author: COOKS, Judge. THIBODEAUX, Chief Judge,

text:
    Kenneth ARDOIN v. FIRESTONE POLYMERS, LLC.
    No. 09-530.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2009.

      B. Scott Cowart, Taylor, Wellons, Politz & Duhe, APLC, Baton Rouge, LA, for Defendant/Appellant-Firestone Polymers, LLC.
    Gregory P. Marceaux, Lake Charles, LA, for Plaintiff/Appellee-Kenneth Ardoin.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, J. DAVID PAINTER and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

11 Defendant-appellant, Firestone Polymers, LLC, asserts that the Office of Workers’ Compensation (OWC) was manifestly erroneous by finding that 1) Firestone’s employee, Kenneth Ardoin, proved he had a job-related accident, 2) Ardoin’s claim for workers’ compensation benefits has not prescribed, 3) this job-related accident caused Ardoin’s disability, and 4) Ar-doin was entitled to penalties and attorney fees. For the following reasons, we affirm in part and reverse in part.

I.

ISSUES

We shall consider whether the Workers’ Compensation Judge (WCJ) committed a manifest error by concluding that an employee filed a timely workers’ compensation claim for an allegedly work-related knee injury, which allegedly caused the employee’s subsequent disability, where the employee: 1) alleged an unwitnessed work accident which resulted in a knee surgery; 2) returned to full duty but, subsequently, was determined to be disabled; 3) did not immediately report the accident to the employer; 4) filed his claim within one year of his disability but not of his injury; and, 5) submitted no contemporaneous medical reports that specifically indicated he had a work accident. We shall also consider whether the WCJ committed a manifest error by awarding penalties and attorney fees to the employee, where the employer failed to investigate the employee’s claim before denying the benefits.

II.

FACTS

Firestone employed Ardoin since 1992. Ardoin started as a laborer and worked his way up to the position of a batch lab analyst. This job required Ardoin [2to collect samples and test them in the laboratory. Several times a day, Ardoin had to ride a bicycle to the reactor unit, climb twenty eight stairs, collect the samples, and return to the lab for testing. Ardoin testified that sometime in June of 2006, during one of his bicycle trips, he almost fell off the bicycle. To prevent the fall, Ardoin alleged that he put his right leg down and twisted his knee.

Ardoin did not report this accident to his employer. Ardoin maintained that he was in fear of a reprimand because of a previous incident. In 2001, Ardoin injured his hand, reported the accident, and filed a workers’ compensation claim. He was reprimanded and suspended for three days without pay for the unsafe acts he allegedly did to cause the injury.

On June 26, 2006, Ardoin sought medical attention for his knee pain from Dr. Craig Broussard. Dr. Broussard’s report indicated that Ardoin denied any falls or injuries. On July 14, 2006, Ardoin saw Dr. Alan Hinton, an orthopaedic surgeon. Dr. Hinton’s report indicated that Ardoin sustained a twisting injury to his right knee resulting in a medial meniscal tear. The subsequent MRI and surgery confirmed the diagnosis.

After the knee surgery, Ardoin returned to work on October 30, 2006. He passed the requisite fit-for-duty physical tests to ensure he could climb the stairs and perform his other job functions. After a while, Ardoin started experiencing pain, primarily in his right knee. He also complained of pain in his left knee. On March 12, 2007, he again saw Dr. Hinton. Ardoin subsequently underwent an MRI and a bone scan of both knees. Dr. Hinton concluded that Ardoin had a degenerative joint disease.

Ardoin’s attorney sent a letter to Dr. Hinton asking the doctor to comment on the cause and nature of Ardoin’s knee condition. In response, Dr. pHinton sent a letter, dated August 12, 2008, the pertinent portions of which ai'e as follows:

Mr. Ardoin is a patient ... who has sustained an on the job injury to his right knee. He sustained a medial men-iscal injury. This was treated with surgical arthroscopy. Unfortunately he has had persistent pain and problems with the knee with the result in formation of arthritis secondary to his work injury. He has pain in his right knee. I think that his injury to his left knee possibly aggravated his right knee although causation is difficult to establish. Mr. Ar-doin’s right knee is very symptomatic resulting in disability. This was noted on March 7, 2007. His current restrictions are avoidance of ladders, no scaffolding working, no type of work that could result in a potential fall and he is precluded from prolonged stair climbing. His prognosis at this time is guarded. These are permanent restrictions.

Because Ardoin could not perform his former duties, he sought a light-duty assignment with Firestone. Unfortunately, Firestone was unable to accommodate Ar-doin’s condition. Ardoin then filed this claim for workers’ compensation on December 6, 2007.

Although Firestone alleged that Ardoin intentionally made up this bicycle accident to obtain benefits to treat his long-standing and job-unrelated arthritis, the WCJ found that Ardoin sustained his burden of proof as to the occurrence of the accident. The WCJ also rejected Firestone’s claims of prescription. Noting that Firestone presented no expert testimony to dispute the treating physician’s conclusions as to the cause and the nature of Ardoin’s disabilities, the WCJ concluded that Ardoin established that the bicycle accident caused his disabilities. Finally, because Firestone failed to perform any investigation into Ardoin’s claims before the denial of his workers’ compensation benefits, the WCJ awarded Ardoin penalties and attorney fees.

RFirestone now appeals. Ardoin answered the appeal asking that we affirm the OWC’s judgment and increase his attorney fees for answering and defending Firestone’s appeal.

III.

STANDARD OF REVIEW

The WCJ’s findings of fact are reviewed under the “manifest error” or “clearly wrong” standard. Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239. The appellate courts do not disturb the WCJ’s finding of fact as long as they are reasonable and supported by the record. Id. The WCJ’s determination as to whether or not a claimant willfully made a false statement to obtain workers’ compensation benefits, as well as issues of causation, are findings of fact. Id., Hunter v. Alliance Compressors, 06-100 (La.App. 3 Cir. 6/21/06), 934 So.2d 225. Finally, the WCJ’s imposition of penalties and attorney’s fees upon an employer are likewise findings of fact subject to the manifest error standard. Guilbeau, 934 So.2d 239.

IV.

LAW AND DISCUSSION

1) The Occurrence of a Work-Related Accident

An employee may prove by the employee’s testimony alone that an unwit-nessed accident in the course and scope of employment occurred if the employee can satisfy two elements: “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Butterfield v. Turner Indus., 06-1098, p. 4 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 479, writ denied, 07-507 (La.4/27/07), 955 So.2d 692 (quoting Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992)). The determination as to whether an accident occurred involves a judgment of credibility to which an appellate court gives great deference on review. Francis v. BFI, 01-769 (La.App. 3 Cir. 12/12/01), 801 So.2d 604, writ denied, 02-101 (La.3/22/02), 811 So.2d 934. Thus, the appellate court may find a manifest error in a credibility determination where “objective evidence so contradicts an employee’s testimony, or testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would discredit the story.” Butterfield, 951 So.2d at 480 (quoting Hubbard v. Allied Bldg. Stores, Inc., 41,534, p. 5 (La.App. 2 Cir. 11/1/06), 942 So.2d 639, 643). Finally, when the WCJ acknowledges inconsistencies in the record, finding them insufficient to doubt the employee’s testimony, an appellate court will not conclude otherwise if the record supports the limited weight the WCJ accorded the inconsistencies. See Leger v. Grey Wolf Drilling Co., 03-930 (La.App. 3 Cir. 12/10/03), 861 So.2d 841.

