text:
    STATE of Louisiana v. Will MOFFETT
    NO. 2017-KA-0769
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 13, 2018
    Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, William R. Dieters, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF
    Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, LA 70178-4015, -AND-, Will J. Moffett, Jr. # 417464, River Correctional Center, 26362 Highway 15, Ferriday, LA 71334, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Edwin A. Lombard,)
    Judge Edwin A. Lombard The defendant, Will J. Moffett, appeals his conviction for attempted manslaughter. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant's conviction and sentence.
    Relevant Facts and Procedural History
    On the evening of February 13, 2016, as he stood talking with Ms. Lorraine Moffett in front of her residence in the 800 block of Austerlitz Street, Chuck Slan was shot seven times. On April 14, 2016, the defendant (Ms. Moffett's son) was charged by bill of information with the attempted second degree murder of Mr. Slan. He pleaded not guilty and, after a two day trial, the defendant was found guilty of attempted manslaughter on January 10, 2017, by an eleven-to-one jury verdict.
    On January 31, 2017, the defendant filed motions for a new trial, post-verdict judgment of acquittal and appeal. After a brief hearing on March 10, 2017, the trial judge denied the motion for new trial and noted the defense objection to the ruling. The trial judge then announced that, prior to entertaining the defendant's motion for appeal, she would impose sentence. Defense counsel stated that she wished to make a brief argument before sentencing and read into the record a mitigation letter written by a staff social worker in the Orleans Public Defender's Office. The trial judge responded by saying, "My understanding is the sentence is zero to twenty years. Everybody agree?" The assistant district attorney and defense counsel answered affirmatively and the trial judge imposed a ten-year sentence.
    The defendant's motion for appeal was granted and this appeal was timely filed.
    Error Patent Review
    La. Code Crim. Proc. art. 873 provides:
    If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.
    This court has held that the twenty-four-hour delay set by La. Code Crim. Proc. art. 873 may be implicitly waived, State v. Santos-Castro, 2012-0568, p. 17 (La. App. 4 Cir. 7/31/13), 120 So.3d 933, 943-944 ; State v. Stovall, 2007-0343, p. 12 (La. App. 4 Cir. 2/6/08), 977 So.2d 1074, 1082 ; State v. Robichaux, 2000-1234, p. 7 (La. App. 4 Cir. 3/14/01), 788 So.2d 458, 464, and where the defendant does not complain of his sentence on appeal, the failure to observe the twenty-four-hour delay mandated by Article 873 is harmless. State v. Celestain , 2013-1262, pp. 11-13 (La. App. 4 Cir. 7/30/14), 146 So.3d 874, 881-882 (citations omitted). However, in State v. Kisack, 2016-0797 (La. 10/18/17), 236 So.3d 1201, the Louisiana Supreme Court found that this court erred in surmising that defense counsel's participation in the sentencing hearing was enough to constitute and implicit waiver of the Article 873 mandated delay, concluding that an implicit waiver "runs afoul of the plain language" of Article 873 express waiver requirement. Rather, under the circumstances presented in Kisack, the Louisiana Supreme Court found "it is difficult to conclude the error is harmless" when the defendant "faced a sentencing range of 20 years to life and received the maximum sentence authorized for a fourth-felony offender for possession of a contraband cell phone" Kisack, 2016-0797, pp. 7-8, 236 So.3d at 1206. Nevertheless, the Louisiana Supreme Court maintained that "an error in failing to observe the statutory sentencing delay may still be found harmless." Kisack, 2016-0797, p.7, 236 So.3d at 1205-06.
    The circumstances of this case are easily distinguishable from those in Kisack. Specifically, the sentence was imposed less than twenty-four hours after the denial of the defense motion for a new trial and, therefore, clear error pursuant to the Article 873 mandate that any waiver of the delay must be expressly made. Nonetheless, it is noteworthy that the sentence was imposed two months after the defendant's conviction, the defense counsel provided a letter of mitigation prior to sentencing, and the sentence imposed by the trial judge was half of the maximum sentence allowed by law. Under these circumstances, we find that the error in failing to adhere to the 24 hour delay mandated by Article 873 was harmless.
   Assignment of Error

The defendant challenges the sufficiency of the evidence based on the absence of any physical evidence linking him to the crime, the failure of the State to negate any reasonable probability of misidentification, and the reliability of the State's witnesses.

Applicable Law

In accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), when reviewing a claim of insufficient evidence, we must determine whether the evidence viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Williams, 2011-0414, p. 16 (La. App. 4 Cir. 2/29/12), 85 So.3d 759, 769 (citation omitted).

The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence; moreover, it is not the function of this court to assess the credibility of witnesses or reweigh the evidence. State v. Richards, 2011-0349, p. 9 (La. App. 4 Cir. 12/1/11), 78 So.3d 864, 869 (citations omitted). Thus, "[a]bsent internal contradiction or irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion." State v. Rapp, 2014-0633, pp. 6-7 (La. App. 4 Cir. 2/18/15), 161 So.3d 103, 108 (citation omitted). Conflicting statements as to factual matters is a question of weight of the evidence (not sufficiency of the evidence) and, therefore, the determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. State v. Jones, 537 So.2d 1244, 1249 (La. App. 4th Cir. 1989). Thus, a positive identification by only one witness is sufficient to support a conviction. State v. Neal , 2000-0674, p. 11 (La. 6/29/01), 796 So.2d 649, 658.

When, as in this case, the identity of the shooter is disputed, under Jackson v. Virginia , the State must negate any reasonable probability of misidentification. State v. Stewart , 2004-2219, p. 6 (La. App. 4 Cir. 6/29/05), 909 So.2d 636, 639(citations omitted). Accordingly, the reliability of an identification is assessed under the five factors put forth in Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) : (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Id. (citation omitted).

