author: COOKS, Judge.

text:
    Oliver RABON v. James SMITHKORS, et al.
    17-502
    Court of Appeal of Louisiana, Third Circuit.
    Rendered on January 18, 2018
    Jeffery F. Speer, George A. Wright, Doucet-Speer, APLC, 617 St. John Street, P.O. Drawer 4303, Lafayette, LA 70502, (337) 232-0405, COUNSEL FOR PLAINTIFF/APPELLANT: Oliver Rabon
    Brendan P. Doherty, Bradley J. Schwab, Geiger, Laborde & Laperouse, LLC, One Shell Square, 701 Poydras Street, Suite 4800, New Orleans, LA 70139, (504) 561-0400, COUNSEL FOR DEFENDANTS/APPELLEES: James Smithkors and ABC Supply Company
    Court composed of Sylvia R. Cooks, John D. Saunders and Candyce G. Perret, Judges.
   COOKS, Judge.

This appeal arose out of a motor vehicle accident that occurred in Lafayette, Louisiana on August 26, 2015. On that date, at around 10:30 a.m., Plaintiff, Oliver Rabon, was driving his Chevrolet Tahoe eastbound on Southpark Drive in Lafayette Parish. Defendant, James Smithkors was driving westbound on Southpark Drive in a thirty-five foot International truck with a forklift attached to its rear. The truck was owned by Defendant, ABC Supply Company, who Smithkors was driving for.

The record established Smithkors, who testified he was lost and looking for a place to turn his truck around, attempted to make a left turn across the oncoming lane of traffic to turn into a parking lot. During the execution of the turn, Rabon's vehicle struck the very rear of the forklift attached to the back of the ABC Supply truck. The details surrounding the attempted left turn, the actual location of the collision, i.e., whether it was on the roadway or off, and whether any injuries allegedly suffered by Rabon were caused by the accident were disputed.

Rabon filed suit against Smithkors and ABC Supply for the injuries he allegedly incurred as a result of the accident. On December 12, 2016, a bench trial was held on the matter. Rabon and Smithkors presented different versions of the facts surrounding the accident.

Rabon testified he was driving at a legal speed when suddenly the truck driven by Smithkors turned in front of him. Rabon stated he immediately applied his brakes and quickly steered his vehicle to the left side of his lane in an attempt to avoid any collision. Rabon stated that, had he driven to the right, he would have then broadsided the truck, which would have led to significantly greater damage. He also noted had he gone any further left he would have been in the other lane and subject to colliding with oncoming traffic. He maintained his decision to steer to the far left of his lane lowered the overall damage sustained in the accident.

Rabon stated immediately following the collision, he pulled his vehicle off the side of the road and was preparing to exchange information with the driver of the truck. However, upon stopping his vehicle and preparing to exit, he saw the truck had completed its turn and was reentering Southpark Drive to head away from the scene. Rabon then followed the truck and upon stopping it, called the police.

Shortly after the accident, Rabon testified he felt increasing pain and stiffness in his neck and back. He went later that day to Lafayette General Medical Center to seek medical attention. After being examined, Rabon was told to take a few days off of work and then report to his primary care physician if things did not improve. Rabon took the remainder of the week off and returned to work the following Monday. After he continued to experience significant pain in his neck and back, Rabon went to see Dr. Robert Franklin for further treatment. Rabon was treated conservatively by Dr. Franklin with medication and physical therapy.

Rabon testified he continued to work as best he could while attending three therapy sessions per week. By the beginning of October 2016, Rabon testified he was unable to continue performing his work duties as a welder due to severe pain. Dr. Franklin determined Rabon should be placed on light duty; however, Rabon's employer did not have any light duty positions available and Rabon was forced to stop working.

On October 20, 2015, Dr. Franklin concluded physical therapy was not providing any meaningful relief to Rabon, and referred him to Dr. Mark McDonnell, a spine surgeon. Dr. McDonnell performed a lumbar steroid injection in an attempt to alleviate Rabon's pain, with limited success. A MRI was performed, which revealed degenerative changes. Dr. McDonnell also wanted Rabon to undergo a discogram of the lumbar spine to fully determine the extent of his injuries. At trial, Rabon testified his degenerative changes were made symptomatic by the trauma he suffered in the accident, causing him significant pain and requiring him to stop working.

Smithkors testimony differed from that of Rabon. Smithkors testified he made a wrong turn that morning. After realizing that, he continued driving down Southpark Drive until he saw an area where he believed he could turn his truck around. He stated he saw a parking lot big enough to turn around in, but needed to make a left turn across the eastbound lane to enter a private driveway leading to the parking lot.

He stated he activated his left turn signal and checked the eastbound lane for oncoming traffic. He testified he saw Rabon's vehicle about 300 to 500 feet away but believed he could safely complete a left turn of his truck prior to Rabon's vehicle traveling that distance. Smithkors also testified it was his opinion Rabon had ample distance to slow his vehicle down to avoid any collision. Therefore, Smithkors began his left turn.

Smithkors testified he did not hear any brakes locking or tires skidding while executing the left turn. He also testified he did not feel any impact to his truck, which was why he drove off from the scene after turning the truck around. Smithkors maintained he was not aware there had been any collision until after he was stopped. He then returned to the accident scene with Rabon.

Smithkors testified the only debris he saw was a piece of plastic fender, which he assumed was from Rabon's vehicle, located over the shoulder line in the private driveway leading to the parking lot. He also testified he saw no skid marks at the scene. Smithkors took pictures of the damage, which showed the impact was to the far back end of the forklift.

Following trial on the merits and accepting post-trial memorandums from both parties, the trial court ruled in favor of Defendants, determining the "testimony and evidence adduced at trial [did] not support Rabon's testimony."

The trial court determined the "evidence and testimony indicate that the collision occurred outside the lane of travel on the shoulder of the roadway." This finding was made despite an earlier statement in the trial court's written reasons, that found "that Smithkors had almost fully completed his turn in to the driveway when the collision occurred." (Emphasis added.) Because it determined the accident occurred while Rabon was on the shoulder of the road, the trial court found the presumption of negligence the law places on left-turning motorists should not apply in this case. The trial court concluded the "heightened duty of care as a left-turning motorist terminated once [Smithkors'] truck completed the turn off the roadway in to the private driveway where the collision occurred." Therefore, the trial court found Rabon failed to prove "Defendants' breach was the cause-in-fact of the accident," and dismissed Rabon's case. As a result, the trial court did not address any arguments as to the causal relationship between Rabon's medical problems and the accident.

Rabon appealed the judgment of the trial court, asserting the trial court erred in not applying the presumption of negligence the law places on left-turning motorists when the evidence did not support the factual conclusion that the collision occurred outside of the lane of travel.

ANALYSIS

Any analysis of the facts in this case must begin with a discussion of La.R.S. 32:104, which places a presumption of negligence on left-turning motorists when an accident occurs. It provides, in pertinent part, as follows:

A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.

A motorist making a left-turn is required to provide a signal at least 100 feet from the intersection, private road or driveway and to refrain from crossing the center line "until such movement can be made with reasonable safety." La.R.S. 32:104(A). Moreover, when an accident occurs during a left-turn, the courts have held a left-turn is a dangerous maneuver and burdens the left-turning motorists with a presumption of negligence. This jurisprudential standard was articulated by this court in Thomas v. Champion Ins. Co. , 603 So.2d 765, 767 (La.App. 3 Cir. 1992), as follows:

A left turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety. Agency Rent-A-Car, Inc. v. Hamm , 401 So.2d 1259 (La.App. 1 Cir.1981). A left-turning motorist involved in an accident is burdened with a presumption of liability and the motorist must show that he is free of negligence. Bennett v. United States Fidelity & Guaranty Company , 373 So.2d 1362 (La.App. 1 Cir.1979), writ denied , 376 So.2d 1269 (La.1979). Also Williams v. Inabnett , 345 So.2d 1294 (La.App. 3 Cir.1977).

"Additionally, our jurisprudence has established that truck drivers, as specially trained operators of vehicles, are subject to a higher standard when assessing their degree of responsibility in an accident. They are 'superior actor[s] in the eyes of the law.' " Johnson v. Johnson , 13-719, p. 9 (La.App. 3 Cir. 12/11/13), 128 So.3d 627, 635, quoting Davis v. Witt , 02-3102, p. 13 (La.7/2/03), 851 So.2d 1119, 1128.

A review of the trial court's written reasons contradict its eventual finding. The trial court specifically noted in its written reasons that the "photographs, the location of the debris from the accident and the testimony of the parties indicate that Smithkors had almost fully completed his turn in to the driveway when the collision occurred." (Emphasis added.) This statement by the trial court clearly indicates its belief that Smithkors was unable to fully complete the attempted left-turn. This left Rabon in a position where he could only avoid a collision by entering the other lane of traffic, and subject himself to potential life threatening harm from oncoming traffic. It is not reasonable to place such a burden on Rabon, and the law does not support the trial court's decision. The evidence shows the impact was to the back end of the forklift and the passenger side of Rabon's vehicle, which supports Rabon's testimony that he went as far left in his lane of travel as possible. The evidence convincingly establishes that Rabon substantially mitigated the potential severity of the accident with the actions he took.