For example, this court found manifest error in the WCJ’s finding that an employee sustained an unwitnessed work-related back injury where: 1) the employee told his co-workers that he fell in his bath tub injuring his back at a later date; 2) the medical records indicated that the employee started taking medications for back pain only after the bath tub fall; and, 3) the employee’s doctor’s records did not contain anything that would indicate an injury in the relevant time period. Butter-field, 951 So.2d 476. On the other hand, this court found no manifest error in the WCJ’s ruling in favor of an employee where: 1) the employee’s medical records indicated that the employee denied the onset of injury to his doctor and complained of pain instead; and, 2) where the employee, in response to the direct question from his supervisor, was ambivalent as to whether this was a job-related injury. Francis, [H801 So.2d 604. There, this court found no error with the WCJ’s conclusion that the alleged lack of the accident or recent trauma report in the medical records was insufficient to discredit the employee’s version of the events even when the corroboration was minimal. Id.

Although Firestone pointed to several inconsistencies in Ardoin’s statements and actions, these inconsistencies were not of the nature that would cast a serious doubt on Ardoin’s account of the accident. The WCJ considered Ardoin’s prolonged denial of a work-related injury to his employer. As the employee in Francis, who did not report the injury to his supervisor because he was not sure whether the injury was work-related, Ardoin provided a reasonable explanation as to his failure to report the accident. The record supports the WCJ’s conclusion that Ardoin was in fear of repercussions for reporting a work-related injury.

To prove unreasonableness of Ardoin’s fears, Firestone pointed to an incident where Ardoin sustained and reported a work-related injury for which he was not admonished. Yet, this injury was prior to the one for which he was reprimanded and suspended without pay and, unlike the later injury, did not involve a claim for workers’ compensation benefits. Moreover, Ar-doin’s return to full duty soon after his knee surgery also supported Ardoin’s assertion that he simply wanted to take care of the knee problem and return to work as soon as possible without running the risk of a reprimand or suspension.

Furthermore, Dr. Broussard’s notation that Ardoin denied any falls or injuries is not enough to cast a serious doubt on Ardoin’s version of the events. The WCJ could have reasonably accepted Ardoin’s testimony that he was in so much pain that he may have forgotten about the bicycle incident at the time he saw Dr. 17Broussard. Moreover, Dr. Hinton’s records of July 14, 2006 corroborated Ardoin’s claim that Ardoin sustained an injury to his right knee.

Finally, Dr. Hinton’s letter of August 12, 2008 stated that Ardoin “sustained an on the job injury to his right knee” that resulted in surgical arthroscopy. Firestone insinuated in its brief that Ardoin’s counsel somehow coached Dr. Hinton to write that Ardoin sustained a job-related injury. Other than pointing to Dr. Hinton’s failure to note the accident in his records, Firestone provided no evidence of such actions. The straightforward inquiry letter Ar-doin’s counsel sent to Dr. Hinton contained questions no different from the questions an attorney would ask at a deposition.

Based on the above considerations, we do not find that Ardoin’s testimony is so internally inconsistent or that the objective evidence so contradicts Ardoin’s account of the events as to find a manifest error in the WCJ’s determination that the bicycle accident occurred.

2) Prescription

Generally, in workers’ compensation cases, all claims for payments prescribe one year after the accident giving rise to the claim occurred. La. R.S. 28:1209 A(l). Yet,

[w]hen the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

La. R.S. 23:1209 A(3). Thus, where an employee claimed he suffered a work-related heart attack and, after medical treatment, returned to work but several months later was determined to be disabled because of his heart condition, the one-year [«prescription did not start running until the employee was determined to be disabled. Munch v. Lafitte Barataria Crown Point Fire Dep’t, 619 So.2d 101 (La.App. 5 Cir.1993). There, because the employee filed his claim within two years of the heart attack, the court reversed the trial court’s grant of exception of prescription. Id.

Here, like the employee who suffered a heart attack, Ardoin filed his claim within two years of his bicycle accident and within one year of his doctor’s determination that Ardoin could no longer perform his previous job duties. Therefore, Ardoin’s claim was timely.

3) Causation

Firestone argued Ardoin suffered from a degenerative osteoarthritis which resulted not from any accident but from Ardoin’s over-use of his legs when he climbed twenty-eight stairs several times a day to collect the samples. Firestone asserted that because Dr. Hinton wrote the letter, in which he stated that Ardoin’s injuries resulted from the work accident, in response to the inquiries from Ardoin’s counsel, the letter had zero value. Moreover, pointing to the inconsistency in the letter with respect to which knee — right or left — -was injured, Firestone speculated that the inconsistency may have been because “there was some error in translation when Dr. Hinton was given the accident story,” presumably by Ardoin’s counsel. Finally, quoting Dr. Hinton’s “causation is difficult to establish,” Firestone maintained that Ardoin failed to prove that the injury caused Ardoin’s disability.

We note that Firestone chose not to depose Dr. Hinton, and it chose not to retain an expert that would give an opinion as to whether Ardoin’s disability resulted from an accidental injury or from “overuse.”

We find Firestone assertions of limited merit. In his letter, Dr. Hinton unequivocally stated that Ardoin “sustained an on the job injury to his right knee” |nwhich was surgically treated. (Emphasis added). Dr. Hinton went on to state that arthritis formed in this same knee “secondary to his [Ardoin’s] work injury.” Then followed the inconsistency of which Firestone complained: “[h]e has pain in his right knee. I think that his injury to his left knee possibly aggravated his right knee although causation is difficult to establish.” Undoubtedly, Dr. Hinton’s vacillation had nothing to do with whether the job injury caused Ardoin’s disability. Instead, Dr. Hinton hesitated to conclude that an injury to one knee aggravated the condition of the other knee, presumably because Ar-doin favored the non-injured knee after the accident.

Whether or not the injury to one knee aggravated the condition of the other is of no importance in this case because Ardoin would be unable to perform his work duties even if only one of his knees was unusable. It is equally of no consequence whether the left knee condition aggravated the condition of the right knee or whether it was vice versa. Instead, Dr. Hinton’s conclusion that Ardoin’s disabling arthritis in his right knee resulted from the injury Ardoin sustained tvhile in the scope and course of his employment at Firestone is what establishes the causation element of his claim.

4) Penalties and Attorney Fees

If the employer fails to timely pay workers’ compensation benefits, the employee is entitled to penalties and reasonable attorney fees unless the employee’s claim is reasonably controverted. See La. R.S. 23:1201. An employer could reasonably controvert a claim if the employer “engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. The employer has a continuing duty to investigate its employee’s claim and to assess factual information before it denies the benefits. Penn v. Wal-Mart Stores, Inc., 93-1262 (La.App. 3 Cir. 6/15/94), 638 So.2d 1123, writ denied, 94-1835 (La.10/28/94), 644 So.2d 651. Thus, failure to investígate the employee’s claim subjects the employer or insurer to penalties and attorney’s fees. McClendon v. Keith Hutchinson Logging, 96-2373 (La.App. 1 Cir. 11/7/97), 702 So.2d 1164, writ denied, 97-2872 (La.2/13/98), 706 So.2d 995.