Even where there is no physical evidence to link a perpetrator to a crime, in the absence of internal contradictions or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a conviction. Williams, 2011-0414, p. 18, 85 So.3d at 770-71 (citations omitted).

In this case, the jury returned a responsive verdict of attempted manslaughter. La. Rev. Stat. 14:31 provides in pertinent part:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; ...

In turn, La. Rev. Stat. 14:27 defines attempt as:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; ...

Thus, in order to obtain a conviction for attempted manslaughter, the state must prove beyond a reasonable doubt that the defendant possessed the specific intent to kill. As defined by La. Rev. Stat. 14:10(1), specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." It can be "formed in an instant" and may be "inferred from the circumstances surrounding the offense." State v. Cooks, 2011-0342, pp. 10-11 (La. App. 4 Cir. 12/14/11), 81 So.3d 932, 939 (citations omitted). Specific intent need not be proven as fact but may be inferred from the circumstances and the actions of the accused. State v. Everett, 2011-0714, p. 14 (La. 6/13/12), 96 So.3d 605, 619. "A defendant's act of aiming a lethal weapon and discharging it in the direction of his victim supports a finding by the trier of fact that the defendant acted with specific intent to kill." State v. Hoffman , 98-3118, p. 48 (La. 4/11/00), 768 So.2d 542, 585.

Relevant Evidence Adduced at Trial

Officer Nicole Jones, a New Orleans Police Department (NOPD) communications officer, identified State's Exhibit 8 as the recording of the 911 call made by Ms. Moffett on July 13, 2016, reporting the shooting and stating that her son, Will Moffett, an alcoholic with mental problems, had just shot a man in the 800 block of Austerlitz Street.

Jim Huey, the Orleans Parish Sheriff's Department custodian of records of inmate telephone calls, identified State Exhibit 4, a call between the defendant and an unknown family member wherein the defendant denied any involvement in the shooting and stated that his mother's testimony is the only evidence implicating him in the shooting.

Ms. Moffett, the defendant's mother, testified that on February 13, 2016, the defendant had just returned to live with her at 813 Austerlitz Street after having been previously put out of her house because of his drinking. She related that she had been romantically involved with the victim but the relationship ended in September 2015, when Mr. Slan moved from the neighborhood. They remained friends, however, and on the evening of February 13, 2016, he stopped by her home to show her his truck. While they were talking, the defendant approached, told her to move and then pushed her aside. As she fell backwards, she heard a gunshot but could not see the shooter's face because it was dark. When she saw that Mr. Slan had been shot, she called 911. Ms. Moffett could not remember anything that happened after the shooting. Although she recognized her voice on the 911 call played for the jury, she said she could not remember placing the call or what she said. Nor could she remember being interviewed by a detective the night of the shooting. Under cross-examination, Ms. Moffett denied seeing the shooting or the defendant with a gun that night.

NOPD Officer Randolph Daniel testified that after being dispatched to the shooting on Austerlitz Street to assist the investigation and secure the crime scene, he was sent to University Hospital to assess the victim's condition and speak with him if possible. Officer Daniel was wearing his police issued body camera, which recorded the events at the hospital. Once at the hospital, Officer Daniel learned the victim was in critical condition with seven gunshot wounds. Initially, the victim could not speak to Officer Daniel but subsequently told him that "Will" shot him. Mr. Slan related that he was speaking to Ms. Moffett when her son walked up, mumbled something to him, and then shot him. Officer Daniel identified State's Exhibit 9 as the body camera recording of his interview of the victim at University Hospital the night of the shooting.

Detective Michael Poluikis testified that when he arrived at the shooting scene, he found Mr. Slan unresponsive on the ground with bloody clothing and a spent bullet next to him. Detective Poluikis identified the crime scene photographs, including pictures of .38 caliber ammunition casings. Detective Poluikis related that he learned from Ms. Moffett that she was speaking to a friend in front of her house when her son, who had been sitting on the porch, walked over to the victim, mumbled something, shoved her aside and then shot the victim. The detective noted that the lighting was good in the area and that Ms. Moffett gave him the defendant's name, date of birth and identified him as the shooter. Detective Poluikis related that about thirty minutes after the shooting, the defendant returned to the scene where he was handcuffed and arrested. The defendant protested his innocence and requested that his hands be tested for gunshot residue. The testing proved negative. As Detective Poluikis did not have a body camera on at the scene, he employed the use of another officer's body camera to record his (Poluikis') actions at the scene.

Detective Poluikis, while wearing a body camera, spoke to the victim at the hospital late on the night of the shooting and, at that time, Mr. Slan identified the defendant as the shooter. In addition, the detective testified the victim identified the defendant on the night of the shooting from a single confirmation photograph.

Mr. Slan, the victim, testified that the defendant shot him seven times. He knew the defendant through his mother, Ms. Moffett, with whom the victim had previously been involved. Mr. Slan insisted he had a good relationship with the defendant although he let the defendant know he did not appreciate the way the defendant spoke to his own mother. Mr. Slan denied ever threatening the defendant. Mr. Slan recalled that on the evening of the shooting, he was in his old neighborhood visiting with a friend when Ms. Moffett approached and they began to converse about his truck. A few moments later, the defendant walked past them and sat on his mother's front porch. After a few minutes, the defendant went inside the house briefly and then returned to sitting on the porch. As Mr. Slan was concluding his conversation with Ms. Moffett, the defendant walked off porch and across the street. The next thing Mr. Slan knew, the defendant walked up with his hand behind his back, stood about six feet from the victim and asked him: "Now what that was you told me?" The defendant then accused Mr. Slan of having told him to keep away from the area. Mr. Slan denied the accusation and the defendant shoved his mother aside, came up with a gun, and shot the victim. The defendant ran. Mr. Slan remembered the police arriving and being transported to the hospital. He also recalled speaking with a detective while at the hospital and identifying a picture of the defendant as the man who shot him earlier in the evening.

