author: MOORE, J.

text:
    In the Interest of P.R.R., JR.
    No. 45,405-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Justin H. Courtney, for Appellant.
    Charles Rex Scott II, District Attorney, Brian H. Barber, Natalie R. Howell, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

hThe juvenile, PRR, appeals a judgment adjudicating him a delinquent for committing the offense of indecent behavior with juveniles, La. R.S. 14:81, involving his female three-year-old cousin, PR. For the reasons expressed, we affirm.

Factual Background

On the afternoon of February 6, 2007, Betty Hodges took three of her children to a fish fry at their “Pop Johnny’s” house on Hwy. 71 in Ida, a town in north Caddo Parish. The three children were her little girl, PR (3 years and 11 months old), and her two boys, RH and ZM (ages 6 and 8, respectively); Pop Johnny is the children’s uncle. Across the highway lived the children’s “granny,” with their cousin, 16-year-old PRR, and his sister, Heather. Granny is also PRR’s grandmother.

At some point, the three children wanted to visit their granny, so PRR came and walked them across the road. (Betty thought that Heather also walked them to Granny’s.) A while later, PRR walked them back to Pop Johnny’s, but the two little boys ran ahead, leaving PRR and PR alone together for a few moments. Betty saw nothing, as she was inside Pop Johnny’s trailer nursing a toothache. Heather testified that she was standing out by the road, waiting on a ride to church; PRR and PR were always within her sight, and she saw nothing untoward happen between them. A short while later, Betty took the children back to their home in Oil City, and nobody mentioned that anything had happened.

The following evening, according to Betty, PR “brought up the differences in pee-pees,” meaning men’s and women’s private parts. When |?Betty asked why she was asking, PR replied that PRR “stuck his peepee in me” and he “had a big one.” Betty then recalled that PR’s clothes had smelled unusually bad the previous day, even though the children were not playing in the nearby creek. Betty testified that the next day, she took PR to eight different doctors, the first seven of whom (inexplicably) refused to see her; only the final one, at the Cara Center at Christus Schumpert Health Center, examined her. She also called the police that day, initially telling a deputy that both of PRR’s parents were in prison for child molestation. She admitted that this accusation was false.

Deputy Dorothy Brooks confirmed that she received a call on February 9, in which Betty reported that PR said her vagina was hurting. Dep. Brooks immediately arranged for the three children to be interviewed at Gingerbread House.

In the interview, which was videotaped, PR told the social worker that PR “was sticking his peepee in me,” that this occurred behind a tree at Pop Johnny’s, and that PRR lived with granny. The two boys told the social worker that they had run ahead and did not see anything happen, although ZM said he saw PRR holding PR by the hand as they came from behind a tree on granny’s side of the road. Both boys stated that PRR had never touched them in a sexual way.

Dr. Jennifer Rodriguez, a pediatrician at LSU HSC and the Cara Center, performed a colposcopic exam and found redness of PR’s labia majora and minora. This could be ascribed to various causes, such as urine, but Dr. Rodriguez suspected sexual abuse because PR told her that PRR |s“put his peepee on me.” While the child’s hymen and anus were intact, the doctor wrote that her symptoms were “consistent with the abuse if recent but not diagnostic of [it].”

Dep. Brooks testified that once she determined that PRR was 16 and PR only 3 years old, she recommended a charge of aggravated rape. Over a year later, in August 2009, the state filed the instant petition charging PRR with indecent behavior with juveniles.

At trial in November 2009, the state’s witnesses testified as outlined above. PRR’s sister, Heather, testified in his defense. While she agreed that PR was alone with PRR for two or three minutes, she (Heather) insisted that she could see them the whole time and nothing happened. Heather testified that PR wet her pants often, although Betty insisted the child had been potty trained since the age of 12 months. Heather also testified that Betty and her husband, Jason, regularly went to Pop Johnny’s trailer to smoke marijuana together, but Betty maintained that nothing like this had happened in at least the last 10 years.

PRR recently joined the Marines and was stationed at Camp LeJeune, North Carolina. He waived his rights and testified that he spent most of the afternoon of the fish fry in his bedroom at granny’s house, playing on his PlayStation, feeling glum because he had broken up with a girlfriend just the day before. However, the three kids came over for about 20 minutes, after which he walked them back across the highway, holding PR by the hand. On cross-examination, he admitted that he initially told Dep. Brooks that he walked the kids across the highway both to and from granny’s house, |4and that he spent some time outside with them.

Action of the Juvenile Court

The court ruled from the bench that PR’s recorded statement at Gingerbread House was “highly credible,” with the “extremely articulate” victim supplying details “without prompting,” leaving the court no doubt but that the incident occurred. The court noted that the credibility of PR’s mother was challenged, but not in a manner to undermine the victim’s account of the incident. Specifically, the court found no motive on Betty’s part to manufacture charges and frame PRR. The court restated the medical findings, ultimately accepting Dr. Rodriguez’s conclusion that the redness was consistent with recent sexual abuse, though not diagnostic of it. The court dismissed Heather’s testimony as “almost too adamant” and “almost rehearsed” for an incident occurring two years earlier, and tinged with a possible motive to help her brother; the court also noted that Pop Johnny was not called to corroborate her or PRR. Finally, the court rejected PRR’s testimony as inconsistent with his statement to Dep. Brooks just days after the event, as well as with the recorded interviews with PR, RH and ZM. Finding the incident occurred just as PR alleged, the court adjudicated PRR delinquent.

After a dispositional hearing in December 2009, the court committed PRR to the Office of Juvenile Justice until his 21st birthday with a recommendation for secure care. This appeal followed.

| ⅛Discussion

By one assignment of error, PRR urges the evidence was insufficient to find that he committed the offense of indecent behavior with juveniles. He contends that the medical evidence was inconclusive, the victim’s testimony was not as unprompted and credible as the juvenile court found, and his sister completely corroborated the fact that he did nothing to PR.