Firestone questioned Ardoin’s co-workers, and no one saw Ardoin get hurt. When Ardoin’s supervisor questioned him as to whether the injury to his knee occurred on the job, he said no. Ardoin admitted at trial he told his employer he was not hurt on the job, although he claims his denial was motivated by fear of retaliation. The employer certainly acted reasonably in relying on Ardoin’s denial. The physician’s report, which surmised Ar-doin’s injury resulted from a twisting maneuver, did not state initially that the injury occurred on the job. Ardoin admitted when questioned by his physician, he again denied the injury to his knee occurred on the job presumably for the same reason he denied it to his immediate supervisor. The first connection between Ardoin’s injury and the job occurs in the doctor’s letter of August 17, 2007 following which Ardoin initiated a claim for worker’s compensation benefits claiming an on-the-job-injury.

The Louisiana Supreme Court has held that “an employer who has reasonable grounds to controvert the plaintiffs claim does not owe penalties and attorney fees.” Bowens v. General Motors, 92-1307, 92-1322 (La.11/30/92), 608 So.2d 999 citing Williams v. Regional Transit Authority, 546 So.2d 150 (La.1989). As set forth above, Firestone had reasonable grounds to controvert Ardoin’s claim. The authority to award statutory penalties in worker’s compensation cases is found [ TTin La. R.S. 23:1201(B, E), which provides in pertinent part, “Whenever the employee’s right to such benefits has been reasonably controverted by the employer or his insurer, the penalties set forth in this Subsection shall not apply.” This court first set forth the test to determine the meaning of “reasonably controverted” in Chelette v. American Guarantee and Liability Insurance, Inc., 480 So.2d 363 (La.App. 3 Cir.1985) wherein this court stated:

Black’s Law Dictionary 298 (5th ed.1979) defines ‘controvert’ as ‘to dispute; deny, to oppose or contest; to take issue on.’ Using this definition along with a plain reading of the statute, we conclude that the following test is applicable: given the facts, medical and otherwise, known to the employer or his insurer, did the employer or insurer have a reasonable basis to believe that medical expenses and compensation benefits were not due the employee. Stated another way, did the employer or his insurer have sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant.

This court continues to follow the test established in Chelette. See Breaux v. Travelers Insurance Company, 87-309 (La.App. 3 Cir. 5/11/88), 526 So.2d 284. Likewise, Firestone’s refusal to provide coverage was not arbitrary and capricious, as such, it is not liable for attorney’s fees. Freeman v. Brown’s Furniture of Bunkie, Inc., 527 So.2d 544 (La.App. 3 Cir.1988). See also La. R.S. 23:1201.2.

Plaintiff argues the employer failed to investigate Ardoin’s claim. We disagree. The employer did all it could do short of trial on the merits. It is well settled that an employer or insurer should not be penalized for seeking judicial resolution of close issues. Trudell v. State, Office of Risk Management, 465 So.2d 184 (La.App. 3 Cir.1985); Mallet v. Louisiana Nursing Homes, Inc., 459 So.2d 178 (La.App. 3 Cir.1984), writs denied, 463 So.2d 604(La.l985); Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3 Cir.1976), writ denied 338 So.2d 298 (La.1976) and Breaux v. Travelers, 526 So.2d at 292. In Thompson we stated:

| ]2We find manifest error in the trial court determination that the insurer was arbitrary and capricious in defending this claim. Since claimant bears the burden of proof to establish that her disability resulted from a job related accident, defendants were not arbitrary and capricious in making the decision to defend this claim where the employee: 1) was involved in a minor accident, 2) continued working for five weeks after the accident, 3) did not report the accident for two months, and 4) did not show or complain of pain or disability to co-workers during her five weeks of work following the accident.

Thompson, 335 So.2d at 85.

The doctor did not witness the bicycle accident, and his opinion that Ardoin’s injuries occurred on the job is unquestionably dependent on Ardoin’s version of the events, thus this case turned almost entirely on Ardoin’s credibility at trial. The trial court accepted his version, but the employer should not be penalized for the absence of evidence to further controvert this case. We therefore reverse and vacate that part of the judgment which awarded Ardoin attorney fees and penalties.

V.

CONCLUSION

The judgment in favor of Kenneth Ar-doin is affirmed. That part of the judgment awarding Ardoin attorney fees and penalties is reversed and vacated.

AFFIRMED IN PART, REVERSED IN PART.

THIBODEAUX, Chief Judge, Dissents and Assigns Written Reasons.

PAINTER, J. Dissents for the Reasons Assigned by Thibodeaux, Chief Judge.

THIBODEAUX, Chief Judge,

dissenting in part.

hi dissent from the refusal of the majority to award penalties and attorney fees. The majority recognizes that “this case turns almost entirely on Ardoin’s credibility at trial. The trial court accepted his version, but the employer should not be penalized for the absence of evidence to further controvert this case.” There is a complete absence — which the majority concedes — to controvert this case.

If the employer fails to timely pay workers’ compensation benefits, the employee is entitled to penalties and reasonable attorney fees unless the employee’s claim is reasonably controverted. See La. R.S. 23:1201. It is well known that an employer could reasonably controvert a claim if the employer “engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. The employer has a continuing duty to investigate its employee’s claim and to assess factual information before it denies the benefits. Penn v. Wal-Mart Stores, Inc., 93-1262 (La.App. 3 Cir. 6/15/94), 638 So.2d 1123, writ denied, 94-1835 (La.10/28/94), 644 So.2d 651. Thus, failure to investigate the employee’s claim subjects the ^employer or insurer to penalties and attorney’s fees. McClendon v. Keith Hutchinson Logging, 96-2373 (La.App. 1 Cir. 11/7/97), 702 So.2d 1164, writ denied, 97-2872 (La.2/13/98), 706 So.2d 995. Finally, “a workers’ compensation claimant is entitled to an increase in attorney’s fees for time incurred in defending an employer’s unsuccessful appeal.” Warren v. Maddox Hauling, 02-733, p. 6 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082, 1087, writ denied, 03—4 (La.4/21/03), 841 So.2d 791.

Firestone argued that it had nothing to investigate because Ardoin “concealed the accident when asked the question directly by the safety supervisor.” Yet, Firestone did not investigate before it denied Ar-doin’s workers’ compensation benefits claim which was filed in December 2007. Firestone did not present any evidence, either factual or medical, that would reasonably counter Ardoin’s account of the events and his medical evidence. Thus, I conclude no manifest error occurred with the WCJ’s finding that Firestone did not reasonably controvert Ardoin’s claim.