It appears the trial court based its decision largely on a photograph introduced into evidence which showed a single piece of debris, assumed to be from Rabon's plastic fender, lying a short distance off the road. As Rabon notes, there was no evidence or testimony to show how the piece of debris got to that location. He also notes, a small piece of fender such as the photograph depicts, could easily travel a considerable distance as a result of a collision. Moreover, it was several minutes after the collision before Smithkors and Rabon returned to the accident scene. Numerous cars and trucks would have traversed that area, likely moving any piece of debris off the roadway. Thus, the location of a small piece of debris slightly off the roadway is not indicative as to where the accident may have occurred. Using that fact to disregard the presumption of liability the law places on Smithkors was clear error.

The trial court disregarded the presumption of liability relying on this court's opinion in Reed v. State Farm Mut. Auto. Ins. Co. , 05-1532 (La.App. 3 Cir. 5/3/06), 929 So.2d 871. In Reed , this court chose not to apply the presumption of liability because we found the oncoming driver was operating a dirt bike, which was not equipped with headlights, at night and was traveling on the shoulder of the road as opposed to the lane of travel. The facts in Reed are clearly distinguishable from the present case and do not support the trial court's decision. In this case, the trial court wrote that "Smithkors' heightened duty of care as a left-turning motorist terminated once his truck completed its turn off the roadway into the private driveway where the collision occurred." This is in direct contrast to the trial court's earlier finding that Smithkors' truck had not fully left the lane of travel.

We find, contrary to the trial court, that the testimony and evidence adduced at trial supports Rabon's version of the facts. Rabon stated he was driving at the speed limit when Smithkors suddenly pulled in front of him. He testified he applied his brakes and attempted to steer his vehicle as far left as possible without crossing into oncoming traffic. Despite this, he stated the front right of his vehicle collided with the back right of the forklift being towed by Smithkors. The documented physical damage correlates perfectly with Rabon's version of the events.

In the present case, there is no dispute that Smithkors was the left-turning motorist. Thus, he was burdened with the presumption of liability pursuant to La.R.S. 32:104. It was then Defendants' burden, not Rabon's, to prove he was free of negligence. Our review of the record establishes that Defendants fell woefully short of carrying that burden.

Cause-in-Fact of Injuries.

Defendants argue even if this court were to find the trial court committed reversible error in finding Smithkors' actions were not a cause-in-fact of the accident, we should nevertheless affirm the judgment because Rabon failed to meet his burden of establishing a causal relationship between his complained of injuries and the accident. We disagree.

The testimony of Dr. Franklin established Rabon suffered from degenerative changes to his cervical and lumbar spine. Dr. Franklin testified trauma such as suffered by Rabon in the subject accident could make those degenerative changes symptomatic. Defendants presented the testimony and report of Dr. Stanley Foster, who examined Rabon at Defendants' request and reviewed all the medical records. Dr. Foster acknowledged in his report that Rabon had underlying structural changes to his spine, though he suggested the only evidence the changes were made symptomatic was through Rabon's subjective complaints of pain.

Defendants note Rabon sustained a previous back injury in 1997 for which he sought treatment from Dr. Franklin. Dr. Franklin noted in his deposition the pain Rabon suffered following the 1997 accident subsided. It is uncontradicted that Rabon returned to work very shortly following the 1997 accident. He remained gainfully employed as a welder since that time up until shortly after the August 2015 accident.

Following the accident at issue, the records established Rabon took a few days off of work as was suggested by the emergency room doctor on the day of the accident. He then returned to work, and when his pain did not improve, he sought treatment from Dr. Franklin. His history to Dr. Franklin, Dr. McDonnell and to Dr. Foster stated his pain began at the time of the August 2015 accident. While Defendants and the physicians note Rabon's complaints are subjective in nature, according to Dr. Franklin, that is not unusual for an exacerbation of preexisting, degenerative disc changes. Even Dr. Foster acknowledged seeing underlying degenerative changes present in Rabon's MRI that could have been made symptomatic by the accident. Therefore, we find the evidence establishes by a preponderance of the evidence that the pain suffered by Rabon was caused by the August 26, 2015 accident.

Damages.

We find Rabon suffered injuries as a result of the automobile accident that was the sole fault of Defendant, James Smithkors. Therefore, Rabon is entitled to be compensated for his injuries. Appellate courts are authorized to render any judgment which is just, legal and proper where the trier of fact is clearly wrong in failing to do so and where the record contains sufficient proof of damages. La.Code Civ.P. art. 2164 ;

Broussard v. Medical Protective Co. , 06-331, p. 4 (La.App. 3 Cir. 2/21/07), 952 So.2d 813, 818. In making an initial award of damages, the appellate court is not limited to either the highest or lowest in the range of awards which we would have found on appeal. Rather, the award should represent an amount which is fair and just based on the damages sustained. Broussard , 952 So.2d at 818 ; Morris v. Owens-Illinois, Inc. , 582 So.2d 1349 (La.App. 2 Cir. 1991).

When a plaintiff alleges that medical expenses were incurred "and that allegation is supported by a bill, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of that item in the judgment." Este v. State Farm Ins. Co. , 96-99, p. 10 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 857. Our review of the record finds the following past medical expenses are properly awardable to Rabon:

Lafayette General Medical Center $ 1,603.00 Dr. Robert Franklin $ 4,196.00 Dr. Mark McDonnell/Louisiana Spine Surgery $ 1,040.47 Teche Drugs Pharmacy $ 1,467.06 __________ TOTAL $ 8,306.53

Therefore, we award Rabon $8,306.53 in past medical expenses.

At trial and in his post-trial memorandum, Rabon requested he be awarded future medical expenses for a discogram procedure "to determine the extent and nature of the continued pain in his back." "Future medical expenses, like any other damages, must be established with some degree of certainty. The plaintiff must show that, more probably than not, these expenses will be incurred." Veazey v. State Farm Mut. Auto. Ins. Co. , 587 So.2d 5, 8 (La.App. 3 Cir. 1991).

Dr. McDonnell, who performed the bilateral facet injections on Rabon, recommended a lumbar discogram be performed. His opinion set forth in his September 15, 2016 report was since Rabon's "pain has recurred after initial success with facet injections, it is very likely that the disc bulge seen on MRI at L4-5 represents a disc disruption... A lumbar discogram is required to evaluate this." However, we note that Rabon failed to provide a specific amount for the cost of the discogram procedure, merely stating in his post-trial memorandum that the cost of the procedure "likely will exceed $20,000.00." In making an award for future medical we cannot rely on the speculative "guesstimations" of an attorney. Therefore, we will not render any award for future medical expenses.

We find the evidence establishes Rabon is entitled to an award for general damages for the injuries sustained in the accident, as the record establishes Rabon proved through medical testimony that it is more likely than not that the subsequent injuries were caused by the accident. Maranto v. Goodyear Tire & Rubber Co. , 94-2603 and 94-2615 (La. 2/20/95), 650 So.2d 757. The medical evidence in this case established Rabon suffered an aggravation to pre-existing degenerative conditions in his back and neck which were made symptomatic by the trauma sustained in the instant accident. He suffered soft tissue injuries which aggravated his pre-existing condition, which necessitated over six months of conservative treatment, including consistent physical therapy from September, 2016 through March, 2016, as well as one steroid injection in his back. It is a well-settled principle that a tortfeasor takes his victim as he finds him and when a defendant's tortious conduct aggravates a preexisting condition, the defendant must compensate the victim for the full extent of the aggravation. Lasha v. Olin Corp. , 625 So.2d 1002 (La.1993).

Our review of the jurisprudence revealed the following cases which we find helpful in our assessment of damages. See Lewis v. Jones , 11-1117 (La.App. 3 Cir. 5/22/12), 96 So.3d 559, (the plaintiff received $40,000.00 in general damages for an aggravation to her hip and spine, that court considered no more than degenerative changes in her hip and spine. The injury was not considered permanent and no surgery was recommended); Guidry v. Millers Cas. Ins. Co. , 01-01 (La.App. 1 Cir. 6/21/02), 822 So.2d 675, (the plaintiff, who suffered injuries from a car accident, was awarded $50,000.00 for an aggravation of a degenerative lumbar condition. No surgery was required, but there was testimony that the plaintiff would continue to suffer symptoms from her injuries); Joseph v. Archdiocese of New Orleans , 10-659 (La.App. 4 Cir. 11/10/10), 52 So.3d 203, (the plaintiff was awarded $30,000 for soft tissue injury superimposed on pre-existing degenerative changes in back. There was conflicting medical testimony as to duration of aggravation, including an orthopedist's testimony that the injury was limited to a few months of aggravation of degenerative musculoskeletal condition).