The state responds that the evidence was sufficient since medical testimony is not required and victim’s account was found to be credible. The state does not address PRR’s trial testimony or the contention that it was corroborated by his sister.

The appellate review of juvenile cases extends to both law and facts. La. Const. Art. 5, § 10. All rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana apply to juvenile court proceedings. La. Ch. C. art. 808. In delinquency cases, the state’s burden of proof beyond a reasonable doubt is no less strenuous than the burden of proof required in a criminal proceeding against an adult. La. Ch. C. art. 883; State ex rel. DPB, 2002-1742 (La.5/20/03), 846 So.2d 753; State In Int. of DJ, 29,474 (La.App. 2 Cir. 4/2/97), 691 So.2d 839.

The standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State In Int. of DJ, supra. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Marshall, 2004-3139 (La.11/29/06), 943 So.2d 1 362; State In Int. of KMT, 44,731 (La.App. 2 Cir. 8/19/09), 18 So.3d 183. A reviewing court accords great deference to the factfinder’s decision to accept a witness’s testimony in whole or part. State v. Marshall, supra; State In Int. of KMT, supra.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Marshall, supra; State In Int. of KMT, supra. This principle is equally applicable to victims of sexual assault; such testimony alone is sufficient even when the state offers no medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Taylor, 43,901 (La.App. 2 Cir. 2/25/09), 3 So.3d 677, writ denied, 2009-0687 (La.12/11/09), 23 So.3d 911, and citations therein.

As it applies to this case, indecent behavior with juveniles is defined as any lewd or lascivious act upon the person or in the presence of any child under the age of 17, when there is an age difference of greater than two years between the two persons, and with the intention of arousing or gratifying the sexual desires of either person. La. R.S. 14:81 A. A “lewd and lascivious” act means that the person knowingly engaged in “any overt sexual activity performed in the physical proximity of a child.” State v. Interiano, 2003-1760 (La.2/14/04), 868 So.2d 9 (emphasis in original).

On close examination, we agree that the state sufficiently established the essential elements of the crime. In her videotaped statement at Gingerbread House, PR told the social worker that PRR “was sticking his |7peepee in me,” and made consistent statements to her mother, Dep. Brooks and Dr. Rodriguez. We cannot disturb the juvenile court’s decision to accept this portion of her testimony.

At the same time, we are not untroubled by other aspects of the case, ably argued by PRR in brief. For example, PR told the social worker that the offense occurred while she was “sitting up” and PRR was “in front of me,” a physical configuration that is hard to imagine. PR initially told the social worker that she did not see PRR’s peepee, but then in response to a leading question, she agreed that she did; this cannot be the unprompted testimony cited by the juvenile court. Then, when the social worker asked if anything came out of PRR’s peepee, PR said it was “black,” which simply does not describe semen. However, we must defer to the juvenile court’s assessment of credibility, ascribing these fairly serious inconsistencies to the three-year-old’s lack of experience in expressing such things. We also note that the bulk of PR’s consistent statements to the deputy and the doctor actually came from her mother Betty, who admitted giving deputies false information about PRR in the early phases of the investigation and did not attempt to explain why seven doctors refused to examine PR on February 8. On the cold record, this woman’s conduct and motives appear much more suspect than the juvenile court found, but again we are constrained to defer to the factfinder’s credibility call. Apparently, Betty’s statements to Dr. Rodriguez influenced the doctor’s opinion, as the objective findings were rather equivocal. As noted, however, no medical evidence whatsoever need be adduced to support the requisite factual finding of sexual activity.

|8On the crucial question of whether PRR performed a lewd and lascivious act with the intention of arousing or gratifying his own or the victim’s sexual desires, the juvenile court accepted PR’s statement and we cannot disturb that decision. That statement is sufficient to prove beyond a reasonable doubt that PRR committed the offense of indecent behavior with juveniles. The assignment of error lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the adjudication and disposition are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Tommy McClain, Plaintiffs-Appellants v. Amber BRIDGES, Terry Bridges and American Century Casualty Company, Defendants-Appellees.
    No. 45,162-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Hudson, Potts & Bernstein by: Jan P. Christiansen for Defendant Appellant American Century Casualty Co.

      Armour Law Firm By: Bonita K. Preuett-Armour, for Plaintiffs-Appellees State Farm Mutual Automobile Rebecca Boyett Ins. Co. and Tommy McClain.
    Blanchard, Walker, O’Quin & Roberts by: Paul M. Adkins, Scott R. Wolf, for Defendants-Appellees Amber Bridges and Terry Bridges.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

| Defendant-Appellant, American Century Casualty Company (“American”), is appealing a judgment rendered in favor State Farm Mutual Automobile Insurance Company (“State Farm”) and Tommy McClain. For the reasons discussed below, we affirm the trial court’s ruling.

FACTS

On April 19, 2007, 17-year-old Amber Bridges, who is the daughter of Terry and Donna Bridges, was operating a 2002 Hyundai Sonata on Louisiana Highway 594 in Monroe, Louisiana. Amber called and asked Terry for permission to drive the car to a prom committee meeting for her junior prom. He told her “no” and instructed her to have her mother take her to school. Against her father’s wishes, Amber drove the car anyway.

While en route to the prom committee meeting, Amber was involved in an accident with a 1992 GMC pickup truck owned by Tommy McClain, at the intersection of Millhaven Road and Highway 594, when she attempted to turn left onto Millhaven Road. This was the first time that Amber operated the vehicle on her own without either one of her parents present in the vehicle.

Amber allegedly admitted to police officer Corporal R.D. Crowder that she misjudged the distance of McClain’s truck and proceeded into the intersection where the accident occurred. Amber was issued a citation as a result of this accident.

Amber received her official driver’s license approximately two weeks prior to the accident. Due to her lack of driving experience, Amber only [2had permission to drive the car when Terry or Donna was in the car with her.