For the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge. ARMSTRONG, C.J., McKAY, J.,

license: Public Domain

text:
    Douglas JOUBERT and Lillian Legardeur v. CITY OF NEW ORLEANS, OFFICE OF SAFETY & PERMITS.
    No. 2009-CA-0601.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.

      Miles G. Trapolin, Trapolin Law Firm New Orleans, LA, for Appellants, Douglas Joubert and Lillian Legardeur.
    Randall K. Foreman, Randall K. Foreman, APLLC, Metairie, LA, for Theodore E. Kurz, the Atrium in Metairie, Inc.
    Kenneth A. Goodwin, New Orleans, LA, for Appellee, South Jefferson Davis Parkway, LLC.
    Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN.
   PAUL A. BONIN, Judge.

| [Douglas Joubert and Lillian Legardeur (hereinafter “the neighbors”) devolutively appeal the dismissal with prejudice of their lawsuit against The Atrium in Metairie, Inc. (“the Atrium”) and South Jefferson Davis Parkway, LLC (“SJDP”). For the reasons which follow, we reverse and remand.

Background Facts and Proceedings

The neighbors are residents of the New Orleans neighborhood known as Mid-City. They reside on South Jefferson Davis Parkway in the same municipal zoning district in which the Atrium and SJDP each own residential rental property. It is undisputed that the shared area is zoned RD-3 under New Orleans’ Comprehensive Zoning Ordinance (“CZO”). The RD-3 designation restricts the use of a property to a maximum of two families.

Before Hurricane Katrina struck New Orleans on August 29, 2005, the use by Atrium and SJDP of their properties did not conform to the RD-3 restrictions. The Atrium’s property housed seven family units along with commercial spaces, |2and the property of SJDP housed five families. The non-conforming uses of these properties before the storm were not violations of the CZO. On account of the storm’s devastation, the Atrium and SJDP, like others in the neighborhood, were delayed in restoring their properties. Their intention was to continue the use of their properties in the same non-conforming manner as before the storm. The neighbors believed that the Atrium and SJDP as well as others had delayed too long in their restoration efforts, resulting in their loss of their legal non-conforming use status.

The neighbors instituted suit against the City of New Orleans through its Department of Safety and Permits. They sought a declaratory judgment that several properties in the zoning district, including those of the Atrium and SJDP, were no longer entitled to a legal non-conforming use; and they also sought a writ of mandamus directed to the city.

By amending and supplementing their initial petition, the neighbors subsequently joined Michael Centineo, the director of the Department of Safety and Permits, and other property owners, including the Atrium and SJDP. The newly named parties were persons whose rights would be affected by a declaratory judgment. They directed their request for a writ of mandamus against Mr. Centineo as a public officer. The neighbors also sought injunctive relief against all the opposing parties. The injunctive relief sought included the city’s ^enforcement of its zoning ordinances, its revocation of permits previously issued, and the conformance of the properties to the RD-3 zoning restrictions.

The Atrium and SJDP each filed exceptions of no cause of action and no right of action. The Atrium also filed a motion to dismiss which was set for contradictory hearing on the same date as the exceptions. The trial court granted both parties’ peremptory exceptions of no cause of action, granted the exception of no right of action filed by SJDP, and granted the motion to dismiss filed by the Atrium. The trial court dismissed the neighbors’ suit against the Atrium and SJDP with prejudice. La. C.C.P. art. 1673.

The Statute and the Ordinance

At the core of this case is the neighbors’ request that the court declare whether the properties of the Atrium and of SJDP are still entitled to their legal non-conforming use status despite the delay. The Louisiana Supreme Court in Redfearn v. Cropped 455 So.2d 1356, 1358 (La.1984), described a non-conforming use of property as: “[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated, ...” See FQCPRQ v. Brandon Investments, L.L.C., 05-0793, p. 2 (La App. 4 Cir. 3/29/06), 930 So.2d 107, 109; Craig v. City of New Orleans Board of Zoning Adjustments, 04-1709 (La.App. 4 Cir. 5/4/05), 903 So.2d 530. CZO Section 13.2.1 states:

No nonconforming building or portion thereof, or land used in whole or in part for nonconforming purposes, which hereafter becomes and remains vacant for a continuous period of six (6) calendar months shall again be used except in conformity with the regulations of the disti’ict in which such building or land is situated. The intent of the owner or other person to use a building or land for nonconforming purposes shall not be determinative of whether such building or land was vacant.

See Brandon Investments, L.L.C., 05-0793 at p. 2, 930 So.2d at 110.

“The burden of proving termination of nonconforming use status by abandonment or discontinuance is on the party urging termination of the status.” City of New Orleans v. Elms, 566 So.2d 626, 634 (La.1990).

CZO Section 13.3.2 provides for procedures to obtain a restoration permit:

Application for a restoration permit shall be made within one year of the destruction in whole or in part by fire, storms or other acts of God or the public enemy. Restoration shall be completed within one year from the date of the issuance of the restoration permit unless extensions are approved by the Board of Zoning Adjustments.

After Hurricane Katrina, the Louisiana Legislature enacted La. R.S. 33:4882 A, which became effective on June 29, 2006, providing that:

Notwithstanding any provision of law or municipal or parish ordinance or resolution to the contrary, the governing authority of any municipality or parish or agency of any such municipality or parish shall not allow and shall not cause any building or land to lose its nonconforming use status because, during all or part of the period of August 29, 2005, through August 28, 2007, as a result of damage caused by Hurricane Katrina or Hurricane Rita, it is temporarily vacant or operations ^normally carried on in such building or on such land have been temporarily discontinued.

The Atrium’s Motion to Dismiss

We consider first the Atrium’s motion to dismiss. The Atrium attached to its motion a permit issued by the Board of Zoning Adjustments (“BZA”) which purported to grant a twelve-month extension to the Atrium to complete restoration by October 13, 2009, which extension, the Atrium argues, rendered the neighbors’ lawsuit moot under Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186.

The neighbors argue that the motion was not served upon them in sufficient time to permit them to prepare a defense to it. The record shows that it was served on the neighbors’ counsel two days before the scheduled hearing, which is less than the ordinary 15-day requirement provided for in the local rules of court. The | ¿neighbors further argue that the issuance of the permit begs the very question of whether the extension itself came too late. The neighbors contend that the BZA could not revive an already expired non-conforming use. “The Board cannot by its own unauthorized acts, acquire authority it does not possess.” State ex rel. Phillips v. Board of Zoning Adjustments of City of New Orleans, 197 So.2d 916, 920 (La.App. 4th Cir.1967). The cross-claim filed by the Atrium against the city seems to support the neighbors’ argument. Finally, the neighbors argue that the issuance of the permit by the BZA was not final and was the subject of an administrative appeal and judicial review.