After reviewing the prior cases, we find an appropriate award of general damages for the aggravation of Rabon's pre-existing degenerative conditions is $50,000.00.

DECREE

For the foregoing reasons, we reverse the trial court's judgment finding Oliver Rabon at fault in causing the August 26, 2015 accident. We render judgment finding defendant, James Smithkors, solely at fault in causing the accident. We further find Oliver Rabon suffered injuries as a result of the August 26, 2015 accident. After a de novo review of the record, we award Oliver Rabon $8,306.53 in medical expenses and $50,000.00 in general damages. All costs of this appeal are assessed against Defendants-Appellees.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    SUCCESSION OF Robert Lee POTEET
    CA 17-710
    Court of Appeal of Louisiana, Third Circuit.
    January 31, 2018
    William Daniel Dyess, James E. Calhoun, Dyess Law Firm, LLC, 207 Church Street, Natchitoches, LA 71457, (318) 256-5667, COUNSEL FOR DEFENDANT/APPELLANT: Renee Bumpus
    D. Gene Taylor III, Bradley Loy Drell, Gold Law Firm, P.O. Box 6118, Alexandria, LA 71307, (318) 445-6471, COUNSEL FOR DEFENDANTS/APPELLEES: Symone M. Poteet, Succession of Robert Lee Poteet
    Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.
   EZELL, Judge.

Renee Bumpus appeals the decision of the trial court below granting the exceptions of no right of action, no cause of action, and prescription filed by Symone Poteet and the Succession of Robert Lee Poteet. For the following reasons, we hereby reverse the decision of the trial court in part, and, affirm in part.

Karen Poteet Bumpus and her brother, Robert Poteet, were co-owners of a closely-held corporation, Triple R Development, Inc., which they inherited from their parents. Mr. Poteet died in February of 2012, and his succession was administered by his daughter, Symone Poteet. In August of 2015, over three years after the passing of her brother, Mrs. Bumpus filed a rule alleging that Mr. Poteet had misappropriated property and funds of the corporation, seeking to be declared the sole owner of the business. Ms. Poteet filed several exceptions, including an exception of no cause of action, an exception of no right of action, and an exception of prescription. The trial court granted all exceptions and dismissed the suit at Mrs. Bumpus' costs. From that decision, Mrs. Bumpus appeals.

On appeal, Mrs. Bumpus asserts three assignments of error. She claims that the trial court erred in granting the exception of no cause of action, that the trial court erred in granting the exception of no right of action, and in granting the exception of prescription.

No Cause of Action

Mrs. Bumpus first claims that the trial court erred in granting the Poteet exception of no cause of action. We agree.

An appellate court's "standard of review for sustaining or denying a peremptory exception of no cause of action is de novo because it raises a question of law." Hebert v. Shelton , 08-1275, p. 3 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197, 1201.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.

Id. at 1202 (quoting Kinchen v. Livingston Parish Council , 07-478, p. 2 (La. 10/16/07), 967 So.2d 1137, 1138 ) (alteration in original). "All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff." City of New Orleans v. Bd. of Dirs. of La. State Museum , 98-1170, p. 9 (La. 3/2/99), 739 So.2d 748, 755. "Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief." Fink v. Bryant , 01-987, p. 4 (La. 11/28/01), 801 So.2d 346, 349.

Louisiana Code of Civil Procedure Article 734 states:

Except as otherwise provided by law, including but not limited to Articles 2641 and 2674, the succession representative appointed by a court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.

Accordingly, in order to have a cause of action against the succession of Mr. Poteet, Mrs. Bumpus would need to name the succession representative in her suit. She did. In her rule for declaratory relief, Mrs. Bumpus names both the succession and Ms. Poteet, who is, in fact, the succession representative. While Mrs. Bumpus did not specifically state that the action was taken against Ms. Poteet in her capacity as representative, La.Code Civ.P. art. 855 states:

It is not necessary to allege the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a legal entity or an organized association of persons made a party. Such procedural capacity shall be presumed, unless challenged by the dilatory exception.

Mrs. Bumpus, while not meticulous in her execution, did file suit against the indispensable succession representative in this matter. Making all reasonable inferences in favor of Mrs. Bumpus, the trial court should not have granted the Poteet exception of no cause of action.

No Right of Action

Mrs. Bumpus next claims that the trial court erred in granting the exception of no right of action. We disagree.

Only a person having a real and actual interest to assert may bring an action. La. C.C.P. art. 681. The peremptory exception of no right of action tests whether the plaintiff has a legal interest in judicially enforcing the right asserted. La. C.C.P. art. 927(A)(6) ; Catfish Cabin of Monroe, Inc. v. State Farm Fire & Cas. Co ., 35,710 (La.App. 2d Cir. 2/27/02), 811 So.2d 222. It questions whether a plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n ., 94-2015 (La. 11/30/94), 646 So.2d 885. Whether a plaintiff has a right of action is a question of law that is subject to de novo review on appeal. Waggoner v. America First Ins ., 42,863 (La.App. 2d Cir. 1/16/08), 975 So.2d 110.
The personality of a corporation is distinct from its members. La. C.C. art. 24. Only the corporation, not its members, may sue to recover any damages it has sustained. Catfish Cabin, supra; Yarbrough v. Federal Land Bank , 31,831 (La.App. 2d Cir. 5/5/99), 732 So.2d 1244. A shareholder has no separate or individual right of action against third persons for wrongs committed against or damaging to the corporation. Glod v. Baker , 2002-988 (La.App. 3d Cir. 8/6/03), 851 So.2d 1255, writ denied , 2003-2482 (La. 11/26/03), 860 So.2d 1135. This same rule applies even where one person may be the sole shareholder. Id. ,citing Mente & Company v. Louisiana State Rice Milling Co ., 176 La. 476, 146 So. 28 (1933). A person who does business in corporate form and reaps the benefits of incorporation cannot sue individually for damages incurred by the corporation. Glod, supra .

Taylor v. Dowling Gosslee & Assocs., Inc ., 44,654, pp. 9-10 (La.App. 2 Cir. 10/7/09), 22 So.3d 246, 253-54, writ denied , 09-2420 (La. 2/5/10), 27 So.3d 299.

The rule that a right of action for mismanagement or fraud that causes a loss to a corporation may only be asserted secondarily by a shareholder via a shareholder's derivative suit has been consistently followed in this circuit. Glod v. Baker , 02-988 (La.App. 3d Cir. 8/6/03), 851 So.2d 1255, writ denied , 03-2482 (La. 11/26/03), 860 So.2d 1135.

In her rule, Mrs. Bumpus alleges that Mr. Poteet "took money, converted property, and otherwise misappropriated property belonging to Triple R Development," as well as making "inappropriate expenditures/disbursals and the taking of the property of the company." She further claims that Mr. Poteet "caused the company, Triple R Development, Inc. to incur tax penalties due to the non-filing of taxes, further devaluing the company." Accepting her allegations as true, the only conduct she complains of in her rule is conduct causing harm to the corporation itself, rather than to her individually. Shareholders cannot sue in their own name to recover damages to corporate property. Mente & Company v. Louisiana State Rice Milling Co ., 176 La. 476, 146 So. 28 (1933). Because the losses sued for were losses sustained solely by the corporation, the only remedy Mrs. Bumpus had was through a shareholder's derivative suit. That is not, however, what she filed. As she had no right to bring an action individually for corporate harm and her rule states no claims for an individual action, the trial court was correct in granting the exception of no right of action.

Exception of Prescription

Finally, Mrs. Bumpus claims that the trial court erred in granting the Poteet exception of prescription. Again, we disagree.

Prescription commences when a plaintiff, who claims involvement in a business organization, gains actual or constructive knowledge of the wrongful act. La.R.S. 12:1502(D) ; Brown v. Schreiner , 10-1436 (La.App. 4 Cir. 11/9/11), 81 So.3d 705. Constructive notice exists when a party has information sufficient to motivate curiosity and attention or place a reasonable person on guard to call for inquiry. Scranton v. Ashley Ann Energy, L.L.C. , 46,984 (La.App. 2d Cir. 4/11/12), 91 So.3d 1174, writ denied , 12-1345 (La. 9/28/12), 98 So.3d 846.

Ordinarily, the party who asserts the peremptory exception of prescription bears the burden of proof at the trial on the exception. Carter v. Haygood , 04-646 (La. 1/19/05), 892 So.2d 1261 ; Scranton, 91 So.3d 1174. However, when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to prove that the action has not prescribed. Denoux v. Vessel Mgmt. Servs., Inc ., 07-2143 (La. 5/21/08), 983 So.2d 84.

Louisiana Revised Statutes 12:1502 provides the applicable prescriptive periods for actions against persons controlling a business organization and states, in pertinent part (emphasis ours):

A. The provisions of this Section shall apply to all business organizations formed under the laws of this state and shall be applicable to actions against any officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated. The provisions of this Section shall not apply to actions governed by R.S. 12:1-622, 1-833, 1-1407, or 1328(C).
....
C. No action for damages against any person described in Subsection A of this Section for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection D of this Section, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or
neglect is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act, omission, or neglect .
D. No action for damages against any person listed in Subsection A of this Section for intentional tortious misconduct, or for an intentional breach of a duty of loyalty, or for an intentional unlawful distribution, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act or omission .