The defendant testified, denying that he shot Mr. Slan. The defendant asserted that his only relationship with Mr. Slan consisted of seeing one another in the neighborhood and Mr. Slan dating his mother. The defendant denied ever threatening or attacking the victim. According to the defendant, he was sitting on his mother's porch the night of the shooting incident when Mr. Slan drove up in his truck. The defendant called to his mother, who came outside and spoke with Mr. Slan. As his mother and Mr. Slan were speaking, the defendant saw a suspicious car in the neighborhood. The car rounded the corner onto Austerlitz Street and stopped. A man in a hooded sweatshirt jumped from the car and ran toward the defendant's mother's house. The defendant exited the porch to the sidewalk. The man in the hooded sweatshirt ran up saying something about a quarter. The defendant called to his mother to watch out and then pushed her aside. At the sound of gunshots, the defendant had a flashback to when he was shot nine times by an AK-47 and ran from the scene to a friend's house. Shortly after the shooting, a neighbor called and told him the police were looking for him, so he returned to the scene. He was informed after he was arrested that his mother had identified him as the shooter.

Discussion

Viewing the evidence in this case in the light most favorable to the State, it was not unreasonable for the jury conclude that the defendant shot the victim with the specific intent to kill or to inflict great bodily harm on him. Moreover, the victim identified the defendant as the shooter shortly after the incident in the hospital where he was receiving medical treatment for seven gunshot wounds. The victim testified the defendant was no more than seven to nine feet away when he fired the seven shots and that he knew the defendant through his romantic relationship with the defendant's mother and had, thus, conversed and socialized with the defendant on previous occasions, thereby satisfying the Manson v. Brathwaite, supra, criteria. The defendant's mother, Ms. Moffett, initially identified the defendant as the person who shot the victim, going so far as to pronounce and spell the defendant's name for the 911 operator. Detective Poluikis' body camera footage shows that the victim identified the defendant at the hospital on the night of the shooting without any prompting from the police when Detective Poluikis spoke to him in the emergency room immediately after the shooting. In addition, although the incident occurred in the early evening, both the victim and Detective Poluikis noted that it was not dark enough to obscure vision of the shooter or the scene.

It is axiomatic that credibility assessments are within the province of the jury which has great discretion in deciding whether to believe or reject a witness's testimony. Based upon evidence presented to the jury in this case, we do not find that the jury abused its discretion in accepting the testimony of the State's witnesses and, accordingly, this assignment of error is without merit.

Conclusion

The defendant's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


source: Caselaw Access Project

author: Judge Rosemary Ledet

license: Public Domain

text:
    Shawn MCNEIL v. Jason TROSCLAIR, et al.
    NO. 2018-CA-0124
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 20, 2018
    John D. Sileo, Casey W. Moll, LAW OFFICE OF JOHN D. SILEO, LLC, 320 N. Carrollton Avenue, Suite 200, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Amy Groves Lowe, TAYLOR, PORTER, BROOKS & PHILLIPS, L.L.P., 450 Florida Street, 8th Floor, P.O. Box 2471, Baton Rouge, LA 70821-2471, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany G. Chase )
   Judge Rosemary Ledet

This is a personal injury suit arising out of a collision between a Regional Transit Authority ("RTA") bus and a truck. Shawn McNeil, a seated passenger on the bus, commenced this suit against, among others, Jason Trosclair, the driver of the truck. Following a bench trial, the trial court rendered judgment dismissing Ms. McNeil's claims against all the defendants with prejudice. From this judgment, Ms. McNeil appeals. For the reasons that follow, we remand this case to the trial court for completion of the record.

INCOMPLETE RECORD

When the record was lodged with this court, none of the exhibits Ms. McNeil introduced at trial were included in the record. On June 6, 2018, this court ordered that Ms. McNeil show cause why the pending appeal should not be remanded to the trial court for correction of the record pursuant to La. C.C.P. art. 2161. In her response, Ms. McNeil acknowledged that her trial exhibits are not in the trial court record.

Complying with the mandate in La. C.C.P. art. 2161 that an appeal is not to be dismissed because of an incomplete record, we remand this case to the trial court for completion of the record.

REMANDED WITH INSTRUCTIONS

      La. C.C.P. art. 2161 provides, in pertinent part, that "[a]n appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record."


author: KEATY, Judge AMY, J., dissenting.

text:
    Joey HIGGINBOTHAM v. USAGENCIES CASUALTY INSURANCE COMPANY, INC., et al.
    Joey Higginbotham v. USAgencies Casualty Insurance Company, Inc., et al.
    17-491 17-497
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2018
    Michael D. Peytavin, John J. Danna, Jr., William D. Dunn, Jr., Gaudry, Ranson, Higgins & Gremillion, L.L.C., 401 Whitney Avenue, Suite 500, Gretna, Louisiana 70056, (504) 362-2466, Counsel for Defendant/Appellant: Zurich American Insurance Company
    Miles A. Matt, Law Offices of Matt & Allen, L.L.C., Post Office Box 4405, Lafayette, Louisiana 70502-4405, (337) 237-1000, Counsel for Plaintiff/Appellee: Joey Higginbotham
    James M. Dill, The Dill Firm, APLC, Post Office Box 3324, Lafayette, Louisiana 70502-3324, (337) 261-1408, Counsel for Defendant/Appellant: Zurich American Insurance Company
    Jennifer L. Simmons, Melchiode, Marks, King, LLC, 639 Loyola Avenue, Suite 2550, New Orleans, Louisiana 70113, (504) 336-2880, Counsel for Intervenor/Appellee: Zurich American Insurance Company
    Bradley J. Gadel, 728 Jackson Street, Alexandria, Louisiana 71301, (318) 448-4406, Counsel for Intervenor/Appellee: Louisiana Insurance Guaranty Association
    Donald Mayeux, Post Office Drawer 1460, Eunice, Louisiana 70535, (337) 457-9610, Counsel for Defendant/Appellee: Eddie J. Edmond
    Court composed of Sylvia R. Cooks, Marc T. Amy, Shannon J. Gremillion, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge

An employee of the insured transportation company was injured in an automobile accident and sought recovery under the uninsured/underinsured (UM) provisions of his employer's trucker's liability policy. The insurer denied the plaintiff's claims, alleging that its insured waived UM coverage. The plaintiff challenged the validity of the UM waiver. The issue of UM coverage was presented to the trial court in cross-motions for summary judgment. The trial court granted the motion for partial summary judgment filed by the plaintiff and denied the motion for summary judgment filed by the insurer, finding that the policy provided UM coverage for the plaintiff's damages. The insurer filed an appeal and an application for supervisory writs challenging that judgment, which this court consolidated. For the following reasons, we affirm.

Factual and Procedural History

The plaintiff, Joey Higginbotham, was employed as a truck driver for Dupre Logistics, LLC (Dupre), when he was involved in a January 25, 2013 on-the-job automobile accident. He filed the underlying action for damages against the other driver involved in the accident, as well as his insurer, USAgencies Casualty Insurance Company. Later, the plaintiff filed a supplemental and amending petition naming Dupre's trucker's liability insurer, Zurich American Insurance Company (Zurich) as a defendant, seeking UM coverage under the policy it issued to Dupre. In its answer to the amended petition, Zurich admitted that it issued trucker's liability insurance to Dupre, but denied coverage for the plaintiff's claims based upon its assertion that Dupre waived UM coverage.

Zurich filed a motion for summary judgment seeking dismissal of the plaintiff's claims against it, alleging that Dupre waived UM coverage in the initial policy Zurich issued to it in October 2005, TRK 5916139-00, and in the renewal policies issued to it over the next six years. Thereafter, the plaintiff moved for partial summary judgment seeking a declaration that the Zurich policy afforded UM coverage for his claims because the purported waiver did not comply with Louisiana law.

At the close of a contradictory hearing, the trial court issued a ruling from the bench denying Zurich's motion for summary judgment and granting the motion for partial summary judgment filed by the plaintiff. In oral reasons for ruling given at that time, the trial court concluded that the 2005 UM form and the subsequent UM forms executed in conjunction with the renewal policies issued by Zurich were not valid for the reasons stated by this court in Johnson v. Government Employees Insurance Co. , 07-1391 (La.App. 3 Cir. 4/9/08), 980 So.2d 870, writ denied , 08-1031 (La. 8/29/08), 989 So.2d 105. The trial court explained that Zurich's insertion of "N/A" on the blanks of the UM forms "depriv[ed] its insureds of the choice, making the rejection forms not clear and unmistakable from the face of the rejection form limiting the choices available to the insured." The trial court later signed a "Final Judgment on Partial Summary Judgment" in conformity with its oral reasons for judgment. Therein, the trial court decreed that:

[T]he policy of insurance issued by Zurich American Insurance Company to Dupre Logistics, LLC, policy number TRK 5916139-07, for the period of October 1, 2012 to October 1, 2013 provides uninsured/underinsured motorist coverage for damages sustained by Joey Higginbotham arising out of the accident occurring on or about 25 January, 2013 giving rise to claims in the captioned and numbered cause.

The trial court designated the judgment as final and appealable pursuant to La.Code Civ.P. art. 1915.

Zurich now appeals, asserting that:

A. The Court Erred in Granting Plaintiff Summary Judgment And Declaring UM Coverage Exists When Dupre Executed Six UM Waivers And Verified It Did Not Want UM Coverage.
B. The Court Erred In Holding An Incomplete Waiver For A Seventh Renewal Voids Six Prior UM Waivers As Limits Did Not Change[.]
C. If The Judgment Is Improperly Designated A "Final Judgment" Under Art. 1915 It Is Reviewable By Supervisory Writ.

Zurich makes similar arguments in the corresponding writ application it filed regarding the denial of its motion for summary judgment.

Discussion

"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). "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.Code Civ.P. art. 966(A)(3).

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.

La.Code Civ.P. art. 966(D)(1). "A dispute as to the issue of whether, as a matter of law, the language of an insurance policy provides coverage to a party, can be properly resolved within the framework of a motion for summary judgment." Pridgen v. Jones , 556 So.2d 945, 949 (La.App. 3 Cir. 1990). "Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate." Larson v. XYZ Ins. Co. , 16-745, p. 6 (La. 5/3/17), 226 So.3d 412, 416.

While all automobile liability policies delivered or issued for delivery in Louisiana include UM coverage, see La.R.S. 22:1295(1)(a), that statute provides the following caveat:

(i) [H]owever, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section....
(ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage....

The supreme court has explained that the object of UM coverage is to provide full recovery for automobile accident victims who sustain damages by a tortfeasor who lacks adequate liability insurance.

Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544. It described the public policy underlying the UM coverage provision as a strong one and explained that "[t]he liberal construction given the UM statute requires the statutory exceptions to coverage be interpreted strictly." Id. at 547. The Duncan court noted that "the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits," and that "[a]ny exclusion from coverage in an insurance policy must be clear and unmistakable ." Id. (Emphasis added).

Reviewing the UM form created by the Louisiana Commissioner of Insurance for an insured's waiver of UM coverage, the supreme court explained that the following six tasks must occur:

(1) initialing the selection or rejection of coverage chosen ; (2) if limits lower than the policy limits are chosen ..., then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

Duncan , 950 So.2d at 551 (emphasis added).