We agree with the neighbors that the pending administrative appeal from the issuance by the BZA of the permit precludes a finding by the trial court of mootness. Both La. R.S. 33:4727 E and CZO Section 14.11 provide for an appeal to the district court from a decision of the BZA. “The court may reverse or confirm, wholly or in part, or may modify the decision brought up for review.” La. R.S. 33:4727 E(5). The appellate proceedings and the standard of review by the court of the decision of the BZA are guided by La. R.S. 49:964 (Louisiana Administrative Procedure Act). Curran v. Board of Zoning Adjustments Through Mason, 580 So.2d 417, 418 (La. App. 4th Cir.1991). See also Williams v. Board of Zoning Adjustments, 444 So.2d 669, 670, n. 3 (La.App. 4th Cir.1984). A decision by the district court is a judgment appealable of right to the court of appeal. La. C.C.P. arts. 2082 and 2083; La. R.S. 49:965. See also Dudenheffer v. City of New Orleans, Department of Safety and Permits, 482 So.2d 175, 176-77 (La.App. 4th Cir.1986). If, after judicial review, the permit is deemed valid and within the authority of the BZA, then it may well follow that the court will declare that the Atrium’s property enjoys continuing legally non-conforming use status. However, in the meantime, the mere issuance of the permit does not render the neighbors’ action for a declaratory judgment moot. Accordingly, the motion to dismiss should have been denied.

The Exception of No Cause of Action

Whether a petition states a cause of action is raised by the peremptory exception of no cause of action. La. C.C.P. art. 927(A)(5). “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La. C.C.P. art. 931. The well-pleaded facts of the petition must be accepted as true. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 9 (La.3/2/99), 739 So.2d 748, 755. The petition shows that the neighbors live near the properties of the defendants owned by the Atrium and SJDP. Because of their proximity to these properties, if the properties do not enjoy legal non-conforming uses and become fully occupied, the | ^neighbors will unlawfully be subjected to diminution in them property values and their quality of life due to the by-products of population density, such as parking congestion and noise volume. CZO Section 3.1.1 governs the creation of zoning districts which were established “[i]n order to regulate and restrict the location and use of buildings and land for ... residence, and other purposes [and] to regulate and restrict ... the density of population.... ” The RD-3 Two-Family Residential District permits, among other uses, single-family homes, two-family dwellings, and town houses. CZO Sections 4.6.1 and 4.6.3. The RM-2A Multiple-Family Residential District is distinguishable from the RD-3; it permits in addition to the RD-3 uses multiple-family dwellings and convents and monasteries. CZO Sections 4.10.1 and 4.10.3. Except for legally nonconforming uses, multi-family dwellings are not listed as permitted in a RD-3 zoning district; “uses not specifically listed are prohibited.” CZO Section 3.2.

In essence, the neighbors will be subjected to conditions which are not otherwise permitted in their RD-3 zoning area, the very conditions which the RD-3 classification is designed as a planning tool to prevent and minimize. See Jenkins v. St. Tammany Parish Police Jury, 98-2627, p. 5 (La.7/2/99), 736 So.2d 1287, 1290 (“Zoning is a general plan designed to foster improvement by confining certain classes of buildings and uses of property to certain localities.”) “The Zoning Ordinance protects adjacent property owners and neighbors by requiring the property owner to carry the burden of meeting the statutory standards.” Curran, 580 So.2d at 419 (emphasis supplied). See also Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 386-87, 47 S.Ct. 114, 71 L.Ed. 303 (1926). On the one hand, if they are unlawfully subjected to these conditions, they will pursue corrective remedies, such as injunctive relief. On the other hand, if they are lawfully subjected to these conditions (because the properties do enjoy legally non-conforming uses), then they will have no remedy either in damages or in equity.

The issues presented in this matter are not simple. The neighbors, like neighbors in other neighborhoods, want the city’s zoning ordinances enforced. They forcefully argue, and their petition sets out sufficient factual allegations, that the properties belonging to the Atrium and SJDP “forfeited” their legally non-conforming uses by the passage of time, including the extension mandated by La. R.S. 33:4882 A. See Brown v. City of New Orleans, 560 So.2d 983 (La.App. 4th Cir.1990). They insist upon a strict and literal reading of La. R.S. 33:4882 A. “When a law is clear and free from all ambiguity, its letter shall not be disregarded under the pretext of following its spirit.” Nash v. Whitten, 326 So.2d 856, 862 (La.1976); see also La. C.C. art. 9. As we stated in Elysian Fields, Inc. v. St. Martin, 600 So.2d 69, 73 (La.App. 4th Cir.1992):

| inBecause a non-conforming use is inconsistent with the objective of the zoning ordinance which is to confíne certain classes of buildings and uses to certain localities, it should be viewed narrowly and have all doubts resolved against continuation or expansion of the nonconformity in order to preserve the property rights of adjacent owners....

Moreover, the neighbors argue that any “extension” by the BZA is ineffective as being beyond “the limited authority granted to the Board by law.” See Lakeshore Property Owners Association v. City of New Orleans, Zoning Board of Appeal and Adjustments, 481 So.2d 162, 167 (La.App. 4th Cir.1986) and cases cited therein.

The Atrium and SJDP almost concede that their non-conforming uses were lost if only the letter of the law were to be applied. They point out, however, the general purpose behind permitting continuation of non-conforming use: “to avoid the hardship, injustice and doubtful constitutionality of compelling the immediate removal of objectionable buildings and uses already in the area.” Redfearn, 455 So.2d at 1358-59; Weisler v. Board of Zoning Adjustments, 98-3007, p. 7 (La.App. 4 Cir. 11/17/99), 745 So.2d 1259, 1264. Louisiana law, moreover, confers the following power, among others, upon the BZA:

In passing upon appeals, where there are practical difficulties or unnecessary-hardships in the ivay of carrying out the strict letter of the ordinance, to vary or modify the application of any of the regulations or provisions of the ordinance relating to use, construction, or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.

La. R.S. 33:4727 C(3)(c), emphasis supplied; see Samuel v. City of New Orleans Board of Zoning Adjustments, 03-0604, pp. 7-8 (La.App. 4 Cir. 9/17/03), 857 So.2d 1075, 1079-80 (stating, “La. R.S. 33:4727(C)(3)(c), however, gives the Board Lithe authority to provide relief from the strict letter of Comprehensive Zoning Ordinance if relief will not violate the spirit of the ordinance.”) Of course, the test is “unusual hardship or difficulty;” financial reasons do not meet the test. Samuel, 03-0604 at p. 8, 857 So.2d at 1080. All of these issues are highly fact-intensive. See Uptown Improvement Association, Inc. v. Board of Zoning Adjustments of City of New Orleans, 243 So.2d 345, 347 (La.App. 4th Cir.1971) and cases cited therein.

Turning to the neighbors’ petition for declaratory judgment, we look to La. C.C.P. art. 1871, which provides:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where appropriate. The declaration shall have the force and effect of a final judgment or decree.

La. C.C.P. art. 1872 further provides in pertinent part that

A person ... whose rights, status, or other legal relations are affected by a statute, [or] municipal ordinance ... may have determined any question of construction or validity arising under the ... statute, [or] ordinance ... and obtain a declaration of rights, status, or other legal relations thereunder.