The car was owned by her father, Terry, and insured by American through Advanced Planning Insurance Company (“Advanced”). McClain’s vehicle was insured by State Farm.

On November 20, 2006, Terry obtained a policy of automobile liability insurance with American. This was the first time that Advanced placed insurance for Terry with American. At that time, Amber was 16 years old with a driving permit and living in her parents’ household. When Terry signed the application for the insurance, he did not disclose Amber as a resident of the household over the age of 14. He only listed himself and his wife, Donna Bridges. On December 7, 2006, the Hyundai Sonata involved in this accident was added to Terry’s insurance policy.

McClain’s truck was totaled in the accident, and American denied coverage for the liability of Amber. As a result, State Farm paid the fair market value of his loss and towing expenses, totaling $4,272.53. When State Farm paid that amount, McClain subrogated his rights to State Farm to pursue the responsible parties for reimbursement of the amounts paid, as demonstrated by the Conditions Section of State Farm’s policy and by virtue of the Subrogation Receipt signed by McClain.

State Farm and McClain instituted a civil suit for damages against Terry, Amber, and American. On July 15, 2009, a trial on the merits took place. The trial court ruled that Amber was solely at fault for causing the | ^collision, that the damages sustained by McClain totaled $4,522.53, and that American would not be able to void the policy issued to Terry for material misrepresentation. State Farm was awarded $4,272.53 in damages and McClain was awarded $250.00 in damages. American now appeals.

LAW AND DISCUSSION

Intent to Deceive

American asserts two assignments of error in this appeal. In the first assignment, American alleges that the trial court erred in finding that Terry Bridges did not have the intent to deceive American when he completed his application for insurance.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Where two permissible views of evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Willis v. Safeway Insurance Company of Louisiana, 42,665 (La.App. 2 Cir. 10/24/07), 968 So.2d 346; Cole v. State Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. In order to reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes 14 that the finding is clearly wrong. Willis, supra., Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). La. R.S. 22:860, which was formerly cited as La. R.S. 22:619, states:

A. Except as provided in Subsection B of this Section and R.S. 22:1314, and R.S. 22:1315, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it from attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless either one of the following is true as to the applicant’s statement:
(1) The false statement was made with actual intent to deceive.
(2) The false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer under the policy.

A prospective insured has a duty to inform the insurer of all facts which might be used in determining whether the insurance policy will be written. St. Paul Fire and Marine Ins. Co. v. St. Clair, 193 So.2d 821 (La.App. 1st Cir.1966), writ denied, 250 La. 375, 195 So.2d 646 (1967). Pursuant to La. R.S. 22:619, an insurance policy may be voided if (1) the insured made a false statement in the insurance application, (2) the false statement was material, and (3) it was made with the intent to deceive. West v. Safeway Ins. Co. of Louisiana, 42,028 (La.App. 2 Cir. 3/21/07), 954 So.2d 286. Because of the inherent difficulties of proving intent, strict Uproof of fraud is not required to show intent to deceive. Willis v. Safeway Insurance Company of Louisiana, supra. The insurer claiming the defense of material misrepresentation in order to avoid coverage bears the burden of proving that the insured misrepresented a material fact and did so with the intent to deceive. Cousin v. Page, 372 So.2d 1231 (La.1979). The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations. Willis, supra.

A pertinent portion of American’s policy states:

The policy shall be voided if the insured has lied, with the intent to deceive, on his application and/or when negotiating his insurance contract.

In regard to the first prong discussed in West, supra, American asserts that Terry made a false statement in the insurance application when he did not disclose Amber as a resident of his household when the application asked him to list all residents over the age of 14.

In his sworn statement, Terry stated that he did not recall having a conversation with anybody at Advanced regarding whether Amber should be included in the policy. If an agent by mistake, fraud or negligence inserts erroneous or untrue answers to the questions contained in the application, those representations are not binding upon the insured. Toups v. Equitable Life Assurance, 94-1232 (La.App. 3 Cir. 5/3/95), 657 So.2d 142; Bertrand v. Protective Life Insurance Co., 419 So.2d 1254 (La.App. 3 Cir.1982). In |fithe instant ease, Bernice, the representative of Advanced who actually completed this application for insurance, knew Terry, his background, his children and their ages. Additionally, Bernice had Terry sign this insurance application using an electronic signature pad without presenting the application to Terry for review. An insurance applicant may rely upon and sign an application as completed by the agent and may rely upon the agent’s expertise in interpreting the nature of the information sought by the company he represents. Toups, supra; Economy Auto Salvage, Inc. v. Allstate Ins. Co., 499 So.2d 963 (La.App. 3 Cir.1986), writ denied, 501 So.2d 199 (La.1986). Based on this evidence, we agree that American failed to carry its burden of proof required by the “false statement” prong, as discussed in West, supra. Since Terry did not review the application prior to signing it, American cannot prove that Terry made a false statement in the insurance application when he did not disclose Amber as a resident of his household. Bernice’s failure to list Amber in the policy is not binding upon Terry, who is permitted to rely upon Bernice’s expertise in interpreting the nature of the information sought by American.

In addressing the second prong, American argues that this false statement was material, because had American known that Amber was living in the household and had a learner’s permit, then it would have insisted on Amber being listed as an excluded driver, or it would not have issued the insurance policy.

As stated in the facts section above, Amber was a junior in high school with a learner’s permit at the time that the policy was issued. Amber 17did not drive any of Terry’s vehicles. Terry purchased the Sonata after the policy was issued with the intention of letting Amber drive it during her senior year of high school. When Terry added the Sonata to the policy, he expressed his intentions to allow Amber to drive the vehicle during her senior year of high school to Bernice. Neither Bernice, nor any other representative of Advanced, advised Terry that he needed to add Amber to the policy.

Based on that information, Terry believed that he did not have to list Amber until she actually began driving the car at the beginning of her senior year of high school. This testimony, coupled with the fact that Terry did not even read the application, proves that Terry did not recognize the materiality of his statements.