In Johnson v. Government Employees Insurance Co. , 05-476 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, an insured, who was injured in an automobile accident, settled his claims against the other driver and her insurer, leaving for resolution his claim for UM coverage against his own automobile liability insurer, American Century Casualty Company (ACCC). The trial court granted summary judgment in favor of the plaintiff, and on ACCC's appeal to this court, we reversed and remanded, finding that genuine issues of material fact remained regarding whether the plaintiff validly rejected UM coverage. Following a trial on the merits, the trial court ruled in favor of the plaintiff based on its finding that the plaintiff "did not make a meaningful rejection of UM Coverage." Johnson , 980 So.2d at 872. ACCC again appealed, and upon review of that judgment, this court noted:

Duncan [, 950 So.2d 544,] and Gray [v. American National Property & Casualty Co. , 07-1670 (La. 2/26/08), 977 So.2d 839,] mandate that the form must be properly completed prior to any discussion regarding whether the insured knowingly and consciously waived UM coverage . The formalities mandated by statute and jurisprudence are not merely procedural exercises or "rote" tasks, but rather are substantive requirements which must be properly completed in order to effectuate a valid waiver of UM coverage. Gray at p. 9, 977 So.2d at 845. In Gray , the supreme court stated:
[T]his court distinguished failures to comply with the UM selection form requirement established by the Insurance Commissioner from other types of clerical errors in insurance contracts that might be subject to reform. The failure to comply with the requirements for confecting a valid UM selection form are not subject to reformation.
Gray at p. 15, 977 So.2d at 849.

Id. at 875-76 (emphasis added). Upon application of the law to the evidence presented, this court stated:

[W]e find the insurer failed to comply with the first formality which requires that the insured chose between types of UM coverage and outright rejection of all UM coverage. Compliance with this formality ensures that the insured by his own volition read and reviewed each available selection and consciously and knowingly made a decision by the placement of his initials on the blank reflecting his choice. Mr. Johnson was not given any choice or option because the form had only one available selection when it was presented to him. The only blank which was left open, which Mr. Johnson was asked to initial, was the selection which stated: "I do not want UMBI Coverage." All other blanks for the selection of UM coverage were pre-filled and marked "N/A" by Ms. Bass prior to the presentation of the form to Mr. Johnson. He initialed the only blank left open and signed the form.... The "N/A" designation was typed into the blanks which proves the blanks were filled in ahead of time and printed out in anticipation of Mr. Johnson's arrival shortly after closing. There is not a scintilla of evidence to suggest the insured had access to the form before it was presented to him or otherwise placed the computer generated "N/A" in the blank spaces before the form was signed. This evidence supports Mr. Johnson's testimony that he arrived at the agency with his check and was handed a pre-printed form to sign which left him with no option except to reject UM coverage. He also testified there was no discussion between him and Ms. Bass regarding his selection. He did testify, which testimony was not refuted, that he told Ms. Bass over the telephone he wanted "full coverage." We have examined the evidence presented and find there is nothing to indicate Mr. Johnson made a conscious choice among several options. While in Gray a post-filled form was found defective, we find in this case, a form which is pre-filled by the agent leaving the insured with no choice but to reject UM coverage is equally defective .

Id. at 876 (emphasis added). That being the case, this court "affirm[ed] the decision of the trial court finding the insurer failed to establish a waiver of UM coverage." Id.

Prior to considering the parties' arguments, we note that although both parties reference the UM forms completed in relation to the renewals, the parties' arguments chiefly pertain to the foundational consideration of the waiver completed at the time of the issuance of the original policy in 2005 and that form was focused on by the trial court. We, too, consider this the relevant point of inquiry as La.R.S. 22:1295(1)(a)(ii) provides, in part:

The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.

Accordingly, we turn to consideration of that original UM form pretermitting consideration of the parties' arguments regarding the relevance and validity of the subsequent UM forms.

Does the Zurich Policy Provide UM Coverage?

In support of its argument that its policy did not provide UM coverage for the plaintiff's accident, Zurich attached to its motion for summary judgment the affidavits of its Underwriting Manager, Jeffrey Benzin, and Dupre's Administrative Manager, Mr. Coussan. In his affidavit, Mr. Coussan stated that, as the person who procured the trucker's liability policies for Dupre, he consistently told the insurance brokers/agents whom he did business with that Dupre did not want to pay for UM coverage for the trucks it owned and operated. Mr. Coussan confirmed that when he procured the initial policy at issue in this case, Dupre was aware that it "had the option of selecting UMBI[ ] insurance coverage at the same level as the liability limits or at a lower level or at a minimum limit or rejecting UMBI insurance coverage totally[.]" He explained that after he told the Zurich representative that Dupre did not want UM coverage, he was given "Louisiana UMBI Coverage Forms with the 'N/A' and/or 'Not Available' inserted from the insurer." With regard to each form, Mr. Coussan said that he initialed the option rejecting UM coverage. In his affidavit, Mr. Benzin explained that he prepared UM forms covering the times applicable to this case to reflect Dupre's wish to not have UM coverage by entering "N/A" in the blanks next to the options that allowed for selection of some type of UM coverage. Moreover, pointing to the first circuit's decision in Hughes v. Zurich American Insurance Co. , 13-2167 (La.App. 1 Cir. 8/20/14), 153 So.3d 477, writ denied , 14-2220 (La. 1/9/15), 157 So.3d 1107, Zurich asserted in its motion for summary judgment that "[a] published opinion in an earlier case confirms [that] Dupre's employees do not have UM coverage under the Zurich American trucker's policy."