The procedural provisions on declaratory judgments are remedial. “Their purpose is to settle and afford relief from uncertainty and insecurity with respect to the rights, status, and other legal relations, and they are to be liberally construed and administered.” La. C.C.P. art. 1881. Most assuredly, the neighbors are entitled 112⅜0 a judicial declaration of the construction, interpretation, and application of La. R.S. 33:4882 A and of CZO Sections 13.2.1 and 13.3.2 to the facts concerning the delayed restoration of these properties, which facts are to be tried and determined as in other civil actions. La. C.C.P. art. 1879. Those facts cannot be ascertained on an exception of no cause of action.

We conclude that the neighbors have stated a cause of action for declaratory judgment and that the Atrium and SJDP, as well as the city, are properly joined as parties because they have an “interest which would be affected by the declaration.” La. C.C.P. art. 1880. As long as the neighbors have stated a cause of action, their petition may not be dismissed. Haspel & Davis Milling & Planting Co., Ltd. v. Board of Levee Comm’rs of Orleans Levee Dist., 95-0238, p. 8 (La.App. 4 Cir. 9/4/96), 680 So.2d 159, 164. Accordingly, the trial court erred as a matter of law when it granted the exceptions of no cause of action filed by the Atrium and SJDP.

The Exception of No Right of Action

Another objection which may be raised through the peremptory exception is “[n]o right of action, or no interest in the plaintiff to institute the suit.” La. C.C.P. art. 927(A)(6). “On the trial of the peremptory exception [of no right of action] pleaded at or prior to the trial of the ease, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds therefore do not appear from the petition.” La. C.C.P. art. 931.

As we set out in Touzet v. V.S.M. Seafood Services, Inc.:

| isThe peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor.... When considering the exception, the court must ask whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance or whether the plaintiff has an interest in judicially enforcing the right asserted.... The exception does not raise the question of the plaintiffs ability to prevail on the merits nor the question of whether the defendant may have a valid defense....

96-0225, pp. 2-3 (La.App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012-13 (ellipses indicate omitted citations). See also St. Bernard Optical Corp. v. Schoenberger, 05-0548, p. 6 (La.App. 4 Cir. 1/25/06), 925 So.2d 604, 608.

We have concluded that a resident of the same zoning district in which property which is non-conforming with the district’s zoning designation has a cause of action for a declaratory judgment to determine the validity or legality of the non-conforming use. In our consideration of the exception of no cause of action, we accept as true that the neighbors are residents of the same zoning district. SJDP was entitled to introduce evidence at the hearing on the exception of no right of action to controvert the truth of the neighbors’ allegation of residency; they did not introduce any controverting evidence. In the absence of such evidence, there is no basis to conclude that the neighbors, or either of them, have no right of action. Therefore, the trial court erred in granting the exception of no right of action filed by SJDP.

Related Proceedings

We understand that on remand the trial court will have before it in this proceeding the neighbors’ cause of action against the Atrium and SJDP for declaratory judgment and injunctive relief, and their action against the City of New Orleans for declaratory and injunctive relief as well as the writ of mandamus |14directed to Mr. Centineo, the departmental director who is responsible for issuing permits and zoning enforcement. Also, the trial court in the consolidated case will have the administrative appeal of the neighbors from the decision of the BZA. The district court is authorized to grant a writ of certiorari to the BZA. La. R.S. 33:4727 E(2). The district court also may take evidence in addition to any introduced before the BZA. La. R.S. 33:4727 E(4).

This will place the trial court in the position to dispose at one time of all the factual and legal issues and bring this controversy to a timely resolution. See French Quarter Citizens For the Preservation of Residential Quality, Inc. v. New Orleans City Planning Commission, 99-2154, p. 6-8 (La.App. 4 Cir. 4/12/00), 763 So.2d 17, 20-21; Town v. Gulf States Utilities, 289 So.2d 338 (La.App. 1st Cir.1973). Decree

We therefore reverse the judgment of the district court which dismissed with prejudice the lawsuit filed by Douglas Jou-bert and Lillian Legardeur against The Atrium in Metairie, Inc., and South Jefferson Davis Parkway, LLC, and remand the matter for further proceedings.

REVERSED AND REMANDED.

ARMSTRONG, C.J., dissents with reasons.

McKAY, J., dissents.

ARMSTRONG, C.J.,

dissents with reasons.

hi respectfully dissent.

The plaintiffs in the instant case are not seeking an administrative appeal from the BZA decision, and it is my understanding from a review of the record that such an appeal is pending below. In its present posture, the instant case proceeds with a presumably valid decision of the BZA, granting the requested permits, in place.

I agree with the trial court that the state legislature, in passing La. R.S. 33:4882 recognized the devastating effect of the floodwall and levee failures that led to the inundation of the property that is the subject of this litigation in August of 2005. The statute reflects the legislature’s intention to afford property owners impacted by the aftermath of the 2005 storms additional time to repair their properties. The same concerns doubtless motivated the City in enacting Section 13.3.2 of the Comprehensive Zoning Ordinance. When read together, these expressions of legislative will provide a total of three years for owners of non-conforming properties to repair storm damaged structures, unless the BZA grants an additional extension of the restoration permit. Since, according to the allegations of record in this litigation, accepted as true for purposes of the exception of no cause of action, Atrium applied for its permit within two years and | .¿obtained its extension within three years of the storm, there is no support for the cause of action the appellants purport to assert.

With respect to South Jefferson Davis Parkway, L.L.C., it appears that the City issued a permit for the property’s restoration on March 9, 2006, within a year of the storm damage; a mechanical permit on February 28, 2007, within two years of the storm damage; and an electrical permit on March 23, 2007, also within two years of the storm damage. Construction began at the issuance of the original permit and continued through the filing of the original petition, and the building was occupied within three years of the storm damage.

For the foregoing reasons, I would affirm the judgment of the trial court.

McKAY, J.,

dissents.

hi respectfully dissent and would affirm the judgment of the trial court.

      . See Nassau Realty Co. v. City of New Orleans, 221 So.2d 327, 330-31 (La.App. 4th Cir.1969) for the use of the term "neighbors”: a property owner may sustain a loss and be subjected to undue hardship through no fault of his own, but the remedy “does not lie in any action which will merely pass the hardship on to its neighbors whose property would be reduced in value ...." (emphasis added).

      . The neighbors also joined as party defendants owners of three other properties in the zoning area. One of them, the Pick Family Trust, entered a consent judgment, preventing it from returning the properly to its previous non-conforming use. The claims against the remaining property owners are not before us on this appeal.

      . The matters against the City of New Orleans remain pending in the district court and the legal issues surrounding the propriety of issuing a writ of mandamus pursuant to La. C.C.P. arts. 3861 et seq. are not before us.

      .The judgment also provided that plaintiffs' "writ” is denied. The record is unclear whether the writ which was denied was the writ of mandamus, which was not before the trial court, or the writ of certiorari, which the trial judge referenced on the record. The record is otherwise silent as to a writ of certiorari. Either writ would be directed to the city or the Bureau of Zoning Adjustments, neither of which was participating in the hearings on the exceptions and motion to dismiss. In any event, we are effectively vacating the entire judgment rendered by the trial court, including this provision.