Discussing the third and final prong from West, supra, American contends that the false statement was made with the intent to deceive because Terry left Amber’s name off of the policy application even though it asked for her to be listed. Terry testified that he did not intend to deceive American by intentionally omitting Amber from the policy, nor did he intend to hide the fact that Amber would be driving the vehicle in the future. Additionally, Terry testified that Amber had never been listed on any policy prior to the one at issue in this ease.

As discussed above, Terry did not even read the application completed by Bernice. Since he did not even read the application, we must question how Terry could have intended to deceive American by withholding information, when he was unaware of what was in the form.

In Darby v. Safeco Insurance Company of America, 545 So.2d 1022 (La.1989), the Darbys were facing a cancellation of their policy because of their son’s two pri- or accidents. Mrs. Darby testified that an insurance agent provided her with options to maintain their coverage. However, the record contained conflicting evidence concerning the discussion between Mrs. Darby and the insurance agent as to whether the agent told Mrs. Darby that her son had to be no longer a resident of her household before Safeco would offer them coverage or whether the son could be an excluded driver. Safeco maintained the policy based on the belief that the son no longer lived in the household, when in reality he never moved out. The supreme court determined that the Darbys believed that Safeco would renew the policy, so long as the son did not drive the cars, and that the Darbys did not intend to deceive Safe-co.

The Darbys believed that so long as they prevented their son from driving their vehicles, they could maintain coverages with Safeco. Similarly, Terry thought that so long as Amber did not drive his vehicles, he did not need to include her in order to maintain coverage. He believed that he only had to list Amber when she would drive one of his vehicles at the beginning of her senior year in high school. We find that Terry’s actions do not constitute the requisite intent to deceive. Without an intent to deceive, American cannot void the policy. This assignment of error is meritless.

| ^Material Misrepresentation

American argues in the second assignment of error that the trial court erred in not rescinding the policy of insurance issued by American to Terry because of a material misrepresentation on the application for insurance. In this assignment of error, American presents the issue of whether the insured has the required “intent to deceive” in order to rescind the policy of insurance, if an insured admits that he knew that he would be charged an increased premium for a policy of insurance if he lists his teenage daughter on the application for insurance and fails to list the teenage daughter on the application.

Bernice prepared the insurance application and instructed Terry to sign without going over any insurance documents. Terry did not read the application and relied on Bernice to prepare it properly. Also, when Terry added the Hyundai Sonata to the policy, he notified Bernice that Amber would be driving the vehicle during her senior year.

As discussed in the first assignment of error, if Bernice by mistake, fraud, or negligence inserted erroneous or untrue answers to the questions contained in the application, those representations are not binding upon Terry. American is responsible for the acts of Bernice, its agent. Terry did admit that he knew that he would be charged an increased premium for a policy of insurance if he listed his teenage daughter on the application for insurance. However, he also stated that he was under the impression that he did not need to add Amber to the policy at the time the policy was issued because she would not be driving any of his vehicles. Bernice failed to tell| l0him otherwise, even when he informed her of his intentions. Terry’s actions do not constitute a material misrepresentation.

For these reasons, we agree with the trial court’s determination that American failed to carry its burden of proof in regard to a material representation and the intent to deceive. This assignment of error is without merit.

Damages

In Amber Bridges’s answer to this appeal, she asserts that no evidence supports the trial court’s award of $4,272.53 for damage to the vehicle owned by McClain. She argues that the trial court awarded damages to American that exceeded the cost to place McClain’s vehicle back into the condition that it was prior to the accident. More specifically, Amber contends that State Farm failed to present proof of an estimate as to the cost to repair the McClain vehicle, testimony with regard to what the total value of the vehicle was prior to the accident, or any evidence of the vehicle’s salvage value.

Alternatively, in the event that this court finds that American met its burden of proof with regard to damages, Amber argues that the amount of damages awarded should be reduced. McClain testified that there were no new parts on his vehicle at the time of the accident. Therefore, Amber asserts that State Farm should not be entitled to damages that would place the McClain vehicle in a better condition than it was prior to the accident.

David Layne, who is employed by State Farm, testified that they use the Mitchell Estimating system when preparing estimates for damaged |nvehicles. Generally, State Farm uses either the new Original Equipment Manufacture Parts (OEM), or recycled Like, Kind, and Quality parts (LKQ), if they’re available when determining what types of parts could possibly be used to repair a vehicle, when preparing an estimate. In this case, Layne testified that State Farm could not locate any used parts for McClain’s truck, which was approximately 15 years old at the time and which was a popular model with rebuild-ers. Therefore, all new OEM parts were used to value the repairs to the truck.

A vehicle is considered a total loss once the cost of repair exceeds 75% of the actual cash value. Layne testified that the damages to McClain’s truck amounted to 125% of the actual cash value, and his vehicle was declared a total loss, valued at $4,375.00. State Farm paid McClain the fair market value of his loss and towing expenses, totaling $4,272.53.

Jerry Allred, American’s adjuster, testified that they estimated the total damages to be $1,900.00. However, Allred failed to fully assess the damages and only used recycled parts.

When comparing State Farm’s estimate of $4,375.00 to American’s estimate of $1,900.00, Layne testified that he believed that State Farm’s estimate more accurately reflected the damages sustained by the vehicle. Since American’s estimate only used recycled parts, which were determined unavailable, and failed to fully assess the damages, we must agree with Layne’s findings. The trial court’s determination that McClain’s vehicle suffered $4,272.53 in damages is affirmed.

| ^CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant, American Century Casualty Company.

AFFIRMED.

      . This total amount includes the $4,272.53 paid by State Farm to McClain and the $250.00 incurred by McClain in the form of his deductible.