In opposition to Zurich's motion and support of its motion for partial summary judgment, the plaintiff asserted that the initial UM form and all of the forms signed by Dupre in the renewal policies covering the time periods applicable to this case are facially defective because of this court's holding in Johnson , 980 So.2d 870, which he asserts is directly on point. The plaintiff submitted that

[T]he mental or express intent or desire of Dupre to select or reject coverage, of Gallagher to facilitate UM coverage, and of Zurich to provide UM coverage, is of absolutely no relevance, no materiality and can not be considered by this Court until and unless Zurich shows by "clear and unmistakable" evidence that the UM form of such policy is valid. Then, and only then, can Zurich avail itself to the "rebuttable presumption" afforded by La.R.S. 22:1295.

In its oral reasons for ruling, the trial court in this matter concluded that the 2005 form was invalid based on this court's holding in Johnson , 980 So.2d 870. Although it acknowledged the first circuit cases relied upon by Zurich, the trial court remarked, "With all due respect to my brethren on the First Circuit, I feel that the Third Circuit has the proper analysis and that the First Circuit is skipping the formalities of form required on these UM waivers." The trial court then quoted the Duncan court's pronouncement that "[t]he expression of a desire not to have UM coverage, however clear, does not necessarily constitute a valid rejection if the expression of rejection does not meet the formal requirements of law." See Duncan , 950 So.2d at 553 (quoting Cohn v. State Farm Mut. Auto. Ins. Co. , 03-2820 (La.App. 1 Cir. 2/11/05), 895 So.2d 600, writ denied , 05-1000 (La. 6/17/05), 904 So.2d 705 ). In doing so, the trial court remarked that it found it interesting that the supreme court "quoted a First Circuit case for [the foregoing] proposition." Thereafter, the trial court stated:

Again, I can't speculate or read the minds of those judges that rendered those decisions in the First Circuit. But I believe that they are not properly addressing the significance of the insertion of the letters "N/A" into the blanks. Rather, they are immediately going to the supporting documents, affidavits, depositions, et cetera, and discerning the parties' intent to then explain the "N/A" rather than following the clear mandates of Gray and Duncan and cases like Johnson that say, "Don't look past the form, look at the form first." On the form, the very first requirement-the first of the six (6) that were given to us by Duncan and Gray is that number one, the insured must initial the selection or rejection chosen, chosen, to indicate that the decision was made by the insured. As I said earlier, I feel that the approach or the analysis by the Third Circuit was correct.

After having completed a de novo review of the parties' cross-motions for summary judgment, we are convinced that the plaintiff met his burden of proving entitlement to partial summary judgment in his favor. The most telling evidence that supports our finding is the following pre-printed language on the original UM form, part of which we bold for emphasis: "(Economic-only UMBI Coverage may not be available from your insurance company. In this case, your company will have marked options 3 and 4 below as "Not Available .")." Thereafter, "N/A" was typed on the four blanks that include some type of UM coverage. Thus, it is preposterous for Zurich to suggest that the pre-printed UM form that it presented to Dupre made Dupre aware of coverage options that the form said were not available. Moreover, as the plaintiff correctly points out, the 2005 UM form is facially invalid, and Dupre's intent to waive UM coverage is irrelevant and cannot cure any defect in that form. Zurich's attempts to distinguish this matter from Johnson, 980 So.2d 870, are unpersuasive. The intent of the parties is quite simply irrelevant where a UM form does not meet the requirements of Louisiana law, which the supreme court laid out in Duncan and which this court correctly applied in Johnson . Accordingly, we conclude that the trial court did not err in denying Zurich's motion for summary judgment, in granting the plaintiff's motion for partial summary judgment, and in holding that the trucker's liability policy that Zurich issued to Dupre provides UM coverage for the damages suffered by the plaintiff in the January 25, 2013 accident. Thus, Zurich's first assignment of error lacks merit, and we need not discuss its remaining assigned errors or the errors asserted in its writ application as they are moot.

DECREE

For the foregoing reasons, the trial court's judgment is affirmed in its entirety.

Costs of this proceeding are assessed to the defendant-appellant.

AFFIRMED. WRIT DENIED.

Amy, J., dissents and assigns reasons.

Gremillion, J., dissents for the reasons provided by Judge Amy.

AMY, J., dissenting.

In my opinion, the trial court erred in basing its ruling on Johnson v. Gov't Emps. Ins. Co. , 07-1391 (La.App. 3 Cir. 4/9/08), 980 So.2d 870, writ denied , 08-1031 (La. 8/29/08), 989 So.2d 105.

First, and although not addressed by either the trial court or the parties, I note that Johnson , 980 So.2d 870, was presented through a lead opinion, with two members of the three-judge panel concurring in the result. It seems to me that the trial court should have factored that into its consideration of applicability to this case. See Chaney v. Travelers Ins. Co. , 259 La. 1, pp. 10-11, 249 So.2d 181, 184 (1971) (wherein the supreme court concluded that the first circuit court of appeal had erroneously considered itself bound by a prior supreme court decision rendered by a plurality and explained, instead, that: "There is, in fact, no majority opinion by this Court ... on the reasons for judgment, only on the result reached. One justice concurred in the result, meaning he did not subscribe to the language or rationale of the opinion, only the result, while three other members of the court dissented from that portion of the opinion [addressing an issue under review.] ). See also Williams v. The Library , 12-0220, p. 5 (La.App. 1 Cir. 11/2/12), 111 So.3d 356, 360 (wherein the first circuit recognized that a supreme court plurality opinion was "of limited precedential value."); Citizen Comm. for Better Law Enforcement v. City of Lafayette , 95-1630, p. 8 (La.App. 3 Cir. 11/20/96), 685 So.2d 289, 293 (wherein a panel of this court found that a plurality opinion of the supreme court was "of little value as precedent and should properly be limited to the facts of that case only"), writ denied , 96-3087 (La. 2/7/97), 688 So.2d 507. In fact, the fourth circuit has considered the "differing reasons" offered by the panel members in Johnson , 980 So.2d 870, in its consideration of the applicability of that case to the matter before it. See Rapalo-Alfaro v. Lee , 15-0209, p. 18 (La.App. 4 Cir. 8/12/15), 173 So.3d 1174, 1184.