It is clear that this statute applies to corporations such as Triple R Development and to Mr. Poteet, as a shareholder and member/officer. Mrs. Bumpus' rule for declaratory relief alleged that Mr. Poteet "took money, converted property, and otherwise misappropriated property belonging to Triple R Development," as well as made "inappropriate expenditures/disbursals" over a period of time. As alleged intentional misdeeds, under La.R.S. 12:1502(D), Mrs. Bumpus would have had two years from the date of the alleged act or omission to file suit, unless more than three years from the date of the alleged act had passed. Here, more than three years had unquestionably passed since any action whatsoever was taken on the part of Mr. Poteet, let alone the alleged misconduct.

While Mrs. Bumpus makes no allegation concerning specific dates of Mr. Poteet's purported ill deeds, she did not file her rule until August 31, 2015. Mr. Poteet died on February 24, 2012, over three-and-a-half years prior to her filing this current action. It goes without saying that Mr. Poteet could not have posthumously misappropriated corporate funds or property. Thus, any bad actions taken by him obviously occurred over three years prior to Mrs. Bumpus filing this suit. Thus, any claims she had for actions taken by Mr. Poteet had clearly prescribed on their face, and the trial court was correct in granting the exception of prescription. This assignment of error is without merit.

For the above reasons, we hereby reverse the decision of the trial court granting the exception of no cause of action. We hereby affirm the decisions of the trial court granting the exceptions of no right of action and prescription, dismissing Mrs. Bumpus' claims. Costs of this appeal are hereby assessed against Mrs. Bumpus.

AFFIRMED IN PART; REVERSED IN PART.

      Mrs. Bumpus claims that this claim is a personal action under La.Civ.Code art. 3499, subject to a liberative prescription of ten years. However, the introductory clause of La.Civ.Code art. 3499 has been held to be a "catch-all provision" that covers personal actions not specifically covered by any other prescriptive period. Parry v. Adm'rs of Tulane Educ. Fund , 02-382, p. 16 (La.App. 4 Cir. 9/4/02), 828 So.2d 30, 40, writ denied , 02-2478 (La. 12/19/02), 833 So.2d 346. Louisiana Revised Statutes 12:1502 is legislation that provides a clear prescriptive period which applies to this matter, making La.Civ.Code art. 3499 inapplicable.


author: AMY, Judge.

text:
    Carol J. AYMOND, Jr. v. Valentina AYMOND
    17-847
    Court of Appeal of Louisiana, Third Circuit.
    Rendered on February 7, 2018
    Keith W. Manuel, 115 East Ogden Street, Marksville, LA 71351, (318) 253-5126, COUNSEL FOR PLAINTIFF/APPELLANT: Carol J. Aymond, Jr.
    Cory P. Roy, Roy & Scott, Attorneys at Law, 107 North Washington Street, Post Office Box 544, Marksville, LA 71351, (318) 240-7800, COUNSEL FOR PLAINTIFF/APPELLANT: Carol J. Aymond, Jr.
    Randall M. Guidry, Durio, McGoffin, Stagg & Ackermann, Post Office Box 51308, Lafayette, LA 70505-1308, (337) 233-0300, COUNSEL FOR DEFENDANT/APPELLEE: Valentina Aymond
    Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.
   AMY, Judge.

The appellant sought additional designation as domiciliary parent as well as additional physical custody of the parties' minor daughter. Although the trial court changed some aspects of the underlying physical custody agreement, the trial court denied the appellant's request for additional time with the child. The trial court further denied the request for a change in the domiciliary parent designation. Following review on appeal, we affirm.

Factual and Procedural Background

Carol Aymond, Jr. and Valentina Aymond were divorced in 2013. In May 2013, the trial court signed a consent judgment regarding the custody arrangement for the couple's minor child, born in June 2011. The judgment provided for shared custody, and designated Mr. Aymond as the "primary domiciliary parent" for certain delineated responsibilities, but designated that "the parties shall be co-domiciliary parents of the minor child."

However, both parties sought modification of the consent judgment due to their respective concerns. The trial court set the matters for hearing and, by considered decree of September 2013, the trial court denied Mr. Aymond's request for additional physical custody time as well as his request for designation as the domiciliary parent. However, the trial court granted Ms. Aymond's request for a modification to the holiday schedule. Additionally, finding that a modification of custody was in the best interest of the minor child and that there had been a material change in circumstances affecting the minor, the trial court designated Ms.

Aymond "as the principal domiciliary parent" for all decisions concerning the child.

In November 2015, the trial court revisited the physical custody arrangement and ultimately signed a consent judgment. The resulting judgment again reflected a joint custody arrangement, with the minor child residing with Ms. Aymond on weekdays during the school year and Mr. Aymond having physical custody every other weekend and on Wednesday nights. However, during the summer, the schedule provided Mr. Aymond with physical custody from "noon on the Monday following dismissal of school until noon the Friday before the school commences in the fall." Ms. Aymond was to exercise physical custody every other weekend during that period. Additionally, and maintaining Ms. Aymond's status as the domiciliary parent, the consent judgment required the parties to share "[a]ll decision-making concerning the child[,]" but that "final decision in the event of a conflict shall be made by the mother during the school year and the father in the summer, except for major medical decisions."

However, with continued friction between the parties, Mr. Aymond filed a Rule for Contempt, Attorneys Fees, Court Costs, To Limit And/Or Restrict Visitation And Other Remedies in December 2016. He alleged, in pertinent part, that Ms. Aymond repeatedly refused to deliver the child for the exercise of his physical custody as prescribed by the November 2015 consent judgment. He sought modification of the November 2015 judgment "for the best interest of the minor child concerning supervised visitation, enforcement of right of first refusal and changes in visitation as the Court deems appropriate."

Before that matter was heard, however, Mr. Aymond further filed a Motion for Evaluation by Mental Health Professional, alleging that Ms. Aymond's "behavior [had] become increasingly erratic and bizarre[.]" Therein, he sought the appointment of the parish coroner "or whoever the Coroner sees fit to evaluate" Ms. Aymond, as well as himself and any other person deemed appropriate, "and/or review any previous medical records and/or previous evaluation for any mental health infirmities-the same being relative to this ongoing custody litigation." However, the trial court denied Mr. Aymond's motion by an April 19, 2017 order.

Thereafter, at an April 21, 2017 hearing, the trial court considered Mr. Aymond's request for a change of custody arrangement as well as various pending motions. While the trial court largely maintained the physical custody schedule, the resulting judgment provided Mr. Aymond with "additional visitation rights ... every other week of his off-week visits for three (3) continuous hours from when [he] picks the minor child up from school until he returns her at 6:00 p.m. when the parties exchange the minor child at Wal-Mart[.]" The trial court further altered the summer schedule so that each parent would exercise physical custody "on a seven-seven basis[.]" The judgment additionally provided each parent with "the right to take the minor child on vacation within the continental United States, said vacation time not to exceed a ten (10) day continuous period."

Mr. Aymond appeals, asserting that:

1. The Honorable Trial Court erred in denying Mr. Aymond's request for a mental health evaluation of Ms. Aymond.
2. The Honorable Trial Court erred in excluding from evidence the prior medical records of Ms. Aymond.
3. The Honorable Trial Court erred in denying Mr. Aymond's request for domiciliary parent status.
4. The Honorable Trial Court erred in denying Mr. Aymond's request for shared or equal physical custodial time of the parties' minor child.

Discussion

Mental Health Evaluation

Mr. Aymond first challenges the trial court's denial of his request for a mental health evaluation of Ms. Aymond. He references text messages from Ms. Aymond which he contends contained "disturbing content" warranting such an evaluation.

Louisiana Revised Statutes 9:331 provides as follows regarding a trial court's order of a mental health evaluation within the context of a custody proceedings:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

As explained in Cerwonka v. Baker , 06-856, p. 9 (La.App. 3 Cir. 11/2/06), 942 So.2d 747, 754, "[t]he language of the statute is permissive, and the decision to require the evaluations lies in the discretion of the court." See also C.M.J. v. L.M.C., 14-1119 (La. 10/15/14), 156 So.3d 16 (wherein the supreme court noted the statute's use of the term "may" and addressed the trial court's discretion in whether to order a sexual abuse evaluation given an underlying allegation of abuse).