      . La. R.S. 22:619 is now cited as La. R.S. 22:860.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Don Wayne DRURY, II, Appellant.
    No. 45,171-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.
    Marti E. Grosjean-Pearson, for Appellant.
    John Schuyler Marvin, District Attorney, Jeffrey Scott DeLaune, John Michael Lawrence, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   DREW, J.

| defendant, Don Drury, entered a guilty plea, with benefit of counsel, to the charge of DWI first offense, La. R.S. 14:98, after being advised of his rights per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

He was sentenced that day on the DWI, after which his lawyer entered a guilty plea on his behalf to an amended charge of operating a vehicle with an expired motor vehicle inspection sticker. La. R.S. 32:53(D). The defendant was then sentenced for the expired MVI sticker.

He now asks this court to review his DWI sentence. We affirm both convictions, as well as the sentence for the expired MVI sticker.

We vacate the illegally excessive DWI sentence and remand for resentencing.

FACTS

On October 18, 2008, Drury was arrested in Bossier City for driving while intoxicated. He submitted to a breath test, which reflected a .104% blood alcohol concentration. On October 29, Drury was charged by bill of information with driving while intoxicated, a violation of La. R.S. 14:98. Attached to the bill of information was a separate citation for speeding, which was later amended on the date of the pleas.

Guilty pleas and sentencings occurred on June 16, 2009. For the expired MVI sticker conviction, Drury was ordered to pay $25 plus costs, or serve five days concurrently with the DWI sentence.

On the DWI, Drury was sentenced:

• to pay a fine of $1,000 plus costs, or in default, to serve 100 days; and
12* to serve 180 days, with 160 of the days suspended.

LAW

La. R.S. 14:98(B)(1) sets out the maximum penalty provisions for DWI, first offense.

Our general law pertaining to the review of sentences is well settled. The trial court here noted as an aggravating circumstance only that the defendant had a rather “impressive drug history.”

Defendant claims that the sentence is nothing more than a purposeless and needless infliction of pain and suffering, noting that other individuals were sentenced that day for DWI, with less restrictive conditions.

| «¡This record reflects a valid plea to and sentence for the expired MVI sticker.

The conviction for DWI is lawful, as the defendant freely, voluntarily, knowingly, and intelligently pled guilty by virtue of a perfectly valid waiver of rights administered by the learned trial court, particularly considering the difficulty of taking pleas of three defendants at one time. The sentence for DWT, however, exceeds the statutory maximum of six months.

“The defendant ... also may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted[.]” La. C. Cr. P. art. 881.2(A)(1). See also, State v. Watson, 36,106 (La.App.2d Cir.6/12/02), 821 So.2d 618.

A highly unlikely scenario could play out under this sentence. In default of paying the fíne and costs, and if his probation is revoked, Drury could serve 280 days on the DWI. This exceeds the six-month statutory limitation for a jail sentence for the crime of DWI first offense. We accordingly vacate the DWI sentence and remand for resentencing.

We note that maximum sentences are reserved for the worst of offenders and any assessment of the statutory maximum must be amply supported by the record.

1 ¿DECREE

BOTH CONVICTIONS ARE AFFIRMED, THE EXPIRED MVI STICKER SENTENCE IS AFFIRMED, AND THE DWI SENTENCE IS VACATED AND REMANDED FOR RESENTENC-ING.

      . He was placed on supervised probation for a period of two years with numerous special conditions.

      . On a first conviction, notwithstanding any other provision of law to the contrary, the offender shall be fined not less than three hundred dollars nor more than one thousand dollars, and shall be imprisoned for not less than ten days nor more than six months. Imposition or execution of sentence shall not be suspended unless:
      (a) The offender is placed on probation with a minimum condition that he serve two days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or
      (b) The offender is placed on probation with a minimum condition that he perform four eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, participate in a court-approved substance abuse program, and participate in a court-approved driver improvement program. (Our emphasis.)

      .The Louisiana Supreme Court has held that sentences shall be particularized as to each defendant. See State v. Smith, 433 So.2d 688 (La.1983).
      A sentence is deemed excessive where it is grossly out of proportion to the severity of the crime or where it is “nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355 (La.1980).
      Sentences within statutory limits may be reviewed for excessiveness. La. Const. Art. I, § 20; Art. V, § 5; State v. Parish, 429 So.2d 442 (La.1983).
      A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court does not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

      . We recognize that an indigent defendant cannot be incarcerated because of his inability to pay fine and costs on account of his poverty. We further acknowledge that a defendant who had the money to do so, would certainly pay the fine and costs, rather than be incarcerated. This doomsday scenario could only happen upon the refusal to pay by a defendant with the financial wherewithal to do so, plus the revocation of his probation, a highly unlikely and rare occurrence.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Leonard VANCE, Jr., Appellant.
    No. 45,250-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      William G. Nader, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles Jacobs, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   WILLIAMS, J.

| Jfhe defendant, Leonard Vance, Jr., was charged by bill of information with two counts of aggravated second degree battery, in violation of LSA-R.S. 14:34.7. In accordance with a plea bargain, he pled guilty to one count of aggravated battery, a violation of LSA-R.S. 14:34. The defendant was sentenced to serve seven years in prison at hard labor. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

The facts of this matter are not in dispute. On January 3, 2009, the defendant and his brother, Aaron Vance, attacked Luther Burrell and Shawn Smith with a wooden club. The attack occurred at the home of Aaron Vance. Both victims suffered serious injuries, and at least one of the victims was rendered unconscious. The defendant and Aaron Vance were arrested at the scene.

The defendant was charged with two counts of aggravated second degree battery. He pled guilty to one count of aggravated battery in exchange for a recommendation of a seven-year prison sentencing cap. On September 1, 2009, the defendant was sentenced to serve seven years in prison at hard labor. The trial court denied his motion to reconsider sentence. The defendant appeals.

DISCUSSION

The defendant contends the sentence imposed was excessive. He argues that he would have received a lesser sentence had he been allowed to | .¿deny or explain the allegations against him.

