recover the past due water usage, stating the past water usage could possibly be considered a contract for supplies or services. Rather, it argues, its claim was only for the remaining balance owed under the contract for the installation of the water main, which obligation cannot be construed to be a contract for supplies or services. The Waterworks District asserts that installation of a water main clearly does not constitute a contract for “supplies,” which is defined in the Procurement Code as- “all property, including but not limited to equipment, materials, insurance, and leases on immovable property excluding land or a permanent interest in land.” LSA-R.S. 39:1556(59). Further, it contends that it is not a | ^contract for “services,” defined in the Procurement Code, in pertinent part, as “the furnishing of labor, time, or effort by a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply.” The Waterworks District argues that furnishing “an end item of supply” is precisely what the contract required it to do.

The parties do not dispute the essential facts of this matter. In support of their motions for summary judgment, each party introduced a copy of the water purchase contract together with correspondence concerning the cancellation of the contract. The contract provided that the Waterworks District, as seller, and the Department, as purchaser, “have entered into a water purchase agreement” according to certain terms and conditions, including, the following:

1. SELLER agrees to furnish to PURCHASER at its facility in Caddo Parish, Louisiana, potable treated water meeting applicable purity standards of State and Federal Regulatory Authorities in such quantities as may be required by the PURCHASER not to exceed eighty thousand (80,000.00) gallons per day, subject to the terms and conditions as set forth hereinafter.
2. SELLER shall install at its expense an eight-inch diameter water transmission main and PURCHASER will install, at its expense, according to the terms and specifications of SELLER, a water meter, service line, and a cutoff valve.
3. The term of this contract shall be for a period of twenty (20) years.
4. PURCHASER agrees to pay to SELLER, not later than the 10th day of each month, for water delivered during the prior month, the amount of $2,740.00, together with a sum of money equal to Two and 25/100 ($2.25) Dollars per thousand gallons furnished.

|flIn accordance with the statutory provisions above, we have carefully reviewed the contract and specifications language and, upon our de novo review, find that the terms of the contract are clear and explicit, lead to no absurd consequences, and therefore, we need not interpret the contract in search of the parties’ intent. The Waterworks District argues that the written negotiations regarding the contract evinced its. intent that the base rate of $2,740.00 per month for twenty years, was for the actual cost of the design and installation of the water main. However, having found no ambiguity in the contract, no further interpretation may be made in search of the parties’ intent. See LSA-C.C. Art. 2046. In such cases, the meaning and intent of the parties to the -written contract must be sought -within the four comers of the instrument and cannot be explained or contradicted by parol evidence. See LSA-C.C. Art. 1848; Hampton, 713 So.2d at 1189. Therefore, we do not consider this extrinsic evidence.

The foregoing provisions establish that the contract was for the purchase of water. Nothing in the language suggests that the $2,740.00 amount was a separate and distinct obligation for the cost of the installation of the water main. Further, “supplies” consists of “all property, including but not limited to equipment.” LSA-R.S. 39:1556(59). Therefore, finding that the contract at issue was “a multiyear contract for supplies, services, or major repairs” and that funds were not appropriated to support continuation of the performance of the contract, the contract was terminated pursuant to LSA-R.S. 39:16150. Accordingly, the trial court erred in granting the Waterworks District’s motion for summary judgment and in denying the Department’s motion for summary judgment, and we render summary judgment in the Department’s favor dismissing all claims against it.

CONCLUSION

For the above and foregoing reasons, we reverse the June 16, 2016 judgment that granted summary judgment in favor of the Waterworks District and denied the Department’s cross-motion for summary judgment. Furthermore, we render summary judgment in favor of the Louisiana Department of Public Safety and Corrections | mdismissing with prejudice all claims filed against it by Waterworks District No. 1 of DeSoto Parish. All costs associated with this appeal totaling $1,153.50 shall be assessed against the Waterworks District.

RULE TO SHOW CAUSE RECALLED; REVERSED AND RENDERED.

      . The denial of a motion for summary judgment is an interlocutory judgment and is ap-pealable only when expressly provided by law. However, where there are cross-motions for summary judgment raising the same issues, this court can review the denial of a summary judgment in addressing the appeal of the granting of the cross motion for summary judgment. See Crowe v. Bio-Medical Application of Louisiana, LLC, 14-0917 (La. App. 1 Cir. 6/3/16), 208 So.3d 473, 479-80 n.6, 2016 WL 3126425; MP31 Investments, LLC v. Harvest Operating, LLC, 15-0766 (La. App. 1 Cir. 1/22/16), 186 So.3d 750, 755.

      . Louisiana Code of Civil Procedure Article 1951 provides:
      On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received.

      . We note that the original judgment provided that the Waterworks District “is entitled to all other general and equitable relief.” However, in the amended judgment, this language was removed.

      . The Waterworks District filed its motion for summary judgment on December 16, 2015, and it is therefore governed by the version of LSA-C.C.P. Art. 966 in effect after its amendment by 2014 La. Acts No. 187. Although LSA-C.C.P. Art. 966 was later amended by 2015 La. Acts No. 422, the provisions of Act 422 do not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the act, January 1, 2016. See 2015 La. Acts No. 422, § 2; Bouquet v. Williams, 16-0134 (La.App. 1 Cir. 10/28/16), 206 So.3d 232, 239 n.3, writs denied, 16-2077, 16-2082 (La. 1/9/17), 214 So.3d 871, 2017 WL 347593.

      . The 2015 Comments to LSA-C.C.P. Art. 966 provide that subparagraph A(2) does not change the law.

      . The 2015 Comments to LSA-C.C.P. Art. 966 provide that subparagraph A(3) does not change the law.

      . The 2015 Comments to LSA-C.C.P. Art. 966 provide that subparagraph D(l) does not change the law.

      . While the Department cites the First Circuit case of All American Assur. Co. v. State Through Dept. of Civil Service and Div. of Admin., 621 So.2d 1129 (La.App. 1 Cir. 1993), in support of its argument, we agree with tire Waterworks District and find the facts of All American distinguishable. Although the court in All American referred to LSA-R.S. 39:1615 in a footnote, the actual holding was based on the terms of the lease, which contained language allowing cancellation, upon adequate notice, due to the lack of public funding. All American, 621 So.2d at 1130. Therefore, “[t]he lease was terminated according to the provisions and terms of the lease.” All American, 621 So.2d at 1131. No such language was contained in the contract at issue herein.

      . LSA-R.S. 39:1556(51) also provides:
      (a) Services include but are not limited to the following:
      (i) Maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment.
      (ii) Routine recurring maintenance of immovable property.
      (iii) Housekeeping services.
      (iv) Operation of government owned equipment, immovable property, and systems.
      (v) Information technology services.
      (b) The term “services” shall not include:
      (i)Employment agreements or collective bargaining agreements.
      (ii) Personal, professional, consulting, or social services as defined in this Chapter.
      (iii) Services performed by lawyers as provided by R.S. 42:261 through R.S. 42:264.
      (iv) Services performed by an architect, engineer, or landscape architect as provided by R.S. 38:2310 through R.S. 38:2314.

      . Particularly, the Waterworks District refers to the March 2, 2000, letter, from James A. Hagan, Jr. of Balar Associates, Inc. to the warden at the Correctional Center, which was during the negotiation phase of the contract, and submitted with its motion for summary judgment.