      . See Rule 9.8(B) of the Uniform District Court Rules requires that fifteen (15) days elapse between the filing and hearing on a motion, stating:

        (a) Contradictory Exceptions and Motions. All exceptions and motions, including those incorporated into an answer, must be accompanied by a proposed order requesting the exception or motion be set for hearing. If the exceptor or mover fails to comply with this requirement, the court may strike the exception or motion, or may set the matter for hearing on its own motion. To assist the court in scheduling the hearing, the exception or motion must state: (1) whether the case is set for trial and, if so, the trial date; and (2) whether testimony will be offered at the hearing.
      (b) Time between filing and hearing. No hearing on an exception or motion will be scheduled until at least 15 days after filing. A party seeking to have an exception or motion heard less than 15 days after filing must show good cause and must state in the exception or motion the reasons why an expedited hearing is necessary.
      Further, Rule 9.9 states:
      (a) When a party files an exception or motion, that party must concurrently furnish the trial judge and serve on all other parties a supporting memorandum that cites both the relevant facts and applicable law. The memorandum must be served on all other parties so that it is received by the other parties at least 15 calendar days before the hearing, unless the court sets a shorter time.
      (b) A party who opposes an exception or motion must concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing.
      The opposition memorandum must be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.

      . On October 7, 2008, the Atrium filed a verified cross-claim against the city alleging that in January 2006, it applied for and received a restoration building permit to repair damages to its premises. In late 2006, an employee of the city informed the Atrium that it could continue restoration work under the authority of the permit and did not need to apply for an extension. On February 29, 2008, the Court ruled that the Atrium had until August 29, 2008, to complete repairs. On August 15, 2008, pursuant to CZO Section 13.3.2, the Atrium tried to file for an extension of its restoration building permit with the city through its BZA; however, the city refused the application, stating that the permit had expired. The cross-claim slates that the city is estopped from asserting that the permit of January 2006 was not in effect because the Atrium relied on representations of the city’s authorized agent. The cross-claim prays for a writ of mandamus directing the city to extend the Atrium’s restoration permit or show cause to the contrary.

      . The parties informed us at oral argument that the neighbors had appealed the decision or action of the BZA to the district court and that the appeal had been transferred and consolidated with this case and related cases in the trial court.

      . Neither neighbor, however, pleads an ownership interest in the property in which they reside.

      . "Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities.”

      . For illustration, see Pailet v. City of New Orleans Dept. of Safety and Permits, 433 So.2d 1091 (La.App. 4th Cir.1983) (involving City Park Mid-City Improvement Association, Inc.); Lakeshore Property Owners Association, infra; Coliseum Square Association, Inc. v. Board of Zoning Adjustments of City of New Orleans, 374 So.2d 177 (La.App. 4th Cir.1979); French Quarter Citizens For the Preservation of Residential Quality, Inc. v. New Orleans City Planning Commission, infra; "Dudenhefer's neighbors” at Lake Catherine in Dudenheffer v. City of New Orleans, Department of Safety and Permits, supra at 177-78; River Oaks-Hyman Place Homeowners Civic Association v. City of New Orleans, 281 So.2d 293 (La.App. 4th Cir.1973), and Uptown Improvement Association v. Board of Zoning Adjustments of the City of New Orleans, infra.

      . They find support for their position in La. Atty. Gen. Op. No. 07-0321, 2008 WL 962042.

      . "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.”

      . La. C.C.P. art. 1880 provides in pertinent part: "In a proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard.”

      . It is unnecessary for us to consider at this juncture whether the neighbors have stated a cause of action for injunctive relief. The neighbors do not appear to have taken any steps to obtain any ancillary injunctive relief, such as a temporary restraining order or a preliminary injunction. La. C.C.P. arts. 3602 and 3603. A permanent injunction or a mandatory injunction could be granted as supplemental relief dependent upon what the judgment declares. La. C.C.P. art. 1878.


author: EDWIN A. LOMBARD, Judge. ARMSTRONG, C.J., BELSOME, J.,

text:
    Ann BAEHR v. Brian M. BONNER, Troy G. Broussard and State Farm Mutual Automobile Insurance Company.
    No. 2009-C-0151.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.
    C. Gordon Johnson, Jr., Mathew L. Mann, Porteous Hainkel & Johnson, L.L.P., New Orleans, LA, for Defendant, State Farm Mutual Automobile Insurance Company.
    Robert J. Caluda, The Caluda Law Firm, Metairie, LA, for Plaintiff, Ann Baehr.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

11 On application for supervisory writ, State Farm Mutual Automobile Insurance Company seeks review of the trial court’s judgment denying its motion for summary judgment. For the reasons that follow, the writ application is granted, the trial court judgment is reversed, and summary judgment is granted in favor of State Farm.

Relevant Facts and Procedural History

On December 9, 2006, Troy G. Brous-sard and his wife, Ann Baehr, involved in an automobile accident. Mr. Broussard was driving his wife’s red Saturn Ion at the time of the accident and his wife was riding as a passenger in the vehicle. Ms. Baehr sustained injuries in the accident and, accordingly, filed a lawsuit against the relator, State Farm Automobile Insurance Company. On October 17, 2008, Ms. Baehr dismissed her claims against State Farm under policy number 746-855-18A, the insurance policy written for her own car (the red Saturn Ion), but reserved the right to pursue a claim against State Farm through policy number 5350-803-18K, the policy issued on her husband’s silver Saturn Ion.

IgState Farm filed a motion for summary judgment on November 17, 2008, seeking dismissal of the lawsuit because the policy issued on her husband’s vehicle did not provide liability coverage under the circumstances of this case. The plaintiff filed an opposition to the motion and a hearing on the motion was held on January 9, 2009. After considering the memoranda filed by the parties and the oral arguments, the trial court issued a judgment on January 28, 2009, denying the State Farm’s motion for summary judgment. The trial judge did not issue written reasons for her judgment. This court initially denied State Farm’s application for supervisory writ, affirming the judgment of the trial court but on September 25, 2009, the Louisiana Supreme Court granted writ and remanded the matter to this court for briefing, argument and full opinion. Accordingly, after review of the record in light of the applicable law, appropriate standard of review, and arguments of the parties, we grant State Farm’s application for supervisory writ, reverse the judgment of the trial court, and grant summary judgment in favor of State Farm.

Standard of Review

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Independent Fire Insurance Company v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226. Summary judgment shall be rendered if the pleadings, depositions, answer to interrogatories, and admissions on file together with the affidavits, if any, 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. Pro. art. 966(B).

The burden of proof remains with the mover. Board of Assessors of the City of New Orleans v. City of New Orleans, 2002-0691, p. 8 (La.App. 4 Cir. 9/25/023), 829 So.2d 501, 506. However, if the mover will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial, there is no genuine issue of material fact. La. Code Civ. Pro. art. 966(C)(2).

A fact is material if it is essential to plaintiff’s cause of action under the applicable theory of recovery and if without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992).