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. LSA-C.Cr.P. art. 881.2(A)(2). Where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive, and there is no need for the trial judge to give reasons for the sentence as normally required by LSA-C.Cr.P. art. 894.1; State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214.

The maximum sentence for aggravated battery is a fine in the amount of $5,000, ten years in prison, with or without hard labor, or both. LSA-R.S. 14:34. In the instant case, the record reveals that the defendant and the state entered into an agreement which provided that the maximum sentence would be imprisonment for not more than seven years. The terms of the plea agreement were set forth in the record at the time the defendant’s guilty plea was entered. The defendant was properly advised of his constitutional rights and of the minimum and maximum sentences that could be imposed for the charged offense. The defendant expressed his understanding of the agreement and voluntarily entered his guilty plea in accordance with that agreement. The trial court sentenced the defendant to serve seven years in prison at hard labor, pursuant to the plea agreement. Therefore, the defendant is not entitled to appeal the sentence.

However, this court has allowed a defendant’s sentence to be | .reviewed in cases in which the defendant is informed of the right to appeal by the trial judge during the plea colloquy, even though there was an agreed upon sentence or sentencing cap. This court reasoned that to do otherwise might raise the issue of whether the advisement of the right to appeal had any effect on the voluntariness of the plea. See, State v. Scott, 44,509 (La.App.2d Cir.8/19/09), 17 So.3d 1058; State v. Fizer, 43,271 (La.App.2d Cir.6/4/08), 986 So.2d 243; State v. Foster, supra.

In the instant case, during the guilty plea colloquy, the trial court specifically informed the defendant that he had a right to an appeal. Because the court mentioned the right to appeal during the plea colloquy, the possibility exists that the mention of an appeal may have influenced the defendant’s guilty plea. Therefore, out of an abundance of caution, we will review the defendant’s excessive sentence claim.

The record herein shows that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest, abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

During the sentencing hearing, the trial court herein reviewed the presentence investigation (“PSI”) report and noted the defendant’s social, educational and employment history. The court stated that the defendant was 43 years old at the time of the hearing, and he had four children from two previous marriages. The court then reviewed the defendant’s criminal history and noted that the defendant had previous convictions for theft, theft by receiving (illegal possession of stolen things) and burglary. The court also noted that the defendant had prior arrests for assault and domestic violence assault, but the charges had been dismissed.

Based on our review of the entire record, we find that the sentence imposed was not excessive. The defendant was originally charged with two counts of aggravated second degree battery, each count of which carries a maximum sentence of a fíne of $10,000 or 15 years in prison, with or without hard labor, or both. The defendant accepted a plea bargain and pled guilty to a lesser offense, aggravated battery, which exposed him to a sentence of not more than 10 years in prison, with or without hard labor. Despite the heinousness of the crime — two people were severely beaten with a wooden club — the trial court granted leniency to this defendant by | (¡accepting the recommended sentencing cap agreed to by the state and the defendant. We find that the sentence was neither disproportionate to the offense of conviction, nor shocking to the sense of justice. Thus, the sentence imposed is not constitutionally excessive. This argument lacks merit.

The defendant also contends the denial of his motion to reconsider sentence, without a hearing, constitutes prejudicial error. The defendant concedes that he has no absolute right to a hearing; nevertheless, he argues that he should have been allowed to present evidence to show that his involvement in the crime was not as extensive as his brother’s involvement. The defendant also argues that he should have been allowed to rebut the trial court’s inaccurate statements regarding his criminal history.

LSA-C.Cr.P. art. 881.1(D) provides:

The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion.

Thus, the trial court was not required to conduct a hearing on the defendant’s motion to reconsider sentence. See, State v. Bedoya, 2008-630 (La.App. 5th Cir.12/16/08), 998 So.2d 1283; State v. Tremain P., 2006-438 (La.App. 5th Cir.1/16/07), 956 So.2d 1; State v. Hughes, 2003-420 (La.App. 3d Cir.12/31/03), 865 So.2d 853, writ denied, 2004-0663 (La.9/24/04), 882 So.2d 1165. We find no error in the trial court’s procedure.

Additionally, the defendant has not shown any prejudice by the summary denial of his motion. The sole basis for the motion for ^reconsideration of sentence was the defendant’s contention that he was denied his opportunity to “tell his side of the story.” The record reveals that the defendant did not object to his sentence at the time it was imposed; nor did he attempt to proffer any evidence in support of his motion to reconsider. During the guilty plea hearing, the following colloquy took place:

THE COURT: All right. Mr. Jacobs, please read the facts into the record.
MR. JACOBS: [The defendant] did commit the offense — knowingly and intentionally committed] the offense of Aggravated Battery upon the person ... of Luther Burrell by striking him with this wooden club. Again, Mr. Burrell was rendered unconscious and found with multiple head lacerations. Again, the reason for the battery was that [the defendant and his brother] believed that Mr. Burrell was, I believe, using a residence located at 1425 Hamilton Road in Bossier City to either use or sell drugs out of.
THE COURT: Okay. Are those facts correct, sir?
[DEFENDANT]: Yes, sir.
THE COURT: Mr. Gerhardt, you’ve heard my questions to your client. Do you believe he understands his rights and voluntarily waives those rights?
[DEFENSE COUNSEL]: Yes, I do, Your Honor.
THE COURT: All right. To the charge of Aggravated Battery, how do you plead, guilty or not guilty?
[DEFENDANT]: Guilty.

We find that the defendant was not entitled to a hearing on his motion to reconsider sentence. The record reveals that the defendant entered his guilty plea knowingly and voluntarily, after the trial court apprised him on the record of his constitutional rights, the sentencing range for the offense and the agreed-upon sentencing cap. The defendant made no attempt “to tell his side of the story.” In fact, the defendant affirmed on the record that the facts asserted by the state were correct. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we hereby affirm the defendant’s conviction and sentence.

CONVICTION AFFIRMED; SENTENCE AFFIRMED.