After review of the record in its entirety, we find no abuse of discretion in the trial court's denial of Mr. Aymond's request for an evaluation pursuant to La.R.S. 9:331. Notably, the trial court was aware of each party's allegations as to the conduct of the other party during the multi-year course of these proceedings. That record includes information regarding Ms. Aymond's past mental health and, in fact, mental health professionals evaluated the parties during these proceedings. With that information in hand, as well as the larger history of conflict between the parties, the trial court ordered that Ms. Aymond serve as the domiciliary parent in the considered decree of 2013 and then maintained that status. While Mr. Aymond presented text messages exchanged between the parties and suggested that they reflected instability on the part of Ms. Aymond, the trial court was able to review those messages and evaluate the merit of his allegation given the history of difficulties in this case. Accordingly, we find no abuse of discretion in the trial court's denial of Mr. Aymond's motion.

This assignment or error lacks merit.

Prior Medical Records

Mr. Aymond similarly argues that the trial court erred in excluding certain of Ms. Aymond's medical records from the custody hearing. In particular, Mr. Aymond sought the introduction of records from Bunkie General Hospital and two facilities where she was treated for mental health and substance-related issues. Mr. Aymond argues that the records reflected Ms. Aymond's mental health history and were important insofar as he was required to satisfy the standard of Bergeron v. Bergeron , 492 So.2d 1193 (La.1986) to prove his claim for change of custody. He suggested that the medical records, which he introduced as proffered exhibits, provided a foundation for the above-discussed text messages.

In excluding the medical records, the trial court determined that the records-some of which pre-dated the child's 2011 birth-were irrelevant as "we've already had a custody hearing in 2013[.]" As above, review of these proceedings reveals no abuse of the trial court's discretion in its exclusion of the records. See Medine v. Roniger , 03-3436, p. 6 (La. 7/2/04), 879 So.2d 706, 711 (wherein the supreme court explained that: "Generally, a district court is afforded great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion."). As noted above, the trial court was well-versed in Ms. Aymond's background, having presided over the hearing that resulted in the September 2013 considered decree. Yet, Mr. Aymond sought the introduction of medical records that predated the initial custody hearing and, as mentioned by the trial court, some of which predated the child's birth.

For these reasons, we leave the trial court's ruling undisturbed insofar as it determined that those historic records were not relevant to the present matter.

This assignment lacks merits.

Domiciliary Status

Moving from the underlying evidentiary matters, Mr. Aymond next argues that the trial court erred in rejecting his request that he be named domiciliary parent. He suggests that the texts and proffered medical exhibits demonstrate "mental instability and a danger to the child." Furthermore, he contends in his brief that, while in Ms. Aymond's care, the child has accrued excessive absences from school and that Ms. Aymond has allowed "a man with dementia to babysit" the child. Mr. Aymond contends this record evidence supports his request for change of domiciliary status.

Notably, and as acknowledged by Mr. Aymond, the 2013 considered decree designated Ms. Aymond as the child's domiciliary parent. As a starting point of the pertinent analysis, La.Civ.Code art. 131 provides that: "In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child." The Article is to "be followed in actions to change custody as well as in those to initially set it." La.Civ.Code art. 131, cmt. (d). See also Gray v. Gray , 11-548 (La. 7/1/11), 65 So.3d 1247. Referencing its earlier decision in Bergeron , 492 So.2d 1193, the supreme court has explained that:

When a party seeks to change custody rendered in a considered decree, the proponent of change not only must show that a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody, but he or she also "bears the heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child." Bergeron , 492 So.2d at 1200 ; AEB v. JBE , 99-2668, p. 7 [La. 11/30/99,] 752 So.2d at 761 ; See also Evans v. Lungrin , 97-0541, pp. 12-13 (La. 2/6/98), 708 So.2d 731, 738. This burden of proof is imposed as a means of implementing the best interest standard in light of the special considerations present in change of custody cases. AEB v. JBE , 99-2668, p. 7, 752 So.2d at 761. The determination of the trial court in child custody matters is entitled to great weight, and its discretion will not be disturbed on review in the absence of a clear showing of abuse. Bergeron , 492 So.2d at 1196.

Gray , 65 So.3d at 1258-59.

Based on the evidence presented, we find no abuse of discretion in the trial court's determination to maintain Ms. Aymond as the domiciliary parent. Mr. Aymond contends that Ms. Aymond has evidenced disturbing behavior that satisfies the above-standard. However, the text messages entered into evidence, and on which Mr. Aymond relies, demonstrate a continued pattern of friction between the parties and reflects on the conduct of both parties.

Furthermore, and although the director of the child's school suggested that the child had been absent from her kindergarten class twelve to fifteen times during the school year, she noted that each had been excused and were medical in nature. Moreover, the director explained that the child appeared to be well adjusted and was appropriately clothed and nourished. Further, to the extent Mr. Aymond asserts that Ms. Aymond allowed supervision by an inappropriate caregiver, Mr. Aymond's evidence on this point was scant at best. He did not produce any evidence indicating either the extent of any infirmity, the parameters of that supervision, or whether any type of endangerment resulted.

For these reasons, we find no merit in Mr. Aymond's contention that the trial court erred in denying his request for domiciliary parent status.

Physical Custody Schedule

Finally, Mr. Aymond contends that the trial court erred in denying his request for shared or equal physical custody time. Mr. Aymond notes that Dr. Kenneth Bouillion, a psychologist, consulted the family and rendered a February 2017 report to the trial court regarding the parties' respective custody concerns. Mr. Aymond suggests in his brief that the trial court erred insofar as it rejected Dr. Bouillion's recommendation "that the father have visitation ... on alternate weekends from Thursday after school until Monday before school, and on Wednesday and Thursday overnight in the off week." He contends that, although the trial court was not required to adopt that recommendation, the trial court should have deferred to Dr. Bouillion as an expert insofar as his opinion was uncontroverted.

After review, however, we maintain the trial court's ruling. First, we note that Mr. Aymond suggests that the physical custody schedule arrived at by the trial court "inhibits the minor child's ability to enjoy the mandate of [La.R.S] 9:3[3]5[.]" Certainly, La.R.S. 9:335(A)(2)(b) provides that: "To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally." However, it is critical to recognize that the provision relates to "a proceeding in which joint custody is decreed" and the trial court's issuance of a joint implementation order. La.R.S. 9:335. The present case, however, involved a request for modification of a pre-existing joint custody order. Thus, Mr. Aymond was required to satisfy his burden of proving that such a modification was necessary.

In rejecting Mr. Aymond's request, the trial court generally discussed the friction between the parties, as well as the difficulties that surrounded the parents' transfer of physical custody. The trial court particularly addressed Dr. Bouillion's recommendation regarding the physical custody schedule during the school year, stating:

The present visitation schedule will remain the same unless agreed to by the parties except that the court will add one additional ... and I told ya'll in the pre-trial when we were talking about it two nights overnight is too much disruption for school. Ya'll are doing one night in the off week overnight and the other one what I'm saying is I'm adding a three hour period of time for him to take [the child] to go eat or go to the movies or do something just the two of them together as a quality time with the parent. Another night on an off week in addition to the overnight. I think ya'll been agreeing on Wednesday. And Dr. Bouillion said Wednesday or Thursday, I just think that's too much. That's disruptive in school. So I don't agree with Dr. Bouillion on everything.[ ]

The trial court did, however, remark on the parties' conduct toward one another, commenting that it would like for the parties to "get along better for [the child]'s benefit, I really would. I would love to see a father have more time with his daughter like Dr. Boullion and everybody recommends, and the older she gets the more she's going to want that. I know she's only five." Obviously, however, the trial court found that such a change was inappropriate at the time of the hearing.

Given the evidence presented and the deference owed to the trial court's determinations, we find no merit in Mr. Aymond's argument regarding the physical custody schedule. Instead, the record supports a finding that Mr. Aymond failed to satisfy his burden of proving that a greater modification-than that provided-was demonstrated. The trial court did not abuse its discretion in determining that stability during the school year was in the child's best interest.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the appellant, Carol Aymond, Jr.

AFFIRMED.

      The May 20, 2013 judgment provided for each parent to exercise custody "two (2) week nights and every other three day weekend[.]" The judgment also designated a holiday schedule.

      The consent judgment defined the weekend periods during the school year "Friday until the dismissal of school for the day until the commencement of school on the following Monday."