Discussion

The relator asserts that Mr. Brous-sard was not covered under policy number 5350-803-18K (the policy covering his own car, a silver Saturn Ion) while driving his wife’s car because his wife’s car (the red Saturn Ion) did not qualify as an insured vehicle under the terms of policy number 5350-803-18K. Specifically, the relator points out that the red Saturn was not described on policy number 5350-803-18K’s declarations page, the red Saturn is not a newly acquired vehicle, a temporary substitute car, or a non-owned vehicle.

An insurance policy is a conventional obligation that constitutes the law between the insured and insurer. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024. Courts interpret insurance policies the same way they interpret other [¿contracts, by using general rules of contract interpretation as set forth in the Louisiana Civil Code. Id. The extent of coverage is determined from the intent of the parties as reflected by the words of the insurance policy and role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the insured and insurer as reflected by the words in the policy. Ledbetter v. Concord Gen. Corp., 95-0809 (La.1/6/96), 665 So.2d 1166. Although the purpose of liability insurance is to afford the insured protection from damage claims and, therefore, insui'ance contracts should be interpreted to effect, not deny, coverage, Yount v. Maisano, 627 So.2d 148 (La.1993), when the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. Civ.Code art. 2046.

In this case, Mr. Broussard is the named insured on policy number 5350-803-18K, a policy written on his silver Saturn Ion with vehicle identification number 1G8AN12F73Z199278. The relevant definitions of the insurance policy provide in pertinent part:

Newly Acquired Car-means a replacement car or an additional car.
Replacement Car-means a car newly owned by or newly leased to you or your spouse that replaces your car....
Additional Car-means an added car newly owned by or newly leased to you or your spouse....
Non-Owned Car-means a car not owned by, registered to or leased to: (1) you, your spouse;....
Non-Owned Car does not include a car which has been operated or rented by or in the possession of an insured during any part of each of the last 21 or more consecutive days....
Temporary Substitute Car-means a car not owned by or leased to you or your spouse, if it replaces your car for a short time.... Its use has |fito be with the express or implied permission of the owner. Your car has to be out of use due to its breakdown, repair, damage or loss.

Louisiana Policy Form 9818.4, p. 2-3.

The liability coverage portion of the policy provides in pertinent part:

Coverage for the Use of Other Cars
The liability coverage extends to the use, by an insured, of a newly acquired car, a temporary substitute car or a non-owned car.
Who Is an Insured
When we refer to your car, a newly acquired car, or a substitute car, insured means: you;
your spouse;
the relatives of the first person named in the declarations;
any other person while using such a car if its use is with the express or implied permission of you or your spouse; and any other person or organization liable for the use of such a car by one of above insureds.

Louisiana Policy Form 9818.4, p. 7.

Thus, upon review of the policy at issue, it is apparent that the coverage under the policy at issue did not extend to Mr. Broussard while he was driving his wife’s car. First, his wife’s car, the red Saturn Ion involved in the accident, did not meet the policy definition of a newly acquired car. In order to be classified as a newly acquired car, the vehicle has to be either a replacement car or an additional car. A replacement car is one that is newly owned and would have replaced Troy’s car. Ann’s red Ion was neither. Deposition testimony submitted in support of the motion establishes that the red and silver Ions were purchased at the same time in November 2003. Because the accident that is the subject of the writ application occurred in December 2006 and, accordingly, neither vehicle can be characterized |fias newly owned. Likewise, because the vehicles were purchased at the same time, it cannot be argued that the plaintiffs car qualifies as a replacement vehicle under the terms of the insurance policy at issue.

Moreover, the red Saturn Ion does not qualify as a non-owned car under the policy at issue is because a non-owned car is one . that is not owned or registered to either Mr. Broussard or his spouse. In this case, deposition testimony indicates that the red Saturn Ion was owned by the plaintiff, Mr. Broussard’s wife and, accordingly, the red Saturn Ion cannot be classified as a non-owned car.

Finally, the red Saturn Ion also does not qualify as a temporary substitute car under the policy at issue. The policy defines a temporary substitute car as one that would not have been owned or leased to Mr. Broussard or spouse. Its use had to be with the express or implied permission of the owner, and Mr. Broussard’s car had to be out of use due to its breakdown, repair, damage or loss. Since the red Saturn Ion was owned by Mr. Broussard’s spouse, it cannot be classified as a temporary substitute car. There is no evidence that Mr. Broussard was driving his wife’s car because his own car was out of use due to a breakdown, repair, damage, or loss and, in fact, Troy testified that he “always drove the red car.” Thus, the red Saturn Ion does not qualify as a temporary substitute care for Mr. Broussard under the policy at issue.

Conclusion

The coverage provided to Mr. Broussard under the policy written for his own car (the policy at issue) did not extend liability coverage to him as the driver 17of his wife’s car at the time of the accident. Accordingly, State Farm’s motion for summary judgment is granted and the trial court judgment denying summary judgment is reversed.

WRIT GRANTED; SUMMARY JUDGMENT GRANTED; TRIAL COURT JUDGMENT REVERSED.

ARMSTRONG, C.J. concurs.

BELSOME, J., dissents with reasons

ARMSTRONG, C.J.,

concurs.

I agree with the result reached by the majority.

BELSOME, J.,

dissents with reasons.

II State Farm Mutual Automobile Insurance Company seeks review of the trial court’s denial of its Motion for Summary Judgment. Due to the ambiguities in State Farm’s policy number 5350-803-18K, summary judgment is not warranted. Accordingly, I would deny the writ.

The issue in this case is whether the provision that Broussard’s coverage applies to accidents and losses that take place during the policy period in combination with the non-exclusionary language contained in the policy makes the policy at issue susceptible to two or more reasonable interpretations as to the extent of coverage. I believe it does.

The policy states on page 4 under “When Coverage Applies” that “[t]he coverages you chose to apply to accidents and losses that take place during the policy period”. Even though the policy on page 7 provides that the policy will extend to use by an insured of a newly acquired car, a temporary substitute car or non-owned car, the policy provides a provision, which does not suggest that coverage will not extend to a vehicle that is not a listed vehicle or is not a newly acquired vehicle, a temporary substitute vehicle or a non-owned vehicle, but indicates that the coverage will extend to those types of vehicles. Specifically, the policy states on page 10:

|2If There Is Other Liability Coverage
1. Policies Insured by Us to You, Your Spouse, or Any Relative.
If two or more vehicle liability policies issued by us to you, your spouse, or any relative may apply to the same accident, the total limits of liability under all such policies shall not exceed that of the policy with the highest limit of liability.

In addition, the policy on page 9 under the “There is No Coverage” provides that there is no coverage if the vehicle is rented or leased to other. However, there is nothing in the policy that clearly and unambiguously excludes the coverage of Broussard for this automobile accident at issue under this portion of the policy.

Accordingly, the provision that Brous-sard’s coverage applies to accidents and losses that take place during the policy period in combination with the non-exclusionary language contained in the policy makes the policy at issue susceptible to two or more reasonable interpretations as to the extent of coverage. Due to the ambiguities, summary judgment is not warranted. The trial court was correct in denying State Farm’s Motion for Summary Judgment.

      . Policy number 745-855-18A is the policy that was issued to Ann that insured the red Saturn. State Farm covered Troy under this policy because he was driving the insured vehicle.