      . One portion of the record reflects that Smith was rendered unconscious, while another portion states that Burrell suffered loss of consciousness.


author: PEATROSS, J.

text:
    Connie M. McKAY, John McKay, and Rose Mary Campbell, Plaintiffs-Appellants v. W & J FARMS, et al, Defendants-Appellees.
    No. 45,234-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Michael L. Hebert, for Appellants.
    Hayes, Harkey, Smith & Casio, L.L.P., by Thomas M. Hayes, IV, Counsel for Appellees, Colony Insurance Co., David A. Donnell, Anvil Enterprises, Inc.
    Mason L. Oswalt, Pro Se.
    Cotton, Bolton, Hoychick & Doughty by David P. Doughty, for Appellee, Louisiana Farm Bureau Casualty Insurance Co.
    Nelson, Zentner, Sartor & Snellings, by George M. Snellings, IV, Allison M. Jar-rell, for Appellees, Albert Kyle Mills, III & Progressive Insurance Co.
    Hayes, Harkey, Smith & Cascio, by John C. Roa, for Appellees, W & J Farms, Ralph (Ralf) Jennings & State Farm Mutual Automobile Ins. Co.
    Davenport, Files & Kelly, by M. Shane Craighead, for Appellee, Shelter Mutual Ins. Co.
    Lunn, Irion, Salley, Carlisle & by James A. Mijalis, for Appellee, Illinois National Ins. Co.
    Before CARAWAY, PEATROSS & DREW, JJ.
   PEATROSS, J.

11 Plaintiffs, Connie M. McKay, John McKay and Rose Mary Campbell, appeal the summary judgment of the trial court finding that a garage policy issued by Colony Insurance Company (“Colony Insurance”) did not provide coverage for the defendant/driver, Albert Kyle “Sonny” Mills, III. For the reasons stated herein, we affirm.

FACTS

On July 31, 2006, Plaintiff Connie McKay was driving in a southerly direction on Highway 153 in Richland Parish. Plaintiff Rose Mary Campbell was a passenger in Ms. McKay’s vehicle. As Ms. McKay’s vehicle traveled through the intersection of Highways 135 and 137, it was struck from the side by a 1980 Peterbilt tractor/trailer driven by Albert Kyle “Sonny” Mills, III. Sonny had been unable to stop the rig at the stop sign at the intersection and collided with Ms. McKay’s vehicle, allegedly causing extensive property damage and injury to Ms. McKay and Ms. Campbell.

The circumstances surrounding how Sonny came to be driving the Peterbilt tractor/trailer at the time of the accident are of import to the coverage question before us. The record reveals that, on the day of the accident, Sonny was assisting his brother, Clifton Mills, in cutting and hauling grain. According to Sonny’s deposition testimony and Clifton’s deposition testimony, Clifton owned one Feightliner truck and two trailers that were available to haul loads that day. There had apparently been discussions between Clifton and Max Livingston, who worked with and drove trucks for Clifton, about purchasing a second semi-truck to carry the additional trailer to improve the efficiency of their harvesting. On the day 12of the accident at issue, Mr. Livingston traveled to Anvil Enterprises, owned by David A. Donnell, and returned with the Peterbilt truck, without a trailer attached, to haul the second trailer owned by Clifton. When Mr. Livingston arrived with the Peterbilt truck, the men hooked a trailer to the truck, loaded the trailer with milo and decided that Sonny would “try out” the truck and drive the load to the elevator. Sonny testified regarding his purpose in driving the Peter-bilt truck:

Q: Did you know one way or another whether this truck had been purchased?
A: I was told that the truck was going to be — we were supposed to try— haul a load with it and see if we liked the truck, make a load with it and see what I thought about the truck, if they should buy it or not. As far as I was understood by Mr. Max, he told me before he left, he opened the glove box and said, “In this coffee can right here is the title and your insurance if anything is to happen; this is all the information you’ll need if you get a ticket or an accident or anything.” I forget how he worded that, but he showed me the coffee can that contained the papers on the truck.

Sonny further clarified that he and Clifton both agreed that purchasing an additional truck would benefit the harvesting operation and that he was to “take the load to the elevator and tell [Clifton] ... whether it was worth buying or not.”

Albert Kyle Mills, Jr., Sonny’s and Chi-ton’s father, accompanied Mr. Livingston to Anvil Enterprises to pick up the Peter-bilt truck. Mr. Mills testified that Mr. Livingston contacted him about the Peter-bilt truck and it was Mr. Mills’ belief that “we didn’t know whether we were going to buy it or not ... we were going to try it out.” There is some discrepancy in the testimony of Mr. Mills and Mr. Livingston regarding who spoke with whom |sat Anvil Enterprises when the two men picked up the Peterbilt truck, but there is no dispute that Clifton was to be the ultimate purchaser and the men were taking the truck to test it prior to Chiton’s making the purchase. Clifton testified that it was his understanding that “we were trying the truck out ... we were under no obligation to buy it.”

Mr. Livingston testified in his deposition that he and Mr. Mills went to Anvil Enterprises to get the truck because Clifton was working in the field. Mr. Livingston drove the Peterbilt truck from Anvil Enterprises to the farm where Clifton was working, assisted in hooking up the trailer to the semi and Sonny then took over operation of the rig. As previously stated, the accident occurred while Sonny was driving the rig to the elevator.

Plaintiffs filed suit against several defendants, including Colony Insurance, which had issued a garage policy of insurance to Mr. Donnell, d/b/a Anvil Enterprises. The policy contains an exclusion from coverage for customers of the business, defining an insured as follows:

3. Who Is An Insured
a. The following are “insureds” for covered “autos”:
(1) You for any covered “auto”.
(2) anyone else while using with your permission a covered “auto” you own, hire or borrow except:
* * *
(d) Your customers, if your business is shown in the Declarations as an “auto” dealership....