      While the trial court rejected Dr. Bouillion's recommendation for additional overnight custody during the school year, the trial court indicated agreement with Dr. Bouillion's recommendation that Ms. Aymond be maintained as domiciliary parent. The resulting order also modified the summer physical custody so that each parent would have the child on alternating weeks. In this regard, Dr. Bouillion confirmed that he thought such an arrangement was "commonly done" and appropriate.


text:
    GIBBS CONSTRUCTION, L.L.C. v. NATIONAL RICE MILL, L.L.C.
    NO. 2017-CA-0113
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 21, 2018
    Randall A. Smith, Stephen M. Gelé, Reagan Reynolds, SMITH & FAWER, L.L.C., 201 St. Charles Avenue, Suite 3702, New Orleans, LA 70170 -and- Emile A. Bagneris, III, THE BAGNERIS FIRM, LLC, 2714 Canal Street, Suite 403, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLANT, NATIONAL RICE MILL, L.L.C.
    C. Michael Pfister, Jr., Linda A. Hewlett, DUPLASS, ZWAIN, BOURGEOIS, PFISTER, WEINSTOCK & BOGART, 3838 N. Causeway Boulevard, Suite 2900, Metairie, LA 70002, COUNSEL FOR THIRD PARTY DEFENDANT/APPELLEE, FIREMAN'S FUND INSURANCE COMPANY -and- Richard G. Duplantier, Jr., David M. Moragas, Scott M. Raney, Sr., GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, COUNSEL FOR THIRD PARTY DEFENDANT/APPELLEE, ZURICH AMERICAN INSURANCE COMPANY
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore)
    Judge Joy Cossich Lobrano This is an insurance coverage dispute arising from a claim for breach of construction contract and damages. Defendant/Appellant, National Rice Mill, L.L.C. ("Rice Mill"), appeals the district court's October 10, 2016 and October 20, 2016 judgments granting two motions for partial summary judgment. The October 10, 2016 judgment ruled that the water intrusion events that took place on September 4, 2011 and August 28, 2012 constitute two occurrences within the meaning of the applicable Westchester Surplus Lines Insurance Company ("Westchester") policies. The October 20, 2016 judgment dismissed Rice Mill's claims for delay damages/liquidation damages, loss of income/business reputation, and rent concessions. For the reasons that follow, we reverse both judgments and remand this matter for further proceedings.
    The following facts are pertinent to this appeal. Gibbs Construction, L.L.C. ("Gibbs") was the general contractor for an extensive renovation of the Rice Mill's luxury apartment complex, the Rice Mill Lofts (the "apartments"). Gibbs selected Rush Masonry, Inc. ("Rush") as the masonry restoration subcontractor for the renovation of the apartments. Westchester issued a policy of commercial general liability ("CGL") insurance to Rush, which was the primary layer of insurance during the policy periods of February 1, 2011 to February 1, 2012 and February 1, 2012 to February 1, 2013. Third Party Defendant/Appellee, Fireman's Fund Insurance Company ("Fireman's Fund") provided a policy of excess liability insurance to Rush during each of the aforementioned Westchester policy periods.
    Third Party Defendant/Appellee, Zurich American Insurance Company ("Zurich"), issued a CGL insurance policy to Gibbs for the policy periods of January 1, 2011 to January 1, 2012 and January 1, 2012 to January 1, 2013.
    The apartments experienced multiple instances of water intrusion, including a thunderstorm in July 2011, on September 4, 2011 during Tropical Storm Lee, and on August 28, 2012 during Named Storm Isaac. Subsequently, Gibbs filed suit against Rice Mill for failure to make payments under the general construction contract. Rice Mill filed a reconventional demand against Gibbs and third party demands against Rush, Zurich, and other parties.
    Thereafter, Fireman's Fund filed a motion for partial summary judgment, arguing that two separate weather events on September 4, 2011 and August 28, 2012 resulted in two occurrences of property damage, each during a separate Westchester policy period.
    Fireman's Fund and Zurich also each filed a motion for partial summary judgment, arguing that Rice Mill's claims for management fees, damage to "your work," delay damages or reduction in contract price by liquidated damages, rent concessions, loss of business reputation, and mold remediation are not "property damage" as required for coverage under the respective Fireman's Fund and Zurich policies.
    On June 16, 2016, the district court held a hearing, at which the court ruled from the bench on the respective motions for partial summary judgment. The district court granted partial summary judgment in favor of Fireman's Fund, finding that the water intrusion events on September 4, 2011 and August 28, 2012 constitute two occurrences. As to the motions for partial summary judgment filed by Fireman's Fund and Zurich, the district court granted the motions in part and dismissed Rice Mill's claims for "delay damages or liquidation damages," "loss of income/business reputation," and "rent concessions."
    On September 9, 2016, Rice Mill filed a motion to have the district court's judgments designated as final. On October 10, 2016, the district court signed and rendered judgment as to Fireman's Fund's and Zurich's motions for partial summary judgment on the dismissed categories of damages. On October 20, 2016, the district court signed and rendered judgment as to Fireman's Fund's motion for partial summary judgment on number of occurrences.
    This appeal followed. Rice Mill sets forth two assignments of error on appeal, arguing that the district court erred in (1) granting partial summary judgment dismissing claims for particular categories of damages, and (2) granting partial summary judgment finding that the water intrusion constituted two occurrences.
    Before discussing the merits of this appeal, we first address whether this Court has appellate jurisdiction to review the October 20, 2016 judgment rendered by the district court. On October 13, 2016, Rice Mill filed a motion for appeal relative to two judgments, both purportedly rendered on October 10, 2016, in particular:
    a) That certain judgment dated October 10, 2016 granting a Motion for Partial Summary Judgment on the number of occurrences and coverage triggers filed by Fireman's Fund; and
    b) That certain judgment dated October 10, 2016 granting in part Motions for Partial Summary Judgment filed by Fireman's Fund and Zurich.
    The district court signed the order of appeal on October 17, 2016. The record before us, however, contains only one judgment dated October 10, 2016, which was the judgment granting Fireman's Fund's motion for partial summary judgment relative to the number of occurrences. The record lacks a second judgment dated October 10, 2016. Rather, the record reflects that the judgment granting in part the motions for partial summary judgment filed by Fireman's Fund and Zurich, dismissing claims for certain categories of damages, was not signed until October 20, 2016.
    This Court ordered the parties to submit briefs addressing whether Rice Mill's appeal of the October 20, 2016 judgment should be dismissed as premature and/or as the order of appeal does not reference the October 20, 2016 judgment. Responding to this Court's order, Rice Mill argues that its appeal should not be dismissed and urges this Court to follow its holding in Law Office of Paul C. Miniclier, PLC v. Louisiana State Bar Ass'n , 2014-1162, p. 4 (La. App. 4 Cir. 5/27/15), 171 So.3d 1013, 1015. In Miniclier , the district court signed an order of appeal referencing a judgment not in the record, and only after the order of appeal was signed did the district court sign and render the judgment that Miniclier had intended to appeal. Id. , 2014-1162 at p. 3, 171 So.3d at 1014. This Court, following the Supreme Court's ruling in
    Overmier v. Traylor , 475 So.2d 1094 (La. 1985), held that "[e]ven though the appeal order was initially premature because it was filed and signed after the trial court rendered oral judgment, but before the judgment was reduced to writing and signed, once the judgment was signed the defect was cured." Id. , 2014-1162 at p. 4, 171 So.3d at 1015.
    We agree with Rice Mill's argument that Miniclier applies. We find that both the October 10, 2016 and October 20, 2016 judgments are properly before this Court on appeal, and we next address the merits of the appeal.
    Appellate courts review a grant of a motion for summary judgment de novo using the same criteria district courts consider when determining if summary judgment is proper. Kennedy v. Sheriff of E. Baton Rouge , 2005-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686 (citations omitted).
    Fireman's Fund and Zurich filed their respective motions for partial summary judgment after January 1, 2016. As a result, the version of La. C.C.P. art. 966, which became effective on January 1, 2016 applies to this motion. Summary judgment procedure is favored in Louisiana. La. C.C.P. art. 966(A)(2). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).
    Regarding the burden of proof on summary judgment, La. C.C.P. art. 966(D)(1) states:
    The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the
    court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
    We first turn to the partial summary judgment finding that the water intrusion events on September 4, 2011 and August 28, 2012 constituted two occurrences. All parties submit that the Westchester policies define "occurrence" as "an accident, including continuous or repeated exposure to substantially the same harmful conditions." Rice Mill contends that the district court erred in considering evidence attached to Fireman's Fund's reply memorandum in violation of La. C.C.P. art. 966(B)(3). Rice Mill also argues that, even if the reply memorandum evidence is considered, genuine issues of material fact remain that preclude summary judgment.
    The record reflects that Fireman's Fund, in support of its motion for partial summary judgment, attached the following exhibits: (1) Rice Mill's opposition to Gibbs' motion for summary judgment on consequential damages and delay damages without exhibits; (2) partial copy of Gibbs' original petition for breach of contract; (3) Rice Mill's answer to Gibbs' original petition and third party demand; (4) Rice Mill's amended reconventional demand and third party demand; (5) Westchester policy issued to Rush for the period February 1, 2011 to February 1, 2012; and (6) Westchester policy issued to Rush for the February 1, 2012 to February 1, 2013. No affidavits, deposition testimony, or discovery responses were introduced into evidence at that time. However, in filing its reply memorandum, Fireman's Fund attached as an exhibit the entirety of its previously filed opposition to Westchester's motion for summary judgment regarding number of occurrences, along with the attachments to the opposition.
    Rice Mill responded by filing a motion to strike the additional evidence, arguing that no additional documents could be filed with a reply memorandum and that the late filing of Fireman's Fund's exhibits did not allow Rice Mill time to respond to the additional documents. Fireman's Fund argued that the district court could consider the exhibits to Fireman's Fund's reply because the evidence was already placed into the record when Fireman's Fund filed its opposition to Westchester's motion for partial summary judgment regarding number of occurrences. The district court granted Rice Mill's motion to strike, but also ultimately granted partial summary judgment in Fireman's Fund's favor.
    Under La. C.C.P. art. 966(D)(2), "[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made." Comment (k) of La. C.C.P. art. 966 explains that "[s]ubparagraph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion. This rule differs from Federal Rules of Civil Procedure, Rule 56(c)(3), which allows the court to consider other materials in the record." Subparagraph (B)(3) explicitly provides that "[n]o additional documents may be filed with the reply memorandum." La. C.C.P. art. 966(B)(3). Comment (d) of La. C.C.P. art. 966 notes, "[t]his Article continues the rule that no new documents may be filed with a reply memorandum."
    The hearing transcript reveals that the district court found that Fireman's Fund was not permitted to attach exhibits to its reply memorandum. Nevertheless, the district court also stated on the hearing transcript that Fireman's Fund could "reference" the exhibits to its previously filed opposition to Westchester's motion, regardless of whether the exhibits were attached to Fireman's Fund's reply, because those exhibits were in the district court's record. Thus, the district court correctly found that no additional documents may be filed with the reply memorandum; however, the district court erred in determining that it could consider documents in the record, other than those documents filed in support of or in opposition to the particular motion before the district court. Fireman's Fund correctly points out that the documents it attempted to file in support of its reply were already properly placed into the record as part of its exhibits to a different opposition. Nevertheless, we find no support for Fireman's Fund's argument which would allow the court to consider materials in the record beyond those filed in support of or in opposition to the motion for summary judgment before the court. See Diversified Marine Servs., Inc. v. Jewel Marine, Inc. , 2016-0617, p. 9, n. 5 (La. App. 1 Cir. 6/2/17), 222 So.3d 1008, 1015 (citing
    Price v. Chain Elec. Co. , 2016-597, p. 6 (La. App. 5 Cir. 4/12/17), 216 So.3d 388, 392-93 )("because the exhibits attached to [the] reply memorandum are not deemed admitted pursuant to La. C.C.P. art. 966, the trial court should not have considered them and this court cannot consider these documents in its de novo review"). As the documents attached to Fireman's Fund's reply were properly stricken, the district court erred in considering them on the basis that the documents could be found elsewhere in the record.
    Based on our de novo review of the motion for summary judgment, opposition, and the exhibits attached to and properly admitted with the motion and opposition, there is not sufficient evidence before this Court "to show that the other party lacks factual support for their position." Randazzo v. St. Bernard Parish Gov't , 2016-0902, p. 6 (La. App. 4 Cir. 5/17/17), 219 So.3d 1128, 1132, reh'g denied (5/31/17), writ denied , 2017-1209 (La. 10/27/17), 228 So.3d 1236 (quoting Gooding v. Merrigan , 2015-200, p. 9 (La. App. 5 Cir. 11/19/15), 180 So.3d 578, 584 ). See also Wynder v. Royal Ford Lincoln Mercury, Inc. , 98-616 (La. App. 3 Cir. 10/28/98), 721 So.2d 1001, 1005 (refusing to consider evidence that was not properly admitted on summary judgment when reviewing a grant of summary judgment, and reversing the grant of summary judgment). We find that Fireman's Fund did not meet its burden of proving two occurrences under the relevant insurance policies, or that it was entitled to judgment as a matter of law. Accordingly, we reverse the district court's October 10, 2016 judgment granting
    Fireman's Fund's motion for partial summary judgment, and remand the case for proceedings consistent with this opinion.
    We next turn to the partial summary judgments rendered in favor of Fireman's Fund and Zurich dismissing Rice Mill's claims for delay damages/liquidated damages, loss of income/business reputation, and rent concessions. Rice Mill has identified certain categories of damages it has allegedly incurred in connection with water intrusion events in litigation, as follows:

      The district court's rulings regarding coverage for management fees, damage to "your work," and mold remediation are not a part of this appeal.

      Westchester filed a motion for partial summary judgment taking the opposite position from Fireman's Fund, arguing, as does Rice Mill, that the damages claimed herein arise from one occurrence implicating one Westchester policy. Nothing in the record indicates that Rice Mill, which was aligned with Westchester on this issue, filed any memorandum in support of or in opposition to Westchester's motion. The record does not reflect that the district court ever heard or considered Westchester's motion, evidently because Westchester reached a settlement with Rice Mill.

   Interior Repair $1,025,403.03 Exterior Masonry Restoration $793,708.99 Rent Concessions $145,722.50 Loss of Income/Business Reputation (Past & Future) $2,790,394.00 Delay Damages $2,557,604.80 Total $7,312,833.32

Fireman's Fund's and Zurich's motions arise from these alleged damages. The interior repair and exterior masonry restoration damages are not at issue in this appeal. Fireman's Fund and Zurich contend that delay damages/liquidated damages, loss of income/business reputation, and rent concessions are economic damages, not "property damage," and are thus not afforded coverage under the applicable policies. Rice Mill argues on appeal that the economic damages it sustained occurred "because of" "property damage" such that coverage is triggered.

As this Court explained in Stewart Interior Contractors, L.L.C. v. Metalpro Indus., L.L.C. , 2007-0251, pp. 5-7 (La. App. 4 Cir. 10/10/07), 969 So.2d 653, 658-59 :

A summary judgment may be rendered on the issue of insurance coverage alone, although a genuine issue as to liability or the amount
of damages exists. See La. C.C.P. art. 966 E; Leflore v. Coburn , 95-0690 (La. App. 4 Cir. 12/28/95), 665 So.2d 1323. A summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, exists under which coverage could be afforded. Reynolds v. Select Properties, Ltd. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183. An insurer seeking to avoid coverage through summary judgment must prove that some exclusion applies to preclude coverage. McMath Const. Co., Inc. v. Dupuy , 03-1413, p. 4 (La. App. 1 Cir. 11/17/04), 897 So.2d 677, 681.
An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer, and the agreement governs the nature of their relationship. See La. C.C. art. 1983. Moreover, an insurance policy is a contract, which must be construed employing the general rules of interpretation of contracts. Supreme Services [andSpecialty Company, Inc. v. Sonny Greer, Inc. , 06-1827, p. 5 (La. 5/22/07), 958 So.2d 634, 638]; Reynolds , 634 So.2d at 1183 ; La. C.C. arts. 2045 - 2057. If the insurance policy's language clearly expresses the parties' intent and does not violate a statute or public policy, the policy must be enforced as written. See La. C.C. art. 2046 ; Rando v. Top Notch Properties, L.L.C. , 03-1800 (La. App. 4 Cir. 6/2/04), 879 So.2d 821. Courts are not at liberty to alter the terms of insurance policies that are unambiguous. Edwards v. Daugherty , 03-2103 (La. 10/1/04), 883 So.2d 932. However, if any doubt or ambiguity exists as to the meaning of a provision in an insurance policy, it must be construed in favor of the insured and against the insurer. See La. C.C. art. 2056. When the ambiguity relates to an exclusionary clause, the law requires that the contract be interpreted liberally in favor of coverage. Borden, Inc. v. Howard Trucking Co., Inc. , 454 So.2d 1081, 1090 (La. 1983) ; Williamson v. Historic Hurstville Ass'n , 556 So.2d 103, 107 (La. App. 4 Cir. 1990).
Liability insurance policies should be interpreted to effect, rather than to deny coverage. Yount v. Maisano , 627 So.2d 148, 151 (La. 1993). However, it is well-settled that, absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions upon the obligations they contractually assume. Supreme Services , supra at p. 6, 958 So.2d at 638-639 ; Reynolds , 634 So.2d at 1183 ; Marcus v. Hanover Insurance Co., Inc. , 98-2040, p. 4 (La. 6/4/99), 740 So.2d 603, 606. In these circumstances, unambiguous provisions limiting liability must be given effect. Supreme Services , supra at p. 6, 958 So.2d at 639. Only if the language can reasonably be read to have more than one reasonable meaning can the language be said to be ambiguous. Rando , supra at p. 3, 879 So.2d at 825. Whether a contract provision is ambiguous is a question of law. Pope v. Khalaileh , 05-0027, p. 5 (La. App. 4 Cir. 6/1/05), 905 So.2d 1149, 1152. Moreover, [the insurer]
bears the burden of proving that a loss falls within a policy exclusion.
Blackburn v. National Union Fire Ins. Co. , 00-2668, p. 6 (La. 4/3/01), 784 So.2d 637, 641 ; Rando , supra at p. 3, 879 So.2d at 825.

To resolve the particular issue before us, we must consider the language of the applicable policies to determine whether Rice Mill has alleged "property damage" so as to trigger the initial grant of coverage for Gibbs' and Rush's alleged liability under the Zurich and Fireman's Fund policies. See id.