Additionally, I find this matter factually distinguishable from Johnson , 980 So.2d 870. Significantly, the plaintiff in Johnson testified at trial that he advised his insurance agent that "he wanted 'full coverage' on his vehicle." Id. at 872. In turn, the agent explained that, although she did not recall the specific conversation, such a statement "would have meant to her the inclusion of insured motorist coverage." Id. at 872-73. Yet, when the plaintiff arrived at the insurance agency, the agent presented him with a UM form described as follows:

The form contained a list of five options. Each option was preceded by a blank space for selecting the type of uninsured motorist coverage to be purchased. Of the five options, the only blank which was left open, which [the insured] was asked to initial, was the option which stated: "I do not want the UMBI Coverage." All other blanks for the selection of UM coverage were pre-filled and marked "N/A" by [the agent] prior to presentation of the form to [the insured].

Id. at 873. The lead opinion subsequently explained that there was no evidence suggesting that the insured had access to the form before it was presented to him or that he otherwise placed the computer generated "N/A" on the form. Id. Pointedly, the insured "also testified there was no discussion between him and [the agent] regarding his selection." Id. at 876. Instead, his unrefuted testimony was "that he told [the agent] over the telephone he wanted 'full coverage.' " Id. Thus, the lead opinion indicated that, based upon the evidence presented, "there [was] nothing to indicate [the insured] made a conscious choice among several options." Id.

In this case, affidavit and deposition testimony provide the background details regarding Dupré's communication with Zurich. For example, Mr. Coussan explained in his affidavit that he was "aware that Dupré had the choice and option to select UMBI insurance coverage at the same limits as liability coverage, at lesser limits, at minimum limits, or to reject UMBI insurance coverage altogether." He explained that he had "discussed and communicated with the agents and brokers for Dupré since he became primarily responsible for obtaining the policies of insurance" and that "[h]e ha[d] consistently and repeatedly communicated to the agents and brokers that Dupré does not want UMBI insurance coverage in Louisiana." Mr. Coussan thereafter specifically stated that: "In response to his communications to the agents and brokers that Dupré does not want UMBI insurance coverage in Louisiana he received the attached Louisiana UMBI Coverage Forms with the "N/A" and/or "Not Available" inserted from the insurer ...." Thus, contrary to the situation in Johnson , 980 So.2d 870, in which the plaintiff explained that he wanted "full coverage" and that the pre-filled form was presented to him, the insured in this case communicated its preference for no UM coverage, the insurer responded to that communication, and the insured, in turn, ultimately completed the form to decline coverage.

Furthermore, the plaintiff argues broadly as to the holding of Johnson , 980 So.2d 870, suggesting that the form alone, and not the circumstances of the insurer's placement of "N/A" onto the form, must be considered. The plaintiff suggests that such an inquiry would be one into the party's intent and would thus be contrary to the supreme court's statement that an "insurer cannot rely on the insured's intent to waive UM coverage to cure a defect in the form of the waiver." Duncan v. U.S.A.A. Ins. Co. , 06-363, p. 14 (La. 11/29/06), 950 So.2d 544, 553. By this argument, the plaintiff collapses the concept of intent to waive UM coverage with the circumstances underlying the execution of such a waiver, i.e., the impetus and timing behind the placement of "N/A" onto the form's selections. Importantly, in Johnson , 980 So.2d at 876, the plaintiff "testified there was no discussion between him and [the agent] regarding his selection" other than his explanation over the telephone that "he wanted 'full coverage'."

Thus, in my opinion, the facts of the present case differ, and, in fact, evidence indicates that the insurer's inscription on the form came at the direction of the insured. Thereafter, the insured, via Mr. Coussan, initialed the rejection clause. Given that sequence of events, I find no merit in the plaintiff's contention that Zurich's placement of "N/A" onto certain selections of the initial, 2005 form indicates that it did not give Dupré a choice other than to select the rejection clause.

Instead, the UM form of October 1, 2005, completed in conjunction with the issuance of the original policy, indicates that the tasks described in Duncan , 950 So.2d 544, were completed. As discussed, Mr. Coussan initialed the rejection of coverage. Additionally, the form includes the printed name of the insured and Mr. Coussan, as "authorized Representative of Dupré Transport LLC[,]" signed the form. The subject policy number-TRK

5916139-00-is also included as is the date of "10-1-05". See id.

Thus, under the facts of this case, I find that the subject form indicates an adequate waiver of UM coverage and that, in turn, the trial court erred in entering summary judgment in favor of the plaintiff and rejecting the entry of summary judgment in favor of Zurich. I find that a reversal of each of those rulings is required. For these reasons, I respectfully dissent.

      While there are some workers' compensation aspects to this case, none are relevant to this appeal and writ.

      Zurich does not rely on the UM form dated August 13, 2012, which was signed in conjunction with the policy in effect at the time of the January 25, 2013 accident. That UM form is dated and contains the signature of Dupre's Administrative Manager, Robert Coussan. Zurich does not contest, however, that Mr. Coussan did not initial the rejection selection at the time of its completion.

      We note that while the dates when the opposing motions for summary judgment were filed requires reference to successive versions of La.Code Civ.P. art. 966, the result of this appeal remains the same regardless of which version is applicable.

      Zurich filed a Motion to Supplement and/or Amend its motion for summary judgment in which it attached the 1442 deposition transcripts of Dupre and of Arthur J. Gallagher & Company, Dupre's insurance broker, as well as copies of discovery Zurich sent to the plaintiff and his answers thereto. Because we hold that the intent of the parties is irrelevant to resolution of this matter, such evidence need not be addressed herein.