(Emphasis added.)

|4The Declarations page of the garage policy under “Item One” contains a printed request for information labeled, “Business Description:.” In the blank that follows, the information provided by Mr. Donnell reads “Dealer (T02) Car Dealer 12200.”

Colony Insurance filed a motion for summary judgment on the issue of coverage based on the above exclusion. The trial court granted the motion and this appeal ensued.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Elliott v. Continental Cas. Co., 06-1505 (La.2/22/07), 949 So.2d 1247. When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms. On the other hand, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy. Broadmoor Anderson v. National Union Fire Ins. Co. of Louisiana, 40,096 (La.App.2d Cir.9/28/05), 912 So.2d 400, writ denied, 05-2462 (La.3/24/06), 925 So.2d 1239.

Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Elliott, supra, citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

An insurance policy is a contract between the parties and should be construed employing the general-rules of interpretation of contracts set forth in the Louisiana Civil Code. Elliott, supra. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Id. Words and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Where the language in the policy is clear, unambiguous and expressive of the intent of the parties, the agreement must be enforced as written. Id. If, however, after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Id.

The purpose of liability insurance is to afford the insured protection from damage claims. Policies, therefore, should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer’s obligation is strictly construed against the insurer; and, if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. It is equally well settled, however, that, subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so |(ilong as the limitations do not conflict with statutory provisions or public policy. Elliott, supra citing Commercial Union Insurance Co. v. Advance Coating Co., 351 So.2d 1183 (La.1977).

The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers, for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refíne away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties. Elliott, supra; Commercial Union Insurance Co., supra. Thus, for summary judgment to be warranted, there must be no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Elliott, supra.

On appeal, Plaintiffs argue that 1) the customer exclusion does not apply in this case because Mr. Donnell did not use the exact phrase “auto dealership” to describe his business on the Declarations page of the policy and, alternatively 2) Sonny was not a customer of Mr. Donnell’s within the meaning of the exclusion because he did not have contact with anyone at the dealership and was merely driving the Peterbilt truck at the request of his brother. We do not find either argument presented by Plaintiffs to be persuasive.

Applicability of Exclusion

The limiting provision in the commercial garage policy purchased by Mr. Donnell is a commonly found provision that expressly excludes 17customers of an automobile dealership in its definition of an insured, unless the customer does not have liability insurance of his own or is statutorily underinsured. Alexander v. Cornett, 42,147 (La.App.2d Cir.7/11/07), 961 So.2d 622, writ denied, 07-1681 (La.11/2/07), 966 So.2d 603. La. R.S. 22:1291 provides that the driver’s personal liability policy is primary in “test drive” circumstances at auto dealerships and these garage policies are designed to meet the minimum liability insurance requirements under the state’s compulsory insurance law by providing liability insurance in cases where the driver is uninsured or underinsured.

We find no basis, in public policy or in the insurance policy itself, on which to distinguish between the descriptions of “Dealer” or “Car dealer” and “auto dealership” for purposes of a garage policy of insurance. Mr. Donnell operates as a sole proprietorship and described his business in the policy as “Dealer” and “Car dealer.” Plaintiffs base their argument on the fact that the exclusion applies by its express terms to “your customers, if your business is shown in the declarations as an ‘auto’ dealership.” Plaintiffs argue that the terms “Dealer” and “Car dealer” are not the same as “auto dealership.” Since Mr. Donnell failed to call his business an “auto ” dealership, Plaintiffs claim that his customers are not excluded from coverage under the garage policy. We find this to be a distinction without a difference and conclude that the exclusion from coverage applies to customers of Mr. Donnell’s.

IsApplication of Exclusion to Sonny

Having found the exclusion applicable, we now turn to the question of whether Sonny qualifies as a customer of Anvil Enterprises for purposes of the exclusion. In finding that Sonny was a customer and, therefore, not an insured under the policy, the trial court relied on the decision of this court in Marshall v. Seago, 41,138 (La.App.2d Cir.6/28/06), 935 So.2d 752. We held in Marshall that a person test driving an automobile is a customer for purposes of a garage policy even where that person is not the actual purchaser who will execute the sale and own the vehicle. In Marshall, the grandmother was purchasing a vehicle for her grandson. While the salesman at the car dealership dealt primarily with the grandmother, the grandson test-drove the car and was involved in a collision while driving the vehicle. Faced with the question of whether the grandson was a customer under the policy even though he was not the actual purchaser, we found the two individuals to be so interrelated as to be the same for purposes of a “customer” as contemplated by the garage policy. Since the grandson was test-driving the vehicle for purposes of his grandmother’s purchase decision, he was an extension of the ultimate purchaser and, thus, was a customer and not an insured under the policy.

Plaintiffs attempt to distinguish Marshall from the instant case by pointing out that Sonny had no contact with anyone at Anvil Enterprises, but was simply driving the tractor at the request of his brother. According to Plaintiffs, the circumstances are dramatically different from those in Marshall and it should not be controlling herein. We disagree. The |9testimony reveals that the Peterbilt truck was being driven by those associated with Clifton in order to assist him in deciding whether or not to purchase the truck. This court has clearly held that an individual test-driving a vehicle on behalf of a potential purchaser is a test-driver or customer for purposes of this exclusion. Marshall, supra. Accordingly, we conclude that the trial court properly granted summary judgment in favor of Colonial Insurance.

CONCLUSION

For the foregoing reasons, the summary judgment in favor of Defendant, Colony Insurance Company, is affirmed at the cost of Plaintiffs, Connie M. McKay, John McKay and Rose Mary Campbell.

AFFIRMED.

      . There were cross motions for summary judgment filed in the trial court-the instant motion filed by Colony Insurance and a second motion filed by another insurer on the issue of primary versus secondary coverage. The only judgment before us on appeal is the one granting summary judgment in favor of Colony Insurance.

      . Renumbered from R.S. 22:671 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009. Added by Acts 1988, No. 756, § 1. Amended by Acts 1997, No. 1060, § 1.