Rice Mill alleges that, as a result of incomplete and defective masonry and waterproofing work by Rush and Gibbs, Rice Mill suffered damage to the interior and exterior of the apartments from multiple instances of water intrusion. Rice Mill further argues that it incurred delay damages, the cost of rent concession payments to the apartments' renters, and loss of income and business reputation "because of property damage" to the apartments.

In general, a commercial general liability ("CGL") policy is a broad statement of coverage, and insurers limit their exposure to risk or liability for damages through a series of specific exclusions. Stewart , 2007-0251 at p. 8, 969 So.2d at 659. We first determine whether the losses claimed by Rice Mill are covered by the language of the policies' initial grant of coverage.

As stated, Fireman's Fund issued, for each of the two relevant time periods, a policy of excess insurance to Rush for liability above the limits of the first layer of primary insurance provided by Westchester to Rush.

Coverage A of the Fireman's Fund's policies' states that it "will pay on behalf of any Insured those sums in excess of Primary Insurance that any Insured becomes legally obligated to pay as damages ... provided that such damages ... (a) are covered by Primary Insurance; (b) arise from injury or damage that occurs, or from an offense that is committed, during our Policy Period; and (c) take place anywhere in the world." The "terms and conditions of Primary Insurance apply to Coverage A...."

Zurich, likewise, issued a policy of CGL insurance to Gibbs for each of the relevant time periods in litigation. Both the Zurich and Westchester CGL policies provide, in pertinent part:

SECTION I-COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies....
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";
...
SECTION V-DEFINITIONS
13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
...
17. "Property damage" means:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it...

In Stewart , this Court found that, in addition to a subcontractor's economic loss claims for breach of contract and redhibition against a steel stud manufacturer and manufacturer's insurer, the subcontractor sufficiently alleged damage to property other than to the steel studs themselves, or incident to their removal and repair; thereby, such allegations constituted "property damage," which triggered the initial grant of coverage under the CGL policy issued to the steel stud manufacturer. 2007-0251 at p. 12, 969 So.2d at 661-62. Stewart noted that "claims solely for economic losses, are generally not covered by CGL policies because of policy exclusions restricting coverage for damages, such as the 'work product' exclusion, and not on any inherent limitation in the general grant of coverage for 'property damage' as required by the insuring agreement." Id. , 2007-0251 at p. 11, 969 So.2d at 661. This Court explained that if the policy "never confers coverage for this type of liability as an original definitional matter," there would be no need for a policy exclusion to specifically eliminate coverage. Id. , 2007-0251 at p. 10, 969 So.2d at 660. Having found that the subcontractor's claims for "property damage" triggered the initial grant of coverage under the policy, this Court found that coverage for certain property damage claims was nevertheless precluded by other policy exclusions.

On appeal, Rice Mill argues, as to the contested categories of damages as a whole, that the initial grant of coverage under the policies is triggered when there is "physical injury to tangible property" caused by an "occurrence" and that the economic damages it sustained occurred "because of ... property damage." Rice Mill contends that the district court improperly found as a matter of law that these categories of damages were purely economic damages and not property damage. We find, as this Court did in Stewart , that to the extent that summary judgment was granted on the basis that Rice Mill failed to allege "property damage" triggering the initial grant of coverage under the Fireman's Fund and Zurich policies, the district court erred. 2007-0251 at pp. 9-10, 969 So.2d at 660.

With respect to the delay damage claims, Fireman's Fund and Zurich rely on Fed. Ins. Co. v. New Hampshire Ins. Co. , 439 Fed.Appx. 287 (5th Cir. 2011) (citing

Data Specialties, Inc. v. Trans. Ins. Co. , 125 F.3d 909 (5th Cir. 1997) ) and First Horizon Ins. Co. v. Int'l Surplus Lines Ins. Co. , No. 87-3616, 1989 WL 132856 (E.D. La. Oct. 31, 1989) for the proposition that the policy language "legally obligated to pay as damages" applies only to tort-based obligations, not obligations arising from breach of contract such as contract price or delay damages. We are not persuaded by the reasoning in either case. First Horizon is distinguishable because there were no allegations of physical damage to property in that litigation. Fed. Ins. Co. relies on a federal appellate case applying Texas law and merely makes an "Erie guess" as to Louisiana law; we have identified no reported Louisiana cases adopting Zurich's and Fireman's Fund's interpretation of Fed. Ins. Co. on this issue.

Similarly, Zurich and Fireman's Fund rely on a line of cases decided by the United States Fifth Circuit Court of Appeals to suggest that that rent concessions, lost income, and damage to Rice Mill's business reputation are not "property damage." See Selective Ins. Co. of Southeast v. J.B. Mouton & Sons , 954 F.2d 1075, 1079-80 (5th Cir. 1992) (equating policy language of "tangible property" to the Louisiana concept of "corporeal property" and rejecting the argument that, under Louisiana law, the loss of possible future income or profits, or the loss of use of that income, constitutes a loss of tangible property); Lamar Advert. Co. v.Cont'l Cas. Co. , 396 F.3d 654, 662 (5th Cir. 2005) (loss of anticipated or possible income was not loss of tangible property);

DeLoach v. HGI Catastrophe Servs., L.L.C. , 460 Fed.Appx. 314, 317 (5th Cir. 2012) ("reputation is not tangible property, and the purely economic losses resulting from damage thereto are not 'property damage' within the meaning of the [CGL] policy"). We find each of these federal appellate cases distinguishable, however, because, in each case, the party seeking coverage did not allege a physical injury to or destruction of any tangible property.

By depicting Rice Mill's claims as solely involving incorporeal, economic losses, Fireman's Fund and Zurich ignore that Rice Mill has alleged that defective construction resulted in, not only economic losses to its income, reputation, and from delays in construction, but also physical injury to tangible property - the apartments. "As our case law presupposes that '[a] [ ] complaint against the insured is examined with the assumption that all the allegations are true,' " we disagree with Fireman's Fund and Zurich and find that, in addition to economic losses, Rice Mill has sufficiently alleged property damage to the apartments, thereby triggering the initial grant of coverage under the applicable Fireman's Fund and Zurich policies. See Stewart , 2007-0251 at p. 12, 969 So.2d at 661-62 (internal citations omitted).

Ordinarily, having reached this conclusion as to the initial grant of coverage would not end our inquiry; we would next consider whether coverage is precluded by one or more of the policy exclusions. Thus, in the alternative, Fireman's Fund and Zurich seek this Court's determination of whether coverage for Rice Mill's claims for delay damages, loss of income/reputation, and rent concessions are precluded by the "impaired property" exclusion.

It is evident from the record, however, that the district court did not reach the issue of whether the "impaired property" exclusion applied. The transcript of the June 16, 2016 hearing reflects that, after the district court found that the delay damages, loss of income/reputation, and rent concessions did not fall within the initial grant of the applicable policies' coverage, the district court made no finding as to whether the "impaired property" exclusion applied and stated on the record that the issue was moot. Having found that the district court erred in its conclusion as to the initial grant of coverage, the applicability of the "impaired property" exclusion warrants consideration and is not moot. We therefore reverse the district court's grant of partial summary judgment and remand this matter to the district court for further proceedings and for determination of whether the "impaired property" exclusion applies.

For these reasons, we reverse the October 10, 2016 judgment granting summary judgment as to the number of occurrences within the meaning of the applicable Westchester policies, as we find that Fireman's Fund did not meet its burden of proving two occurrences and was not entitled to judgment as a matter of law. We also reverse the October 20, 2016 judgment dismissing Rice Mill's claims for delay damages/liquidation damages, loss of income/business reputation, and rent concessions. We thus remand this case to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      We recognize that the record lodged with this Court contains, within Fireman's Fund's exhibits to its motion, incomplete copies of the Westchester policies. Specifically, those policies are missing the page that provides the definition of "occurrence." No party objected to the introduction of the Westchester policies into evidence. All parties represent to this Court that the Westchester definition of "occurrence" is the same definition of "occurrence" provided in the Zurich policies, and no party raises the verbiage of that definition as an issue on appeal. We thus find that there is no genuine issue of material fact that the definition of "occurrence" is the same in both the Zurich and Westchester policies.

      We are likewise not persuaded by the cases relied by the parties applying out-of-state law to determine whether certain consequential economic damages are excluded under the policies at issue.

      "Under La. C.C.P. art. 852, the pleadings allowed in civil actions include "petitions, exceptions, written motions and answers." Stewart , 2007-0251 at p. 12, n. 8, 969 So.2d at 662 (citing Grimaldi Mechanical, L.L.C. v. The Gray Insurance Company , 2005-0695, p. 9 (La. App. 4 Cir. 6/2/06), 933 So.2d 887, 892. "Also, La. C.C.P. art. 1154 provides that amendments to the pleadings in order to conform to the evidence are proper." Id.

      We recognize that pursuant to La. C.C.P. art. 2133(B), Fireman's Fund and Zurich were not required to file an answer to the appeal in order to assert, in support of affirmation of the judgment, "any argument supported by the record."