      In his affidavit, Mr. Coussan abbreviated "Uninsured/Underinsured Motorist Bodily Injury to "UMBI."

      Exhibit A to Mr. Coussan's affidavit was the initial UM form which bore policy number TRK 5916139-00 with a policy period of October 1, 2005 to October 1, 2006. Exhibits B, C, D, E, F, and G were the successive renewal policies that covered the time periods applicable to this case.

      In the policies, that option provided, "I do not want UMBI Coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist."

      See Hughes , 153 So.3d at 477 ; Lee v. Zurich Am. Ins. Co. , 11-875 (La.App. 1 Cir. 12/21/11), 2011 WL 6752550 (unpublished opinion); Walker v. Walker , 10-1865 (La.App. 1 Cir. 5/6/11) (unpublished opinion).


author: AMY, Judge.

text:
    K & J SUPPLY, LLC, et al. v. MULTI-CHEM GROUP, LLC, et al.
    17-992 consolidated with 17-985 17-986 17-987 17-988 17-989 17-990 17-991
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    Richard G. Duplantier, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, Aaron Gauthier
    Edward Paul Landry, 211 East Main Street, New Iberia, LA 70560, (337) 364-7626, COUNSEL FOR PLAINTIFFS/APPELLEES: K & J Supply, LLC, et al.
    L. Clayton Burgess, 605 W. Congress Street, Lafayette, LA 70501, (337) 234-7573, COUNSEL FOR PLAINTIFFS/APPELLEES: K & J Supply, LLC, et al.
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

For the reasons provided in the consolidated appeal of Robert J. Broussard, et al. v. Multi-Chem Group, LLC , 17-985 (La.App. 3 Cir. 7/11/18), --- So.3d ----, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the defendants-appellants, Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, and Aaron Gauthier.

AFFIRMED.


text:
    Nicholas HULIN, et al. v. MULTI-CHEM GROUP, LLC, et al.
    17-986
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    Richard G. Duplantier, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, Aaron Gauthier
    Derriel Carlton McCorvey, 102 Versailles Boulevard, Suite 620, Lafayette, LA 70501, (337) 291-2431, COUNSEL FOR PLAINTIFFS/APPELLEES: Nicholas Hulin, et al.
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

For the reasons provided in the consolidated appeal of Robert J. Broussard, et al. v. Multi-Chem Group, LLC , 17-985 (La.App. 3 Cir. 7/11/18), --- So.3d ----, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the defendants-appellants, Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, and Aaron Gauthier.

AFFIRMED.


text:
    Raymond MARTIN v. MULTI-CHEM GROUP, LLC, et al.
    17-990 consolidated with 17-985 17-986 17-987 17-988 17-989 17-991 17-992
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    Richard G. Duplantier, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, Aaron Gauthier
    Jo Ann Nixon, Glenda August & Assoc., 129 W. Pershing Street, New Iberia, LA 70560, (337) 369-7437, COUNSEL FOR PLAINTIFF/APPELLEE: Raymond Martin
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

For the reasons provided in the consolidated appeal of Robert J. Broussard, et al. v. Multi-Chem Group, LLC , 17-985 (La.App. 3 Cir. 7/11/18), --- So.3d ----, 2018 WL 3374948, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the defendants-appellants, Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, and Aaron Gauthier.

AFFIRMED.


text:
    Nicole GROS, et al. v. MULTI-CHEM GROUP, LLC, et al.
    17-987
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    Richard G. Duplantier, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, Aaron Gauthier
    Catherine Hotard, 1618 Terrace Highway # Q, Broussard, LA 70518, IN PROPER PERSON
    Randall Romero, 1616 Tanglewood Drive, New Iberia, LA 70560, IN PROPER PERSON
    Desmond Wagner, 7500 Emmett Lowry Expressway # 1004, Texas City, TX 77591, IN PROPER PERSON
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

For the reasons provided in the consolidated appeal of Robert J. Broussard, et al. v. Multi-Chem Group, LLC , 17-985 (La.App. 3 Cir. 7/11/18), --- So.3d ----, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the defendants-appellants, Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, and Aaron Gauthier.

AFFIRMED.


text:
    Jeanna SCHWING, et al. v. MULTI-CHEM GROUP, LLC, et al.
    17-991 consolidated with 17-985 17-986 17-987 17-988 17-989 17-990 17-992
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    Richard G. Duplantier, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, Aaron Gauthier
    Jonathan Beauregard Andry, The Andry Law Firm, 610 Baronne Street, New Orleans, LA 70113, (504) 525-5535, COUNSEL FOR PLAINTIFFS/APPELLEES: Jeanna Schwing, Marie Louise Schwing
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

For the reasons provided in the consolidated appeal of Robert J. Broussard, et al. v. Multi-Chem Group, LLC , 17-985 (La.App. 3 Cir. 7/11/18), --- So.3d ----, 2018 WL 3374948, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the defendants-appellants, Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, and Aaron Gauthier.

AFFIRMED.


text:
    Rickey MERGIST, et al. v. MULTI-CHEM GROUP, LLC, et al.
    17-989
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    Richard G. Duplantier, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, Aaron Gauthier
    Derriel Carlton McCorvey, 102 Versailles Boulevard, Suite 620, Lafayette, LA 70501, (337) 291-2431, COUNSEL FOR PLAINTIFF/APPELLEE: Rickey Mergist
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

For the reasons provided in the consolidated appeal of Robert J. Broussard, et al. v. Multi-Chem Group, LLC , 17-985 (La.App. 3 Cir. 7/11/18), --- So.3d ----, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the defendants-appellants, Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, and Aaron Gauthier.

AFFIRMED.